18 April 2014


'Certifying Identity' by Annette Ruth Appell in (2014) 42 Capital University Law Review argues that the  birth certificate is
 not merely as a reporter and portable record of having been born, but also as a powerful creator, regulator, and arbiter of identity and belonging, including sex, gender, race, age, production, reproduction, and kinship. Initially a public health and children’s rights innovation, the birth certificate’s assignment of family and individual identity connects the certified person to norms, rights and limitations according to the state’s certification of the sex, race, age, parentage, and birthplace of the body born. The birth certificate is both historical and constitutive in that it creates and certifies individual identity, even when that identity is malleable or ambiguous.
This article rehearses the modern practice of recording births and the advent of the birth certificate — disciplines that imbue humans with intrinsic and instrumental value, but also create, regulate, and define individual identity through permutations of race, sex, gender, and kinship with and without the consent of the person certified. The birth certificate serves state interests in identifying, tracking, marshaling, and managing human resources. This certificate also ties the born person to the state or nation, not just in the sense that being born in the United States creates citizenship, but also as a rights-holder — someone to be counted. As such, the certificate serves as a gatekeeper for gender, family, race, legitimacy, and identity according to the birth certificate’s terms, categories, and data.
Appell concludes
Birth certificates began as a public health innovation, but have become a norm regulator and tool of social engineering: defining and regulating sex, gender, race, identity, and family. The birth certificate creates and limits identity through the establishment and codification of gender, race, parentage, and citizenship. The very fact of the birth certificate and its resoluteness in telling one story about the creation of children and families — as coital reproduction between a man and a woman — funnels human creation into the powerful norm of heterosexual reproduction. Even as law and society  win (and lose) struggles to complicate identity and the legal norms of reproduction, they remain bound to this Progressive Era accomplishment, which predates so many new reproductive and technological developments. The birth certificate might tell the genetic truth or the family truth; but in many instances the law erases the facts of children’s births and identities, leaving children and adults without a coherent or descriptive record of their births and identities.
For these reasons, the birth certificate has become a site for contests among biological, chosen, and reformed identities and about sex and sexuality, family composition, childhood, and adulthood. Moreover, less transparently, the birth certificate funnels identity into state-approved categories and relationships. Indeed, the work of the birth certificate is structural and pervasive. This is unsurprising in light of the conflicting uses of the certificate or, perhaps, its service to two masters: the person whose identity is certified and the state that both creates legal identity and ties identity to certain rights and disabilities arising out of that certificate. Thus, the the birth certificate’s role as proof of identity and the rights and obligations that flow therefrom creates inherent conflicts for the individual and the state. The birth certificate thus raises questions regarding who controls identity, what precise interest does each potential master have in that identity, and how can the state’s need to catalogue and track its citizens be disaggregated from the individual’s authority over one’s own life and relations.
These questions suggest that the birth certificate may be serving too many masters and thus seeking the certificate to do too much: to protect the rights and individuality of each person and to provide proof of one’s eligibility for rights and protections. In some way, the birth certificate sits at the intersection of the government’s parens patriae and police power. The state has an interest in protecting vulnerable subjects, but also has an interest in law and order, which suggests some need for establishing and tracking identity. However, the birth certificate is not just meaningful for the state; it is also meaningful to the person certified for those reasons and because personal identity is, well, personal and, in a liberal regime, private. After all, the state’s interest is in public health, and the state can meet that interest through birth registration information. The birth certificate’s primary import is the identification. Not surprisingly, law and society are moving toward more malleable certifications.
Possible revisions of this regime might disaggregate the birth registration data from the certificate so that the person can self-identify, even as the state creates and maintains the birth registration information. A less appealing and less private solution would be a birth passport that might reflect the changes in a person’s identity, but perhaps omit information regarding race and gender. The government could make the certificate easier to amend or leave portions of the birth certificate blank until the born person fills in the person’s own identity.
Ultimately, this Article creates more questions than it can answer. For example, with race and gender less salient as formal legal matters, is it necessary to worry so much about identifying the race or ethnicity of the parents or one’s gender or sex? Certainly, tracking race, ethnicity, age, and sex is useful from public health, planning, and related economic perspectives, but do these data need to reside on the birth certificate? Also, what precisely is the state interest in controlling individual identity? What if the state stopped tracking gender? Would that affect gender norms? If the state stopped tracking race, would that affect white supremacy or would race neutrality enlarge racial gaps? How would such changes affect self-determination and benefits?
The current system connects registration with identification, through the birth certificate, and connects the birth certificate to a series of rights, entitlements, and limitations. While this system of birth registration and certification provides vital tools for public health and protection of relationships and identity, this system may assume too much power to construct individual identity and to dictate the legitimacy of identity and relationships of individuals and families. These records also protect relationships and access to various rights, privileges, and protections. While this Article reports on the benefits that birth registration provides for children and families, some countries are moving toward biometrics to track identity. This approach seems to provide a level of certainty for the state and might reduce the state’s role in regulating individual identity, particularly naming and tracking gender, but it remains to be seen what gains and losses would emerge through and after such a transition and what might happen to gender if states established individual identity without regard to race, gender, age, and national origin.