INTRODUCTION
Since the 1970s, advocates of the constitutional right to privacy—especially those who favor the protections it has offered reproductive rights—have fretted about the possibility of a conservative coalition installing enough justices on the US Supreme Court to strike it out of existence. This fear is not an unfounded one. Twenty-two years after the Supreme Court first expounded the right as its relates to reproductive care in Griswold v. Connecticut (1965) and only fourteen years after Roe v. Wade (1973), opponents made headway with President Ronald Reagan’s nomination of Judge Robert Bork, who expressively reviled the idea that the Constitution protected such a right.Footnote 1 Though the Reagan administration ultimately failed to secure a Supreme Court majority opposed to the right to privacy, the Republican party now appears to be within striking distance. President Donald Trump’s pattern of selecting nominees who pass muster within Federalist Society networks suggests that his appointed judges and justices will have ideological and jurisprudential qualms with what many on the right perceive to be an illegitimate progressive invention (Montgomery Reference Montgomery2019). Thus, as Reva Siegel (Reference Siegel2015, 322) mused in an article that reads like a premonition, “[i]f a Republican President who believes a great wrong was done to Judge Bork is elected in 2016, and if that Republican has an opportunity to replace sitting Justices, we may yet see a new Supreme Court that repudiates the right to privacy first recognized in Griswold.”
This wholly reasonable prediction, however, has not borne out the way that defenders of the right to privacy have expected. Rather than continuing in their decades-long tradition of decrying privacy jurisprudence as a left-wing farce, some of the most well-funded social conservative organizations and their allies in the Trump administration have instead begun to adopt such privacy claims for their own ends. Specifically, they have adopted privacy arguments in their goal to curb the expansion of the rights of transgender persons. Those ranging from Christian religious liberty litigation firms like the Alliance Defending Freedom (ADF) to the leaderships of the Justice and Education Departments have in recent years levied constitutional, statutory, and policy arguments for privacy against the rights of transgender persons to access facilities that best match their gender identity. Though these developments have garnered far less attention than those like the religious liberty-themed attacks on lesbian, gay, bisexual, transgender, and queer + (LGBTQ+) rights such as in state-level Religious Freedom Restoration Acts and federal court cases like Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) and Fulton v. City of Philadelphia (2021), it is clear that making the right to privacy their own has become a key social conservative imperative.Footnote 2
Yet in the conservative quest to retool privacy claims, these forces have eschewed any and all reference to Griswold, Roe, or even a hint that their argument for privacy possesses any relation whatsoever to abortion-access case law—let alone its political implications. Shockingly, they have done so even while invoking a substantive due process doctrine-based conception of privacy, a source of constitutional law that is associated with Roe and typically deemed anathema, a “legal fiction,” among conservatives.Footnote 3 This strategic, though doctrinally inconsistent, sidestepping has been made possible by the fact that the right to privacy’s origins, in both civil rights law and constitutional interpretation, predate its most well-known place in reproductive rights law. In the courts, the notion of a right to “bodily privacy” extends back at least to the mid-twentieth century. Those arguments—which, like Griswold and Roe, were based in the Fourth Amendment and in the Fourteenth Amendment’s substantive due process doctrine—were made against agents of the state like school administrators, police officers, and prison guards by those who accused those agents of impermissibly observing the unclothed bodies of children, colleagues, suspected criminals, and inmates. Conservative privacy proponents have combined these precedents with provisions in statutory law such as Title IX that embed privacy rights language into the requirement for equal sex-segregated bathrooms and locker rooms—that is, a right to privacy based in the assumption that all persons can and should be classified and governed as one of two biologically distinct sexes.
Thus, social conservatives are presently attempting a wholesale remaking of the right to privacy. They have done so rhetorically in touting their own version as the proper inheritor of the women’s rights tradition that made such massive transformations to jurisprudence and policy possible throughout the twentieth century. To shore up notions that their fight is indeed one for gender equality, traditional social conservative organizations have allied with small groups of “gender-critical” radical feminists (more commonly referred to as trans-exclusionary radical feminists [TERFs]) to accomplish this goal (S. Lewis Reference Lewis2019). Though often pitched in a pluralist register that emphasizes accommodation and the need to balance competing rights, this new coalition for privacy has exclusively targeted trans rights reforms in what it has branded a fight for gender liberty and equality.
What follows is an investigation into this newly assembled social conservative coalition for privacy rights. It begins by situating this development in the longer history of what scholars now refer to as the “conservative rights revolution” and related queries and theories of why and how political movements adopt rights rhetoric in discourse aimed at courts, policy makers, and the general public. The next section features a brief tour through the legal history of the right to privacy since the late nineteenth century, focusing especially on the development of privacy’s liberal progressive construction and its subsequent branching off into an incipient conservative variant. In doing so, it delineates the history of the right to “bodily privacy,” which developed intertwined with its better-known counterpart in Griswold and Roe. Following that history is a detailed breakdown of the actors and organizations that currently constitute the social conservative coalition for privacy. The final two substantive sections of the article track this right to privacy’s deployment in recent state and federal litigation as well as in a series of municipal and state ballot initiatives, all of which have been aimed at rescinding nascent trans rights reforms. The conclusion speculates on where this fight for privacy is headed in the context of the US Supreme Court’s ruling in Bostock v. Clayton County (2020) and related trends in US social conservatism and trans rights.Footnote 4
LEGAL, IDEOLOGICAL, AND COALITIONAL DEVELOPMENTS IN US SOCIAL CONSERVATIVISM
Though the recent embrace of the right to privacy among social conservatives and their allies may appear surprising, this peculiar adoption can be explained by attending to the widespread adoption of rights rhetoric in the American polity, the more specific history of the “conservative rights revolution,” and past and present versions of conservative women’s rights movements. Looking first at legal rights considerations, both institutional incentives and the hegemony of what Mary Ann Glendon (Reference Glendon1991) famously called “rights talk” have made this reconfiguration possible. In their efforts to wrest case law and the judiciary away from the liberal progressive agenda inaugurated by the Warren Court, conservatives have often adopted elements of the very institutional and discursive practices against which they had protested. This is in part because political coalitions that take control of institutions do not have the opportunity to remake them entirely in their own image. Rather, they work upon an inherited terrain in which “new constitutional ideas are layered upon, or intertwined with preexisting ones, rather than replacing them altogether” (Keck Reference Keck2004, 4).Footnote 5
Relatedly, scholars in the critical legal studies tradition have long expounded the indeterminacy thesis, which holds that it is the nature of the legal system to incorporate some new legal rule or concept and then for it to be oftentimes drastically modified by its deployment in new circumstances (Tushnet Reference Tushnet1994). Others like Jack Balkin (Reference Balkin1992) note the frequency of “ideological drift” in the law, a process by which a once-liberal-or-conservative legal approach takes on an entirely different political character or effect in a new context. Notably, Tushnet and Balkin both observe that conservative forces tend to disproportionately benefit from these instances of indeterminacy and drift.
