Assuming Responsibility for Who You Are: The Right To Choose “Immutable” Identity Characteristics
New York University Law Review
Volume 88, Number 1 (April 2013)
Anthony R. Enriquez
New York University School of Law
Golinski v. U.S. Office of Personnel Management, a district court case challenging the constitutionality of the Defense of Marriage Act, explicitly adopted a novel definition of immutability under the Equal Protection Clause. Now held in abeyance pending the Supreme Court’s decision in United States v. Windsor, Golinski’s discussion of immutability remains relevant because it articulated the rationale behind a number of recent lower court decisions in equal protection jurisprudence that reach beyond the context of sexual orientation. Such decisions turn away from talismanic protection of immutable characteristics determined by birth, and toward the right of all persons to choose fundamental aspects of their identity. They disavow “biological immutability,”—the traditional view of immutability which refers to a characteristic one cannot change, “determined solely by the accident of birth”—and instead rely on asylum law’s definition of immutability: not exclusively a characteristic one cannot change, but also a chosen characteristic that one should not be forced to change because it is fundamental to identity. This Note argues that asylum law’s “fundamental immutability” standard belongs in equal protection jurisprudence because it resolves inconsistencies in traditional equal protection jurisprudence caused by a biological immutability standard and because it harmonizes recent lower court opinions discussing race- and gender-related equal protection in an era of increased multiracial, intersex, and transgender visibility.
- I. THE SOMETIMES-MUTABLE NATURE OF RACE AND SEX REVEALS INCONSISTENCIES IN EQUAL PROTECTION DOCTRINE
- A. Mutable Race
- B. Mutable Sex
- II. ASYLUM LAW’S DEFINITION OF IMMUTABILITY CURES INCONSISTENCIES IN EQUAL PROTECTION DOCTRINE
- A. A Closer View of Asylum Law’s Fundamental Immutability
- B. A Number of Courts Recognize that the Equal Protection Clause Protects the Individual’s Right to Choose Fundamental Characteristics of Identity
- III. SEXUAL ORIENTATION IS A FUNDAMENTAL CHARACTERISTIC OF IDENTITY
- A. Asylum Law Holds That Sexual Orientation is a Fundamental Characteristic of Identity
- B. The Fundamental Liberty to Engage in Same-Sex Sexual Conduct Reflects the Constitutional Understanding that Sexual Orientation is a Fundamental Characteristic of Identity
Gay rights advocates and opponents tend to hold distinct views on homosexuality’s origins. Advocates commonly contend that sexual orientation is not a choice,1 while at least one political opponent of gay rights has insisted that “[h]omosexuality . . . [is] about sexual freedom, and they hate to be called on [it].” Coming from the camps that they do, these hardline views of homosexuality as pre-determined compulsion or free choice might strike some as ironic: Liberation was once a watchword of the gay rights movement and freedom isn’t commonly thought of as a dirty word when used by political conservatives. Regardless of the accuracy of either claim, the portrayal of homosexuality as an inborn condition likely serves legally strategic ends. It brings gays one step closer to suspect class status under the Equal Protection Clause of the Fourteenth Amendment, potentially imperiling any law in the nation that treats gays as a class differently than non-gays. This is because a law that treats people differently based on their membership in a suspect class is subject to heightened judicial scrutiny and must be at least substantially related to an important government interest to avoid being struck down as unconstitutonal…
…A. Mutable Race
The traditional belief that race is an immutable characteristic dependent solely on birth is rooted in the idea that race is defined by lineage, physiognomy, and other physical characteristics. Accordingly, a person born to Black parents is Black, or a person with a certain eye shape, hair texture, or skin color is White. This absolutist view holds less force today, however, because a substantial number of Americans of mixed racial lineage present racially ambiguous physical characteristics. These people can choose a particular racial identity that differs depending on the particular social, professional, or legal context.
The law’s struggle to keep pace with the growing reality of racial self-identification is tied to the United States’s long history of racial subordination. Traditional absolute racial categorizations were essential to legal and social ordering in a society that divided rights by race, determining who was a person and who was property in antebellum America. Most American states prior to the Civil War implemented legal definitions of race, either statutory or judicially constructed, to codify underlying social understandings.
Still, long before contemporary trends of racial self-identification, the law acknowledged that racial identification was not shaped by lineage or physiognomy alone. In the decade leading up to the Civil War, for example, the Virginia legislature—facing increasing outside resistance to the use of slave labor and long prohibited from importing new slaves—debated a proposal to expand its enslaveable population by amending the state definition of Black from having one Black grandparent to having one Black ancestor at any time in history. Virginia’s legislative history provides but one example that race was never determined solely by birth; it was instead the combination of lineage and historically contingent, mutable social understandings which shape the meaning of that lineage, equating Black racial membership with a Black parent, a Black grandparent, or a distant Black ancestor, as the social context required.
Today, the United States government has essentially abandoned the practice of imposing racial identity on Americans, instead relying largely on voluntary self-identification to keep track of racial data. The government’s retreat has left Americans with two principal methods of racial categorization: voluntary self-identification and involuntary identification by third parties, a byproduct of social interaction resulting from an observer’s imposition of racial identity as associated with physiognomy. Voluntary racial self-identification is standard in the census, federal recordkeeping measures, and educational programs seeking to attract diverse entrants. Involuntary racial identification occurs when a third party presumptively correlates skin tone or other physical characteristics with an individual’s race.
For the majority of people, the presumption created by an onlooker’s perception will likely match an individual’s voluntary racial self-identification: Most people will likely accurately identify a person who self-identifies as White based on physical features alone. But for people of racially ambiguous physical characteristics, such as light-skinned Blacks and Latinos, voluntary racial identification is a regular phenomenon of social interaction. Extensive literature documents the accounts of light-skinned individuals who pass as White, voluntarily assuming racially coded patterns of speech and dress. The United States also has a storied legal history that records individuals’ attempts to manipulate racial identity through voluntary action, including one of the Supreme Court’s most infamous holdings: Plessy v. Ferguson.
Homer Plessy insisted in his petition to the Court “that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the United States of the White race by its Constitution and laws . . . .” Plessy’s claim was that the amount of “colored blood” he had—a singular Black grandparent—was so negligible that he was White. Today, modern Americans might assume someone with his physical characteristics—someone in whom “the mixture of colored blood was not discernable”—to be White. If Homer Plessy self-identified as Black and expressed it to others he could dispel that assumption, assuming belief of his claim. But he could just as easily keep silent and choose a White identity, or choose specific contexts in which to assert a White, Black, or mixed racial identity.
Here, it yields an absurd result to interpret the Court literally when it says that in order for a racial classification to be suspect, race must be an immutable characteristic traceable solely to birth: Because Plessy’s racial identity would be a matter of personal choice rather than dependant solely on birth, he would presumably fall outside of heightened scrutiny’s ambit. But “[r]acial discrimination . . . would not suddenly become constitutional if medical science developed an easy, cheap, and painless method of changing one’s skin pigment,” as one court has recognized; nor should it be constitutional as applied to the growing number of Americans who choose to identify as a particular race at their own discretion.
Just as indefensible is the suggestion that these Americans could avoid racial discrimination by keeping silent about their minority racial identity and passing as White. This would grant government the power to impose an individual’s racial identity by assigning a penalty to voluntary racial minority self-identification…
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