N.D.Ill.: No general 4A or other privacy right to not share H.S. bathroom with transgender student

“For all these reasons, high school students do not have a fundamental constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs.” There’s no fundamental privacy right to claim that under the federal constitution. Students & Parents for Privacy v. Usde, 2016 U.S. Dist. LEXIS 150011 (N.D. Ill. Oct. 18, 2016):

a. There Is No General Constitutional Right To Privacy

Plaintiffs assert a claim against the Federal Defendants and District 211 for violating their “fundamental right to privacy.” Complaint, [ECF No. 1, at p.53]. In Griswold v. Connecticut, the Supreme Court acknowledged for the first time that the “penumbras” of the “specific guarantees in the Bill of Rights” protect certain privacy interests. 381 U.S. 479, 484 (1965). But the Supreme Court never has recognized “a generalized right” to privacy in the substantive due process context. C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 178 (3d Cir. 2005); see also Katz v. United States, 389 U.S. 347, 350 (1967) (explaining that the Fourth Amendment also does not encompass a “general constitutional ‘right to privacy'”). Instead, it has extended substantive due process protection to privacy interests only in limited circumstances. See, e.g., Lawrence v. Texas, 539 U.S. 558, 578 (2003) (recognizing that “‘individual decisions … concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment'”) (quoting Bowers v. Hardwick, 478 U.S. 186, 188 (1986)); Whalen v. Roe, 429 U.S. 558, 578 (1977) (holding that a New York law, which established a database of names and addresses of persons who received prescriptions for certain drugs sold on the black market, did not pose an unconstitutional invasion of privacy); Roe v. Wade, 410 U.S. 113, 153 (1973) (finding that the right to privacy “found[] in the Fourteenth Amendment’s concept of personal liberty … is broad enough to encompass a woman’s decision” to terminate a pregnancy); Griswold, 381 U.S. at 485-86 (holding that the Fourteenth Amendment confers a right to privacy in one’s marital relations and use of contraceptives).

The Supreme Court “always [has] been reluctant to expand the concept of substantive due process because guide posts for responsible decision making in this area are scarce and open-ended.” Glucksberg, 521 U.S. at 720. “The doctrine of judicial self-restraint requires [courts] to exercise the utmost care whenever [they] are asked to break new ground in this field.” Reno v. Flores, 507 U.S. 292, 302 (1993). Accordingly, the “Supreme Court of the United States has made clear, and [the Seventh Circuit] similarly cautioned, that the scope of substantive due process is very limited.” Belcher v. Norton, 497 F.3d 742, 753 (7th Cir. 2007).

b. Plaintiffs Too Broadly Define The Right At Issue In This Case