The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


No Clearly Established Right Not to Have Gov't Disclose Your Gender Identity to Your Spouse (+ Some Others)


From Judge Damon Leichty's opinion Tuesday in Doe v. Gray (N.D. Ind.), combined with an earlier opinion (to which the new one refers):

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….

Officials are shielded [by qualified immunity] from civil liability "'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" … 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 (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." …

John Doe does not cite to any closely analogous cases to show that a Fourteenth Amendment right to keep his … gender identity private from disclosure to his spouse, his spouse's children, or foster parents by state authorities was clearly established…. Knowledge that the disclosure of medical information in some circumstances might be unconstitutional is simply not enough to show that Detective Gray and Case Manager Purtee would know, or should have known, that what they disclosed to these individuals under these circumstances was unconstitutional…. John Doe and A.B. have not met their burden to prove that existing precedent placed the constitutional question beyond debate. Detective Gray and Case Manager Purtee are accordingly entitled to qualified immunity.

Here's the backstory behind the incident, which stemmed from an arrest of Doe and Doe's wife, A.B., and which apparently explains how Detective Gray learned of Doe's gender identity:

John Doe and A.B.'s claims arise from their February 7, 2018 arrests for neglect of a dependent and non-support of a child and the subsequent investigation. John Doe is a transgender male who was born female. John Doe and A.B. are married. On February 1, 2018, Detective Gray and Case Manager Purtee interviewed R.M. [age 17] after notification that A.B. (his biological mother) and John Doe (his stepfather who is neither R.M.'s biological nor adoptive parent) abandoned him.

During this interview, R.M. disclosed that A.B. and John Doe kicked R.M. out of their home because R.M. knew his sister snuck out one evening. John Doe told him not to come home in a phone call. This is not the first time John Doe and A.B. kicked R.M. out of the house. R.M. stayed at the home of Suzanne Brewer from January 22, 2018 until after John Doe and A.B.'s arrests on February 7, 2018…. R.M. told Detective Gray and Case Manager Purtee that he did not get along with John Doe because he knew things about John Doe that John Doe wanted to be kept secret and R.M. believed John Doe was molesting R.M.'s sisters…. [At a later interview,] R.M. spoke more about his knowledge of John Doe's previous name, biological sex, and his concerns about John Doe abusing his sisters….

After John Doe and A.B.'s arrests, Case Manager Purtee took custody of the three minor children. Case Manager Purtee contacted April Moore, A.B.'s sister, to inquire about custody when Case Manager Purtee allegedly stated "you know she is a girl right?"—or, at least as plaintiffs allege, she disclosed John Doe's "[gender identity]." Ms. Moore had no prior knowledge of John Doe's … gender identity. Case Manager Purtee dropped off two children to Tracy Patrick, a foster parent, and disclosed John Doe's [gender identity] to her. While visiting R.M. and J.M. (A.B.'s daughter) at Ms. Brewer's house, Case Manager Purtee also allegedly disclosed John Doe's [gender identity] to J.M. and Ms. Brewer.

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 [gender identity]. 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 court concluded there was probable cause for the arrest:

Based on this record, Detective Gray knew (1) R.M. had previously been kicked out of the house by his parents; (2) R.M. got in trouble and was told on the phone by John Doe to not come home; (3) John Doe told R.M. that he had not changed and should continue staying at Ms. Brewer's house; (4) John Doe told R.M. to retrieve his stuff from their home; (5) A.B. said whatever John Doe said goes; (5) John Doe and A.B. never provided financial support to R.M. or Ms. Brewer, and dropped food off once; (6) A.B. told R.M. to come home and get on the couch because he was grounded; (6) R.M. was living at Ms. Brewer's house from January 22, 2018 to February 7, 2018; and (7) Ms. Brewer confirmed a majority of the facts R.M. disclosed. The totality of the circumstances … proves sufficient to warrant a prudent officer in believing that John Doe and A.B. had committed or were committing neglect of a dependent and non-support of a child….