Beyond the Individual and the Communal: Rethinking the Idea of Identity in Family Law

*Anshul Dalmia

Abstract

John Eekelaar has influentially distinguished between an "individual identity", rooted in a person's own characteristics, and a "communal identity", derived from association with others. In Part I, this piece argues that the distinction, though intuitively appealing, is unhelpful once tested against how identity actually operates. Structurally, features long treated as purely personal, such as genetic origin, gender, and race, are shown to be substantially constituted by community and social perception, as reflected in donor-conception disclosure laws, adoption jurisprudence, and European case law on gender recognition. Functionally, the distinction collapses further once ally, solidarity, and intersectional identities are accounted for, since these cut across any clean separation between the personal and the collective. The Supreme Court's recognition of self-identified gender in NALSA v Union of India, since codified in the Transgender Persons (Protection of Rights) Act, 2019, mirrors the European experience of communal perception shaping intrinsic identity. Continuing debates on whether an adopted child's right to identity under the Juvenile Justice (Care and Protection of Children) Act, 2015 and CARA's adoption regulations should extend to knowledge of biological origins, raise the same tension between individual and communal conceptions of identity that this piece critiques. In Part II, the piece proposes 'narrative identity', an evolving, self-authored life story, as a more coherent lens for family law. The debate has direct resonance for Indian family law. Disputes over caste, religion, and community identity in inter-country and inter-community adoption placements further illustrate why Indian family law, too, may be better served by a narrative rather than binary conception of identity.

Introduction

What is the primary way of discerning your identity? Is it influenced by your primary associations with your family or is it an individualistic journey? Noted family law scholar and academician, Eekelaar talks of two versions of identity, "one related to an individual's personal characteristics (called here 'individual identity'), the other to the individual's identification with other individuals ('communal identity')." This distinction is created to provide a semblance of clarity in a confusing paradigm. He thus creates two specific forms and types, as he believes they would help in understanding the complex dynamics of identity and provide some visibility for legal frameworks to recognise and protect these basic notions. Individual identity, according to him, is a matter of self-perception, in which personal features are internally driven and centrally posited. On the other hand, the influence of external societal forces leads to the emergence of extensive social networks, groups, and communities which severely impact an individual's identification. I contend that while such a binary distinction might prima facie expose no infirmities, a closer look reveals a plethora of issues. I seek to highlight, first, that the distinction itself is laden with structural problems which make it difficult to draw an exact line, and thus, the reason behind the distinction collapses. Second, that the distinction fails to accommodate a spectrum of identities that fall within and between the two categories, and as a result, is not reflective of the true context in which it is placed. Overall, I argue that the distinction fails both structurally and functionally and is, therefore, unhelpful.

Structural Failure: Evaluating the Interconnectedness

The distinction between individual identity and communal identity is not as black and white as Eekelaar theorises. His model fails to contain the various shades of grey. He states individual identity to be one wherein personality and physical features take paramountcy, and treats the convergence of these characteristics with others as merely incidental. I argue that individual identity, unlike Eekelaar's conception, is intricately based and derived from interaction with other members of the smaller group or the larger society. It is commonly agreed that individual identity is enhanced by identification of a genetic link. Establishing congruence with those before oneself provides a closer linkage with heritage while fostering a sense of community.This connection is imperative to define a person within the community around her and enables her to integrate within social relationships. Every person tries to define themselves and associate their identities with the people around them to find true meaning to their existence.

This abstract theory has been concretised in several legal provisions and developments. In the UK, on reaching the age of 16, children born from sperm donors can access information regarding their donor father, along with other siblings born of the same donor. Adopted children, too, have the right to know and connect with their biological parents as well as possible siblings. A true sense of belonging within a community has thus been seen to have a major impact on an individual's personality and characteristics. This hypothesis was even accepted by the European Court of Human Rights, which allowed an individual to access the DNA evidence of a person who had died three decades earlier, in order to establish a link with the deceased. The Court categorically held that individuals seeking to establish their identity with their ascendants must be enabled to do so, since this activity is vital to the development of individual personal identity. The idea that individual identity is derived from communal identity has thus been established through both statutory provisions (such as Article 8 of the European Convention of Human Rights) and judicial pronouncements: an individual's features and personality are significantly formed by virtue of association with a group or community. Eekelaar's differentiation of internal and external forces, and his allocation of corresponding identities, is accordingly unhelpful, as it disregards the imperative interconnectedness and close causal linkage between his two distinct forms of identity. There exists no credible reason for differentiating between these identities and confining their operation to two separate compartments.

