The American Civil Liberties Union has argued in recent years that the right to privacy is so expansive it extends even to partial-birth abortion, in which a doctor kills a fully formed, almost-born child with scissors.
"The ACLU has a long history of vigorously defending the right to privacy -- including the right to reproductive freedom," the organization told the Supreme Court last year in a brief arguing that partial-birth abortion is a constitutional right.
But two recent court cases demonstrate there is at least one place where the ACLU rejects the right to privacy -- at least for certain classes of people. It is in the bathroom.
Last week, the U.S. Court of Appeals for the 10th Circuit upheld a decision by U.S. District Judge David Sam, who spurned the ACLU's claim that an anatomical male had a right to use women's restrooms.
Krsytal Etsitty, the plaintiff, had described herself, according to Judge Sam's opinion, as a "pre-operative transsexual." In 1999, Etsitty changed his name from Michael to Krystal and the sex designation on his driver's license from male to female. He took hormones that altered his "outward appearance in some ways." But he did not change his anatomy.
In 2001, the Utah Transit Authority hired him to be a bus driver. Judge Sam, who referred to Etsitty by the female pronoun, said: "At the time she applied for her job with UTA and throughout the training period, plaintiff dressed as a man and used the men's restroom."
After he was hired, however, Etsitty informed his supervisor that "she was transsexual and that she would be appearing more traditionally female at work." This posed a logistical problem for the bus company. It had arranged for its drivers to have access to the public restrooms at certain businesses along its routes. Would Etsitty use the male or female restrooms?
Etsitty informed her supervisors, according to the court, "that she had some kind of written direction that required that she use female restrooms." The supervisors told Etsitty "they were concerned about potential liability from co-workers, customers and the general public as a result of plaintiff, a biological male, using female restrooms." The company let her go, notifying her, as reported by Findlaw, that she would be eligible for rehiring "once she completed the surgery."
Etsitty sued, citing a federal law that bans discrimination based on "sex."