Outward

How Nixon and Rehnquist Paved the Way for Transgender Rights

President Richard Nixon with edited transcripts of White House conversations, April 29, 1974.

Public domain

In 1974, in the wake of the Watergate scandal, Congress passed and President Gerald Ford signed the Presidential Recordings and Materials Preservation Act. Document preservation generally doesn’t engender strong passions, but the litigation that ensued was far from mundane, and it has a direct bearing on transgender rights and the legality of North Carolina’s misguided House Bill 2.

The act empowered the administrator of general services to screen documents and recordings made during Richard Nixon’s presidency and preserve those that were not personal or private in nature. Nixon challenged the act’s constitutionality all the way to the Supreme Court in a case styled Nixon v. Administrator of General Services.

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In part, Nixon believed that the act violated his personal constitutional right to privacy because it permitted the government to collect, review, and potentially publicly disseminate his personal correspondence and thoughts. According to Nixon, such documents included “personal notes from his daughters, private correspondence with friends,” and “most private of all—tape recordings of family conversations and of personal and political thoughts.”

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Nixon lost. But while the Supreme Court found that the act properly balanced Nixon’s privacy concerns with the public’s interest in subjecting presidential materials to archival screening, the court nonetheless acknowledged that Nixon—even as a public official (indeed, the most public official)—retained some “constitutionally protected privacy rights in matters of personal life.” This right to limit the government’s ability to disclose one’s personal information has become known as the right to “informational privacy.”

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Two justices—Chief Justice Warren Burger and then-Associate Justice William Rehnquist, both of whom were appointed to the court by Nixon—went even further, dissenting from the court’s conclusion that the act didn’t violate Nixon’s constitutional privacy rights.

According to Burger, privacy interests over intimate conversations, communications with a physician, and family matters were of the “highest order.” As such, “[f]orced disclosure of private information, even to Government officials, is by no means sanctioned by this Court’s decisions, except for the most compelling reasons.” While less robust in its discussion of Nixon’s privacy claim, Rehnquist’s dissent echoed similar concerns regarding the extent to which Nixon’s “purely private papers” would be retained by the government.

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Since the Nixon decision in 1977, the right to informational privacy has taken deeper root in American jurisprudence. While far from uniform, courts have begun to cement the view that the Due Process Clause of the Constitution limits the government’s ability to disseminate our sensitive, intimate information—including sexual and medical information. For example, federal courts have held that there is a “fundamental right of privacy in one’s sexual life,” that there is a “clearly established ‘substantial’ right in the confidentiality of medical information,” and that one’s transgender status can be of an “excruciatingly private and intimate nature.”

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And it is on that basis that the American Civil Liberties Union and Lambda Legal have challenged North Carolina’s House Bill 2, which mandates that schools and public agencies require public restrooms to be used by only those whose “biological sex” corresponds with the sex of the restroom. In other words, unless a transgender person has had the gender marker on their birth certificate corrected (something that in North Carolina can only be accomplished if the individual has undergone “sex reassignment surgery”), they must use the restroom corresponding to their sex assigned at birth, even if that bathroom does not correspond to the person’s outward gender expression. Every time they do so, they will be outed as transgender, exposing themselves to potential violence.

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According to the ACLU/Lambda Legal lawsuit, the “[s]ubstantive protections of the Due Process Clause include the right to avoid disclosure of sensitive, personal information.” House Bill 2 “requires the disclosure of highly personal information regarding transgender people to each person who sees them using a restroom or other facility inconsistent with their gender identity or gender expression.” That is to say, House Bill 2 violates the right to informational privacy acknowledged (at least in broad strokes) by the Supreme Court in Nixon.

This is not, of course, to suggest that Richard Nixon was the most enlightened person when it came to issues of sexuality, or that Justices Rehnquist and Burger were progressive, pro-civil rights jurists. At many turns, they were not. In fact, Rehnquist dissented in Roe v. Wade, questioning whether the Texas abortion regulation implicated a right to privacy.

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Instead, it is to foreground that the right to informational privacy has a long, ideologically diverse history—the right to privacy being asserted by transgender individuals is not new or “special.” It also serves to highlight a funny thing about rights: No matter your politics, when you or those you care about are jeopardized, rights you may not have recognized previously are suddenly indispensable. Suddenly fundamental.

As Rehnquist observed in his dissent in Nixon, “The concept of ‘privacy’ can be a coat of many colors.” And if Nixon could unironically assert such a right in the fallout from his own administration’s abusive snooping of political opponents—and have that right at least acknowledged, even if not vindicated, by the Supreme Court—then certainly the constitutional right to privacy extends to protect those transgender individuals seeking to simply live in peace and safety. 

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