Conscious Identity Performance

Marginalized groups in the legal profession sometimes feel pressure to perform strategies to communicate their identity in a predominantly white legal profession. Relevant legal scholarship describes this phenomenon, for example, in terms such as covering and passing—largely forms of assimilation. The notion is that outsiders—women, people of color, LGBTQ—use these strategies to communicate with insiders—white, heterosexual, males—in ways designed to advance their status in the legal profession. This article expands on that scholarship by drawing on a theoretical framework that legal scholars have largely ignored: co-cultural theory.

This interdisciplinary theory describes how non-dominant cultures communicate in a dominant society. In particular, the theory catalogs the micro-level communication practices outsiders employ to navigate their workplaces. This article is the first to apply co-cultural theory to legal scholarship. The overarching claim is that conscious identity performance is an indispensable step toward empowerment for outsiders in the legal profession, who might otherwise internalize the insiders’ stereotypes to their detriment.