Gender Policy Dialogues

Sixty years ago, on June 7, 1965, the Supreme Court issued a landmark ruling with weighty consequences for women’s reproductive rights: Griswold v. Connecticut. In Griswold, the Court struck down a Connecticut law that banned physicians and clinics from providing contraception, finding that married couples have a right to privacy under the law. While focused on contraception, the constitutional right to privacy cemented by Griswold had a profound sociolegal impact. The decision would be cited in the subsequent rulings that ended state abortion bans (Roe v. Wade, 1973), overturned homophobic sodomy laws (Lawrence v. Texas, 2003) and legalized gay marriage nationwide (Obergefell v. Hodges, 2015). The future of privacy rights, however, remains fraught. In his concurrent opinion to Dobbs, Justice Clarence Thomas argued that the Court should revisit this same line of substantive due process decisions about contraception, abortion, consensual sexual conduct and same-sex marriage, suggesting that the right to privacy was not guaranteed. Privacy matters greatly for those concerned about reproductive, gender, and sexual freedom. 

The 60th anniversary of Griswold calls for a reexamination of the legal right to privacy and its intersections with movements for gender and sexual justice. The constitutional right to privacy has been an instrumental legal tool for advancing feminist and LGBTQ+ movements. And yet, privacy rights were not universally granted, and the ability to exercise control over one’s intimate activites remains circumscribed by race, class, sexuality, and position in the labor market. 

Privacy rights contain a complex paradox. On the one hand, privacy has been imagined as a right that provides protection from undue governmental incursion into those domains of life typically deemed “private,” such as decisions about birth control or the ability to safeguard when and with whom to share intimate information about ourselves. Simultaneously, the legal recognition of privacy rights has facilitated the movement of “private” matters (reproduction, sexuality, and the family) into the public realm. The new publicity of such private affairs has enabled marginalized persons and groups to enjoy greater bodily autonomy and self-determination, while also raising broader tensions and challenges for gender justice advocates.

The authors in this Dialogue series unpack the history, legal intricacies, and social impact of Griswold’s extension of privacy rights. They invite us to consider the historical context in which Griswold was issued and whom it most benefited. Contributors highlight the significance of privacy rights to contemporary political battles over reproductive control in the post-Dobbs landscape, LGBTQ+ and sex workers’ rights, digital sexual culture and image-based abuse. They also highlight cases in which the Court has declined to affirm privacy rights, leaving unresolved the question of whether some commercial activity or sexually minoritized actors are afforded such rights. Ultimately, the authors ask us to consider the merits of privacy as a legal framework and what other juridical or political levers advocates might turn to in their pursuit of gender and sexual justice under the law.

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