Silver Flight, Associate Member, University of Cincinnati Law Review
The United States legal system generally holds that individuals should not be discriminated against on the basis of immutable characteristics. However, not all immutable characteristics are protected, and not all characteristics that are protected are immutable. This article questions the role of immutability in anti-discrimination law regarding transgender, nonbinary, and other gender-nonconforming individuals.
II. Grimm v. Gloucester and Immutability
In Grimm v. Gloucester County School Board, the Fourth Circuit Court of Appeals considered a transgender student’s right to use the school bathroom that corresponded to his gender. The court held that the school’s policy of limiting single-sex bathroom usage to individuals with the “corresponding biological genders” violated both Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
In the Title IX analysis, the court referred to the Supreme Court’s recent holding in Bostock v. Clayton Countyand held that “a bathroom policy precluding Grimm from using the boys restrooms discriminated against him ‘on the basis of sex.’” Although the Bostock decision interpreted Title VII of the Civil Rights Act of 1964, the court wrote that it also guided their interpretation of Title IX.
In the Equal Protection Clause analysis, the court held that the policy was a sex-based classification, and therefore subject to intermediate scrutiny. The court cited the Seventh and Eleventh Circuits as other courts that have held that discrimination against transgender people constituted sex-based discrimination under the Equal Protection Clause.
The court also held that transgender persons constituted a quasi-suspect class. The court analyzed transgender status and held that transgender persons have historically been subject to discrimination, that being transgender bears no relation to ability to perform or contribute to society, that “the class may be defined as a discrete group by obvious, immutable, or distinguishing characteristics,” and that the class was a minority lacking in political power.
Under the third factor, “the class may be defined as a discrete group by obvious, immutable, or distinguishing characteristics,” the court wrote that “gender identity is formulated for most people at a very early age, and, as our medical amici explain, being transgender is not a choice. Rather, it is as natural and immutable as being cisgender.” Despite a brief reference to nonbinary genders and intersex people, the court carefully limited its opinion to “the rights of transgender students who ‘consistently, persistently, and insistently’ express a binary gender.” The court heavily emphasized Grimm’s immutable gender in the opinion, writing that “Grimm always knew that he was a boy” and “would opt to wear boys’ clothing.” Later, the court even wrote that he “did not question his gender identity at all; he knew he was a boy.”
III. Origins of Immutability
The idea of class-based scrutiny has origins in the 1938 case U.S. v. Carolene Products, which famously included in a footnote, “Nor need we enquire . . . whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” After the Court held that strict scrutiny would apply to race-based classifications, the 1973 case Frontiero v. Richardson was one of several that signaled that a heightened scrutiny would also apply to sex classifications.
In Frontiero, Justice Brennan drew analogies between sex and race, writing that “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth,” marking the “debut of immutability as a legal concept.” Brennan distinguished sex from intelligence or physical disability, which might be considered immutable, by emphasizing that “the sex characteristic frequently bears no relation to ability to perform or contribute to society.” Therefore, immutability by itself was not sufficient grounds for heightened scrutiny. However, Justice Brennan also emphasized other factors in the test, such as the idea that sex had little effect on one’s ability to contribute to society, and the fact that women had historically faced discrimination, and still faced “pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps more conspicuously, in the political arena.”
In the 1989 case Watkins v. U.S. Army, Justice Norris of the Ninth Circuit wrote in a concurrence that “by ‘immutability’ the Court has never meant strict immutability in the sense that members of the class must be physically unable to change or mask the trait defining their class.” Instead, “‘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.” Essentially, this new immutability asked not can you change a trait, but should you be required to change it? Many courts have adopted this newer version of immutability. Although at first glance this seems like it may enable a strong argument for protection against discrimination based on gender identity or sexual orientation, relying on a concept of immutability has several shortcomings.
IV. Problematizing Immutability
One of the issues with immutability, old or new, is that it masks moral judgments about the blameworthiness of traits. For example, when being transgender is framed as an immutable part of someone’s identity, something they have no choice over (although this may be true for many transgender individuals), it implies that if they had a choice, they should have chosen to be cisgender. Even while prohibiting discrimination against transgender people, a legal framework that relies on immutability implies that being transgender is still inferior to being cisgender.
Relying on immutability as a lack of choice also raises problems for anyone who does make choices about their gender, who doesn’t identify with one binary gender, or who experiences gender as fluid. The same issues arise in the realm of sexual orientation. Additionally, although some individuals may change their stance on the morality of being LGBTQ+ when faced with evidence of immutability, and such an argument may be helpful for individuals pursuing self-acceptance, studies have shown that in general, “it is not clear that born/chosen beliefs actually lead to acceptance/rejection.” Instead, deeply held moral and religious beliefs are likely to persist.
Another concern raised by new immutability in anti-discrimination law is that, by emphasizing traits that are central to one’s personhood, other stigmatized traits may slip through the cracks. For example, weight is an extremely common basis for discrimination, and science suggests that weight is largely influenced by biological factors rather than choices, yet it is not generally covered under new immutability and many would not consider it to be central to one’s personhood. In this sense, new immutability functions to approve of traits that, according to societal norms, may evoke a sense of pride, while excluding traits that may be a source of shame or stigma. Additionally, some might not experience their gender or sexuality as immutable and central to their personhood.
