Mixed Race Studies

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.

The Multiracial Category Movement originated in the 1980s when parents of biracial children began to challenge identification criteria on school data forms. By the 1990s, multiracial category advocates had shifted most of their energy to a campaign to secure the addition of a multiracial category on decennial census forms for the year 2000. Their efforts were ultimately unsuccessful. The debate concerning racial categories, however, extends well beyond census classifications.

Although it is difficult to reduce such a controversial and complex topic to a few words, multiracial category proponents appear to believe that the category will: (1) challenge the use of racial categorization by forcing society to acknowledge that race is too fluid to monitor in an increasingly diverse society; (2) promote racial harmony by identifying a group that is capable of bridging the gap between Blacks and Whites; and (3) allow mixed-race persons to self-identify and to acknowledge all aspects of their racial heritages. Although one can understand the appeal of and the potential merit to these claims, proponents fail to engage sufficiently the complex history and present reality of colorism.

The first argument—that a multiracial category will eliminate racial classification altogether and move society beyond racial divisions—is debatable. The adoption of a multiracial category is equally likely to contribute to the proliferation of racial categories rather than to their elimination. Even assuming, arguendo, that a multiracial category will cause society to recognize that race is too fluid to monitor, this claim assumes that along with racial classifications, discrimination will also disappear. But, one event need not follow the other. The fact that racial labels may no longer be handy does not mean that discrimination will disappear. Rather, the virus of discrimination may simply mutate or find another host. Because skin color has been used historically as a basis for subordination in this country, skin color may provide an alternative site. That is, in the future, skin color differences may increasingly perform the role played by racial categories today. In this new social context, multiracial individuals and other persons of color will still be subject to discrimination on the basis of skin color to the extent that their skin is too dark or too light.

The second argument—that a multiracial category will produce an identifiable class of people who will facilitate interracial communications between Blacks and Whites—sounds like a modern-day appeal for a buffer class (a class distinguishable by its lighter skin tone). In the United States, however, buffer classes have not historically acted as catalysts for interracial harmony. Rather, they have served to increase the status of those in the middle (the buffer class) without fundamentally challenging the status quo for those on the top and bottom.1 In Brazil and Latin American countries where buffer classes have existed historically, the same dynamic has occurred. Thus, while tending to improve the lot of some, buffer categories fail to challenge existing racial and color hierarchies. In future discussions, proponents of a multiracial category must come forth with evidence that history will not repeat itself in the current context. In short, they must explain how a multiracial category will avoid simply reinforcing the existing racial and color hierarchy.

The third argument—that a multiracial category will allow mixed-race persons to self-identify and to acknowledge the totality of their racial heritages—is intuitively appealing. It seems that a goal of multiracial category proponents is to challenge the continued application of the one-drop rule (e.g., the notion that a person is Black if she has a trace of blackness in her physical appearance or in her ancestry). Again, this goal seems fair, neutral, and perhaps even laudable. However, as I explain below, an unintended consequence or negative externality of this objective must be considered: mixed-racial heritage and skin color may operate to elevate the status of lighter-skinned multiracial individuals, while doing nothing to alleviate the subordination of those who are darker or to change the idea that Black is undesirable.

Trina Jones, “Shades of Brown: The Law of Skin Color,” Duke Law Journal, Volume 49, Number 6 (April 2000): 1521-1525.

Shades of Difference: Why Skin Color Matters

Stanford University Press
2009
312 pages
11 tables, 15 figures, 16 illustrations
Cloth ISBN: 9780804759984
Paper ISBN: 9780804759991
E-book ISBN: 9780804770996

Edited by:

Evelyn Nakano Glenn, Professor of Asian American Studies
University of California, Berkeley

Shades of Difference addresses the widespread but little studied phenomenon of colorism—the preference for lighter skin and the ranking of individual worth according to skin tone. Examining the social and cultural significance of skin color in a broad range of societies and historical periods, this insightful collection looks at how skin color affects people’s opportunities in Latin America, Asia, Africa, and North America.

Is skin color bias distinct from racial bias? How does skin color preference relate to gender, given the association of lightness with desirability and beauty in women? The authors of this volume explore these and other questions as they take a closer look at the role Western-dominated culture and media have played in disseminating the ideal of light skin globally. With its comparative, international focus, this enlightening book will provide innovative insights and expand the dialogue around race and gender in the social sciences, ethnic studies, African American studies, and gender and women’s studies.

Contents

Contributors
• Introduction: Economies of Color—Angela P. Harris
• Part I The Significance of Skin Color: Transnational Divergences and Convergences
  • 1. The Social Consequences of Skin Color in Brazil—Edward Telles
  • 2. A Colorstruck World: Skin Tone, Achievement, and Self-Esteem Among African American Women—Verna M. Keith
  • 3. The Latin Americanization of U.S. Race Relations: A New Pigmentocracy—Eduardo Bonilla-Silva and David R. Dietrich
• Part II Meanings of Skin Color: Race, Gender, Ethnic Class, and National Identity
  • 4. Filipinos and the Color Complex: Ideal Asian Beauty—Joanne L. Rondilla
  • 5. The Color of an Ideal Negro Beauty Queen: Miss Bronze 1961-1968—Maxine Leeds Craig
  • 6. Caucasian, Coolie, Black, or White? Color and Race in the Indo-Caribbean Diaspora—Aisha Khan
  • 7. Ihe Dynamics of Color: Mestizaje, Racism, and Blackness in Veracruz, Mexico—Christina A. Sue
• Part III Consuming Lightness: Modernity, Transnationalism, and Commodification
  • 8. Skin Tone and the Persistence of Biological Race in Egg Donation for Assisted Reproduction—Charis Thompson
  • 9. Fair Enough? Color and the Commodification of Self in Indian Matrimonials—Jyotsna Vaid
  • 10. Consuming Lightness: Segmented Markets and Global Capital in the Skin-Whitening Trade—Evelyn Nakano Glenn
  • 11. Skin Lighteners in South Africa: Transnational Entanglements and Technologies of the Self—Lynn M. Thomas
• Part IV Countering Colorism: Legal Approaches
  • 12. Multilayered Racism: Courts’ Continued Resistance to Colorism Claims—Taunya Lovell Banks
  • 13. The Case for Legal Recognition of Colorism Claims—Trina Jones
  • 14. Latinos at Work: When Color Discrimination Involves More Than Color—Tanya Katerí Hernandez
• Acknowledgments
• Notes
• Index

Read the Introduction here.

Shades of Brown: The Law of Skin Color

Duke Law Journal
Volume 49, Number 6 (April 2000)
pages 1487-1557

Trina Jones, Professor of Law
Duke University

Because antidiscrimination efforts have focused primarily on race, courts have largely ignored discrimination within racial classifications on the basis of skin color. In this Article, Professor Jones brings light to this area by examining the historical and contemporary significance of skin color in the United States. She argues that discrimination based on skin color, or colorism, is a present reality and predicts that this form of discrimination will assume increasing significance in the future as current understandings of race and racial classifications disintegrate. She maintains that the legal system must develop a firm understanding of colorism in order for the quest for equality of opportunity to succeed.

TABLE OF CONTENTS

• INTRODUCTION
• I. DISTINGUISHING RACE AND SKIN COLOR
  • II. COLOR DISTINCTIONS THROUGH THE LENS OF TIME
  • A. Before the Civil War: 1607-1861
  • B. After the Civil War: 1865-2000
  • C. The Social Psychology of Contemporary Black-White Colorism
• III. COLOR IN CONTEMPORARY LAW
  • A. Statutory Support for Color Claims
  • B. Substantive Content of Color Claims
  • C. Race, Color, Mixed Racial Identity and Employment Discrimination Law
  • D. Colorism and the Quest for Equality of Opportunity
• CONCLUSION
• FOOTNOTES

INTRODUCTION

On the Saturday evening following my mother’s recent marriage, old friends and new gathered at a local restaurant to celebrate the occasion. While standing in the buffet line, I turned to introduce my new step-niece, Aaliyah (age 4), to the son of a family friend, LaShaun (age 5). Immediately following the introduction, LaShaun, who is clearly outgoing and charismatic, looked up at me with the innocent honesty of a child and said, “I know another Aaliyah at my school, but she’s brown.”

