purposes of hiring and promotions. Yet if that individual checks the Native American box on an employer form, she may find herself listed as Native American in a number of human resources databases, used for a variety of purposes.
If one aim of formal identity is to facilitate the expression of individual intent in a more meaningful way, the requisite formalities should be universally accessible. The inheritance law context is again instructive here. Many individuals die intestate due to "the relative inaccessibility of the will-making process because of its obscurity, complexity, and cost."6 0 7 The process entails transaction costs, including estate planning lawyers and a significant time investment, disproportionately disadvantaging those of lower socioeconomic status.6 0 8 This distinguishes the will-making process from formalities like those required for legal marriage, which are more easily accessible.609 This comparison suggests that marriage formalities may provide a more promising model for forms of identity with similar or lower stakes.610 For example, for changes to the sex designation on a birth certificate, a simple and inexpensive administrative procedure is preferable to a rule requiring a court order or medical procedure.611
Formal evidence may be thought to provide a check against fraud. But fraud concerns are often premised on contestable ascriptive notions of, for example, who is a "real" American and deserves work in the United States, who is "really" married and should qualify for public benefits, who is a "real"
woman and may use the women's locker room, or who is a "real" Native American and is eligible for affirmative action. Formalities only defer controversies over authenticity back to licensing authorities. Those authorities may not have applied definitions suited to the purposes of identity regulation.
Accordingly, moves toward formalization intended to police the boundaries of authentic identity deserve closer scrutiny. Even when framed in terms of avoiding opportunistic or bad faith claims, fraud concerns assume that stable and consistent identities serve important interests, such as the reliance interests of third parties and the public. Those interests should be questioned.
Whether an identity ought to be stabilized so that others may rely on it bears on the issues of whether formalization is appropriate, whether formalities ought to be easily revocable and renewable, and what privacy guarantees ought to be attached. Stability against government disruption may be a worthwhile goal for citizenship because it would allow citizens to invest in building lives in the United States. 612 Likewise, children benefit from security and stability in parents. 613 Partners in a marriage may benefit from some level of stability as well, although there are reasons to regard this interest with suspicion.614
By contrast, the beneficiaries of stable and transparent sex, gender, and racial identities are often left unidentified. When policing of sex-segregated
spaces is motivated by the desire to preserve traditional gender norms, the public's reliance interest in those norms should be articulated and debated.
With respect to race, institutional reliance on an individual's past racial identifications may not be justified, depending on the purpose of the inquiry. If affirmative action policies are designed to address racial marginalization, deference to past formal identifications may be a poor proxy for that experience, as a person's encounters with discrimination may change
612. See supra note 202 and accompanying text. Similarly, formal tribal citizenship may foster investment in tribes. See supra note 402 and accompanying text.
613. See, e.g., ANNE L. ALSTOTT, NO EXIT: WHAT PARENTS OWE THEIR CHLDREN AND WHAT SOCIETY OWES PARENTS 15-20, 45-47 (2004) (discussing benefits of continuity of care for children and society); JUNE CARBONE, FROM PARTNERS TO PARENTS: THE SECOND REVOLUTION IN FAMILY LAW 111-22 (2000) (discussing evidence of the benefits of stability in child-parent relationships).
614. See, e.g., Sylvia A. Law, Women, Work, Welfare, and the Preservation ofPatriarchy, 131 U. PA. L. REV. 1249, 1290-91 (1983) (discussing reasons to be skeptical of policies enacted to further the state interest in marital stability; for example, the fact that "state action can only encourage or discourage in a rough sort of way a relationship so dependent upon individual volition and commitment," and because the goal of marital stability may be "predicated on a series of stereotypes"
about gender and family).
throughout her life. Moreover, these contexts implicate privacy concerns, as race, sex, and gender identities are often sources of stigma and discrimination.
Nevertheless, evidence provides an important measure of security to those claiming identities. Lives, livelihoods, and families may depend on stable recognition of citizenship, kinship, sex, or race. Advocates for those made vulnerable by identity-based regulation (such as DREAMers1 6 or Geena Rocero617) may decide that formal identity best serves the immediate interests of their clients or constituencies.6 18 Hopefully, the pursuit of formal recognition in these instances can coincide with longer-term questions about the justice of identity-based regulation.
CONCLUSION
Formalities may seem to provide a respite from the informal mess of the everyday experience of identity as a set of entangled relationships, complicated intersections, and power dynamics. Although it is productive to examine formal identity as an independent model, formality does not afford a clean break from the ascriptive versus elective identity debate. By establishing channels for the expression of identities, formalities can create new essentialist definitions of those identities. Formal identities may prove just as confining and static as those explicitly based on nature or nurture. Formal requirements may facilitate self-determination for some while setting traps for unwary others. This Article, which began as a critique of form, has ended as a critique of identity. Rather than expanding access to identities by replacing ascriptive definitions with formal ones, we might consider why legal rules hinge on identities at all, and if the reasons are valid, consider what definition of identity best serves the law's purpose.
615. Rich, supra note 73, at 217. Rich discusses the Malone brothers, and queries whether they might have experienced discrimination after first identifying as black. Id.
616. See supra note 176 and accompanying text.
617. See supra note 297 and accompanying text.
618. Cf Spade, supra note 329, at 29-30 (struggling with tensions between the ultimate policy goal of "deregulation of gender" and advocacy for transgender clients).