Introduction
This blog examine issues arising from the federal lawsuit Privacy Matters v. U. S. Department of Education. Background and terminology can be found in the first entry on Sexual Harassment. This suit concerns a Minnesota junior high/high school in which a male-bodied student (as defined by sex at birth) began identifying as female gender and was allowed to use female bathrooms and locker rooms. I am starting from court documents and other public statements by the contending parties, to try to understand the issues through a legal lens.
Privacy
A major focus of this case is whether requiring girls to change clothes and use bathrooms in the presence of a male-bodied person is a violation of their privacy.
Privacy is raised as a constitutional issue in the initial complaint. The heart of their argument is:
341. The Fifth Amendment protects citizens against violation of fundamental rights by federal actors. The Fourteenth Amendment protects citizens against violation of fundamental rights by state actors.
342. Fundamental rights are liberty interests deeply rooted in the Nation’s history and tradition and implicit in the concept of ordered liberty.
343. Each Girl Plaintiff has a fundamental right to bodily privacy that, at a minimum, includes protection from intimate exposure, or risk of intimate exposure, of her body and intimate activities to a male. It also includes the corollary protection from intimate exposure, or the risk of intimate exposure, to a male’s body or intimate activities.
344. The fundamental right to bodily privacy is deeply rooted in the Nation’s history and tradition and has long been recognized in the United States Constitution and federal and state statutory and common law.
345. The fundamental right to bodily privacy is also implicit in the concept of ordered liberty because a government that compels its citizens to disrobe or attend to intimate activities in the presence of the opposite sex violates the core of personal liberty.
346. Such an abridgement of fundamental rights is presumptively unconstitutional and can only be justified if it survives strict scrutiny under which the law must serve a compelling state interest by the most narrowly tailored means. (p. 57 - 58).
Privacy is raised as a constitutional issue in the initial complaint. The heart of their argument is:
341. The Fifth Amendment protects citizens against violation of fundamental rights by federal actors. The Fourteenth Amendment protects citizens against violation of fundamental rights by state actors.
342. Fundamental rights are liberty interests deeply rooted in the Nation’s history and tradition and implicit in the concept of ordered liberty.
343. Each Girl Plaintiff has a fundamental right to bodily privacy that, at a minimum, includes protection from intimate exposure, or risk of intimate exposure, of her body and intimate activities to a male. It also includes the corollary protection from intimate exposure, or the risk of intimate exposure, to a male’s body or intimate activities.
344. The fundamental right to bodily privacy is deeply rooted in the Nation’s history and tradition and has long been recognized in the United States Constitution and federal and state statutory and common law.
345. The fundamental right to bodily privacy is also implicit in the concept of ordered liberty because a government that compels its citizens to disrobe or attend to intimate activities in the presence of the opposite sex violates the core of personal liberty.
346. Such an abridgement of fundamental rights is presumptively unconstitutional and can only be justified if it survives strict scrutiny under which the law must serve a compelling state interest by the most narrowly tailored means. (p. 57 - 58).
Legal Background
Right of Privacy is defined as "the right of a person to be free from intrusion into or publicity concerning matters of a personal nature....NOTE: Although not explicitly mentioned in the U.S. Constitution, a penumbral right of privacy has been held to be encompassed in the Bill of Rights, providing protection from unwarranted governmental intrusion into areas such as marriage and contraception. A person's right of privacy may be overcome by a showing that it is outweighed by a compelling state interest."
The aspect of Right of Privacy most applicable to the situation in which a male-bodied person enters a female space is "Intrusion of Solitude", defined as "Intruding upon another's solitude or private affairs, physically or otherwise, is subject to liability if this intrusion would be considered highly offensive to a reasonable person. This type of invasion of privacy is commonly associated with "peeping Toms," someone illegally intercepting private phone calls, or snooping through someone's private records."
Ordered Liberty is the view that fundamental constitutional rights are not absolute but are determined by a balancing of the public (societal) welfare against individual personal rights...."ordered liberty" describes a polity that has reconciled the conflicting demands of public order and personal freedom.
