Excerpted From: Laura Lane-Steele, Adjudicating Identity, 9 Texas A&M Law Review 267 (Winter, 2022) (406 Footnotes) (Full Document)


LauraLaneSteeleIdentity has been adjudicated in the court of public opinion with increasing frequency over the past decade. Rachel Dolezal's claim to a biracial identity was generally accepted in her community because of her appearance, but when her ancestry came to light, most people rejected her racial self-identification and deemed her to be white. Professor Andrea Smith self-identifies as Native American, but because she has been unable to show that neither she nor any of her relatives are citizens of a tribe, her identity claim has been largely rejected. Sex is also publicly adjudicated. In 2015, Caitlyn Jenner came out as a transgender woman, and Demi Lovato recently disclosed that they identify as non-binary. Most people treat these changes in sex self-identification as legitimate, and failing to accept these individuals' sex identities is viewed as discriminatory in many circles. Whether an individual's identity claim is accepted by society can have tremendous effects on that individual's life--Dolezal has become a social pariah and lost her jobs as the chapter president for the Spokane NAACP and as an instructor of Africana Studies at Eastern Washington University. Jenner, on the other hand, ran for governor of California.

Identity adjudication is also happening in the mundane moments of our everyday lives. Problems can arise when others adjudicate our identities improperly, unnecessarily, or in ways that conflict with our self-identification. Two examples from my life follow. On multiple occasions, when I have entered the women's restroom, employees of the establishment or other patrons have adjudicated my sex to be male based on my appearance. They then followed me into the restroom to inform me that I was in the wrong restroom. At the airport security checkpoint, the full body scanner machines require the TSA agents to indicate whether the subject being scanned is male or female. TSA agents frequently adjudicate my sex as male, which causes the machine to alert and sometimes results in me going through additional screening.

As these examples show, identity adjudication is both ubiquitous and consequential. Sometimes less obviously, but at least as frequently, identity is formally adjudicated in law. In some contexts, people are taken at their word that they are a particular identity, and other times, they have to put forth more evidence to prove their identity claim. For example, self-identification is enough for the Census; you check a box indicating your race, sex, marital status, etc., and you don't need to provide any other evidence. But if you seek asylum in the United States based on your sexual orientation, self-identification would not be sufficient; you would need to provide additional evidence, like proof of prior same-sex relationships, corroborating testimony from friends and family, or evidence that you faced homophobic harassment. Some identity claims are closely scrutinized while other are not. Yet legal actors do not usually acknowledge that they are adjudicating identity in this way, much less explain why some identity claims are examined more closely than others.

This Article seeks to systematically understand and make visible identity adjudication in the law. It brings to the surface the implicit, unidentified, and unconscious factors legal actors use to adjudicate identity and provides a taxonomy of identity adjudication. Specifically, it develops this taxonomy by examining three types of laws--(1) data-collection laws (like the Census), (2) anti-discrimination laws (like Title VII), and (3) “benefit” laws, which involve individuals asking or petitioning a state actor to affirmatively do something on their behalf four identity categories: (1) race, (2) sex, (3) sexual orientation, and (4) religion.

Two patterns emerge that tend to affect how identity claims are adjudicated. The first pattern goes to the type of law at issue. For data-collection laws, the evidentiary burden for identity claims is low, and self-identification alone is generally sufficient. This burden increases with anti-discrimination laws and is at its highest with benefit laws. For example, self-identification is typically sufficient to prove racial identity in the context of a data-collection law; for a benefit law, however, legal actors require more, such as ancestral evidence or prior consistent racial self-identifications. The second pattern goes to the type of identity at issue. Identities the law treats as immutable (race and sex) are more intensely scrutinized than the identities the law treats as more mutable (sexual orientation and religion). For example, sex adjudication for a benefit law generally requires proof of certain biological traits. But religious identity for a benefit law is usually accepted if the individual can provide some corroborating evidence of their identity claim. Thus, (1) the immutability of the identity category and (2) the type of law both affect the way legal actors treat identity claims.

Making explicit this taxonomy of identity adjudication reveals a problematic pattern across identities and areas of law--namely, that legal actors tend to adjudicate identity in what I call a “context-detached,” rather than a “context-informed,” manner. A context-detached approach neither examines why the particular law asks about the identity in the first place nor considers how the purpose or function of the law may influence how identity should be adjudicated. Context-detached identity adjudication is not disciplined or regulated by the applicable law; rather, it is guided by whatever legal actors think they “know” about particular identities. Subjective and unarticulated definitions of identity--formed by the particular legal actor's social, cultural, and political positionalities--dominate the context-detached approach to identity adjudication. For example, a legal actor who adopts this approach may define a “woman” as someone with breasts who ascriptively appears to be a woman (at least to that legal actor) and then applies that definition across different areas of law, regardless of whether breasts or ascriptive factors matter to the law.

A context-detached approach to identity adjudication is problematic for at least two reasons. First, and most obviously, it can produce results that are doctrinally inconsistent or at odds with the purpose of the law. Consider an example from anti-discrimination law. In racial discrimination cases, some courts adjudicate the plaintiff's “actual” race. In these cases, courts may examine the plaintiff's accent, skin color, or ancestry to determine her racial identity for themselves. Or they may dismiss a claim from a plaintiff who was mistreated based on a misperceived racial identity. But when a plaintiff brings a claim for sexual orientation discrimination, courts are not typically concerned with determining whether the plaintiff is “actually” gay or not; they don't care whether the plaintiff self-identifies as gay, is in a same-sex relationship, or conforms to stereotypes associated with gay people. Instead, courts focus on the content of the discrimination or perception of the discriminator and ask whether the discriminatory conduct was motivated by sexual orientation. Thus, a plaintiff who self-identifies as straight but who was misperceived as gay by his discriminator could probably sustain a claim, but a Hispanic plaintiff misperceived as Black may have her claim dismissed based on her identity.

There is no doctrinal reason to treat these claims differently; the same statute and the same analytical framework apply to both race discrimination claims and sexual orientation discrimination claims. As explained further in Part IV, the applicable anti-discrimination laws do not require courts to determine the plaintiff's “true” identity--rather, the discriminator's perception of the plaintiff's identity or the cause of the discriminatory behavior should guide the identity inquiry. Therefore, when courts attempt to determine the “actual” race of a plaintiff, they are engaging in context-detached identity adjudication. Such an approach creates doctrinal inconsistency within antidiscrimination law because some courts, like those addressing sexual orientation claims, are not concerned with the “actual” identity of the plaintiff. Moreover, this approach can harm individual plaintiffs and undercut the purposes of anti-discrimination law on the whole. Antidiscrimination laws are meant to provide remedies to plaintiffs who were mistreated based on a protected category. When courts deny these plaintiffs' claims based in whole or in part on the court's adjudication of the plaintiff's “true” identity, the goals of anti-discrimination law are not served.

The second problem with a context-detached approach is that it can result in the over-interrogation of identity by requiring too much identity evidence to fulfill the function of the law. I fully explore the consequences of over-interrogation in other work, but I summarize two primary harms here. First, making identity claims dependent on unnecessary identity evidence may infringe upon individuals' privacy and dignity interests. Consider some examples of highly sensitive identity evidence legal actors either require or examine when adjudicating identity: ancestral background from services like 23andMe, the makeup of someone's primary or secondary sex characteristics, past sexual and romantic history, and the hormone treatments someone is receiving or has received. Using this identity evidence to adjudicate identity, when this evidence is not necessary considering the law at issue, needlessly impinges on privacy and dignity interests.

Second, over-interrogation of identity can reinforce problematic definitions of identity that unnecessarily essentialize identity. For example, when a court concludes that someone is a particular race based on the way they look and speak, that court is using the power of the law to declare that certain ways of looking and speaking are essential qualities of a particular race. Similarly, a legal actor who denies someone's claim that she is a lesbian based on her prior marriage to a man is helping construct an overly rigid and false definition what it means to be a lesbian.

This Article calls for a context-informed approach to identity adjudication. Unlike a context-detached approach, a context-informed approach understands the identity question to depend on why that particular law is asking the identity question in the first place. It begins the identity inquiry by locating the function or purpose of the applicable law. It then asks whether identity adjudication is necessary at all, and if so, what definition of identity would best serve those purposes.

