Privacy Torts: Unreliable Remedies for LGBT Plaintiffs

Abstract

In the United States, both constitutional law and tort law recognize the right to privacy, understood as legal entitlement to an intimate life of one’s own free from undue interference by others and the state. Lesbian, gay, bisexual, and transgender ("LGBT") persons have defended their interests in dignity, equality, autonomy, and intimate relationships in the courts by appealing to that right.

In the constitutional arena, LGBT Americans have claimed the protection of state and federal privacy rights with a modicum of well-known success. Holding that homosexuals have the same right to sexual privacy as heterosexuals, Lawrence v. Texas symbolizes the possibility of victory in the courts for LGBT Americans seeking privacy in intimate life. In the U.S. tort arena, LGBT plaintiffs have claimed violations of their privacy rights and have sometimes won. As detailed throughout this Article, LGBT plaintiffs have accused such defendants of prying, spying, insulting or harassing them, or disclosing their birth sex, sexual orientation, or medical information without authorization. Lawsuits have framed the violations experienced by LGBT claimants as one or more of the four privacy torts Dean William L. Prosser distinguished and enshrined in the Second Restatement of Torts. LGBT plaintiffs relying on Prosser’s common law tort remedies have not been as successful as some would have predicted based on a general understanding of the torts and their superficial appeal. The common law of torts has yet to generate its Goodridge or Lawrence.

In this Article I analyze cases in which LGBT plaintiffs have alleged one or more of Prosser’s four common law privacy tort offenses on facts that expressly involve their sexual orientations or gender identities. I argue that plaintiffs’ lawyers in LGBT issues-related cases implicitly challenge the integrity of Prosser’s formal taxonomy. LGBT issues-related cases may not strain Prosser’s taxonomy any more than other privacy tort cases, but this body of cases exposes the limitations of Prosser’s distinctions on particularly poignant and compelling facts. I argue further that the theoretically promising invasion of privacy torts have not been especially useful to LGBT plaintiffs seeking relief in cases related to their sexual orientations or identities. For example, the invasion of privacy tort has not reliably vindicated the complex interest LGBT plaintiffs understandably assert in what I term “selective disclosure” of their sexual orientations or identities. I suggest that recent success in the LGBT population’s historic quest for equality and inclusion potentially undercuts the already tenuous practical utility of the invasion of privacy tort. Courts may fail to discern that sexual orientation and sexual identity-related privacy protection is warranted for LGBT individuals if, they believe there has been a significant reduction in violence, social stigma, and discrimination associated with open LGBT status.

Keywords: gay rights, lesbian rights, homosexuality, transgender rights, tort law, constitutional law, right to privacy, intrusion, right to publicity, false light, appropriation, William Prosser, tort law, gender, sexuality and the law, LGBT