“New Immutability” vs. Systemic bias

I happened upon a long Yale Law Journal article on the concept of “immutability” in antidiscrimination law.

It makes some good solid introductory and conclusory points that I’ve been trying to make, with a lot of detailed discussion in between.

First, the question:

Why is it illegal to discriminate on the basis of certain traits, like race or sex, but not others, like experience or beauty? One answer that has been offered in the context of the constitutional guarantee of equal protection is that certain human traits are immutable, meaning they were not chosen. This concept has long endured the scholarly criticism that it is “both over- and underinclusive.” For example, it is permissible to discriminate on the basis of intelligence, which some say is innate, but not religion, which some say can be changed. In response to the argument that sexual orientation might be changed and is therefore undeserving of protection, gay rights advocates have persuaded many courts, perhaps even the Supreme Court, to adopt a different understanding of immutable characteristics. Many courts now ask “not whether a characteristic is strictly unchangeable, but whether the characteristic is a core trait or condition that one cannot or should not be required to abandon.” Or, as another judge put it, “‘immutability’ may describe those traits that are so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change them, regardless of how easy that change might be physically.”

(Footnotes omitted throughout) In other words, “immutable” doesn’t really mean “immutable” in the new regime.

So far, so fair.

This indentation is my digression:

I can assure you that religion can change. I’ve changed mine significantly twice as an adult.

But it wasn’t unequivocally a choice. Both times, a change of conviction compelled me to change religion or stand self-accused as a hypocrite. I couldn’t have truly changed religion on demand on economic incitement to change; I only could have hypocritically feigned a change under such duress.

So should there be laws against religious discrimination? I suspect that if antidiscrimination laws were amended to eliminate prohibition of religious discrimination, there would arise pockets of religiously discriminatory businesses (I’m thinking of the kinds of proprietors who thought “Christian Yellow Pages” was a great idea). Frankly and bluntly, I don’t think some weird pockets like that are intolerable.

But I suspect that there would be more: pervasive and systemic discrimination (more about that later) against adherents of a few religions. I don’t think my religious tradition would be systematically disfavored, but that some others would be. For instance, how employable would Scientologists be if the law allowed you to ask “Religion?” on an employment application? I’d be sorely tempted to use “Scientologist” as a proxy for “wacko; likely to end up jumping up and down on my sofa.”

And perhaps we’d become religiously balkanized to an extent that would surprise me. Those considerations seem to warrant keeping bans on religious discrimination in economic life.

End digression.

But the author proceeds, calling this non-immutability “the new immutability,” and demonstrating that

while the new immutability has had success in constitutional litigation for LGBT rights, it is a questionable strategy for reconceptualizing the broader project of equality law. As a normative matter, the new immutability obscures critical questions about why some characteristics ought to be treated equally, offering only the empty assertion that they are fundamental to personhood.

Since I’m not an untenured law professor, I can say what the author probably could not say, even assuming she wanted to: “the new immutability” is a questionable strategy, and insofar as LGBT rights depend on such a fishy concept, LGBT victories are fishy.

In the end, the author suggests the radically old idea that (gasp!) antidiscrimination laws should

target[] systemic forms of bias, rather than the goal of protecting immutable traits …

By systemic biases, I refer to discriminatory practices that are both structural and pervasive. Structural approaches to employment discrimination are concerned with whether institutional practices contribute to unequal opportunity, rather than the guilt or innocence of particular types of victims or perpetrators. Structural accounts of discrimination locate the causes and consequences of inequality in social and institutional practices, arrangements, and systems. They change the focus from individuals and their choices to how workplace structures “contribut[e] to the production or expression of bias.” The structural approach’s focus on the workplace itself as the cause of inequality creates an argument for legal intrusion into the prerogatives of employers. By contrast, immutability arguments look to whether the victims of discrimination, considered as a class or group, deserve protection … Thus, a structural frame would put this Article’s question not as which classes should be protected, but which forms of bias the law should disrupt.

Pervasive forms of bias connect to larger social systems of hierarchy and segregation and contribute to broader problems of inequality. The focus on pervasive biases differentiates a targeted approach from a universal one and provides a limiting principle. Unlike isolated instances of workplace unfairness, pervasive biases substantially limit the opportunities of affected individuals.

(Emphasis added) This idea is radical because it assumes that there needs to be an actual and substantial problem with bias in the (economic) system before we run around passing laws to protect a group that may not need protection. Pop-up workplace bigotry isn’t enough. Religious disapproval that does not manifest itself in hiring, promotion, retention, firing or other economic decisions isn’t enough.

That’s exactly what I’ve been trying to argue for years. That’s what I understood the law to be before it was hijacked by identity politics.

I would add that there needs to be some demonstration of systemic economic bias — meeting a burden of coming forward with some substantial evidence — before a bill gets any legislative thumbs up. I doubt, now as I have for 25 or so years (if not more), that proponents of antidiscrimination laws based on sexual orientation can meet that burden.

Throw in “Transgender” (the T in LGBT) or “gender identity” or whatever the term du jour is, however, and I’m not so sure how that would come out. And I’m not prepared to think through that in public just yet, except to say that like antidiscrimination laws based on sexual orientation, antidiscrimination laws based on gender identity are spookily based on a subjective and self-reported attribute, which seems to me to open some doors for real abuse by, not against, the supposed victims.

UPDATE: Ryan Anderson thinks SOGI (Sexual Orientation and Gender Identity) laws are a very bad idea.

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“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.