Ideality, identity, and deviance among legal professionals

Ideality and deviance have been important sociological nodes from which to understand the perception and experience of identity within social and legal institutions (Becker Reference Becker1963, Reference Becker1997; Weber Reference Weber1978). While ideal types offer frameworks for expectations and coordinates of successful navigation (Acker Reference Acker1990, Reid Reference Reid2015), social deviance offers the crucial perspective of the “outsider” (Becker Reference Becker1963, Reference Becker1997) to investigate the experience of those who do not fit in. Although traditionally used within law and society scholarship concerned with criminal processes and outcomes (e.g., Rubin Reference Rubin2021), the framework of deviance offers useful empirical and theoretical purchase for tracing organizational inequalities. Particularly when experiences are investigated with qualitative methods, they can offer, as Patricia and Silbey (Reference Patricia and Silbey1995) suggest, “hegemonic and subversive narratives” with insights into understanding the working of power and the taken-for-granted connections between lived experiences and the organizations they are embedded in.

The legal profession has historically offered a rich landscape for sociolegal scholarship unconvinced of institutional neutrality and committed to highlighting systemic structural inequalities (e.g., Galanter Reference Galanter1974; Dixon and Seron Reference Dixon and Seron1995; Vyes and Garth Reference Vyes and Garth1996; Garth and Dezalay Reference Garth and Dezalay2010; Yves and Garth Reference Yves and Garth2021; Edelman and Suchman Reference Edelman and Suchman1999; Hagan and Kay Reference Hagan and Kay2007; Payne-Pikus et al. Reference Payne-Pikus, Hagan and Nelson2010; Gorman Reference Gorman2015; Headworth et al. Reference Headworth, Nelson, Dinovitzer and Wilkins2016; Culver Reference Culver2018; Ballakrishnen Reference Ballakrishnen2021; Reference Ballakrishnen2023a; Nelson et al. Reference Nelson, Dinovitzer, Garth, Sterling, Wilkins, Dawe and Michelson2023). With some exceptions (e.g., early work that connected organizational navigation to an archaic construction of homosexuality as “sexual deviance,” Achilles Reference Achilles, Gagnon and Simon1967; Richman Reference Richman2002; Weston and Rofel Reference Weston and Rofel1984), deviance has not been the main framework within which these organizational inequalities have been considered. However, irrespective of nomenclature, an important strain of research on organizational inequality deals with minority identity performance and cultures of inclusion (e.g., Wilkins and Mitu Gulati Reference Wilkins and Mitu Gulati1996; Carbado and Gulati Reference Carbado and Gulati2000; Adediran Reference Adediran2018; Melaku Reference Melaku2019; Ballakrishnen Reference Ballakrishnen2021) and tracks what organizational scholars have termed “identity management practices” (Reid Reference Reid2015) adopted by those with variation – or, deviance – from the “ideal type” (Acker Reference Acker1990). Similarly, without explicitly naming it as such, across sites, minority professional performance has been explained as deviance, with these organizations being largely unwelcome to outsiders (e.g., Best et al. Reference Best, Edelman, Krieger and Eliason2011; Dinovitzer Reference Dinovitzer2006) and fraught with identity dissonances for those who did not naturally align alongside expectations of race, gender, and class ideal types (Sommerlad Reference Sommerlad2007; Wilkins Reference Wilkins1998). Minority lawyers are routinely called upon to either “cover” their identities to make them central in professional interactions (Yoshino Reference Yoshino2007) or “bleach out” in ways that undermine their authentic self to suit more normative scripts of professionalism (Wilkins Reference Wilkins1998). Still, not all might be able to “work” their identities in ways that bleach out (Carbado and Gulati Reference Carbado and Gulati2000), and those who might be able to do it, might still find their distinctions and deviations from expected performance to hold dubious and unreliable social capital (Ballakrishnen Reference Ballakrishnen2023a).

Other scholars note that the cultural expectation of normativity is so ingrained in law school culture that it both shapes law school experiences and can be formative in decision-making beyond law school, causing law students to feel pushed to pursue normative outcomes from their law school, like law firm positions (Chang and Davis Reference Chang and Davis2010; Sturm and Guinier Reference Sturm and Guinier2007) and be unreflective in their legal education because of the propensity of the embedded structural racism in their spaces to feel “normal” (Capulong et al. Reference Capulong, King-Ries and Mills2021). For example, in an empirical study on Asian American and Latinx law students, minority student groups used baseline “bleached-out” language when assessing logics of success and achievement (e.g., to become a successful corporate attorney), even as they navigated law school very differently in relation to their peers (Pan Reference Pan2015). As a result, although many pursued BigLaw, they hoped to stay true to their roots through various pro bono opportunities. This juxtaposition between logics of authentic self and expectation alongside the pressure to bleach out highlights the nuanced ways in which minority actors might be called to “work” their identity (Carbado and Gulati Reference Carbado and Gulati2000) while bearing the burden of what Wilkins and Mitu Gulati (Reference Wilkins and Mitu Gulati1996) call an “obligation thesis” to their communities. These expectations have even more extreme implications on intersectional minorities who might find these cultural scripts about normativity and deviance in legal institutions – what scholars have called a “white space” (Capers Reference Capers2021) and a “straight space” (Ballakrishnen Reference Ballakrishnen2023b) – hard to deflect (Deo Reference Deo2020). For example, Melaku’s research (2019) on black women in the legal profession surfaces these institutional parameters that make professional navigation particularly difficult for those with intersectional identities since they are constantly being compared to “ideal type” frameworks that are unviable for them and because these individuals are least likely to find institutional “fit” or have the incentives to “fight” and stay within these organizations. Altogether, as Carbado and Gulati (Reference Carbado and Gulati2000) warn, even when minority actors “race to the top” they are not likely to make any institutional changes because their inclusion is likely to be predicated on their assimilation rather than their particularities. Instead, as Adediran (2018) reminds us, this is likely to offer more performative capital for the institutions they are part of rather than being structurally transformative for the individual’s chances of success. It is this line of scholarship about professional identity formation and the costs of deviance as important nodes to consider institutional inequality that framed the empirical context of this research inquiry.

