(Im)mutable Race?

Abstract

Courts rarely question the racial identity claims made by parties litigating employment discrimination disputes. But what if this kind of identity claim is itself at the core of a dispute? A recent cluster of “reverse passing” scandals featured women—Rachel Dolezal and Jessica Krug among them—who were born white yet who were revealed to have lived as members of Black, Indigenous, or Person of Color (BIPOC) communities. These incidents suggest that courts will soon have to make determinations of racial identity as a threshold matter in disputes over employment discrimination and contract termination. More specifically, courts will have to decide whether racial identity can change.

This Essay offers a framework for thinking about the legal disputes that will arise from accusations of reverse passing. It makes a normative sociological statement about how we should understand changes in racial identity, as well as a positive doctrinal statement about what that means for law. Social science and theory have long questioned the claim that race is a stable identity marker such that there can be a fixed, objective, and observable truth. Law, conversely, has generally rejected the possibility of racial transformation even as it grapples with the mutability of other seemingly immutable traits.

I show that, particularly in light of the Supreme Court’s 2020 decision in Bostock v. Clayton County, social science and law are not as far apart as we may think. The doctrinal foundations needed to account for racial identity transformation already exist, and the analytic means of doing so are largely there as well. What is left for courts to do is to cultivate attentiveness to race in a way that realizes these legal principles and social science insights. The Essay concludes with suggestions for how courts can cultivate a greater attentiveness to the ways in which race is performed and experienced: a kind of analysis that courts already conduct, but could conduct better.

Keywords: Reverse Passing, Rachel Dolezal, Jessica Krug, Immutability, Racial Identity, Bostock, Anthropology, Employment Discrimination

JEL Classification: J71