The first thing LaShaun, whose skin is a rich Michael Jordan chocolate, noticed about Aaliyah was her light golden brown skin. LaShaun did not create or invent these differences. Without deliberate or conscious design, his statement merely reflects the fact that he operates in a social context where people learn early on that color is significant. Although some people may claim that color differences [*pg 1489] within racial groups are without meaning and that people do not notice or care about fine differences in skin pigmentation, the observations of a five-year-old child belie these statements. And so does history.

This Article examines the prejudicial treatment of individuals falling within the same racial group on the basis of skin color in the context of antidiscrimination law. In a 1982 essay, Alice Walker called this prejudicial treatment “colorism.” Although this terminology appears to be relatively new, colorism is not a recent invention. In the United States, this form of discrimination dates back at least as far as the colonial era. Yet, notwithstanding its long existence, colorism is often overshadowed by, or subsumed within, racism. As a result, courts are either unaware of the practice or tend to minimize its importance.  This state of affairs is unfortunate because, as I demonstrate in this Article, color differences are still frequently used as a basis for discrimination independently of racial categorization.

The analysis proceeds in three parts. Part I distinguishes colorism from racism. Because the ultimate result of race-mixing was the creation of tone or hue variations within racial groups, Part II explores the history of miscegenation in this country in order to demonstrate how society has used skin color to demarcate lines between racial groups and to determine the relative position and treatment of individuals within racial categories. This history illuminates contemporary discrimination on the basis of color. Part III examines the judicial response to contemporary claims based on color and explains why courts can and should permit color claims in the context of antidiscrimination law. Part III also investigates the suggestion that racial classification may become increasingly difficult in the future as the acceptability of the one-drop rule declines and as race-mixing increases. Assuming that there is merit to this suggestion, Part III probes whether legal recognition of claims based upon skin color will provide suitable redress for discrimination against persons who are neither visibly White nor visibly Black.

My hope is that this Article will assist in the development of a more nuanced understanding of the intricate ways in which people discriminate in this country. More specifically, by engaging in this investigation, I seek to prevent the law from becoming a source of injustice by showing how progress towards equality of opportunity may be overstated if colorism is ignored. Briefly, in the aftermath of the civil rights movement, employers have hired increasing numbers of Blacks into positions not previously available to them. The increasing number of Blacks in these positions suggests racial progress. Studies show, however, that Blacks in positions of prominence and authority tend to be lighter-skinned. Thus, some employers may be hiring only a subset of the Black population, a subset selected, in part, based on skin color. Because some Blacks are being denied access to employment opportunities due to colorism, the appearance of progress is more limited than we might assume. Legal recognition of color claims is one way to begin redressing this situation.

It is important to note that the analysis contained herein focuses on color dynamics among Black Americans. Although some scholars have criticized the tendency to analyze racial issues in terms of a Black/White dichotomy, I have chosen to concentrate on the Black community in order to limit the magnitude of this project without sacrificing its utility. In addition, this focus allows me to probe more directly the peculiar symbolism of black and white as colors. This symbolism suggests that although colorism is an important element of racism, it is equally its own distinct phenomenon. Finally, although I do not wish to endorse the reduction of race relations to a Black/White paradigm, I have chosen to focus on the dynamics of the racial group with which I am most familiar. I recognize that similar issues concerning skin color exist within Native American, Asian-American, and Latino communities, and believe that issues peculiar to those communities merit detailed study. Although such analysis is beyond the scope of this initial project, I hope this Article will nonetheless be of assistance to scholars in future investigations involving questions specific to other racial groups…

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