Transgender and Gender-Nonconforming Voting Rights after Bostock

UNIVERSITY OF PENNSYLVANIA

JOURNAL OF LAW AND SOCIAL CHANGE

Volume 24, Number 3 2021

323

TRANSGENDER AND GENDER-NONCONFORMING VOTING

RIGHTS AFTER BOSTOCK

BY MICHAEL MILOV-CORDOBA

& ALI STACK

Abstract. In Bostock v. Clayton County, the Supreme Court issued a landmark holding that allowed

workplace protections for the LGBTQ+ community, including transgender people, to be subsumed

into the Title VII provision prohibiting “sex” discrimination. Though Bostock was a Title VII case, the

textualist logic of the majority opinion has important constitutional implications.

In this article, we use Bostock as a point of departure to lay out two novel constitutional theories that

further the voting rights of transgender and gender-nonconforming voters. Under our first theory, we

argue that because Title VII and the Nineteenth Amendment have almost identical language, the

underlying logic of Bostock should govern modern interpretations of the Nineteenth Amendment,

meaning that the Amendment’s protections should extend to transgender and gender-nonconforming

voters. Because the Nineteenth Amendment should be treated as an analogue to the Fifteenth

Amendment, voting regulations that uniquely burden transgender and gender-nonconforming voters

should be regarded as per se unconstitutional under the Nineteenth Amendment. Under our second

theory, we argue that Bostock provides a stepping stone to elevate the standard of review for gender-

based as-applied challenges to voting regulations that implicate gender classifications under the

Fourteenth Amendment from Anderson-Burdick review to intermediate scrutiny.

This article proposes that both theories offer opportunities to better address the barriers posed by the

layering of voter ID laws on top of strict identity document requirements that transgender and gender

non-confirming voters face at the ballot box. To prove this, we conclude by assessing a hypothetical

Nineteenth and Fourteenth Amendment challenge to the joint operation of restrictive voter ID laws

and restrictive identification document requirements as applied to transgender and gender-

nonconforming voters and argue that such regulations should be struck down as violations of both the

Nineteenth Amendment and the Fourteenth Amendment.

* New York University School of Law, J.D., 2021

** UCLA School of Law, J.D. expected 2022. The authors would like to thank Joaquin Gonzalez for his guidance and support

in the initial stages of this project. Thank you also to Jennifer Chacon and Rick Pildes for thoughtful feedback, and to the

University of Pennsylvania Journal of Law and Social Change for careful editing. All errors are our own.

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INTRODUCTION .................................................................................................................................325

I. THE ROLE OF SEX: BOSTOCK’S IMPLICATIONS FOR THE NINETEENTH

AMENDMENT.........................................................................................................................327

A. On the Meaning of “Sex” ....................................................................................................327

B. Causal Relationship Requirements Under Title VII and the Nineteenth Amendment

..............................................................................................................................................329

II. THE NINETEENTH AMENDMENT’S PROTECTIONS...................................................331

A. The Nineteenth Amendment’s “Thick” Commitment to Equality .............................332

B. The Nineteenth Amendment’s Scrutiny Framework: Per Se Unconstitutionality.....335

C. Triggers for Nineteenth Amendment Protections ..........................................................337

III. BOSTOCK’S IMPLICATIONS ON THE FOURTEENTH AMENDMENT ...................339

IV. ASSESSING A POTENTIAL NINETEENTH AMENDMENT CHALLENGE:

VOTER ID .................................................................................................................................343

CONCLUSION .......................................................................................................................................349

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INTRODUCTION

Last June, the Supreme Court issued a landmark holding that allowed workplace protections

for the LGBTQ+ community, including transgender people, to be subsumed into Title VII’s provision

prohibiting “sex” discrimination. In his majority opinion, Justice Gorsuch held that sex, which the

Court defined as “the biological distinctions between male and female,”

plays a “necessary and

undisguisable role”

in an employment decision that turns on a person’s gay or transgender identity. In

so holding, the Bostock Court provided a textualist justification for a more expansive scope of workplace

protections afforded on the basis of sex.

