Constitutional classifications and the "gay gene".

• Position: Is There a Pink Slip in Your Genes? Genetic Discrimination in Employment and Health Insurance - Transcript

Thank you. It is an honor to be here. It is amazing when you start planning for something like this how things change. No one needs to remind us how the world is very different today than it was prior to September 11th when we were planning this conference.

Also, as I sat here last night and listened to the Commissioner's very insightful and personal comments, and as I sat here this morning, I could pretty much throw out everything that I have prepared and start over. I am not going to do that, but I am going to try to make my remarks a little bit shorter.

I want to start out by sharing a little bit of a personal story here, because sometimes a word from the heart has more of an impact than all of the academic ideas that we put out here, and it is, indeed, relevant.

I have a niece. Her name is Rebecca. She is now 24 years old, she is married, she has two beautiful sons, and she has several congenital defects. The first thing the doctors diagnosed was a major heart defect. Her first six or seven months of life were spent mostly in intensive care, and she underwent three major operations on her heart before the age of four.

Rebecca has had some health complications throughout her life, but none of those have prevented her from developing into a wonderful young and strong woman who I'm proud to call my niece, as well as one of my best friends.

As we gather here today, Rebecca is in the hospital again. She was taken into intensive care and had emergency surgery two days ago. She has developed an intestinal obstruction that her doctors believe is linked to some of the other genetic problems that she has experienced.

Interestingly, she is in a hospital in Canada--a country with national healthcare. She is in Ontario and had surgery at the same hospital where her cardiologist who has cared for her for years practices. From this outsider's viewpoint, Rebecca has received exceptional care over the years, and I wonder what would have happened to her here if she had been born in this country with minimal insurance or no insurance available due to these congenital conditions.

In any event, Rebecca is one of the reasons that I have often thought about issues relating to genetics, especially issues that relate to prenatal testing. What would most people do if they discovered that their unborn children had "defects" like Rebecca has? Would they abort them? Would they opt for risky in utero procedures? If procedures were available, would insurance cover them, or deny coverage on the grounds that the testing was too inconclusive or the medical interventions are too experimental? I can not answer these questions, but they become more relevant with every advancement in the field of genetic research.

Being a law professor, I have also thought about these matters from a legal perspective for a long while. I readily confess that I am not a law-and-genetics scholar, nor do I have medical expertise in this area. Most of my comments today are about constitutional law. And I as look in the audience, I see Professor Candice Hoke, who will be speaking later, and other people who are certainly better qualified than I in some of these areas of constitutional analysis. But I have litigated cases in the area of sexual orientation, and of course I have Rebecca in my thoughts, so I guess I am talking both from the heart and from experience when I address you today.

What I am going to talk about is the use of genetic information to classify individuals for purposes of the law, and more specifically, the impact of the so-called "gay gene" on legal classifications. What is really important here, and the reason I need to offer you a primer on constitutional law, is so that we all start on the same page by understanding how our laws, starting with the federal constitution, classify people for the purpose of bestowing or denying rights and benefits. This leads us to an understanding of why people object to various classifications, and an appreciation of the power of the courts in determining if certain classifications are appropriate. I am, in a way, laying...