University of Pennsylvania Journal of Law and Social Change

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This article evaluates landmark cases spanning almost seven decades from the Supreme Court of the United States dealing with sexual orientation and gender identity. The cases are as follows: (1) One, Inc. v. Olesen (1958); (2) Boutilier v. Immigration and Naturalization Service (1967); (3) Baker v. Nelson (1972); (4) Rowland v. Mad River Local School District (1985); (5) Bowers v. Hardwick (1986); (6) Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995); (7) Romer v. Evans (1996); (8) Boy Scouts of America v. Dale (1996); (9) Lawrence v. Texas (2003); (10) United States v. Windsor (2013); (11) Hollingsworth v. Perry (2013); (12) Obergefell v. Hodges (2015); (13) Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2015); (14) Pavan v. Smith (2017), and (15) Bostock v. Clayton County, Georgia (2020). The article relies, further, on three opinions from the lower federal courts dealing with sexual orientation or gender identity. Those cases are as follows: (16) Cianciotto ex rel. D.S. v. New York City Dep’t of Educ. (S.D.N.Y. 2022); (17) Theno v. Tonganoxie Unified Sch. Dist. No. 464 (D. Kan. 2005); and (18) Nabozny v. Podlesny (7th Cir. 1996).

We Have the Right to Play builds upon the insight that dignity has long been the embodiment of status. Commentators have observed that those possessing superior or supreme status have decided the extent to which sexual and gender minorities enjoy the same status. Those holding superior or supreme status have thus determined when sexual and gender minorities engage in endeavors that nurture self-expression, freedom, and creativity. The innovation this article provides lies in its evocation and focus on the notion of “play,” a concept often reserved for psychological development. Specifically, this article shows how those possessing superior or supreme status have often suppressed the liberty of sexual and gender minorities to play. While the Supreme Court has upheld the notion of equal status for everyone, it has paid markedly less attention to the importance and transformative power of the liberty to play.

This article argues that the Court should explicitly articulate the relationship between dignity, status, and the liberty to play. By doing so, the Court would make clear the stakes involved, providing greater protection for some of the most historically vulnerable constituencies in the nation.

Duane Rudolph, duanerudo@gmail.com