Though Bostock was a Title VII case, the textualist logic of the majority opinion implicates

other civil rights and has important constitutional implications. For example, civil rights litigators are

seeking to leverage the underlying logic of Bostock to further the civil rights of incarcerated transgender

individuals,

and Fourteenth Amendment Equal Protection analysis is already shifting in line with the

Court’s post-Bostock understanding of sex and gender identity.

This article seeks to further the voting rights of transgender and gender-nonconforming

voters by assessing the implications of Bostock on Nineteenth Amendment and Fourteenth Amendment

voting rights jurisprudence. Regarding the former, the nearly identical language of the Nineteenth

Amendment to the Title VII sex discrimination provision suggests that a similar textual reading of the

Nineteenth Amendment can serve to protect the voting rights of transgender and gender-

nonconforming individuals. Regarding the latter, the Bostock Court’s recognition that discrimination on

the basis of sex necessarily contains discrimination on the basis of gender identity provides a foothold

to broaden Fourteenth Amendment voting rights jurisprudence. Specifically, this article proposes that

both theories offer opportunities to better address the barriers posed by the layering of voter ID laws

on top of the strict identity document requirements that transgender and gender-nonconforming voters

face at the ballot box.

In this article, we use Bostock as a point of departure to lay out two novel constitutional theories

that further the voting rights of transgender and gender-nonconforming voters. Under our first theory,

we argue that because Title VII and the Nineteenth Amendment have almost identical language, the

logic of Bostock should govern analyses of the Nineteenth Amendment. Under this reading, “[t]he right

of citizens of the United States to vote shall not be denied or abridged by the United States or by any

State on account of [gender identity],”

meaning that the Amendment’s protections should extend to

transgender and gender-nonconforming voters. Because the Nineteenth Amendment should be treated

as an analogue to the Fifteenth Amendment, voting regulations that uniquely burden transgender and

gender-nonconforming voters should be regarded as “per se unconstitutional.”

Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737, 1739 (2020).

Id. at 1737.

See infra Part III.

As laid out in Part III, Courts have already begun to operationalize the Bostock Court’s logic to afford transgender

individuals the gender protections inherent in the Equal Protection Clause. See infra note 106–07 and accompanying text.

See infra Part IV.

See infra Part II.

See Jones v. Governor of Fla., 975 F.3d 1016, 1043 (11th Cir. 2020) (“But the [Fifteenth] [A]mendment established a

powerful baseline: States must set voter qualifications without any regard to race. The Fifteenth Amendment does not subject

race-based voter qualifications to strict scrutiny—they are per se unconstitutional. . . . The Nineteenth Amendment forbids the

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One all too common example of such regulations, assessed in detail in Part IV, is the

enforcement of voter ID laws that require voters to show an identification card with a gender marker

in order to vote or cast a provisional ballot. Operating in tandem with laws that require voters to

undergo significant expenses to obtain an acceptable form of ID that matches their gender identity,

these strict voter ID regimes necessarily implicate a gender classification between cisgender voters and

transgender and gender-nonconforming voters, uniquely burdening the latter. Accordingly, such

schemes should be regarded as unconstitutional under the Nineteenth Amendment, at least as applied

to transgender and gender-nonconforming voters, and be struck down.

Under our second theory, we argue that Bostock has provided a stepping stone to elevate the

standard of review for gender-based, as-applied challenges to voter ID laws under the Fourteenth

Amendment. After the Bostock Court’s recognition that sex classifications operate not merely on a

male/female sex binary but across a diverse range of gender identities, classifications that sort and

burden voters on the basis of cisgender and transgender identity, as the combination of voter ID and

strict identity document laws do, are more appropriately reviewed under intermediate scrutiny rather

than under Anderson-Burdick review, which courts typically use to review generally applicable election

laws, including voter ID laws.

