We Were Born This Way: The Fourteenth Amendment and Immutability

A person can be many things: spouse, parent, attorney, teacher, sports fan, dog owner, bisexual, taxpayer, employee, employer.¹ Each of these things constitutes a part of that person’s identity,² but few need any explanation in order for courts, lawyers, and lay people to understand their meanings. A dog owner owns a dog, while a taxpayer pays taxes; a teacher teaches, and a spouse is a married person. None of these things are controversial, yet when it comes to aspects of our identities involving sexual orientation or gender identity- and their attendant legal protections- clarity seems to disappear magically. But why?

Part of the confusion is that the law, particularly 14th Amendment case law and jurisprudence, has privileged immutability. This has been true ever since the United States Supreme Court wrote in Frontiero v. Richardson that

[S]ince sex, like race and national origin, is an immutable characteristic determined solely by accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate the “basic concept of our system that legal burdens should bear some relationship to individual responsibility”…³

On its face, this may seem a reasonable statement. “Immutable” means that a thing is “not capable of or susceptible to change,”⁴ and so Frontiero has often been a sound legal precedent for “born this way” arguments. When it comes to sexual orientation and gender identity, however, immutability makes for a poor argument.

Both sexual orientation and gender identity are malleable. Sexual orientation, for example, includes three dimensions: sexual attraction, sexual behavior, and sexual identity.⁵ Sexual attraction refers to whether I am attracted to individuals who identify as male, female, or something else; while sexual behavior considers the sex of those with whom I am intimate. Sexual identity, on the other hand, refers to how I identify myself within a given sexual orientation.⁶ All of this makes sense, so what makes sexual orientation changeable?

Let’s imagine that Logan is a 25-year-old man who was assigned and raised female, calling it an “accident of birth.” He has always been attracted to women, has exclusively dated and been intimate with women, and has identified as lesbian for most of his life. At the same time, Logan experienced gender dysphoria as a child and adolescent but has since socially and medically transitioned to male. Now living and identifying as male, Logan is still exclusively attracted to and intimate with women. What do we make of this?

In this scenario, it is clear that Logan’s sexual attraction is unchanged. So, too, is Logan’s sexual behavior. But what of Logan’s sexual identity? It’s entirely possible, likely even, that Logan- having transitioned to male- no longer identifies as lesbian but rather as straight. So can we say that Logan’s sexual orientation is immutable if one of its core aspects- sexual identity- can, in fact, be altered by a change in Logan’s circumstances?

This scenario also highlights the fluidity of gender. While Logan may have been assigned a gender at birth, likely consistent with his external genitalia, and lived with that gender for years, his gender expression may have been at odds with that initial gender assignment. In addition, Logan can take steps to ensure that his legal and social gender markers match his gender identity. This indicates that gender, from a legal standpoint, can change. It naturally follows that if sexual orientation can change and assigned gender can change, then neither orientation nor gender is immutable.

Even though I reach the conclusion that neither sexual orientation or gender identity are immutable, I do not follow that conclusion with the assertion that neither orientation or gender should be subject to lower levels of Constitutional protection. Instead, this is a perfect time to re-imagine our system of equal protection jurisprudence. We can toss out levels of scrutiny and simply ask, does a piece of legislation create separate classes and then treat those classes differently. If so, that legislation can be presumed to deny equal protection of the laws.

¹These are just a few of the identities the author may identify as on any given day.

²See Identity, Cambridge Dictionary (Nov. 5, 2023), https://perma.cc/CTV4-PN2J (defining identity as “who a person is, or the qualities of a person or group that make them different from others”).

³ 411 U.S. 677, 686 (1973) (quoting Weber v. Aetna Cas. & Surety Co., 406 U.S. 164, 175 (1972)).

⁴Immutable, Merriam-Webster (Nov. 8, 2023) https://perma.cc/46AZ-5VDF.

⁵Federal Interagency Working Group, Evaluations of Sexual Orientation and Gender Identity Survey Measures: What Have We Learned? (Sept. 23, 2016), https://perma.cc/C5WK-C6WQ

⁶Id.