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Public Interest Law Professor John Banzhaf

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Transgender Policies May Apply to Transracials Like Dolezal, Says Prof. John Banzhaf

The Former Bruce Jenner, and Many Other Transgender People, Are Free to Choose and/or Switch Gender, So Why Not do the Same with Race Also, Asks Prof. Banzhaf

Washington, DC, June 20, 2015 --( Rachel Dolezal's decision to identify as black has been widely criticized, and caused her resignation as an NAACP official, reported the New York Times, even as Bruce Jenner's recent decision to hold himself out as female was widely supported, as the Washington Post and other media noted.

This creates questions as to whether the policies 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, reports the Transgender Law Center on its web site. Therefore some 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, argues Banzhaf.

As the Transgender Law Center points out, a person with male genitals is generally able 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, who appears to have 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, suggests Banzhaf.

How far the custom of permitting a transgender person 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 may be able to 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, notes Banzhaf.

Similarly, while Dolezal presumably may dress and act like a black person - even to the point of possibly altering her skin color - 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, Banzhaf says.

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.
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George Washington University Law School
Public Interest Law Professor John Banzhaf
202 994-7229 // 703 527-8418

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