Illegible violence, microaggressions, & discrimination

Violence has historically been considered a breach of the social contract and core of what law was designed to prevent and protect its constituents from (Bohannan Reference Bohannan1957:1989). But the study of violence has evolved to recognize a range of harms not traditionally seen as “violent” (Austin and Thomas Reference Austin and Thomas1992) and sociolegal frameworks have illuminated how our understandings of violence and its illegitimacy are primarily derived from institutional norms (Couzens Reference Couzens1971; Hoebel Reference Hoebel1954). For example, Weinberg’s (Reference Weinberg2016) “consensual violence” research on mixed martial arts and sexual sadism and machoism complicates the assumptions of consent and invitation in violent interpersonal contracts. Simultaneously, there might be a range of non-consensual acts that cause harm, but are not coded as violent. Altogether, research has revealed the ways in which violence might be subjective and primed by a range of understandings about legitimate harm. For example, in their early research on “courtship violence,” Miller and Simpson (Reference Miller and Simpson1991), show how violence in intimate partnerships are coded as problematic differently by men and women who are in them and that recourses to such violence are also gendered depending on the resources women feel are available to them. Similarly, Laura Beth Neilson’s research (Reference Nielsen2009) on public speech reveals that while everyday interactions for minorities are rife with offensive comments about their identities that they find to be a serious personal and social problem, most targets of such speech do not see it as rising to the level of legal harm and do not wish to use the law to diffuse it. At least some part of this resistance to using legal frameworks for understanding interpersonal violence is that standards for such harm are difficult to meet through formal processes (e.g., Pérez Reference Pérez2022 on the illegibility of racist humor to be coded as harm), especially for those without identity privilege (Clair 2020; Kleps Reference Kleps2022) and that legal institutions themselves could produce “slow violence” through their processes (Barak Reference Barak2023). Further, who is seen as a reliable witness of their own experience is also predicated on sociolegal understandings of harm. Following philosopher Miranda Fricker’s (Reference Fricker2007) framework for epistemic injustice – i.e., that someone might be wronged specifically in their capacity as a knower – scholars have argued that a range of minority perspectives are discredited based on their ability to be seen as legible, valuable, or relevant (Ballakrishnen and Lawsky Reference Ballakrishnen and Lawsky2022; Washington Reference Washington2022). For example, women’s testimonial credibility in cases of sexual violence harassment are routinely seen as not credible enough to warrant legal sanction and intervention because of stereotypes associated with their identity (Banet-Weiser and Claire Higgins Reference Banet-Weiser and Claire Higgins2023; Tuerkheimer Reference Tuerkheimer2017). Lisa Washington (Reference Washington2022), similarly uses this framework – and specifically Fricker’s construction of “hermeneutical injustice” – to show how mothers who are survivors are not seen as credible sources even of their own personal situations because of structural identity prejudices that obscure the legitimacy of their narrative.

Approaching our understandings of these systemic inequalities and credibility deficiencies using the position of the deviant offers new ways for us to understand nuance in discrimination. Sociolegal research has consistently shown that even when there are strict and consistent understandings of civil rights and protected categories, there is ambiguity of enforcement given the interactional nature of issue (Kleps Reference Kleps2022; Marshall Reference Marshall2005; Moyer and Haire Reference Moyer and Haire2015). Because of this ambiguity in enforcement, many who face discrimination might choose to not contest it (Marshall Reference Marshall2005:106–108). This is particularly true of those who are deviant: i.e., those whose status within a given group is contested, or perceived to be “lower” will both perceive more discrimination (Hirsh and Lyons Reference Elizabeth and Lyons2010; David et al. Reference David, Nielsen and Weinberg2017; Nelson et al. Reference Nelson, Sendroiu, Ronit and Dawe2019) and report it less than others with high status identities because they might second guess their experience (Doering et al. Reference Doering, Doering and Tilcsik2023; Kaiser and Major Reference Kaiser and Major2006; Payne-Pikus et al. Reference Payne-Pikus, Hagan and Nelson2010). Women, for example, might choose to stay invisible while contesting hostile work environments (Ballakrishnen et al. Reference Ballakrishnen, Fielding-Singh and Magliozzi2019), or they might try and make light of their circumstances or deflect the seriousness of their experience (Quinn Reference Quinn2000) or might think what happened to them was not “real” (Doering et al. Reference Doering, Doering and Tilcsik2023). Similarly, Black professionals might perceive their discrimination as “benign” (Payne-Pikus et al. Reference Payne-Pikus, Hagan and Nelson2010) and forgive institutional difficulties more easily because they might feel such endorsement will minimize the extent to which they feel discrimination (Kaiser and Major Reference Kaiser and Major2006: 808). Research also shows that those with intersectional identities are uniquely disadvantaged (Best et al. Reference Best, Edelman, Krieger and Eliason2011; Morgan Reference Morgan2023 on race and disability; Harpalani Reference Harpalani2013; Ocampo Reference Ocampo2022 on intersectional ethnicities) and that those with more novel (e.g., Espeland Reference Espeland1994 on legal mediation of indigenous identity) or visibily marginal identities might have more positive social and legal responses to their rights claims (Engel and Munger Reference Engel and Munger1996; Engel Reference Engel2001).

