The Genuine Gender Protection Act - Assignment Example

Helen Generous v. New York 1. The Genuine Gender Protection Act, 2015 (the “GGP”) violates the Appellant’s right to Free Exercise of Religion. The First Amendment to the Constitution of the United States of America provides that the Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. In Sherbert v. Verner, 374 U.S. 398; 83 S. Ct. 1790; 10 L. Ed. 2d 965; 1963 U.S. LEXIS 976, writing for the majority, Justice Brennan reasoned: “[N]ot only is it apparent that appellant's declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.” In Sherbert, the Sherbert Test was devised to determine if an individual’s right to free exercise of religion has been violated by the Government. The four point test first checks if the person involves has a claim involving a sincere religious belief. If yes, then it needs to be seen whether the Government creates an 'infringement' on a constitutional right to practice religion? That is, has Governmental action somehow impaired, interfered with, or prevented a person's or group's exercise of religion? If not, then the case is over - the government has won. If the answer is yes, then the test moves on to the next criterion. It is tested if the government has a compelling state interest which justifies burdening the religious activity in question? If the answer to this is 'no,' then the government has lost. Otherwise, the inquiry can move on to the fourth question. Here we examine, if a compelling interest does exist, are there any alternative means by which the government can achieve its goal and thus not burden religious action? If so, then the government has to use that alternate procedure and cease the oppression of religious action. Otherwise, the government has won the case. Analyzing Appellant’s situation in light of the above test can we say that Appellant’s right to free exercise of her religious beliefs is restricted by GGP? Applying the first test we understand that GGP does involve a sincere religious belief held by the Appellant who was the Prophet of the Church of Eternal Goddess. Moving on to the next test it needs to be analyzed if the governmental action has somehow impaired, interfered with, or prevented a person's or group's exercise of religion? Clearly the GGP, by making the aiding of abetting of gender selective abortion as well as gender change procedure for non-medical purposes felony has interfered with the Appellant’s practice of the religion. A person has the right to exercise religion and follow the tenets of the religion she is practicing without causing hurt to anyone else. The criminalization of the two actions which the Appellant consider as integral part of her religious belief is therefore clearly interfered with by the Government action. But can the GGP be justified on grounds that there are compelling state interests justifying the actions of the Government? The term "compelling" here means "very important" or "of the highest magnitude." According to the Court: “It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, 'only the gravest abuses, endangering paramount interests, give occasion for permissible limitation'.” Even considering a substantial increase in popularity of the religion propagated by the Appellant can it be said that the actions of gender changing and selective sex based abortion of fetuses can cause gravest abuses, endangering paramount interests? Since at the moment it has not taken on such proportions and will not take on such serious proportions even in forseeable future, the GGP imposes unnecessary and harsh restrictions and the actions are clearly not justified by the problems it seeks to remedy. Furthermore if we apply the viability test as determined in Roe v. Wade, (410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159) a woman has the right to abort the fetus in the first trimester since the fetus is not under the definition of a person under the 14th Amendment while, in the second trimester the right of the woman can be restricted considering her health and in the final trimester the fetus cannot be aborted due to the quickening of the fetus. Reading Roe in conjunction with Shebert we see that the government also has no compelling interest in enacting GGP. We see that the government does not have state interest compelling enough to justify the GGP and hence by applying the first three points of the Sherbert Test we can say that the GGP violates the Apellant’s right to Free Exercise of Religion. However, even if we consider the last point of the four point test, then are there ways by which the government could have achieved the purpose it seeks to achieve through GGP? We believe the government could have achieved the same purposes by carrying out a procedure of education and support groups. 2. The GGP does not violate Appellant’s right to privacy under the Due Process of Clause of the Fourteenth Amendment. The right to abort a fetus presents a sensitive and emotional debate complicated more by various issues of morality, philosophy, religion, attitude towards life among various other factors. The Supreme Court has confirmed that a woman has the right to abort her fetus, while the word "person" in the 14th Amendment, does not apply to the unborn. However, the State has the dual responsibility of maintaining a balance between the health and the right of the pregnant woman and the unborn fetus (See, Planned Parenthood of Southeastern Pa. v. Casey 505 U.S. 833; 112 S. Ct. 2791; 120 L. Ed. 2d 674; 1992 U.S. LEXIS 4751; 60 U.S.L.W. 4795; 92 Daily Journal DAR 8982; 6 Fla. L. Weekly Fed. S 663). The state's interest in maternal health becomes compelling at three months while the state's interest in fetal life becomes compelling at viability, i.e. six months. While the state need not regulate abortion at all during the first trimester, the state may regulate abortion during the second three months, but only for the protection of the woman's health and the state may regulate or ban abortion during the third trimester to protect fetal life. But does GGP affect the right to privacy granted to a woman under the Due Process Clause? We do not think so. It is to be noted that the GGP makes not the exercise of the right to abort a fetus a criminal act, but it criminalizes the act of aiding and abetting gender selective abortions. GGP does not affect the right of the woman as has been granted to her. Considering the situation we cannot say that the right to privacy of the Appellant under Due Process Clause has been violated or that the following fundamental points established in Roe v. Waid have been violated: (1) a recognition of a woman's right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State, whose pre-viability interests are not strong enough to support an abortion prohibition or the imposition of substantial obstacles to the woman's effective right to elect the procedure; (2) a confirmation of the State's power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering a woman's life or health; and (3) the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. The Appellant’s other contention is that by criminalizing aiding or abetting gender changing operations for non medical purposes the GGP is restricting her right to privacy under the due process clause. While there is no well developed case laws in the matter of gender changing operations, this definitely falls well within the “penumbra” of rights as enumerated by the Court in Griswold v. Connecticut, (381 U.S. 479; 85 S. Ct. 1678; 14 L. Ed. 2d 510; 1965 U.S. LEXIS 2282). In both Griswold and Lawrence v. Texas (539 U.S. 558; 123 S. Ct. 2472; 156 L. Ed. 2d 508; 2003 U.S. LEXIS 5013; 71 U.S.L.W. 4574; 2003 Cal. Daily Op. Service 5559; 2003 Daily Journal DAR 7036; 16 Fla. L. Weekly Fed. S 427), the Court has upheld that there are certain areas, which though not explicitly covered by the Amendments belong to such a private portion of the human life that a state interference in such a matter cannot be tolerated expect at the cost of complete betrayal off human privacy. A person’s freedom to chose the gender for medical or non-medical purposes is one such issue where freedom should be granted to the individual due to the physical and psychological effects restrictions on such decisions can bring about. Casey confirmed that our laws and tradition afford constitutional protection to our personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of the liberty is the right to define one’s own concept of existence, of meaning, of the universe, of the mystery of human life.” Are we not to categorize the freedom to choose our genders in the same category as these above rights? But does the GGP limit this right guaranteed to us by the Constitution? We think not, since the restriction is on abetting and aiding the gender changing operation and not on the right of the individual to choose his gender. Read More