Anibal Rosario Lebron, Between the Pessimism of State Action and the Optimism of SSOGIE Equality,
53 SW. L. REV. 303 (2025)
This article critically examines the limitations imposed by the state action doctrine on advancing sex, sexual orientation, and gender identity and expression (SSOGIE) equality in the United States. It argues that the state action doctrine, which restricts constitutional claims to actions by the State, obscures the real dynamics of power and rights violations between private actors. By forcing a vertical framework that pits individuals against the State rather than addressing horizontal conflicts between private parties, the doctrine has enabled the weaponization of civil liberties, especially the First Amendment, to shield discriminatory conduct and stall progress on LGBTQ+ and reproductive rights. Through close analysis of U.S. Supreme Court decisions such as 303 Creative v. Elenis, Masterpiece Cakeshop, and NIFLA v. Becerra, the article illustrates how the Court’s application of the state doctrine distorts judicial analysis to insulate private discrimination from judicial review. In response, the article advocates for adopting a , which recognizes constitutional rights as actionable between private parties. Drawing on examples from jurisdictions like Colombia, Puerto Rico, and California, the article underscores the potential of a subnational legal reform and constitutional innovation to revitalize SSOGIE equality by adopting the horizontal approach widely by the states.