Abstract

Excerpted From: Swethaa S. Ballakrishnen, Blasé: Deviant Lawyers and the Denial of Discrimination, 59 Law and Society Review 24 (June, 2025) (1 Footnotes/References) (Full Document).

Law and society scholarship has been understandably preoccupied with the legibility and legitimacy of social categories. While legality offers structure for understanding the rights of a given social or identity category -- e.g. protections around race, immigration, gender, disability, religion -- it is in social exchange and interpersonal lived experience that transgressions to these categories get clarified. Attention to interactions, for example, allow insights into what kinds of categories have social and legal significance, what kinds of speech is deemed offensive, and ultimately, what kinds of transgressions on these categories are deemed justifiable. Particularly when membership within legal categories is ambiguous or invisible or tenuous, sociolegal lenses can help clarify the ways in which attacks on identity might be produced or allowed to persist. Further, when harm in these cases is unobvious (for e.g. when they are non-physical), sociolegal frameworks help us recognize that our capacity to discern the very existence of violence is moderated by social, cultural and legal understandings of harm. But how do researchers consider interactional violence that is not legal discrimination or even socially legible as problematic, but still causes harm?.

For example, a few years ago, after much deliberation, I publicly came out as gender nonbinary. This had been an internal -- and embodied -- identity struggle for longer, but the terrifying isolation of the pandemic made the introspection inevitable, and California's laws (at the time) about gender on state IDs made its public validation possible. Yet, despite significant changes in my gender presentation, I am still mostly gendered as a cis woman (most notably by being referred to with she/her pronouns in interactions rather than they/them), both by people who historically knew me as a cis-woman, and in newer interactions with those I have not known in that capacity. In itself, this misgendering might not have a direct legal cause of action. For one, state recognition of genderqueerness is a complicated form of reassurance and while my state-ID has some personal meaning, it is limited in its enforceability. But more importantly, while gender expression and identity might be notionally protected, they are rarely enforced and it is unlikely that a swift slip or an “oops” moment where people -- understandably, even -- revert to old patterns of gendering will be seen as a discriminatory attack on this protection.

Even beyond legality, this identity navigation is mired in social scripts of legibility and recognition. To extend the personal example further: although there remain unintentional slips from people who quickly correct themselves, a more common response to my ambiguous gender identity has been unapologetic disengagement in the social category of genderqueerness. For example, one interlocutor told me that they were just “not there yet” with neopronouns and has since consistently used she/her pronouns while referring to me. Embedded in the response pattern is also a tendency to justify any pronoun misuse as legitimate and deserving of my understanding. For example, another interlocutor asked me to preemptively forgive them for all the times they were likely to get my gender wrong in the future because they were just “too old to change” the way their “brain was wired.” Another time, ironically while being charged with speaking about inclusion, I was misgendered repeatedly by the (well-meaning and benevolent) cis discussant. In all these cases, to the extent the interlocutors thought the misgendering was problematic, the social expectation -- upon discussing the interaction with them as well as others present -- was that I should not be offended, and that if I was, it was a disproportionate response to focus on the gendering rather than the generosity of the compliment.

This experience of navigating a new and ambiguously legible identity category has offered an important window to considering social categories moderated by legal and social flux. From a sociolegal perspective, these interactional encounters are not surprising. Especially within legal institutions -- like law schools and the legal profession -- where the rigidity of categories is part of the cultural script, deviations from what is considered ideal or normative come with repercussions. Seen that way, the misgendering and the expectations surrounding it are mere repercussions of being a non-ideal (i.e. traditional gender conforming) actor. At the same time, I cannot help but observe that navigating genderqueerness feels like a distinctly different pattern of interpersonal navigation when compared to my other intersectional minority identities as a first-generation South Asian immigrant in the United States. For one, race and gender performance and immigrant status are not co-constitutive, so it follows that their experience would produce different outcomes. Yet, even beyond absolute distinctions in category, the relative newness of the genderqueer identity category offers nascent scripts of interactional navigation and negotiation. While similar interactional aggressions might have happened about race or immigrant status (e.g. saying my name wrong or suggesting my English is articulate), interlocutors are much less likely to have been disengaged and unapologetic in ways they could be about my gender expression. Simultaneously, category novelty is not without historic analogies. The way genderqueerness operates as a new identity category within social interactions is not dissimilar from the ways in which queerness itself was accommodated a few decades ago. And there are parallels in these interactional navigations to the experiences of racial and ethnic minorities before they were seen as recognizable categories for social and legal purposes. In all, the theoretical project at stake is to consider the work of temporal legality in producing social conduct. What can we do, this research asks, by observing the period before a right is calcified in social and legal consciousness? How can such attention inform the production of our implicit and explicit biases?,