Beyond deviance, category liminality might have implications for how violence is experienced, coded, and ultimately, denied. As Sykes and Matza’s classic theory (Reference Sykes and Matza2017) of neutralization offers, people are often aware of their moral obligation to abide by the law but they are also likely to deny harm and responsibility depending on the nature and legibility of the legality. Empirical research exploring the experiences of ambiguously protected rights categories like fatness (Kirkland Reference Kirkland2008) and restricted custody populations (Rudes et al. Reference Rudes, Magnuson, Ingel and Hartwell2021) reveals the ways in which these subjects’ claims are inefficiently considered within rights frameworks. For example, as Kirkland’s (Reference Kirkland2008) on the fat acceptance movement shows, new categories of identity have an uneasy relationship with linear models of understanding discrimination and need more creative nuance in their exploration. Similarly, institutions are unlikely to consider favorably “choice statuses” like transness (Anna et al. Reference Anna, Shauhin and Perone2021) and motherhood (Kricheli-Katz Reference Kricheli-Katz2012).

If category liminality and deviance from normativity implicate clear legal standards of discrimination, what about the protection of minority identities embedded within more ambiguous legal standards? The suggestion here is not so much to equate these identities and claims, especially given their intersectionalities; rather, it is to offer blasé-ness as a visible interactional cue to explore patterns of discriminatory bias in plain sight that we might be complicit in reproducing because their meanings are still in flux. Most research on discrimination follows claim contestations for rights that are already in existence. Yet, notwithstanding the lag in social norms and consciousness (that all laws have), the capacity of an act to be seen as an aggression might be predicated on legal legitimization of subordination and social categories. Scholars have shown that even if seen as a “worthwhile concept” (Hoffmann Reference Hoffmann2019), new values without laws do not receive social compliance (Heimer and Tolman Reference Heimer and Tolman2021; Hoffmann Reference Hoffmann2019, Reference Hoffmann2022). In fact, even when there are legal protections for some rights, their assertions to move from de facto to more traditional categories of rights need clear strategies and negotiations (Gleeson Reference Gleeson2009; Heimer and Tolman Reference Heimer and Tolman2021; Kirkland Reference Kirkland2003).

This sight for what is “worthwhile” for social and legal recognition is even more arduous when being claimed on behalf of actors whose identity categories are in flux or contested. Further still, not all identities are likely to be (or become) legally recognized and the stage of their legal recognition is likely to have implications for social navigation. Abrego’s research (Reference Abrego2019) on mixed-status families shows how changes in legal inclusion have shifted the experience and visibility of different actors with varying claims to identity and Vogler’s research on queer asylum seekers remind us that legal ambiguity allows for identity to shape the law (2016:882). Beyond institutional structures, interlocutors and interactions implicate the experience of these liminal identities and their sense of legibility and “worth.” Bower (Reference Bower1994), for example, suggests that public recognition of identity norms may be prone to misrecognition of both individual and institutional possibilities, but that even if marginalized groups may claim that “their identities cannot be contained by the legal classifications that define them,” they may still have incentives to familiarize themselves with the “appropriate dominant consumer imagery” of the more mainstream legal and social normalization that governs them (1994:1019). In a similar vein, Berrey, Hoffman and Nielson (Reference Ellen, Hoffman and Beth Nielsen2012), suggest that identity shapes a framework of “situated justice” within which individuals approach legal institutions and can have implications for how their navigation is experienced. In her research on cockfighters in Hawaii, Young (Reference Young2014) deftly reveals the ways in which multiple identities of legal and illegal citizenry can provide a “significant disruption” to the “identity feedback loop” which those with more compatible identities may reinforce. Lejeune and Ringelheim (Reference Lejeune and Ringelheim2019) reinforce this idea of legal audience being crucial to settling into identity by showing how the changing legal definitions of antidiscrimination law allowed a sense of self (and in this case, disabled identity) to become clearer and more reinforced (1000).

