GENETIC RACE? DNA ANCESTRY TESTS, RACIAL IDENTITY, AND THE LAW*

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.

The full text of this Essay can be found by clicking the PDF link to the left.

** Jerome M. Culp Professor of Law, Duke University School of Law. I am grateful to Emma Wade, Anna Dezenzo, and Sheila Korir for their excellent research assistance and to Aishwarya Masrani for her probing insights, particularly with respect to scientific racism.

*** 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. 2018 Greenwall Faculty Scholar in Bioethics. Thank you to JB Banzon, Elaine Fiala, Emily Lawson, Jennifer Pier, and Brittainie Zinsmeyer for outstanding library and research assistance.

For their tremendously helpful feedback, the authors would like to thank Kimberly D. Ambrose, Mario L. Barnes, Joseph Blocher, James Boyle, Devon Carbado, Jennifer Chacón, Angelica Chazaro, Jessica Clarke, Doriane L. Coleman, Luke P. de Leon, Mary D. Fan, Eric Fisher, Kim Forde-Mazrui, Geoff Hoffman, Margaret Hu, Eisha Jain, Osamudia James, Stephen Lee, Lisa M. Manheim, Carrie Menkel-Meadow, Natalie Ram, Barak D. Richman, Charmaine Royal, and David J. Ziff; participants at faculty workshops at Duke University School of Law, the University of California-Irvine School of Law, the University of Washington School of Law, and Vanderbilt Law School; members of the University of Virginia’s Working Group on Racial Inequality; and participants at the Frances Lewis Law Center Academic Roundtable at the Washington and Lee University School of Law. We also extend our thanks to D. Wendy Greene for her input on earlier drafts of this Essay. And last, but certainly not least, we are grateful to our patient and brilliant editor, Sankeerth Saradhi, and the Columbia Law Review for their outstanding work.

Introduction

Advertisements for DNA ancestry tests are ubiquitous. Any U.S. consumer with a television has undoubtedly seen a commercial like the one featuring “Kyle.” In his AncestryDNA testimonial, Kyle states:

Growing up, we were German. We danced in a German dance group. I wore lederhosen. When I first got on Ancestry, I was really surprised that I wasn’t finding all of these Germans in my tree. I decided to have my DNA tested through AncestryDNA. The big surprise was, we are not German at all. Fifty-two percent of my DNA comes from Scotland and Ireland. So, I traded in my lederhosen for a kilt. 1 Ancestry, Kyle | Ancestry Stories | Ancestry, YouTube (June 13, 2016), https://youtu.be/84LnTrQ2us8 (on file with the Columbia Law Review). Kyle’s “discovery” that his genetic ancestry did not align with his lived ethnic identity has been repeated in numerous other testimonials. See, e.g., Ancestry, AncestryDNA TV Commercial, ‘Katherine and Eric’, iSpot.tv (2015), https://www.ispot.tv/ad/AZbh/ancestrydna-katherine-and-eric (on file with the Columbia Law Review); Ancestry, AncestryDNA TV Commercial, Testimonial: ‘Kim’, iSpot.tv (2015), https://www.ispot.tv/ad/wKqV/ancestrydna-kim (on file with the Columbia Law Review); Ancestry, AncestryDNA TV Commercial, ‘Testimonial: Livie’, iSpot.tv (2016), https://www.ispot.tv/ad/wDMp/ancestrydna-testimonial-livie (on file with the Columbia Law Review).

There are many people like Kyle. Almost thirty million individuals worldwide have taken DNA ancestry tests, 2 In a blog post, the president and CEO of Ancestry.com writes that “[a]bout 30 million people worldwide have already started a DNA journey, including over 16 million with Ancestry.” Margo Georgiadis, Our Path Forward, Ancestry (Feb. 5, 2020), https://blogs.ancestry.com/ancestry/2020/02/05/our-path-forward [https://perma.cc/65PN-ZP9W]; see also Antonio Regalado, More than 26 Million People Have Taken an At-Home Ancestry Test, MIT Tech. Rev. (Feb. 11, 2019), https://www.technologyreview.com/s/612880/more-than-26-million-people-have-taken-an-at-home-ancestry-test (on file with the Columbia Law Review). and analysts predict that by 2021 this number could exceed 100 million. 3 See Regalado, supra note 2. This growing popularity shows that human beings are very interested in our genetic makeups and in our genealogies. We are seeking a richer understanding of ourselves and of our identities, and perhaps a stronger sense of connectedness to our ancestors.

