When I was in graduate school, I remember hearing a story from one of my professors who taught a class on intellectual property law about how he had worked for an engineering firm for several years and had pretended to be a native American so that the firm was able to get contracts because it was so rare to have a native American on staff for a contracting firm. As our class was somewhat cynical, our thoughts were more that racial preferences were a bad idea and that it was somewhat funny that the professor had been able to outsmart the law. Yet it is not necessarily always so funny. Those who have read this blog are aware about the ongoing identity issues of a particular Senator who has long claimed Cherokee ancestry . While it is easy to laugh given that this particular person had a bad day when it was found that she likely had less than 1/10th of a percent of American Indian ancestry after a DNA test, it is better to examine why in the world someone would submit themselves to such ridicule in search of a somewhat more exotic ancestry.
The problem, of course, is that there is a social benefit, in certain circles at least, for claiming identity with some kind of subaltern group. As one might imagine, there is a widespread belief that being white or Asian (or Jewish, if that is counted as something other than white) as opposed to some other ethnic group, or male as opposed to female or some imaginary other gender, and so on, carries with it some sort of privilege. As a result, those who feel themselves to lack this sort of privilege seek to earn points among themselves based on how many ways that they lack privilege. In addition, there are often laws written and supported by these people and their political allies that have tried to redress the supposed privilege by making an explicit privilege in what is viewed as an unprivileged identity. If a group of people does not have enough lawyers or engineers among them, then enact rules that benefit those who redress that statistical imbalance. Of course, this deliberate favoritism in order to counteract a putative disadvantage carries with it several issues, namely the attraction of people to pretend a particular identity in order to gain the advantages of that identity.
This is a phenomenon that happens somewhat often, and on occasion there are spectacular examples of this practice. My law professor pretending to be American Indian is merely one example of this phenomenon. There was once a white woman who pretended to be a black woman and was even a leader in the NAACP. To be fair, white is a color too, but it is not the color that this organization seeks to advance. It should be noted, of course, that there are consequences for this, at least potentially. It is fraud to present oneself as an identity that one does not in fact possess in order to gain government benefits for it, and it is possible that those who have falsely claimed such a status can suffer civil and legal penalties as a result of having feigned an identity in order to gain personal advancement in a biased system, as much as we might lament the existence of such obvious and evil structural biases in our legal system, however well-intentioned.
What, then, are we to do? It seems ironic, if not outright hypocritical, for those who complain of bias in the way that societies work to create a bias in those systems as a way of counteracting it. If one suspects bias, the best results is to try to remove the bias and to restore fairness rather than to create an actual bias in the opposite direction that is actual and not merely putative. Yet it can be difficult to remove bias, especially if other factors play a role and make it hard to prove that the factor one is most concerned about is the source of the difference in results. Removing all of the other factors at play and isolating matters to just one factor is not easy. Nor is it easy to figure out ways to deal with injustice without becoming unjust ourselves. So long as there is an advantage to an identity, there will be incentive for people to pass as that identity for their own benefit. The existence of such attempts at passing, whether successful or not, demonstrate where the bias of a system lies. Women do not try to pass as men in order to play tennis or race in track and field events, but transgender women who are biologically male do so. And, as we have seen, it is not uncommon for people to feign black or American Indian ancestry in order to gain the advantages of that identity in competitive job markets. Blame it on intersectionality, and then try to remove the advantages that one gains from it to eliminate it as a source of systemic bias.
 See, for example: