Genetic Race? DNA Ancestry Tests, Racial Identity, and the Law

Posted in Articles, Health/Medicine/Genetics, Law, Media Archive, United States on 2021-11-13 00:05Z by Steven

Genetic Race? DNA Ancestry Tests, Racial Identity, and the Law

Columbia Law Review
Volume 120, Number 7 (December 2020)
pages 1929-2014

Trina Jones, Jerome M. Culp Professor of Law
Duke University School of Law

Jessica L. Roberts, Leonard H. Childs Professor of Law and Director of the Health Law & Policy Institute, University of Houston Law Center; Professor of Medicine, University of Houston College of Medicine

Can genetic tests determine race? Americans are fascinated with DNA ancestry testing services like 23andMe and AncestryDNA. Indeed, in recent years, some people have changed their racial identity based upon DNA ancestry tests and have sought to use test results in lawsuits and for other strategic purposes. Courts may be similarly tempted to use genetic ancestry in determining race. In this Essay, we examine the ways in which DNA ancestry tests may affect contemporary understandings of racial identity. We argue that these tests are poor proxies for race because they fail to reflect the social, cultural, relational, and experiential norms that shape identity. We consider three separate legal contexts in which these issues arise: (1) employment discrimination, (2) race-conscious initiatives, and (3) immigration. Based on this analysis, we strongly caution against defining race in predominantly genetic terms.

Read the entire essay here.

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Identity as Proxy

Posted in Articles, Law, Media Archive, United States on 2015-10-20 00:51Z by Steven

Identity as Proxy

Columbia Law Review
Volume 115, Number 6 (October 2015)
pages 1605-1674

Lauren Sudeall Lucas, Assistant Professor of Law
Georgia State University

As presently constructed, equal protection doctrine is an identity-based jurisprudence, meaning that the level of scrutiny applied to an alleged act of discrimination turns on the identity category at issue. In that sense, equal protection relies on identity as a proxy, standing in to signify the types of discrimination we find most troubling.

Equal protection’s current use of identity as proxy leads to a number of problems, including difficulties in defining identity categories; the tendency to privilege a dominant-identity narrative; failure to distinguish among the experiences of subgroups within larger identity categories; and psychological and emotional harm that can result from being forced to identify in a particular way to lay claim to legal protection. Moreover, because the Court’s identity-as-proxy jurisprudence relies on superficial notions of identity to fulfill a substantive commitment to equality, it is susceptible to co-option by majority groups.

This Essay aims to engage readers in a thought experiment, to envision what equal protection doctrine might look like if it were structured to reflect the values identity is intended to serve without explicitly invoking identity categories as a way to delineate permissible and impermissible forms of discrimination. In doing so, it aims to incorporate directly into equal protection jurisprudence the notion that identities like race and gender are not merely a collection of individual traits, but the product of structural forces that create and maintain subordination. Under the “value-based” approach proposed herein, the primary concern of equal protection is not to eliminate differential treatment, but instead to deconstruct status hierarchies. Therefore, rather than applying heightened scrutiny to government actions based on race or gender, it applies heightened scrutiny to government actions that have the effect of perpetuating or exacerbating a history of discrimination or that frustrate access to the political process.

The clearest impact of such a model would be in the context of affirmative action, where a majority plaintiff could no longer simply claim discrimination on the basis of race. Yet, the potential of a value-based model extends to other contexts as well—for example, challenges to voter identification laws, in which political exclusion would displace discriminatory intent and disparate impact as the relevant measure for analysis; and the treatment of pregnant women, in which discrimination on the basis of pregnancy would no longer have to align with gender to receive heightened scrutiny.

This shift has several advantages: It allows the law to make important distinctions between groups and within groups; it alleviates the need for comparative treatment and solutions that favor taking from all over giving to some; it is less likely to generate identity-based harms; it is fact-driven rather than identity-driven and thus better suited to the judicial function; and it serves an important rhetorical function by changing the nature of rights discourse.

Read the entire essay here.

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Mixing Bodies and Beliefs: The Predicament of Tribes

Posted in Articles, History, Law, Media Archive, Native Americans/First Nation, Politics/Public Policy, United States on 2010-03-14 23:39Z by Steven

Mixing Bodies and Beliefs: The Predicament of Tribes

Columbia Law Review
Volume 101, Number 4 (May 2001)

L. Scott Gould

This Article considers a dilemma faced by tribes in a post-inherent sovereignty world. Tribes have increasingly come to be defined through the use of blood quanta as racial entities. This practice raises the legal question whether and to what extent Congress can confer benefits on tribes pursuant to the Indian Commerce Clause without violating the equal protection component of the Due Process Clause. Professor Gould explores the current dilemma from legal, historical, and demographic perspectives. He concludes that a recent Supreme Court decision involving Native Hawaiians portends growing judicial hostility to groups that base their memberships on common ancestry. Based on recent demographic trends, the Article observes that tribes are already multi-racially diverse. In conclusion, Professor Gould urges tribes to redefine their membership criteria, risking change in order to regain sovereignty and ultimately preserve tribal cultures.

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