While some observers view DNA ancestry tests as purely “recreational,” 4 Deborah A. Bolnick, Duana Fullwiley, Troy Duster, Richard S. Cooper, Joan H. Fujimura, Jonathan Kahn, Jay S. Kaufman, Jonathan Marks, Ann Morning, Alondra Nelson, Pilar Ossorio, Jenny Reardon, Susan M. Reverby & Kimberly TallBear, The Science and Business of Genetic Ancestry Testing, 318 Science 399, 399 (2007); see also Alondra Nelson, The Social Life of DNA: Race, Reparations, and Reconciliation After the Genome 27 (2016). these tests can have a powerful effect on both the individuals who take them and on society as a whole. For some individuals, test results may affirm a sense of personal identity or open up new avenues for racial and ethnic exploration. 5 See, e.g., Ancestry, Blana & Identity | DNA Discussion Project | Ancestry, YouTube (Nov. 2, 2017), https://youtu.be/bYAKjOgbPuU (on file with Columbia Law Review) (discussing the importance of receiving confirmation of her identity through DNA testing). Following a DNA ancestry test, “[t]est-takers may reshape their personal identities, and they may suffer emotional distress if the test results are unexpected or undesired.” Bolnick et al., supra note 4, at 399; see also Wendy D. Roth & Biorn Ivemark, Genetic Options: The Impact of Genetic Ancestry Testing on Consumers’ Racial and Ethnic Identities, 124 Am. J. Soc. 150, 165 (2018). DNA ancestry testing is largely a positive experience for this group. For others, however, the tests may create an inner sense of conflict if the results deviate from how the individual views herself or how others perceive her identity. Whether positively or negatively received, the results of these tests could unfortunately reinforce the belief that race is biological.

In particular, challenges arise when one considers that DNA ancestry tests are touted as revealing a person’s “real” or “true” racial or ethnic identity. This conflation of race and genetics was apparent in the back-and-forth between President Donald Trump and Senator Elizabeth Warren over Warren’s claimed Native American ancestry. 6 For an overview of the exchanges between Trump and Warren and how they reflect reductionist, biological views of race, see Masha Gessen, Elizabeth Warren Falls for Trump’s Trap—And Promotes Insidious Ideas About Race and DNA, New Yorker (Oct. 16, 2018), https://www.newyorker.com/news/our-columnists/elizabeth-warren-falls-for-trumps-trap-and-promotes-insidious-ideas-about-race-and-dna (on file with the Columbia Law Review). In a July 2018 campaign rally, Trump threatened to expose Warren’s alleged racial fraud by demanding that she take a DNA test. 7 In the campaign rally, Trump stated that in a future presidential debate:
We will very gently take that kit, and we will slowly toss it, hoping it doesn’t hit her and injure her arm, even though it only weighs probably 2 ounces, . . . [a]nd we will say, “I will give you a million dollars to your favorite charity, paid for by Trump, if you take the test and it shows you’re an Indian.”
Tucker Higgins, Trump Said He Would Give $1 Million to Charity If Elizabeth Warren Took a DNA Test. Now She Wants Him to Pay Up, CNBC (Oct. 15, 2018), https://www.cnbc.com/2018/10/15/elizabeth-warren-dna-test-she-urges-trump-to-fulfill-1-million-charity-pledge.html [https://perma.cc/LH52-58AQ] (internal quotation marks omitted); Washington Free Beacon, Trump: I Would Give $1 Million to Warren If She Takes DNA Test to Prove Native American Heritage, YouTube, https://youtu.be/CgMF7ngs5Ac (on file with the Columbia Law Review). Trump later denied making the promise. Amy B. Wang & Deanna Paul, Trump Promised $1 Million to Charity If Warren Proved Her Native American DNA. Now He’s Waffling., Wash. Post (Oct. 25, 2018), https://www.washingtonpost.com/politics/2018/10/15/trump-dared-elizabeth-warren-take-dna-test-prove-her-native-american-ancestry-now-what (on file with the Columbia Law Review). Trump’s argument, at least initially, was that the DNA ancestry test would reveal who Warren “really is.” 8 In 2018, Warren took the test and asserted that the results confirmed her Native American ancestry. Higgins, supra note 7.

Similarly, Kyle’s testimonial reduces race or ethnicity to his genetic code. Kyle said that he grew up German. His family danced in a German dance group. He wore lederhosen. His family likely ate German-inspired food. Yet, Kyle seems to have largely abandoned his German cultural heritage for a new ethnicity based solely on biology—that is, based on his DNA ancestry test results.

