Silver Flight, Associate Member, University of Cincinnati Law Review
Over the past few years, numerous states have introduced or even passed bills that harm transgender youth. Several bills, such as Ohio’s House Bill 454, prohibit gender-affirming medical care for transgender youth. House Bill 454 would also require school counselors and staff to tell a student’s parents if that student is transgender or questioning their gender. Because many students’ families are not accepting of transgender identities, and transgender youth face disproportionate mental health concerns, this bill’s forced disclosure provision would prohibit students from feeling safe talking to adults or counselors at school and would put them at risk.
This article will give a brief overview of the right to privacy, case law involving sexual orientation or gender identity privacy, and whether minors have a right to privacy against disclosure of their sexual orientation or gender identity to their parents. Finally, I will argue that Ohio House Bill 454’s requirement that school staff out transgender students to their parents should be held as a violation of the students’ privacy rights.
II. Privacy Rights
In Griswold v. Connecticut, the Supreme Court held that there are zones of privacy from government interference, such as the marital bedroom. It later extended the right of privacy to zones such as “nonmarital relationships, a woman’s decision to have an abortion, and a family’s living arrangements.” In Whalen v. Roe, the Court identified two interests in privacy rights: “the individual interest in avoiding disclosure of personal matters, and . . . independence in making certain kinds of important decisions.” Outing a transgender student to their parents implicates both of these privacy interests, because it is a disclosure of a personal matter and it takes away the student’s autonomy in making the important decision of when and how to come out to their parents.
The Supreme Court has not yet addressed privacy in relation to sexual orientation or gender identity. In Lawrence v. Texas, the Court held that a law prohibiting sexual conduct between two persons of the same sex was unconstitutional because it violated the right to liberty under the Due Process Clause, and it emphasized that “[t]he present case does not involve minors.” In a case predating Lawrence, the Third Circuit held that “sexual orientation was an intimate aspect of . . . personality entitled to privacy protection under Whalen.” In that case, a police officer had threatened to disclose an 18-year-old’s sexual orientation to his grandfather. The Second Circuit has held that there is a right to confidentiality regarding transgender status. Similarly, several federal district courts have held that there is a right to privacy against forced disclosure of transgender status via incorrect gender markers on identification documents.
Privacy rights of minors are somewhat unclear, and only three circuit courts have addressed minors’ informational privacy rights. The Third Circuit held that “[t]he scope of the right to privacy is defined by the Constitution and may not be restricted by a state legislature or by state education officials.” Additionally, the court held that “[t]he constitutional right to privacy extends to minors.” The Ninth Circuit also recognized a privacy right held by minors. Both circuits applied balancing tests like the one used for violations of adult privacy interests. The Tenth Circuit, in contrast, held that minors had a right to informational privacy, but that “the state ha[d] a lower burden to meet” to justify its intrusion.
III. Case Law on Schools Outing Youth to Their Parents
In the 2007 district court case Nguon v. Wolf, a high school student was suspended for inappropriate public displays of affection with her girlfriend, and the school outed her as gay to her mother. The court recognized that the student “had a Constitutionally protected privacy right with respect to disclosure of her sexual orientation.” Although she was out at school, she was not out at home and had not brought her girlfriend home to visit. Therefore, she “had a reasonable expectation of privacy concerning her sexual orientation at home.” However, the court noted that the right to informational privacy was subject a balancing analysis against the interests of the school.
In this case, the court held that the school principal was justified in telling the student’s mother that she was kissing another girl, because of “a compelling state interest in the disclosure of the objective facts constituting and providing the context for the discipline imposed.” The court noted that if the student had not engaged in inappropriate public displays of affection, the principal would not have told her parents that she was gay, and that by getting suspended, she “in effect injected the nature of that conduct into the home.”
In Wyatt v. Kilgore Independent School District, softball coaches informed a 16-year-old’s mother that the student was dating an 18-year-old woman. The district court held that there was a Constitutional right to privacy against unauthorized disclosure of one’s sexual orientation. Because there was a question of fact as to the motivations of the coaches in telling the student’s mother—whether it was for the student’s safety or in retaliation for allegedly spreading a rumor that the 18-year-old was a female coach’s ex-girlfriend—the court denied the defendants’ motion for summary judgment.
On interlocutory appeal, however, the Fifth Circuit held that there was no clearly established law granting students a privacy right against school officials discussing “matters relating to the sexual activity of the student” with the student’s parent. Therefore, the defendants were entitled to qualified immunity from the federal claims against them.