Drawing inspiration from empirical Critical Race Theory “eCRT” scholarship -- which grounds empirical research in intuition from lived experience -- these comparative autoethnographic experiences extend a jumping off point to empirically and critically consider ambiguous identity categories in legal -- and social -- flux. Attention to deviance -- as critical race theorists centrally posit  -- affords insights into the underlying tenants of a given institution and the structural inequalities inherent in its constitution. It follows then that empirically considering the experiences of minority actors could shed light on the limits to inclusion within institutional spaces and offer more texture to the salience and valence of social categories. To try and observe these patterns, I interviewed sixty professionals with a range of minority identities to understand their experiences of deviance and discrimination. This theoretically motivated research design helped reveal what I posit in this Article as a pattern of “blasé” interactions.

Centrally, these comparative data reveal that although dismissal of ambiguous or non-physical violence -- a microinvalidation -- is a common microaggression pattern for those with minority identity categories; those with socially and legally ambiguous categories of identity (like gender ambiguity) offer new nodes for understanding violence in everyday discrimination. Unlike accusations of active discrimination (e.g. about a protected category like race) where the perpetrator might have denied the harm, or even socially acceptable microaggressions (e.g. technically nondiscriminatory acts that still suggest racism or sexism, or even homophobia), where an interlocutor might have backpedaled or explained themselves to the person suggesting harm, interactions about more ambiguous categories of identity might involve little remorse from interlocutors. Instead, on being confronted, interlocutors are likely to either (a) ignore the violence experienced by the respondent (i.e. by not responding or acknowledging the harm), (b) respond with exasperation at their request, and/or (c) justify the perpetrator's own reasons for the act in question. In all three cases (or any combination of them thereof), there is a disregard and further perpetuation, without a feeling of contrition, of the respondent's harm. Unlike microaggression, which might have resonance in common cultural parlance as an operationalization of structural violence, what distinguishes blasé discrimination, I argue, is the ordinariness of the act in common interactional parlance alongside its relative unlikeliness to be seen as problematic when confronted. It is this possibility of defense and even justification in the face of being questioned about the violence that makes blasé discrimination and its ambiguous parameters worthy of our attention in identity jurisprudence.

[. . .]

This research reveals how coordinates of deviance from normative categories (of, in this case, professional performance) can reveal nuanced insights about the experience of discrimination. Empirically, it suggests that starting from the position of the deviant -rather than the ideal -- actor in an empirical project can offer important nodes to critically understand the experience of inequality. Further, in varying deviation from normativity from the perspective of different kinds of non-ideal actors, it offers that the experience of discrimination is different for different identity categories in different sociolegal contexts. While discrimination that is normalized in legal, social and cultural schema follows distinct dynamics of harm and visibility, that which is less presupposed has more adulterated understandings in legality and sociality alike. It is this distinction that I highlight and differentiate from other forms of harm using the concept of “blasé,” and it is the method embedded in this conceptual innovation -- QuEer-CRT -- that I offer as contributions to the larger law and society literature.

These variations in the experience of discrimination and contestation across different sociolegal contexts in the periphery also give us new tools for considering interactional harm. First, these comparative data suggest that lack of interactional attention or acknowledgment of harm do not suggest a lack of impact. In fact, it is precisely interpersonal harm enabled by ill-attention that the concept of blasé attempts to capture. Second, the blasé-ness I have started to theorize in this Article is distinguished from harms caused by active discrimination which are legally valid and visible. Similarly, it is different from microaggressions which, while subjective, are usually well-defined by public consensus about the nature of their harm. Still, the connections between these mechanisms remain pertinent. Particularly, beyond the similarity in self-justifications offered by perpetrators (e.g. defending the ““r” word as a proper characterization of a neurodivergent person, or not feeling remorse while calling a Muslim person “a terrorist”), I argue that this interactional dynamic offers an exploratory lens to investigate bias and discriminatory behavior that precedes rights and identity recognition in a particular context. Relatedly, third, although more recognized targets of discrimination might also experience blasé responses to the invisible or contested parts of their identities, genderqueerness -- because of its current social and legal characteristics -- offered a particularly salient site to observe this pattern of bias. Altogether, while normalized and legally acknowledged forms of discrimination followed distinct dynamics of social exchange and legibility, discrimination associated with more ambiguous categories of identity struggled to shake off the blatant blasé dismissal of their identities in interactions. Together, these patterns reveal ways in which considering the periphery as a starting point rather than as additive analysis in empirical research -- what I am starting to consider as a QueEr-CRT approach -- is imperative for those of us that are concerned with thinking critically about law's role in maintaining and reinforcing hierarchies.

Swethaa Ballakrishnen (they/them) is Professor of Law (and, by courtesy, of Sociology, Asian American Studies, and Criminology, Law and Society) at the University of California, Irvine.