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Prof. Anita Allen on Privacy Rights for LBGT Plaintiffs

March 01, 2011

Faculty Research Brief Series

Anita L. Allen, Deputy Dean and Henry R. Silverman Professor of Law and Professor of Philosophy

In the United States, both constitutional law and tort law recognize people’s right to privacy: a legal entitlement to an intimate life of one’s own free from undue interference by the state and others. For lesbian, gay, bisexual, and transgender (LGBT) people seeking to protect that right, the constitutional arena has brought a modicum of well-known success. In 2003, for example, two cases suggested that LGBT people had come a long way in having their right to privacy protected under constitutional law. In Lawrence v. Texas, the Supreme Court struck down laws criminalizing consensual sexual acts between same-sex adults, and in Goodridge v. Dep’t of Pub. Health, the Massachusetts Supreme Court recognized the right to same-sex marriage.

In the U.S. tort arena – in which people can sue under civil law for personal wrongs that were allegedly done to them – LGBT plaintiffs have accused employers, colleagues, publishers and others of prying, spying, insulting or harassing them, or disclosing their birth sex, sexual orientation, or medical information without authorization. But according to a new paper by Anita Allen, a professor of law and philosophy at the University of Pennsylvania Law School, the theoretically promising invasion of privacy torts often have been practical disappointments for LGBT plaintiffs seeking relief in cases related to their sexual orientations or identities.
In the paper, “Privacy Torts: Unreliable Remedies for LGBT Plaintiffs” (California Law Review 2010), Allen analyzes post-1960 appellate cases in which LGBT plaintiffs have alleged privacy tort offenses on facts that expressly involved their sexual orientations or gender identities, invoking one or more of the four privacy torts William L. Prosser distinguished and enshrined 50 years ago in the Second Restatement of Torts – that is, intrusion, public disclosure of private facts, false light publication, and commercial appropriation.
Allen’s analysis is two-fold: she both evaluates the integrity of Prosser’s privacy tort framework, which has governed decisions on the invasion of privacy torts in U.S. courts for the past half century; and examines the efficacy of privacy tort remedies for LGBT people alleging wrongs tied to sexual orientation or gender identity, concluding that the invasion of privacy torts have not been especially useful to LGBT plaintiffs.
Despite some victories in constitutional law, and to a lesser degree, tort law, Allen asserts that the intimate lives of LGBT Americans are still subject to unwarranted invasion – as evidenced by the recent suicide of a college freshman after his roommate and another student used hidden webcams to stream over the Internet live images of him having sex with a male partner in a supposedly private dorm room. Allen cautions courts deciding LGBT privacy cases against adopting overly optimistic assumptions about the privacy needs of LGBT people. To provide real, consistent remedies for LGBT plaintiffs, she asserts that courts must refashion their understandings of how critical elements of privacy torts can be met and withstand defenses.
Read the full brief by clicking the image below (PDF) or download the complete paper from the SSRN website.