Wednesday, January 12, 2011

Cross-Gender Strip Searches Part 3: Implications for DADT

By Mike Dorf
(NB: This post is expanded from its original form in response to a comment.)


In this, my third and final post on the Ninth Circuit en banc decision in Byrd v. Maricopa Cty Sheriff's Dep't, I consider whether the privacy interests that the court found sufficient in that case to declare non-emergency cross-gender strip-searches of pre-trial detainees unconstitutional under the Fourth Amendment would also justify the now-defunct Don't Ask Don't Tell (DADT) policy (which has not been phased out yet).


In an earlier post on DADT, I argued that the privacy rationale for the policy--members of the armed services supposedly don't want to be ogled in the shower by a person who could be sexually attracted to them--did not withstand serious scrutiny.  Here I want to ask what will almost certainly turn out to be a purely hypothetical question: If DADT were somehow to come before a court in the 9th Circuit, would Byrd strengthen the anti-ogling rationale?  I think the honest answer has to be that yes, Byrd does make the anti-ogling argument somewhat stronger, though the case would certainly be distinguishable in a challenge to DADT.  Here are four distinctions:


1) As I discussed in yesterday's post, the decision in Byrd--considered in tandem with the Supreme Court's 1977 ruling in Dothard v. Rawlinson--arguably implies that female guards could be excluded from positions in which conducting strip-searches is a substantial portion of the job description.  But even if so, this hardly amounts to a blanket exclusion of all women from the job of jail or prison guard, or even from the job of jail or prison guard in facilities housing male inmates.  So DADT--which is a blanket exclusion of out gays and lesbians from the armed forces--has/had a much greater impact on gays and lesbians than any exclusion of women from performing strip-searches would have.


2) Forbidding female guards from strip-searching male inmates absent an emergency is well targeted to address the interest in preserving the privacy interests of those inmates, insofar as they invoke social norms that create more embarrassment when one exposes one's body to persons of the opposite sex than to persons of the same sex (in a non-sexual and non-medical context).  By contrast, DADT was/is poorly targeted to addressing the ogling fear because it doesn't prevent secret ogling by closeted service members.  Indeed, one might think that DADT exacerbated the concern because it made service members who are concerned about ogling worry that any of the other people in their unit could be an ogler.  That risk will remain after the abolition of DADT, because some gay and lesbian service members will likely remain closeted, but it will at least be reduced.


3) There is what seems to me to be a normative difference between the two situations.  Suppose that we control for the distinctions identified above.  Imagine that a pre-trial detainee or prison inmate objects to being strip-searched by a guard who is openly gay but professional in the way in which he conducts the strip-search.  Would we be prepared to say that for the state to permit openly gay guards to perform strip-searches in a jail or prison violates the Fourth Amendment because such a search is, absent an emergency, "unreasonable?"  I don't think so--and the reason is that the stated concern for privacy from observation by gay persons of the same sex is tied up in negative stereotypes of gay people, in a way that a concern for privacy from observation by persons of the opposite sex is not.  Admittedly, that's a statement about social meaning which I'm simply positing here, but I think it is broadly true.  In the U.S., from very early in life, children are sex-segregated with respect to nudity, and the practice continues through adulthood. This sends an unmistakable message that cross-gender nudity is embarrassing. There is simply nothing comparable with respect to sexual orientation. Thus, the social meaning of wanting to shield one's naked body from strangers (or non-intimate acquaintances) of the opposite sex is simply modesty, whereas the social meaning of wanting to shield one's body from gay people is a kind of revulsion that bespeaks prejudice.


4) To be sure, it can fairly be said that a strip-search is not a matter of mere "observation."  That's fair.  But what it shows, first, is that Byrd has very limited implications for DADT: after all, the privacy concern voiced w/r/t DADT concerned mere observation, not touching of genitals.  Moreover, I continue to think that the Fourth Amendment would not be interpreted to bar openly gay prison guards from conducting non-emergency strip-searches on the grounds of privacy.  I think that any guard who conducted a strip-search in a sexualized manner would thereby violate the rights of the detainee or inmate.  And it's probably the case that the strip-searchee is more likely to perceive the strip-search as sexualized if he knows that the guard conducting it is gay.  But tragedies like the Abner Louima case show that male detainees are at risk of sexualized abuse from their captors regardless of the captors' orientation.

14 comments:

Michael Ejercito said...

At the very least, Byrd should justify assignment on the basis of sexual orientation if the purpose is to protect privacy.

