A Conservative Right to Privacy: The Reassociation of a Progressive Ideal

• In Event: Strategies for Advancing and Hindering LGBTQ Rights in the Law and Courts

Abstract

Religious liberty-based statutes and interpretations of the First Amendment’s free exercise clause have come to constitute a new threat to LGBTQ rights. The Supreme Court’s ambiguous decision in Masterpiece Cakeshop, Justice Anthony Kennedy’s sudden retirement, and the proliferation of state-level Religious Freedom Restoration Acts are just a few signs of the budding trouble that constitutional clashes between the rights of certain religious individuals and business owners and sexual and gender minorities spell for the latter. Yet, I argue that conservative interpretations of the right to privacy have come to present an equally-concerning though far less remarked-upon opposition to LGBTQ rights. In examining this phenomenon, I attend to those like the Alliance Defending Freedom who have advanced privacy rights claims against trans advocates over issues of gender identity and bathroom access. I also look to the curious coalition-building religious groups have pursued with trans-exclusionary radical feminist ones making similar claims to privacy, especially in referenda campaigns. I note how opponents to expanded LGBTQ rights have waged a two-front assault, combining novel interpretations of the right to privacy with religious freedom ones. Lastly, I consider how the Trump administration Department of Education and Department of Justice have adopted similar positions on the right to privacy in their work to rescind and overturn Obama administration-era policies and case law.

Author

• Joanna W. Wuest, Princeton University