Lisa Diamond gives an overview of longitudinal studies that have shown that “[a]lthough therapeutic attempts to change sexual orientation are not successful, patterns of self-reported same-sex and other-sex attraction sometimes change on their own.” Many people may experience sexual orientation as immutable, and it has been shown that conversion therapy does not work. However, as shown in the longitudinal studies referenced by Diamond, the idea that sexual orientation is always immutable for everyone is not scientifically accurate and erases those who have a different experience.
Similarly, gender identity may not be immutable for everyone. Not only might someone’s gender change over time, but they might be genderfluid and identify with different genders regularly, or might experience multiple genders at once and express a mixture of traditionally feminine and masculine gendered clothing, style, or behaviors. Current law regarding transgender rights tends to center on one narrative of transgender experience, the “born this way”/“born in the wrong body” narrative of someone who knew their true gender identity from a young age and never wavered from it. The law silences other experiences, such as those who make discoveries about their gender identity later in life, whose experiences of gender change over time, or who want to express multiple genders. These experiences do not fit the acceptable narrative in anti-discrimination law. The rhetoric of “they had no choice but to be transgender,” implies that being transgender is inferior to being cisgender, and that if there had been a choice, any discrimination one faced would have been their own fault. Rather than relying on this argument, perhaps we should argue that no one deserves to be discriminated against on the basis of gender identity or expression, regardless of choice.
V. Alternatives to Immutability
Several scholars point out that immutability does not need to be a requirement to define a quasi-suspect class. Immutability has historically been treated as a factor rather than a requirement in the analysis, and alienage is an example of a suspect class distinction that is not immutable. Immutability is also not determinative of suspect- or quasi-suspect class status, because intelligence, which some may say is immutable, is not a protected class status. In 2012, the Second Circuit Court of Appeals used a broader test to conclude that “homosexuality is a sufficiently discernible characteristic to define a discrete minority class,” rather than relying on immutability. Similarly, courts could apply the quasi-suspect class analysis to those who are transgender, or more broadly, gender nonconforming, without requiring immutability.
There have also been other legal arguments that have been successful without relying on the quasi-suspect class analysis. For example, discrimination based on gender identity or expression could simply be cast as sex discrimination, as in Bostock when the court held that discrimination based on gender identity was necessarily sex discrimination under Title VII because the employer had to take sex into account when discriminating based on transgender status.
Another option would be to shift from a class-based analysis to a trait-based analysis. Identifying discrimination based on a protected trait, such as gender nonconformity, rather than whether an individual belongs to a protected class, or identifies as transgender, may provide more protection for those who do not fall into specific categories of sexuality or gender but instead are discriminated against for expressing non-normative gender that goes against societal norms in a way that is less articulable.
Writing in the field of employment discrimination, Jessica A. Clarke suggests that anti-discrimination law should target systemic biases, such that “to discriminate on the basis of a forbidden trait, an employer must demonstrate a business reason sufficient to meet a statutory standard or other exception.” Rather than focusing on the immutability of certain traits, Clarke suggests that advocates focus on how biases based on certain traits perpetuate systemic inequality. In the Equal Protection Clause realm, this could look like a type of heightened scrutiny for policies that discriminate based on gender identity or expression, rather than limiting heightened scrutiny to discrimination based on transgender status.
In Grimm v. Gloucester, the court emphasized that Grimm’s gender was immutable, and therefore he deserved to be treated like any other boy and allowed to use the boy’s restroom. However, the court also noted that Grimm had used the boys’ restroom for seven weeks without incident before the community found out and actually increased the privacy in the bathroom by adding “privacy strips and screens between the urinals.” Additionally, the court noted that the Board did “not present any evidence that a transgender student, let alone Grimm, is likely to be a peeping tom, rather than minding their own business like any other student.” This fear around transgender students using bathrooms that correspond with their gender is based on assumption that all students are heterosexual. In future cases like this, an argument can be made that even if a student hadn’t known that they were transgender from a young age, or if a student was nonbinary, they should be able to use the bathroom they are most comfortable with, and increasing privacy within bathrooms and locker rooms may not only solve the issue but also benefit all students who would appreciate more privacy. Rather than requiring future students in a case like this to prove that their gender is immutable, we should question whether the governmental objective requires a sex-based policy, or if it would be better addressed by, for example, improved privacy in school bathrooms.
There are several ways to work within anti-discrimination law and advocacy without demanding that gender be immutable. The methods discussed above are more inclusive and more useful than requiring immutability for protection from discrimination. Looking forward, we should conceptualize that discrimination based on a trait such as gender identity or expression should receive heightened scrutiny, not because gender is immutable, but because people should be able to express non-normative genders without facing discrimination, regardless of any element of choice.
 “Transgender,” adj., refers to someone whose gender identity does not match their sex assigned at birth.
