The Difficulties of Combating Inequality in Time

Jane Jenson, Francesca Polletta & Paige Raibmon

Abstract: Scholars have argued that disadvantaged groups face an impossible choice in their efforts to win policies capable of diminishing inequality: whether to emphasize their sameness to or difference from the advantaged group. We analyze three cases from the 1980s and 1990s in which reformers sought to avoid that dilemma and assert groups’ sameness and difference in novel ways: in U.S. policy on biomedical research, in the European Union’s initiatives on gender equality, and in Canadian law on Indig- enous rights. In each case, however, the reforms adopted ultimately reproduced the sameness/difference dilemma rather than transcended it. To explain why, we show how profound disagreements about both the histories of the groups included in the policy and the place of the policy in a longer historical trajectory of reform either went unrecognized or were actively obscured. Targeted groups came to be attributed a biological or timeless essence, not because this was inevitable, we argue, but because of these fail- ures to historicize inequality.

Efforts to legislate or judicially confirm rights to equality often prove disappointing, even for those with clear-eyed aspirations. There are many reasons for the gap between the aspiration and the result, but a deceptively simple one is that political actors define equality in ways that restrict its scope and substance. On some accounts, the problem can be characterized in terms of the sameness/differ- jane jenson is Professor Em- ence dilemma.1 Equality sometimes has been de- erita of Political Science at the fined as meaning that members of the disadvan- Université de Montréal. taged group should be treated the same as mem- francesca polletta is Pro- bers of the advantaged group. Yet disadvantaged fessor of Sociology at the Univer- group members are different. They have differ- sity of California, Irvine. ent needs and priorities. To treat them the same paige raibmon is Professor as members of the advantaged group takes as uni- of History at the University of versal the needs and priorities of the advantaged. British Columbia. However, when policy does recognize different (Complete author biographies appear needs and priorities, pitfalls emerge. Categories at the end of the essay.) meant to ameliorate inequalities may become the

Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 basis for evaluating group members in that one cannot have equality with differ- Jane Jenson, ways far beyond the arena originally tar- ence. Rather, the answer lies in the ways Francesca 2 Polletta & geted. Whether or not group members that reformers situated difference and Paige Raibmon are stigmatized, they may be essential- equality in time. Key actors differed over ized: expected to have the same needs, how to account historically for the ori- abilities, and priorities, now and forever.3 gins and perpetuation of inequality. Mul- The problem for political actors–ac- tiple historical narratives vied to become tivists and policy-makers alike–is to de- the departure point for policy. These con- fine equality without succumbing to the tests over history were sometimes unac- deforming effects of the sameness/differ- knowledged by, and even invisible to, key ence dilemma. This essay analyzes three actors. Yet their stakes for equality were cases in the 1980s and 1990s in which high. In each of our cases, deeply histori- political actors appeared to have solved cal understandings of difference were re- the problem. That is, they put forth pol- placed or sidelined by ones that set dif- icies that accommodated various forms ference against a shorter-term horizon. of difference as they promoted equali- In Braudelian terms, longue durée expla- ty. In the United States, reformers sought nations of inequality conflicted with, and both to eliminate the barriers that ex- eventually lost ground to, “event-ish” cluded women and racial and ethnic mi- ones.4 Transformative, equality-produc- norities from clinical research, and to re- ing change required policy that took ac- quire that researchers analyze differences count of the former; yet forces both prag- in findings across groups. They sought to matic and ideological strengthened the treat members of diverse groups both as latter’s gravitational pull. What we term the same as white male research subjects, dehistoricized understandings of differ- and as having different characteristics ence and inequality won out. and needs. In the European Union (eu), Simply calling the problem one of de- feminists developed a discourse of equal historicization, however, risks missing opportunities in order to claim that real the complex ways in which history was gender equality required some special invoked and obscured, unrecognized opportunities for women. Simple equal and misrecognized. We identify two de- treatment was inadequate. In Canada, In- historicizing dynamics: one linking past digenous activists critiqued state prom- to present, the other linking past to fu- ises to treat all individuals equally and ture. In the first, political actors were ul- asserted equal status as nations. Their timately unable or unwilling to recognize points of reference for equality were the the histories built into the categories on collective rights of peoples, not the hu- which policy was based: racial and ethnic man rights of individuals. minorities, women, Indians. They failed In each case, political actors used novel to recognize inequality as a process sus- combinations of sameness and difference tained through informal norms as much to pursue equality. However, the results, as formal policies, often by mechanisms while hailed as victories by many partici- distinct from those that created inequal- pants and observers, fell short. Each re- ity in the first place. They likewise failed form ultimately reproduced rather than to discern the very different histories of surmounted tensions between sameness groups that were included in the same and difference. The puzzle is why. categories. They either presented mem- The answer, we argue, is not that equal- bership in the category as natural or ity and difference are inevitably at odds; treated it as the result of implicit societal

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 The Difficulties consensus. This simplification flattened period of neoliberal reform preferred ap- of Combating differences of need and priority among proaches to gender inequalities that justi- Inequality in Time groups. Advocates for particular groups fied their reluctance to intervene in “pri- then found themselves having to protest, vate” life. In Canada, a government that often futilely, that the multiple groups faced land claims and international pres- lumped into the disadvantaged catego- sure to consult Indigenous peoples resist- ry were different both from each other ed dynamic definitions of the collective and from the advantaged group in conse- rights of Indigenous peoples in favor of quential ways. frozen bundles of individual rights. The In the second dehistoricizing dynam- surprise is not that those with power act- ic, political actors made conflicting as- ed in ways consistent with their interests. sumptions about how past inequality The surprise is that reformers were either would yield to future equality. Apparent unable to prevent or actively acquiesced consensus about the prospects for reme- to the rise of dehistoricized–and some- dying inequality through reform sometimes essentialist–understandings. times concealed real differences about The conflicts we describe took differ- how that would happen over time. Again, ent forms. In Canada, the conflict was be- activists and policy-makers arrived at ne- tween diverse Indigenous activists and gotiations with each other via distinct various levels of government actors; in historical trajectories. Accordingly, they the eu, it was among activists ostensibly situated the resulting policy in distinct on the same side; and in the United States, ways. Policies that policy-makers saw as there was little conflict among political the capstone to reform were often only actors at all. Yet we see continuities across a first step for activists. Such differences the cases with respect to how inequality, did not prevent policy from being made equality, and difference were represented in the moment, but they did lead to con- in time. After providing somewhat sche- flicting assessments of what the reform matic accounts of each case, we highlight represented, what it could accomplish, these parallels. In so doing, we point to and what to do next. In another version obstacles that characterize efforts to com- of this problem, reformers took up essen- bat inequality more generally. tialist (and thus ahistorical) conceptions of difference strategically–and some- We consider first the reform of bio- times, they believed, temporarily–to ad- medical research in the United States. In vance future equality for the group they the early 1990s, a group of advocates, pol- represented. In the end, however, these iticians, bureaucrats, and scientists mo- actors underestimated the inertia of es- bilized to combat inequalities in Amer- sentialist conceptions, especially when icans’ health by transforming the prac- those conceptions coincided with long- tice of biomedical science. Along the lines held stereotypes. of an equality-as-sameness argument, re- Admittedly, the self-interest of pow- formers demanded that women and racial erful groups aligned with these dehis- and ethnic minorities be included as sub- toricized understandings of difference. jects in biomedical research. At the same In the case of American biomedical re- time, and along the lines of an equality- form, pharmaceutical companies had a as-difference argument, reformers de- stake in defining racial differences as bi- manded that researchers measure dif- ological and therefore pharmaceutically ferences among groups before generaliz- treatable. In the eu, policy-makers in a ing findings. They challenged what they

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 saw as the false universalism of medical themselves recognized that differences in Jane Jenson, research: the assumption that findings populations were, at most, averages and Francesca Polletta & from the study of adult white men could therefore not easily translated into treat- Paige Raibmon be generalized to the population at large.5 ment for individuals. So why were those Reformers were, by some measures, views sidelined in favor of essentialist extraordinarily successful. Beginning in and reductionist explanations that made 1993, a series of federal laws, policies, and biological difference the source of health guidelines were created to transform the disparities? Timing is part of the answer. paradigm of biomedical research, cur- The fields of genomics and of ethnic and rently a $94 billion industry in the Unit- racial health disparities emerged at the ed States. Scientists came to see the inclu- same time, and the former energetically sion of diverse populations in clinical re- and effectively staked a claim to the lat- search as both ethically important and as ter.11 Pharmaceutical companies’ eco- good science.6 The reforms encouraged nomic interest in biologically reduction- the new science of genomics, which ini- ist conceptions of difference is another tially refused to recognize racial differ- part of the answer. ence, to energetically commit to remedy- But we focus on yet another develop- ing racial disparities in health.7 And they ment. Reformers and researchers knew led pharmaceutical companies, which the federal categories–American Indi- had vehemently opposed the reforms on an or Alaskan Native, Asian or Pacific Is- the grounds of their cost, to eventual- lander, Black, White, and so on–were ly embrace race-, ethnicity-, and gender- administrative, not biological. They jus- based medicine.8 tified using these categories in research And yet, the reforms were also re- nonetheless because of how they fit them sponsible for the development of expen- into a longer history of reform. As re- sive drugs targeted, variously, to African searchers and reformers saw it, treating Americans, certain ethnic groups, and race as if it were a discrete biological cate- women on the basis of questionable sci- gory was part of the effort to bring about ence.9 And they ended up producing dis- a racially egalitarian society, and it was tinctively individualized understandings temporary: the development of “person- of group inequalities, even by genomic alized medicine” would make reliance on scientists who were committed to the no- group categories as proxies for genetic tion that health disparities reflected so- variation obsolete. cial conditions.10 In these respects, the However, those justifications for using reforms failed to lessen inequalities in race as a research category had the effect health. of keeping in circulation folk understand- What explains these paradoxical re- ings of race as discrete groups whose bio- sults? When reformers called on med- logical traits matched their physical ap- ical researchers to compare drug ef- pearance and were passed across gener- fects and biological processes across ra- ations intact. These folk understandings cial groups, they did not intend it to be persisted alongside newer nontypologi- the end point of analysis, with the differ- cal understandings of race, even after the ences attributed to putative racial biolo- much-vaunted individualized treatments gies, rather than to experiences of pov- became available. Moreover, insofar as erty, stress, discrimination, and poor cutting-edge genomicists pushed be- medical care that combined and persist- yond stereotyped understandings to view ed over generations. Medical researchers race in terms of statistical continuities in

