This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race and intersectional insights to Supreme Court opinions that deal with the source of the power to regulate immigration, state and local regulation of immigration, citizenship law, racial discrimination, employment law, access to public education, the rights of criminal defendants, the detention of noncitizens, and more. Feminist reasoning values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters in this book reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors here demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors here center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

Perhaps not surprisingly given the government’s widespread criminal and administrative surveillance regimes, the government possesses – and then sometimes discloses – large amounts of our personal information. As in the case of a police officer threatening to out a teenage boy’s queer sexuality to a relative,1 sometimes these disclosures are ad hoc or one-off. But other times, such as pill lines in prisons where people’s HIV or mental health medications may be disclosed or broadcast to others in the line, the outings are more systematic and routine.2 Thus far, I have focused largely on solutions to problems of privacy while navigating (physical or online/cyber/digital) public space. This chapter and the next turn from problems of public privacy to issues of so-called informational privacy – unconsented to disclosure of information about someone. In other words, problems of outing. Here, I focus on government disclosures before turning in the final chapter to private-party disclosures.

Privacy often suffers in courts of law and as a legislative or regulatory priority. Privacy, in effect, is marginalized as a right and frequently ranked below security or law enforcement concerns. Often it is even ranked below administrative, personal, or corporate convenience. At the same time, privacy is of acute significance for members of marginalized communities – queer folk, racial and religious minorities, women, immigrants, people living with disabilities, people living in poverty, workers, and those at the intersections.

If a right exists, bedrock principles of American law generally demand that the right be equally available to all. So unassailable is this tenet that the US Supreme Court etched the phrase, “Equal Justice Under Law,” on the front of the court building in the 1930s. A plaintiff who is black should have the same substantive law applied to their claim as a plaintiff who is white, with similar results for similar claims.1 And although concrete evidence of systematic, unequal judicial results is sometimes hard to uncover, it is widely acknowledged that in many contexts the law does not, in fact, operate with an even hand.2 The white plaintiff prevails where the black plaintiff fails. Can equality, as a principle of American law, become more than hortatory? How can the law be adjusted to operate more equally, and how can those adjustments be doctrinally justified and grounded? This chapter seeks to answer these questions in a particular legal context – the tort of public disclosure of private facts – and to draw lessons from those results for privacy tort reform and the constitutionalization of tort law more broadly.