Second Circuit limits the right to medical privacy

We normally associate the constitutional right to privacy with abortion and other child-bearing and (and related) concepts. But that right also covers the right to avoid disclosure of certain personal matters, including medical information. This case asks whether a New York City schoolteacher could sue the Board of Education for publicizing her fibromyalgia. The answer is No.

The case is Matson v. Board of Education, decided on January 11. School officials disciplined Matson, a music teacher, for taking sick leave so she could conduct a symphony orchestra at Trinity Church. Her doctor said the stress was work-related. While she needed time off from work, she could still function as a conductor at the church. In disciplining Matson, school officials publicized a report that made reference to her disability, characterized as "chronic fatigue syndrome, known as fibromyalgia." Matson does not sue over the discipline but, instead, the public report that mentions her disability.

The majority opinion (Miner and Cabranes) says Matson does not have a case. While certain serious and stigmatizing conditions (like HIV or transsexualism) fall within the right to medical privacy, this is a narrow right, and Matson's condition does not qualify. Judge Miner writes:

A general medical determination or acknowledgment that a disease is serious does not give rise ipso facto to a constitutionally-protected privacy right. In Doe v. City of New York, 15 F3d 264 (2d Cir. 1994), we explained that HIV is “sadly a fatal, incurable disease.” Our reasoning in Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999), with regard to transsexualism differed, as we approached the condition as a psychiatric disorder. There, we explained that transsexualism is a “gender identity disorder, the sufferers of which believe that they are ‘cruelly imprisoned within a body incompatible with their real gender identity,’” and we further recognized that transsexualism is a “profound psychiatric disorder.” Fibromyalgia, however serious, is neither alleged to be fatal, as we recognized the HIV condition to be in Doe, nor is it a "profound psychiatric disorder” as we noted in Powell. While fibromyalgia is characterized by fatigue and muscular soreness and tenderness, we have noted that it can be debilitating only in certain instances.

In other words, "although fibromyalgia is a serious medical condition, it does not carry with it the sort of opprobrium that confers upon those who suffer from it a constitutional right of privacy as to that medical condition." Moreover, "we discern no evidence in the record revealing societal discrimination and intolerance against those suffering from fibromyalgia."

Judge Straub dissents, writing that "[i]n finding that Matson has failed to state a viable claim of infringement of her privacy rights, the majority today gives the government substantial reign to publicly disseminate a person’s intimate medical information without any justification. While it is of course not the case that every bit of medical information is encompassed within the right to privacy, in my view, the majority has forged an unduly narrow understanding of what is protected."

Judge Straub notes that Chronic Fatigue Syndrome can be as disabling as multiple sclerosis, lupus and other afflictions. He further accuses the majority of unnecessarily requiring Matson to prove on the face of her Complaint that society broadly discriminates against persons with her disability. At this stage in the case (the Complaint was dismissed under Rule 12), Judge Straub believes that Matson should be able to proceed to discovery on this claim: "Given the undisputedly serious nature of these conditions, and the slight inference required to appreciate that a person suffering from them may reasonably desire to keep that information private, I do not believe it can be said at this early stage that, as a matter of law, the conditions are insufficiently intimate to merit privacy protection."