Will Transgender Law Apply to Transracials Like Rachel Dolezal?

WASHINGTON - June 16, 2015 - PRLog -- WASHINGTON, D.C. (June 16,  2015):  Rachel Dolezal's decision to identify as black has been widely criticized, and caused her resignation as an NAACP official, even as Bruce Jenner's recent decision to hold himself out as female was widely supported.

        This creates questions as to whether the law related to transgender people will be applied to transracial people now that the issue has been raised, says public interest law professor John Banzhaf, who has won over 100 legal actions fighting illegal discrimination based upon both race and gender.

        A person who holds himself out as being of the opposite gender than the one he was born with is generally permitted to freely make that choice and to make that claim, even in the face of external evidence to the contrary.  Therefore lawyers may argue that a person who honestly feels or believes (as Dolezal may, or at least may claim) that her inner self is black rather than white should be legally entitled to do likewise.

        A person with male genitals is entitled to hold himself out as female, based solely upon inner feelings and with no additional medical or other evidence, even if it means he can use female restrooms.

        So arguably Dolezal with Caucasian skin should have the legal right to hold herself out as African American, even if it helps her gain and hold a position which might ordinarily go to a black person.

        How far the legal privilege to self-identify one's gender (or other characteristics) extends is unclear, says Banzhaf, although strong arguments can be made for similar if not identical treatment.

        Thus, while a transgender M-F presumably can freely chose to wear a dress or use a female restroom, it is less clear whether she can use female shower facilities at a gym, compete as a female in athletic events (especially for money), or apply for various forms of government aide set aside for female applicants.

         Similarly, while Dolezal presumably may legally dress and act like a black person - even to the point of altering her skin color, just as Jenner apparently had operations to alter his appearance - it is less clear that she can claim to be black for purposes of benefiting from programs like affirmative action, or applying for positions in which being black is normally required or at least strongly preferred.

        At the very least, the door is wide open for her lawyer to argue that the privilege to self identify should apply to race and ethnicity just as much as it does to gender, and that to treat the two self identifications differently would deny equal protection and violate anti-discrimination laws.

        Moreover, just as individuals and groups have organized and developed to support the rights of people who wish to change their gender, it is possible that Dolezal’s situation may serve as a catalyst for similar campaigns and lobbying on behalf of people who wish to change their race, argues Banzhaf.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf