The battle over transgender rights is raging on many fronts. Despite some local1 and national2 victories for transgender activists in the past few years, the battle is far from over. States like North Carolina have tried to bar transgender people from using bathrooms and locker rooms not matching their birth-assigned sexes.3 At the federal level, President Donald Trump’s Department of Justice and Department of Education have revoked Obama-era guidance protecting transgender students in schools.4 President Trump also rolled back protection for transgender servicemembers: on July 26th, 2017, he tweeted that transgender people should be barred from serving in the U.S. military,5 and a version of his ban went into effect in 2019.6 This Term, the Supreme Court will determine whether Title VII of the Civil Rights Act of 1964’s7 prohibition of employment discrimination “because of . . . sex”8 prevents employers from firing transgender workers because of their gender identity.9
This Note zooms in on a specific fight in the war over transgender rights: the existence and scope of a federal constitutional right to bodily privacy in one’s partially clothed body.10 This right has played a prominent role in recent litigation over school districts’ bathroom and sex-segregated space policies. For example, when a Chicago-area school district created a trans-friendly bathroom and locker room policy, a coalition of cisgender students and their parents sued.11 As has become typical in suits with similar facts,12 the students and parents brought a potpourri of claims: they argued that the school district violated Title IX of the Civil Rights Act of 1964’s prohibition of sex discrimination, parents’ “fundamental right . . . to direct the upbringing of their children,” Illinois’s version of the Religious Freedom Restoration Act, the Free Exercise Clause of the U.S. Constitution, and — most relevantly — cisgender students’ constitutional right to bodily privacy in their partially clothed bodies.13 Though the district court refused to recognize this constitutional right,14 another court has done so.15 Understanding the history of this right and its content is important to resolving these increasingly common constitutional claims. The stakes are high: bathroom access affects the approximately 150,000 high school–age students who identify as transgender in the United States,16 many of whom avoid sex-segregated spaces because they feel unsafe or uncomfortable or because they face discrimination.17 Uncertainty around how schools will treat them may exacerbate their fears; in one study from 2017, more than half of LGBTQ student respondents reported that their schools did not have any policies in place related to transgender students.18 And while which bathroom transgender students can use may seem like a narrow issue, people — even Supreme Court Justices — can’t stop talking about bathrooms when discussing transgender rights.19
This Note does three things. First, Part I provides a descriptive account of the history of the constitutional right to bodily privacy frequently at issue in court battles over transgender students’ access to appropriate sex-segregated spaces. It observes that circuit courts began recognizing this constitutional right in the prison context at a time when the Supreme Court was weakening the enforceability of prisoners’ rights. This right soon spread to other contexts and is now a centerpiece of litigation challenging trans-friendly school bathroom policies. Part II delves deeper into the content of the right, exploring its scope and the various factors courts consider when determining whether infringing it is permissible. Part III examines how and why courts have interpreted the right to be sex-based and argues that a sex-based notion of the right impractically essentializes sex and harms transgender children.
I. The History of the Right
To better understand the constitutional right to bodily privacy in one’s partially clothed body — where it comes from, who’s invoked it, how courts have analyzed it, and how opponents of trans-friendly policies have wielded it — a brief history is in order. Rather than suggest that the right is legitimate or illegitimate because of its historical pedigree, this Part serves mainly as an observation that the ease with which courts have found a constitutional right in one context has affected their holdings in future contexts.
