Adjudicating Identity

Abstract

Legal actors examine identity claims with varying degrees of intensity. For instance, to be considered “female” for the Census, self-identification alone is sufficient and no additional evidence is necessary. To change a sex marker on a birth certificate to “female,” however, self-identification is not enough; some states require people to show that they do not have a penis to be considered “female.” Similar examples of discrepancies in the type and amount of evidence considered for identity claims abound across identities and areas of law. Yet, legal actors rarely acknowledge that they are adjudicating identity in the first place, much less explain or justify the varying levels of scrutiny exacted upon identity claims. This Article attempts to make sense of identity adjudication by providing a taxonomy that explains why some identity claims are interrogated more than others. Taking a broad view of identity adjudication, it examines three types of laws (data-collection laws, anti-discrimination laws, and benefit laws) as well as four identity categories (religion, sexual orientation, sex, and race), and concludes that both the type of law at issue and the identity category affect how an identity claim is adjudicated. It then argues that across identities and types of laws, legal actors are adjudicating identity without proper attention to the particular legal context and can require more (or the wrong type of) identity evidence than necessary to achieve the function of the specific law at issue. This context-blind approach to identity adjudication produces inconsistent and incoherent results. This Article calls for a context-informed approach to identity adjudication, where the question of identity is linked to the function of the specific law rather than treated as an independent and stable “truth” about an individual.