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January 20, 2014

The Problem with Obamacare's 'Gender Neutrality'

Teresa.jpg

By John S. Rosenberg

Conservative critics have long argued two related points against liberals: 1) that modern liberalism has turned its back on what for generations, even centuries, was one of its foundational principles, that individuals should be treated by the state "without regard" to race, creed, or color, and 2) that its abandonment of that principle was so rushed and embarrassingly awkward that liberalism has stumbled into theoretical incoherence.

A bright, shining example of that incoherence is evident in Obamacare. In a powerful recent column the Wall Street Journal's James Taranto makes hash of the "gender neutrality" imposed on Obamacare's insurers. "One of the main selling points of Obamacare," he writes,

was that it was a feminist triumph. "Being a woman is no longer a pre-existing condition," read the lead sentence of a March 2010 news story in the New York Times, whose author, Denise Grady, then explained: "That's the new mantra, repeated triumphantly by House Speaker Nancy Pelosi, Senator Barbara A. Mikulski and other advocates for women's health. But what does it mean?"


What it means, in Grady's words, is that "the new health care law forbids sex discrimination in health insurance." Just as no one can be denied insurance or charged more because of a pre-existing condition, a woman and a man of the same age must be charged the same premium, and their policies must cover the same conditions--including maternity care for unmarried men (and women past childbearing age).

Obamacare's prohibition of "gender rating" derives from the traditional principle of equal treatment that in turn rests on the principle of neutrality. Insurers, in short, must treat men and women without regard to sex. Those neutral principles are indeed familiar--and survey data confirm that substantial majorities of Americans continue to affirm them-- but those principles are the very ones that modern liberalism has rejected root and branch when it comes to race, ethnicity, and even sex in other contexts such as hiring and promotion. 

Thus today's liberals maintain, with a straight face, that taking sex into account in setting insurance rates is discrimination, but taking race, ethnicity and sex into account in admissions, hiring, promotions, etc., is not. Indeed, they have even gone so far as to argue that state constitutional provisions requiring that people be treated by their government "without regard" to race, ethnicity, or sex violate the 14th Amendment!

There is a perfect example of how the debate over the demand for gender neutral insurance rates reveals the dramatic reversal and resulting philosophical incoherence of modern liberalism: the career of Teresa Sullivan, the recently fired, rehired, and now secure president of the University of Virginia.

Sullivan's impressive curriculum vitae is packed with high-level university positions in the University of Texas System and at the University of Michigan, Ann Arbor. However, a considerable proportion of both her administrative and scholarly career has been deeply involved with promoting affirmative action and then preserving as much of it as possible from political and legal efforts to eliminate or restrict it. Sullivan has been one of the nation's leading "diversity" engineers, driving the locomotive of race preferences through the large loopholes provided by the Supreme Court.

"It will thus no doubt come as a surprise to many people to learn," I noted in a long review of her emblematic career, "that some of the strongest and most cogent criticism of the principles underlying race preference policies can be found in Sullivan's own early academic writing," beginning with her forceful defense of the Supreme Court's decision in City of Los Angeles v. Manhart (1978) that invalidated a pension plan in which women were required to make larger contributions than men because, as a group, they live longer, rejecting the argument that the statistical association between sex and mortality justified the disparity.

In an influential 1980 law review article, Sullivan, then an assistant professor of sociology and faculty research associate in the Population Research Center at the University of Chicago, published a vigorous defense of Manhart's individual rights analysis with her husband, Douglas Laycock, then a law professor at Chicago, and two others. They argued with great force that the "most fundamental principle" of civil rights is that "no individual shall be considered simply as part of a racial, sexual, religious, or ethnic group, or treated differently because of his membership in such a group."

Her argument was firmly grounded in the "without regard" principle requiring neutral, equal treatment of individuals, regardless of any different characteristics of their race, sex, or ethnic groups.

Three years later, Sullivan, now associate professor of sociology and still research associate in the Population Research Center at the University of Chicago, with Laycock and one other co-author, published another influential University of Chicago law review article responding to a critic of her earlier defense of Manhart who argued that it is both efficient and legitimate to take group differences into account.

That mistaken view of fairness, she insisted, "fundamentally misconceives the basic principle of civil rights law" -- that it is "unfairness to individuals that lies at the core of civil rights policy." She fundamentally disagreed with those who "use race and sex as cheap proxies for traits with which they are correlated," because doing so was unfair to individuals. If individuals could be treated differently because of their race or sex, she wrote incredulously, "[c]ollege admissions officials could use ethnicity as a factor to predict the grade-point averages of applicants" and admit or reject them on the basis of race or ethnicity. "Whenever race or sex is used as a predictor," she concluded, "some individuals are disadvantaged because of a stereotype that is true of others, but not of themselves."

Sullivan's powerful individual rights argument in her early articles was that treating individuals on the basis of the characteristics of their racial, ethnic, or gender groups could never be justified because "[e]very individual has a right not to be treated as the average member of his sex or race." Sullivan, in short, sounded very much like an old-fashioned, not modern, liberal, stressing as she did that "[s]ex and race blindness have been the civil rights ideal." Using race or sex "to predict the future of individuals is fundamentally inconsistent with that ideal," she argued, "and if generally applied, would have consequences that most Americans would find abhorrent."  

Using race, ethnicity, and sex have, alas, been "generally applied," including most emphatically by Sullivan herself, and most Americans have indeed found their application abhorrent.

In 1980 Sullivan cited, with unqualified approval, Sen. Hubert Humphrey's insistence during the debate over the Civil Rights Act of 1964 that "the meaning of racial or religious discrimination is perfectly clear .... [I]t means a distinction in treatment given to different individuals because of their different race, religion, or national origin." By 2006, however, as provost at Michigan, in an affidavit challenging the Michigan Civil Rights Initiative, she professed confusion over the meaning of "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin." According to a brief filed in the case, Sullivan found that requirement "simply too puzzling to be implemented."

Liberals like Sullivan have abandoned the "civil rights ideal" of race and sex blindness -- except on occasions, such as Obamacare's requirement of gender neutral insurance rates, when it favors one of their favored groups.

How, I wonder, would an Obamacare supporter elucidate the principle prohibiting gender discrimination in insurance rates in a manner that would not condemn the race and ethnic preferences liberals so strenuously pursue everywhere else, including in Obamacare itself. As Hans Bader of the Competitive Enterprise Institute has pointed out, quoting findings of the U.S. Commission on Civil Rights, "Obamacare contains many racial preferences," including "sections that factor in race when awarding billions in contracts, scholarships and grants" and "preferential treatment to minority students for scholarships."

As the trajectory of Teresa Sullivan's academic career makes clear, in abandoning, where it suits them, the "civil rights ideal" of "without regard" equality, American liberals have progressed (they are now "progressives," after all) from inconsistency to incoherence. Perhaps if we had a mainstream press corps that asked probing questions of the administration, some enterprising reporter would ask someone, anyone, in the administration to explain why neutral "without regard" equality applies only to women's insurance rates. 

_______________________

John S. Rosenberg blogs at Discriminations.

(Photo: Teresa Sullivan. Credit: Slate.)



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