We begin in 1963 — two years after the Supreme Court incorporated the Fourth Amendment against states via the Fourteenth Amendment in Mapp v. Ohio,20 but two years before Justice Douglas’s penumbral reasoning in Griswold v. Connecticut21 — when the Ninth Circuit first recognized a constitutional right to bodily privacy in one’s partially clothed body in York v. Story.22
In York, a woman sued three local police officers for “taking and distributing photographs of her in the nude”23 after she went to the police station to report an assault.24 She argued that taking these photographs constituted “an unreasonable search within the meaning of the Fourth Amendment,” that “the Fourth Amendment is premised upon a basic right of privacy,” and that the police officers’ acts were so invasive that they “amount[ed] to a deprivation of liberty, without due process of law, as guaranteed to her by the Due Process Clause of the Fourteenth Amendment.”25 The court separated the act of photographing the woman — which “may or may not constitute an unreasonable search in the Fourth Amendment sense” — from distributing the photographs, which “could hardly be characterized as unreasonable searches.”26 Thus, to grant relief for the distribution of the photographs, the court found it necessary to decide whether all of the officers’ acts — the photography and the distribution — “constitute[d] an arbitrary invasion upon the security of one’s privacy in [the] Due Process sense.”27 The Fourth Amendment protects citizens against unreasonable (and, consequently, arbitrary) police searches of their homes because these searches violate citizens’ privacy, so the court reasoned that people must have a constitutional right to bodily privacy.28 There is no “more basic subject of privacy than the naked body,” and “[t]he desire to shield one’s unclothed figure from view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.”29
York is an important case. Although it involves neither students, bathrooms, nor transgender people, courts and litigants continue to cite it in transgender bathroom cases for the proposition that students in schools enjoy a constitutional right to privacy in their partially clothed bodies.30 For thirty-nine years, it was the only case to recognize and apply this right outside of the prison context.31 It also represents the theoretical maximum power of the right; unlike cases involving students or prisoners — whose constitutional rights are more limited — York involved an adult plaintiff who was not imprisoned.
After York, the right lay dormant for many years. Perhaps because the facts in York were so unusual, no other circuit had a reason to address whether people might have a constitutional right to privacy in their partially clothed bodies. However, beginning in the 1970s — in part because of the rise of Title VII equal employment suits against prisons that facilitated cross-sex surveillance of male prisoners by female guards32 — courts began to grapple with a slew of cases involving prisoners claiming that their constitutional rights were violated when their nude bodies were viewed by guards of the opposite sex. Litigants and courts in transgender rights cases find it difficult to discuss the constitutional right to privacy in one’s partially clothed body without citing cases involving prisoners.33
Before examining these prisoners’ rights cases in more detail, it’s worth noting that, around the same time courts decided them, the Supreme Court began significantly limiting the constitutional protection afforded to the privacy rights of prisoners. In 1979, in Bell v. Wolfish,34 the Supreme Court assumed that pretrial detainees “retain some Fourth Amendment rights upon commitment to a corrections facility,”35 but permitted strip searches and visual body-cavity inspections on less than probable cause as long as they were conducted in a reasonable manner.36 It explained that searches are reasonable if “the significant and legitimate security interests of the institution” outweigh “the privacy interests of the inmates.”37 Five years later, in Hudson v. Palmer,38 the Court held that “society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.”39 Explaining that “[t]he recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions,” the Court greatly restricted the privacy rights of prisoners.40 Finally, in Turner v. Safley,41 the Court announced a rational basis–like test for all violations of prisoners’ constitutional rights.42 This trio of cases — Wolfish, Hudson, and Safley — made it increasingly easy for the government to justify violations of prisoners’ rights.43 While there is not necessarily a causal relationship between the weakening of the standard of review applied to prisoners’ rights cases and more widespread recognition of the right outside of prisons, it’s possible that this doctrinal shift lowered the stakes around courts’ decisions to recognize a constitutional right to bodily privacy in one’s partially clothed body. The right is easier to recognize if it need not be enforced.
As women gained entry to all-male prisons and began serving as guards, prisoners began claiming that cross-sex surveillance violated their constitutional rights.44 Courts were forced to determine whether male prisoners had a right to not be viewed by female guards.45 Lower courts had assumed without deciding that they did,46 but as the Supreme Court weakened the standard of review applicable to violations of prisoners’ rights, courts began recognizing the right explicitly.47 When doing so, they frequently found that this right to privacy turned at least in part on the sex of the guard viewing a prisoner’s partially clothed body,48 a nuance that later courts seized on when analogizing these prison cases to other contexts.
While only three circuits had recognized the right by 198749 (when the Supreme Court delivered its final blow to prisoners’ rights in Safley), the trend in the circuits was toward greater recognition of the right.50 They’ve found it in many places; courts have recognized that the First, Fourth, Eighth, or Fourteenth Amendments could serve as the basis for the right.51 However, as the Seventh Circuit observed, “[a]fter Wolfish and Hudson[,] monitoring of naked prisoners is not only permissible . . . but also sometimes mandatory.”52 Even if the right to bodily privacy in one’s partially unclothed body exists, cross-sex monitoring is constitutional under certain conditions.53 Today, it is well established that cross-sex monitoring of prisoners is allowed.54
C. Beyond Prisons
The right soon spread outside the prison context. In 2002, the Second Circuit became the first court since York to recognize it outside of prisons. In Poe v. Leonard,55 the court cited a collection of prison cases and discussed them in depth56 before recognizing a “constitutional right to privacy in [one’s] unclothed body.”57 Similarly, in Brannum v. Overton County School Board,58 the Sixth Circuit recognized that children, too, have a constitutionally protected right to bodily privacy in their unclothed bodies that protects them from being viewed59 by members of the opposite sex.60 When discussing the various prison cases in which the Sixth Circuit had recognized the right, the court wrote that the difference between students’ rights and prisoners’ rights is “one of degree, rather than of kind.”61 Thus, by citing to both Leonard and various prisoners’ rights cases,62 the Sixth Circuit became the third circuit after the Ninth Circuit in York and the Second Circuit in Leonard to recognize the right outside of the prison context. As more courts grapple with the right outside of prisons, the need to cite cases within the prison context wanes. For example, when the Third Circuit considered the issue in 2018, it didn’t even need to cite a prison case; it relied only on Leonard, Brannum, and the by-then-ancient York.63
Other courts, however, have been more cautious in recognizing the right. When deciding a challenge to a trans-friendly school policy, a district court in Oregon found that the plaintiffs’ citation to York and Ninth Circuit prison cases, among others, was “unpersuasive precedent that fails to establish their purported privacy right.”64 Similarly, a district court in Illinois discussed various prison cases before finding that they do not “compel a conclusion that the right [asserted] in this case is within the bounds of substantive due process; nor do they synthesize to support a substantive due process right.”65
Relying on the right as it developed in the prison context isn’t inherently good or bad, correct or incorrect. Since most courts have suggested that prisoners have a constitutional right to bodily privacy in their unclothed bodies — and because it would be odd to hold that prisoners have this right but students and members of the general population do not — courts must reckon with the application of this right outside of prisons. The cases above suggest two approaches for doing so: the Brannum and Leonard courts embraced the right as it developed in prisons, while the district courts in Oregon and Illinois cited prison cases but distinguished them, effectively limiting the applicability of the right and walking back some of their circuits’ earlier, sweeping language. The next Part explores the scope of this right.
II. The Scope of the Right
Until now, this Note has largely bracketed any discussion about what, exactly, the constitutional right to bodily privacy protects. Section II.A explores what conduct implicates the right, while section II.B details under what conditions courts have found violations of the right permissible. Finally, section II.C argues that, under the various factors courts have considered, trans-friendly policies are permissible infringements of the right.