IV. Students Should Have a Right to Privacy
When deciding whether students have a right to privacy, courts must weigh the interests of the student against the interest of the school. However, it is essential that courts understand and take seriously what is at stake in a bill like Ohio House Bill 454. The bill requires school staff, and even counselors, to report to a student’s parents if that student’s “perception of his or her gender is inconsistent with her or her sex.” This means that if a transgender student comes from a home with unsupportive parents and wants to talk to another adult or school counselor, they will not be able to without risking that the school will out them to their parents, putting them at risk for problems at home, sometimes even being kicked out of their homes, and worsening mental health.
Transgender youth are “at increased risk of experiencing depressed mood, seriously considering suicide, and attempting suicide compared with cisgender lesbian, gay, bisexual, queer, and questioning youth.” In 2020, the Trevor project reported that “46% of LGBTQ youth report they wanted psychological or emotional counseling from a mental health professional but were unable to receive it in the past 12 months.” The same report stated that “29% of LGBTQ youth have experienced homelessness, been kicked out, or run away,” with 38% of those being transgender or nonbinary. It is essential that these students have access to school counselors and other adults without fear that they will be outed to their parents. Having a support network at school while dealing with an unsupportive family at home can be lifesaving.
In Nguon v. Wolf, the district court recognized that students have a right to privacy against schools informing their parents of their sexual orientation. Some scholars argue that the court gave too much weight to the school’s interests and not enough to the decisional autonomy of students. The principal in that case did not need to disclose that the student was gay in order to explain to her mother that she had been suspended for inappropriate public displays of affection. It was additional information that the student did not consent to sharing and that the mother did not ask for.
In Wyatt v. Fletcher, the Fifth Circuit used language suggesting that “a parent’s interest in knowing their child’s sexual orientation is greater than the child’s interest in having autonomy over that identity.” This is likely reasoning behind the portion of Ohio House Bill 454 requiring that school staff tell parents if their students are transgender. However, this balancing of interests assumes that parents will act in the best interest of their child. As shown above, that is not always the case, especially for transgender youth. Again, too much weight is given to the interest of the parent, and not enough weight is given to the minor’s informational and decisional privacy.
Students should have a right to privacy against forced disclosure of their gender identity. In a world where transgender students face disproportionate mental health struggles, lack of family support, and housing instability, disclosing a transgender student’s gender identity to their parents without their consent can have devastating consequences. However, having access to safe and confidential counseling at school can be lifesaving. Therefore, it is essential that Ohio House Bill 454 does not become law.
 Serena Smith, A Rundown of the Most Disturbing New Anti-LGBTQ Bills in the US, Dazed (Feb. 22, 2022), https://www.dazeddigital.com/politics/article/55520/1/a-rundown-of-the-most-shocking-disturbing-anti-lgbtq-bills-in-the-us (highlighting proposed bills in Florida, Utah, Alabama, and Kansas); Meredith Deliso, “Catastrophic” Number of State Bills Target Transgender Youth, Advocates Say, ABC News (Mar. 7, 2021), https://abcnews.go.com/US/catastrophic-number-state-bills-target-transgender-youth-advocates/story?id=76138305 (“[a]t least two dozen” bills covering sports bans, and sixteen states that had considered or were considering prohibiting gender-affirming health care for trans youth); Britni de la Cretaz, Hate Groups Are Making It Easier Than Ever to Introduce Anti-Trans Bills, them. (Feb. 25, 2021), https://www.them.us/story/hate-groups-easily-introducing-anti-trans-bills (writing that hate groups are making templates for anti-trans legislation).
 Kerith J. Conron, Kathryn K. O’Neill & Luis A. Vasquez, Prohibiting Gender-Affirming Medical Care for Youth, Williams Institute (April 2021), https://williamsinstitute.law.ucla.edu/publications/bans-trans-youth-health-care/ (covering 21 states that have introduced bills denying gender-affirming medical care to transgender youth); Arkansas passed a bill prohibiting gender-affirming care for transgender youth, but it was halted by federal judge who issued a preliminary injunction. The case is ongoing in the 8th Circuit Court of Appeals. Orion Rummler, Courts Block Laws Targeting Transgender Children in Arkansas and West Virginia, The 19th (July 21, 2021), https://19thnews.org/2021/07/judge-blocks-arkansas-law-criminalizing-gender-affirming-care-for-trans-kids/; Brandt et al v. Rutledge et al, ACLU https://www.aclu.org/cases/brandt-et-al-v-rutledge-et-al (last updated Feb. 14, 2022) (linking to legal documents for the ongoing case).