These debates about worthwhile and legible discrimination have important implications for the temporality of observing nonbinary navigation. Legal victories for the nonbinary movement – to the extent it exists as an independent movement – are still nascent, precarious, and in flux (now more than ever, as this Article goes to press!). Genderqueer government documentation was only recognized in 2022 (when the X marker became available to all U.S. passport holders) and was predicated on the legal demonstration of sex (i.e., being biologically intersex) rather than a declared gender identity. The limited legislative accommodations for flexible gender identification - to the extent they will continue to exist - are more disparate at the state level. Still, beyond the technical differences in identity proof requirements, we know little about the lived experiences of these persons across discriminatory contexts. Simultaneously, it is hardly an irrelevant demographic. Recent data from the Williams Institute suggests that about 1.2 million people – and 11% of all LGBTQIA+ adults – in the United States identify as nonbinary (Wilson and Ilan Reference Wilson and Ilan2021). This might seem like a small number, but it is an actively growing one, since the majority of this population is under 30 years of age – suggesting an ongoing cultural shift in the ways gendered identities are socially claimed. Other empirical research on this population in legal institutions (Ballakrishnen Reference Ballakrishnen2023b; Bodamer and Langer Reference Bodamer and Langer2021; Langer and O'Kelley Reference Langer and O’Kelley2019; Meredith Reference Meredith2022; ) shows an even quicker change in percentage for law students, especially as student cohorts reflect younger populations who are, as studies show, less and less likely to be tied to ideas of gender performance and conformity no matter any larger trends in rights retrenchments (Ballakrishnen Reference Ballakrishnen2023b; Bodamer and O’Kelley Reference Bodamer and O’Kelley2023).

It is within this context of a changing social and cultural demographic set against a lagging and jagged legal regime that understanding the performance of interactional inequality becomes salient. In a legal culture focused on clear standards of injury and harm to determine judicial standing – and in a larger political environment rife with free speech contestations against equality considerations – paying attention to these slippages in articulating harm is critical to a nuanced understanding of our rights frameworks more generally. At the same time, while the lack of a cohesive legal infrastructure makes the experience of genderqueer individuals a useful vantage point from which to consider how law’s liminality produces entitlement and inequality, it is the lack of attention to this population in the middle of a polarizing national crisis on identity politics and queer rights that makes this project urgent.

Mapping the margins: data and methods

This Article draws from 60 interviews with students and early-career professionals with a range of understudied – and differently recognized – minority identities within the legal profession (Table 1). As my other research projects reveal, peripheries are useful positions to locate research design in (Ballakrishnen Reference Ballakrishnen2023a) and different minority professionals could feel differently disconnected to institutional norms and networks depending on their identity category (Ballakrishnen and Silver Reference Ballakrishnen and Silver2019; Paik, Ballakrishnen, Silver et al. Reference Paik, Ballakrishnen, Silver, Boutcher and Rouleau Whitworth2023). This project’s research design followed this intuition that the cumulative experiences of different kinds of minority actors deviating from an institutional ideal type (here, a neurotypical, cisgender, straight White man with class privilege), could shed light on the inequalities inherent in the institution. The attention to a range of legible (e.g., gender and race and religion) and less-legible (e.g., gender performance and neurodivergence) minority identity categories was intentional to analytically vary the experiences of different professionals. Rather than focusing on a singular category of minority experience (e.g., genderqueer students) or considering deviance as an additive category of analysis (e.g., contrasting the experience of genderqueer students to their cis peers), the research design focused on non-normativity to consider institutional inequalities and to tease out how non-legible and legitimate identity categories were treated. As other sociolegal scholars reinforce (e.g., Chua and Massoud Reference Chua and Massoud2024), analysis positioned within new “out of place” vantage points bridge site specific empirical analysis alongside broader theoretical possibilities. Similarly, the research project drew inspiration from the CRT assertion that law and legal institutions have investments in supporting the unequal status quo, and accordingly lends itself empirically to starting from the queer perspective of the “interlopers who do not belong” (Hooks Reference Hooks and Darder1994; Gentle Reference Gentle2018).

Table 1. Demographic interview data

In turn, the research design – that I am beginning to think of as a queer eCRT “QuEer CRT” approach – located the experience of deviance as a central node of analysis and extends Matsuda’s (Reference Matsuda1987) call to “look to the bottom” by also considering empirical design to and from the periphery. In addition to an interest in non-normativity as the central node, I was interested in using mutual experiences across peripheral categories to consider a comprehensive account of the critical outsider’s (Valdes Reference Valdes1999; Reference Valdes2002) perspective. While considering a range of peripheral positions, I was theoretically motivated by three strains of critical inequality research that complicated identity beyond straightforward categories: (a) the ethno-racial conflation of the religious category of “Muslim” within American spaces and law in the last two decades (Ahmad Reference Ahmad2004; Aziz Reference Aziz2021; Chen Reference Chen2010; Gotanda Reference Gotanda2011), (b) research on deviance and disability as a critical identity project for critical race scholars to pay attention to (e.g., Harris Reference Harris2019; Reference Harris2021; Morgan Reference Morgan2023; Ocen Reference Ocen2010; tenBroek Reference tenBroek1966), and (c) the “OutCrit” literature that urges for intersectional queer approaches and attention (Valdes Reference Valdes1998; Reference Valdes1999; Reference Valdes2002). In highlighting the experiences of deviant actors, these interrelated articulations offer a way to consider structural inequalities hiding in plain sight, a core tenet of the eCRT movement (Gómez Reference Gómez2010; Obasogie Reference Obasogie and Sarat2007; Reference Obasogie2013). Simultaneously, in moving beyond the narrow operationalization of sexuality as the dominant queer intervention (Valdes Reference Valdes1998:1422), these empirical choices make the case for queerness as method in identity research. Together, they offer a new roadmap to follow Barnes (Reference Barnes2016) excellent advice to “do eCRT” by paying attention to initial formations of hierarchy with a “watchful eye” for possible categorical extensions and adaptations.

