Erasing Transgender Public Figures' Former Identity with the Right to Be Forgotten.
TABLE OF CONTENTS I. INTRODUCTION 260 II. BACKGROUND 263 A. The Transgender Identity and Privacy Rights 263 B. Privacy Law: Informational Privacy Rights Versus the First Amendment in the Tort of Public Disclosure 266 1. Limiting the Public Disclosure Tort: The Newsworthiness Exception 269 2. The Newsworthiness Exception and Public Figures 271 3. "Testing" the Newsworthiness of Public Figures' Personal Information 271 C. The European Union's Right to Be Forgotten 275 III. PROTECTING TRANSGENDER PUBLIC FIGURES' PRIVACY RIGHTS WITH THE RTBF 280 A. Privacy Law: No Recourse for Transgender Public Figures 280 B. Implementing the RTBF: How Feasible is an American Right of Erasure? 283 IV. CONCLUSION 286 I. INTRODUCTION
The name Zeke Smith may sound familiar: you might know him as the first transgender contestant on the popular CBS show Survivor. Less well known are the facts that he joined the show partly out of desire to validate his gender identity and that a fellow contestant torpedoed this desire by outing him as transgender on live television.
Zeke Smith began watching Survivor while coping with depression during his transition. (1) Transitioning was difficult for Zeke because, in his words, "the world doesn't treat trans people with much kindness," and it was only when his transgender identity was no longer widely known that he began to connect with others "in a meaningful way." (2) Zeke kept his gender identity a secret largely because "if [he] let anyone too close, they'd smell [his] stench and not want to be [his] friend anymore." (3)
It was not until Zeke became a Survivor contestant that he felt confident in his gender identity: "the moment I put...the official Survivor player uniform on...my confidence became real...I'd conquer whatever the game might throw at me. I was free." (4) Zeke decided "[not to] discuss [my] trans status...because I wanted the show to desire me as a game player...not as 'The First Trans Survivor Player.'" (5) But Zeke's costar, Jeff Varner, annihilated Zeke's newfound confidence by exposing him as transgender on live television by asking: "Why haven't you told anyone you're transgender?" (6) Zeke said he sat there "in a trance," feeling nothing but utter pain and shock. (7) On being outed, Zeke said:
I'm not wild about [viewers] knowing that I'm trans. An odd sentiment, I realize, for someone who signed up for two seasons of the CBS reality giant, Survivor...when I got on a plane to Fiji last March, I expected to get voted out...I'd return home, laugh at my misadventure, and go about my life, casually trans in the same way that Zac Efron is casually Jewish. (8) Despite Varner's profuse online apology, it did not ameliorate what he stole from Zeke in exposing his transgender status: his privacy. (9) As Zeke explained, "a person's gender history is private information and it is up to them, and only them, when, how, and to whom they choose to disclose that information." (10)
This anecdote about Zeke Smith underscores that a transgender person's ability to actualize their (11) gender identity requires the complete abdication of their former selves, which creates a unique privacy interest in maintaining the confidentiality of their birth names (12) and assigned sex at birth. (13) Revealing this personal information (14) exposes transgender persons to stigma and violence and threatens their ability to fully realize their gender identity.
However, U.S. privacy law is inadequate in guarding against the disclosure of transgender public figures' personal information. Public figures as a class are rarely successful in bringing actionable privacy claims given the emphasis courts place on accessibility to information concerning individuals with public-facing lives. On the off chance a public figure succeeds in their claim, the available legal remedies cannot completely rectify the harm done, for there is no legal mechanism that enables them to claw this sensitive information back from the public's view. This legal reality, coupled with the need of transgender individuals to keep their personal information confidential, creates a distinct issue for the case of a transgender public figure seeking to sanction revelation of this information in online publications.