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 The Difficulties gene frequencies, the individualizing ap- outcomes since a federal task force in the of Combating proach that came with that view–again, mid-1980s cited sixty thousand annu- Inequality in Time enabled by a narrative that race would be- al “excess deaths” among African Amer- come obsolete–made it more difficult to icans.15 The Caucus called for the inclu- recognize difference as the result of group sion of racial and ethnic minorities in the inequalities. Paying attention to the ways bill to combat those disparities. Accord- in which reformers and researchers his- ingly, reformers added “and minorities” toricized the reform, and the categories to the reauthorization bill.16 that made it up, thus helps to explain the The nih Reauthorization Act passed in otherwise surprising embrace of essen- 1993. The fda followed suit, eliminating tialism by people who were sensitive to barriers against the inclusion of wom- its dangers. en in testing in 1993 and, in subsequent The policy process. To call efforts to re- years, issuing guidelines that called for form biomedical research a “movement” the inclusion of women and minorities risks overstating its grassroots charac- in testing, the assessment of drugs’ safe- ter. While grassroots aids, feminist, ty and efficacy across subpopulations, and disease advocacy groups both raised and the reporting of race and ethnici- public consciousness and served as mod- ty information in applications for fda els for how to bring publicity to bear on drug approval. In 2001, the nih man- legislators, the key actors in pressing for dated the use of federal categories in re- reform were professionalized advocacy porting race and ethnicity: American In- organizations and establishment insid- dian or Alaskan Native, Asian or Pacific ers: staffers at the National Institutes for Islander, Black, White, Hispanic origin, Health (nih), the world’s largest funder and not of Hispanic origin.17 From that of biomedical research, and the Food and point on, what sociologist Steven Epstein Drug Administration (fda), which li- calls “the inclusion and difference para- censes new therapies for sale.12 digm” diffused through other federal bu- Women’s health advocates’ first wins reaucracies, the pharmaceutical industry, were a 1985 Department of Health and and biomedicine generally.18 Researchers Human Services report calling for more should seek to include diverse groups in research on women’s health, and a 1986 their studies and they should compare bi- policy encouraging nih-funded clinical ological processes and treatment effects trials to include women.13 When the re- across those groups. port and the policy were largely ignored Historicizing equality. If one’s concern by researchers, a new advocacy organiza- were with racial disparities in health out- tion, the Society for the Advancement of comes, why focus on differences in how Women’s Health Research, joined with blacks and whites metabolized a protein the Congressional Women’s Caucus to or responded to a diabetes medication? push for reform. Advocates took advan- No one was claiming that race as a vari- tage of the fact that the nih was up for able impacted, say, the progression of reauthorization to include provisions in heart disease more than income or insur- the bill for women’s inclusion in health ance status did. And insofar as race was research.14 associated with patterns in heart disease, The text of the reauthorization bill ini- was that not likely to be as a result of pov- tially referred only to women. Howev- erty, stress, discrimination, and other so- er, the Black Congressional Caucus had cial factors? Viewing health disparities focused on racial disparities in health in terms of biological difference risked

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 raising one dimension of difference into reformers now embrace the inclusion Jane Jenson, the sum total of the explanation for those and difference paradigm’s reliance on Francesca Polletta & disparities. It risked shifting attention ostensibly biological categories of race? Paige Raibmon away from the social and economic caus- And why was the use of racial categories es of health disparities.19 There was an- not criticized more forcefully as the par- other risk. Often, the subgroup compar- adigm diffused across science, pharma- isons that the reforms required did lead ceutical development, and medicine? to the identification of differences, but To be sure, there were some critics. these were in group averages. For exam- Otis Brawley, who headed an office of ple, one meta-analysis of clinical trials “special populations” at the nih, op- of antihypertensive drugs found that al- posed the Revitalization Act for “fos- though whites on average responded better[ing] the racism that its creators want ter to beta blockers than blacks did, and to abrogate” by relying on essential- blacks on average responded better to di- ist conceptions of race.25 Later, especial- uretics than whites did, 80 to 95 percent ly with the introduction of race-targeted of blacks and whites had similar respons- medicine, charges of “racial profiling” in es to both treatments.20 Treating the av- medicine began to surface.26 Still, the fact erage differences as categories might lead that medical researchers, pharmaceutical to improper treatment for any one indi- executives, policy-makers, and advocates vidual. Moreover, even if the reason for for racial and ethnic minorities so enthu- a documented difference was unclear or siastically embraced the use of racial and spurious (often, subsequent studies re- ethnic categories in medical research and vealed no difference at all), pharma- drug testing deserves explanation. ceutical companies could then market The explanation lies, in part, in two ac- the treatment to the group.21 As we will counts of the place of race in biomedical show, this ended up being more than an research that circulated during this pe- abstract risk. riod. Both accounts were historical, al- That women’s advocates were relative- though one was about the future more ly indifferent to the risks of emphasizing than the past, and the other was embed- biological differences is perhaps not sur- ded in the very categories themselves prising. The Society for the Advancement rather than recounted explicitly. Invoked of Women’s Health Research, which led by advocates, policy-makers, administra- the reform effort, was firmly commit- tors, researchers, and pharmaceutical ex- ted to the project of sex-based medicine, ecutives, these accounts defended essen- which it pursued into the 2000s.22 The tialist conceptions of race against critique. greater surprise is that concerns about bi- In one account, subgroup comparisons ological reductionism were not voiced by were harnessed to the cause of racial jus- advocates for people of color. Like wom- tice. The categories themselves were a en’s health reformers, minority health re- legacy of the civil rights movement: they formers were mainly medical profession- were first used by the Equal Employ- als who favored a biomedical rather than ment Opportunity Commission, which a public health perspective on minority was created by the 1964 Civil Rights Act health generally.23 Still, after World War to combat workplace inequality. The cat- II, scientists had largely abandoned bi- egories were thus not only administra- ological conceptions of race and accept- tively familiar, but also associated with ed social scientists’ view of race as a so- the cause of racial equality. The cate- cial construct.24 Why did researchers and gories’ political past and purpose thus

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 The Difficulties legitimated their use in biomedical re- medicine.”31 The National Association of Combating search. Leaders of the Human Genome for the Advancement of Colored Peo- Inequality in Time Project, for example, initially rejected ple (naacp), the oldest American civil race as a valid biological category, insist- rights organization, partnered with the ing that all dna was “equal” and relying drug’s manufacturer to help company on dna samples of convenience from representatives promote it in black com- around the world. After the institution- munities.32 For the naacp, as for the fed- alization of the federal standards, how- eral government, BiDil was an advance ever, project leaders began to claim that for the cause of individualized medicine genomics could combat racial and ethnic and an advance toward a society charac- health disparities.27 Genomicists aban- terized by racial equality.33 doned their earlier unwillingness to rec- In fact, it was neither. When research- ognize genetically meaningful racial cat- ers first came up with the drug, which egories as they promised to identify the combined two generic vasodilators, they racial and ethnic basis of disease suscep- sought approval for it from the fda for tibility. They used the language of “social general, not race-specific, use.34 Because justice,” according to sociologist Cather- the study they cited had been conducted ine Bliss, “a kind of health-focused Affir- for purposes other than testing the drug mative Action.”28 and lacked proper statistical controls, At the same time, and this was the sec- however, the drug was not approved. But ond historical account, the use of race in at that point, researchers noticed that the medicine was treated as a “way station,” small number of African Americans en- a “step,” a “phase,” a “temporary stage” rolled in the study seemed to have bene- between a past of one-size-fits-all med- fited more from the drug than others. (As icine and a future of treatment tailored we noted earlier, it is not uncommon to to each individual’s genetic makeup. As see subgroup differences that turn out to an official at the fda put it, to treat race be spurious.) Researchers sought a patent as biological was a “stepping stone” to for the drug and conducted a larger study, “target treatment.”29 Even researchers enrolling only African Americans. The who criticized the concept of race wrote: drug showed such benefit to subjects rel- “There is potential utility in using race la- ative to a placebo that the study was end- bels as a surrogate for genetic informa- ed early and BiDil was approved in a dra- tion, as a means to the ultimate goal of in- matically shortened review for self-iden- dividualized therapy.”30 In this account, tified blacks suffering from congestive researchers justified treating race as a heart failure. The drug was priced at six bounded concept because it was only for times the price of the two generic drugs the short term. that made it up and Wall Street analysts Race-based medicine. Accounts connect- predicted sales of $1 billion by 2010.35 ing the use of biological concepts of race Despite the fda’s bold proclama- and ethnicity to the past of civil rights action that BiDil was an advance for per- tivism and the future of individualized sonalized medicine, no genetic mecha- medicine were evident in the announce- nism accounting for BiDil’s effectiveness ment of the first of several race-specific was identified. Rather, self-identified drugs. The fda proudly hailed BiDil, a race was accepted as a proxy for unex- treatment for congestive heart failure plained genetic variation. This was true in self-identified black Americans, as “a even though the study provided no ev- step toward the promise of personalized idence that there was genetic variation.

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 After all, the study included only African physical markers. Physicians took racial Jane Jenson, Americans. appearance as a proxy for genetic varia- Francesca Polletta & Although BiDil’s profitability did not tion in people of color. As one physician Paige Raibmon live up to expectations, drug companies explained: developed and marketed other ethnic- The Human Genome Project has proved and gender-targeted drugs to capitalize beyond a doubt that African American on the potential for niche-based market- 36 males get prostate cancer at younger ages, ing that BiDil revealed. There was cer- African American hypertensive patients tainly a financial motivation to believe respond better to certain classes of medica- genetic differences caused racial health tions. So to operate blindly, literally, blind disparities. However, BiDil was em- to the ethnic and racial is, I think, ridicu- braced not only by pharmaceutical com- lous. Because the medical science is there panies, but also by federal government now to say, “No you have to consider it.” . . . officials, medical professionals, scien- You know, “You happen to be Black so we tists, and advocacy groups. Again, an es- should put you on this.”39 sentialist conception of race became acceptable, both in the development of Bi- The Human Genome Project showed Dil and, more broadly, because it seemed none of this. But the story of individu- to be a temporary measure on the way to alized medicine on the horizon justified a postracial science in a postracial society. physicians’ folk understandings of race Yet these essentialist understandings of in the meantime. race were not temporary. Even when ge- Indeed, when the researchers asked netic information became available that physicians what would make genetic sci- made individualized medicine possible, ence more useful to their clinical prac- medical researchers still relied on racial tice, fully 20 percent of respondents categories. For example, in establishing skipped personalized medicine altogeth- the proper dosing for Warfarin, an anti- er and asked for more guidance on how coagulant, researchers found that once to treat people differently by race. One patients’ genetic factors were taken into commented, “When they develop drugs, account, race was irrelevant to the drug’s if they could tell us how the drugs react efficacy. Yet they still advised physicians with different races. We already know to use a race-based dosing regimen.37 that some diseases are more prevalent What legal scholar Jonathan Kahn calls in different races. So to know the effects the “inertial” power of race is also evident that drugs have on different races would in interviews with primary care physi- be quite useful.”40 In other words, the cians in the 2010s about their views of ge- notion of a future of personalized, “pre- nomics. Physicians talked frequently and cision” medicine made acceptable the confidently about personalized medicine use of racial categories in the present, but being “just down the road” or “coming it also sat comfortably alongside the as- down the pike”: again the story of future sumption that such categories were not promise.38 None of the fifty-eight physi- historical but biological, and thus time- cians who were interviewed actually used less. Because race is still so deeply em- genetic testing. But they did pay attention bedded in American institutions, it re- to family ancestry–when the patients mains, as anthropologist Claude Lévi- were white. When the patients self-iden- Strauss would have put it, good to think tified as Black, Asian, and/or Latino, they with.41 Stories of the categories’ history paid attention to racial and ethnic group and their provisional status in medicine

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 The Difficulties accompanied rather than undermined insofar as they described a future world, of Combating beliefs about their naturalness. a world that researchers referred to ad- Inequality in Time Genomicists construct race. By the early miringly, in which individual differenc- 2000s, many genomicists had broken de- es would eclipse group-based ones. For cisively with a view of races as discrete Shim and her colleagues, the danger was categories.42 And contrary to early pre- that researchers’ valorization of a mea- dictions that they would ignore the social sure capturing the ancestral complexi- causes of health disparities, genomicists ty of an individual as an individual made have sought to capture the interplay of ge- it easy to skip over the disease risks that netic and social factors in accounting for people confronted as members of groups, disease and disease disparities. Howev- risks that arose from discrimination, er, genomics research has still given short poverty, environmental toxicity, and so shrift to the social, economic, and politi- on. Once again, difference was dehistori- cal realities of race, whether because ge- cized; made into a characteristic of indi- nomicists have the upper hand in collab- viduals rather than the outcome of un- orations with social scientists or because equal relationships. And once again, that efforts to understand gene/environment dehistoricizing tendency was made pos- interactions define and operationalize sible by a story that was told about a fu- “environment” in ways akin to a gene: an ture free of group-based inequalities. individual attribute that produces health Difference and history. Scholars have ar- risks at the molecular level.43 gued that efforts to alleviate inequality by Interesting, in this regard, are genom- recognizing disadvantaged groups’ dif- icists’ relationship to the classifications ference from advantaged groups inevita- created by the nih reform. The research- bly stigmatizes that difference. But in this ers interviewed by sociologist Janet Shim case, as in the two others, that denoue- and colleagues used the nih categories ment was not inevitable. Rather, it owed for the sake of convenience.44 But they to the ways in which the emphasis on dif- also criticized the categories for arbitrari- ference was accounted for historically. ly lumping together people of diverse Scientists, policy-makers, and advocates ancestries and experiences. Researchers knew race was a historical and political were more excited about the use of An- category, but they believed they could cestry Identity Markers (aims) to classi- treat it as a fixed and biological one be- fy subjects. aims identify proportions of cause doing so would help advance a ra- an individual’s genetic ancestry originat- cially just society, and because they would ing in different geographical regions. Re- only do so temporarily. However, these searchers’ excitement stemmed not from understandings of what it was that they the immediate utility of aims (which were doing, and how long they would be have not yet provided clues to disease doing it for, made it difficult to challenge risk), but from the prospect of a classifi- those who believed race was a “natural” cation system that reflected the precise category.45 When genomicists later re- and unique genetic makeup of individu- jected the notion of race as a discrete cat- als in a world, they said repeatedly, that egory, their ability to develop classificato- was becoming more ethnically diverse ry tools that prefigured a world in which and multiracial. aims had social and eth- individuals were equally diverse made it ical value because they captured the com- easy to ignore the continuing salience of plex mix of ancestries in any one indi- race as a group category. In both cases, vidual. They had value, in other words, the stories that reformers and researchers

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 told about the past and especially the fu- could be only part of a much larger agen- Jane Jenson, ture of race and inequality made it more da of necessary interventions. Francesca Polletta & difficult to combat racial inequalities in In the first decades of the European Paige Raibmon the present. project from the late 1950s through the 1970s, feminists claimed and policy-mak- Varied understandings of historical ers addressed inequality via equal treat- cause and ideal future likewise impact- ment. But then over the following de- ed gender policy in the European Union. cades, feminists pushed the eu to insti- The European Union paid precocious at- tute programs to advance their vision of tention to equality between women and equal opportunities, which was derived men; the 1957 Treaty of Rome included from second-wave feminists’ use of the Article 119, a commitment to “maintain concept of difference in theorizing gen- the application of the principle that men der inequality.48 And they were quite and women should receive equal pay for successful. Feminists worked for several equal work.” But the constitutional trea- years to prepare important policy chang- ty said nothing about how to achieve es.49 Programming and funds followed.50 equality, and the sameness/difference di- Through the 1990s, the broader agenda lemma confounded policy actions over and its understanding of the historical decades.46 roots of gender difference and inequali- Should women be treated the same way ty seemed to predominate, but it was ul- as men via equal treatment or did histori- timately pushed aside in favor of a return cally generated gender inequalities re- to an antidiscrimination approach. quire different treatment to achieve The policy process–stretching history. The equal opportunities? This second posi- 1970s was the era of equal treatment.51 tion eventually became a call for “posi- Direct discrimination could supposed- tive action” in the form of preferential ly be overcome with legislation requiring treatment (quotas on company boards or equal treatment; fiveeu directives be- political party lists, for example) or neu- tween 1975 and 1986 sought to do this.52 tral treatment that would benefit women But feminists and some eu institutions most (childcare available to all employ- knew that discrimination did not have to ees, for example).47 be direct to have real effects. By the ear- Each of these positions historicized ly 1980s, the European Court recognized claims and actions differently. The tem- the possibility of indirect discrimination poral horizon was short for those embrac- and propounded the concept of “dispa- ing the equal-treatment strategy. The rel- rate impact” on women and men, mea- evant difference was essentially the sex sured statistically, while the European of individual workers, and the source of Commission came to understand that ap- inequalities was discrimination against parently neutral measures could have a women in the employment office or work- “preponderant effect on workers of a giv- place. The horizon of those calling for en sex.”53 positive action was longer. They identi- These measures shared the goal of en- fied recurring cultural and socioeconomic suring that women could function in the processes as the causes and perpetuators labor market in the same ways and under of unequal gender norms and relations. the same conditions as men. In order to To remedy inequality, then, would require achieve the capacity to function like men, intervening in that range of processes. For they might require some recognition of them, antidiscrimination policy efforts bodily difference (pregnancy, childbirth,

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 The Difficulties size and strength standards for jobs, and feminized European Parliament and its of Combating so on). But the overriding goal was to Committee on Women’s Rights and Gen- Inequality in Time reach similar levels and kinds of labor der Equality (femm). It also had strong force participation by eliminating dis- connections with social movement or- crimination against the category “wom- ganizations, particularly those based in an.” The general strategy was to limit national women’s movements or fos- corrective actions to employment. The tered (or at least supported) by the eu it- presumption was that women arrived at self.56 In search of legitimation strategies the employment office or the workplace to overcome the widely evoked “dem- unencumbered, and that discrimina- ocratic deficit,” theeu provided plen- tion arose from inappropriate actions of tiful funding for transnational organi- employers or coworkers. These actions zations, including the European Net- could be discouraged by making discrim- work of Women, the European Expert ination–direct and indirect–illegal. Network on Women in Decision-Mak- There were, however, feminists already ing, and the European Women’s Lobby working in the Commission and elected (ewl), which was created and funded to the European Parliament who promot- by the eu in 1989 as an umbrella organi- ed other views on the sources of gender zation for national-level women’s groups differences and inequality. Already by the and an active intervener in policy dis- late 1970s, they were working with femi- cussion and design.57 Generous research nists outside the European institutions to grants also went to academics studying develop policies in line with a more his- gender relations, whose results circulat- toricized understanding of women’s in- ed back to the Equal Opportunities Unit equality. They understood that “equal and the ewl via conferences and meet- treatment of unequals only reproduced ings organized by the Commission. The the existing inequality between women Equal Opportunities Unit policy machin- and men.”54 Changing such norms and ery also included several European net- practices required positive actions that works on equal opportunities funded by recognized, and could ultimately over- the Commission to recruit outside exper- turn, the historical positioning of women tise.58 The outcome was a dense network as unequal because of the gender roles as- of activists, advocates, elected officials, signed to them. and feminist Eurocrats that stood behind Ironically, even as the Commission au- an agenda of equal opportunities. thorized only a narrow view of the sourc- Many in this network identified a his- es of women’s inequality, it provided in- torical source of gender inequality that stitutional support for Eurocrats within reached well beyond discriminatory eu institutions and in alliance with civ- practices in the labor market. They ar- il society feminist groups to promote ac- gued that by the time women approached tions that were more ambitious. In line the factory or office door, historically with usual practice, the existence of di- powerful social and cultural effects al- rectives required that the European bu- ready situated them in a position of “dif- reaucracy engage in institutional stabili- ference” that made formal commitments zation of its approach.55 A first step was to equal treatment far too limited a tool the creation of a Women’s Bureau (later to create equality. Commitments to hu- the Equal Opportunities Unit) to moni- man rights, important as they were, were tor member state compliance. That unit insufficient to overcome the conditions developed close ties with the increasingly of women’s and men’s lives, including

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 the cultural norms about care and par- incentives to take time off from work to Jane Jenson, enting and male superiority that under- care and thereby develop more responsi- Francesca Polletta & lay the social construction of gender rela- bility for children. They argued for gen- Paige Raibmon tions. They adopted the by-then standard der quotas in elected and civil-society feminist position that the unequal distri- decision-making, and they pressed for bution of responsibilities for care–for more women in leadership positions in children, vulnerable family members, the business and science. For these feminists, house–needed to change, as did cultural meaningful equality required overcom- values that diminished women and their ing long-standing differences between contributions to work and society, which the lives of women and men. were in turn often made through care Feminists in these networks kept up work. Women needed access to political pressure to harness the influence and and cultural as well as economic power. power of Europe to make cultural change; For example, pressed by femm and the at the start of the 1990s, eu institutions Parliament more generally, the Commis- responded.63 Much of the eu institution- sion’s Action Programme (1991–1995) al machinery and several member states asserted that the member states need- nonetheless continued to reject any his- ed to go beyond attention to equal pay to torical narrative of the inequality-gener- promote the active participation of wom- ating norms and consequences of family en in decision-making. relations and care work. Thus, even as the A network of collaborating feminists network concerned with gender equali- sought to move the agenda out of the ty grew more dense, proposed directives narrow realm of jobs (pay, benefits, and (legislation) were weakened and “often working conditions) and called for a turned into much less potent recommen- broader understanding of the many spac- dations and resolutions.”64 es where inequality was socially con- The preference for an ahistorical un- structed.59 This understanding of the his- derstanding of inequality was strong. For torical nature of inequality led to policy example, because the European Court demands for childcare support, parental of Justice saw its jurisdiction as cover- and maternity leaves, as well as protec- ing only work, and therefore only work- tion from sexual harassment, overcom- ers, it refused “to resolve questions rel- ing cultural stereotypes and stigma, and ative to the organization of family life or increasing women’s involvement in deci- to modify the distribution of responsibil- sion-making. All of these policy demands ities within the couple.”65 The Commis- were significant themes in the Action sion and Council seemed to agree with Programmes through the 1990s.60 Such the Court about not crossing the public- changes could, feminists claimed, alter private divide. In the context of rising the behavior of men and male-dominat- neoliberalism that turned individual ed institutions so as to provoke a cultur- rights and market fundamentalism into al revolution in practices, within families the new common sense, proposals that in- and civil society alike.61 Feminists tar- volved social engineering to change gen- geted the distribution of care work, par- der relations in the private family or pri- ticularly the “double day,” and claimed vate sector provoked skepticism. eu en- “sharing” of care was an essential out- largement did not help: a more diverse come they could promote through good set of member states made finding con- policy design.62 They pushed, for exam- sensus even more difficult. It was easi- ple, for parental leaves that gave fathers er to maintain a short temporal horizon

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 The Difficulties focused on employment offers and hiring jettisoned, however; indeed, major at- of Combating than to tackle concerns about the condi- tention to preventing violence against Inequality in Time tions under which women might under- women was added in 1997 and contin- take an employment search, or about the ues today. There was also a reinforce- type of job they might consider desirable ment of the reliance on equal treatment given their circumstances. This horizon as the policy solution.68 This return was ensured families’ decisions about recon- not only because of retrenchment in the ciliation of work and care responsibilities social domain, but also because from the stayed in the “private sphere.” At the same late 1990s into the new century, multiple time, however, and in line with the goal of social movements that focused on struc- making women workers more like men, tured inequalities and claims for inclu- increasing support for childcare was justi- sion had joined the conversation about fied as removing a barrier to employment. sameness and difference. Movements for In this policy pirouette, the treatment of sexual rights, antiracist movements, and gender inequalities was assimilated into movements of immigrants and Roma all other hindrances to employment, for mobilized around claims for antidiscrim- men as well as women, that required vari- ination protections and equal treatment ous kinds of policy tools, such as training, in the labor market and beyond (for ex- human capital investments, and other ac- ample, in family law about marriage and tions designed to overcome blockages to adoption). Moreover, activists had made the eu’s economic development. Poli- intersectionality a common theme, as cies to improve reconciliation of family they argued for the multiplication effects and work appeared as “an element con- of cross-cutting and reinforcing inequal- tributing to a good working environment ities. For many activists, social categories for all.”66 This sidelined other norms and were fluid, rooted not in social structures relations that shaped women’s lives be- but in identity, whether of gender, sexu- fore they appeared at work or during their al orientation, ethnicity, or race. These double day of care for family and home. movements also demanded recognition Other movements, other times. By the late and inclusion as proponents and protec- 1990s, childcare and practices to promote tors of equality for numerous categories equal opportunities had become poli- of individuals, and they began to gain po- cy tools that enabled rates of female em- litical space (and funding) in the Europe- ployment to rise significantly but were an institutions.69 stripped of broader goals to alter cultur- As social movements’ approaches to al and social norms. Or rather, the focus identity and equality diversified, the fem- was on changing women workers’ behav- inist movement itself divided. Some fem- ior, not changing male workers’ behav- inists resisted this shifting focus toward a ior. By then, moreover, member states multiplicity of diversities and their inter- were generally disgruntled about over- sections. Instead, they adopted a “parity” ly ambitious social goals pursued by the stance, in which they essentialized differ- Commission.67 Therefore, less ambi- ence when making claims to equal num- tious actions to promote gender equality bers of women and men in political repre- conformed to the eu’s concentration on sentation. This position was announced market-building and ensuring the labor in the Athens Declaration of 1992, a doc- force needed for it. ument signed by twenty prominent fem- The eu’s formal commitment to equal- inists after a summit organized by the ity between men and women was never European Women’s Lobby, the Expert

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 Network on Women in Decision-Making, the mid-1990s, Article 13 of the 1997 Trea- Jane Jenson, and the European Commission.70 The ty of Amsterdam confirmed the constitu- Francesca Polletta & parity movement that emerged after Ath- tional competence of European institu- Paige Raibmon ens argued that gender difference was bi- tions to “take appropriate action to com- ological and binary. In this way, adher- bat discrimination based on sex, racial or ents of the parity position made a signif- ethnic origin, religion or belief, disability, icant change; they dehistoricized where age or sexual orientation.” Although Ar- previously they had insisted on histor- ticle 2 of the same treaty insisted on one ically constructed gender inequalities. form of inequality (“In all its activities, For them, the world was divided into two the Union shall aim to eliminate inequal- sexes, a division they took as fundamen- ities, and to promote equality, between tal to humankind. It thus merited unique men and women”), inequalities between treatment in representation.71 The par- women and men quickly became one of ity movement embraced one difference several forms of inequality, rather than as different from all others, and based the priority. The eu assumed a “similar- claims for equal access to political pow- ity of inequalities.”73 er on that difference. Other social move- In its policy actions, eu institutions ments contested this narrative that ele- dusted off the antidiscrimination equal- vated biology to primordial status, even treatment stance initially developed for when its application was limited to elec- women in the 1970s in order to apply, tions. These social movement organi- elaborate, and institutionalize it with re- zations disputed the very binary of fe- spect to race and ethnic origin. In 2000, male and male. In their own claims-mak- two directives legislated the requirement ing, these movements sought equal civil for member states to implement more rights for their chosen identities and pro- stringent equal treatment with respect tections against discrimination. to race and ethnicity than had previous- In other words, by the late 1990s, there ly been done for gender; in effect, the re- was no standard social movement narra- quirement, for the first time, reached tive motivating claims for gender equal- well beyond labor market consider- ity and equal treatment.72 For some, the ations. Four years later, a matching direc- problem remained inequalities in the tive for gender discrimination narrowed gender division of labor, both in employ- down broad feminist demands, thereby ment and in the family, and positive ac- revealing “that anti-discrimination had tions were required. For others, the prob- become the driving area at the European lem was racism, and antidiscrimination level and that gender equality policy had measures were needed. For yet others, it to conform to this anti-discrimination was antipathies to sexual difference and model.”74 All used an equal-treatment respect for sexual orientation, and equal approach.75 rights was the solution. And even for With these actions, the eu moved back some, the issue was the cultural embed- to “a rights-based, anti-discrimination dedness of certain religions in European approach [that] necessarily involves an history, and greater willingness to accept individualist approach in the eu con- cultural difference was needed. text.”76 This position avoided conflict This variety enabled eu institutions to with many social movements, for which continue to drive toward bundling mul- intersectionality and the fluidity of dif- tiple differences together under a diag- ference were to be celebrated. They de- nosis of the need for equal treatment. In fined lived experience as fluid and