While Kyle’s case seems to involve only a question of personal identity and Trump’s challenge to Warren was largely political gamesmanship, DNA ancestry tests raise other social and legal concerns. Consider the following: For most of his life, Ralph Taylor identified as white. In 2010, however, Taylor began identifying as Black 9 We use the term Black throughout this Essay. We recognize that this terminology does not capture the myriad ways in which individuals racialized as Black today may have identified and been identified by others historically. While the analysis herein uses a Black/white frame in examining the uses and effects of genetic race, we do not mean to suggest that race in the United States is limited to Black and white experiences. We recognize, however, that anti-Blackness has played a critical role in structuring racial hierarchy in the United States to the detriment—as this analysis shows—not only of Black Americans but also of other groups racialized as nonwhite. See Devon W. Carbado, Race to the Bottom, 49 UCLA L. Rev. 1283, 1307–09 (2002) (offering examples of “ways in which all people of color, and not just Blacks, have been racially subject to Black/White-structured legal and political regimes”). We hope that future investigations of genetic race will build upon this insight while simultaneously exploring the particularized ways in which racial groups are dissimilarly situated.
We capitalize the “b” in “Black” and “Blackness” for the same reasons that Kimberlé Crenshaw articulates in her work. See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1332 n.2 (1988) [hereinafter Crenshaw, Retrenchment] (“When using ‘Black,’ I shall use an upper-case ‘B’ to reflect my view that Blacks, like Asians, Latinos, and other ‘minorities,’ constitute a specific cultural group and, as such, require denotation as a proper noun.” (citing Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: An Agenda for Theory, 7 Signs 515, 516 (1982))); see also Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stan. L. Rev. 1241, 1244 n.6 (1991) (“By the same token, I do not capitalize ‘white,’ which is not a proper noun, since whites do not constitute a specific cultural group.”). The use of capitalized terms to refer to Black people also has historical origins. See Crenshaw, Retrenchment, supra, at 1332 n.2 (“[T]he ‘N’ in Negro was always capitalized until, in defense of slavery, the use of the lower case ‘n’ became the custom in ‘recognition’ of Blacks’ status as property . . . and . . . the capitalization of other ethnic and national origin designations made the failure to capitalize ‘Negro’ an insult.” (citing W.E.B. Du Bois, That Capital “N” (1916), reprinted in 2 The Seventh Son: The Thoughts and Writings of W.E.B. Du Bois 12, 12–13 (Julius Lester ed., 1971))). after a DNA ancestry test indicated that he was ninety percent Caucasian, six percent indigenous American, and four percent sub-Saharan African. 10 Orion Ins. Grp. v. Wash. State Office of Minority & Women’s Bus. Enters., No. 16-5582 RJB, 2017 WL 3387344, at *2 (W.D. Wash. Aug. 7, 2017). Based on these results, Taylor—who owns an insurance company—sought government certification as a minority-owned business to augment his chances of securing government contracts. 11 Id. When the government refused the requested certification, Taylor sued alleging race discrimination. 12 Id. at *4. The Ninth Circuit Court of Appeals affirmed the district court’s dismissal of Taylor’s lawsuit. Orion Ins. Grp. v. Wash.’s Office of Minority & Women’s Bus. Enters., 754 F. App’x 556, 558–59 (9th Cir. 2018), cert. denied, 139 S. Ct. 2755 (2019) (“OMWBE did not act in an arbitrary and capricious manner when it determined it had a ‘well founded reason’ to question Taylor’s membership claims and, after requesting additional documentation from Taylor, determined that Taylor did not qualify as a ‘socially and economically disadvantaged individual.’”).

