It isn’t always easy for a federal judge to address a claim of a constitutional right, particularly when the crux of the issue revolves around the disclosure by a detective and child protective case manager that a person’s spouse has a missing part of their anatomy  about which spouses usually tend to be acutely aware. So Judge Damon Leichty in the Northern District of Indiana took the easy way out, holding that the plaintiff failed to show that there was a clearly established right to privacy of “gender preference”* and gender identity.

The case arose from an arrest following the plaintiff, the non-biological and non-adoptive, father of a 17-year-old for throwing him out of the house and refusing to feed and support the child. The child’s mother was arrested as well, same reasons, giving rise to an unusual issue.

John Doe, born female and transitioning to male, says Detective Adam Gray of the Starke County Sheriff’s Department disclosed John Doe’s gender identity to A.B., his [wife] who was allegedly unaware of it. John Doe also claims that Detective Gray shared this information with Katherine Purtee, a family case law manager at the Indiana Department of Child Services, who thereafter disclosed the information to A.B.’s children….

By “transitioning to male,” the court means that John Doe did not have male genitalia. The wife, A.B., was apparently unaware of this.

On February 8, 2018, Detective Gray interviewed A.B. to investigate the circumstances of
R.M.’s prolonged stay at Ms. Brewer’s house and R.M.’s allegation of sexual assault. During Detective Gray’s interview with A.B., he stated John Doe was born Barbara B., he was born
female, and did not have male genitalia—or, as John Doe and A.B. allege, Detective Gray disclosed John Doe’s sexual preference. A.B. told Detective Gray that she did not know John Doe did not have male genitalia but was aware of his previous name and that “medically down there like it’s different.”

The defendants moved to dismiss, arguing entitlement to qualified immunity. Plaintiff argued that this disclosure violated his constitutional rights under the 14th Amendment.

The concept of ordered liberty protected by the Fourteenth Amendment’s due process clause has been interpreted to include “the individual interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599-600 (1977). Courts of appeals, including this circuit, “have interpreted Whalen to recognize a constitutional right to the privacy of medical, sexual, financial, and perhaps other categories of highly personal information—information that most people are reluctant to disclose to strangers—and have held that the right is defeasible only upon proof of a strong public interest in access to or dissemination of the information.” Wolfe v. Schaefer, 619 F.3d 782, 785 (7th Cir. 2010); see, e.g., Denius v. Dunlap, 209 F.3d 944, 955-58 (7th Cir. 2000) (right to privacy in medical information); Anderson v. Romero, 72 F.3d 518, 521-22 (7th Cir. 1995) (recognizing generally right to
privacy in medical records and communications).

The pleading presented a convoluted argument, in that the plaintiff’s “sexual preference” was relative to his gender identity. If he’s male, then his orientation would be straight. If not, then he would be a lesbian. Regardless, there was the problem of whether there was an improper disclosure of private information to the wife, A.B., that her husband, Doe, had no penis. Clearly, she was not a stranger to whom government agents revealed private information. And is the absence of a penis private information to a wife?

Detective Gray and Case Manager Purtee say they are immune whether they disclosed John
Doe’s sexual preference or gender identity because a Fourteenth Amendment right to keep one’s sexual preference or gender identity private from disclosure to one’s spouse, the spouse’s children, or foster parents by state authorities was not clearly established at the time of the alleged conduct.

In response, plaintiff argued that there is a strong trend toward establishing transgender rights that should have made clear that the disclosure violated his right to privacy.

John Doe and A.B. also claim that there is a “clear trend in the caselaw that [the court] can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time.” Jacobs v. City of Chi., 215 F.3d 758, 767 (7th Cir. 2000) (quoting Cleveland-Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir. 1989)). They state case law trends toward providing more constitutional protections for the LGBTQ community, including Lawrence v. Texas, 539 U.S. 588 (2003) (criminalization of same sex sexual conduct is unconstitutional), United States v. Windsor, 570 U.S. 744 (2013) (defining marriage to be only between a man and woman is unconstitutional), and Obergefell v. Hodges, 576 U.S. 644 (2015) (depriving same-sex couples of the right to marry is unconstitutional).Though a case directly on point is not required for a right to be clearly established, Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 528 (7th Cir. 2012), this generalized trend toward recognizing rights for same-sex relationships is not tailored to the disclosure of private information and does not demonstrate that a sufficient consensus had been reached on the right to keep one’s sexual preference or gender identity private from disclosure to family or foster parents by state authorities during an investigation. See Cleveland-Perdue, 881 F.2d at 431. The court is confined today to this precise issue.

As the court is not required, per Pearson v. Callahan, to hold whether such a right exists at all, but allows the court to dodge the big question by holding that the right is not clearly established, Judge Leichty noted that the plaintiffs offered no analagous caselaw to their factual claim and sought to argue the “clearly estabilshed” prong based on the very vague right to privacy of “medical, sexual, financial, and perhaps other categories of highly personal information” as established in Whalen v. Roe, relating to disclosure of private information by health care providers.

While the court may have been able to punt in this case due to the bizarre underlying facts, the question remains whether there exists a right to privacy under the Fourteenth Amendment of the fact that an individual is transgender. Crazy as this case may be, this may well be a very real issue under less outrageous circumstances than are presented in this suit. Strange days, indeed. Most peculiar, mama.

*This is put into quotes as the preferred nomenclature is usually “gender orientation,” but the court uses “preference” instead.