Cases involving attire, hairstyles, names, or manners of speaking have increasingly attracted the attention of constitutional and socio-legal scholars. No longer viewed as marginal or esoteric, claims about the significance of a person's self-presentation are now recognized as testing the limits of basic constitutional principles. Employing an overarching perspective that analyzes appearance cases outside of their doctrinal context, I argue that a legal inquiry focusing on whether a plaintiffs appearance accurately and stably reflects his or her identity is flawed, since it relies on unattainable conceptions of the nature of identity and the meaning created by appearance. Diverging from current legal scholarship, which treats appearance cases only in the context of minority rights, I suggest that appearance adjudication should shift its focus from inquiring about the extent to which the appearance is connected to its bearer's identity to inquiring about the significance of appearance to his or her personhood. This shift reflects the notion that the vulnerability and complexity of appearance are part of the universal human experience and not just the plight of minorities. Such a normative shift will produce a more adequate legal treatment of claims regarding the personal and social significance of appearance. Developing an alternative theoretical framework, I propose understanding appearance as the poetics of personhood. Both in appearance and in poetry, the medium is inherent to the meaning it creates, and thus both appearance and poetry are hard to rearticulate in categorical or nonfigurative language. My approach can transform the legal discourse from considering "identity" in the abstract to accommodating the experiences, voices, and interactions of concrete, embodied individuals, who may not always be able to articulate a rational justification for their appearance, but are still certain of its central role in their personhood.
Adjudicating Appearance: From Identity to Personhood,
Yale J.L. & Feminism
Available at: https://digitalcommons.law.yale.edu/yjlf/vol19/iss1/3