Consider also Cleon Brown, a police officer in Hastings, Michigan. Like Taylor, Brown identified as white for most of his life. 13 See Plaintiff’s Complaint & Jury Demand at 5, Brown v. City of Hastings, No. 1:17CV00331 (W.D. Mich. Apr. 11, 2017); see also John Eligon, A Sergeant Who Learned He’s Part Black Says He Faced Racist Taunts at Work, N.Y. Times (May 12, 2017), https://www.nytimes.com/2017/05/12/us/cleon-brown-black-lawsuit.html (on file with the Columbia Law Review). We examine the Cleon Brown case at greater length, infra section IV.A.2. When a DNA ancestry test indicated that eighteen percent of his DNA traced to sub-Saharan Africa, Brown shared this information with his colleagues. 14 Plaintiff’s Complaint & Jury Demand, supra note 13, at 5. Brown alleged that his fellow officers subsequently subjected him to a racially hostile environment. 15 Id. at 10 (“Defendants, and their supporters in the department, have created an openly hostile, discriminatory, stressful working environment for Plaintiff.”). Brown made several allegations. The police chief called him “Kunta,” after the main character, an enslaved African, in Alex Haley’s 1976 novel Roots. 16 Id. at 5. Colleagues whispered “Black Lives Matter” when Brown passed them in the department’s corridors. 17 Id. Someone put a Black Santa with eighteen percent written on it in Brown’s office Christmas stocking. 18 Id. at 6. Hastings’s mayor, upon learning of Brown’s DNA ancestry test results, told Brown a racist joke repeatedly using the word “Negroid.” 19 Id. Brown sued the City of Hastings for race discrimination under federal and state laws. 20 Id. at 11.

In the foregoing examples, DNA ancestry test results contributed to a change in identity. We call this construction of identity, based largely on DNA ancestry test results, “genetic ethnicity” or “genetic race.” While much of the analysis herein is readily applicable to ethnicity, this Essay focuses primarily on genetic race.

The above examples also illustrate some of the complex questions raised by genetic race and demonstrate the potential for genetic racism. First, what is race? And what happens when a person’s genetic ancestry conflicts with their previously self-identified race or the way in which others view their racial identity? For example, before receiving their ancestry test results, Ralph Taylor and Cleon Brown self-identified as white. Moreover, based upon their physical appearances, many—if not most—Americans would have classified Brown and Taylor as white. Yet, in their complaints, both men claimed to be Black or African American because their DNA ancestry tests revealed some percentage of sub-Saharan African ancestry. Are Taylor and Brown Black? Should courts allow their discrimination lawsuits to proceed?

Second, how should genetic notions of race affect assessments of racial composition and diversity in organizations? Should employers, colleges, and demographers rely on DNA ancestry test results when measuring diversity? Should Ralph Taylor, and others like him, now qualify for race-conscious affirmative action based on their ancestry test results?

This Essay explores the ways in which DNA ancestry tests both reflect and shape understandings of race in the United States and how these tests may complicate various social policies and legal doctrines. We acknowledge that people may incorporate their DNA ancestry test results into their own racial and ethnic identities and that these tests may shape individual conceptions of identity. 21 Some scholars have argued that individuals have a dignity or liberty interest in being able to freely choose or elect their race. See, e.g., Camille Gear Rich, Elective Race: Recognizing Race Discrimination in the Era of Racial Self-Identification, 102 Geo. L.J. 1501, 1506–07 (2014) (arguing for a right to self-definition). While these concerns are not insignificant, for purposes of this analysis, we align ourselves with scholars, like Professor Tanya Katerí Hernández, who adopt a more sociopolitical understanding of race and who tend to focus less on recognition of personal individual identity and more on group-based material inequalities. See Tanya Katerí Hernández, Multiracials and Civil Rights: Mixed-Race Stories of Discrimination 111–26 (2018) [hereinafter Hernández, Multiracials and Civil Rights] (adopting a “socio-political . . . concept of race” that “jettisons the emphasis on personal identity in favor of a focus on the societal and political factors that structure opportunity by privileging and penalizing particular phenotypes and familial connections viewed as raced across groups”). We caution, however, against conflating genetics with lived identities and sociopolitical categories, and ultimately reject the concept of genetic race for legal or other policy purposes.

The analysis proceeds as follows. Part I traces the development of the DNA ancestry testing industry, explains how ancestry tests work, and considers their inherent limitations as proxies for racial and ethnic identity. Part I also explores the various ways in which people respond to test results and explains how some responses reinforce biological understandings of race. Part II analyzes the historical development of biological race and explains how this concept has been used in the United States to create, justify, and sustain racial hierarchy. This Part also explains how biological race, and its recent equivalent—genetic race—conflict with modern understandings of race as a social construction. Part III shows how genetic race may lead to accusations of racial fraud or cultural appropriation. It also examines how the rule of hypodescent—also known as the “one-drop rule”—creates a racial asymmetry with regard to who may claim a new identity based upon DNA ancestry test results. Part IV considers three areas in which litigants and other actors may be tempted to rely on genetic race: (1) employment discrimination, (2) race-conscious initiatives, and (3) immigration. We conclude that relying on genetic race is problematic, given the shortcomings of DNA ancestry tests and the social repercussions of treating the results of these tests as proxies for racial and ethnic identity.