We are in the midst of a global backlash against LGBTQ rights. The United States and United Kingdom, in particular, are hot spots of anti-trans laws being passed and upheld by courts. Current constitutional protections for LGBTQ people, and sexuality more generally, are not sufficient. This Article examines case law on privacy and sexuality in the United States and England. This Article considers two alternate conceptions of privacy: (1) a classic view of privacy as based upon a strict separation between private and public spaces, and (2) a liberal-feminist interpretation of privacy in which the default state of individuals is in a private domain, regardless of where they physically are or what they are doing. In this latter view, individuals only move into the public (and therefore only lose rights to privacy) when they choose to cause harm.
First examining U.S. constitutional case law on anti-sodomy laws, abortion, birth control, and same-sex marriage, this Article concludes that the U.S. Supreme Court has reasoned from both the classic and agential views of privacy. However, regardless of which conception of privacy is relied upon, this Article argues that U.S. constitutional jurisprudence protects privacy only for relationships that resemble marriage. U.S. constitutional jurisprudence has excluded societally disapproved sexual and gender orientations from legal protection well before its most recent explicitly anti-trans and anti-gay cases. The recent U.S. Supreme Court cases on sexuality and gender have focused on harm, which is a new development in this area.
This Article therefore turns to an area of case law where allegations of harm among consenting adults have long trumped privacy rights: BDSM. Looking to jurisprudence from the United States and England, this Article argues that these decisions have largely relied on agential privacy conceptions. Under this liberal-feminist view of privacy, we would expect the expansive protection of people in their lives so long as they do not cause harm. However, in applying this promising premise to cases involving BDSM, this view collapses in on itself. In such cases, private sexual relationships are adjudicated without account of privacy and prioritize harm as a primary consideration. English and U.S. courts routinely make conclusory and vague findings of “harm” without any evidence and determine that these baseless harms are sufficient to remove any privacy rights.
As such, this Article concludes that both agential and classical views of privacy can lead to punitive demonization of marginal sexualities. We see this today, in trans people’s very existence being considered a harm under current British and U.S. law. As such, this Article urges that we move away from privacy arguments to achieve erotic justice.
Recommended Citation: Elena L. Cohen, The Promise and Danger of Privacy to Achieve Erotic Justice, 50 Fordham Int’l L.J. 115 (2026).