It could be counter-argued that communal identity is merely supplemental to individual identity, and that certain intrinsic features, such as race and gender, are inherently part of one's personality and devoid of any communal connection. In response, I argue that such an exposition fails to locate the individual as a social animal and merely constructs identity in a vacuum. The very fact that an identity cannot survive solely on the strength of this compartmentalisation speaks to the fragility of the distinction. As set out below, even the intrinsic features of personality most favoured by Eekelaar, race and gender, are themselves societal constructions, so that individual identity is significantly merged with communal identity to portray a coherent image.

The German Constitutional Court, while recognising the need for a third legal gender category, observed that gender identity, though part of individual identity and personality, needs to be preserved precisely because communal considerations, namely the perception of the individual by society, play a "key" role. Gender is thus a perfect example of an intrinsic individual identity that is developed through a communal sense of identity. While gender allocation may properly be driven by individual self-perception, it also results in the individual's association with a social group, and that group's interactions with other social groups. The notions of masculinity, femininity, and effeminacy primarily develop according to the outlook of a group, which continues to play a defining role in shaping gender identities.

Further, the identity of transgender persons truly reflects the immense effect that an individual's identification with other individuals has on that individual's own personal characteristics. Transgender persons do not associate with their assigned individual identity but rather with society's perspective and construction of gender. There is widespread recognition that a person's individual identification may not match the communal gender identity allocated to them at birth on the basis of physical characteristics, and that there is therefore a right to change this. A comparable recognition of the communal dimension of even the most intrinsic identities is visible in India, where the Supreme Court held that the right to self-identified gender is an inherent part of personal autonomy and dignity, a right subsequently given statutory footing when the Transgender Persons (Protection of Rights) Act, 2019 was enacted to secure that self-perceived gender identity against exactly the kind of communal misrecognition that individuals had long faced. Gender dysphoria, the non-identification with the gender assigned at birth owing to an alternative identification with the societal construction of gender, is similarly prevalent. Intrinsic features such as gender are thus also heavily rooted in communal underpinnings.

It is also well known that a child might prefer to identify with social activities or groups not traditionally associated with the child's biological sex. This fluidity goes one step further than a child of one biological sex identifying as the other. Here, children may construct their personal identity on the basis of features prevalent in other groups; for instance, several boys tend to wear dresses or makeup, garments usually associated with the female gender. The construction of gender identity (which is often showcased through expression) is thus extremely influenced by an individual's identification with other individuals, whether in the same group or in different communities. This has not been restricted to gender alone but has also been found true of race: in the case of Rachel Dolezal, it was seen that she identified as a Black woman despite being born white. Similar to gender, an alternative construction of racial identity founded on association, rather than restricted solely to gestational or biological origin, must be recognised.

The social construction evident even in features of individual identity such as race and gender pushes the distinction away from an essentialist and towards a far more interdependent view. Structurally, the distinction fails to be helpful, both because individual identity is constructed with communal identity at its forefront, making an exact distinction difficult to achieve, and because the interconnectedness of the physical features of individual identity with communal perception dismisses the very reason for the distinction in the first place. In such a case, Part II of the blog-post seeks to offer a panacea to this issue which encourages us to think beyond the prisms of individual or communal identity.

Anshul Dalmia is a Lecturer at Jindal Global Law School, O.P. Jindal Global University, where he teaches Constitutional Law and Legislative Interpretation. His research interests include constitutionalism, the functioning of judicial bodies, and public law. He holds a Bachelor of Civil Law (LLM-equivalent) from the University of Oxford and a B.A. LL.B. (Hons.) from the West Bengal National University of Juridical Sciences.

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.