Far from being merely the product of institutional layering and drift, this conservative adoption of rights discourse is also due to the strong influence of the US liberal rights tradition. Though in the past, judicial restraint was commonly invoked by legal thinkers and practitioners such as Justice Felix Frankfurter (cited in Graber Reference Graber2007) and Alexander Bickel (Reference Bickel1962) to portray democratically elected legislators as the proper architects of law, this emphasis has since attenuated. Those adherents of Stuart Scheingold’s (Reference Scheingold1974) classic statement on the “myth of rights” have explained this transformation by observing that nearly all political actors now believe that social change necessarily flows from the legal recognition and enforcement of rights. Going back even further, Louis Hartz (Reference Hartz1955) and his present-day champions, such as Philip Abbott (Reference Abbott2005), have delineated the ways in which the liberal tradition—particularly the framing of politics in terms of individual rights—imposes itself upon all of American politics. One need not deny the sway of other influential political traditions, such as those examined by Rogers M. Smith (Reference Smith1993), to note that this rights frame has been put to use by varied ideological forces, extending from the most reactionary to the most egalitarian. Accordingly, the current conservative predilection for privacy is less a theoretical puzzle than it is a simple affirmation that diverse political subjects perceive power and influence in rights discourse.
Accordingly, conservatives in the wake of the “rights revolution” have leveraged a multitude of rights arguments concerning religious liberty (A. Lewis Reference Lewis2017), property (Decker Reference Decker2016), free speech (Batchis Reference Batchis2016), labor (Lee Reference Lee2014), firearms (Lacombe Reference Lacombe2019), and the equal protection of persons classified by race (King and Smith Reference King and Smith2014). Shifts like these are not merely the product of a few well-placed judges and justices at the top of the federal judiciary. Rather, many of these victories were won by litigation firms and foundations that formed in the early 1970s in the image of their public interest and civil rights forbearers. These organizations’ missions ranged from libertarian to Christian fundamentalist, but they shared in the goal of instilling conservative interests and values in a judiciary and a legal profession that they believed had been long dominated by liberal progressives (Dudas Reference Dudas2005; Southworth Reference Southworth2008; Teles Reference Teles2008; Avery and McLaughlin Reference Avery and Danielle2013; Wilson and Hollis-Brusky Reference Wilson and Hollis-Brusky2014; Hollis-Brusky Reference Hollis-Brusky2015; Kersch Reference Kersch2019; Hollis-Brusky and Wilson Reference Hollis-Brusky and Wilson2020).
Most pertinent for the present study are those groups that Daniel Bennett (Reference Bennett2017) has termed Christian conservative legal organizations. These conservative, largely evangelical, litigation organizations are some of the most active and visible within the larger Christian legal movement and have been central to the new privacy litigation. Though those operating in the Christian conservative legal movement have often levied challenges to a perceived dominance of a “secular legal tradition” and have even sought to build concurrent and alternative institutions to challenge it from the outside, the main players in this story have often found themselves engaging with, and embracing, the language of their adversaries (Wilson and Hollis-Brusky Reference Wilson and Hollis-Brusky2018). So much so, in fact, that contemporary social conservatives have implicitly latched onto a tradition in constitutional law—specifically, Fourteenth Amendment substantive due process jurisprudence—that no small number of conservatives in the legal academy and government have castigated for decades. In making right-to-privacy claims, these litigators appear amenable to right-to-privacy case law that flows from an expansive notion of substantive due process even as those libertarian constitutional scholars like Randy Barnett (Reference Barnett2005) and Chief Justice John Roberts alike lambast the constitutional methodology that has for so long been associated with liberal progressives.Footnote 6
While concepts like the rights revolution and the liberal rights tradition clarify why a conservative political formation might opt for a rights-based strategy, there remain pertinent questions about the particular construction of this new privacy rights movement’s ideological and coalitional form. Though the Christian-TERF alliance may appear new on its face, US history is replete with cross-ideological collaborations between conservatives and advocates of women’s rights. As historian Sarah Barringer Gordon (Reference Gordon2010) recounts, groups like the evangelical, anti-secularist group Concerned Women for American have been around since the mid-twentieth century. Self-styled conservative women’s groups have often allied with other conservative forces to oppose liberal feminist projects such as reproductive rights (Schreiber Reference Schreiber2008). Others like social conservative leader Phyllis Schlafly have led successful fights against the Equal Rights Amendment (ERA), a longtime goal of first-wave feminism. Notably, Schlafly did so by leveraging arguments about how the ERA would make sex-segregated public restrooms, sports, and educational facilities constitutionally impermissible (Critchlow Reference Critchlow2005). Lastly, social conservatives and radical feminists have a long history of collaboration that extends at least as far back as the joint anti-pornography crusades of the 1980s (Kipnis Reference Kipnis1996).
While most work on the religious right and the LGBTQ+ movement has sought to understand how the latter has been shaped by its right-wing opposition (Fetner Reference Fetner2008), the concern here is with the inverse. Even when these groups do advance inegalitarian, discriminatory projects, they do so with appeals to pluralism, diversity, and women’s empowerment. The most recent alliances among TERF groups, conservative women’s activist networks, and more traditional social conservative organizations exemplify how these coalitions now make arguments with a political language that is not their own. For example, the Hands across the Aisle Coalition (n.d.), a group cofounded by a leader of the Just Want Privacy coalition’s campaign to repeal a bathroom-access law in Washington state, has brought together conservative religious, lesbian, and radical feminist-identified women to oppose trans rights. These activists from disparate political and ideological realms have jointly invoked the language of women’s rights to privacy, safety, and dignity as part of that project to split the “T” from the “LGB.” Some like the Southern Poverty Law Center (2017) have seen this deployment of privacy as purely cynical, an attempt to put a friendlier face on a plan to expand the scope of legally tolerable discrimination. Others may see parallels to privacy’s place in an early moment, such its late nineteenth-century role in the policing of women’s supposedly natural modesty and domesticity (Allen and Mack Reference Allen and Mack1991).
There may be some degree of cynicism at work here that masks an ultimately strategic maneuver to avoid charges of unconstitutional animus.Footnote 7 However, the prominence of privacy rights talk outside of the courts in related battles over antidiscrimination policies in state legislatures, ballot referenda, and school boards demonstrates the centrality of the rights dimension of today’s conservative privacy discourse. Just as past women’s rights campaigns engaged in “constitutional mobilization” to instill their interpretation of the law in the popular consciousness (Siegel Reference Siegel2001), this coalition has taken the constitutional right to privacy into legislative chambers and the streets to build support for its preferred policy interventions and, more broadly, its vision of the law’s dictates. The remainder of this article explores the winding route that the right to privacy has taken toward its recent instantiation in a social conservative coalition and the wide variety of venues in which it has been deployed.
PRIVACY’S PATH IN THE LAW: THE WINDING ROADS TO A SOCIAL CONSERVATIVE RIGHT TO PRIVACY
The legal history of privacy in civil rights law and American constitutionalism is not one of a steady development and refinement of a liberal progressive ideal. Rather, the right to privacy has taken a wide variety of forms for diverse ideological projects and imperatives; in so much as it has a “core,” its interpretation has been largely dependent upon reigning social prerogatives and the circumstances, institutions, persons, or behaviors that are perceived as credible threats to those prerogatives. Though privacy is most visible in the history of police searches and seizures and the emergence of evermore-intrusive surveillance technologies, it too has been used to regulate gendered and sexual categories since at least the nineteenth century. In particular, it has been deployed in cases and laws explicating the nature of women, their role and rights in the domestic and public sphere, and their relationship to the opposite sex. This genealogy traces privacy’s many mutations—its multiplicities that overlap and have come to sit uncomfortably beside one another—to reveal the emergence of the modern social conservative form that has become ubiquitous throughout the briefs and opinions of various right-wing litigators, interest groups, and judges.
