Privacy As Pretext

Abstract

The terms of the debate over LGBT rights have shifted in recent years, particularly since the Supreme Court made marriage equality the law of the land in Obergefell v. Hodges. Today, people against LGBT equality argue that curtailing LGBT rights is necessary to protect the rights of others. One potent rhetorical weapon used to oppose LGBT rights is the claim that anti-discrimination protections for LGBT people undermine privacy because they permit transgender people to use facilities that accord with their gender identity. This article uses legal privacy theory to show that allowing transgender people into gendered facilities does not undermine privacy in any legally cognizable sense. In making this argument, I engage with the work of scholars who have developed various philosophical understandings of privacy thought to justify a legal right to its protection. Privacy has been conceptualized as: a “right to be let alone;” a means to limit access to the self; a safeguard of intimacy; a right to control information; a defense for personhood; and protection for social networks. But none of these conceptions of privacy support a right for cisgender1(a) objectors to exclude transgender people from facilities that accord with their gender identity. Indeed, examining the issue through these privacy theories shows that excluded transgender people are the ones whose privacy is violated. Opponents’ privacy claims are just a pretext to justify rolling back anti-discrimination protections for LGBT people.

I also show that accepting a privacy right to exclude transgender people from gendered facilities would harm all women and girls. The privacy arguments being made to oppose LGBT rights echo a troubling history of using privacy concerns to justify unequal treatment of women. They also reify negative stereotypes about women, undermining sex equality and making all female-identified people more vulnerable to discrimination, mistreatment, and assault.

Keywords: transgender rights; privacy; discrimination; LGBT rights, anti-discrimination laws; women's rights; legal theory; bathrooms; sexual orientation; gender identity