Thursday, November 16, 2017

The Limits of Comparing Transracial and Transgender Status

Wanting to provoke thought, a coworker of mine sent around links to recent articles in USA Today (here and here) discussing two individuals who identify as "transracial." Both were born white but now identify as another race. As far as EEO law is concerned, the answer seems quite simple: discrimination against someone because he identifies as transracial can be regarded as race discrimination since you're basically treating someone adversely based on racial stereotypes. More complicated is the use of the term "transracial." A number of commentators (see, for example, here and here) have questioned whether that term, with its implicit comparison to transgender status, is really an appropriate label. I have similar misgivings.

Consider what it means to be transgender: an individual's innate mental sense of sexual identity is not aligned with that individual's assigned sex at birth, which typically reflects the individual's sexual anatomy. As a result, there is a mismatch between two innate sex-linked characteristics. An individual's race, however, while it may be grounded in some innate physical characteristics, is not grounded in any innate mental sense of racial identity.

The result of failing to recognize that gender identity is innate can be seen in the unfortunate life story of David Reimer. An identical twin boy, Reimer was raised as a girl, based on medical advice, after his penis was accidentally destroyed during a circumcision. Despite gender reassignment from male to female at a very young age, Reimer retained an innate gender identity as male, and when he learned from his parents about his gender reassignment, he decided to assume a male gender identity, changing his name from Brenda to David. Reimer, of course, was not transgender, but his story illustrates the point: whether someone is transgender or not, that individual has an innate sense of his or her gender.

If there were a racial analog to gender identity, then someone with the physical attributes of a particular race would typically have an innate sense of being a member of that race. Most individuals who have the physical characteristics associated with being Asian would therefore have an innate mental identity of being Asian. This means that a non-transracial Asian child raised in a non-Asian environment would feel out of place, even if he had no familiarity with Asian culture. He wouldn't have to have experienced what it means to be Asian because it would be innate.

Undoubtedly, someone may have a mental sense of racial identity, but it would strictly be the product of socially constructed norms and depend on the society and culture in which he lives. A black person living in the United States has a different racial identity from a black person living in Nigeria. Unlike with gender, there cannot be a mismatch between two innate aspects of race. Someone may not identify with the socially constructed racial identity of his own race, and in that respect, the individual might consider himself transracial. But this if fundamentally different from the way in which someone is transgender.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.