Despite their mention as categories of subordination (e.g., Hutchinson Reference Hutchinson1999, p. 12–13, 39; Chang and Davis Reference Chang and Davis2010; Jones and Wade Reference Jones and Wade2020 p 213), and despite CRT’s investments in intersectionality (e.g., Crenshaw Reference Crenshaw1989, 151–2; Nash Reference Nash2011, 456), cosynthesis (Valdes Reference Valdes1999), and the interconnectedness of identity categories (Carbado Reference Carbado1999; Carbado and Gulati Reference Carbado and Gulati2000; Hutchinson Reference Hutchinson1999; Reference Hutchinson2003), CRT scholarship has not always organically extended beyond its focus on race, and there is only a modicum of dedicated queer sites analyzed within the literature (e.g., Quinn Reference Quinn2000; Valdes Reference Valdes1999). Even critical race feminism (Wing Reference Wing2003), beyond some focus on sexuality (e.g., Gilmore Reference Gilmore1990; Hernández-Truyol Reference Hernández-Truyol1999) does not theoretically invest in what its early orientations describe as a “QueerRaceCrit” movement (Wing 2003:5). Similarly, although there is increasing attention to sexuality and LGBTQIA+ issues within law and society scholarship (e.g., Adam Reference Adam2017; Baumle et al. Reference Baumle, Boutcher, Badgett and Tomaskovic-Devey2024; Reference Baumle, Boutcher, Badgett and Tomaskovic-Devey2024; Bower Reference Bower1994; Chua Reference Chua2012; Lane et al. Reference Lane, Shepherd, Avella and Martin2023; Rollins Reference Rollins2002; Meadows Reference Meadow2018; Sagit and Pikkel Reference Sagit and Pikkel2019; Saguy et al. Reference Saguy, Williams and Rees2020; Vogler Reference Vogler2021; Waldman Reference Waldman2024), queer theory has not been used as a primary sociolegal lens within which to consider the experience of minorities. This lack of synergy is unfortunate because despite differences – and as CRT scholars are increasingly starting to acknowledge (Green and Gear Rich Reference Green and Gear Rich2024) – both CRT and queer theory start from the lens of the outsider to consider the blatant inequalities of normative systems.

At first glance, comparing nonbinary legal professionals to their Muslim peers or to those who have disabilities is not likely to offer substantive comparisons in experience. Critical race scholars have long warned about the ineffectiveness of clubbing experiences of differently placed groups (e.g., Harris Reference Harris and Maschke2013; Onwuachi-Willig Reference Onwuachi-Willig2018) while reinforcing the importance of intersectionality as essential praxis for nuanced understandings of inequality (Crenshaw Reference Crenshaw1989; Reference Crenshaw1991; Crenshaw, Gotanda Reference Gotanda2011; West Reference West, Crenshaw, Gotanda, Peller and Thomas1996; Gómez Reference Gómez2012; Reference Gómez and Sarat2017; Spade Reference Spade2015; Reference Spade2020; Bridges Reference Bridges2019), especially in empirical work about legal institutions (Barnes and Mertz Reference Barnes and Mertz2018; Butler Reference Butler2018; Deo Reference Deo2020; Gruber Reference Gruber2014; Hancock Reference Hancock2013; Reference Hancock2014; Leachman Reference Leachman2016; Su and Yamamoto Reference Su, Yamamoto, Valdes, Culp and Harris2002). Still, studying the experiences of these seemingly disparate actors together offers a reminder that identities necessarily produce different categories of association and narrative, and that unpacking their interconnected relationships might offer productive resolutions and opportunities for theory building. Similarly, the intuition was that their collective experience might offer us a reinforced perspective of inequality within their embedding institutions. I drew inspiration for these design choices from Adam’s (Reference Adam2017) calls for more “intra-movement solidarity” in sociolegal research about queer subjects, and the invaluable resource that eCRT scholar Ange-Marie Hancock (Reference Hancock2013) offered for empirically testing intersectionality in the quantitative predictive context, especially along the line of fixed (crisp) and more ambiguous (fuzzy) predictive categories of analysis.

In addition to considering overlapping inequalities produced by normativity, variations in peripheral position also allowed me to analytically vary the kinds of minority identity on how socially or legally accepted their status was. While Muslims (n = 19) and those with disabilities (n = 21) were protected broadly – even if not substantively – under a range of civil rights laws, gender expression and identity were still a category under legal – and social – flux. This offered site variation in visibility and legibility alongside legality and its temporality. Assumptions of who was Muslim, or disabled, or genderqueer (n = 20) were all similarly predicated on normative scripts of white, cis, able-bodied expectations. At the same time, their variations in legality and legibility – as well as their intersectionalities – offered new nodes to consider normativity.

