The Unfulfilled Promise of the
Twenty-Sixth Amendment: In Search of a Standard of Review and a Pathway to
Reform
Yael Bromberg,
Georgetown University Law Center
The
Twenty-Sixth Amendment was designed to bring young people into the political
process by constitutionalizing their right to vote. However, the evidence of
the last forty years has shown that ratification has not been enough: the
Amendment has remained largely untouched since the 1970s even as voter
suppression increasingly threaten access to the franchise for students and
other young voters. This article argues that when interpreted in the larger
context of the Supreme Court’s equal protection jurisprudence, the Amendment
should serve as a meaningful source of a substantive right to vote.
The handful
of courts considering Twenty-Sixth Amendment claims in the modern era have
reasoned in dicta that they should be informed by a discriminatory
purpose standard, while acknowledging problems with this assumption. I suggest
that this approach is not wrong, but that it sets the floor to evaluating youth
voter claims, rather than the ceiling. Instead, I propose a balancing test
arising from the modern right to vote doctrine. There exists little scholarship
on this issue; this article thus offers a new way of thinking of the voting
rights of this often-forgotten group, and proposes a solution for examining
future claims on behalf of this class.
Bathroom as Bellwether:
Women’s Privacy, Dignity, and Civil Rights
Susan
Hazeldean, Brooklyn Law School
Across the
country, state lawmakers are considering bills that supposedly protect women’s
dignity and safety. But what measures like the Women and Children’s Privacy
Protection Act actually do is
forbid transgender women from using women’s restroom facilities. Proponents
claim that these bills are an emergency response to a danger created by laws
forbidding discrimination on the basis of gender identity or sexual
orientation: the threat that anti-discrimination protections will allow men to
enter women’s bathrooms, leading to grave privacy violations.
This asserted
need to safeguard women’s privacy has become a rallying cry for opponents to
anti-discrimination protections for LGBT people. But the claims made by
those who object to transgender women using women’s bathrooms simply do not
accord with the philosophical conceptions of privacy that justify legal privacy
protections. Instead, efforts to exclude transgender people from
facilities that match their gender identity are better understood as a struggle
to oppose LGBT rights and maintain traditional sex and gender roles rather than
a defense of privacy.
Far from
protecting women and girls, the privacy arguments being made to oppose LGBT
rights do the opposite. They reify negative stereotypes about women,
undermining sex equality and making female-identified people more vulnerable to
discrimination, mistreatment, and assault.