Hashim said...

Mike,

I don't take you to be disputing that, as an empirical matter, straight men would rather be strip-searched by a woman than a gay man, holding all else equal. I would bet pretty heavily on that empirical proposition.

Instead, as you candidly admit, you're asserting that the (greater) desire not to be strip-searched by a same-sex gay guard is actually based on negative stereotypes, whereas the (lesser) desire not to be strip-searched by an opposite-sex straight guard is truly based on privacy concerns. But why exactly do you think the privacy concern in the latter context does not in fact motivate individuals in the former context as well? What difference between the two situations leads you to attribute bias only to the former? I have to say I find that rather unlikely.

Hash

Michael C. Dorf said...

The foregoing comments were written before I edited the post in response to Hash's point. I confess that I'm not sure what kind of assignments Michael Ejercito is referring to in his comment.

Hashim said...

Mike,

On your fourth distinction, there's no question that there's a greater interest in contact privacy than observational privacy. That said, since RBG certainly didn't think it would be ok for VMI to force women to share bathrooms with men notwithstanding the importance of the adversative method, and since i'm quite sure women would immediately sue if the military forced them to share showers with men (even if protected by guards to avoid any chance of unlawful contact), we know that even observational privacy is a legitimate interest when it comes to gender. Accordingly, I think one of your other distinctions has to supply the reason why observational privacy is insufficient w/r/t sexual orientation.

On your first two distinctions, I agree as a factual matter, but not a legal matter. As for the first, the degree of the burden imposed under a suspect classification isn't relevant to the amt of tailoring required (under any level of EP scrutiny): both major and minor gender-based classifications get identical intermediate scrutiny, and a minor gender-based classification still gets at least as searching, if not substantially more searching, review than a serious orientation-based classification (depending on the standard adopted by Lawrence). As for the second, the underinclusiveness of DADT is hardly troubling, and especially not under the rational basis review that I think appropriate: you can't possibly believe that DADT should have to impose a flat ban on even closeted gays, notwithstanding the greater difficulties and burdens with such a ban, simply to vindicate fully the observational privacy interest of straight soldiers.

Hashim said...

Finally, we'll have to agree to disagree on the third distinction. For what it's worth, it seems to me that the historical absence of gay/straight segregation starting from the same age as male/female segregation is largely attributable to the historical absence of large numbers of openly gay children who could be segregated and the impracticability of creating four sets of bathrooms everywhere, two of which would be used by a small percentage of the population (especially w/r/t children). I hardly think those practical difficulties are a telling indication that the desire not to be strip-searched by a same-sex gay guard is actually motivated by bias, as opposed to the same privacy interests at play w/r/t opposite-sex straight guards. And, ultimately, while I agree with your prediction of what the Ninth Circuit would hold about gay guards, I think that distinction is absurd: I think it would come as quite a shock to most American men that they have a greater privacy interest under the 4A's reasonableness standard w/r/t being strip searched by a woman than by a gay man.

Hash

Michael C. Dorf said...

Hash,

I'm happy to agree to disagree about nearly all of this, but I do think you raise a doctrinal point that warrants further consideration--namely, you say that the scrutiny applicable to a heightened-scrutiny-triggering classification does not vary based on whether the classification is used to impose a major or minor burden. I think that's probably true as a formal matter but perhaps false as a matter of the actual pattern of decided cases: At least that's what Justices Marshall and Stevens each contended at various points.

But even if one takes the formal doctrine at face value, the burdensomeness of the government action based on that classification--exclusion from a narrow set of tasks versus complete exclusion from service--is surely relevant to whether the classification is narrowly tailored or substantially related (under classic intermediate scrutiny) to the asserted interest.

Now, you want to say that all of this is irrelevant to classifications based on sexual orientation because they are only subject to rational basis scrutiny. But Romer and Lawrence can readily be understood to apply at least covert heightened scrutiny to sexual orientation classifications and, more importantly, there is what I regard as a very sound basis for applying heightened scrutiny to sexual orientation classifications, either as a species of sex discrimination or in its own right--as spelled out by Judge Walker in Perry and in a vast literature on the subject. Perhaps we'll have to agree to disagree on that as well.

Michael Ejercito said...

I confess that I'm not sure what kind of assignments Michael Ejercito is referring to in his comment.
The assignments to which I was referring was duty and quartering assignments.

Michael Ejercito said...