Broad calls for participants were sent via email to the publicly available mailing lists of national professional affinity organizations (National Disability Lawyers Association, National Association for Muslim Lawyers, and the National Trans Bar Association) to get the most representative sample of interviews. In addition, several law schools with traceable affinity group emails were also contacted with an invitation to participate in the study. Some respondents referred known others, but this snowball sample was small (n = 3) and the majority of the respondents were voluntary participants who responded to the initial research recruitment email. Interviews were exploratory and descriptive, focusing on examples of experience and identity performance in legal spaces for each respondent with questions that focused on how respondents came to their identity and interactional experiences that primed their identity. Each respondent also completed an exit survey to collect demographic data and additional attitudinal information that might not have been captured in the interview. All interviews were recorded, transcribed, anonymized and analytically open coded using the software Maxdqa for theoretical connections in experience across sites as well as experiences particular to each subpopulation. Although I focus particularly on the sub-sample of genderqueer respondents in this Article to highlight the experience of inhabiting ambiguous sociolegal categories, analytical codes appeared across sub-samples to expose the framework that I describe in this Article as “blasé.” Altogether, the design was aimed at locating possibilities for “translation competence” between different cultural sites (Spradley Reference Spradley1979) that could cumulatively build “grounded theory” (Glaser and Strauss Reference Glaser and Strauss1967) about normative assumptions about the legal profession from the focus of the cumulative periphery.

Findings

Across respondents, the experience of peripheral identity offered new nodes to consider the normative expectations embedded in legal institutions. While different actors experienced professional spaces in unique ways, their narratives about identity performance and reception had important overlaps. One such common narrative was the resilience and resignation minority professionals had to exhume when contending with attacks on the veracity of their identity. These attacks, unsurprisingly, were predicated on assumptions about acceptable deviance and polite gatekeeping that subtly reinforced the idea that non-ideal outsiders did not belong naturally within these institutions. For example, many students – especially students of color – spoke about how they were judged by those giving them accommodations when they did not “look” like they needed it – thereby suggesting that their testing accommodations were being used to “beat the system” in law school. Others gave examples of how ableism was embedded in social expectations with stigma attached to those who needed to prove that they were “disabled enough” alongside having to negotiate their own relationships to the identity of “disability.” Kiara (NILED10:3),Footnote ¹ a queer disabled student who was trying to explain their bipolar accommodations to an administrator, was told “oh, you don’t seem like you are [bioplar],” indicating the need for a publicly perceivable performance of disability. Kiara’s response was typically to be “easy-going” and “down to joke around” in the wake of exchanges such as these, but this gave them pause because they felt the need to have to adhere to people’s assumptions of what disability looked like, especially given the subsequent advice she received, to “be prudent, take a leave of absence and drop out.” Even if levity was not the immediate response to identity gibes for others, minority actors still had to buffer themselves in interactions because constant contestation had its own limits. A Muslim law student, Zalima, recounted how during an internship someone found out her religious orientation and “went off and called [her]..a terrorist” and proceeded to give her a Bible “to educate herself.” Having faced these overtly violent interventions, Zalima felt like she could no longer be fazed by “little comments” by peers in her classroom. She recounts “cringing” when her classmates would give “neutral” examples of how “it was okay to discriminate based on race or appearances if they appeared to be Muslim” but could not bring herself to keep contesting it because of how prevalent and normalized the violence was in everyday public discourse and reasoning:

The social expectation and normalization of certain kinds of interpersonal violence as unavoidable and omnipresent made contesting the narrative not only exhausting, but also fruitless because it was unlikely to persuade any perpetrators. In turn, it made these minority actors second-guess their identity performance and expectations. An Asian transfemme nonbinary lawyer said they were pushed back into the closet for almost seven years because they were told that they were “not like that” and that they “still had a little bit of guy” in them (NILENB18:3). Similarly, when the administrator in the exchange above told Kiara, “Oh, you are bipolar” – it suggested to them that the administrator had not only not read their file, they were also suggesting that Kiara was an unreliable witness to their own experience, causing them to second-guess their capacity to continue the interaction. Some of this second-guessing came from benevolence that masked the interactional violence. Nic, a transmasc nonbinary person, felt after being misgendered by a professor they admired that they could not “lose out on those currently on their side” and because it would feed into “the stereotype that trans people were overbearing and needy..and trying to make everything about themselves, and..overreacting” (NILENBT3:10).

