While some people may not be fully aware of all that is protected by the First Amendment, I feel safe making the assumption that anyone reading this blog is intimately familiar with the Amendment’s protection of free speech. Taken literally, this means that that a person residing in the United States can say or write anything without being censored or prosecuted by the Federal Government. Anyone with at least some knowledge of constitutional law, however, will be quick to note that this right is not absolute. Restrictions have been placed upon this amendment through a series of Supreme Court rulings. I will speak on the legitimacy of a few of these restrictions later in the week, but for now I want to also point out that the Supreme Court’s interpretation of the first amendment has also EXPANDED the freedom of speech beyond written or spoken language to include symbolic gestures, the most famous of which is probably flag burning. Because symbolic speech has been deemed protected under the first amendment, the freedom of expression is, at least in the eyes of the law, synonymous with the freedom of speech. The expansion of the first amendment in this way has prompted a number of legal cases to test the limits of this expansion. As a matter of fact, I recently heard of a story in which a person driving on the highway flashed his brights to oncoming traffic to warn them of an impending speed trap. That driver was pulled over and charged with obstruction of justice. However, the driver pleaded not guilty on the ground that the law forbidding driver’s to warn others of police activity violated his first amendment rights, claiming that the act of flashing his brights should be protected as a form of symbolic speech. Admittedly, I do not know if and how this case turned out, but I share the story to prove that the meaning of the First Amendment remains highly contested in contemporary culture.
For today’s post, I want to explore the relationship between the First Amendment and a person’s identity. The inspiration for this post can be traced back to a news story I read last month about a South Carolina teen by the name of Chase Culpepper who was forced to remove “his” make-up before in order to have his driver’s license photo taken. You can read the entire story here.
Essentially, the DMV cited a policy that states that a driver’s license photo will not be taken if it determined that the person is wearing a disguise that could confuse law enforcement officers from properly identifying the individual. According to Culpepper, the DMV employee stated that he could not wear his makeup in the photograph because, since he is biologically dedicated as a male, he does not “look like a boy should.”
It doesn’t take much analytical work to realize the patently absurd nature of the DMV’s policy. The way their policy is articulated, it appears that their chief concern is that the individual in question is trying to obscure his identity in an effort to confuse law enforcement officials in the case that he gets pulled over or has any other run-in with the law which would make it necessary for the police to correctly identify “him.” There is just one problem with this justification. Culpepper regularly dresses in female clothing and wears make-up as part of his everyday appearance. With this being the case, it seems like making him “look like a boy” in his official ID while he normally presents as a female would actually INCREASE the difficulty of law enforcement to properly identify Culpepper. While one may not have much control over their biological sex (short of having a sex-change operation), it is important to remember that sex and gender are NOT the same thing. A person doesn’t choose which genitalia with which they are born – it is etched into their biological coding. However, gender is widely understood as a social construct, and as such, it constitutes an expression of how one chooses to identify.
It is at this point that I advance the following argument: Identity is not a static state of being. It is a fluid, performative expression of how an individual interprets who they are as a person at a given point in time. Tying a person’s identity to their biological profile, in my view, is extraordinarily problematic. Identity is fluid, and subject to change. To use a personal example, I have had black hair, blonde hair, brown hair, and a mohawk throughout my years of trying to decide who I want to be. I’ve had a shaved head, and I’ve had hair almost down to my shoulders. I’ve weighed 105 pounds at one point in my life, and 195 pounds at another. I don’t really look like I do in my Driver’s license photo. So if that is the case, then what is to stop DMV officials from demanding that you maintain a consistent physical appearance for the sake of easy identification?
Now the link between identity and the First Amendment may not be immediately clear, so let me explain. If a person is not allowed to express their identity, then I see no other way but to deem the actions of the South Carolina DMV as a violation of Culpepper’s First Amendment rights. Just because he has a penis does not in any way mean that he must abide by the gender norms associated with the male sex. He is free to construct his own gender, or to resist those constructions all together.
This isn’t to say, however, that there aren’t flaws in my logic. For instance, in my last post, I alluded to the fact that someone’s identity may not be a choice. For instance, it is very difficult for me to get on board with the notion that gays and lesbians choose their sexual identity. This case, however, is a little different. He does not claim to be a part of one gender category or the other. So it is expression of his identity that is at the center of the controversy. Whether or not his gender non-conformity is a choice or not is not really the issue at hand anyways. After we wade through all the bullshit, it is clear that the South Carolina DMV’s policy is not to prevent people from wearing “disguises,” but instead to impose an identity upon a person based on societal gender norms, effectively denying a person’s expression of their identity. It is an undeniably discriminatory policy, and I hereby petition the South Carolina DMV to allow Culpepper to retake his photograph by indentifying as “he” chooses.Thanks for reading, and don’t forget to comment!