A Look Back at the Role of Law and the Right To Privacy in LGBTQ+ History

By Katelyn Ringrose, Christopher Wolf Diversity Law Fellow at the Future of Privacy Forum, and Christopher Wood, Executive Director of LGBT Tech, with thanks to Connor Colson, FPF Policy Intern.

LGBTQ+ rights are, and have always been, linked with privacy. Over the years, privacy-invasive laws, practices, and norms have been used to oppress LGBTQ+ individuals by criminalizing and stigmatizing individuals on the basis of their sexual behavior, sexuality, and gender expression.

In honor of October as LGBTQ+ History Month, FPF and LGBT Tech explore three of the most significant privacy invasions impacting the LGBTQ+ community in modern U.S. history: anti-sodomy laws; the “Lavender Scare” beginning in the 1950s; and privacy invasions during the HIV/AIDS epidemic. These examples, along with many more, will be analyzed in FPF and LGBT Tech’s upcoming white paper on the sensitivity of data concerning a person’s gender identity, sexual orientation, and sex life.

1. Anti-Sodomy Laws and Sexual Privacy //

U.S. Anti-sodomy laws have been systematically utilized to oppress individuals through incarceration, denial of employment, and public shaming. In all American colonies the punishment for sodomy was death, a punishment that remained on the books in some states into the 19th century. In the early 20th century, sodomy was a felony in every state.

Anti-sodomy laws allowed law enforcement and communities to violate individual privacy by reporting suspected sexual activity. This practice of community and law enforcement invading the privacy of civilians continued well into this century, when the Supreme Court ruled the remaining state anti-sodomy laws unconstitutional in Lawrence v. Texas. In that 2003 case, Justice Anthony Kennedy refuted arguments that anti-sodomy laws protect against unwanted sexual activity:

The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

— Justice Kennedy, delivering the majority opinion in Lawrence v. Texas

More recently, scholars have begun to consider anti-sodomy laws in the larger context of “sexual privacy,” a distinct privacy interest that serves as a cornerstone for sexual autonomy, consent, human dignity and intimacy.

Although Lawrence invalidated state anti-sodomy laws, those laws still remain on the books in many states. For example, as recently as 2011 to 2014, 12 men in East Baton Rouge Parish, Louisiana were arrested for “crimes against nature.” Similarly, the government continues to regularly reveal, or “out,” information concerning people’s sexuality, gender identity, and HIV status through legal regimes, including, for example, state laws requiring people to frequent bathrooms in accord with their sex assigned at birth, denial of healthcare services to transgender individuals, and through mandatory disclosure laws to obtain government services, including government-issued identification.

In addition to issues of government intrusion, corporate or commercial collection of data can lead to many of the same harms mentioned above, including the perpetuation of existing bias and the encoding of discrimination within systems of power. Moving forward, it is important to understand the practices of the past in order to better understand potential harms posed by the collection, use, and sharing of commercial data.

2. The Lavender Scare and the Role of Employment Protection //

Beginning in the 1950s, the U.S. federal government began surveilling and systematically purging LGBTQ+ employees from the civil workforce in what became known as the “Lavender Scare.” In 1953, President Eisenhower declared in an Executive Order that federal employees, as a matter of national security, should be investigated for “sexual perversion” and “mental illness.”

Over the next four decades, resulting investigations led to more than ten thousand civil servants losing their jobs due to their sexual orientation. This movement made it largely impossible for federal employees to publicly identify as LGBTQ+. In fact, the stigma was so strong that federal employees were fired simply for “guilt of association” because they had known someone who was accused of being LGBTQ+.

The Lavender Scare was also the beginning of an intense fifty year period of government surveillance of LGBTQ+ individuals spearheaded by the FBI. The majority of the FBI’s documents from the Sex Deviant Program have been destroyed, but those that remain show the extent of government spying. The FBI recruited informants within early LGBTQ+ rights organizations, photographed and tracked protestors to get them removed from their federal jobs, and regularly outed them. Former Secretary of State John Kerry, in a formal apology issued in 2015, acknowledged the practice:

In the past — as far back as the 1940s, but continuing for decades — the Department of State was among many public and private employers that discriminated against employees and job applicants on the basis of perceived sexual orientation, forcing some employees to resign or refusing to hire certain applicants in the first place. These actions were wrong then, just as they would be wrong today.

