Scott Skinner-Thompson

Anti-transgender legislation is sweeping the nation with devastating
consequences for trans lives. Each piece of legislation is generally challenged in isolation and conceptualized under the Equal Protection Clause as involving either impermissible sex classifications or classifications against transgender people. These frames are accurate but insufficient to fully capture the scope and harm of the laws on trans lives. These all-encompassing laws must be unequivocally identified
for what they are: a product of animus violating the Equal Protection Clause. Through its detailed analysis of these laws and their legislative history, this Article demonstrates that animus is evident from the laws’ overbreadth, underinclusiveness, fabricated or pretextual government interests, and direct legislative statements of animus. As this Article contends as its central thesis, framing anti-trans legislation
as rooted in animus toward transgender people may help lead to greater—and more efficient—litigation success and will also avoid the pitfalls of Equal Protection suspect classification doctrine that essentializes and forces identities into rigid, exclusionary boxes. Drawing from principles of restorative, transformative, and transitional justice, the animus framing also has the potential, perhaps counterintuitively, to lead to greater social healing of the fissures being created by the culture war aimed at transgender people.

This Dialogue section examines perspectives on how privacy law scholarship and surveillance scholarship can be further enriched with more critical reflection and discussion between the disciplines and includes valuable contributions from thought leaders in each field. 

The government regularly outs information concerning people’s sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy—a right to limit the government’s ability to collect and disseminate personal information. This Article probes informational privacy theory and jurisprudence to better understand the judiciary’s reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy’s ability to promote individual dignity and autonomy, there is a disconnect when courts attempt to translate those theories into workable doctrine. The extant theories are products of Fourth Amendment and decisional privacy law, and bear a more attenuated relationship to infor...

In law school curriculum, the first-year tort law course is often caricatured as the class with the funky, sometimes amusing, fact patterns where people get injured—occasionally in bizarre ways—and attempt to recover from the party purportedly responsible. In legal scholarship, tort law has historically been dominated by two approaches: the law and economic approach focused on efficiently distributing the costs of injuries and on preventing/deterring them, and the civil recourse or corrective justice approach that underscores tort law’s role in providing individual redress for victims who have been injured by a wrongdoer.

But thanks to innovative scholars attentive to power disparities in the law and society, an ever-growing body of scholarship analyzes, critiques, and suggests reforms to tort law based on the racial, gender, ableist, socio-economic, and sexuality-based disparities or stereotyping assumptions that exist within the doctrine and its application. Professor Martha Chamallas’s scholarship has been at the vanguard of this important trend and it’s a joy to celebrate her ground-breaking work in this Festschrift, although a tall order to do it justice.

Her intellectual and moral leadership have helped us realize that tort law—no less than constitutional law, civil rights, or criminal law—is a context where power and identities play a critical role in determining whose lives will be valued, whose injuries will be remedied, and what injustices will be rectified. Or not. This work has implications not just for how tort law is interpreted and applied in courts, but also how it is taught in school. In fact, several of Professor Chamallas’s scholarly endeavors focus specifically on bringing these insights to bear on law school curriculum.

As detailed herein, her substantive contributions to tort scholarship and theory are manifold but include at the top of the list (my list, anyway): (1) critiquing the degree to which harms often (but not exclusively) associated with women are unrecognized or devalued in tort law, (2) unearthing the ways in which the injuries of racism have been ignored, and (3) articulating how constitutional equality principles might be used to reform some of the discriminatory practices of tort law.

All told, I suggest that Professor Chamallas has helped engender an anti-subordination approach to tort law. As characterized here, this anti-subordination approach to tort law does not just simply attempt to redress formal inequalities in doctrine or its application, putting people on formally equal footing in the eyes of the law. Rather, this approach moves the law in favor of prioritizing (with special solicitude) the injuries disproportionately inflicted on marginalized communities and, potentially, being mindful of (instead of ignoring) identity differences to create contextually sensitive rules that may level up those that have historically been subjugated or ignored.

