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.