Sexual orientation protected from forced disclosure, Third Circuit holds.

A [sections]1983 suit filed by the mother of a teenage boy who committed suicide after police threatened to disclose his homosexuality to his family can move forward, the Third Circuit recently ruled. (Sterling v. Borough of Minersville, No. 99-1768, 2000 WL 1664909 (3d Cir. Nov. 6, 2000).)

The appeals court upheld a district court decision allowing Madonna Sterling's case against Pennsylvania's Borough of Minersville, the local police department, and two police officers to go to trial. The lawsuit alleges that the defendants violated Marcus Wayman's Fourteenth Amendment rights to privacy and equal protection of law. The court wrestled with the question of whether the threat to disclose sexual orientation--versus the disclosure itself--violates a person's rights. It decided that it does.

"The threat to breach some confidential aspect of one's life ... is tantamount to a violation of the privacy right because the security of one's privacy has been compromised by the threat of disclosure," the court held in a 2-1 ruling.

"It is difficult to imagine a more private matter than one's sexuality and a less likely probability that the government would have a legitimate interest in disclosure of sexual identity," wrote Judge Carol Los Mansmann for the panel.

In April 1997, police spotted 18-year-old Wayman and a 17-year-old male friend in a car parked near a beer distributor that had recently been burglarized. There were no signs of a break-in, but the teenagers, who had been drinking alcohol, were evasive when officers asked what they were doing in the parking lot. A search uncovered two condoms, and when the officers questioned the young men about their sexual orientation, the boys admitted that they were gay.

They were arrested for underage drinking and taken to the Minersville police station, where an officer lectured that the Bible does not condone homosexuality. The officer told Wayman that if he did not tell his grandfather about his homosexuality, then the officer would. After Wayman was released from custody, he committed suicide.

The appeals court found that while at the time of Wayman's arrest the U.S. Supreme Court had not definitively extended the right to privacy to the confidentiality of one's sexual orientation, the law is clearly established that the right to privacy protects matters of personal intimacy from threats of disclosure.

"We can, therefore, readily conclude that Wayman's sexual orientation was an intimate aspect of his personality entitled to privacy protection," Mansmann wrote.

In a dissenting opinion, Senior Judge Walter Stapleton agreed that Wayman's constitutional rights had been violated, but he held that the unconstitutionality of the police officer's conduct in the case was not clearly established by preexisting case law.

"In order for law to be `clearly established' ... there must be preexisting authority which rules out the possibility that a reasonable official in the defendant's position could have believed his conduct to be lawful.... [T]here was no Supreme Court case law addressing either the issue of whether there is a constitutionally protected right of privacy in one's sexual orientation, or the issue of whether a mere threat to disclose constitutionally protected private information can constitute a constitutional tort.... Thus, it cannot be said that the unlawfulness of [the officer's] conduct was apparent at the time it occurred," he wrote.

Of the federal appeals courts, only the Fourth Circuit has handled a similar case. It held that there is no constitutionally protected privacy interest in one's sexual orientation. (Walls v. City of Petersburg, 895 F.2d 188 (4th Cir. 1990).)

Philadelphia attorney David Rudovsky represented the plaintiff. "This ruling is especially significant in clearly establishing the right to privacy concerning one's sexual orientation and in finding actionable police coercion or threats aimed at forcing disclosure of private information," he said.