Privacy is paramount to ensuring that the public sphere is an equitable, heterogeneous environment where ideas can be contested, democracy realized, and society enhanced. As it stands, both the physical public square and the digital public sphere are characterized by unequal access, harassment, surveillance, and violence. The harms originating in each context rebound and intensify as the law often fails to appreciate the interconnectedness between digital and physical space.This cycle harms individuals, particularly those who belong to marginalized groups. But it also imposes group harms, pushing and erasing entire segments of society from the hegemonic public sphere, contributing to homogeneity of identities in public. This in turn creates societal-level harms to democracy including conformity of ideas within the dominant public sphere, with marginalized groups effectively segregated from that space, contributing to consequent political polarization.

As I argue in this Essay, legal privacy protections—which enable individuals to control their visibility within public space—play a vital role in disrupting this subordinating, anti-democratic process and should be at the forefront of efforts to reform the operation of both digital and physical public space. Robust privacy protections are a touchstone for empowering members of different marginalized groups with the ability to safely participate in both the physical and digital public squares, while also preserving space for vibrant subaltern counterpublics.

Ensuring the participation of marginalized groups is critical to a well-functioning democracy. Political and democratic theories—ranging from deliberative democracy to civic republicanism to agonistic pluralism—underscore (in different ways and with distinct points of emphasis) that ensuring space for the exchange of ideas and contestation in the informal public spheres where ideas and viewpoints are debated is not something to fear, but something to embrace. Appreciating privacy’s manifold agonistic and participatory benefits, along with its expressive, First Amendment pedigree, will be a critical component of any efforts to rectify the problems besetting our public sphere. Privacy helps people from marginalized groups appear in public on their own terms, avoiding violence and harassment. In turn, it helps them enrich and shape the public sphere, often through agonistic acts of surveillance resistance and privacy performances. And that agonistic friction, if safeguarded through privacy protections, may also help decrease some of the dangerous polarization plaguing the American political landscape.

Even in school districts with relatively permissive approaches to defining and embodying gender, the identities of transgender and gender variant students are often governed by complex regulatory protocols. Ensuring that a student is able to live their gender at school can involve input from a host of purported stakeholders including medical providers, mental health professionals, school administrators, the student's parents, and even the broader community. In essence, trans and gender variant students' identities are governed by committee, which reduces students' control over their lives, inhibits self-determination, constricts the scope of permissible gender identities, subjects them to incredible degrees of state surveillance, and amplifies the risk that sensitive information about the students will be disclosed more broadly. Some of these barriers may have roots in the ways gender has been discursively framed in order to access harm-reducing legal benefits and carve out space for trans identity and survival. For example, persistent linking of transgender identity with medicalized diagnoses, potentially to harness medical care, may lend credence to a regulatory approach where medical providers and administrators, not the student, have predominant control over the child's identity. Similarly, attempts to essentialize gender identity as an innate mental state in order to assuage concerns about mutability legitimizes the role of mental health professionals in controlling the student's identity at school. This Article intervenes in this regulatory landscape in three ways. First, it examines the prevailing discursive and sociolegal ways of framing gender and gender identity through an analysis of transgender history and activism, medical discourse regarding gender and gender identity, mental health discourse, and law reform efforts and advocacy. Second, it unpacks the many bureaucratic barriers imposed on transgender and gender variant students in schools, tentatively linking those barriers to the discourses of gender identity. Through a detailed analysis of the education policies governing gender identity in each state and each state's largest school district, the Article documents the substantive requirements for living consistently with one's gender identity in school (for example, providing medical documentation v. self-identification) and the different stakeholders enshrined in procedurally assessing students' gender.

Over the past two decades, legal protections for lesbian, gay, and bisexual individuals have dramatically expanded. Simultaneously, meaningful access to reproductive choice for women has been eroded. What accounts for the different trajectories of LGBTQ rights and reproductive rights? This Essay argues that one explanation — or at least partial explanation — for the advance of LGBTQ rights relative to reproductive rights is the differing degree to which individuals have come out about their experiences with sexuality compared to coming out about experiences with unplanned pregnancies. In particular, as catalogued in this Essay, popular media portrayals of lesbian and gay individuals have proliferated, broadening the social and judicial understanding of minority sexualities. Meanwhile, popular media portrayals of women confronting unplanned pregnancies remain relatively sparse and, when they do appear, often inaccurate and unrepresentative. The correlation between positive media port...