The United States should look to the European Union's "right to be forgotten" (RTBF) for guidance because, compared to the U.S., the EU favors more robust privacy protections--even in the face of competing press and speech freedoms. (15) If adopted, the RTBF's delisting mechanism would enable transgender public figures to request the removal of online articles referencing their personal information and redaction of their personal information. This remedy is essential to respecting the unique privacy interest arising from the transgender identity, which outweighs First Amendment speech and press freedoms for two reasons. First, implementing this remedy would only alter privacy law for a tiny population subset, as transgender individuals make up less than 1% of the U.S. population (16)--meaning this change would do little in the aggregate to upset privacy jurisprudence. Second, in adopting this solution, the American legal system stands to protect transgender persons from rampant stigmatization, discrimination, and physical violence, which could play a significant role in combatting efforts to vitiate federal legal protections for transgender individuals, such as those that occurred under the Trump administration. (17)
Part II begins in Section A with an overview of the unique privacy interest encompassed by the transgender identity. Section B examines the tort of public disclosure as a mechanism to enforce privacy rights, noting the tort's inapplicability to "newsworthy" information, which is information of such concern to the public it overrides a person's privacy interests or concerns an innately newsworthy person because they occupy a prominent role in public life and thus are considered a public figure. Section B explains that on the rare occasion when public figures succeed in making public disclosure claims, legal remedies are insufficient to rectify the harm done, which creates an obstacle for transgender public figures seeking to ban publication of their personal information. Section C introduces the EU's RTBF as a solution, positing the EU's privacy protections as instructive in resolving this issue.
Part III imports the RTBF to resolve the issue. Section A cements privacy law's failure to protect transgender public figures' personal information while finding the RTBF equipped to do so. Section B asserts that the RTBF comports with First Amendment freedoms, and further that certain legal mechanisms already act as blueprints for creating an American right of erasure. Finally, this Note concludes with a cursory overview of what implementation would look like, arguing in favor of federal legislation to codify this solution.
The Transgender Identity and Privacy Rights
Being transgender entails the complete abdication of an individual's former gender identity. The term itself embraces not only a difference in gender identity, but a personal metamorphosis: a transgender individual's "gender [identity] and [expression] [does] not conform to the gender they were assigned at birth." (18) A transgender individual may have made "social, medical, or surgical steps to physically or socially bring their body or gender expression in line with the gender with which they identify." (19) These social, medical, and surgical steps are part of transitioning, a process integral to the expression of a transgender person's gender identity. (20) Transitioning is motivated by a desire to compel the world to validate a transgender person's gender identity, (21) but also partly by the fear of being "found out," (22) given the vulnerability of transgender persons to social stigma, discrimination, sexual assault, and physical attack. (23) Such discrimination has always been pervasive, but has become even more so in recent years under President Trump, as illustrated by the increase in violence against transgender persons since the beginning of2017, (24) as well as the former Administration's efforts to rollback legal protections for transgender persons. (25)
There is ample research evincing the scope of discrimination and violence perpetuated against transgender persons--especially when their gender identity is exposed. The D.C. Office of Human Rights' (OHR) study, Qualified and Transgender, outlines employers' discriminatory responses to an applicant's transgender identity--specifically, the study shows transgender persons face substantial hurdles in the hiring process, as evidenced by employers' selection of less qualified, cisgender (26) applicants over more qualified transgender applicants. (27) Similarly, Professor Cynthia Lee's article, The Trans Panic Defense Revisited, denotes the grave consequences of suddenly exposing a transgender individual's identity by outlining the "transgender panic defense," a criminal defense strategy asserted by a cisgender male defendant charged with murdering a transgender woman. (28) It is used as a provocation defense, where a male defendant claims upon discovering the victim was not biologically female but transgender, he became so enraged that he committed the murder because he lost control of himself, and thus should be convicted of a lesser offense, like voluntary manslaughter. (29) The defense originates from society's hostile belief that it is the transgender woman's fault for supposedly "deceiving" the defendant about her gender identity, (30) and when her gender identity is exposed, the natural response of anyone in the defendant's position would be violence. (31) This deeply entrenched belief that violence against transgender individuals is justifiable denotes the need for heightened legal protections of transgender individuals' personal information to shield them from violence...
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