This feeling that individual representation always implicated a larger group’s identity constrained several respondents. Yet, their response to this conflation was not always the same. For attorneys in settings of institutional power, it made them either completely cover or demand visibility in legible ways from their surroundings. Many Muslim respondents who were not visibly coded as Muslim, for example, kept their religious life and identity personal and those who visibly presented as Muslim were cautious about their speech because they felt like everything they said reflected on their community. Similarly, respondents worried about those dependent on their professional roles. As Poppy, a nonbinary transfemme attorney, explained – they did not out themselves until they had “everything situated” in relation to their transition because they felt their genderqueer identity would be a disservice to their clients (NILENBT9:5). Instead, Poppy led what they call a “double life,” wearing masculine-presenting clothes to work until they could change their name, dress differently, use different pronouns in professional and non-professional spheres (she and they, respectively), and make the transition as seamless as possible. Poppy explained that as a trial lawyer, there was an incentive to not have “something bad happen” that could impact their clients, and they did not want to alienate the bench when they were approaching without a lot of power in the exchange.

While invisibility was strategic for many, visibility also offered reassurances. As another trans attorney explained, when one is openly trans, people cannot not “use the threat of outing you” (NILENBT3:2). In contrast, for those without visible cues that were normatively accepted, managing ambiguous identities, especially within structures of power, was complicated. For example, Feather, a nonbinary person, said they felt awkward correcting people about new pronouns but that it was “a lot easier to just introduce yourself for the first time instead of having to go back and be like, “Oh, actually I use these pronouns now.” Feather did not have the same problem updating pronouns on behalf of other nonbinary persons but felt it hard to do for themselves personally. Despite signaling nonbinary pronouns in all their work correspondence and interactions, they were consistently misgendered. Yet, it is their justification for passivity which is informative:

Feather’s justification maps how queer theorists consider the role of interiority and performance in interactions (Ballakrishnen Reference Ballakrishnen2023c; Snorton Reference Snorton2005). Raced and queered bodies often navigate the social reading of their physical embodiment with dissonance and have the balance identity performance with self-preservation. If Feather was to respond to every slip in pronoun usage with a retort, then it would result in a constant contestation about identity that would leave them consistently ill at ease. Also embedded in this is the nature of power in these exchanges: Feather went on in the interview to contrast the differences between clients (who were dependent on them) using the right pronouns and colleagues misgendering them. Client representation, as Feather notes, was not a place to center oneself, but the misgendering from colleagues was a different matter. Even if Feather was unlikely to call attention to themselves in either interaction, they were likely to code these slips differently given their distinct nature.

Intersectional identities further complicated the experience of interactions. For example, Muslim respondents were impacted by a range of assumptive stereotypes but their experiences were also marked by their racial identities, with white Muslim men experiencing their spaces distinctly differently from South Asian Muslim women. For example, Chris, a white Muslim man, was self-reflexive about the ways in which categories of race did not complicate his identity the way it did for his South Asian female partner who wore a hijab (NILEM7:9). At the same time, he had to contend with being seen as “Muslim lite” amongst his own peers because there was not a way in which to communicate his identity effectively; the invisibility both helped him and hurt him in different ways than for those who seemingly “looked Muslim.” Similarly, while queers from conservative and rural social backgrounds felt like navigating their environments offered new extensions to their intersectional identities, white non-binary and trans persons in more urban queer-friendly spaces felt differently about claiming a minority identity when compared to their peers of color, and for many white students with a disability, claiming a minority identity felt disingenuous because it “took away” rewards from their historically marginalized peers. Across identity categories, class position was crucial in dictating experience, with first generational and working-class legal professionals much more likely to feel conscious of their identity than be able to “work it” (Carbado and Gulati Reference Carbado and Gulati2000) in ways that advanced their career. Juniper’s experience as a neurodivergent biracial nonbinary person who presents as white and male to many audiences elucidates this confliction of intersectionality acutely

Similar to Juniper’s hesitation to “tick an easy diversity box,” were others for whom it felt “too soon” to claim an identity. Nonbinary professionals who were just starting to identify that way were much more likely to make concessions for their interlocutors than those who had not gotten more settled in their identity and expectations. Juniper, for instance, despite their conflictions, felt it was important self-advocacy to not let misgendering slide. Even if there were times when they might “let it go,” they did not feel the need to always “make it easy on everybody,” as Feather – who had started identifying as nonbinary more recently – felt predisposed to do. Similarly, those who were recently made aware of their disability felt more conflicted about asking for accommodations because of a sense that “it was just pain” or “not that bad” or that “it would go away”; while others with longer termed disabilities were more assertive about their needs.

Over and above the ways in which these minority experiences cumulatively paint a picture about everyday interactional inequities, the differences between them were informative too. Although many minority actors experienced what felt like cutting dismissals of their identity, those with newer and more ambiguous identity statuses had even more particular contestations about their entitlements and subsequent harms. As the examples above illustrate, ambiguous unobvious and invisible identities garnered pushback in interactions, but there was a different texture of resistance against genderqueer contestations that were seen as “not real” or unrelated to a tangible category of harm. Unlike the inconsiderate responses to racio-religious or ableist microaggressions that the Muslim and disabled respondents faced (which, if pushed, perpetrators might have argued were, respectively, not racist or ableist), interactions with genderqueer respondents were not seen as harm and interlocutors, even when pushed, did not feel the need to defend themselves. Since gender performance and expression was perceived as a preference rather than protected identity, acknowledging it felt like a choice rather than required social convention. Similarly, its lack of clear legal protection meant that it could be legitimately dismissed. It is this legitimized persistence of the dismissal, even upon exchange, and its capacity to be not seen as violence, that I term blasé.

