Michael Gentithes (University of Akron School of Law; Chicago-Kent College of Law – Illinois Institute of Technology; New York University School of Law; Loyola University Chicago School of Law) has posted Suspect Classifications, Immutability, & Moral Responsibility (13 ConLawNOW 52 (2022)) on SSRN. Here is the abstract:
This essay argues that when LGBTQ advocates raise equal protection arguments, they should resist the temptation to make immutability claims. Instead, they should acknowledge greater flexibility in the continuum of sexual orientation and gender identity, thereby avoiding traditional and binary immutability theory, and emphasize the lack of moral responsibility as a ground for strict scrutiny. Such arguments offer more traction for future cases rather than repeated efforts to suggest that sexuality is biologically determined or unalterable. This approach shifts the legal focus to the moral responsibility logic that lies behind traditional immutability theory, which may ultimately be more persuasive to courts and public opinion.