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The right's bathroom privacy lie: Their new "bathroom bill" approach misreads the Constitution -- and decency

Conservative groups opposing transgender inclusion have the law -- and the facts -- all wrong


Scott Skinner-Thompson
May 29, 2016 7:59PM (UTC)

Privacy has some new devotees. These converts, while historically opposing privacy rights for young women attempting to exercise reproductive freedom, now claim that the right to privacy stands guard over the girls of America, protecting them from the imagined threat of other girls. Girls who happen to be transgender.

In lawsuits challenging reasonable and humane efforts to recognize transgender people for who they are — people — groups such as the Alliance Defending Freedom (ADF) argue that discrimination against already vulnerable transgender students is legally required because it infringes on other students’ “constitutional right to privacy.” As the Fourth Circuit Court of Appeals recently suggested, proponents of anti-transgender bathroom laws misapprehend the nature of the privacy right guaranteed by the Due Process Clauses of the Constitution. Instead, the right to privacy militates in favor of transgender inclusion.

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But before diving into doctrine, it is critical to note that many of the boogeymen being raised by proponents of anti-transgender bathroom policies can be dispelled through common sense, pragmatic solutions that protect the privacy interests of all without demeaning transgender people, who already suffer disproportionate rates of suicide, poverty and violence. Bathrooms and locker rooms can be, and increasingly are, designed with stalls and privacy curtains that ensure privacy for anyone who desires it. And, of course, the hurtful myth that transgender bathroom access somehow represents a risk of sexual violence has already been empirically refuted by government officials in jurisdictions that have trans-inclusive policies.

More importantly, as we collectively contemplate issues of transgender inclusion (many of us for the first time), we should remember that we are discussing the lives of real people. As ADF rightly recognizes when advocating for its own clients, youth is a precarious time of life, a time when students are vulnerable to “embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation, and loss of dignity.” No less so than for transgender youth.

To that end, instead of referring to girls who happen to be transgender as “boys” or “biological males,” which aside from being inaccurate can exact a heavy mental and emotional toll on transgender people, refer to them simply as girls—which they are. As medical experts such as Duke’s Dr. Deanna Adkins attest, one’s gender identity “is the appropriate determinant of sex.” And even if focused narrowly on physical characteristics, the legal fixation on external genitalia is misplaced because “external genitalia do not account for the full spectrum of sex-related characteristics nor do they ‘determine’ one’s sex. Instead, sex-related characteristics include external genitalia, internal reproductive organs, gender identity, chromosomes, secondary sex characteristics and genes.”

Put differently, a few inches of flesh here or there do not define us.

Pivoting to the law, proponents of transgender exclusion from public restrooms and locker rooms argue that transgender inclusion will potentially cause their “partially or fully unclothed bodies [to] be exposed to” people with different genitalia than them. In other words, they are worried that information about their bodies or their children’s bodies will be disclosed to transgender people using the same public space.

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While in broad strokes case law supports constitutional limits on the government’s ability to disseminate our private, intimate information, the cases relied on by proponents of transgender exclusion do not support their claim here.

For example, proponents of transgender exclusion have relied on cases involving a female police officer being videotaped partially nude by a male colleague after taking a decontamination shower, schools installing video cameras in student locker rooms, strip searches of students, and the forceful removing of an inmate’s underclothes. These are, of course, horrific privacy invasions. But they are quite different from the mere presence of transgender people using facilities corresponding to their gender identity. As the Fourth Circuit Court of Appeals acknowledged in its recent decision in G.G. v. Gloucester County School Board, it is doubtful that a transgender student’s “use of the communal restroom of his choice threatens the type of constitutional abuses present” in such appalling privacy cases.

Instead, to the extent that the law recognizes limits on the government’s ability to disseminate our personal information (and it does), courts enforce those limits most rigorously when information regarding a stigmatized characteristic is disclosed—for example, one’s HIV status, minority sexual orientation (e.g., gay, lesbian, or bi status), or transgender identity. This is because disclosure of such information can result in further harm and consequences to the individual, including discrimination. And certain courts have already specifically held that laws that out a person’s transgender status implicate this right to informational privacy.

In other words, the right to informational privacy—the right to limit disclosure of one’s information—appears to be at its zenith when dealing with information that might expose someone to stigmatization, discrimination, or some other concrete downstream harm. As the Supreme Court held this past week in Spokeo, Inc. v. Robins, in order to even have standing to bring a claim based on the dissemination of problematic information, the harm caused by the information must be “concrete.”

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There can be little doubt that outing of a person’s transgender status can lead to harms that are not only concrete, but tragic. In a world with misunderstanding and, at times, hostility and fear-mongering toward transgender individuals, forced disclosure of one’s transgender status through compelled use of a restroom that doesn’t comport with one’s gender expression causes transgender individuals immediate emotional and mental harm, interferes with their medical treatment, and potentially subjects them to discrimination and abuse. The constitutional right to privacy restricts such outing.

Finally, proponents of transgender exclusion also assert that they have a right not to see the bodies of transgender people. This is less a claim to privacy—that is, here they aren’t claiming that their own information is at stake or at risk of disclosure—and more an assertion of an hermitic right not to encounter people different or diverse from you.

But we no longer live in a troglodyte society. In today’s modern world no person or group of people has the ability to, in effect, exercise a heckler’s veto over who can appear in public space. Rather than fearing our differences and teaching our children to fear such differences, we should consider again Attorney General Lynch’s appeal to “summon our virtues of inclusivity, diversity, compassion and open-mindedness.”

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Scott Skinner-Thompson

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