Across contexts and sites, genderqueer respondents routinely recalled how much of the interactional violence they experienced, when contested, would either be ignored, reinforced, or dismissed. My data are rife with justifications for these everyday acts in question – most often related to misidentification or service provision – and their accompanying justification, which varied from the seemingly very practical or rational (e.g., that it was confusing to use the first person plural in writing or that it felt unprofessional to use neopronouns), to the toothlessly benevolent (e.g., the lack of budget to build gender neutral restrooms despite a more general signaling towards queer equity), to explicit personal discomfort (e.g., that one was too old to think about gender differently or use certain pronouns or change their language to accommodate the preference of the nonbinary person). The interactional pattern regularly resembled the following arc: an introductory declaration by the nonbinary person of their identity markers (e.g., “Hello, my name is X, I use they/them pronouns”), a rejection or misuse of that identity marker by an interactional other (e.g., Y might use “she/her” or “he/him” to address X), followed by a confrontation by X of Y’s misuse in some manner. The capacity for an interactional other to be able to decide what constitutes an acceptable amount of identity performance is of crucial note in these interactional patterns. At first glance, there might be a tendency to dismiss this as a microaggression, but this is not a microaggression – especially given its impact – it is instead a macro aggression where the aggression is not tied to a calibrated legal right and therefore, not seen as aggression by the perpetrator. In a sense, it is a macro non-aggression.

Yet, there were other times when contestation was not even a choice because of the power structures the respondents were embedded in. In contrast to Feather and Poppy’s anecdotes above regarding the difference in power relations between peers and clients, nonbinary navigation in law schools were rooted in power hierarchies which made nonconfrontation a necessity rather than a choice. For law students, the standing example was related to cold calling with gendered honorifics that made them feel isolated, excluded, or, in some cases, struck by the violence of their dysmorphia. Several students relayed how their professors consistently misgendered them without remorse and often gaslit their experience. Many students relayed how their professors had actively declared that they did not believe in pronoun performativity and thereby had shut down any possible exchange before it began. But even for those who attempted to push back, their efforts were in vain. One nonbinary lawyer was told that their nameplate was irrelevant to how they were gendered because it was not something that the organization “had guidance about.” (NILENB14). Another who complained about a peer who continued to misgender them, was told the perpetrator could “not be transphobic because he was gay” (NILENB11). Several were told they could not change their email address from their deadname to their new name because of administrative limitations (NILENB2, NILENB8, NILENB17). These neutral and rational justifications offer insight into the seemingly ordinary nature of persistent everyday interactional violence. In an effort to remedy an increasingly hostile class environment, one student who was repeatedly misgendered, re-relayed their gender-neutral pronouns to their professor. The professor’s response was he did not use pronouns to refer to students – which, the respondent reported was “patently false” – and still ended the conversation without any effective resolution (NILENBT7:7). Even Juniper, who was forthcoming in their self-advocacy in many contexts, mentioned an incident of cold calling in a large doctrinal first year law school class that was reflective:

Juniper’s impossibility to answer their professor’s question despite knowing the answer keenly outlines that even when blasé dismissal of identity feels innocuous, it has brutal consequences. The professor’s decision to render misgendering a non-issue is striking because it rests the decision to gender – and the importance of such gendering – with the professor rather than the person whose identity is in question, i.e., Juniper. Instead of considering the actions of misgendering, the professor was blasé enough to both not notice the misgendering and to transfer the fault in the interaction onto Juniper for not knowing the answer to his question. In turn, it made Juniper not seek this professor out again for any further mentorship or instruction, which was a shame because they had hoped to specialize in this particular professor’s field prior to law school. Juniper’s reference that the interaction was “defining” in the way it chilled their speech offers insight into the ways in which blasé misgendering can extend beyond the interaction to have more longstanding implications.

These interactions might seem like commonplace identity conflict, but these data urge our attention to what routinely follows the confrontation when identity is ambiguous and inarticulable within normative categories. Consider this recollection by Dream, a Black nonbinary lawyer about an employment interview with a senior elite professional:

The interviewer’s lack of interest in using Dream’s pronouns (“I can’t do that”) combined with the justification (“you are asking too much”) is a classic operationalization of specific kind of everyday blasé dismissal of ambiguous identities. The employer was careful to caveat that all decisions about hiring would be predicated on “fit” and “comfort” – factors notorious for hiding discrimination in plain sight (Berrey Reference Berrey2015; Rivera Reference Rivera2012) – and not Dream’s identity. Nonetheless, his capacity to tell Dream that he could not recognize their gender identity is indicative of the kind of entitled and effortless post-confrontation response received by those whose identity categories had flexible legal and social standing. Beyond the interaction, other institutional buffers made the harm illegible. When they reported this interaction, Dream’s recommenders advised them to withdraw their application, if necessary, but not to confront or complain about the interaction. Another colleague told them “At least he was honest and said that to you. He gave you the truth. Can’t that be enough?” These decisions to “not rock the boat over” (NILENB17:11) not only kept Dream from accessing a support network, but it also made them second-guess taking any action against their experience.