The Right to Sexual Orientation Privacy: Strengthening Protections for Minors Who Are "Outed" in Schools
Kretz, Adam J., Journal of Law and Education
In December 201 1 , a fourteen-year-old student at Willowcreek Middle School in Lehi, Utah, was assigned a school project in which he had to advertise something about himself. Several days later, he came to school with a poster advertisement on which he came out as gay to the rest of his classmates, and asked his teacher to publicly display his project alongside the others.1 His decision to come out so publicly in his religious community, and the resulting decision by school administrators, ostensibly out of fear that he would be bullied, to out2 the student to his parents despite the young boy's protestations, poses a constitutional question that has been rarely litigated: whether students have the right to prevent schools from informing their parents, or any other members of the school or local community, that they are gay, lesbian, bisexual, transgender, or any other sexual orientation or gender identity.
Such outings by school officials - whether they be teachers, staff, or administrators - are still relatively rare, but can often have harmful results for the student whose confidentiality has been breached. The Willowcreek student, who for privacy reasons has not been named by the news media, is one of a small handful of incidents in the past year where a student has been outed to a family member despite the student's fear that the family member will respond with antigay attitudes.' The context of these outings run the gamut. In Kilgore, Texas, an openly gay softball coach maliciously outed one of her players in retaliation for going on a date with the coach's ex-girlfriend.4 In the Willowcreek incident, by contrast, the principal informed the student's parents of his sexual orientation ostensibly to protect the student from antigay bullying, and hoped that doing so would permit the parents to play a more active role in preventing the possible harms that can befall young lesbian, gay, bisexual, transgender, and queer (LGBTQ) students who are bullied by their peers or adults.5
Both retaliatory and informational outings, and all variations in between, pose the question of whether school officials have any right to out a minor to his or her parents without permission - essentially, whether a minor, due to concerns either founded or unfounded, can effectively veto any attempt to tell a parent or guardian that the student is gay. This paper attempts to untangle the rights that minors hold over information about their sexual orientation, what actions taken by school officials would be violative of those rights, and what legal remedies minors can use to best redress those violations. Though rare now, as more teens are coming out, at younger and younger ages,6 it is necessary to fully demarcate the lines of privacy and determine exactly who should have access to such information.
In this Article, I argue that student privacy rights should extend to information about their sexual orientation, and school officials who out students, regardless of the intent behind the outing, are acting in violation of this privacy right. I begin by discussing the various legal mechanisms by which a student could claim a legal right over information regarding their sexual orientation or gender identity, including basic tort law for invasion of privacy, as well as more robust state and federal constitutional protections for informational and decisional autonomy. Most often, students lack tort law privacy protections in school-based outing situations, and instead, students should utilize constitutional privacy protections in order to bring suit seeking redress for the harms caused by outing.
Next, I define the contours of the privacy rights minors have in their sexual orientation, examining the limited number of informational privacy cases ruled on by the Supreme Court, and the similarly limited number of lower court cases about outing in particular. In doing so I conclude that student privacy rights in their sexual orientation are robust, and that school attempts to abrogate those rights should be subject to more extensive limitations than they are at present. …