Various privacy law doctrines involve a reasonable expectation of privacy or similar analyses that take into account social privacy norms. For the most part, however, neither courts nor scholars have explicitly grappled with whether courts descriptively do or normatively should consider gender in deciding what constitutes a reasonable expectation of privacy. This is despite the fact that, in various scenarios, a reasonable woman’s expectation of privacy might vary from a man’s in light of different lived experiences, biological differences, and existing societal gendered privacy norms.
This Article addresses how courts do and should take into account a reasonable woman’s expectation of privacy. The Article delves into the case study of monitored drug testing, a scenario in which the reasonable expectation of privacy may differ for women in light of gendered privacy norms surrounding restrooms. Within that case study, the Article identifies various approaches courts take to consider gender as part of the reasonableness analysis in privacy law: (1) an express approach, (2) a silent approach, and (3) a gender-irrelevant approach. Ultimately, the Article concludes that courts ought to adopt a new approach—a floor approach in which gendered privacy norms are expressly taken into account as part of the reasonableness analysis, but then that level of privacy becomes a minimum floor leveling up privacy protection for everyone, regardless of gender.
Leveling Up to a Reasonable Woman's Expectation of Privacy,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol93/iss1/4