On behalf of the Department, I apologize to those who were impacted by the practices of the past and reaffirm the Department's steadfast commitment to diversity and inclusion for all our employees, including members of the LGBTI community.

— Former Secretary of State John Kerry, on behalf of the Department of State

While the Lavender Scare and associated practices within the federal government largely ended as late as the 1990s, issues associated with government surveillance and over-policing still plague LGBTQ+ communities today. And it wasn’t until 2020 that the Supreme Court clarified, in Bostock v. Clayton County, that Title VII of the Civil Rights Act bans employment discrimination on the basis of sexual orientation and gender identity.

3. The HIV/AIDS Epidemic and the Importance of Medical Privacy //

Public health infrastructure has historically excluded acknowledgement of LGBTQ+ individuals, even going as far as perpetuating harms in the form of underinvestment in healthcare. When the Human Immunodeficiency Virus (HIV) and the associated Acquired Immunodeficiency Syndrome (AIDS) came into the American consciousness in the early 1980s, most hospitals saw homosexuality as an illness, and care was laced with stigma.

HIV/AIDS, initially called GRID or Gay Related Immuno-Deficiency Syndrome, was accompanied by a range of required HIV/AIDS disclosures. As a result of these disclosures, gay and bisexual men were fired from their jobs, kicked out of housing and even refused treatment due to their potential or actual HIV status. In addition, they were often denied health insurance and in order to pay for health coverage, were exploited by viatical insurance companies to sell life insurance policies for pennies on the dollar.

The high rate of stigmatization led individuals to avoid testing or treatment, with individuals avoiding testing out of fear that their employer would find out about their LGBTQ+ status when visits or medication were billed to their employer's insurance. Healthcare providers themselves perpetuated this stigma by refusing to treat HIV positive patients. This stigma has led a significant portion of men who had sex with men to withhold their sexual orientation from their doctors, resulting in a lack of tailored care. These issues were only compounded by existing racism and inequities—with HIV prevention programs reaching Black communities at a slower pace than programs aimed at white gay and bisexual men, despite HIV/AIDS impacting a higher proportion of the Black population than other races and ethnicities.

A lack of medical privacy and inadequate anti-discrimination protections continue to impact the LGBTQ+ community. A recently issued rule from the Department of Health and Human Services (“HHS”) would eliminate federal protections for LGBTQ+ individuals in accessing health insurance, particularly transgender individuals who are already mistreated and neglected through the denial of equal coverage and care.

At the same time, governments, physicians and researchers use personal data to provide HIV/AIDS services, monitor healthcare efforts, and to advance research that benefits LGBTQ+ communities. In these circumstances, the balance between public health and individual privacy is difficult to strike — at least partially due to the deep distrust that developed during the height of the HIV/AIDS epidemic.

Looking Forward //

Lessons learned from the past about privacy and LGBTQ+ history can, and should, continue to shape conversations today. For example, during the COVID era, we can apply lessons learned from the HIV/AIDS epidemic to examine issues around required medical disclosures for COVID-19. As we contemplate issues from the implementation of digital contact tracing to mandatory medical disclosures for individuals who have tested positive for COVID-19, we must understand that the collection of medical data, at least for the LGBTQ+ community, is an issue deeply rooted in history, laced with stigma, and marked by a lack of legal protection.

Today, connected devices and services are empowering members of the LGBTQ+ community to participate more fully online. Data regarding an individual’s sexual orientation, gender identity, or details about their sex life can be important to the provision of social and healthcare services, public health, and medical research. However, data pertaining to an individual’s gender identity, sexual orientation, and sex life can be incredibly sensitive—and the collection, use, and sharing of this data can raise unique privacy risks and challenges. Conversations around LGBTQ+ data privacy must take into account the harms of the past.

FPF and LGBT Tech continue to research LGBTQ+ Privacy. Please contact either Katelyn Ringrose at kringrose@fpf.org or Chris Wood at cbwood@lgbttech.org with any questions, comments, or to get involved.