Constitutional Law Employment Law

Rachel Dolezal’s Legal Issue Different Than Those in the TransGender Community

There has been much controversy and discussion stirring since Rachel Dolezal was revealed to be a white woman passing as a black woman. For those of you living under a rock the past few days, Rachel Dolezal is the 37-year-old head of the NAACP chapter in Spokane, Washington; a professor of Africana studies at Eastern Washington University; and was recently “outed” by her parents as a white woman who has been passing as a black woman for years.

The talking news heads have been comparing her case to that of Caitlyn Jenner, whose transition to a woman was famously declared on a recent cover of Vanity Fair. But that comparison would be wrong – very wrong in my opinion and in the eyes of the law. The transgender community is not interested in passing as something they’re not. They are telling the world that they -since they can remember- are not the gender their bodies proclaim them to be. They are not passing as women or men – they are women or men. Choice is not involved. And that is why more and more many communities are affording them legal protection. Gender-identity has been added as a category requiring protection from discrimination in many states across the country. As recently as a few weeks ago, the Town of North Hempstead on Long Island changed its code to ban discrimination of town workers on the basis of gender identity. Courts across the country have held that employers cannot ban trans-gender individuals from using the restrooms, changing areas or locker rooms assigned for the gender with which they identify. It is precisely because gender identity is not seen as a choice that the protections are there – our jurisprudence has long recognized that it is wrong to treat people differently based on characteristics that are not within their control and instead are part of their makeup from birth.

Not Caitlyn Jenner
Not Caitlyn Jenner
The Dolezal case has nothing to do with that and is nothing like that. Ms. Dolezal’s case is one of cultural appropriation for a personal benefit. She chose to portray herself as a black person and gained notoriety and prestige due to her false race. There could be a claim against her perhaps if she gained some benefit through the fraud. For example, if she was placed on a police oversight board because the community wanted a minority voice on the panel or if she gained some benefit by stating she was black on some application.

But most workplaces don’t employ affirmative action and therefore cannot make decisions based on race or even inquire about race when someone applies for employment. The reason gender identity comes up in employment litigation from time to time is because of the issues regarding accommodations in rest rooms, locker rooms and changing areas like I mentioned above.Since Title VII passed in the 60s, however, there have been no accommodation distinctions based on race – so if Ms. Dolezal let’s say worked at a bank that had never asked her about her race and she chose to identify and hold herself out as a black person this would be a non-story and would not be a new phenomenon. My friend Baz Dreisinger, a professor at John Jay College, wrote the excellent book Near Black: White-to-Black Passing in American Culture/ in 2008 and told about numerous instances of white men and women purposely passing as black. Some did it to better integrate into the Jazz community of the 1920s, others did it because they fell in love with a black person and decided to become full members of the black community since they would be ostracized in the white community. So this is not really that new of a concept. The only reason this became a thing is because of the fame and prestige Ms. Dolezal gained as a result of her deception. Why did she feel the need to do it when she likely could have accomplished all of the same goals while not trying to pass as someone she’s not? Who knows – lawyer here not psychologist.

What would be wrong though is to use Ms. Dolezal’s case as a reason to slow down or stop the current trend toward recognizing gender-identity as a category worthy of protection in anti-discrimination laws. Or to equate her choice to fake her race as some sort of moral equivalent of those in the transgender community who are transitioning or have transitioned. Many pundits are doing that right now and we should not stand for it.

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