The Birth of Modern Privacy Rights: From Tort Law to the Post-Roe Legal Terrain
Scholars typically locate privacy’s modern legal origins in a law review article by Samuel Warren and Louis Brandeis (Reference Warren and Brandies1890) titled simply “The Right to Privacy.” In explicating this right as based in common law tort, Warren and Brandeis sought to provide a legal defense for economic and political elites against the press’s assaults on their reputations (Richards and Solove Reference Richards and Solove2010). As Ken Kersch (Reference Kersch2002) has documented, these scholars drew upon debates that were unfolding over the perceived necessity of privacy in an era of transition from a proprietary-competitive capitalist order to a corporate-administrative one in which a range of economic practices came increasingly came under the gaze of the new administrative state. However, many of the larger animating ideas—particularly the notion that a person’s thoughts, even her most ethereal sentiments, required legal recognition (Post Reference Post1989)—laid the groundwork for a constitutional guarantee. Whereas privacy’s legal status remained marginal throughout its first several decades, mid-twentieth-century judges, legal scholars, and civil rights lawyers began to expand its meaning both within common law tort and beyond to the rights of suspected criminals and the accused (Prosser Reference Prosser1960).Footnote 8
Privacy concerns gained not only legal but also political cultural relevance throughout the early to mid-twentieth century. The notion of legal privacy for women—particularly conceptions that pertained to female modesty and seclusion in the private sphere—persisted throughout this period as privacy was wielded to restrict women’s employment and to justify the construction of sex-segregated prisons (Gottschalk Reference Gottschalk2006). Americans were too agonized over the social and political consequences of being assigned identification numbers as a result of the 1935 Social Security Act and then later about the real and imagined threats to privacy presented by Soviet totalitarianism during the most tense years of the Cold War (Nelson Reference Nelson2002).Footnote 9 As historian Sarah Igo (Reference Igo2018, 16) stresses, these anxieties and conflicts encompassed the entire range of questions regarding “the boundary between one’s private affairs and one’s public identity” in the complex web of social life and the state institutions that characterize an industrialized democracy.
Privacy concerns over the rise of the surveillance state soon came to feature centrally in questions of constitutional law, especially regarding the scope of new policing technologies. In 1928, the US Supreme Court considered—and rejected—a suspected bootlegger’s claim that the federal agents who had wiretapped his office and home without a warrant had violated his Fourth Amendment right against unlawful searches and seizures.Footnote 10 Brandeis, who by then had been appointed to the Court, penned a famous dissent asserting that the Fourth Amendment protected against such intrusions into either the material belongings or the more intangible realm of a person’s thoughts, beliefs, and emotions.Footnote 11 The public reaction to the Court’s decision came down on the side of Brandeis’s notion of this constitutional right against such an invasion of privacy, particularly as the case represented an eroding trust in the federal government’s ability to enforce Prohibition (Hamm Reference Hamm2010).
In the succeeding decades, the Warren Court came to overturn Olmstead in an affirmation of Brandeis’s dissent. In Katz v. United States (1967), a case involving the Federal Bureau of Investigation and eavesdropping technology, a seven-to-one majority declared such surveillance without a warrant constituted a direct assault on the right to privacy.Footnote 12 Since then, key figures in the world of conservative legal thought have endorsed and promoted this interpretation of the Fourth Amendment’s limits on the power of law enforcement. The late Justice Antonin Scalia was perhaps the most well-known conservative advocate of this form of privacy as evinced in his opinions limiting the use of thermal imaging technology to track illegal marijuana production and against the affixing of global positioning system devices to the vehicles of suspected criminals.Footnote 13 Here, a variety of liberal, conservative, and libertarian forces converged upon an interpretation of constitutional privacy.
The mid-twentieth century also saw the rise of a distinctly socially liberal version of the constitutional right to privacy, one that would encompass the familiar themes of marital intimacy, sexual autonomy, and reproductive rights, along with some lesser known rights. The 1950s and 1960s saw the doctrinal basis for privacy—increasingly the Fourteenth Amendment’s due process clause—fuse with the policy objectives of burgeoning movements for the civil rights of women and sexual minorities (Minto Reference Minto2018, 1094). This took the form of legal reformers in the American Law Institute incorporating privacy themes into their urging of states to repeal discriminatory sodomy laws as well as the American Civil Liberties Union (ACLU) and similar organizations advocating for birth control access and against obscenity laws that obstructed the flow of early gay and lesbian periodicals through the US Postal Service (Meeker Reference Meeker2006; Stein Reference Stein2010; Wheeler Reference Wheeler2013).
Though privacy’s protections soon expanded to domains like birth control and anti-sodomy legislative reforms, courts simultaneously imposed certain limitations on how far state protections would span. The Griswold decision itself exemplifies these limits as the US Supreme Court originally constrained its interpretation to marital privacy. While the Court extended the right to contraceptive access to individuals outside wedlock less than a decade later, Griswold made clear that privacy does not necessarily translate directly into protections on the basis of something akin to sexual autonomy for individuals.Footnote 14 In a history of judges’ decision making in cases that pit privacy rights against police surveillance in public restrooms known to host cruising gay men, Anna Lvovsky (Reference Lvovsky2017) demonstrated how the extent of privacy rights depended in part on how the potential rights-bearing subject’s identity or behavior was construed. Much like the contemporary conservative concern that trans bathroom-access policies welcome in sexual predators, judges deemed homosexual cruising to be a significant threat to public health and safety as they imagined gay men preying on unsuspecting or defenseless victims (Freedman Reference Freedman1987; Lancaster Reference Lancaster2011). In one instance, privacy might offer protection of a previously unrecognized right, whereas, in another, the right is bound up in considerations of who and what constitutes a social threat and, accordingly, what the appropriate province for privacy ought to be.
For a short time, the right to obtain an abortion as pronounced in Roe v. Wade (1973) led to privacy’s repurposing for a wide variety of socially liberal and libertarian causes. As legal historian Mary Ziegler (Reference Ziegler2018) documents, Roe’s immediate history was one of broad application across a series of social movement campaigns for the rights of gays and lesbians, consumers, mental health and medical trial access advocates, and the terminally ill. Even in the immediate post-Roe moment, however, privacy’s utility attenuated quickly. The gay and lesbian movement along with its allies in the ACLU’s Sexual Privacy Project moved away from privacy claims at the federal level in 1986 after the US Supreme Court struck down that route to expanded civil rights in Bowers v. Hardwick.Footnote 15 By the time the Court reversed itself in its 2003 decision in Lawrence v. Texas, Justice Anthony Kennedy was at work crafting an idiosyncratic jurisprudence of gay and lesbian rights, which concerned itself with doctrinal hybrid concepts like “dignity” rather than privacy proper.Footnote 16 Lastly, in the decade following Hardwick, right-to-die advocates finally made their way to the top of the federal judiciary only to lose their privacy-based case in Washington v. Glucksberg (1997).Footnote 17 Thus, in a relatively short amount of time, the privacy precedent in Roe came to be associated with a narrower conception of reproductive rights in a manner that has clouded over its complex history and its more short-lived mutated forms (Ziegler Reference Ziegler2015).
Ironically, throughout the period in which privacy came to be understood primarily as a progressive ideal related to reproductive care, it has taken a backseat in abortion cases while garnering skepticism among liberal legal thinkers and judges. In Planned Parenthood v. Casey, a 1992 abortion rights case that holds more precedential value today than Roe, the US Supreme Court ruled that the right to access an abortion emanated not from privacy concerns so much as broader liberty ones.Footnote 18 Opponents of abortion have picked up on this shift as the past three decades as they have traded a litigation strategy aimed at the heart of Roe’s privacy legacy for one that uses First Amendment free speech challenges, ultrasound and fetal pain laws, and health and safety requirements for medical facilities in which abortions are performed.Footnote 19
No small number of progressive lawyers, scholars, and even US Supreme Court justices have complained about the sweeping nature of Roe and the decision to root its protections in privacy (Ginsburg Reference Ginsburg1985; Levinson Reference Levinson2002; Rosenberg Reference Rosenberg2008). These skeptics fear that privacy’s grounding in a controversial jurisprudence of substantive due process (rather than perhaps a more defensible appeal to gender equality) and the protectorate role of the federal judiciary (in contrast to a more democratic, movement-based legislative approach) has contributed to an effective backlash against reproductive rights. Others like Catherine MacKinnon (Reference MacKinnon1991) have argued that making feminist concerns contingent on privacy’s domain inadvertently reconstitutes and legitimizes the concept of the private domestic sphere, a realm where women have historically been subjected to violence and exploitation. And as for LGBTQ+ rights, queer theorists and activists have for decades now cautioned that sexual liberation is not likely to be fully realized through the protections offered by political and legal notions of privacy (Berlant and Freeman Reference Berlant, Elizabeth and Berlant1997). Instead, they have argued, sexual and gender minorities will find the fullest sense of freedom and citizenship in the ability to exist in public as themselves.
“Bodily Privacy” and Civil Rights Law: Toward a Social Conservative Right to Privacy
There are, however, areas in statutory and constitutional law where invocations of privacy have thrived in past decades. The first of these involve an interpretation of Title IX civil rights protections concerning the purported differences between the biological sexes and the recognition of privacy rights that extend from them. The provision most frequently cited by modern conservative interpreters of Title IX is Regulation 106.33, which mandates separate and comparable-in-quality restroom, locker room, and shower facilities for both sexes.Footnote 20 In making the case that the regulation is meant to delineate clear boundaries between the sexes for purposes of equity, privacy, and protection from threats to women’s safety, conservatives now often cite an article by Ruth Bader Ginsburg in the Washington Post. Ginsburg, who was then the attorney for the National Organization of Women, assured skeptics that the proposed Equal Rights Amendment would not undermine this crucial “individual privacy” that required “[s]eparate places [for men and women] to disrobe, sleep, perform personal bodily functions” (Volokh Reference Volokh2016).
Subsequent circuit court decisions like Faulkner v. Jones (1993) and US Supreme Court ones like United States v. Virginia (1996) affirmed the basis for this sex-based privacy protection.Footnote 21 In those cases that mandated equality for women in higher education under the Fourteenth Amendment equal protection clause, judges and justices recognized both the existence of physical differences between the sexes and society’s widespread approval of the need for separate bathroom and locker room facilities. These cases gave credence to Ginsburg’s argument from two decades prior that constitutional and statutory privacy provisions could be neatly squared with those concerning women’s equality.
The second place in which privacy rights have thrived in recent years draws from the constitutional right to “bodily privacy,” which extends from a branch of case law that has been less frequently remarked upon in scholarly and political discussions of autonomy and the right to privacy. In a 1963 decision that predates Griswold, the Ninth Circuit ruled in favor of Angelynn York’s claim that her right to privacy had been violated by a group of male police officers who forced her to strip and pose for photographs (which they subsequently circulated) to document her complaint of assault and battery.Footnote 22 The Ninth Circuit declared that, although York’s Fourth Amendment rights had not been violated in this “non-search,” her right to privacy as protected by Fourteenth Amendment substantive due process had been. The following decade, Justice John Stevens’s opinion in Whalen v. Roe (1977) united this interpretation with the Fourth Amendment version of privacy in declaring that the constitutional right to privacy broadly construed served two interests: one that protected against the “disclosure of personal matters” and another that guaranteed “independence in making certain kinds of important decisions.”Footnote 23 In cases since then, various circuit courts have ruled in favor of schoolchildren, inmates, employees, and coworkers who have contended that some unclothed engagement with others—many of which feature the unwanted gaze of the opposite sex—constituted an abrogation of their privacy rights.Footnote 24
It is upon this foundation in statutory and constitutional law that conservative litigators and their allies on the federal bench have sought to fashion their own right to privacy. Though they bypass an engagement with Roe and other reproductive rights cases, they surprisingly do not shy away from case law that emphasizes substantive due process as a constitutive element of this right—again, a source of law that the conservative legal movement has routinely denounced for decades as a cornerstone of liberal judicial activism. In his 2014 dissent in the Fourth Circuit’s trans bathroom-access case G. G. v. Gloucester County School Board, Justice Paul Niemeyer combined these various arguments for privacy into the most definitive legal argument against trans rights expansions to date.Footnote 25 In recognition of the “physiological privacy and safety concerns” of all students, Justice Niemeyer argued, Congress and a number of appellate courts alike had found statutory and constitutional reasons to distinguish facilities on the basis of biological sex and to ensure that a student’s “constitutionally protected privacy interest in his or her partially clothed body” was guarded.Footnote 26
Notably, Justice Niemeyer is no opponent of sex-based antidiscrimination rulings. In fact, the Reagan appointee wrote the majority opinion in a sex equality case that presaged the US Supreme Court’s monumental decision in United States v. Virginia (1996).Footnote 27 In his dissent in the Gloucester case, Justice Niemeyer exemplified how courts might redirect the law against the rights of trans students by reemphasizing the intertwined nature of sex-based equality and the right to privacy.
Since its modern inception in the late nineteenth century, the right to privacy—in all of its myriad forms—has traveled down more than a few jurisprudential paths. Throughout its many lives in statutory civil rights law and Fourth and Fourteenth Amendment jurisprudence, this right has also traded ideological hands more than a few times. Though most commonly associated with Roe and a socially liberal political and legal tradition, it was neither born of that orientation nor has it remained in that form. This construal of the right to privacy as both multidimensional and malleable accords with Sarah Igo’s (Reference Igo2018) contention that privacy encompasses an adaptive public vocabulary, one that positions an individual in relation to state and society in ways that either demand a sphere of protection from, or some active response to, a threat to one’s personhood, either in one’s autonomy or in relation to a group identity. This theory of privacy also speaks to the literature in legal sociology and political science that illustrates the unpredictable, sometimes illiberal, twists and turns that rights, once presumed progressive or liberal at their core, have come to take. What remains to be explained in the following sections then is how the right to privacy has been reworked by a new social conservative coalition throughout its litigation as well as in its work to instill this interpretation of the Constitution in demands to reform municipal, state, and federal policy.
A SOCIAL CONSERVATIVE COALITION FOR PRIVACY
Over the past decade, social conservative organizations and public officials have advanced a series of attacks on local, state, and federal policies allowing persons to access bathrooms and similar sex-segregated facilities most congruent with their sense of gender identity. As they have waged this war against the expansion of trans rights, they have relied upon a legal and political discourse concerning the right to privacy and its relationship to the rights of women (defined generally as a zero sum game of cis women’s rights versus trans ones). Beginning in a challenge to a 2008 ordinance in Gainesville, Florida and culminating in the battle over North Carolina’s infamous “bathroom bill,” commonly known as House Bill 2, in 2016, opponents of trans rights have framed antidiscrimination policies as a threat to their privacy, safety, and the social order (Schilt and Westbrook Reference Schilt and Laurel2015). As sociologists Kristen Schilt and Laurel Westbrook (Reference Schilt and Laurel2014) have explained, the opposition has fomented “penis panics,” in that policies promoting access are framed as inviting sexual violence upon women and children.
Donald Trump’s surprise victory in the 2016 presidential election presented an opportunity to reshape a political and legal terrain that had just recently begun to extend civil rights law to gender identity.Footnote 28 Through rollbacks of Obama-era executive branch policies and a repopulating of the federal judiciary, the Trump administration has created the conditions to potentially halt the recent expansion of these formal rights guarantees.Footnote 29 It is in this context that the most programmatic effort to adapt the right to privacy to these ends has been attempted by a network of Trump administration officials, Republican party state and municipal lawmakers, conservative litigation groups and foundations, and small pockets of TERF activists. This section considers the component parts of this coalition to set the stage for a close look at recent litigation and several ballot initiatives where these actors and organizations have pursued a fight for privacy.
A number of high-ranking Trump administration officials have opposed LGBTQ+ rights throughout their careers and have brought their opposition with them into the executive branch. Former Attorney General Jeff Sessions and Secretary of Education Betsy DeVos are among the most notable of these, as both have made a priority of rolling back Obama administration policies and interpretations of civil rights law extending rights to trans people in their schools, workplaces, and public spaces (Holden Reference Holden2018).Footnote 30 This pushback against an expanded notion of sex discrimination has been deeply intertwined with the rhetoric of privacy as evinced by an infamous Department of Health and Human Services (HHS) memo leaked in October 2018, which encouraged the Departments of Education, Justice, Health and Human Services, and Labor to officially adopt the notion that sex is a biologically immutable trait determined by one’s genitalia at birth (Green, Benner, and Pear Reference Green, Katie and Robert2018). A version of this rule—one that stripped away civil rights protections for gender identity entirely—was adopted in June 2020 by the HHS.Footnote 31
This is significant as the HHS is home to powerful and vocal supporters of the privacy-against-trans-rights position and serves as a nexus between anti-trans, pro-privacy forces in and outside of government. HHS director of the Office for Civil Rights Roger Severino’s writings on bathroom access (along with his previous appointment as director of the DeVos Center for Religion and Civil Society at the Heritage Foundation) indicate how privacy figures into these policy and legal debates. In 2016, Severino wrote that the Obama administration’s interpretation of sex discrimination had “prompted a massive backlash from people who are justifiably concerned about their safety, privacy and religious freedom, and who refuse to accept a federal government driven by such a radical gender ideology” (Anderson and Severino Reference Anderson and Severino2016). Severino argued that the only way to protect cis students (and to cope with the ever-present threat of “biological boys” exploiting trans accommodations to access unsuspecting victims) was to consign trans students to separate single-stall facilities. That following year, Severino’s co-author and former colleague, Heritage Foundation research fellow Ryan Anderson, penned a report emphasizing the legal and constitutional arguments for this privacy position (Anderson and Wood 2017). This report cites key passages from Justice Niemeyer’s dissent, laying out the statutory and constitutional sources for the right to bodily privacy.Footnote 32
Distinguishing their position from one of overt animus toward trans students, Severino and Anderson framed this as a reform striking the correct balance between privacy concerns and the existence of students with gender identities that conflict with the presumed sex/gender binary. “Across America,” they explained, “people are considering how best to accommodate the privacy and safety concerns of transgender persons while also addressing the privacy and safety concerns of others, especially children and students” (Anderson and Severino Reference Anderson and Severino2016). In this version of the argument, it is not trans persons themselves who present a threat to privacy but, rather, “gender ideology” and its attendant policy reforms that create an imbalance between the rights of trans and cis students, leaving the latter vulnerable to the consequences of allowing “biological men” into female facilities.
A variety of litigation organizations and community groups have also wielded privacy right concerns against the expansion of trans rights. In challenging the Obama administration’s 2016 changes to the Department of Education standards, small groups of parents, administrators, and students coalesced into organizations such as the South Dakota-based Parents for Privacy, which fought for the “privacy, dignity, and well-being” of students under the slogan “Accommodate, Don’t Violate” (Harkness Reference Harkness2015).Footnote 33 In 2016, in a case before a federal district court in Illinois, a similar group called Students and Parents for Privacy made statutory and constitutional challenges to a school board that had made reforms in accordance with the Obama administration’s directive.Footnote 34 Other coalitions of Christian family-oriented organizations and local and state officials have joined together as well to establish campaigns aimed at repealing antidiscrimination laws and ordinances. Lastly, Christian conservative legal organizations have offered legal services and attorneys to litigate cases on behalf of students challenging accommodations in their schools.
By far the most well-endowed organization leading this fight has been the Alliance Defending Freedom (ADF), a Christian Right foundation from the 1990s that, since 2012, has converted its focus almost entirely to litigation (ADF, n.d.b; Bennet Reference Bennett2017). The organization commands an annual budget of nearly fifty million dollars and a small army of over three thousand allied and trained attorneys and, in 2018, participated in three US Supreme Court cases (including Masterpiece Cakeshop). The ADF has directed these resources against trans access policies both through a preemptive strategy of persuading individual school districts to adopt its ready-made student physical privacy policy as well as through strategic litigation.
The ADF’s student physical privacy policy template encourages school districts to avoid making accommodations to trans students that would “undermine the constitutionally protected privacy rights” of students who have a “bodily privacy right” to such protections.Footnote 35 Citing language on sex-segregated facilities in the US Supreme Court’s opinion in United States v. Virginia (1996) and its interpretation of Title IX, the ADF explained that “privacy needs driven by the real physiological, reproductively grounded differences between males and females have been recognized and protected by myriad courts, including the United States Supreme Court.”Footnote 36 In the ADF’s formulation, biologically sex-segregated facilities afford all students—even trans ones—an equal opportunity to enjoy their privacy rights, whereas single-stall facilities can be provided for “those not comfortable with sharing a facility with others of their birth sex, or who simply need extra privacy [that is, trans students].”Footnote 37 Again, like in Severino’s comments, this privacy claim is based on the premise that sex is an unambiguous, entirely biological category and that gender is a “subjectively determined” one (Wuest Reference Wuest2019).
Lastly, small groups of organized feminists known by their critics as TERFs have been active in this new coalition and vocal proponents of the privacy right route to quashing reforms (Goldberg Reference Goldberg2014). These TERF groups promote a feminist politics and theory rooted in the view that the male-female gender/sex system is a socially constructed hierarchical one wherein those human beings with female reproductive capacities are subjected to an inferior role in society by those with male reproductive organs. In keeping with this logic, these feminists do not generally consider trans women to be women in any meaningful sense. In fact, they typically decry them as outgrowths of a male-centric society that has extended male privilege to the female form itself, allowing so-called men to co-opt their name, bodies, and physical spaces (Raymond Reference Raymond1979). In this sense, TERFs often charge trans women with reinforcing oppressive gender distinctions, therein presenting an obstacle to their goal of “abolishing” gender (Jeffreys Reference Jeffreys2014). Though these groups of activists and academics also condemn trans men for what they perceive to be acquiescing to misogyny, their more sustained focus on trans women comports well with social conservative organizations’ similar fixation. Privacy thus is a natural discursive fit for these feminists seeking to defend biological-sex-segregated spaces.
Organizations like the Women’s Liberation Front (WoLF) collaborate with more traditional conservative ones in part out of convenience. The established right wing, after all, does possess far greater political influence than these small groups of activists, which are largely a legal sideshow and appear to serve the function of political theater for the traditional right as the latter styles itself as the last remaining reliable voice for women’s rights (Schmidt Reference Schmidt2020). For example, the Hands across the Aisle Coalition has worked with the Heritage Foundation (n.d.) since 2019 to hold panel discussion events featuring Republican party strategists, Christian evangelical advocates, leaders of TERF organizations like WoLF, and the renowned lesbian political activist Miriam Ben-Shalom, a key figure in early legal challenges to the US military’s discriminatory policies. The ADF has even directly funded trans-exclusionary groups directly as evidenced in a fifteen-thousand-dollar grant to WoLF (Wang Reference Wang2019). However, TERF activists and conservatives are united in principle in ways that align in a shared commitment to a transgender-exclusionary vision of privacy. Notably, WoLF frequently contributes amici curiae briefs in cases against trans rights; these tend to echo, among other things, the right-to-privacy arguments of their coalition partners. Though a group like WoLF privileges the gender binary as a means of organizing for gender abolition (inspired by Marxist analysis, the notion here is that a class “in itself”—that is, women—might become a class “for itself,” which would thereby abolish the overall oppressive gender system), it shares the conservative interest in retaining the category of “women” as a fundamentally biological one (Firestone Reference Firestone1970).
THE LONG GAME IN THE COURTS: EFFORTS TO REMAKE ANTIDISCRIMINATION CASE LAW
This social conservative coalition has in recent years led a protracted campaign to remake the right to privacy in antidiscrimination case law. At least as far back as 2007, a pair of conservative Christian couples attempted to persuade a federal appellate court to recognize a right-to-privacy action to prevent their children from being exposed to representations of same-sex marriage in their public school educations (Adler Reference Adler2018).Footnote 38 The Christian conservative legal organization Pacific Justice Institute (PJI) (2013) also has pursued privacy challenges such as in 2013 when it sued a high school in Florence, Colorado, for “elevating the rights of one self-proclaimed transgender student while minimizing the privacy rights of all the biologically female students.” That same year, the PJI assembled a coalition called Privacy for All Students—one of the first of its kind—that waged a failed referendum campaign against a California bathroom access law that it too deemed would be an affront to legal privacy rights (G. Smith Reference Smith2013). The PJI and others like the Family Research Council, the Liberty Counsel, and the Heritage Foundation have also fought against anti-conversion therapy legislation in California in part by advancing privacy claims throughout federal court cases.
Though many Christian conservative legal organizations have rallied behind the privacy strategy, it is the ADF that has taken the lead in these cases as of late (California Family Council 2018).Footnote 39 The ADF is by far the most aggressive in its pursuit of privacy-themed cases and is now currently positioning itself to convince the US Supreme Court to rule in favor of one of its cases. The following discussion of the ADF’s litigation and broader political strategy in recent state and federal cases fleshes out how the organization has gone about this pursuit. In 2018, the ADF agreed to represent Hope Center, a Christian women’s shelter, in its lawsuit against the city of Anchorage, Alaska. In that litigation, Hope Center challenged the Anchorage Equal Rights Commission’s investigation into its practice of refusing to accept trans women into its facilities (ADF 2018a; Kelly Reference Kelly2018). This case afforded the ADF an opportunity to blend its position on the right to privacy with its claim that religious non-profit organizations and business owners have a right to refuse service to LGBTQ+ persons if serving them would conflict with their religious beliefs.Footnote 40
These two rights claims emanate from the ADF’s philosophy that “radical gender ideology” distorts the ontological truth of biological sex and that this distortion leads to administrative difficulties, unconstitutional violations of privacy, and the erosion of religious rights. Attorneys for the ADF argued that the Hope Center’s commitment to “biblical moral teachings” and the need to communicate those beliefs to the public through its service would be made impossible “if it were forced to allow biological males admittance into its women’s only shelter and stopped from informing others about its religious beliefs.”Footnote 41 For its privacy argument, the ADF looked to Alaska’s Constitution, one of eleven state constitutions to feature an explicit right of privacy (National Conference of State Legislatures 2018). The ADF relied on this privacy guarantee in arguing that:
[h]omeless women do not expect, nor should they be forced, to change, sleep alongside, and interact with men in intimate settings. And this is particularly true considering that several of the women present at the shelter may have been beaten, raped, and sexually assaulted by men. The Hope Center’s interest in protecting women at its shelter conflicts with the Commission’s desire to force those women to change, sleep alongside, and interact with men in intimate settings.Footnote 42
In this statement, the past trauma experienced by some of the typical cis women being served by the Hope Center are positioned as precarious bodies and states of mind to be protected from the threat that trans women might pose for them physically or psychologically. Excluding trans women is thus presented as a requisite condition of meeting the demands of that constitutional guarantee. Though the ADF lost its case here, it has subsequently lobbied the Department of Housing and Urban Development (HUD) to consider a federal rule change that would allow Hope Center and others to restrict access on the basis of biological sex. In its proposed rule change, the Trump administration’s HUD cited the ADF’s litigation (Winfield Cunningham Reference Winfield2020).
The ADF has also litigated, or been a participant in, a number of other privacy-themed cases in the federal courts. The most prominent of these has been Joel Doe v. Boyertown Area School District, which was denied a writ of certiorari by the US Supreme Court for its 2019–20 term.Footnote 43 This is just one of several federal cases currently being litigated by well-established Christian conservative legal organizations including the Thomas Moore Society (2018) as well as ad hoc ones like the Illinois-based group Students and Parents for Privacy (ADF 2019). In every press release headline that the ADF has published on these cases, one can find references to the terms “privacy,” “bodily privacy,” “personal privacy,” or “student privacy.”Footnote 44
In the Boyertown case, a group of four cis male and female students attending Boyertown High School in Pennsylvania sued their school district over its inclusive bathroom and locker room access policies, which they contended were contrary to their “constitutionally protected privacy interest in his or her partially clothed body,” as protected by Title IX and the substantive due process doctrine under the Fourteenth Amendment.Footnote 45 The ADF’s argument is remarkably similar to Justice Niemeyer’s dissent in the G. G. litigation from several years prior. The brief to the US Supreme Court cited nearly every “bodily privacy” case cited by Justice Niemeyer; it too reproduced the same arguments about the “desire to shield one’s clothed figure” and the long-standing notion in case law that sex-segregated facilities are mandated by Title IX and the Fourteenth Amendment. In an amicus brief in support of the ADF’s claims, the Women’s Liberation Front endorsed the ADF’s arguments, noting that the Obama administration reforms had marked “a truly fundamental shift in American law and policy that strips women of their Constitutional [sic] right to privacy, threatens their physical safety, undercuts the means by which women can achieve educational equality, and ultimately works to erase women and girls under the law.”Footnote 46
The ADF appears to have chosen Boyertown as a test case in part as a means of touting its approach as one that best balances concerns of diversity with those of privacy, safety, and dignity for women.Footnote 47 In making a link between the values of diversity and privacy, the ADF has centered plaintiff Alexis Lightcap, a person-of-color (POC) cis woman and student, in its media strategy. Lightcap’s November 2018 opinion piece in USA Today highlights her own experiences with discrimination and her purported hope for a solution that attends both to her own privacy concerns and the needs and desires of her trans classmates. Lightcap (Reference Lightcap2018) writes:
As a black girl who grew up in a predominantly white neighborhood, I know what it’s like to be treated unfairly, picked on, and made fun of by insensitive people. I won’t accept anyone being bullied or discriminated against—and that absolutely includes my classmates experiencing gender dysphoria. They deserve our love and support. Even so, my privacy shouldn’t depend on what others believe about their own gender. … My reason for suing was to restore the bodily privacy we used to enjoy in locker rooms and restrooms on campus.
In this statement, Lightcap avoids outright animus in acknowledging the humanity of trans students while also positioning herself simply as someone who is out to protect her own “bodily privacy,” a feature of her corporeal autonomy upon which her school district has intruded. Still, her language on gender dysphoria and the remark that trans identity refers to what one “believes” about their gender casts that identity as a type of clinical diagnosis that can be managed in ways other than extending access to sex-segregated facilities. She also recounts fleeing a girls’ restroom upon finding a “boy” present. There is no indication whether she intended to misgender a trans student in this story or if this student was indeed identified as a cis male. Perhaps it is intentionally unclear since this ambiguity lies at the heart of the fear that trans access reforms invite predatory men into women’s spaces.
After rescheduling Boyertown an unusual number of times, the US Supreme Court declined to hear the case just as it agreed to consider another of the ADF’s trans-themed ones.Footnote 48 Though the central constitutional question in R. G. & G. R. Harris Funeral Homes v. Equal Employment Opportunity Commission (which was eventually consolidated with Bostock v. Clayton County) concerned the definition of “sex” in Title VII, the ADF and its allies here too redirected their arguments back to privacy. In its reply of petitioner, the ADF argued that the Sixth Circuit’s decision in favor of an employee who had been fired for transitioning “jeopardizes privacy concerns, women’s advancement, and freedom of conscience.”Footnote 49 Student-parent-administrator groups under banners like “Defend My Privacy” and “Students and Parents for Privacy” filed briefs with the Court expressing their dismay with the appeals court ruling and the impact it might have on women’s shelters in particular.Footnote 50 Lastly, Lightcap (Reference Lightcap2019) wrote an op-ed linking her fight to the employer’s in this case, noting that both cases asked “whether the government can rewrite the rules in a way that will require employers and encourage public schools to take away private spaces for women like me.” Again, though the issue here was Title VII employment discrimination, the ADF and others made their standard constitutional, statutory, and rhetorical arguments for privacy a constitutive part of their challenge.
PRIVACY, POLICY, AND THE RHETORIC OF RIGHTS IN CITY AND STATE CAMPAIGNS
As cities and states across the country have adopted and expanded antidiscrimination laws and ordinances to protect the rights of trans people, social conservative organizations and their allies have pursued campaigns to rescind these protections. They have done so in large part by incorporating their privacy-rights rhetoric into narratives that pit trans persons and the specter of the sexual predator (always intertwined) against the rights of cis women and children. This section delves into some of the most prominent and visible of these conflicts as they have played out since President Donald Trump took office in 2017, focusing particularly on local and state referendum campaigns in Alaska and Massachusetts.
In 2015, the Anchorage Assembly passed an ordinance banning discrimination against sexual orientation and gender identity in employment, public housing, and public accommodations (Kelly Reference Kelly2015). In the wake of its passage, the Christian public policy organization Alaska Family Action began to work with like-minded national organizations to introduce a referendum ballot measure that would amend the ordinance. This coalition of groups working under the banner Protect Our Privacy (2018b) led a campaign in support of the ballot measure Proposition 1, which would have required a person to use the restroom or locker room that corresponded with their sex as designated on their birth certificate. Protect Our Privacy’s main contributors included the Family Policy Alliance (n.d.) and the American Family Association (2021), a nationally focused group with several state-based chapters. Lastly, members of WoLF (n.d.) joined the coalition in their fight for “gender abolition,” which they pursue in part through “defend[ing] women-only spaces” and “defend[ing] sex-segregation of domestic violence shelters, bathrooms, locker rooms, and sports teams.”
Protect Our Privacy’s website features a statement of goals and principles, a news ticker with headlines broadcasting crimes committed primarily by cis men in women-only spaces, and an assortment of campaign advertisement videos. It is in these testimonial videos nestled alongside banners declaring “Threats to Privacy” where the campaign propagated themes of predators and victims, real and imaginary. One video titled “Kate’s Story” features a mother recounting her sense of being “violated” upon encountering a trans woman in the women’s locker room of a public health club to which she had brought her children (Protect Our Privacy 2018a). In a vacillation between her admittance that the trans woman was minding her own business and her fear that the lack of “screening” or “safeguarding” measures might allow a cis man to be hiding behind the shower curtain next time, Kate’s story serves to illustrate the threat that the Anchorage ordinance has introduced. That threat manifests both in the more explicitly stated fear of male violence as well as in the implicit suggestion that there is something inherently threatening about trans women. Kate’s solution was to vote for Proposition 1 as “now … is the perfect chance for us all to come together to speak out for the truth, the reality, that our dignity, our rights, our safety, our privacy matter” (Protect Our Privacy 2018a).
Other videos such as the ADF-produced “Unintended Victims” showcase victims narrating real and imagined instances of sexual abuse perpetrated by men and explaining how privacy reforms at the expense of trans rights are the only means to remedy such abuse (ADF 2018b). This video features seven different personal accounts including a woman whose male swim coach sexually abused her in a women’s locker room as well as a Young Men’s Christian Association communications director who, because of past experiences of abuse, described having to write a statement on the new gender identity and locker room policy as an “instant trigger.” Others warned that “pedophiles just looking for a chance” will use the well-intentioned law to search out new victims. Perhaps most surprisingly, the video concludes with a POC trans woman explaining that, as a parent, she rejects the ordinance and supports instead reforms that provide separate places for trans safety and privacy and reserve the main facilities and restrooms for others. She argued that “[w]e’re telling them that their boundaries don’t matter … they’ll be blamed for not being comfortable” when women and children ask for their privacy to be respected (ADF 2018b).
Throughout both its campaign videos and the collection of additional resources on its website, Protect Our Privacy emphasized that its opposition was not just fueled by a social expectation of privacy but, rather, by the fact that Proposition 1 was a legal remedy to restore Anchorage residents’ abrogated constitutional right to privacy. In “Unintended Victims,” ADF legal counsel Matt Sharp stated that “courts have recognized [a] right to privacy and our laws recognize [a] right to privacy” against “being exposed to someone of the opposite sex in the restroom or the locker room” (ADF 2018b). Additional documents such as a 2017 report by Ryan Anderson and Melody Wood (Reference Anderson and Melody2017) of the Heritage Foundation emphasized similar legal and constitutional arguments for “dignity, privacy, and safety.” The report cites key passages on privacy from Fourth Circuit Court of Appeals Justice Paul Niemeyer’s dissent in a decision that upheld a Virginia trans student’s right to use male-designated facilities.Footnote 51
The Proposition 1 fight demonstrated how both social conservative and trans-exclusionary varieties of feminism could be called upon to make this demand for privacy rights. In 2016, the Family Policy Alliance inaugurated its Ask Me First (n.d.) campaign, which it describes as a “forum where you may share your story and speak up for the privacy and safety of moms and daughters.” Since its debut amid the North Carolina’s bathroom bill controversy, Ask Me First has featured personal accounts of those who recount suffering from reforms like the Anchorage ordinance. What is most striking is how Ask Me First’s use of the narrative genre and its appeal to the voices, opinions, and stories of women so closely approximates the popular liberal feminist trope “Believe Women,” which has emerged in the context of #MeToo calls for policy and cultural reforms to combat sexual harassment and assault (Levine Reference Levine2017; Matthews Reference Matthews2018). This is embodied in Ask Me First’s (n.d.) statement of purpose:
We are moms, daughters, students, athletes, survivors and businesswomen who believe our voices matter. There’s a growing trend among our nation’s politicians to allow men to enter women’s spaces—public bathrooms, showers, locker rooms. As if this weren’t absurd enough, none of these politicians seems interested in talking with us—the women who will be most impacted by these rules—to learn how we feel about it. We are standing together to share our stories with you. Together we say, Ask Me First. We’ll tell you why these efforts are anti-woman, how they directly harm each of us, and why politicians should never consider bringing them forward.
Much like in other instances of sex panic, Ask Me First warns of a pervasive moral plague that presents myriad dangers to the innocent and vulnerable. The posited remedy to the crisis lies in resisting the “bullying” of sometimes misguided, sometimes pernicious trans rights reformers and their advocates (Minnesota Family Council 2021). This means listening and responding to the privacy-based fears and expectations of cis women and legislating accordingly.
Though they were ultimately beaten back in Anchorage by a vote of fifty-three to forty-seven, social conservative forces continued on with their fight in Massachusetts by placing an initiative on the ballot that, for the first time, allowed voters to consider a statewide repeal of recently instituted legal protections for trans people. A coalition donning the name Keep MA Safe (2018b) formed to push a repeal under the banner: “Protect Privacy and Safety: Vote No on 3 to Repeal the Bathroom and Locker Room Law.” Keep MA Safe featured a similar arrangement of social conservative organizations including state-based ones like the Massachusetts Family Institute and the Renew Massachusetts Coalition as well as their partners in national organizations like the ADF, Focus on the Family and its Family Policy Alliance appendage, and the Family Research Council (Massachusetts Family Institute 2018; Schoenberg Reference Schoenberg2018).
Much like the Protect Our Privacy campaign materials, Keep MA Safe’s message was anchored in the fear of eroded privacy rights. In this instance, however, it came paired with a call to oppose “special rights” for trans persons. In one tab on its website, Keep MA Safe (2018a) framed its opposition as one against the “special rights for cross-gender bathroom and locker room use [that] threatens the privacy and safety of women.” This rendering of trans rights and privacy rights as a zero-sum game has its roots in a decades-earlier right-wing reaction to the expansion of gay and lesbian rights in Colorado (Keen and Goldberg Reference Keen and Goldberg2000). In that case, conservative opponents to antidiscrimination laws at the municipal level successfully amended the Colorado state constitution to preempt such laws through a ballot initiative campaign that disparaged the supposed “special rights” being granted to gays and lesbians.Footnote 52 Here too, trans rights were placed in direct opposition to privacy ones as the former were presumed to be making transgender people “more than equal” by usurping the latter’s rights.
Keep MA Safe and its allies suffered a significant loss on November 6, 2018 as just over two-thirds of voters rejected the repeal. Opponents to the 2016 law were massively outspent by trans advocates including the ACLU, LGBTQ+ rights organizations, teachers’ and health care workers’ unions, and Boston-based chief executive officers and hedge fund managers. This fight divided the state into two coalitions: one dominated by these advocacy groups, corporate interests, and some members of the Grand Old Party (GOP) and another led by socially conservative GOP officials and their allies in conservative nonprofit and activist realms. Reflecting on the defeat, a legal analyst for the referendum campaign remarked that “[w]e are deeply disappointed that the people of Massachusetts will continue to be forced to sacrifice their privacy and safety in the name of political correctness” (Salsberg Reference Salsberg2018).
The loss even compelled some on the right to speculate whether the privacy right line was an effective discursive tool at all. This was the takeaway of Brian Camenker, the founder and president of the anti-trans group MassResistance (2018) as he encouraged future campaigns to instead make their criticisms based on “the LGBT movement’s ‘civil rights’ argument” (apparently in an effort to pit racial minorities against gender minorities) and to highlight how transgender identity was “a mental disorder and a destructive ideology.” Though many in the LGBTQ+ press reported Camenker’s statement as a sign that the conservative opposition was relenting on its themes of violent sexual predators and the necessity for privacy protections, this is far from a representative picture (Persio Reference Persio2018). MassResistance, for instance, is a relatively tiny operation that does not at all represent the diversity of the privacy coalition nor its most well-funded and politically powerful component parts. More broadly, the presumption that privacy language is a mere slogan—what Camenker called a “clever side argument”—ignores how fundamental the right-to-privacy language has been to social conservatives throughout these conflicts.
THE PATH FOR PRIVACY AHEAD: COMPETING RIGHTS OR OUTRIGHT ANIMUS?
What can be said upon surveying this new social conservative coalition for privacy rights and its efforts in courts, legislatures, and appeals to the public? Most notably, it reveals that the right to privacy is far more malleable and multidimensional than it is generally depicted. Rather than being merely the province of reproductive rights or of protests against the ever-expansive reach of the surveillance state, privacy as a constitutional and statutory provision has lived many concurrent lives and has been deployed for a great number of political ends. Despite its association with precedents like Roe v. Wade and the blood supply it shares with substantive due process doctrine, the right to privacy has proven irresistible to social conservatives in search of both legal arguments and rhetorical justifications for their opposition to trans rights reforms. It also has been useful in framing such campaigns as being for women’s rights rather than being against trans ones. Accordingly, social conservatives have cast the issue as one of balancing two competing rights claims rather than one of outright animus against a gender minority population.
Notwithstanding the Trump administration’s concerted efforts at a judicial takeover, this conservative coalition for privacy has met—and will likely continue to meet—significant challenges to its project. Though conservatives comprise a solid majority on the US Supreme Court, Trump’s first two appointees and their ideological brethren on the bench delivered a major blow to the ADF in the last two years by first refusing to take up Boyertown and then ruling six to three against the ADF in Bostock v. Clayton County.Footnote 53 The ballot box and the legislature may prove to be an even more difficult terrain given the increase in corporate pressure campaigns and broader trends of social tolerance and acceptance for LGBTQ+ rights (Paul Reference Paul2018; Wuest Reference Wuest2020).Footnote 54 The same corporate forces that lined up behind a trans plaintiff in Bostock have assisted in fights against social conservative rights rollbacks at the state level, as evinced by a successful push in GOP-controlled South Dakota to quash restrictions on health care for trans minors (Wax-Thibodeaux and Schmidt Reference Wax-Thibodeaux and Samantha2020; Fitzsimons Reference Fitzsimons2020). However, the subsequent failure of similar efforts to kill such legislation in Idaho as well as the ADF’s vocal commitment to its anti-trans rights, pro-privacy line indicate that neither the organized opposition to trans rights nor the use of privacy rights in these campaigns and litigation are likely to disappear from the political scene soon (Minsberg Reference Minsberg2020).
If the ADF and its allies are eventually successful, it will likely be because they convince courts that their opposition stems not from unconstitutional animus but, rather, from a desire to create more equitable and safer environments for (cis) women. As Rogers M. Smith (Reference Smith2011) has observed, Christian conservative litigants have historically fared far worse in appeals that frame the United States as a Christian nation and far better when they have portrayed themselves as just one group sitting alongside others in a pluralist political order. This may explain why conservative privacy rights advocates do not condemn trans persons for violating the social order nor label them deviants; rather, they frame trans-inclusive policies as a misbalancing of rights. Such conservatives offer limited accommodations as a purported solution to both privacy concerns and the rights of trans persons.
Given the US Supreme Court’s tepid signal of support for Jack Baker’s religious liberty and free expression claims in its Masterpiece Cakeshop (2018) ruling and its decision to take up yet another contentious religious liberty versus antidiscrimination law case in its 2020–21 term, the federal judiciary may soon clarify how it will adjudicate these competing right claims.Footnote 55 It is still possible that the Court will eventually perceive these privacy claims—and their accompanying feminist rhetoric—as mere window dressing on an underlying constitutionally impermissible animus. For now, however, social conservative privacy advocates wage on in their efforts to remake the right for their own ends.
