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Copyright (c) 1997 The George Washington Law Review
The George Washington Law Review

NOTE: Outing Privacy Litigation: Toward a Contextual Strategy for Lesbian and Gay Rights

January, 1997

65 Geo. Wash. L. Rev. 248


Cathy A. Harris *


Legal scholars have written reams of critical commentary on Bowers v. Hardwick, 1 in which the Supreme Court refused to extend the right to privacy to homosexual sodomy. 2 Many of these scholarly works have concentrated on how the Court wrongfully denied a privacy right to gays and lesbians. 3 This limited focus, however, has led to a myopic view of gay and lesbian civil rights litigation. Both commentators and litigators have paid scant attention to the development of a civil rights strategy that is contextual- ized specifically for gays and lesbians. 4 More dangerously, the cottage industry of Bowers critics, who recommend the extension of the right of privacy to gay and lesbian sexuality, fail to recognize that the privacy strategy imposes severe limitations on how attorneys portray lesbians and gays in the courtroom. In attempting to defend sexuality as private, civil rights litigators are trapped in a catch-22. If an attorney argues that her client's sexuality is private, and therefore constitutionally protected from state regulation, 5 she reinforces societal notions that homosexuality should be hidden. 6 By not presenting a detailed picture of her client's life, the attorney also leaves negative stereotypes of gays and lesbians unchecked. 7 Conversely, if an attorney chooses to discuss her client's sexuality, she risks the possibility that a homophobic judge or jury will be even more alienated by the bald facts of the queer litigant's lifestyle. 8

Civil rights litigators also encounter problems when arguing that ...
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