Certifying Identity

• Author: Annette R. Appell
• Pages: 361-405

CERTIFYING IDENTITY

ANNETTE R. APPELL*

I. INTRODUCTION

“Juridical power inevitably ‘produces’ what it claims merely to

represent . . . .”1

We think of ourselves as authors of our own lives, but in many

respects, we have little authority over our official recorded identities. We

are born into families, but our identities are contingent and malleable—

created and documented by doctors, parents, social workers, and health

officials and usually without consent or knowledge of the person certified.

The birth certificate documents birth and identity,2 but this certificate is

quite a bit more: it connects the person certified to a whole regime of

rights, entitl ements, social scripts, and ob ligations.

Copyright © 2014, Annette R. Appell.

* Law Professor, Washington University Law School. I am grateful for the observations

and suggestions of my colleagues during and after a Washington University Law School

work-in-progress workshop at which I presented an early sketch of this project: Susan

Appleton, Adam Badawi, Adrienne Davis, Josh Gupta-Kagan, David Konig, Bob Kuehn,

Dan Mandelker, Kim Norwood, Hillary Sale, and Liz Sepper. My gratitude also extends to

participants at the Ninth Annual Wells Conference on Adoption Law, Rethinking Children’s

Best Interests, Capital University Law School; participants at Washington University’s

student and faculty Critical Theory Collective, led by Mark Rachel and Emily Danker-

Feldman, and nurtured by Adrienne Davis. Nancy Polikoff also provided helpful examples

of the role of the birth certificate in capturing and covering th e facts of birth both directly to

me and through her scholarship and her dynamic blog, http://beyondstraightandgay

marriage.blogspot.com. I also thank my extraord inary research assistants who have worked

on various aspects of the research—Rebecca Eissenberg, Sarah Aslam, Alyse Bent, and

Michela Skelton Birk. I am grateful to Dean Kent Syverud for providing summer funding

for this research and to Capital University Law School for hosting this conference and for

the important work it does to humanize adoption and provide leadership in adoption

research and policy.

1 JUDITH BU TLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY 2

(1990).

2 Carl Watner, The Compulsory Birth and Death Certificate in the United States, in

NATIONAL IDENTIFICATION SYSTEMS: ESSAYS IN OPPOSITION 79–80 (Carl Watner & Wendy

McElroy eds., 2004); see also Jonathan Todres, Birth Registration: An Essential First Step

Toward Ensuring the Rights of All Children, 10 HUM. RTS. BRIEF 32, 33 (2003).

362 CAPITAL UNIVERSITY LAW REVIEW [42:361

The facts of birt h have long been significant to q uestions of iden tity,

race, gender, kinship, belonging, rights, inheritance, property, citizenship,

and political power. Unsurprisingly, the birth certificate is also deeply

connected to contested identity sites—including sex, race, gender, sexual

identity, marriage, parentage, reproductive technologies, childhood, and

adulthood.3 Indeed, the resoluteness and formality of the birth certificate

highlights the power dynamics between the individual and the state about

the authorship of identity, including the identity and relations the birth

certificate offers and legitimates.4

Through birth registration, the state certifies the facts of birth and

identity according to government-prescribed categories of sex, race,

family, and nation,5 which in turn create and enforce rights and a set of

norms that reinforce the legitimacy of (and state interest in)

heteronormativity, gender, race, and sexual identity. Thus, the birth

certificate certifies birth registration,6 but it also creates identity and

belonging according to normative terms cloaked in scientific discipline.

As a result, the formal certification of birth memorializes the basic facts of

birth, such as time, date, location, sex, mother and father’s names, and the

race or ethnicity of each parent,7 but these seemingly mundane questions

are also fraught with meaning, limitations, and ambiguity.

