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Excerpted From: Robert Karl, 23ANDDIVERSEME: Using Genetic Ancestry Tests to Establish Minority Status, 30 Health Matrix: Journal of Law-Medicine 475 (2020) (Student Note) (216 Footnotes) (Full Document)

RobertKarlOn April 19, 2013, Ralph Taylor applied to the Washington State Office of Minority and Women's Business Enterprises (OMWBE) seeking to have his insurance business certified as a minority business entity. To the public, Mr. Taylor looks like a Caucasian man, so he is not the demographic the OMWBE typically aims to assist. However, on his application, Mr. Taylor marked both “White” and “Black” to identify his race despite “acknowledg[ing] that he grew up thinking of himself as Caucasian.”

It was not until he was in his late forties that Mr. Taylor discovered he had Black ancestry and began to “[embrace] his Black culture.” How is it that Mr. Taylor, after over four decades of life, learned of his Black ancestry? He did not learn of this ancestry by speaking with family members, nor through extensive genealogy tracing. Mr. Taylor learned about his Black ancestry from the results of a genetic test, but not one that showed a direct relationship to any particular individual; the results were from a Direct-to-Consumer (DTC) genetic ancestry test. The results of this test linked him to entire populations of people.

As reported in his results, Mr. Taylor has a genetic makeup estimated at “90% European, 6% Indigenous American, and 4% Sub-Saharan African.” Accordingly, Mr. Taylor concluded that these results entitled him to apply for minority business enterprise certification, even if he did not look like those whom the agency frequently assisted. Because of these results, Mr. Taylor asserted that he fell within the definition of a “Black minority” in the controlling regulation.

After initially denying his application, the OWMBE voluntarily granted Mr. Taylor the minority business enterprise designation when he appealed the decision. To the State of Washington, Ralph Taylor is a Black business owner.

This result raises intriguing questions about how race is and should be handled by federal and state governments, universities, and employers in this post-genomic era. Specifically, can a DTC genetic ancestry test objectively determine a person's race, or is race a bricolage of biology and lived experiences, meaning that one's genetic makeup cannot be dispositive? What weight, if any, should the government give these tests in determining minority status, given that these tests are administered by private companies with proprietary databases and algorithms to determine ancestry? Furthermore, does allowing a person to qualify as a minority with only the tiniest percentage of genomic ancestry reinvigorate and reinforce an old racist ideology that anti-discrimination laws aimed to dissolve?

Part I of this Note examines programs that benefit minorities through affirmative action.

Part II provides background about DTC genetic ancestry testing, its scientific underpinnings, and its criticisms.

Part III explores whether genetic ancestry testing should be accepted as proof of minority status for affirmative action programs by looking at the legislative intent behind these programs and how genetic ancestry tests fit within notions of race in the United States.

Lastly, part IV formulates recommendations for regulatory guidelines to address the problem. While genetic ancestry testing is grounded in the legitimate science of population genetics, each company generating results uses different algorithms and weights factors differently, making it as much an art as it is a science. Accordingly, this Note argues that genetic ancestry testing results should be excluded for purposes of proving minority status for affirmative action programs.

[. . .]

Genetic ancestry tests remain firmly in the realm of entertainment, and the ancestry results cannot be accepted with the scientific certainty that their advertisements suggest. At this moment, with all the choices that companies are able to make, the tests are as much art as they are science. Even if a person receives ancestry results showing that they have African or any other ancestry, and then incorporates it into their life with sincerity, this does not suddenly make them a member of a minority group for legislative purposes. There is a difference between someone believing they are a member of a racial group and functioning as a member of that race in society. Even if a genetic ancestry test magically conferred some greater Black racial identity on an otherwise White person, that does not mean they suddenly function as Black in society.

All states should update their regulations to include the same rebuttable presumption of the federal regulations and allow those administering the programs to make common sense judgments. More importantly, agencies should set a bright line rule that these tests cannot be used to substantiate minority status. Those who need to depend on a genetic ancestry test to prove they are a socially disadvantaged minority have probably never faced the type of discrimination that the 8(a) or DBE program and race-conscious hiring and school admission were created to address.

J.D. Candidate, 2020, Case Western Reserve University School of Law; M.S. Case Western Reserve University School of Medicine; B.S. The Ohio State University.

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