 H.B. 454, 134th Gen. Assemb., Reg. Sess., at 9 (Oh. 2021) (“No nurse, counselor, teacher, principal, or other official or staff at a public or private school shall do either of the following: (A) Encourage or coerce a minor to withhold from the minor’s perception of his or her gender is inconsistent with her or her sex; (B) Withhold from a minor’s parent or legal guardian information related to the minor’s perception that his or her gender is inconsistent with his or her sex.”) https://ohiohouse.gov/legislation/134/hb454. This bill is in committee and had its first hearing on Feb. 17, 2022.
 Marla E. Eisenberg et al., Risk and Protective Factors in the Lives of Transgender/Gender Nonconforming Adolescents, 61 J. Adolescent Health 521, 524 (2017) (noting that over 60% of transgender or gender non-conforming (TGNC) youth reported having considered suicide and almost one in three reported making an attempt; additionally, TGNC youth had less familial support than cisgender students); Jessica N. Fish et al., “I’m Kinda Stuck at Home With Unsupportive Parents Right Now”: LGBTQ Youths’ Experiences With COVID-19 and the Importance of Online Support, 67 J. Adolescent Health 450, 452 (2020) (showing that LGBTQ youth struggled with mental health while being stuck at home with unsupportive family members during the pandemic; some were not able to use their chosen names and pronouns).
 Griswold v. Connecticut, 381 U.S. 479, 485 (1965).
 Evan Ettinghoff, Outed at School: Student Privacy Rights and Preventing Unwanted Disclosures of Sexual Orientation, 47 Loy. L.A.L. Rev. 579, 592 (2014).
 Whalen v. Roe, 429 U.S. 589, 599-600 (1977); Ettinghoff, supra note 6, at 592.
 Lawrence v. Texas, 539 U.S. 558, 578 (2003).
 Sterling v. Borough of Minersville, 232 F.3d 190, 196 (3d Cir. 2000).
 The 18-year-old committed suicide as a result of the threatened disclosure.
 Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999).
 Ray v. McCloud, 507 F. Supp. 3d 925, 932 (S.D. Ohio 2020); Gonzalez v. Nevares, 305 F. Supp. 3d 327, 333 (D.P.R. 2018).
 C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 178 (3d Cir. 2005) (This case involved a survey given out at school, and the court held that there was no violation of privacy because the information in the survey was “safeguarded and released only in the aggregate with no way to tie a student to his or her responses.” Id. at 190.).
 Id. at 179.
 Planned Parenthood of S. Arizona v. Lawall, 307 F.3d 783 (9th Cir. 2002) (holding that judicial by-pass provision of an abortion law sufficiently protected minors’ privacy interests).
 Adam J. Kretz, The Right to Sexual Orientation Privacy: Strengthening Protections for Minors Who Are Outed in Schools, 42 J.L. & Educ. 381, 396 (2013).
 Caitlin M. Cullitan, Please Don’t Tell My Mom! A Minor’s Right to Informational Privacy, 40 J. L. Educ. 417, 428 (2011).
 Nguon v. Wolf, 517 F. Supp. 2d 1177, 1192 (C.D. Cal. 2007).
 Id. at 1191.
 Id. at 1195.
 Wyatt v. Kilgore Indep. Sch. Dist., No. 6:10-CV-674, 2011 WL 6016467, at *1 (E.D. Tex. Nov. 30, 2011), rev’d in part, vacated in part sub nom. Wyatt v. Fletcher, 718 F.3d 496 (5th Cir. 2013).
 Id. at *4.
 Id. at *8.
 Wyatt v. Fletcher, 718 F.3d 496, 499 (5th Cir. 2013).
 Id. (“Under the Fifth Circuit standard, the doctrine of qualified immunity protects government officials from civil damages liability when they reasonably could have believed that their conduct was not barred by law, and immunity is not denied unless existing precedent places the constitutional question beyond debate.” Id. at 503.)
 H.B. 454, 134th Gen. Assemb., Reg. Sess., at 9 (Oh. 2021).
 Cullitan, supra note 17, at 440 (“According to The National Gay and Lesbian Task Force, fifty percent of gay minors receive a negative reaction from their families for coming out, and twenty-six percent are kicked out of their homes.”).
 Myeshia Price-Feeney, Amy E. Green & Samuel Dorison, Understanding the Mental Health of Transgender and Nonbinary Youth, 66 J. Adolescent Health 684, 684 (2020).
 Nguon v. Wolf, 517 F. Supp. 2d 1177 (C.D. Cal. 2007).
 Kretz, supra note 16, at 404; Aisha Schafer, Quiet Sabotage of the Queer Child: Why the Law Must Be Reframed to Appreciate the Dangers of Outing Gay Youth, 58 Howard L.J. 597, 613 (2015).
 Schafer, supra note 34, at 614.
 Wyatt v. Fletcher, 718 F.3d 496 (5th Cir. 2013).
 Schafer, supra note 34, at 620.