 “Nonbinary,” adj., refers to someone who does not identify as a binary gender (male or female).
 Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020).
 Id. at 593-94.
 Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) (holding that, under Title VII of the Civil Rights Act of 1964, discrimination based on transgender status necessarily is discrimination on the basis of sex).
 Grimm, 972 F.3d at 616.
 Id. at 608.
 Id. (citing Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017); Adams v. Sch. Bd., 968 F.3d 1286 (11th Cir. 2020)).
 Id. at 611.
 Id. at 612-13. “Cisgender” refers to someone whose gender identity matches their sex assigned at birth.
 “Nonbinary genders” refers to gender identities other than male or female.
 Intersex individuals are those born with biological characteristics that differ from typical expectations for binary male and female bodies. See FAQ: What is intersex?, InterAct (last updated Jan. 26, 2021), https://interactadvocates.org/faq/.
 Grimm, 972 F.3d at 596.
 Id. at 597-98.
 Id. at 610.
 United States v. Carolene Prods. Co., 304 U.S. 144 (1938).
 Carolene Prods. Co., 304 U.S. at 155 n.4; Lisa M. Diamond & Clifford J. Rosky, Scrutinizing Immutability: Research on Sexual Orientation and U.S. Legal Advocacy for Sexual Minorities, 53 J. Sex Res. 363, 373 (2016).
 Diamond & Rosky, supra note 21, at 373-74 (citing to Korematsu v. U.S., 323 U.S. 214 (1944)).
 Frontiero v. Richardson, 411 U.S. 677, 688 (1973) (in which a plurality of justices wrote that classifications based upon sex must be subjected to strict judicial scrutiny). See also Reed v. Reed, 404 U.S. 71, 75 (1971) (holding that discrimination on the basis of sex is subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment).
 Diamond & Rosky, supra note 21, at 374.
 Frontiero, 411 U.S. at 686.
 Diamond & Rosky, supra note 21, at 374.
 Frontiero, 411 U.S. at 686.
 Diamond & Rosky, supra note 21, at 374.
 Frontiero, 411 U.S. at 686.
 Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989) (Norris, J., concurring).
 Id. at 726. The court referred to sex reassignment surgery, becoming naturalized citizens, and racial passing as examples of changing or masking the trait defining one’s class.
 Jessica A. Clarke, Against Immutability, 125 Yale L.J. 1, 4 (2015).
 Id. at 32. Clarke also argues that courts use new immutability as a supposedly objective way to mask their moralizing decisions about what kinds of behavior are socially acceptable and should be tolerated by society.
 Diamond & Rosky, supra note 21, at 382, noting that “bisexuals have been altogether absent from both scientific and legal discourses about the immutability of sexual orientation and its relevance to sexual minority rights.”
 Id. at 15.
 Diamond & Rosky, supra note 21, at 378.
 Clarke, supra note 33, at 33.
 Id. at 53.
 Id. at 57.
 Id. at 41.
 Diamond & Rosky, supra note 21, at 376.
 Id. at 371.
 Id. at 368.
 Nicholas Adjami, Sex and Gender Fluidity Versus ‘Born This Way’, 25 The Gay & Lesbian Rev. Worldwide, Jul/Aug 2018, https://glreview.org/article/sex-and-gender-fluidity-versus-born-this-way/ (an interview with Lisa Diamond and Jessica Clarke); Nova J. Bradford et al., Creating Gender: A Thematic Analysis of Genderqueer Narratives, 20 International Journal of Transgenderism 155, 160 (2019) (study noting that “[m]any participants described their gender identity as fluid, or fluctuating over time”).
 Shirley Lin, Dehumanization “Because of Sex”: The Multiaxial Approach to the Rights of Sexual Minorities, 24 Lewis & Clark L. Rev. 731, 749 (noting that U.S. v. Carolene Products never used the term “immutable”); Diamond & Rosky, supra note 21, at 374-75; M. Katherine Baird Darmer, “Immutability” and Stigma: Towards a More Progressive Equal Protection Rights Discourse, 18 J. Gender, Soc. Pol. & L. 439, 448.
 Diamond & Rosky, supra note 21, at 375.
 Id. (citing to Frontiero, 411 U.S. 677, 686).
 Windsor v. United States, 699 F.3d 169, 183 (2d Cir. 2012); Diamond & Rosky, supra note 21, at 375.
 Bostock v. Clayton Cty., 140 S. Ct. at 1750-60 (2020); but see Lin, supra note 46 (critiquing Bostock’s but-for analysis and analyzing its potential shortcomings by relying on gender stereotypes associated with binary sex assigned at birth).
 Lin, supra note 46, at 731-32 (writing within Title VII law, introducing a theory of a “multiaxial analysis” to identify “protected traits as socially constructed along four axes: the aggrieved individual’s self-identification, the defendant-employer, society, and the state.”).
 Clarke, supra note 33, at 93.
 Id. at 96.
 Id. at 98.
 Grimm, 972 F.3d at 614.
 Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894, 982 (2019) (writing about how students may prefer more privacy in locker rooms, and that same-sex spaces are not “no-sex” spaces).