In Defense of Immutability

Abstract

Over the last forty years the concept of immutability has been central to Equal Protection doctrine. According to current doctrine, a trait is immutable if it is beyond the power of an individual to change or is so fundamental to personal identity that it ought not be required to be changed. A trait that meets either of these criteria receives heightened legal protection under constitutional antidiscrimination law. Yet most legal scholars who have addressed the topic have called for the abandonment of the immutability criterion, on the grounds that the immutability criterion is conceptually confused, morally indefensible, and bound to stigmatize subordinate groups.

A rejection of the immutability criterion is unwarranted. The immutability criterion must be understood as targeting social, as opposed to personal, identities. In this paper I introduce work from social psychology and sociology in order to unpack the concept of social identity. I show that stigmatized individuals are denied access to high status groups, institutions, relationships, and occupations because of their immutable social identities. I conclude that, for Equal Protection doctrine, it is entirely irrelevant whether “immutable” traits are physically unchangeable or are part of an individual’s personal identity.

After defending this “social” conception of immutability, I show that social immutability ties together a number of threads running throughout antidiscrimination law, namely, animus and stigma jurisprudence under the 14th amendment and the “badges of slavery” reading of the 13th amendment. I then demonstrate how the social conception of immutability extends antidiscrimination protection to signifiers associated with gender expression, culture, and ethnicity.

https://ssrn.com/abstract=3343795

Keywords: Equal Protection, 14th Amendment, Immutability, Race, Gender, Culture, Immigration