Sexual Orientation, Gender Identity, and the Constitution

In this textbook, Professor Nicolas incorporates his expertise in constitutional law, federal courts, and sexual orientation, gender identity, and the law to provide a comprehensive approach to studying constitutional litigation involving the rights of sexual minorities.


The book first addresses threshold questions regarding the definitions of sexual orientation, sex, and gender, setting the stage for the question of ''immutability'' and the status-conduct and speech-conduct lines that arise in the substantive materials that follow. Next, it addresses procedural obstacles that play an increasingly prominent role in constitutional litigation involving the rights of sexual minorities, such as standing, mootness, abstention, and the precedential weight of summary affirmances by the U.S. Supreme Court. Finally, it examines the key constitutional doctrines that arise in litigation regarding the rights of sexual minorities — substantive due process, equal protection, and First Amendment — in a variety of contexts, such as marriage, parenting, and public employment. The book thus replicates the stages of analysis that arise when litigating any such case from start to finish.


Because the book covers basic constitutional law doctrine as well as more focused case law regarding the constitutional rights of sexual minorities, it can be used effectively in a stand-alone course on sexual orientation, gender identity, and the law as well as in a traditional, rights-based constitutional law course taught by a faculty member who wishes to teach the course with greater focus on the constitutional rights of sexual minorities. Moreover, it is sufficiently comprehensive for use in non-law school courses as well.