BY: CELESTE MCCAW
“Overall, my life has been one of survival, and the decisions that I have made along the way, including my identification, have been to survive…”
Transaged. Transgendered. Transabled. Transracial. In today’s society, we can just about go anywhere, do anything, and be anyone. Old. Young. Man. Woman. Blind. Deaf. Black. White. Identities are becoming more and more fluid; however, in the wake of a 65-year-old transgendered woman receiving the Espy’s Arthur Ashe Courage Award and the former President of the Spokane Chapter of the NAACP being “outed” for being white, this freedom of transformation has become a topic of controversy. But how much of this transformation is legally recognized? In particular, how does this transformation inform society about the meaning of racial identity?
Culture has been defined as the common values, institutions, and regular social interactions shared by a group of people. The appropriation of culture is the taking of another’s cultural markers (such as food, clothing, or physical appearance) and claiming it as one’s own. Cultural appropriation has often been given a negative connotation, but some people feel as though it has been given a bad rep. Cathy Young refers to this as a “new war on cultural appropriation.” In her Washington Post editorial, Young mentions Katy Perry’s 2013 American Music Awards performance where she dressed like a geisha and Iggy Azaela’s omnipresent scrutiny and accusations that she has perpetrated “cultural crimes” by imitating African American rap styles. While Young ultimately argues that appropriation is not a crime, I would argue that it is.  It is one thing to embrace a cultural exchange, but it is another thing entirely to embrace the profiting by a dominant culture of a subordinate culture’s experiences.
The examples of Katy Perry’s performance and Iggy Azalea’s rap styles are just the superficial underpinnings of the deeper implications of cultural appropriation. When the appropriation involves race rather than food or clothing or literary styles, what does that mean for the control and access over one’s own heritage? Since early June 2015, the face of cultural appropriation, specifically in terms of race, has been Rachel Dolezal. Her story has set off a national debate about the very meaning of racial identity, with some people applauding her message and goals and others deploring her methods and actions.
Who is Rachel Dolezal? This is the headline that has made its way to the top of every news outlet this past summer and Miami Law Professor, Osamudia James, wrote one such piece for the Washington Post. Professor James argued that not every black person has grown up with the same experiences.  Rather, the experience of blackness more often includes subtle, but more indelible, phenomena: learning racial narratives of inferiority as children; frustratingly navigating a society where education about white supremacy (and how it intersects with gender, class, and other constructs) is withheld; and the labor of black caregivers who cultivate resiliency and pride in their little ones despite the experience of racial struggle. Even with her kinky hair and her bronzed skin, Rachel Dolezal will never experience the subtle and indelible phenomena that Professor James illustrates. Despite Rachel Dolezal’s contentions, her decision to identify as black was not a means of survival. It was a means of defrauding, stealing, and appropriating.
Because cultural appropriation often entails a financial gain on the part of the appropriator, I would argue that it is akin to identity theft. However, unlike the crime of identity theft, there is no remedial recourse for the group of people whose culture has been appropriated. Thus, those individuals who own the appropriated culture continue to endure the countless hardships and setbacks that their culture oftentimes face while the appropriators profit from those sufferings. Maybe there is something to say about cultural appropriation of “suspect classes” like gender, race, age, or disability. Maybe cultural appropriation is a crime, and we just haven’t given a punishment to it yet.
 Dana Ford & Craig Botelho, Who is Rachel Dolezal?, CNN (June 17, 2015), http://www.cnn.com/2015/06/16/us/rachel-dolezal/.
 Sally Engle Merry, Law, Culture, and Cultural Appropriation, 10 Yale L. Rev. 575, 576 (1998).
 Cathy Young, To the new culture cops, everything is appropriation, Washington Post (Aug. 21, 2015), https://www.washingtonpost.com/posteverything/wp/2015/08/21/to-the-new-culture-cops-everything-is-appropriation/?tid=pm_opinions_pop_b.
 See id
 Kirk Johnson, Richard Perez-Pena, & John Eligon, Rachel Dolezal, in Center of Storm, Is Defiant: ‘I Identify as Black’, N.Y. Times (June 16, 2015), http://www.nytimes.com/2015/06/17/us/rachel-dolezal-nbc-today-show.html?r_=0.
 See Osamudia James, What Rachel Dolezal doesn’t understand: being black is about more than just how you look, Washington Post (June 12, 2015), https://www.washingtonpost.com/posteverything/wp/2015/06/12/what-rachel-dolezal-doesnt-understand-being-black-is-about-more-than-just-how-you-look/.
Celeste McCaw is a 2017 Staff Editor of the Race and Social Justice Law Review.