Broadly speaking, privacy doctrine suggests that the right to privacy is non-existent once one enters the public realm. Although some scholars contend that privacy ought to exist in public, “public privacy” has been defended largely with reference to other, ancillary values privacy may serve. For instance, public privacy may be necessary to make the freedoms of movement and association meaningful in practice. This Article identifies a new dimension of public privacy, supplementing extant justifications for the right, by arguing that many demands for privacy while in “public” are properly conceptualized as a form of performative, expressive resistance against an ever-pervasive surveillance society. For example, when a person wears a hoodie in public obscuring their identity, they may be engaged in active, expressive opposition to the surveillance regime — communicating a refusal to be surveilled. The same holds true when a person uses online obfuscation techniques to cloak their cybe...

The fight to effectively treat and stop the spread of the human immunodeficiency virus (HIV) has made meaningful progress both in the United States and globally. But within the United States that progress has been uneven across various demographic groups and geographic areas, and has plateaued. While scientific advances have led to the development of medicine capable of both treating and preventing HIV, law and policy dictate who will have ready access to these medicines and other prevention techniques, and who will not. Law and policy also play a crucial role in determining whether HIV will be stigmatized, discouraging people from being tested and treated, or will be identified for what it is—a preventable and treatable disease. To make further progress against HIV, the United States must address healthcare disparities, end the criminalization of HIV, and devote additional resources toward combatting HIV stigma and discrimination.

A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy. This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, as a form of confrontation to authority, is also a direct method of expression. Likewise, efforts to maintain privacy while navigating public space may create an incubator for thought and future speech, and can also serve as direct, expressive resistance to surveillance regimes. As this Article explains, once the First Amendment values of bot...

This article examines legal authority and policy to determine whether transgender students in K-12 schools must be permitted to participate in athletics according to their gender identity, and without any requirement for medical intervention. The articles concludes that such a policy is consistent with legal authority under Title IX and Title VII and, more importantly, best advances the well-being of already vulnerable transgender youth by helping to incorporate and include such students in activities that are critical to physical, social, mental, emotional development, and health. Part II of this article briefly details the history of Title IX with respect to athletics, including the historical justifications for separating the sexes for purposes of athletic competition, and challenges that have been made to that practice. Part III analyzes the case law that has developed under Title IX and other sex-discrimination laws, which has increasingly recognized that discrimination against...

HIV/AIDS should be classified as a per se disability under the Americans with Disablities Act. Such a ruling is justified by the plain language of the act itself, legislative history, administrative regulations, and court precedent. Absent such a ruling, individuals with HIV must demonstrate that they have (1) an mental or physical impairment, (2) that substantially limits (3) a major life activity. While most courts to address the applicability of the ADA to individuals with HIV/AIDS have found that such individuals are disabled because HIV impairs the major life activity of reproduction, such an interpretation leaves open the possibility that courts may refuse to classify those otherwise not interested in or capable of reproduction, arguably including homosexuals, as falling beyond the scope of the ADA's protection.

Where the right to privacy exists, it should be available to all people. If not universally available, then particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This, despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections. This Article unearths disparate outcomes in public disclosure tort cases, and uses the unequal results as a lens to expand our understanding of how constitutional equality principles might be used to rejuvenate beleaguered privacy tort law. Scholars and the Supreme Court have long recognized that the First Amendment applies to the substance of tort law, under a theory that state action is implicated by private tort lawsuits because judges (state act...

Current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the First Amendment’s protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ anti-discrimination protections. But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals, as explained in Professor Carlos Ball’s important new book, The First Amendment and LGBT Equality: A Contentious History. In many ways the First Amendment’s protections for free expression and association operated as what I label “the first queer right.” Decades before the Supreme Court would recognize the importance of equal treatment of same-sex relationships, the Court protected the ability of queer people to espouse explanations of their identities and permitted them leeway to gather together to further explore and elaborate those identities. In this way, the First Amendment served an important incubating func...

