failing to recognize their complex identities and causing psychological and dignitary harmS. 503 Or consider the case of the intersex plaintiff in Johnson v.
Fresh Mark, who sued her employer after being restricted to using the men's restrooms.504 When asked for a clinical opinion on her sex, the plaintiff submitted a letter from counsel stating she was "'neither entirely male [nor]
entirely female."'5o Dissatisfied with this "decidedly non-clinical explanation," the court concluded that "the company made a good faith effort to determine which facilities were appropriate for Plaintiff, but left with her counsel's ambiguous response, was forced to rely on the unequivocal information provided on her driver's license."06
Still, formalities may accommodate diverse identities by giving respondents the option to choose more than one category or to choose none of the aboveo. 507 However, if individuals choose multiple identities, they may subvert the formality's function of channeling them into exclusive categories for administrative or other purposes.0 8 Making options exclusive may further the administrative aim of limiting the number of persons eligible to demand resources based on particular formal identities. For example, since the 1960s, there has been an uptick in the number of Indian tribes prohibiting multiple tribal memberships. 509 The increase coincides with congressional confirmations of judgment awards to be paid out to tribal members.510 One scholar argued that this development "provided incentives for tribes to formalize membership rules where informal rules had been used in the past, in order to limit membership to ...conserve tribal resources by prohibiting the enrollment of persons likely to be served by other tribes."5 1'
Formalities also trouble those with marginal identities-members of groups who do not meet norms or stereotypes associated with that group-for example, white people with low economic or social status, 512 or masculine
503. See, e.g., Lucas, supra note 370, at 1248 (discussing the multiracial category movement).
504. See Johnson v. Fresh Mark, Inc., 337 F. Supp. 2d 996, 997-98 (2003), aff'd, 98 Fed.
App'x. 461 (6th Cir. 2004).
505. Id. at 998.
506. Id. at 1000.
507. For example, since 2003, parents have been able to select more than one racial category to describe themselves on their child's birth certificate, consistent with changes to the census form.
Brumberg, supra note 256, at 409.
508. See, e.g., Lucas, supra note 370, at 1259 (discussing how Department of Education rules on collection of racial data "lump all self-identified multiracials into one category ... which then has no specific or independent meaning within the DOE reporting structure").
509. Gover, supra note 43, at 273.
510. Id. at 296.
511. Id. at 297.
512. Camille Gear Rich, Marginal Whiteness, 98 CALIF. L. REV. 1497, 1516 (2010) (discussing
"whites who only enjoy white privilege in contingent, context-specific ways"); see also LAURA E.
GOMEz, MANIFEST DESTINIES: THE MAKING OF THE MEXICAN AMERICAN RACE 149 (2007) (considering "the twenty-first-century legacy of Mexican Americans' history as off-white-sometimes defined as legally white, almost always defined as socially non-white").
women. Such individuals may find formalities coercive, and feel forced to make choices that do not ring authentic.
The most unique disadvantage of formal identities, relative to ascriptive and elective ones, is that they are confounded by dynamic identities: identities that change over time or depend on context. Formalities leave documentary traces that "inhibit forgetting."513 The idea that a past formality might estop an individual from claiming a different identity is based on an understanding of identity as impervious to change or reformulation depending on context. But people do not always experience identity in this static and acontextual way.
Researchers have found that many multiracial individuals change their racial identifications in different situations and over their lifetimes.5 14 For example, consider a multiracial woman who is only willing to identify as such if she believes her employer's diversity program is genuine as opposed to tokenizing. 51 The effects can be passed down through the generations, as one whose ancestors did not sign the Dawes Rolls may not have a claim to tribal membership. Or a person whose parents brought her to the United States without pursuing immigration formalities may find herself estopped from claiming U.S. citizenship. This estoppel problem is a growing risk as technology facilitates better collection and retention of records.
Formalities need not be static; as in contracting, they may be revocable or have conditions for termination. Some formalities, such as marriage and naturalization, are generally revocable through new formalities, while others, such as adoption, are not.1 One explanation might be the extent to which revocation could affect third-party or public interests, such as the well-being of children.
Curiously, sex-designation changes, which would seem to affect few public interests outside the prison and restroom contexts, are considered irrevocable. Courts have held that sex changes should not be allowed on birth certificates unless the change is "irreversible" and "permanent."5 Even some advocates of allowing a change without proof of surgery have argued, "It's the
513. Dery, supra note 451, at 687.
514. Nancy Leong, Half/Full, 3 U.C. IRVINE L. REV. 1125, 1128 (2013) (discussing sociological research); Rich, supra note 74, at 1532-35 (same).
515. Cf Jessica M. Vasquez, Blurred Borders for Some but Not "Others": Racialization,
"Flexible Ethnicity," Gender, and Third-Generation Afexican American Identity, 53 SOC. PERSP. 45, 61 (2010) (discussing reasons for inconsistent racial identifications).
516. See supra note 387 and accompanying text.
517. Parents who give up adopted children may be guilty of the crime of abandonment and sued for child support. See Lisa Cornwell, Cleveland and Lisa Cox, Ohio Couple, Give Back Adopted Son
After 9 Years, HUFFINGTON POST (Nov. 15, 2013, 1:20 PM),
http://www.huffingtonpost.com/2013/11/15/cleveland-and-lisa-cox-give-back-adopted-son n_4283178.html.
518. In re R.W. Heilig, 816 A.2d 68, 87 (Md. 2003); see also M.T. v. J.T., 355 A.2d 204, 209 (N.J. Super. Ct. App. Div. 1976) (holding that sex changes should be allowed on birth certificates if the changes are "consistent" and "irreversible"); Mottet, supra note 51, at 416-17 (discussing concerns by administrators and judges about "avoiding multiple corrections").
permanence of the transition that matters most."5 19 The rationale for this concern is not articulated, and there is a lack of empirical evidence that individuals are likely to want to "switch back."520 The unstated anxiety may pertain to whether the formality is fulfilling the cautionary function of requiring the claimant to think carefully about his or her transition. For this reason, perhaps, advocates of more lenient rules recommend another layer of formality for a birth certificate change: a doctor's letter attesting to the genuineness of the individual's gender transition, rather than proof of surgery.521
Most troubling for formalities are disruptive identities that refuse categorization or seek to destabilize categories through such means as gender parody. Consider again Divine the drag queen, whose performance of gender norms is not about passing as a woman, but rather, calling attention to the constructed nature of gender and sex.522 This performance may or may not subvert gender norms, depending on context.523 In any event, such performances may not be intelligible to legal formalities.