Therefore, while t he birth certificate certifies a birth, it al so creates

identity, rights, belonging, responsibility, and a series of further

expectations that flow from the particular identity certified—both for the

certified and for the various people, beginning with b irth assistants a nd

parents, who will come into contact with the certified being. Increasingly,

the registration and certification of birth8 raises questions and concerns

3 See infra Parts III−V.

4 See Todres, supra note 2, at 33.

5 Id. at 32; see also CTRS. FOR DISEASE CONTROL & PREVENTION, U.S. STANDARD

CERTIFICATE OF LIVE BIRTH (2003), available at http://www.cdc.gov/nchs/data/dvs/birth11-

03final-ACC.pdf.

6 Todres, supra note 2, at 32.

7 CTRS. FOR DISEASE CONTROL & PREVENTION, supra note 5.

8 The birth certificate and birth registration are different—the latter consisting of a great

deal of data surrounding gestation, birth, prenatal care, birth order, and economic

information—but these two documents are intricatel y connected and often used

interchangeably. PLAN LIMITED, COUNT EVERY CHILD: THE RIGHT TO BIRTH REGISTR ATION

10 (2009), http://plan-international.org/birthregistration/files/count-every-child-2009; see

also U

NITED NATION ’S CHILDRE N FUND, THE “RIGHTS” START TO LIFE: A STATISTICAL

ANALYSIS OF BIRTH REGISTRATION 1 (2005), http://www.unicef.org/publications/files/

(continued)

2014] CERTIFYING IDENTITY 363

regarding identity, belonging, family norms, and relations between those

labeled ch ildren and parents and those labeled adults and children. The

registered facts of birth, in turn, establish the child’s identity and family

relations, determining the child’s legitimacy, citizenship, and race.9

The symbolic connection between the birth certificate and legitimacy

was featured famously in reactions to each of the elections of our first

black president, Barack Hussein Obama.10 For some segments of the

population, Barack Obama’s election to the United States Presidency was

transgressive11 (and not in a good way).12 The election of a black president

served as a symbolic threat to white supremacy,13 sparked outrage, and

reflected primal and cyclic fears about the identity of the nation, even as

this foment (ironically) elided the fact that the United States is a nation of

R55BirthReg10a.pdf [hereinafter UNICEF]. While this Article mostly refers to the birth

certificate, it encompasses birth registration as well.

9 CTRS. FOR DISEASE CONTROL & PREVENTION, supra note 5.

10 Michael D. Shear, Citing ‘Silliness,’ Obama Shows Birth Certificate, N.Y. TIMES,

Apr. 28, 2011, at A1.

11 See Birther Movement (Obama Birth Certificate), N.Y. TIMES, http://topics.nytimes.

com/top/reference/timestopics/subjects/b/birther_movement/index.html?offset=10&s=

newest (last updated Sept. 15, 2012) (collection of New York Times stories regarding the

movement to challenge the authenticity of Barack Obama’s birth certificate).

12 Others view minority transgressions as positive, particularly against dominant and

oppressive norms. See, e.g., Claire Huntington, Staging the Family, 88 N.Y.U. L. REV. 589,

616–17 (2013) (noting that transgression is contextual and challenges community culture

and norms); Charles J. Ogletree, Jr., From Dred Scott to Barack Obama: The Ebb and Flow

of Race Jurisprudence, 25 HARV. BLACKLETTER L.J. 1, 36 (2009) (“Barack Obama’s

victory is a watershed moment in that it has debunked the myth that an African American

cannot hold a national office as high as that of President of the United States. Barack

Obama’s victory has begun to transform the image of African Americans. ”); Justin

Reinheimer, Comment, What Lawrence Should Have Said: Reconstructing an Equality

Approach, 96 CALIF. L. REV. 505, 534 (2008) (“[S]ame-sex sodomy is fundamentally

gender transgressive, and thus opposed by the same ideology that enforces women’s gender

conformity.”).

13 See Ogletree, supra note 12, at 36 (“The election of a black man as Presiden t of the

United States is an extremely powerful state ment in itself.”). Some seemed to view

Obama’s elections as a threat to Christian su premacy. Judson Philips, Is Barack Obama a

Muslim?, TEA PAR TY NATION (Oct. 10, 2012, 6:42 PM), http://www.teapartynation.com/

forum/topics/is-barack-obama-a-muslim (claiming that President Obama is Muslim).