What do Bruce/Caitlyn Jenner and Rachel Dolezal have in common? (Dolezal by the way is the purportedly white [black, both, neither?] president of the NAACP chapter in Spokane, Washington.) Both perhaps have inadvertently signaled the end of identity in America or at least have launched a discussion questioning the intellectual foundation of identity in politics, law, business, and so on.
Unless you've been living under a rock the last several months, you know that Jenner is today's cause célèbre because of his public disclosure that he is now, or on his way to becoming, a she. Whatever. While I can appreciate Bruce's accomplishments as a male Olympian, I could care less about his choice in his sex identity or sexual practice, or his recent sensational appearance in the entertainment media. Frankly, I include Jenner with the rest of his narcissistic family responsible for sapping countless hours of otherwise productive time from catatonic fans.
Dolezal presents a more fascinating story to me. Outed by her own parents no less, NAACP leader Dolezal is guilty of a serious identity crime: she's not black enough. Hell, she's not even black. But wait. Her defense is intriguing. She's a wannabe black. She identifies with black. She is the new black.
Before you think I'm ridiculing Dolezal, I'm not. Her choice to identify with blacks, despite her parents' claim that she's white as rice (and, really, wouldn't they know?), is no less legitimate than Jenner's sex conversion. Yet the latter is elevated to near deity status, while the former is criticized, reviled, and quite likely soon to be ejected from her NAACP position. To quote a true champion of identity politics, what difference does it make?
If you believe Jenner's decision transcends judgment and is unassailable, then intellectually you must hold the same belief about Dolezal's decision to "become" black. Therein lies this new "identity" paradox for some.
So how do Jenner and Dolezal intersect? Both illustrate that those little EEO or demographic boxes we are required to check on paperwork from birth to death are, in effect, meaningless. After all, if you can ignore your DNA, genetics, physiology, and any other characteristic that (presumably) defines your identity, then can identity have a permanent meaning?
When I was studying civil rights and employment law in law school, courts found that a critical requirement of "protected class" members' status was their "immutable characteristics" – i.e., their race, sex, ethnicity, age, etc. Things you were born with and could not change. Jenner and Dolezal's conduct throws "immutability" out the window. And as a result, if everyone is part of a protected class, or a potentially protected class member, then logically no one is part of a protected class. At some point, your identity simply will be "human." And maybe it should.
Think about it. If you apparently can choose to move into or out of an identity, what purpose does identity ultimately serve?
None, at least not in the Jenner-Dolezal world.
If Jenner and Dolezal haven't opened the door to ending the senseless, identity-centric focus on all things in our society, they've at least cracked it a bit. Can affirmative action or hate crimes exist if the beneficiary or victim can change identity at will? Can defendants establish defenses to civil or criminal liability by changing their identity?
Chief Justice Roberts recognized the folly of identity litmus tests in the Seattle School District case when he stated, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” And so MLK's wish for us to judge people by the content of their character rather than by the color of their skin (or by some other immutable characteristic) may come true even sooner.
Jenner and Dolezal’s actions suggest that identity – whether sex, race, or whatever – may have lost a significant part of its utility in the political-legal sense. Who'd have thought, however, the Kardashians would be partially responsible?