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 The Difficulties identities as multiple, generating claims of diminishment of Indigenous rights under of Combating the right to be different in multiple ways. the Canadian legal order.79 More expan- Inequality in Time Gender equality had been folded into on- sively, s.35 was considered by many at the going, well-rehearsed antidiscrimination time to be a “box of treasures” poised to discourse that relied on rights-based advance legal pluralism and decoloniza- frames to achieve “sameness” of rights. tion.80 On several counts, s.35 appeared While “history” had a place in each nar- a victory. The government squared group rative, it was not the same history. Each rights with its commitment to individu- located the source of women’s disadvan- al equal rights. Indigenous peoples spoke tage along a different historical trajectory; up and prevented diminishment of their in turn this oriented them toward a dis- rights. All this was a full quarter of a cen- tinct future horizon. tury before the United Nations Declara- tion on the Rights of Indigenous Peoples. Our third case study of the process Yet s.35 has fallen short of these antici- through which Canada constitutional- pated gains. Since 1982, Indigenous peo- ized “Aboriginal and treaty rights” com- ples have had relatively little success at- plicates our story in interesting ways. taining self-government or acquiring ju- Here, the sameness/difference dilem- risdiction over their territories. Facing ma was mapped out not simply onto the profound limitations and inertia at gov- binary of individual/group rights, but ernment negotiating tables, Indigenous onto plural sovereignties. Although In- peoples have pursued their rights incre- digenous actors eschewed the vocabulary mentally through the courts. Scholars de- of equality, they sought a kind of equal- bate whether s.35 has done harm or good. ity among nations. Arguments for plu- For some, it is an “empty box”; for oth- ral sovereignties challenged the federal ers, it is “another colonial disaster” that government’s foundational assumptions limited Indigenous freedom.81 Thus, about the basis of the nation’s legitimacy. Ladner sees it not only as a “monumental This was–and remains–a big ask. achievement,” but also as a “monumen- In the early 1980s, many observers tal defeat”; in other words, “an Indige- saw Canada at the global forefront of ef- nous constitutional paradox.”82 forts to reconcile difference and equali- We can unlock this paradox if we situ- ty within its legal order. Canada was the ate it in time. Careful attention to what first country to constitutionally protect came before and after the constitution- multiculturalism and its wide-ranging al struggles shows that Indigenous lead- bill of rights incorporated language, ed- ers and federal politicians did not sim- ucation, Indigenous peoples, and gen- ply have competing policy agendas. They der equality.77 Its Constitution Act (1982) engaged, rather, in fundamentally dis- comprised the Charter of Rights and tinct historical projects. Every side (and Freedoms, which guaranteed equal rights there were more than two) sought to im- to individuals, and also section 35 (s.35), plement its own concept of sovereignty which constitutionally entrenched the rooted in its own constitutional order, an group rights of Indigenous peoples. This order whose primacy each side took for was, in the words of political scientist granted. They came together from differ- Kiera Ladner, a “monumental achieve- ent places; having met, they headed again ment” for Indigenous peoples.78 The pro- toward different destinations. phylactic outcome alone was important: This divergence results from Canada’s combined with section 25, s.35 prevented settler colonial status. Any democratic

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 settler state in pursuit of equal rights for Rights Act (1977) were signposts along Jane Jenson, citizens confronts a contradiction: its ex- the way to the human rights–based legal Francesca 84 Polletta & istence as a nation that champions equal- order that he sought to institutionalize. Paige Raibmon ity depends upon abrogation of Indige- Patriation was the necessary next step. nous rights and occupation of Indigenous His anticipated obstacles lay in Quebec lands. In settler states, serious friction ex- and the Western provinces; Indigenous ists between equal individual rights and peoples were not on his radar.85 the rights of original peoples. Like cit- Indigenous activists and leaders trav- izens of other settler states, Canadians eled a different road to the constitutional have been slow to acknowledge this fric- discussions and protests of the late 1970s. tion.83 Conflicts between group and in- For Indigenous peoples, treaties, declara- dividual rights are not unique to Indig- tions of alliance, wampum belts, territo- enous struggles: in Canada, feminists rially based practices–in short, their own and Québécois nationalists likewise have legal and constitutional orders–marked challenged individualized definitions of the time line that led to the present mo- equality in favor of collective concep- ment. Moreover, activists and leaders of tions of historical disadvantage and con- the 1970s were the first in a generation to temporary rights. Yet the stakes of Indig- grow up when political organizing was enous struggles remain distinct because not illegal. Their generation had first mo- they question the settler nation’s claim bilized to defeat the 1969 White Paper, on democratic values in any form, indi- another of Trudeau’s equality propos- vidual or collective. als. The White Paper proposed to elimi- The constitutional conversations of the nate legal distinctions–including trea- 1980s became a way station–albeit an im- ties and reserves–between Indigenous portant one–that failed to divert any of and non-Indigenous people. The White the parties from its own historical pathway Paper was the liberal tradition’s “equality onto that of another. Each subsequently as sameness” par excellence, and Indige- resumed course on a distinct time line that nous activists resoundingly rejected it. stretched forward to its own anticipated For these leaders and activists, the source horizon: Canada toward a multicultural of Indigenous inequality lay neither sim- nation rooted in singular sovereignty; In- ply with disregard for the human rights digenous peoples toward self-determina- of Indigenous individuals, nor with the tion embedded in plural sovereignties. existence of their collective differenc- The reform effort: Converging and diverging es. It lay with the settler state’s denial of time lines. Prior to 1982, only the British their collective rights and order as Indig- Parliament could alter the Canadian Con- enous peoples. The White Paper’s individ- stitution. In the late 1970s, Prime Minis- ualizing impulse toward sameness, they ter Pierre Trudeau sought to change this. argued, would not render them equal to The Constitution was a double-sided Canadians, but would instead culminate plank in Trudeau’s equality agenda: with longstanding assimilation efforts. it he sought to guarantee equal rights and And so, in Trudeau’s efforts to patri- to sever residual colonial ties to Great ate the Constitution, Indigenous activ- Britain. In Trudeau’s terms, the former ists perceived a new threat to an ongoing task advanced equality among individu- movement.86 But in addition to a threat, als; the latter equality among nations. they saw opportunity. They seized upon For Trudeau, Confederation (1867), the national interest in Trudeau’s agen- the Bill of Rights (1960), and the Human da to attract publicity and international

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 The Difficulties attention to their cause. Indigenous lead- Indians; the Native Council of Canada of Combating ers astutely turned the trajectory of their represented off-reserve, non-status, and Inequality in Time long-term self-determination project to Métis people; and the Inuit Committee intersect with the federal constitution- on National Issues represented the Inu- al program. Thus, the constitutional pro- it.88 Provincial- and tribal-level organi- tests and negotiations prior to 1982 be- zations also played important roles, as came moments of convergence engi- did the Native Women’s Association of neered by Indigenous strategists between Canada. distinct historical time lines. Each organization’s position shift- Indigenous leaders and activists who ed over time, as did relations between turned to engage the federal patriation membership and leadership. All organi- agenda were diverse; there was no sin- zations shared at least one thing in com- gle “Indigenous movement.” Multiple mon: a claim to differential treatment as Indigenous agendas intersected with the the remedy for present-day legacies of in- federal one, each grounded in its distinct justice. They rejected the antidiscrimi- historical trajectory. Coalitions formed, nation tenet that being treated the same dissolved, and re-formed multiple times as other individuals within the Canadian over the course of the constitutional de- polity would generate equality for them. bates and protests.87 They demanded instead to be treated in Indigenous diversity–political, cultur- ways that were the same as, or at least al, economic, linguistic–predated Euro- analogous to, other nations. While Can- pean arrival. Nineteenth- and twentieth- ada sought national maturity by cutting century colonial and state powers drew its colonial ties to Great Britain, Indige- new distinctions (and thereby new differ- nous peoples brandished their historic ences) among Indigenous peoples based ties to the British Crown as evidence of on factors ranging across an individu- their jurisdictional and self-government al’s gender, marital status, place of resi- powers.89 dence, education, and treaty status. By the Beyond this commonality, the path for- 1970s, such legal distinctions were gener- ward was unclear and contested. Some ations-old lived experience. By this time, organizations believed constitutional an Indigenous individual might find that entrenchment of their rights would pre- Canada understood her to be a “status In- serve nation-to-nation status; others be- dian” (under the Indian Act), an Inuit (an lieved it would be its death knell. Lead- “Indian” under the British North America ership struggled to stay aligned with Act of 1867, but not under the Indian Act), shifting views among members, many or, if the state denied her indigeneity alto- of whom engaged in large direct-action gether, a “non-status Indian” or Métis. campaigns and street protests. If we sit- These historically produced categories uate Indigenous peoples in time, these carried material implications. The stakes shifting positions are unsurprising. But of what stood to be lost or gained varied government actors held an ahistorical by one’s historical experience. Accord- orientation that branded such differenc- ingly, many who sought to make their es as factionalism; they expected Indig- voices heard used these categories as their enous organizations to work in concert. basis for political organization. Three na- This was only sometimes possible. tionwide Indigenous organizations ex- For example, the nib was the first or- isted in the late 1970s: the National Indi- ganization to intervene. In 1978, it de- an Brotherhood (nib) represented status manded entrenchment of Aboriginal and

