Sex and Gender Fluidity versus ‘Born This Way’
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 She found that over time many of her participants shifted along Kinsey’s sexual orientation spectrum, often adopting new identity labels to accommodate their changing attractions and relationships. She’s careful to point out that sexual fluidity is not the same as bisexuality. Traditionally, even bisexual people were thought to occupy a fixed spot on the spectrum, but Diamond challenges that narrative. She recalls one participant who described herself as equally attracted to men and women, but two years later reported that she was four times more attracted to women than to men.

            Diamond’s findings are reflected in the open-minded approach toward sexuality that has come to define today’s young people. In a recent British poll conducted by YouGov, only 46 percent of eighteen- to 24-year-olds identified as “exclusively heterosexual”—0 on the Kinsey scale—with 35 percent pegging themselves as a 1 or a 2 (out of 6, “exclusively homosexual,” which took six percent). A 2017 Glaad/Harris poll in the U.S. found that fully twenty percent of those in the eighteen- to 34-year-old bracket identified as “lgbtq,” of which twelve percent identified as “non-cisgender,” i.e. less than fully committed to their assigned gender. This finding led the website YPulse to dub Millennials as the “gender-fluid generation.”

            The concept of fluidity in both gender and sexual orientation has implications for the way the courts respond to questions about the civil rights of LGBT people. In applying the Equal Protection Clause of the Fourteenth Amendment, the courts must determine whether the parties involved are members of a “suspect class,” i.e. a group historically subject to discrimination. These classes receive heightened scrutiny, meaning the policy being challenged is held to stricter standards. To be considered a suspect class, the group facing discrimination must, among other factors, be defined by an immutable trait. Accordingly, immutability has been referenced in a number of important LGBT-related cases, including the historic Obergefell v. Hodges marriage equality case.

            Both of the people I interviewed want the courts to look beyond immutability and take a more inclusive approach to LGBT issues. Clarke notes that certain traits, notably religion, are protected despite being mutable. In a 2008 case, Judge James Robertson compared gender transitions to religious conversions, arguing that if discrimination against religious converts qualifies as such, then actions against transgender people similarly qualify as sex discrimination. Clarke advocates for more commonsense thinking like this. Instead of scrutinizing the mutability of a trait, she says court officials should think more broadly about how to fight discrimination of all kinds.

            Diamond agrees, and contrasts our current situation with the Loving v. Virginia interracial marriage case, where immutability never came up: “No one said, ‘Oh, we’ll allow blacks to marry whites if they can’t help themselves … if they were born with an enduring desire for white people.’ That would have been ridiculous.” Diamond contends that the “born this way” approach might work as a short-term fix, but she argues that we need to work on strategies that will be more inclusive of various traits over the long haul. In short, recognizing the diversity of LGBT experiences is imperative to reaching the ultimate goal of liberation for everyone.