Gender, Sexuality and Law: The Immutability Maze
Harper Jean Tobin
im·mu·ta·ble, adj: not capable of or susceptible to change
The concept of immutability is deeply imbedded in the
way we talk about equality under the law. The Supreme Court has long held
immutability to be a significant (though not decisive) factor in deciding
whether a classification is subject to heightened constitutional scrutiny. To
date the Court has applied heightened scrutiny to such “immutable” traits as
race, sex, nationality, alienage, and illegitimacy.
Similarly, immutability plays a significant role in
debates over civil rights legislation. While many laws protect characteristics
that are clearly not immutable (marital status, veteran status, familial
status, political belief), immutability has frequently been cited as a reason
for or against statutory protections, particularly in regard to sexual
orientation and gender identity.
Most such discussions treat immutability as a fairly
straightforward concept. Trouble is, it's not. Much ink has been spilled on
this issue, and I will not reiterate the Byzantine debates on whether the
analogy of race to sex in Equal Protection analysis reinforces discredited idea
that race is a biological phenomenon, or whether sexual orientation is
genetically determined, environmentally determined, voluntary, some mix of
those, etc. etc. It is worth noting that sex can be changed (as a matter of law
in most states) -- although recent scientific evidence suggests gender
identity cannot. Whether race can be "changed" depends on what we
take "race" to mean (physical features? lineage? identity?) -- but
certainly a person of one race can "pass" for another. Aliens can
become citizens, and illegitimate persons can be legitimized -- though these
changes are not fully within one's own control. Nevertheless, we treat these characteristics
as immutable.
As concerns sexual orientation, an analogy to religion
may be helpful (if probably controversial). Despite obvious differences, both
characteristics are marked by what could be called "constructive
immutability." (Fn1)
No one contends that particular religious beliefs,
affiliations or practices are hard-wired in the brain. On the contrary, it is
generally accepted that religious belief is subject to change: we can find or
lose faith, we can convert, and we can modify our religious views while
maintaining the same general belief system. We may or may not claim the same
religion as our family of origin. Some spend years, or a lifetime, discovering
and solidifying their faith. Some devote their lives to encouraging others to
convert.
Despite all this, we treat religion in many ways as if it
is immutable; courts have sometimes described it as "almost
immutable" because this is the way most people experience it. Religious
belief can change, but we don't usually expect it to. For many people
it is stable throughout life; for others it changes so gradually as to escape
conscious notice. When someone's religious belief clashes with social norms, we
often make accommodations -- indeed, we are sometimes required by law to do so.
The reason for this is that one's religion is such a deeply felt aspect of self
that it is almost inconceivable that one could deliberately set about to
change it in response to external factors.
Most people experience sexual orientation in much the
same way. We all have a sexual orientation and for most of us it seems to be
stable and unchanging throughout life. Some discover, by falling in love with
someone unexpected, that their sexual orientation is more flexible or more
expansive than they had ever expected. Interestingly, dramatic changes in
sexual orientation seem to be unusually common among people who undergo gender
transitions. But these changes are not purposeful. Instead of us making them
happen, they happen to us. Thus, the mental health professions have resoundingly
rejected "reparative therapies" premised on the idea that one can
make oneself an "ex-gay," not just because they disagree with their
goals but because they know they cannot work.
Another parallel between sexual orientation and religion
is that both are linked to behaviors that are indisputably mutable. In
ages past people were commonly forced to convert to practicing the dominant
religion. Changing their practices was certainly possible, even if changing
their faith was not. We could ask the same today of those whose religious
practices conflict with social norms, but generally we do not. We recognize
instead that matching one's religious practices to external norms instead of
internal feeling is a deeply painful denial of self, and an unconscionable
social expectation. The same can be said of sexual orientation.
The crucial difference is that, as a society, we
(ostensibly) embrace religious diversity. We accept that religion has not just
a few but virtually unlimited varieties, and for the most part we nowadays view
them all as valid and worth celebrating. At the same time, we recognize that
while all religious paths may be equally beneficial to humanity generally, they
are seldom interchangeable for individuals.
As a society we do not presently embrace sexual diversity
in the same way. As our society formerly took the view that one religion was
superior to others, it presently values exclusive heterosexuality and devalues
any other form of sexuality. We do not recognize that same-sex and opposite-sex
attraction, though not interchangeable for most individuals, are equally good
foundations for love, marriage and family. And so we argue about the
immutability of sexual orientation in a way that we have never argued about
religion.
But why does immutability matter? Why is an immutable
characteristic more likely "suspect" than a mutable one, or more
worthy of statutory protection? It's been said that immutability matters
because it's fundamentally unfair to punish someone for something they did not
choose and cannot change. This statement has a certain superficial appeal, to
be sure. It seems to imply, however, that it is okay to punish someone
for something that they did choose or can change. Wouldn't that
only be true if we valued some "choices" more than others? Do we,
then, protect immutable characteristics because we would expect people to
change them if only they could? When we inject the immutability question
into debates over civil rights, are we saying that, if sexual
orientation were truly mutable, we would expect people to have to choose
between changing it and losing their job or their home? Would you consider
changing your religion, or your sex, if posed with such a choice?
In the end, immutability only really matters if we hold
one way of being to be superior to others. We do not bar racial discrimination
because one cannot help one's race, but because it is equally good to be
a member of any racial group, period.
Perhaps it is time to abandon the immutability concept.
Perhaps we never needed it anyway.
Fn1: I use this term in a somewhat different sense than that originally employed by Samuel Marcosson in his thoughtful articles on this subject.