Right of Privacy is defined as "the right of a person to be free from intrusion into or publicity concerning matters of a personal nature....NOTE: Although not explicitly mentioned in the U.S. Constitution, a penumbral right of privacy has been held to be encompassed in the Bill of Rights, providing protection from unwarranted governmental intrusion into areas such as marriage and contraception. A person's right of privacy may be overcome by a showing that it is outweighed by a compelling state interest."
The aspect of Right of Privacy most applicable to the situation in which a male-bodied person enters a female space is "Intrusion of Solitude", defined as "Intruding upon another's solitude or private affairs, physically or otherwise, is subject to liability if this intrusion would be considered highly offensive to a reasonable person. This type of invasion of privacy is commonly associated with "peeping Toms," someone illegally intercepting private phone calls, or snooping through someone's private records."
Ordered Liberty is the view that fundamental constitutional rights are not absolute but are determined by a balancing of the public (societal) welfare against individual personal rights...."ordered liberty" describes a polity that has reconciled the conflicting demands of public order and personal freedom.
Legal cases that address the issue of intimate contact between male-bodied and female-bodied people tend to involve strip and cavity searches in prisons and the right to get a pat down from a same sex TSA person at the airport. In general, court decisions have upheld a view that such searches should be done by a person of the same sex as the person being searched unless a compelling reason such as lack of a same sex personal or an emergency situation makes this difficult or impossible. This article examining court cases concerned with Cross Gender Strip Searches of Prisoners gives perspective on the wide range of decisions that have been handed down.
Incidents involving transgender people have caused controversy. In the UK, female guards refused to strip search a male prisoner who claimed to be female, but was not undergoing any hormone or surgical treatment. A recent TSA incident involved a male-bodied airline passenger going through the body scanner. A button is pushed indicating whether the scan will be of a male or female. The male-bodied person identifying as female was flagged by the system and subjected to a pat down for a gun or weapon in the genital area. Typically, such procedures must be done by an official of the same sex as the one being searched. A person claiming a transgender identity causes confusions for which we presently have no agreed upon standards.
Perspectives of ADF and ACLU
The conservative Alliance Defending Freedom and the Liberal ACLU take on cases that often are very similar. For instance, both litigate cases defending free speech on campuses. The two organizations cite the same constitutional amendments and the concept of ordered liberty in defending the rights of their clients. Above, the ADF cites the right of privacy in the fifth and fourteenth amendments and the concept of ordered liberty in defending the privacy rights of girl plaintiffs.
The ACLU has used these same concepts in their litigation. For instance, in this amicus brief (p. 22-23) the ACLU invokes the fifth amendment and ordered liberty when defending Apple from FBI attempts to force them to write code enabling the FBI to hack into iPhones. On the issue of student dress code the ACLU cites a need to balance public goods with personal freedoms: "Many school districts claim stringent dress codes increase their emphasis on academics, disperse gang activity, and reduce pressures stemming from socioeconomic status. But they can also violate a student’s First Amendment right to freedom of expression and a parent’s Fourteenth Amendment right to raise their children as they choose." In an amicus brief for Vacco v. Quill (1996), The ACLU argued in favor of a terminally ill patient's right to die with dignity using the fourteenth amendment right to privacy and the concept of ordered liberty.
The Plaintiffs' core privacy argument in this case hinges on the assertion that girls are being compelled by the government, in the guise of the U. S. Department of Education and the Virginia School District in Minnesota, to disrobe and perform other intimate bodily functions in the presence of a male-bodied person and are being exposed to a male-bodied person disrobing. Plaintiffs deny that there are overriding government interests to compel this loss of bodily privacy and that other available remedies are not being used. The ACLU sees this lawsuit as part of a larger "anti-trans strategy". Their position was stated in an opinion piece in the New York Times by ACLU attorney Alexandra Brodsky, in October, 2016. Brodsky wrote:
"The focus on privacy marks a shift in anti-trans strategy. Earlier efforts, like North Carolina’s House Bill 2, which limited bathroom access, relied on a dangerous myth that prohibiting discrimination against transgender people would allow predatory men to enter women’s restrooms. That approach is giving way to a new focus on privacy — narrowly defined to include only non-transgender women and girls....But the fake-feminist privacy argument is apparently more tolerable to liberal minds — and perhaps more dangerous for that reason."
