Pleading Innocence: The Problem with Immutability in Sex Equality Law
Immutability has long held a privileged place in U.S. sex equality law, and it has produced a peculiar way of defending women: insisting that they “cannot help being women.” Justice Brennan’s Frontiero plurality reasoned that women should not be burdened by sex because it is an “immutable characteristic determined solely by the accident of birth.” The argument exposes how arbitrary it is to attach legal disability to characteristics unrelated to individual responsibility. But it also imports a moral premise with consequences just as large: one deserves equality most clearly when one is innocent of choosing the condition on which one one’s disadvantage is based. Equality becomes a plea of innocence, attempting at excusing women for occupying the lower rank of an unchallenged hierarchy.
The first problem with immutability is moral. It treats involuntariness as evidence of blamelessness and casts autonomy and subjectivity as morally suspect. If a woman deserves protection because she could not have chosen otherwise, a person who could change but refuses presents a harder claim. Yet sex inequality has never limited itself to punishing what is fixed. Much of its force goes into compelling what can be changed. In Price Waterhouse, Hopkins’s capacity to conform to the standards of femininity expected of a woman seeking professional authority did not diminish the discrimination, and instead supplied the means of enforcement.
That moral displacement becomes structural once immutability is allowed to define sex as a prepolitical fact. If sex arrives from nature complete and already socially meaningful, inequality can appear only as something subsequently and improperly attached to it. Hierarchy is removed from the production of difference and relegated to its misuse, which reverses the causal order. Anatomy and statistics prescribe no hierarchy or performance on their own. It is power that selects which bodily differences will matter, assigns consequences to them, and then redescribes the resulting social inequality as an expression of the original difference. The status that inequality produced ends up veiled in the mystique of a biological mandate.
Biological essentialism launders male dominance through biology’s supposed authority to interpret and dictate gender performance. Women’s disproportionate burden in caregiving becomes proof of a female disposition to nurture; men’s disproportionate possession of authority becomes evidence of a male disposition to lead. Across generations, force, dependence, convention, and repetition accumulate into observable differences, and those differences are invoked to absolve the conditions that produce them. Nature becomes an extraordinarily effective political category precisely because, once hierarchy speaks in its name, oppression no longer seems to need justification. After all, who is the mother nature to blame!
The instability of this union between immutability and sex equality shows most clearly in the law’s treatment of discrimination against transgender people. Trans existence disrupts the presumed correspondence among body, sex, gender, sexuality, and social role, yet litigation has often responded by extending immutability, describing gender identity as deep, persistent, medically cognizable, and therefore no more chosen than sex. Within formal equality the strategy is understandable. It also destined to fail: it seeks protection for nonconformity by proving that nature compels the nonconformity, and so it leaves in place the assumption that departing from the sexed norm requires nature’s endorsement.
Medicalization, then, works as exculpation. Medical evidence may be accurate and relevant, but protection becomes conditioned on proving an identity sufficiently involuntary to be forgiven. Sooner or later, a doctrine built on immutability has to reckon with what is fixed, and with it which account of sex carries legal authority.
Recent doctrinal development shows that consequence materializing. In Skrmetti, immutability reappeared in Justice Alito’s concurrence as a reason transgender status did not resemble the classes historically given to heightened protection. In West Virginia v. B.P.J., Frontiero’s own description of sex as immutable was invoked while biological sex was treated as the legally operative boundary. Once equality depends on identifying what a person immutably is, the law necessarily acquires the authority to declare what that person really is, and so what that person is allowed to be. Immutability began as a shield against disadvantage based on assigned sex, but can become a border that fixes the assignment in place.
A substantive conception of sex equality rejects both sides of this bargain. It does not ask whether difference is sufficiently natural to excuse the person who embodies it, because the origin of a trait has no bearing on whether subordinating people through it is legitimate. It asks instead how sex is made into social status: how bodily difference becomes dominance and subordination, normality and deviance, entitlement and accommodation. Immutability fails because it moralizes autonomy, an inherently dubious concept, and naturalizes the socially engineered performance of the sexes. Most seriously, it empowers law to police what should have been a communal reckoning of the gender order. For anyone discriminated against as a member of a subordinated group, the relevant fact is that their difference, however acquired, has been engineered to mean less.