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 treaty rights and a seat at the negotiating members of Indigenous nations. Métis Jane Jenson, table. The federal government respond- and non-status people, on the other Francesca Polletta & ed with an invitation for all three nation- hand, started from a different place: one Paige Raibmon wide organizations to attend upcoming in which government was reluctant to ad- first ministers’ meetings as observers.90 mit they were Indigenous at all. For ex- To the extent that it conceded a mea- ample, where status Indians lived on re- sure of Indigenous participation in the serves–tiny, remote, and barren as these process, the federal government sought were–Métis communities resided on the a single solution for distinct Indigenous road allowances that the Crown set aside groups where none existed. for road construction.93 Whether they Each organization responded to oppor- conceived of themselves as members of tunities to engage with government in its sovereign nations–as many did–the ini- own way. The nib launched a campaign tial step for Métis and non-status peo- that put its nation-to-nation claim into ple was necessarily different than for sta- practice. In July 1979, it led several hun- tus Indians. They were a long way from dred delegates to London to petition the equality with status Indians, let alone Queen to block patriation. At its 1980 non-Indigenous Canadians. When op- general meeting, it adopted the “Decla- portunity arose to communicate with a ration of First Nations.” And in 1982, it Special Joint Committee of the House of re-formed into the “Assembly of First Commons and Senate, the non-status or- Nations.”91 ganizations, as well as several tribal-level, The nib allied with the Union of Brit- status-Indian organizations, participat- ish Columbia Indian Chiefs (ubcic), an ed; the nib and the ubcic boycotted. organization of nations with unceded, Indigenous organizations did not reach untreatied territories. The ubcic was a lasting consensus. Nor did their efforts adept at mobilizing direct action and at- to halt patriation in the British courts tracting media attention. They launched succeed. But their direct action and le- the “Constitution Express” train that gal efforts put serious pressure on federal gathered protesters as it traveled from and provincial governments.94 Forced to Vancouver to Ottawa. Like the nib, respond, the government turned to con- they developed tactics that enacted their stitutional entrenchment, an option that self-conception as nations. They strate- most Indigenous organizations opposed. gized a British court action and sent del- The alternative route to nation-to-na- egations and petitions to the United Na- tion status, the one favored by most In- tions in New York, the International digenous organizations–halting patri- Court of Justice in the Hague, the Fourth ation altogether–would have derailed Russell Tribunal on the Rights of Indians Trudeau’s ambitions. In turning their of the Americas in Rotterdam, and the struggle to intersect with Trudeau’s, In- World Council of Indigenous Peoples in digenous peoples had done more than Canberra.92 cross paths; they created a roadblock. Colonialism rendered it less straight- Faced with this roadblock, the gov- forward for non-status peoples to de- ernment took up the position of the mi- mand and exercise nation-to-nation sta- nority of organizations that support- tus. Recognition as a “status Indian” ed entrenchment. Other federal parties was a form of discrimination, but nev- got behind it, too. The progressive fed- ertheless it was a position from which eral party, the New Democratic Party “Indians” might argue for their due as (ndp), analogized across women, ethnic

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 The Difficulties minorities, and Indigenous peoples and representatives, the prime minister, and of Combating assumed that entrenchment would serve the provincial first ministers for this pur- Inequality in Time them all, even though each group was dis- pose. These conferences–four of which advantaged in historically distinct ways. were eventually held in 1982, 1984, 1985, The federal “equality as sameness” pro- and 1987–failed to significantly specify posal that sought social justice for ev- s.35’s scope. eryone through a single policy–rights Horizons of equality–and possibility. The guaranteed under the Constitution–re- late 1970s through the final constitution- lied upon a synchronic snapshot of inal conference in 1987 was a historical mo- equality. But inequality existed in time; ment when distinct nation-building proj- a diachronic perspective was necessary ects intersected. A problem of scale char- to make headway. Because groups were acterized the meeting of Indigenous and unequal for different historical reasons, government actors at this crossroads. For they required different future solutions. Trudeau, pressured by successful Indige- ndp mp Ian Waddell and the Aborigi- nous lobbying and media tactics to some- nal rights lawyer Jack Woodward helped how accommodate Indigenous leaders, draft the clause that became s.35.95 In- s.35 became a necessary part of a larger digenous leaders and activists did not. whole: the effort to patriate the Consti- The ndp expended its political capital tution and pass the Charter of Rights and for an Aboriginal rights clause that ulti- Freedoms. In so doing, he sought to con- mately satisfied almost none of the Indig- cede to Indigenous peoples the minimum enous stakeholders; the Métis Associa- necessary to allow his own agenda to pro- tion of Alberta was s.35’s sole Indigenous ceed. For Trudeau, the major goal–patri- supporter in the end. When the Constitu- ation–was achieved in 1982; the confer- tion Act passed, the nib declared a day of ences were a formality. mourning. The ubcic branded Indige- For Indigenous peoples, the inverse nous participation in patriation celebra- was true. The battle over patriation was tions a “treasonous act against the Indian no end in itself. It was an installment in nations and their citizens.”96 a centuries-long sovereignty struggle. Deeply contested, the victory of en- For them, there was real work to do at trenchment was also inherently incom- these mandated conferences, the work plete. S.35 created a new legal catego- of reconciling a multiplicity of Indige- ry called “Aboriginal and treaty rights.” nous constitutional and legal orders with It did not, however, specify their nature that of the Canadian state. These confer- or scope. This vagueness was intention- ences were the moment when the poten- al. Greater specificity would have forced tial promise of s.35–unsatisfying on its to the fore the divergent worldviews, as- own–might be realized. sumptions, and interests of the federal Nowhere were the unequal tempo- government, provinces, and Indigenous ral horizons and different historical tra- peoples that s.35 papered over. Great- jectories more apparent than during er specificity would likely have scuttled these conferences. Participants’ vastly the clause entirely. The chosen wording different orientations toward the sub- shielded existing rights from erosion un- stance and stakes of the agenda doomed til agreement on the nature of “Aborigi- the meetings to failure. After passing the nal and treaty rights” could be reached. Constitution Act, the federal government Section 37 of the Act mandated a se- had little political incentive to elaborate ries of conferences between Indigenous the definition of “Aboriginal and treaty

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 rights” in the thorough, transformative authentic cultures. It defines the Indige- Jane Jenson, fashion that Indigenous leaders want- nous differences that matter as belonging Francesca Polletta & ed. The conferences became an elabo- inexorably to the past. In so doing, it de- Paige Raibmon rate show in which the federal govern- historicizes Indigenous people and peo- ment’s minimal tolerance for the exercise ples by fetishizing their history, effective- of Indigenous constitutional order–self- ly placing them out of time. determination in the language of the The s.35 jurisprudence since Van der Peet day–was on display. It was easy for each has produced increasingly racially based, side to view the other’s position as unrea- culturalist definitions of Indigenousness sonable, ill-mannered, and overreaching as a bundle of traits that inhere within the because each side saw something differ- individual. The Supreme Court of Canada ent when it looked back over its shoul- rejects the assertions of living Indigenous der, and each had its gaze fixed on a fun- people that their difference inheres in- damentally different endpoint. stead in the exercise of collective political Consequences. After the failure of the rights. This approach is discriminatory in constitutional conferences, Indigenous multiple ways and scholars have critiqued peoples looked to a different, more ad- it heavily.100 From the vantage point of versarial policy-making body to define today, the results of s.35 jurisprudence ap- s.35: the judicial system. In this setting, pear to have been foretold in 1981 by Chief as in 1982, it is still not Indigenous peo- George Manuel, former president of the ple, but mostly non-Indigenous actors– ubcic and the nib, who wrote: “When notably, Supreme Court of Canada judges the Government talks about Aboriginal –who define the scope of Aboriginal Rights it means no more than our cultur- and treaty rights. The results so far have al rights to perform Indian dances and been disturbingly restrictive and ahistor- songs, and to make bannock.”101 ical. The Supreme Court’s 1996 Van der As long-time Indigenous rights activist Peet decision introduced a test to identi- Mildred Poplar put it, s.35 set diverse In- fy s.35 rights.97 The test requires demon- digenous peoples along a path not of their strated continuity with precontact prac- own making: “In some ways, s.35 has di- tices that are “integral to a distinctive verted our people, and the new leader- culture.” Consistent with other rights- ship instead of fighting for our rights, is based jurisprudence, Van der Peet defines negotiating to help Canada and the prov- Aboriginal rights in piecemeal fashion inces define them.”102 This work of defi- through protection of specific practic- nition has incorporated diverse Indige- es conducted by individuals.98 It does not nous peoples into settler institutions that recognize these individuals as members set the terms to which Indigenous people of sovereign collectives. Moreover, to must adhere if they are to be legible to the meet the test, the claimed rights must be state. S.35’s affirmation of Aboriginal and found in the past. This follows an “orig- treaty rights set in motion several coun- inalist” approach that is common in the terintuitive maneuvers that have defined United States but infrequent in Canada group rights in an individualizing man- where “living-tree” interpretations dom- ner; dehistoricized Indigenous peoples inate constitutional law except in the area by relegating them to the past; and less- of Aboriginal rights.99 Van der Peet’s prec- ened rather than increased Indigenous edent-setting “frozen rights” or “per- access to freedoms enjoyed by Canadi- mafrost” approach relies upon outdat- an citizens at large. As Poplar urged peo- ed, ahistorical stereotypes of primitive, ple to remember in 2003, “We were never