As noted in the Complaint: 107. Under the District Policy, any student in any District school, pre-school through 12th grade, has unrestricted access to private facilities based on the students’ professed gender identity. 108. A student need not provide the District any medical or psychological confirmation of a diagnosis of gender dysphoria. 109. This Policy authorizes males to enter female-specific private facilities and vice versa for students aged three to eighteen (P. 23).
If we examine the Incidents on Record link list of over 60 reported incidents of male-bodied people in female locker rooms, bathrooms, showers, and changing rooms we can get a sense of what the situation is like in the United States. These newspaper articles of reported incidents include:
34 incidents reported male-bodied persons, dressed in women's clothes
28 of the incidents involved videotaping and recording of women and girls using the toilet, showering, or changing clothes.
27 of the perpetrators targeted underage girls
11 perpetrators had a prior history of violence and/or sexual offenses
9 of the incidents were rapes or physical sexual assaults
7 perpetrators identified themselves as transgender.
The types of incidents reported ranged from spying on girls under or through bathroom stalls, videotaping, rape and assault. Suspects were variously charged with invasion of privacy, sexual assault, child pornography, unlawful use of a concealed camera for purposes of sexual gratification, eavesdropping, capturing or distributing images of an unclothed person, using a computer to commit a crime, aggravated sexual exploitation of a minor, and more.
This list of incidents is enough to establish that violation of privacy has occurred in female intimate spaces and that the risk of sexual predators masquerading as transgender or actually living as transgender females is not a "dangerous myth" but a documented fact. Concerns about privacy grade into concerns about safety, as spying with a computer tablet camera can devolve into more serious child pornography charges. In addition, it is surprising that Ms. Brodsky characterizes the protection of women and girls from unwanted male voyeurism in their intimate spaces as "fake-feminist", as this is a long standing issue in feminist communities.
34 incidents reported male-bodied persons, dressed in women's clothes
28 of the incidents involved videotaping and recording of women and girls using the toilet, showering, or changing clothes.
27 of the perpetrators targeted underage girls
11 perpetrators had a prior history of violence and/or sexual offenses
9 of the incidents were rapes or physical sexual assaults
7 perpetrators identified themselves as transgender.
The types of incidents reported ranged from spying on girls under or through bathroom stalls, videotaping, rape and assault. Suspects were variously charged with invasion of privacy, sexual assault, child pornography, unlawful use of a concealed camera for purposes of sexual gratification, eavesdropping, capturing or distributing images of an unclothed person, using a computer to commit a crime, aggravated sexual exploitation of a minor, and more.
This list of incidents is enough to establish that violation of privacy has occurred in female intimate spaces and that the risk of sexual predators masquerading as transgender or actually living as transgender females is not a "dangerous myth" but a documented fact. Concerns about privacy grade into concerns about safety, as spying with a computer tablet camera can devolve into more serious child pornography charges. In addition, it is surprising that Ms. Brodsky characterizes the protection of women and girls from unwanted male voyeurism in their intimate spaces as "fake-feminist", as this is a long standing issue in feminist communities.
Augmenting the charges of violation of the right to privacy, Plaintiffs bring charges related to religious freedom, using both the U.S. and Minnesota Religious Freedom Restoration Act statutes. These religious issues will be the focus of the next blog entry. The crux of this case is how sex is properly defined under the law. The Defendants assert that inner gender identity should be the unquestioned standard, and the Plaintiffs assert a standard based on genital anatomy. A future blog entry will look at this question from a variety of perspectives.
Update: Privacy Matters withdrew the suit voluntarily as the Trump administration withdrew the Obama era directive mandating that "sex" be changed to "gender identity" in Title IX and the school made accommodations to protect the privacy of the girls. Privacy Matters retained the right to refile the suit.
The author is a scientist. She has a child who identifies as transgender. She knows that the law is an imperfect instrument and that judges are influenced by their own prejudices and ideologies. Nevertheless, the law gives us an important venue for presenting facts, asking questions, and making decisions that can illuminate important social issues.
Civil Rights in the Age of Transgender Youth is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International L
recognize
that
the
government
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Salerno,
481
U.S.
739,
746
7
8
(1987)
(quoting
Palko
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Connecticut,
302
U.S.
319,
325-26
(1937)).
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