The Right to Seek Joy

This law review article by Professor Tyler Rose Clemons develops a new substantive due process jurisprudence on the right to seek joy. Tracing the historical origins of the right to liberty of the Due Process Clauses of the Fifth and Fourteenth Amendments, this article connects the concept of liberty with the pursuit of happiness, or the right to seek joy. Noting that “Most humans experience the desire to align their external gender presentation with their internal gender sense as a pressing need,” this article argues that the natural desire for internal/external gender alignment is a liberty interest that must be highly protected. Applying this framework, this article examines the harms of gender-affirming care bans, especially as applied to youth, and argues that standard legislative and judicial procedures are inadequate to justify an infringement on this protected liberty interest. This article offers novel legal strategies to protect the due process right to seek joy and details critical insights around gender identity formation during childhood and adolescence for defenders to consider, especially when transgender youth in the juvenile legal system face barriers to access gender-affirming care and support.