A. Defining the Scope of the Right
For clarity, and although it is elementary, it is worth disentangling two moving parts in cases involving the constitutional right to bodily privacy in one’s partially clothed body: (1) defining the scope of the right itself and (2) determining whether infringing the right was permissible.66
To define the right, courts must first make threshold determinations about (a) whether a constitutional right to bodily privacy in ones’ partially clothed body exists and (b) the contours of this right. For example, a court could hold — like the court in Brannum — that “the constitutional right to privacy . . . includes the right to shield one’s body from exposure to viewing by the opposite sex.”67 This holding means that (a) a person has a constitutional right to privacy in their partially clothed body and that (b) it would be infringed if their body was viewed, through some sort of state action, by members of the opposite sex. On the other hand, a court could hold — like the district court in Illinois — that the “right to be free from government-enforced, unconsented risk of exposure to the opposite sex when [students] . . . are partially or fully unclothed” does not exist.68 This holding could be viewed in two ways: either as a rejection of a right to bodily privacy in one’s partially clothed body,69 or as a determination that a right not to be viewed exists but is not violated when there is only a risk of exposure (that is, the rights violation occurs only when there is a viewing).
The prison cases discussed in Part I featured a range of claims by prisoners. Ordered roughly from the most invasive to the least invasive practices, prisoners have sought protection from body-cavity searches,70 strip searches,71 deliberate viewings by members of the opposite sex,72 and incidental viewings by members of the opposite sex.73 In the school context, cisgender plaintiffs have attempted to argue that their constitutional rights are violated not just when their partially clothed bodies are incidentally viewed by transgender students but also when transgender students are present in sex-segregated spaces (creating the risk of incidental viewing).74 These activities are invasive to varying degrees; a strip search or body-cavity viewing infringes one’s right to bodily privacy significantly more than an incidental viewing does. Courts, then, must articulate the exact contours of the constitutional right to bodily privacy in one’s partially clothed body; what, exactly, does it protect?
Courts should find that people have a right not to be viewed in a state of undress. This right is not only most consistent with existing case law but also recognizes that people have an expectation that their nude bodies will not be viewed by others. On the other hand, a right protecting against the risk of exposure — which no court has recognized — seems far too broad; under such a right, the presence of a female guard patrolling a male prison or a boy in a girl’s bathroom (if only to wash his hands) would amount to an infringement of a constitutional right.
B. Was Infringing the Right Permissible?
As the Third Circuit has explained, the inquiry into whether a constitutional violation has occurred is contextual. For example, a case where transgender students receive permission from the school to use their preferred sex-segregated spaces “implicates different privacy concerns than . . . a case involving an adult stranger sneaking into a locker room to watch a fourteen year-old girl shower.”75 The court’s implication is not that one of these situations involves the infringement of a constitutional right and the other does not; in the Third Circuit, both acts infringe the right of the person being watched because both are viewings. Instead, its argument must be that the context of the viewing determines whether the infringement is permissible.76
Courts have identified at least five factors that go to whether a viewing is justified: the viewer’s intent (motive), what the viewer saw (extent of exposure), how long the viewer looked (length of exposure), the cost-effective allocation of resources (efficiency), and compliance with laws like Title VII (antidiscrimination).
1. Motive. — In the prison context, some courts have made a distinction between deliberate viewings by prison guards and incidental ones;77 this distinction suggests that the motive of the rights-invader is relevant. Considering motive allows courts to screen out bad actors: some viewings are unconstitutional because the viewer acted wrongfully, while others are permissible in part because the rights-infringers had no ulterior motive.78
2. Extent of Exposure. — Other courts have held that when a guard’s view of a prisoner is obstructed or distant — for example, if a guard is standing above the prisoners and thus her view is “obscured by the angle and distance” of her location — then the viewing is not a violation of the prisoner’s constitutional rights.79 Taking the extent of the exposure into account allows courts to distinguish between viewings of varying invasiveness: obstructed viewings are easier to justify than unobstructed ones.
3. Length of Exposure. — Still other courts have focused on the temporal element of a violation, holding that infrequent and temporary viewings are permissible80 while taking photographs or recordings of someone’s unclothed body is not.81 Considering the length of the viewing enables courts to distinguish viewings that might have lasting privacy implications (that is, documented viewings where the length of exposure is limitless) from less invasive, temporary, unrecorded viewings.
4. Efficiency. — Courts have also considered efficiency.82 In the prison context, one court noted that cross-sex viewings are justified because it “is more expensive for a prison to have a group of guards dedicated to shower and toilet monitoring . . . than to have guards all of whom can serve each role in the prison.”83
5. Antidiscrimination. — Finally, courts have recognized that a policy to prevent discrimination could justify a violation of the right not to be viewed in a state of undress. For example, the Seventh Circuit upheld a cross-sex monitoring policy in part because protecting a male prisoner’s right not to be viewed in a state of undress by a female guard would be possible “only by relegating women to the administrative wing, limiting their duties . . . , or eliminating them from the staff.”84 Because allowing cross-sex monitoring — and, consequently, otherwise-unconstitutional viewings — would “reduce the potential for conflict with Title VII and the equal protection clause,” the court allowed it.85
Recognizing a constitutional right not to be viewed in a state of undress, then, allows courts to recognize the genuine interest people have in shielding their nude bodies from view. Under certain conditions, however, courts have found that this right may be infringed. The next section applies these five factors to trans-friendly sex-segregated space policies.
C. The Right in the School Context
All of the factors discussed above suggest that whatever rights-infringing viewings might occur because of trans-friendly policies are permissible.
1. Motive. — Viewings that occur while students use the bathroom are likely incidental, not intentional. Even if viewings are intentional, the motives of transgender students are likely no worse than those of an “overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions,” as the Seventh Circuit has observed.86
2. Extent of Exposure. — This justification also points toward upholding trans-friendly policies and becomes stronger as bathrooms become more private. People are increasingly concerned with their bodily privacy generally; they want to shield their bodies from everyone, not just transgender students.87 Partially in response to this concern, school bathrooms are becoming more private,88 and schools have continued to move away from once-common communal showers, limiting and obstructing the views students have of each other’s partially clothed bodies.89
3. Length of Exposure. — Because allowing transgender students into bathrooms aligning with their gender identities results in only temporary, relatively infrequent viewings with short-term privacy implications, this factor also helps justify any rights violation. Presumably, students are not taking permanent photos or videos of each other in sex-segregated spaces.
4. Efficiency. — Trans-friendly bathroom policies could also be justified on efficiency grounds: allowing these policies would not only reduce the need or incentive for schools to provide single-use facilities for students (and thus maintain three separate sets of bathrooms) but could also pave the way for more cost-effective all-user facilities. All-user facilities could be designed to be more space-efficient and more private; they could also reduce maintenance and teacher supervision costs.90
5. Antidiscrimination. — Finally, because school districts have enacted trans-friendly policies to prevent discrimination against transgender students (or, in a pre-Trump world, to comply with Title IX91), this justification also supports trans-friendly policies. Indeed, the Third Circuit has recognized that school districts have a compelling interest in not discriminating against transgender students.92
Thus, recognizing a constitutional right to privacy in one’s partially clothed body does not mean that trans-friendly sex-segregated space policies are doomed. All of the justifications courts have relied on to uphold nude viewings in certain contexts also point toward allowing school districts to craft trans-friendly policies.
One additional hurdle to allowing trans-friendly bathroom policies, however, is that courts have typically viewed the right as sex-based. They have required more persuasive justifications when someone is viewed by a member of the opposite sex than when someone is viewed by a member of the same sex. As the next section argues, the right should not be sex-based. The extent to which the right is sex-based has important implications for the strength of the right: if it is not sex-based, then even a broad constitutional right not to be viewed in a state of partial undress is relatively weak given the prevalence of same-sex viewings historically,93 and school districts would not need particularly strong justifications to infringe on this right.
III. The Sex-Based Nature of the Right
In addition to determining the scope of the right, courts must also reckon with the fact that, in the prison context, courts have recognized a right to bodily privacy in one’s partially clothed body that depends on the viewer’s sex; the right is sex-based.94 This sex-based conception of the right, like the right itself, has spread outside of the prison context.95 Even when courts do not explicitly articulate the sex-based nature of the right, they must implicitly believe that any constitutional right not to be viewed in a state of undress is sex-dependent.96 For example, in the school context, if sex were irrelevant to the right, how could a transgender boy in the boys’ bathroom have different constitutional privacy concerns than a cisgender boy in the boys’ bathroom? Section III.A explores the two main arguments in favor of a sex-based constitutional right. Section III.B argues that the constitutional right to privacy should not be sex-based.
A. The Justifications of a Sex-Based Right
Proponents of a sex-based conception of the right have offered two main justifications: the “nudity taboo”97 and public safety.
1. The “Nudity Taboo” Justification. — One basis of this sex-based conception seems to be the “nudity taboo.” As Chief Judge Posner explained, “[t]he nudity taboo retains great strength in the United States. It should not be confused with prudery. It is a taboo against being seen in the nude by strangers, not by one’s intimates. . . . The taboo is particularly strong when the stranger belongs to the opposite sex.”98 He also noted that not all Americans share the nudity taboo but that it is strongest among Christians.99 He concluded that it should be constitutionalized: “the interest of a prisoner in being free from unnecessary cross-sex surveillance has priority over the unisex-bathroom movement.”100 Closely related to the nudity taboo is the social convention that private acts like undressing in front of members of the opposite sex often “support the possibility of intimate private actions.”101 More bluntly, people undress to have sex; they don’t like doing it in front of strangers, particularly members of the opposite sex. Scholars and judges have criticized this “nudity taboo” logic along many dimensions: accepted practices like cross-sex doctor and nurse examinations undermine the taboo’s natural law appeal,102 Posner’s statements about Christianity are inaccurate,103 and the taboo — to the extent it is rooted in sexual desire — fails to account for nonheterosexual viewers.104
2. The Public Safety Justification. — Opponents of trans-friendly policies have also attacked them on public safety grounds. The fear is usually articulated in gendered terms: people don’t want men going into women’s bathrooms. For example, in 2015, Houston tried to enact an antidiscrimination ordinance designed to protect transgender residents. Opponents of the ordinance ran a television ad featuring a young girl in a bathroom; the voiceover warned that if the ordinance were enacted, “[e]ven registered sex offenders could follow women or young girls into the bathroom.”105 “Prevent danger,” it advised, and “[v]ote no” on the bathroom ordinance.106 The ordinance did not pass.107
Despite the prevalence of safety concerns, there is little empirical evidence justifying these fears. A 2018 study found that “reports of privacy and safety violations in public restrooms, locker rooms, and changing rooms were exceedingly rare” after legislatures or voters enacted antidiscrimination policies like the one Houston failed to pass; it concluded that fears of increased privacy and safety violations “are not empirically grounded.”108 The concern also seems irrational. Men who want to sexually assault women in bathrooms would probably be no more deterred by trans-exclusionary laws than by the criminal penalties that already apply.109 Further, due to the stigmatized nature of trans identities, it seems unlikely that people would be willing to abuse antidiscrimination policies by claiming genders that are not their own.110
B. Against a Sex-Based Right
On the other hand, there are many reasons why the right should not be sex-based. Sex and gender are not binary, and a sex-based right essentializes sex, is difficult to administer, and disproportionately harms transgender children.
1. A Sex-Based Right Presupposes a Binary Notion of Sex and Gender. — As currently conceived by courts, the constitutional right to bodily privacy in one’s unclothed body does not reflect the complexities of sex and gender. While courts typically conflate “sex” and “gender,” using “gender” when they mean “sex” and vice versa,111 the concepts are distinct: sex is determined by a mix of “chromosomes, hormones, internal and external reproductive organs, and secondary sex characteristics” and typically assigned at birth,112 while gender is both socially constructed and performed.113 Neither is necessarily binary.114 Someone’s “gender identity is their subjective, deep-core sense of self as being a particular gender.”115 These distinctions between sex and gender are not new in legal academia,116 but they’re sufficiently foreign to legal practice that the Third Circuit found it necessary to define “sex,” “gender,” and “gender identity” in 2018.117 A sex-based right — first conceived in 1963,118 when sex and gender were widely considered both interchangeable and immutable119 — ignores a modern understanding of identity.
2. A Sex-Based Right Essentializes Sex. — If courts interpret a right to bodily privacy in one’s partially clothed body as a sex-based or gendered one, they essentialize and aggrandize one form of identity over others.120 Essentialization isn’t bad because, in this context, it harms transgender people; it’s bad because it requires the court to wade into a messy debate about who is — and who is not — a man or woman, and because it requires the court to enforce a gender binary that is increasingly questioned in society and the law.121 By choosing to define the right in terms of the biological sex of the viewer, courts discount the importance of gender identity. And, even if courts defined the right in terms of gender identity rather than sex, they’d still be constitutionalizing and essentializing some form of identity (and would thus be discounting the views of people who — like the cisgender students who don’t want to risk being viewed by transgender students in bathrooms — believe that biological sex is the only relevant identity). By jettisoning the sex-based nature of the right, courts can sidestep the problems inherent in embedding one particular identity into a constitutional right.122
3. A Sex-Based Right Is Difficult to Administer. — Beyond the theoretical messiness of embedding sex into a constitutional right, there’s also a practical difficulty in a sex-based notion of the right. A sex-based right requires a more precise definition of sex than the law is willing or prepared to offer.123 Does sex mean sex assigned at birth? If not, is sex mutable? If so, at what point does someone switch from being one sex to another sex — when, if ever, is a transition complete? And what about people who are nonbinary? Once the right is sex-based, courts must either assume or determine the sex of the purported rights-infringer and the sex of the person whose rights are infringed. Courts might not want to get into this business.
Perhaps the most administrable definition of sex is sex assigned at birth. Some courts have used this definition, in accord with an English case from 1970 holding that biological, birth-determined sex is supreme and immutable.124 But this definition fails to recognize that the sex someone is assigned at birth may not be correct, and it locks people into this assignment forever. Opponents of transgender rights might not like this definition either. Most of the rhetoric against allowing transgender people to use bathrooms consistent with their identity raises the specter of men in the women’s bathroom.125 But interpreting sex to mean sex assigned at birth might find a constitutional violation when a stereotypically masculine transgender man who’s undergone sex reassignment surgery enters the men’s room, but no violation when that man enters the women’s room. To the extent that the safety and nudity taboo arguments against trans-friendly policies are fundamentally driven by a fear of people who look like men using the women’s room and vice versa,126 relying on sex assigned at birth does not address the problem.
Some courts unwilling to tie a person’s sex to the sex that person was assigned at birth have instead relied on the concept of legal sex. For example, a district court in the District of Columbia was willing to find that a transgender woman was “legally a female” and that “the law on cross-gender searches [was] relevant” when male prison guards strip searched her.127 The court explained that the terminology the defendants used to refer to the plaintiff — they said she was “biologically male, but ‘legally female,’”128 — was meaningless; the court treated her as a woman because she had undergone gender affirming surgery and “had her sex legally changed to female.”129 But legal sex is jurisdiction dependent and isn’t always clear; people may have a cornucopia of government documents with conflicting sex classifications.130 While some states allow people to change their legal sex, others — like Tennessee — don’t, even after people undergo sex reassignment surgery.131 Legal sex, then, is too indeterminate a foundation on which to base the constitutional right to privacy in one’s partially clothed body. Courts might instead conduct their own investigation.
The inquiry a sex-based right would require is reminiscent of the inquiry into race that courts performed to enforce miscegenation laws in the nineteenth century. As Professor Peggy Pascoe has written, although “[m]ost Americans are sure they know race when they see it, . . . very few can offer a definition of the term.”132 When miscegenation laws made race classification necessary — forcing judges, juries, and marriage license clerks to “assign people to racial categories” — these categories became increasingly arbitrary.133 To prove race, judges and juries relied heavily on physical markers; for example, one woman was asked to “partially disrobe before a jury in an attempt to uncover supposedly persuasive physical evidence of race.”134 Appellate courts — deprived of the opportunity to conduct visual inspections of the parties — often overturned lower court rulings; they were better able to “notice the discrepancies and contradictions that marked race-making in local courts.”135
If courts were to enforce a constitutional right not to be viewed by a member of the opposite sex, they’d be forced to make similar judgments. They seem wary of doing so; when sex is unclear, many courts have been cautious with their language, referring to transgender people by the correct pronouns but explaining that this does not reflect a determination of their sex.136 Requiring courts to determine sex also risks reducing transgender people to their appearance or “a specific set of behaviors and anatomical differences.”137 A vivid example of this dynamic comes from a recent study of how immigration courts determine transgender identity in asylum cases. There, courts forced to make determinations about sex or gender typically based their decisions on whether claimants presented a clear narrative of their transitions from one sex to another.138 When writing their opinions, these courts focused on factors such as “a claimant’s choice of name, hairstyle, dress, and body modifications.”139 Relying on these factors risks turning courtrooms into stages on which transgender people must act out their gender identities.
4. A Sex-Based Right Disproportionately Harms Transgender Children. — In states where sex reassignment surgery is necessary to change one’s legal sex, children will be effectively barred from having a sex other than their birth sex legally recognized.140 Navigating legal sex might also be intermediated through a parent; some states require doctors’ notes or other medical documents before legal sex can be recognized, and some transgender children — particularly those who have been rejected by their families — may be unable to access care.141 Transgender children may also be unsure of their sex or gender identity; medical interventions for transgender adolescents are often designed to give them “more time to explore their gender nonconformity.”142
Declining to recognize a sex-based notion of the right won’t necessarily lead to bathroom anarchy. In some sense, a non-sex-based version of the right is broader than a sex-based one; it is more protective of people’s privacy. Instead of protecting people’s privacy only when they are viewed by members of the opposite sex, a non-sex-based right would provide people with the same constitutional protections regardless of who views them. If existing sex-segregated spaces are insufficiently private to protect such a broad right, then the proper response is to increase privacy in these spaces (which would benefit everyone who’s ever felt uncomfortable in communal facilities, not just transgender people), not to bar transgender people from facilities aligning with their gender identity and force courts to adjudicate their sex.
The acceptance of a constitutional right to bodily privacy in one’s partially clothed body was not inevitable. Until 2002, only a single circuit court had affirmatively recognized the right. However, a combination of increased cross-sex monitoring in prisons — largely due to sex discrimination litigation under Title VII — and a steady weakening of prisoners’ rights coincided with a widespread acceptance of the premise that people have a constitutional right not to be viewed in a state of undress by members of the opposite sex. More recently, courts have relied on the acceptance of this premise in prisoners’ rights cases to find that the right does, indeed, exist. And cisgender students have tried to harness the right to prevent school districts from allowing transgender students into sex-segregated spaces aligning with their gender identities.
The increasing adoption of the right leads to interesting questions about what, exactly, the right entails. While courts have been somewhat vague about the scope of the right, most seem to agree that it is fairly broad and is implicated whenever one person views another in a state of undress. While a broad right sensibly recognizes the genuine privacy interest people have in their partially clothed body, courts have articulated a number of factors that go to whether invading this right is permissible; all of these point toward allowing trans-friendly bathroom policies. Most courts have also, either implicitly or explicitly, found that this right is sex-based. A sex-based right is problematic not only because it constitutionalizes a nudity taboo, essentializes sex at the expense of other forms of identity, and disproportionately harms transgender children, but also because judicial policing of sex is messy and difficult. Courts should not get in the business of saying who is — and who is not — a man or woman. By rejecting the notion of a sex-based constitutional right to privacy in one’s partially clothed body, they won’t have to.