In Defense of Immutability

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 if it is fundamental to personal identity. 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 oppose opposed to personal, identities. In this Article, I introduce work from social psychology and sociology to unpack the concept of social identity. I show that stigmatized individuals are denied access to high 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 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 Fourteenth Amendment and the “badges of slavery slavery” reading of the Thirteenth Amendment. I then demonstrate how the social conception of immutability extends antidiscrimination protection to signifiers associated with gender expression, culture, and ethnicity.