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 The Difficulties fighting for s.35, we were fighting to pre- that history mattered: not as a set of facts of Combating serve our Nation-to-Nation relationship, about the past, but as contested, or con- Inequality 106 in Time for recognition as Sovereign Nations, testable, stories or schemas. These un- and to re-build and Decolonize Our Peo- derstandings of the past shaped actors’ ple.”103 But the story is not over yet. S.35 views of the viability, necessity, and de- lies within the Constitution like an “en- sirability of present-day actions and fu- crypted code” for realizing decoloniza- ture outcomes. One such set of under- tion, thus far “the road not taken.”104 standings identified the sources of the inequality somewhere in the past, and a Taken together, the reform efforts we second placed the reform in a future-ori- describe differ in many ways, yet never- ented trajectory of efforts to remedy in- theless share some instructive features. equality. Together, they shaped and limit- Each effort initially seemed to avoid the ed the practical possibilities that accom- sameness/difference dilemma. And each panied the reform. ultimately fell prey to it. Our analysis In each of the cases, activists and some- shows that this outcome was not a fore- times policy-makers recognized that gone conclusion. It derived from histori- the unequal status of the disadvantaged cally contingent processes, from the ways group or groups had been socially pro- in which political actors understood in- duced over a long historical duration. equality in time–in relation to past, pres- Minority health advocates in the Unit- ent, and future. ed States firmly believed that differenc- At a minimum, history mattered here es in group responses to treatment were in the familiar sense of chronology or more likely to lie in history than in biol- timing. In the case of biomedical reform ogy: that is, in long-term experiences of in the United States, the field of genom- discrimination, poverty, and associat- ics emerged as new federal standards ed stresses. Problems like these required encouraged researchers to take up the reform outside the field of medical re- question of race. The field of genomics, search and were unlikely to draw phar- in turn, powerfully shaped the way re- maceutical companies as partners. That searchers used and understood racial cat- such an agenda was overshadowed in egories. In the case of gender policies in some respects by a focus on the putative- the eu, the sidelining of ambitions for ly biological causes of health disparities “social Europe” and the rise of neoliber- was not activists’ or policy-makers’ inal commitments made policy-makers less tent. In Europe, the pursuit of a “differ- likely to adopt solutions that they casti- ence” agenda by feminists in the 1980s gated as social engineering. In the case and 1990s included significant efforts of constitutional reform in Canada, the to stretch the temporal horizon of poli- federal government’s rights-based liber- cy analysis and policy-making. They ar- alism generated political conditions that gued that longstanding social relations of failed to take Indigenous peoples specif- gender not only placed women in social ically into account, and that nevertheless and political positions unequal to men as provided them the opportunity to enter they sought employment and political of- the national stage. In each case, the his- fice, but that these ongoing and histori- torical timing of the reform partly ac- cally rooted structures of inequality had counted for its effects.105 to be changed by interventions that ad- We have focused, however, on a more dressed power relations in a wide variety substantive, less well-recognized way of realms before women could achieve

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 full equality. This history required what individualized medicine made it difficult Jane Jenson, they called an equal opportunities policy for anyone to challenge the use of biolog- Francesca Polletta & treatment rather than simple protection ically reductionist and essentialist expla- Paige Raibmon against workplace and other discrimi- nations for health inequalities. In the eu, nations. Indigenous activists in Canada feminists called for systemic change in likewise referenced centuries-long in- deeply rooted and socially produced his- equality-producing processes. In their torical patterns. Antidiscrimination mea- case, colonialism had undermined their sures were insufficient; creating equali- distinct status as self-governing nations. ty required interventions in private life. They sought “equality”–though they did This stretch of public action was resist- not use that term–through a major re- ed both by institutions under the influ- allocation of authority that would entail ence of neoliberalism, with a short time recognition of plural sovereignties with- horizon about the source of inequalities, in the Canadian state. and by activists who rejected binary dif- These deeply historicized arguments ference in gender and sexual identity and for recognizing difference would have norms. This new political coalition side- changed the circumstances of the advan- lined the more ambitious reform agenda. taged groups and disadvantaged groups The policy world preferred short tempo- alike. In all three cases, the “haves” would ral horizons and “rights fixes” matched have been required to give something well with fluid, cultural conceptions of up in order to advance equality for the identity. Indigenous activists in Cana- “have-nots.” These historicized perspec- da, for their part, staked claims to dy- tives understood resources such as time namic, collective forms of political pow- and land to be finite, rather than ever- er and membership by invoking treaties, expanding. Asserting the group’s differ- covenants, and proclamations from pre- ence was one way to draw attention to the vious centuries. This activist pressure re- deeper roots of the problem at hand and sulted–albeit unsatisfactorily and some- highlight the need for more thorough- what inadvertently–in constitutionally going reforms. In this sense, demands for protected “Aboriginal rights.” Yet when recognition and redistribution were fun- it fell to the Supreme Court of Canada to damentally connected: to recognize the define these rights, it did so in essential- group’s difference was to recognize the ist ways that fixed those rights in a pri- historical processes that produced and mordial past, severely limiting their ma- sustained that difference. terial bearing on present and future con- Yet in each case, assertions of histori- figurations of Canadian jurisdiction and cally produced difference either evolved sovereignty. into or were sidelined by essentialist Interestingly, of the cases at hand, In- claims. In the United States, the new digenous peoples alone staked a claim for federal standards were appropriated permanent recognition of difference. In by medical researchers and pharma- the other two cases, actors placed a time ceutical companies in the drive to iden- limit on the need to recognize difference. tify and treat racial and ethnic diseas- In the United States, differential treat- es. The fact that all actors–reformers as ment of racialized groups was meant to much as pharmaceutical executives–em- be a stepping stone to a future in which braced an account in which the identifi- everyone enjoyed the benefits of individ- cation of group-based genetic differenc- ualized medicine. In Europe, the goal was es was a stopgap measure on the way to to achieve the same equality for women

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 The Difficulties and men, by means of an equal-opportu- failure to confront the historical assump- of Combating nities strategy of different treatment. tions embedded in these distinct stories. Inequality in Time In every instance, policies and/or prac- Our cases also suggest the utility of re- tices were eventually based on dehistori- framing the so-called sameness/differ- cized–prejudicial, partial, or otherwise ence dilemma. The challenge is not so imperfect–understandings of the source much to decide between an emphasis on of inequality. Each policy “victory” failed sameness or difference. Rather, the chal- in the end to account for the processu- lenge is to gain recognition–in policy as al nature of the originating and ongoing well as public discourse–for historical- causes of inequality.107 Each was dual- ly produced differences, without allow- ly myopic: in how it looked back and in ing recognition to remake those differ- how it projected forward. This was de- ences into a biological or otherwise time- spite many activists understanding the less essence. deep historical roots of the problem and Finally, our cases demonstrate the risks offering concrete policy solutions that of basing long-term, often costly policy could have been enacted. decisions on dehistoricized explanations What are the implications of our cases for inequality. Such explanations gain for efforts to reduce inequalities by way traction for many reasons, and often ap- of government action? Our cases call for pear to point toward expedient or useful greater scrutiny of the stories circulat- policy solutions. But as these cases show, ing among reformers that link present in- apparent victories can fall short in star- equalities to their past causes and future tlingly disappointing ways. If inequality remedies. Such stories or schemas shape is recognized as a process–or better, as the reform effort’s trajectory and likeli- multiple processes–then efforts to rem- hood of success, yet they are rarely laid edy it must attend to the deeply rooted, out in full. This may be, in part, because ongoing character of those processes. to do so would reveal that the process- Policy must combine temporal horizons: es targeting some groups for remedy and combatting discrimination in the here excluding others are political rather than and now while taking account of the con- natural or consensual. Or it may reveal tinuing effects of earlier exclusionary his- that members of the reform coalition in tories. Short-term policy time lines may fact work from quite different stories and be politically inevitable, but it does not histories about the place of their efforts follow that the policy, in its conception, in a longer trajectory. Or it may simply must be tethered to short-term horizons. be that the stories mesh with widespread, We insist instead that policy can accom- seemingly commonsensical ideas about modate deeply historicized understand- the inevitability of progress. Whatever ings of difference; indeed, that it must the explanation, our cases show that dis- do so if it is to advance equality fully, over advantaged groups lost the most from the the long term.