Limited legal protections for privacy leave minority communities vulnerable to concrete injuries and violence when their information is exposed. In Privacy at the Margins, Scott Skinner-Thompson highlights why privacy is of acute importance for marginalized groups. He explains how privacy can serve as a form of expressive resistance to government and corporate surveillance regimes - furthering equality goals - and demonstrates why efforts undertaken by vulnerable groups (queer folks, women, and racial and religious minorities) to protect their privacy should be entitled to constitutional protection under the First Amendment and related equality provisions. By examining the ways even limited privacy can enrich and enhance our lives at the margins in material ways, this work shows how privacy can be transformed from a liberal affectation to a legal tool of liberation from oppression.

A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy.

This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, as a form of confrontation to authority, is also a direct method of expression. Likewise, efforts to maintain privacy while navigating public space may create an incubator for thought and future speech, and can also serve as direct, expressive resistance to surveillance regimes.

As this Article explains, once the First Amendment values of both the right to record and the right to privacy are systematically understood, existing doctrine—including the concept of the “heckler’s veto”—can help restore balance between these sometimes-competing forms of “speech,” permitting citizen recording of police and allowing government regulation of certain recordings that breach the privacy shields of other citizens.

Just as a heckler’s suppression of another’s free speech justifies government regulation of the heckler’s speech, the government may limit the ability to record when recording (a form of speech) infringes on and pierces reasonable efforts to maintain privacy (also a form of expression). The heckling framework underscores the idea that liberated and vibrant public space is contingent on a balance between the ability to gather information and maintain privacy in public, while also providing a doctrinally grounded path for adjudicating those interests.

Where the right to privacy exists, it should be available to all people. If not universally available, then particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This, despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.

This Article unearths disparate outcomes in public disclosure tort cases, and uses the unequal results as a lens to expand our understanding of how constitutional equality principles might be used to rejuvenate beleaguered privacy tort law. Scholars and the Supreme Court have long recognized that the First Amendment applies to the substance of tort law, under a theory that state action is implicated by private tort lawsuits because judges (state actors) make the substantive rule of decision and enforce the law. Under this theory, the First Amendment has been used to limit the scope of privacy and defamation torts as infringing on the privacy invader’s speech rights. But as this Article argues, if state action applies to tort law, other constitutional provisions should also bear on the substance of common law torts.

This Article highlights the selective application of constitutional law to tort law. And it uses the unequal effects of prevailing public disclosure tort doctrine to explore whether constitutional equality principles can be used to reform, or nudge, the currently weak protections provided by black letter privacy tort law. By so doing, the Article also foregrounds a doctrinally-sound basis for a broader discussion of how constitutional liberty, due process, and equality norms might influence tort law across a variety of substantive contexts.

Current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the First Amendment’s protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ anti-discrimination protections. But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals, as explained in Professor Carlos Ball’s important new book, The First Amendment and LGBT Equality: A Contentious History. In many ways the First Amendment’s protections for free expression and association operated as what I label “the first queer right.”

Decades before the Supreme Court would recognize the importance of equal treatment of same-sex relationships, the Court protected the ability of queer people to espouse explanations of their identities and permitted them leeway to gather together to further explore and elaborate those identities. In this way, the First Amendment served an important incubating function for the articulation of equality arguments in favor of LGBTQ individuals at the same time it also created space for greater visibility of queer people in American society.

But the First Amendment is “the first queer right” in a second sense. As this review essay argues, the First Amendment facilitated a more robust and wide-ranging articulation of queer identity than the more vaunted equality claims that followed. One unfortunate side effect of transitioning from First Amendment claims to equality-based claims was the narrower, straighter picture of queer people it presented. Like the doctrinal history chronicled by Ball, the narrative history of how LGBTQ rights were framed and conceptualized under the First Amendment is important to contemporary debates about LGBTQ rights because it suggests that the First Amendment may yet have important work to do on behalf of LGBTQ rights — it could still be used as a means to further expand social understandings of sexuality and gender identity, and encourage future contestation of those very same “queer” identities. In other words, the First Amendment, like the meaning of the word “queer” itself, begs for further discursive contestation.

Broadly speaking, privacy doctrine suggests that the right to privacy is non-existent once one enters the public realm. Although some scholars contend that privacy ought to exist in public, “public privacy” has been defended largely with reference to other, ancillary values privacy may serve. For instance, public privacy may be necessary to make the freedoms of movement and association meaningful in practice.

This Article identifies a new dimension of public privacy, supplementing extant justifications for the right, by arguing that many demands for privacy while in “public” are properly conceptualized as a form of performative, expressive resistance against an ever-pervasive surveillance society. For example, when a person wears a hoodie in public obscuring their identity, they may be engaged in active, expressive opposition to the surveillance regime — communicating a refusal to be surveilled. The same holds true when a person uses online obfuscation techniques to cloak their cyber activities.

This Article isolates “performative privacy” as a social practice, and explains how this identification of public, performative privacy may provide doctrinal and discursive solutions to some of our most pressing social controversies.

By demonstrating that functional demands for public privacy are often expressive, this Article helps establish that public privacy is grounded in the First Amendment and covered by its robust protections. Discursively, directly linking public privacy performances with the well-ensconced freedom of expression may help shift societal reaction to such privacy demands from suspicion to embrace. Moreover, to the extent that acts of performative privacy cut across conflicts targeting racial, religious, or sexual minorities (regulation of hoodies, head veils, and gender identity are some examples), performative privacy has the potential to provide a more universal and unifying normative response to these conflicts.

Over the past two decades, legal protections for lesbian, gay, and bisexual individuals have dramatically expanded. Simultaneously, meaningful access to reproductive choice for women has eroded. What accounts for the different trajectories of LGBTQ rights and reproductive rights?

This Piece argues that one explanation — or at least partial explanation — for the advance of LGBTQ rights relative to reproductive rights is the differing degree to which individuals have come out about their experiences with sexuality compared to coming out about experiences with unplanned pregnancies. In particular, as catalogued in this Piece, popular media portrayals of lesbian and gay individuals have proliferated, broadening the social and judicial understanding of minority sexualities. Meanwhile, popular media portrayals of women confronting unplanned pregnancies remain relatively sparse and, when they do appear, are often inaccurate and unrepresentative.

The correlation between positive media portrayals of lesbian and gay individuals and judicial recognition of protections for sexual minorities suggests that in order to halt the erosion of reproductive rights, it will be important to expose society to people exercising their right to abortion on the screen, in the office, and at the kitchen table.

The government regularly outs information concerning people’s sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy — a right to limit the government’s ability to collect and disseminate personal information.

This Article probes informational privacy theory and jurisprudence to better understand the judiciary’s reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy’s ability to promote individual dignity and autonomy, there is a disconnect when courts attempt to translate those theories into workable doctrine. The extant theories are products of Fourth Amendment and decisional privacy law, and bear a more attenuated relationship to informational privacy problems, hindering recognition of the right.

This Article reorients and hones the focus of the purported informational privacy right toward what the Due Process Clause suggests as the right’s two principal and more concrete values: preventing intimate information from serving as the basis for potential discrimination and creating space for the formation of political thought. By so doing, not only is a more precise theory of informational privacy constructed, but instrumentally (and perhaps most importantly), courts will be more apt to recognize a constitutional informational privacy right thereby better insulating individuals from discrimination or marginalization.

This article examines legal authority and policy to determine whether transgender students in K-12 schools must be permitted to participate in athletics according to their gender identity, and without any requirement for medical intervention. The articles concludes that such a policy is consistent with legal authority under Title IX and Title VII and, more importantly, best advances the well-being of already vulnerable transgender youth by helping to incorporate and include such students in activities that are critical to physical, social, mental, emotional development, and health.

Part II of this article briefly details the history of Title IX with respect to athletics, including the historical justifications for separating the sexes for purposes of athletic competition, and challenges that have been made to that practice. Part III analyzes the case law that has developed under Title IX and other sex-discrimination laws, which has increasingly recognized that discrimination against transgender people is a cognizable form of sex discrimination. Part IV delves into the possible justifications for barring transgender student-athletes from participating on the team that matches their gender identity, concluding that the purported concerns about safety and privacy have little basis in fact, particularly when applied to students in primary and secondary school. Indeed, for that reason, school districts and athletic associations across the country have begun adopting policies — many of which are described in Part IV, as examples of “best practices” — that allow transgender students to participate on athletic teams based on their gender identity. Finally, Part V looks at the developmental benefits of participation in sports, concluding that equal access to athletic competition is critically important for the well-being of transgender young people.