But Romer and Lawrence can readily be understood to apply at least covert heightened scrutiny to sexual orientation classifications and, more importantly, there is what I regard as a very sound basis for applying heightened scrutiny to sexual orientation classifications, either as a species of sex discrimination or in its own right--as spelled out by Judge Walker in Perry and in a vast literature on the subject.
What would be this sound basis?

A polygamous orientation did not warrant heightened scrutiny, from what I read from the Supreme Court's Mormon anti-polygamy decisions.

Hashim said...

Mike,

I do think I'm right as a formal matter of doctrine and that any deviations in practice that JPS and TM have identified are cases where the doctrine was erroneously applied, rather than justification for revisiting the doctrine itself. Trying to assess fit is already hard enough for courts; it'd be infinitely worse if the degree of fit changed depending on the perceived burden imposed by the classification. Although JPS and SGB probably would love the discretion that gave them, I think it's quite wise that the Ct has never expressly taken that step, regardless of whether they've implicitly applied it in error.

That said, you're of course right that the nature of the burden imposed will inform whether the requisite fit exists, since the burden can be over- or under-inclusive given the interest asserted. Again, however, I don't see how that helps your case for DADT w/r/t an observational privacy interest, unless you're taking the position that the military was either required to build separate showers and bunks for gays or ban closeted gays as well.

I don't dispute that your reading of Romer/Lawrence is more than reasonable. But until the Ct clearly adopts that fateful and misguided position, I think it's also reasonable to read Romer/Lawrence narrowly as bias/privacy cases involving, at most, rational basis with teeth.

Finally, as an aside, I don't think the bootstrapping orientation as gender discrimination argument works, unless you're also willing to say that Congress has unwittingly banned orientation discrimination in all its sex discrimination statutes. I understand why the argument works as a purely logical matter a la Loving, but neither the 14A's enacters, nor Congress, nor the public are mathematicians or logicians. And no one reasonably understands a ban on sex discrimination to encompass a ban on orientation discrimination.

Hash

Michael Ejercito said...

Again, however, I don't see how that helps your case for DADT w/r/t an observational privacy interest, unless you're taking the position that the military was either required to build separate showers and bunks for gays or ban closeted gays as well.

The military could build separate showers and bunks for gays. In a military context, the scope of due process and equal protection is lessened.

The First Circuit in Cook v. Gates interpreted Lawrence as requiring a balance between a protected liberty interest and the government's interest.

Michael C. Dorf said...

Hash

Although we're not in agreement, I feel like we're coming to closure. Here's my final thought: On the notion whether sexual orientation discrimination is sex discrimination, I'd observe--as many other people have observed before me--that the point is not simply a matter of formal logic: Pace Loving, discrimination on the basis of the X of one's romantic partner is discrimination on the basis of X. Rather, I find the analogy persuasive because sexual orientation discrimination violates the core norm of the sex discrimination cases: it stereotypes based on traditional sex roles, not by treating women as inferior but by assuming that people's decisions about with whom to be intimate are prescribed by their sex. Stereotypes of gay men as effeminate and of lesbians as butch show how sex-role stereotyping is part and parcel of sexual orientation discrimination.

Of course I don't contend that when Congress enacted laws barring sex discrimination it consciously intended to bar sexual orientation discrimination as well. But for me that is not the full measure of a law's meaning.

Thanks for the thoughtful comments and for calling my attention to the case in the first place.

Christina said...

I arrived at this article based on my reading of david cohen's paper at the harvard law review on sex segregation and making men "Men" and keeping Women down, in reference to making men more "masculine" in contrast to females and how segregation plays a role in this, the alabama case as well as homosexuality and assumed heterosexuality of males who are assumed to be aggressive and tend to predators is a very excellent article to read.

I believe that when you say privacy interest relating to cross gender nudity, it is part of what he is saying, that there is a while society conforming movement that influenced decisions such as that, and your argument does not really hold water in the sense that Hashim is noting that many folks who are against being queer would correctly indicate 4 bathrooms for instance , for instance a gay man may not be as "masculine" as a heterosexual male in the sense that a gay man can be portrayed as more feminine or soft in the sense of his style and preference.

Doug said...

"Thus, the social meaning of wanting to shield one's naked body from strangers (or non-intimate acquaintances) of the opposite sex is simply modesty, whereas the social meaning of wanting to shield one's body from gay people is a kind of revulsion that bespeaks prejudice."

So why does an interest in modesty override equality under the law? I agree that it's a strong cultural norm but that's just not a great legal argument. Would very strong safeguards against abuse not be a better approach (it's not like there's none now)?

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