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 author biographies Jane Jenson, Francesca jane jenson is Professor Emerita of Political Science at the Université de Montréal. She Polletta & is the author of Defining and Measuring Social Cohesion (2010) and Who Cares? Women’s Work, Paige Raibmon Child Care and Welfare State Redesign (with Mariette Sineau, 2001) and editor of Reassem- bling Motherhood: Procreation and Care in a Globalized World (with Yasmine Ergas and Sonya Michel, 2017). francesca polletta is Professor of Sociology at the University of California, Irvine. She is the author of It Was like a Fever: Storytelling in Protest and Politics (2006) and Freedom Is an Endless Meeting: Democracy in American Social Movements (2002) and editor of Passion- ate Politics: Emotions and Social Movements (with Jeff Goodwin and James M. Jasper, 2001). paige raibmon is Professor of History at the University of British Columbia. She is the author of As I Remember It: Teachings (ʔəms taʔaw) from the Life of a Sliammon Elder (with El- sie Paul, Davis McKenzie, and Harmony Johnson, 2019), Written as I Remember It: Teachings (ʔəms taʔaw) from the Life of a Sliammon Elder (with Elsie Paul and Harmony Johnson, 2014), and Authentic Indians: Episodes of Encounter from the Late-Nineteenth-Century Northwest Coast (2005).

endnotes 1 For classic formulations, see Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, N.Y.: Cornell University Press, 1991); and Joan W. Scott, “Decon- structing Equality-Versus-Difference: Or, the Uses of Post-Structuralist Theory for Femi- nism,” Feminist Studies 14 (1) (1988): 33–50. 2 Michèle Lamont, “Toward a Comparative Sociology of Valuation and Evaluation,” Annual Review of Sociology 38 (2012): 201–221. 3 Nick Haslam, Louis Rothschild, and Donald Ernst, “Essentialist Beliefs about Social Catego- ries,” British Journal of Social Psychology 39 (1) (2000): 113–127. 4 Fernand Braudel, “History and the Social Sciences: The Longue Durée,” trans. Immanuel Wallerstein, Review (Fernand Braudel Center) 32 (2) (2009): 171–203. 5 Steven Epstein, Inclusion: The Politics of Difference in Medical Research (Chicago: University of Chicago Press, 2007). 6 Janet K. Shim, Katherine Weatherford Darling, Sara L. Ackerman, et al., “Reimagining Race and Ancestry: Biomedicalizing Difference in Post-Genomic Subjects,” in Reimagining (Bio) Medicalization, Pharmaceuticals and Genetics: Old Critiques and New Engagements, ed. Susan E. Bell and Ann E. Figert (New York: Routledge, 2015), 68–90. 7 Catherine Bliss, Race Decoded: The Genomic Fight for Social Justice (Stanford, Calif.: Stanford University Press, 2012). 8 Epstein, Inclusion; Catherine Lee and John D. Skrentny, “Race Categorization and the Regu- lation of Business and Science,” Law and Society Review 44 (3–4) (2010): 617–650; and Jon- athan Kahn, Race in a Bottle: The Story of BiDil and Racialized Medicine in a Post-Genomic Age (New York: Columbia University Press, 2013). 9 Troy Duster, “Medicalisation of Race,” The Lancet 369 (9562) (2007): 702–704; and Kahn, Race in a Bottle. 10 Bliss, Race Decoded; Shim et al., “Reimaging Race and Ancestry”; and Sara Shostak and Mar- got Moinester, “Beyond Geneticization,” in Reimagining (Bio)Medicalization, Pharmaceuti- cals and Genetics, ed. Bell and Figert, 216–238. 11 Barbara A. Koenig, Sandra Soo-Jin Lee, and Sarah S. Richardson, “Introduction: Race and Genetics in a Genomic Age,” in Revisiting Race in a Genomic Age, ed. Barbara A. Koenig, San- dra Soo-Jin Lee, and Sarah S. Richardson (New Brunswick, N.J.: Rutgers University Press, 2008).

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 The Difficulties 12 Sheryl Burt Ruzek and Julie Becker, “The Women’s Health Movement in the United States: of Combating From Grass-Roots Activism to Professional Agendas,” in Women and Health: Power, Technol- Inequality ogy, Inequality and Conflict in a Gendered World, ed. Kathryn Strother Ratcliff (Boston: Allyn in Time and Bacon, 1999), 293–302; and Carol S. Weisman, Women’s Health Care: Activist Traditions and Institutional Change (New York: Taylor & Francis, 1998). 13 Judith D. Auerbach and Anne E. Figert, “Women’s Health Research: Public Policy and Sociol- ogy,” Journal of Health and Social Behavior (1995): 115–131. 14 Ibid.; and Karen L. Baird, “The New nih and fda Medical Research Policies: Targeting Gen- der, Promoting Justice,” Journal of Health Politics, Policy and Law 24 (3) (1999): 531–565. 15 Drew Halfmann, Jesse Rude, and Kim Ebert, “The Biomedical Legacy in Minority Health Pol- icy-Making, 1975–2002,” in Health Care Services, Racial and Ethnic Minorities and Underserved Populations: Patient and Provider Perspectives, ed. J. Jacobs Kronenfeld (Bingley, United King- dom: Emerald Group Publishing, 2005), 245–275. 16 Epstein, Inclusion, 79. 17 Lee and Skrentny, “Race Categorization and the Regulation of Business and Science.” 18 Epstein, Inclusion. 19 Kahn, Race in a Bottle. 20 Epstein, Inclusion, 220. 21 Epstein, Inclusion. 22 Ellen Annandale and Anne Hammarström, “A New Biopolitics of Gender and Health? ‘Gen- der-Specific Medicine’ and Pharmaceuticalization in the Twenty-First Century,” in Reimag- ining (Bio)Medicalization, Pharmaceuticals and Genetics, ed. Figert and Bell, 53–67. 23 Halfmann et al., “The Biomedical Legacy in Minority Health Policy-Making.” 24 Rogers Brubaker, Grounds for Difference (Cambridge, Mass.: Harvard University Press, 2015). 25 Quoted in Epstein, Inclusion, 96. 26 Epstein, Inclusion; and Kahn, Race in a Bottle. 27 Bliss, Race Decoded; and Catherine Bliss, “Biomedicalization and the New Science of Race,” in Reimagining (Bio)Medicalization, Pharmaceuticals and Genetics, ed. Figert and Bell, 175–196. 28 Bliss, “Biomedicalization and the New Science of Race,” 179. 29 Quoted in Kahn, Race in a Bottle, 163. 30 Ibid., 165. 31 Ibid., 110. 32 D. Devine, “naacp Goes to the Grassroots for BiDil,” Bay State Banner, October 5, 2006, http://www.baystate-banner.com/archives/stories/2006/10/10. 33 Dorothy E. Roberts, “What’s Wrong with Race-Based Medicine: Genes, Drugs, and Health Disparities,” Minnesota Journal of Science & Technology 12 (1) (2011): 1–21. 34 Kahn, Race in a Bottle. 35 Sheldon Krimsky, “The Art of Medicine: The Short Life of a Race Drug,” The Lancet 379 (9811) (2012): 115. 36 Duster, “Medicalisation of Race”; Epstein, Inclusion; and Kahn, Race in a Bottle. 37 Kahn, Race in a Bottle. 38 Linda M. Hunt and Meta J. Kreiner, “Pharmacogenetics in Primary Care: The Promise of Per- sonalized Medicine and the Reality of Racial Profiling,” Culture, Medicine, and Psychiatry 37 (1) (2013): 226–235, 230.

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Downloaded from http://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_01753 by guest on 01 October 2021 39 Ibid., 232. Jane Jenson, 40 Francesca Ibid. Polletta & 41 Claude Lévi-Strauss, “The Structural Analysis of Myth,” in Structural Anthropology, trans. Paige Raibmon C. Jacobson and B. G. Schoepf (New York: Basic Books, 1963). 42 Bliss, Race Decoded; and Pamela Sankar, “Moving Beyond the Two-Race Mantra,” in Revisit- ing Race in a Genomic Age, ed. Koening, Soo-Jin Lee, and Richardson, 271–284. 43 Bliss, Race Decoded; and Shostak and Moinester, “Beyond Geneticization.” 44 Shim et al., “Reimagining Race and Ancestry.” 45 Lundy Braun, Anne Fausto-Sterling, Duana Fullwiley, et al., “Racial Categories in Medical Practice: How Useful Are They?” PLOS Medicine 4 (9) (2007): 271. 46 Myra Marx Ferree, “Framing Equality: The Politics of Race, Class, and Gender in the U.S., Germany, and the Expanding European Union,” in Gender Politics in the Expanding European Union: Mobilization, Inclusion, Exclusion, ed. Silke Roth (New York: Berghahn, 2008), 339. 47 Positive action is European terminology for what in North America is labeled affirmative action. 48 Sophie Jacquot, Transformations in EU Gender Equality: From Emergence to Dismantling (Hound- mills, United Kingdom: Palgrave Macmillan, 2015), 7. 49 Petra Ahrens, Actors, Institutions and the Making of EU Gender Equality Programs (London: Pal- grave Macmillan, 2018), 29–36. 50 George Ross, “The eu: An Actor without a Role,” in Who Cares? Women’s Work, Childcare and Welfare State Redesign, ed. Jane Jenson and Mariette Sineau (Toronto: University of Toronto Press, 2001), 192–193. 51 Catherine Hoskyns, Integrating Gender: Women, Law and Politics in the European Union (Lon- don: Verso, 1996). 52 Jacquot, Transformations in EU Gender Equality, chap. 2. 53 Ibid., 29; and Ross, “The eu,” 182. 54 Quoted in Ross, “The eu,” 183. 55 Jacquot, Transformations in EU Gender Equality, 36. 56 Petra Ahrens, “The Committee on Women’s Rights and Gender Equality in the European Parliament: Taking Advantage of Institutional Power Play,” Parliamentary Affairs 69 (4) (2016): 778–793. 57 Ahrens, Actors, Institutions and the Making of EU Gender Equality Programs, chap. 1. 58 Ibid., 31, 35. 59 Hoskyns, Integrating Gender, 143; Agnès Hubert, “Du sommet d’Athènes à la révision de la Constitution: Les dogmes de la République à l’épreuve de la démocratie paritaire en Eu- rope,” in Les défis de la République: Genre, territoires, citoyenneté, ed. Bruno Perreau and Joan Scott (Paris: Presses de Sciences Po, 2017), 111–134. 60 Ross, “The eu.” 61 Hubert, “Du sommet d’Athènes à la révision de la Constitution,” 129–130. 62 Maria Stratigaki, “The Cooptation of Gender Concepts in eu Policies: The Case of ‘Reconcil- iation of Work and Family’,” Social Politics 11 (1) (2004): 31–32. 63 Hoskyns, Integrating Gender, 143. 64 Ahrens, Actors, Institutions and the Making of EU Gender Equality Programs, 33. 65 Quoted in Jacquot, Transformations in EU Gender Equality, 28.

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