Other work has identified how law determines identity claims and has critiqued specific flaws in how legal actors determine identity, but the scholarship tends to focus on one area of law, one identity, and/or one model of identity adjudication. This Article expands on this scholarship by examining legal identity adjudication across areas of law and identity categories and by extracting patterns that exist outside of any one doctrinal or identity silo. It also expands on the scholarship's critiques of identity adjudication and demonstrates how context-detached identity adjudication is a systemic problem in law rather than a problem limited by category of law or identity.

This Article is both broad and narrow. The broad scope allows me to build the taxonomy of identity adjudication and identify the problem of context-detached identity adjudication. But the taxonomy also raises many issues about identity adjudication that I do not address in this Article. For instance, the taxonomy sheds light on dominant societal discourses regarding identity and how those discourses are implemented through law. It can also elucidate how legal identity adjudication enforces identity-based hierarchies. This Article lays the groundwork for, but does not take on, these questions. Also, this Article does not claim to be an exhaustive examination of all types of identity adjudication in the law. It does not address, for example, disability, citizenship, or familial identity categories or the related laws that adjudicate those identities. Future work can build on, and improve upon, this taxonomy by including additional laws and identity categories. Finally, this Article argues for a context-informed approach to identity adjudication, where identity inquiries are informed by the function or purpose of the law at issue; however, it does not take a normative stance on what the proper function or purpose of a law should be. These debates are too expansive and complex for this Article to tackle. This Article makes an argument about the proper process of identity adjudication--i.e., a context-informed approach.

The remainder of the Article is structured as follows. Part II defines the types of identity evidence used to prove an identity claim and provides background on immutable versus mutable identities. Part III details the taxonomy of identity adjudication that I have introduced here. Specifically, it examines identity claims in the context of data-collection laws and explains how self-identification is almost always sufficient for these laws. Next, it addresses anti-discrimination laws and provides a descriptive account of how courts adjudicate identity in the context of these laws. It then addresses benefit laws and highlights how identity claims are typically the most highly scrutinized, particularly with race and sex. Lastly, it offers possible explanations for why the type of law and the mutability of identity affect how closely an identity is examined. Part IV turns to the normative critique of the taxonomy and argues that identity is often adjudicated without proper attention to the purpose or function of the particular law at issue. The Article ends with a brief conclusion.

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This Article understands identity adjudication as a legal phenomenon operating across identities and areas of law and has attempted to make sense of this phenomenon by developing a taxonomy through which to understand the factors legal actors use to determine someone's identity--factors that these actors are not making explicit and/or even consciously using. Examining identity adjudication in this broad way reveals systemic problems with how legal actors understand and adjudicate identity. This Article has examined one of those problems--a context-detached approach to determining identity--and offered an alternative--a context-informed approach. Rather than approaching identity as a stable fact or characteristic about someone, legal actors should begin by asking why identity matters to the law in the first place. Perhaps a particular legal rule does not require identity adjudication at all (like anti-discrimination law). And if the legal rule does require determining someone's identity, the definition of identity and the proof requirements of an identity claim should be informed by the purpose of the specific law at hand. A context-informed approach would also bring identity adjudication to the surface and force legal actors to make the fact of, and their reasoning behind, identity adjudication explicit. Additionally, because the law would be disciplining the identity inquiry, there would be less room for legal actors' subjective or conscious ideas, biases, and stereotypes about particular identities to taint the identity determination.

This is not to say that context-informed identity adjudication will always produce just, fair, or equitable results. The normative value of context-informed identity adjudication is tied to the normative value of the law at issue. For example, a context-informed approach to adjudicating identity for a law that limits citizenship to only those individuals who qualify as “white” would produce outcomes that further entrench racial subordination. However, adopting a context-informed approach would limit the normative assessment to the purpose of the law and would eliminate many of the problems that flow from legal actors making identity determinations based on their own subjective ideas about identity rather than the particular law at issue.

Forrester Fellow, Tulane Law School.