Professor Victoria Schwartz, "Leveling up to a Reasonable Woman's Expectation of Privacy" -- University of Colorado Law Review (forthcoming)

Professor Victoria L. Schwartz's article, "Leveling up to a Reasonable Woman's Expectation of Privacy," (SSRN) will be published in the University of Colorado Law Review (forthcoming 2021). The article addresses how courts do and should take into account what constitutes a reasonable woman's expectation of privacy.

Abstract of "Leveling up to a Reasonable Woman's Expectation of Privacy"

Various privacy law doctrines involve a reasonable expectation of privacy or similar analysis that takes into account social privacy norms. In the public context, a reasonable expectation of privacy triggers Fourth Amendment protections. In the private context, three of the four traditional privacy torts — public disclosure of private facts, intrusion upon seclusion, and false light — ask whether a particular privacy invasion would be "highly offensive to a reasonable person." For the most part, however, neither courts nor scholars have explicitly grappled with either the descriptive question of whether courts do, or the normative question of whether courts should, take into account 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 differ 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 it identifies various approaches to taking into account gender as part of the reasonableness analysis in privacy law: 1) an express gender norm approach; 2) a silent gender norm approach; and 3) a gender norm irrelevant approach.

Ultimately, the Article concludes that courts ought to adopt a new variant on the express gender norm approach —a 'gender norm floor approach' in which gender norms are expressly taken into account as relevant to the reasonableness analysis, but then that level of privacy becomes a minimum floor leveling up privacy protection for everyone regardless of gender.