Wednesday, May 14, 2008

Genes and Denial

My latest FindLaw column is about the Genetic Information Nondiscrimination Act (or "GINA"), which has passed both the House and the Senate, nearly unanimously, and now awaits the President's likely signature. In the column I discuss how unusually uncontroversial a path this legislation has taken by comparison to other nondiscrimination measures in the past. I propose that GINA places us in the position that John Rawls proposed for the creation of just rules: behind a veil of ignorance.

In this post, however, I want to focus on a different aspect of discrimination that is difficult to defeat: the role of denial. When healthy, wealthy, and wise people choose to spend their time with other people who are similarly blessed, they may do so in part to deny the reality of their own vulnerability to hardship and misfortune. Confronting the reality -- by being around people who have suffered -- makes more challenging the belief that everything works out for the best or that we will not have to face such painful circumstances. In a sense, such denial is a necessary component of survival -- if we were to feel a constant awareness of all that could go wrong and all of our vulnerabilities, we might feel too depressed to function. To the extent that seeing or spending time around the reality of suffering makes a healthy denial more difficult to sustain, we prefer to render the unpalatable reality invisible, often through discrimination.

Taking out insurance is, of course, to some degree, a crack in the foundation of denial. If we were truly sure that "that couldn't happen to us," then few people would want to spend their money on insurance. Yet most of us want to have insurance of all kinds and thereby evidence our covert recognition of realities that we otherwise choose to ignore. Interestingly, research suggests that some people construct insurance, irrationally, as a way to ward off the possibility of the undesired event occurring.

In the case of our genetic information, we aid in our own denial project by failing to be tested for genetic conditions. Yet at the same time, we tacitly acknowledge that our genes may have a prophecy of misfortune to reveal, by supporting legislation that protects against discrimination on the basis of flaws in our DNA. This raises at least one difficulty for those who have promoted GINA. If we are hoping --as some have said -- that more people will seek genetic testing once they are protected from discrimination on the basis of test results, we may be disappointed when people continue to avoid testing, to fortify their own denial, notwithstanding the legal shield. Many of us, in other words, may choose not to go to the Oracle of genetic information because we truly do not wish to "know ourselves" in all of our vulnerability. In that event, though GINA will have had the salutary effect of protecting people from an invidious (though financially quite rational) form of discrimination, it will not and perhaps cannot make us seek out the genetic information that could dash all of our hopes and dreams of invincibility.

Posted by Sherry Colb


SJW said...

Seeking out people from different backgrounds offers people few advantages other than to allow them to develop a fuller and more beautiful understanding of the human condition. This benefit, quite frankly, is one that most people do not care about.

On the other hand, acquiring your genetic information may aid you in living a healthier, more productive and happier life. This is a benefit that people do care about.

Although you do identify one potential cost (amongst many costs), it seems that that cost must be considered against the light of this enormous benefit (and other benefits) and, as a result, the analogy is not apt. One way to predict future actions in this area is to see how often people in this day and age inquire into their own medical history.

egarber said...

I wonder if the “veil of ignorance” exercise can be applied more broadly, say to race relations.

Right now, down here in the Atlanta area, we’re going through a race-baiting controversy. A local bar owner is distributing (maybe selling) Obama 08 T-shirts, featuring a picture of Curious George (the monkey) eating a banana. [My guess is that the dude is violating copyright protections by using CG’s likeness, but that’s a separate matter.]

Anyway, the camps are basically:

1. Defenders of the bar owner, who say things like, “oh, so you can use CG to characterize George Bush, but Obama is off-limits.

2. Protesters who see the stunt as blatantly or mildly racist, saturated with code that reminds us of an uglier time.

Having read Prof Colb’s Findlaw Piece and post, wouldn’t it be interesting if in some way, we could carry out the following experiment?

A. Suppose you didn’t know your racial identity, but you know that at the end of the experiment you have equal chances of being a black or white person.

B. Now, with only identity *potential*, you’re told about racial history in the United States – the short of it being that whites were dominate and blacks oppressed in nasty ways for much of our existence. This history would also include all the baggage – use of the N word, Jim Crow images, etc.

C. Now you’re asked a general question: do you find the Curious George stunt offensive or funny?

I’m clearly in the babble zone here, but since so much about racial attitudes stems from the unwillingness to put oneself in another’s shoes, maybe there’s a certain utility in this kind of exercise.

Tam Ho said...

When associated with Bush, CG plays on the perception that Bush is incompetent, due not only to his fundamentally misguided policies, but to his maudlin demeanor - his many verbal gaffes, inability to take anything seriously, nicknaming during official press conferences, and inappropriate laughter/snickering/whatever it is that he does whenever he's talking to anyone, regardless of the gravity of the situation.

When associated with Obama, CG plays on the obvious racial bigotry.

Therein lies the asymmetry, which makes the association with Obama offensive, and the association with Bush unoffensive (at least to the extent that using CG to convey those qualities about someone is unoffensive).

The veil of ignorance doesn't really have anything to do with this. Still, if you want to frame it in veil of ignorance terms, the proper level of generality for the question is whether the person in the original position would think it fair/just to have the rule that association with CG can be used to communicate perceptions of incompetence, lack of seriousness, etc., but not to play on racial bigotry.

It's quite imaginable, and I would say probable, that a person in the original position would answer that question in the affirmative. I would.

As a matter of hypothesis testing, it's quite reasonable to imagine a person in the original position thinking: "Even if I turn out to be an African American, if the CG imagery is used to convey a general perception of me as an incompetent fool, that'd be fair game, just as it is with a white person."

Indeed, that argument would be made by those who are obviously playing on racism if, counterfactually, Barack Obama possessed a modicum of those qualities for which George Bush has earned the CG association. But he doesn't.

That's the difference.

egarber said...

tam ho,

I certainly wasn't trying to formally apply anything. I just borrowed from the general approach.

thanks for the reply.

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