Con Law Center Articles and Publications
Immutability is an important thread in equal protection jurisprudence.1 It helps explain when a government classification is constitutionally suspect, requiring courts to evaluate that classification under the exacting strict scrutiny standard.2 Recently the Supreme Court, though not expressly relying on equal protection arguments to reach its holding, has suggested that sexual orientation is an immutable trait of the sort that traditionally triggers strict scrutiny when the government relies upon it.3 But the suggestion that sexual orientation is immutable, and thus subject to strict scrutiny, has not found wide acceptance across the judiciary. Furthermore, the scientific evidence surrounding sexual orientation is far more subtle and nuanced than a simple dichotomy between “immutable” on one hand and “malleable” on the other might suggest.
LGBTQ advocates may be tempted to seize on the Supreme Court’s language to make equal protection arguments based upon strict scrutiny, especially in a political climate where courts appear likely to accept a wide range of rational bases for LGBTQ discrimination. But claims that focus on immutability are too rigid. Those arguments assume that most characteristics, including sexual orientation, can be classified in one of two binary categories—either immutable or malleable. When that assumption is applied to sexual orientation, it often unintentionally demeans same-sex attraction as an inferior trait that must be explained away. 5 It also puts the LGBTQ community in the awkward position of suggesting binary classification of all traits is possible, including sexual identities that the community has long recognized as far more fluid than traditionally thought. Furthermore, the assumption that there is a binary immutable-malleable divide between human characteristics ignores one crucial insight hidden within immutability theory: that government should not classify individuals based upon characteristics for which they bear no moral responsibility, whether or not that characteristic can actually shift over the course of an individual’s life. A renewed focus on that kind of responsibility may be a more useful foundation for arguments in favor of LGBTQ rights than immutability, as traditionally understood.
Michael Gentithes, 13 ConLawNOW 52 (2022)