This article proceeds in four parts. The first section makes the case that the textualist logic of

Bostock should apply to the Nineteenth Amendment and, for that reason, the same group of individuals

protected under Title VII’s prohibition against discrimination on the basis of sex should be protected

under the Nineteenth Amendment—namely, that transgender and gender-nonconforming voters

should also be protected under the Nineteenth Amendment. With clarity about who is protected under

the Nineteenth Amendment, the second section examines what protections are afforded to voters

under the Nineteenth Amendment. Here we argue that for textual and jurisprudential reasons, gender

classifications in the voting context that disproportionately burden voters on one side of the

classification should be treated like comparable racial classifications in the voting context and be

regarded as per se unconstitutional. In the third section we argue that election laws that implicate gender

classifications challenged under the Fourteenth Amendment should at least receive intermediate

scrutiny, rather than Anderson-Burdick review. Finally, in the last section we assess a hypothetical

Nineteenth and Fourteenth Amendment challenge to the joint operation of restrictive voter ID laws

and restrictive identification document requirements as applied to transgender and gender-

nonconforming voters. We argue that such a scheme should be struck down under our framework.

use of sex as a voter qualification in the same way.”); infra Part II.

See, e.g., ALA. CODE § 22-9A-19 (2019) (requiring a court order certifying that a person’s sex has been changed via a

surgical procedure in order to issue an amended birth certificate). A petition for a name and gender marker change in Alabama

costs roughly $100, which does not include fees for new identity documents or the gender confirmation surgery required by the

state. Alabama, CAMPAIGN FOR S. EQUALITY: LEGAL RESOURCES (2021), https://southernequality.org/legal-

resources/alabama [https://perma.cc/7Q6D-R8K6] (last visited June 30, 2021).

See infra Part IV. Prior to Bostock, Richard Hasen and Leah Litman had mounted a powerful argument to interpret

Congress’ enforcement powers under the Nineteenth Amendment to include legislation that targets election policies that

disproportionately burden transgender and gender-nonconforming voters, such as voter ID laws. See Richard L. Hasen & Leah

M. Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress’s Power to Enforce It, 108 GEO. L.J. 27,

69–70 (2020). Our article builds upon their important work but focuses on potential constitutional challenges to such laws after

Bostock, rather than on Congress’ enforcement powers under the Nineteenth Amendment.

See infra Part III.

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I. THE ROLE OF SEX: BOSTOCK’S IMPLICATIONS FOR THE NINETEENTH

AMENDMENT

This section argues that the textualist logic of Bostock should apply to the Nineteenth

Amendment and, accordingly, that the same scope of individuals protected under Title VII should also

be protected under the Nineteenth Amendment in the voting context. Because the Bostock Court

clarified that transgender individuals are protected from discrimination in employment under Title VII,

the Nineteenth Amendment can and should be read to encompass the voting rights of transgender and

gender-nonconforming voters.

A. On the Meaning of “Sex”

In Bostock, the Supreme Court held that discrimination against transgender and gay individuals

fundamentally and inextricably turns on notions of “sex.” While sex was not the sole cause of

discrimination in any of the consolidated cases before the Court, the Court found that “it is impossible

to discriminate against a person for being . . . transgender without discriminating against that individual

based on sex.”

To argue for a transposition of this argument onto the Nineteenth Amendment, we

explore the Bostock Court’s treatment of the meaning of sex and the causal language in Title VII.

The Bostock Court’s textualist focus allows us to draw clear parallels between Title VII and the

Nineteenth Amendment. First, consider parallel language in the Title VII provision and the Nineteenth

Amendment. The Nineteenth Amendment states: “The right of citizens of the United States to vote

shall not be denied or abridged by the United States or by any State on account of sex.”

The language

used in the Title VII provision with respect to sex is nearly identical—discrimination in hiring, firing,

and employment opportunities “because of [an] individual’s . . . sex” is prohibited.

On a textualist

account, it is reasonable to infer from the nearly identical phrasing of these texts that those protected

under Title VII’s prohibition against sex discrimination would also receive the protections of the

Nineteenth Amendment.

Indeed, in his lengthy originalist dissent, Justice Alito confirms this theory. According to

Justice Alito, where the text of both a statutory and constitutional provision are substantively

indistinguishable, so too is the meaning of the text.

Applying this theory to Title VII, he specifically

notes that the language in the Nineteenth Amendment is “substantively indistinguishable” from that of

Title VII.

Justice Alito’s interpretive position is consistent with other Supreme Court precedent, where

the Court has found that unless evidence of contrary intent is present in the text of a statute or the

Constitution, it is appropriate to read the same meaning into substantively identical language.

All of

Bostock v. Clayton Cty., 140 S. Ct. 1731, 1741 (2020).

U.S. CONST. amend. XIX, § 1.

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1).

Bostock, 140 S. Ct. at 1768 (Alito, J., dissenting) (“Long before Title VII was adopted, many pioneering state and

federal laws [including the Nineteenth Amendment] had used language substantively indistinguishable from Title VII’s critical

phrase, ‘discrimination because of sex.’”).

Id.

See, e.g., General Elec. Co. v. Gilbert, 429 U.S. 125, 133 (1976) (regarding prior constitutional interpretations of the

Equal Protection Clause’s prohibition on sex discrimination as “a useful starting point” to interpret Title VII’s prohibition on

sex discrimination due to textual “similarities”); Patton v. United States, 281 U.S. 276, 301 (1930) (holding that where language

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this lends support to the argument that the Bostock Court’s holding clarifies the scope of voters

protected under the Nineteenth Amendment.

Second, consider the ways in which Bostock jettisoned the intent of the drafters from the

statute’s plain meaning. The Court does not entertain at length the scope of the term “sex” as it was

understood at the time of passage of the Civil Rights Act of 1964.

It adopts the narrowest

interpretation of the meaning of “sex” offered by the parties—”biological distinctions between male

and female”—and notes that its holding does not turn on what the drafters meant by the word, but

rather on the fact that discrimination on the basis of sexual orientation or gender identity necessarily

first requires sex-based discrimination.

Even assuming the premise that the drafters of the Civil Rights

Act did not intend to capture issues of gender identity or sexual orientation explicitly in the language

of the provision, the Court was, through its singular focus on the text, nonetheless able to reach the

conclusion that the provision protects transgender individuals.

The same logic should apply to the

Nineteenth Amendment.

An originalist position, such as that offered by Justice Alito in his dissent, may argue that

contrary intent can be inferred from the genesis of the Nineteenth Amendment as the direct result of

a women’s suffrage movement that sought the “equal treatment of men and women” and not of all

homosexual, transgender, or gender-nonconforming individuals. On this basis, an originalist may argue

that the framers of the Nineteenth Amendment could not have meant anything beyond sex as the

biological differences between male and female, and thus the Court’s reading of Title VII should not

be read into the Nineteenth Amendment. But this position returns to an immaterial debate about the

meaning of “sex” as a basis for this assertion.

Again, the Bostock Court did not dispute the meaning

of “sex” at the time of enactment of Title VII.

Courts should similarly not dispute its meaning in

1924.

But even if, in the case of a Nineteenth Amendment challenge, a court feels obliged to look

to the plain meaning of sex at the time of the Amendment’s enactment, this would in turn reveal an

even more robust definition of sex than the meaning of “sex” at the time of the passage of the Civil

Rights Act that makes a stronger case for inclusion of transgender and gender-nonconforming

individuals. Though there is little jurisprudential analysis of the word “sex” from the early twentieth

century when the Nineteenth Amendment was enacted, the colloquial and even scholarly meaning of

“sex” began to evolve around the turn of the century as scientists began to identify the biological bases

of sex characteristics.

Scientists and scholars began to recognize that biological sex distinctions were

separate from social constructions,

though sex continued to signify a bundle of “traits, attitudes, and

in a federal statute mirrored that of Article III of the Constitution, “it is fair to assume that the framers of the statute . . . intended

they have the same meaning . . . “); Baldwin v. Franks, 120 U.S. 678, 692 (1887) (holding that the meaning of the word “citizen”

was the same in a federal statute and in the Fourteenth Amendment of the Constitution, given that there was “nothing to indicate

that any[one] other than a citizen [as the meaning of the word in the Fourteenth Amendment] was meant . . .”).

Bostock, 140 S. Ct. at 1739.

Id. at 1739.

Id. at 1754.

Id. at 1772 (Alito, J., dissenting).

Id. at 1739.

Jillian Todd Weiss, Transgender Identity, Textualism, and the Supreme Court: What Is the “Plain Meaning” of “Sex” in Title VII

of the Civil Rights Act of 1964?, 18 TEMP. POL. & C.R. L. REV. 573, 599 (2009).

Id. at 602.

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behaviors” until the later twentieth century when sex was uncoupled from gender.

It would seem,

then, that even early twentieth century conceptions of sex necessarily involved gendered traits, attitudes,

and behaviors. Thus even if a court were to find that the drafters of the Nineteenth Amendment did

not intend its protections to specifically include transgender people,

this meaning of “sex” broadens

the possible scope of a first but-for cause of discriminatory treatment in voting that would form the

basis of a Nineteenth Amendment violation, following Bostock. Though few in 1920 might have

expected the specific result of expanding Nineteenth Amendment protections to transgender people,

it would be incorrect to deny that such a result follows from the text.

B. Causal Relationship Requirements Under Title VII and the Nineteenth Amendment

Title VII and the Nineteenth Amendment additionally share important causal language that is

central to the Bostock Court’s holding and thus central to our argument here. Title VII prohibits

discrimination “because of” sex,

and the Nineteenth Amendment prohibits the abridgment or denial

of the right to vote “on account of sex.”

The Court has held that the ordinary meaning of “because

of” is identical to the “on account of” phrasing used in the Nineteenth Amendment.

Moreover,

neither Title VII nor the Nineteenth Amendment include “solely” or “primarily because of” in their

phrasing. In the context of Title VII, the Bostock Court determined that such an omission evinces

Congress’s interest in preserving the possibility of more than one but-for cause of discrimination.

Similarly, the drafters of the Nineteenth Amendment did not syntactically prohibit a second but-for

cause of the denial or abridgement of the right to vote, over and above “sex.”

This observation is

integral to mirroring the Bostock Court’s interpretation of Title VII that we believe clarifies the broad

scope of protections under the Nineteenth Amendment.

The Bostock Court built on the above textual interpretations to hold that in the case of an

employer discriminating against a transgender employee, two causal factors are involved: first, the

person’s sex assigned at birth (thereby satisfying the Title VII requirement) and second, the sex with

which that individual identifies.

The Court further explained that when an employer fires a woman

assigned male at birth but retains a woman assigned female at birth, the employer discriminates against

the transgender woman for “traits or actions” that the employer tolerates from a cisgender woman.

Id. at 603.

It is possible, though, that a court would not reach this extratextual consideration of the historical meaning of “sex.”

The Bostock Court found the word to carry a plain meaning, and a court may find the same of the Nineteenth Amendment. See

Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1739 (2020).

See id.

Civil Rights Act of 1964, 42 U. S. C. § 2000e-2(a)(1).

U.S. CONST. amend. XIX, § 1.

See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U. S. 338, 350 (2013) (affirming precedent construing “because of”

the same way as “on account of”).

Bostock v. Clayton Cty., 140 S. Ct. 1731, 1739 (2020).

U.S. CONST. amend. XIX, § 1.

Bostock, 140 S. Ct. at 1742. We note here that while “identification” with a sex is the language the Court employs to

refer to a transgender or gender-nonconforming person’s gender, we recognize that phrases like “identifies with” are often used

to undermine and detract from a person’s true gender.

Id. at 1737.

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For the purposes of Title VII, then, an employer is in violation of the law as soon as sex is considered

at all, even if the discrimination does not stop at the employee’s sex or perceived sex. The Court

analogizes this situation to an employer who has a policy of firing any woman discovered to be a

Yankees fan—that firing is “because of sex” if the employer retains men who are Yankees fans.

each of these examples, sex-based rules result in discrimination.

An employer’s insistence on a different but-for cause of discrimination is immaterial. First,

the Court notes that it is not possible to understand transgender status without invoking the definition

of sex as presented above.

Necessarily, then, a decision to hire or fire a transgender individual is, in

part, because of that person’s sex.

The Court further discounts “conversational” answers to reasons

for firing as notable or controlling—though colloquially, an employer may say that a person was fired

for being transgender and not because of sex, the Court holds that the statute’s strict terms, as

interpreted to allow multiple but-for causes, reign.

Even Justice Alito conceded that, in 1964, Congress did not require plaintiffs to show that a

Title VII-protected category was the sole cause of the discrimination.

In light of this concession,

Justice Alito’s main position still holds true in light of the majority opinion: “[i]f ‘sex’ in Title VII means

biologically male or female, then discrimination because of sex means discrimination because the

person in question is biologically male or biologically female . . . .”

Indeed, the discrimination occurs

not solely “because that person is sexually attracted to members of the same sex or identifies as a

member of a particular gender,” as Justice Alito squarely rejects, but in addition to discrimination based

on a person’s perceived or actual sex assigned at birth. The application of the Bostock holding to the

Nineteenth Amendment mirrors this logic: an unconstitutional classification that burdens only

transgender and gender-nonconforming individuals—such as that presented in Part IV of this article—

is necessarily a sex-based classification under the Bostock Court’s clarification of the scope of sex-based

discrimination.

Fearing the slippery slope of the majority’s logic, Justice Alito raises a concern about the

Court’s distinction between those characteristics that are “inextricably” related to sex and those which

are only tangentially related to the concept of sex.

Specifically, Justice Alito asks whether

discrimination based on words modified by the adjective “sexual” would be violative of Title VII, and

he presents a hypothetical about an employer discriminating on the basis of a person’s history of sexual

harassment.

Such a question is an oversimplification of the Court’s position that certain categories—

Id. at 1742.

Previous Title VII jurisprudence supports this textualist read of the statutory language. In Oncale v. Sundowner Offshore

Servs., 523 U.S. 75, 80 (1998), the Court held that workplace sexual harassment, regardless of the sex of the harasser and the

person harassed, constitutes “discrimination. . . . because of. . . . sex,” as the relevant inquiry is whether members of one sex are

exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.

Bostock, 140 S. Ct. at 1742.

Id.

Id. at 1745.

Id. at 1757 (Alito, J., dissenting).

Id.

Id. at 1761 (Alito, J., dissenting).

Id.

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like motherhood, as was the case in Phillips v. Martin Marietta Corporation

—clearly depend on sex, while

others do not.

Justice Alito obtusely ignores the fact that “sex” here is a polyseme—that which

concerns sexual relations and activity is distinct, in the context of the Court’s opinion, from

characteristics that turn on biological sex. But more importantly, Justice Alito’s concern is simply

irrelevant in the voting context. No voting process or mechanism invokes anything tenuously sexual

beyond that which is inextricably linked to sex. A voter’s registration, identification requirements,

polling place, and voting history only bear on a small subset of protected characteristics, not a person’s

history of “sexual intercourse” or interest in “sexual content,” for example, as Justice Alito offers.

Put

simply, applied to the Nineteenth Amendment, Justice Alito’s concern about overprotection is

inapposite.

Accordingly, as a result of the textual parallels between Title VII and the Nineteenth

Amendment, it is possible to read these same conclusions into the voting context. An abridgement or

denial of the right to vote because of, but not limited to, sex would therefore be a constitutional

violation. Yet because it is not possible to deny or abridge the right to vote of a transgender person

because of their gender identity without invoking the “bundle of traits, attitudes, and behaviors”

attributed to sex, this abridgement or denial should receive constitutional protections under the

Nineteenth Amendment.

II. THE NINETEENTH AMENDMENT’S PROTECTIONS

In offering a textual justification for a capacious understanding of discrimination on the basis

of sex under Title VII, we believe Bostock necessarily clarified the scope of individuals protected by the

Nineteenth Amendment. If that is the case, then the precise content of the protections of the

Nineteenth Amendment have become more relevant. This section discerns those protections by

examining the history of Nineteenth Amendment challenges, as well as recent Nineteenth Amendment

scholarship.

We argue that the little Nineteenth Amendment case law that we have, the text and history of

the Amendment, and existing scholarship on the Amendment all point toward what some scholars have

termed a “thick” conception of the Nineteenth Amendment, understood as a binding commitment to

the ideals of political equality in voting and equal access to the political process regardless of one’s sex.

Although the depth of this commitment is yet to manifest in the Court’s underdeveloped Nineteenth

Amendment jurisprudence,

Fifteenth Amendment jurisprudence provides an analogous body of law

Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).

Though we highlight the Court’s position on motherhood here to distinguish between those characteristics that

necessarily depend on sex and those that do not, we acknowledge a diverse conception of parenthood that

includes transgender and gender-nonconforming parents.

Bostock, 140 S. Ct. at 1761 (Alito, J., dissenting).

See Hasen & Litman, supra note 7, at 33 (defending a thick conception of the Nineteenth Amendment and defining

it as “protect[ing] against the perpetuation of political-power disparities on the basis of gender” and “protect[ing] against the

subordination of women in U.S. politics”); see also Paula A. Monopoli, The Constitutional Development of the Nineteenth Amendment in

the Decade Following Ratification, 11 CONLAWNOW 61 (2019) (contrasting thick and thin conceptions of the Nineteenth

Amendment).

See Steve Kolbert, The Nineteenth Amendment Enforcement Power (but First, Which One Is the Nineteenth Amendment, Again?,

43 FLA. ST. U. L. REV. 507, 509–10 (2016) (“Despite the Nineteenth Amendment’s existence for nearly a century and the recent

popular and scholarly attention to voting rights, the Nineteenth Amendment has not received any serious treatment or

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on which to base renewed Nineteenth Amendment jurisprudence that aligns a court’s scrutiny of

regulations implicating gender classifications in voting with this “thick” conception of the Amendment.

As with voting regulations that set voter qualifications in any part on the basis of race, voting regulations

that do comparable things with respect to gender identity should automatically be treated as per se

unconstitutional, as they are under the Fifteenth Amendment. We believe our proposed framework is

consistent with the text, purpose, and demands of the Nineteenth Amendment, and, as we show in

Part IV, would offer voting rights litigators a new tool for challenging voter ID laws that

disproportionately burden trans and gender-nonconforming voters.

A. The Nineteenth Amendment’s “Thick” Commitment to Equality

Since its passage in 1920,

federal courts have had few occasions to specify the protections

afforded to voters by the Nineteenth Amendment. The Nineteenth Amendment’s Enforcement Clause,

for example, has never been interpreted by the Supreme Court.

Indeed, scholars have explicitly noted

the dearth of case law and scholarship on the Nineteenth Amendment.

To this day, the Supreme Court has heard only two Nineteenth Amendment challenges: Leser

v. Garnett in 1922 and Breedlove v. Shuttles in 1937. Both provide little insight into the Amendment’s

substantive content because the Court provides little analysis of the Amendment, and the cases precede

the Court’s adoption of its modern voting rights jurisprudence. In Leser v. Garnett, the Court’s first foray

into Nineteenth Amendment jurisprudence, the Court merely affirmed that the protections of the

Nineteenth Amendment applied automatically after its ratification.

Fifteen years later, in Breedlove v.

Suttles, the court upheld a Georgia regulation that exempted women who did not register to vote from

paying a poll tax against a Nineteenth Amendment challenge.

In doing so, the Court offered only a single paragraph of analysis on the Nineteenth

Amendment. In this paragraph, the Court held that the Nineteenth Amendment does not place

restrictions on a state’s ability to levy or collect taxes and concluded that “[i]t is fanciful to suggest that

the Georgia law is a mere disguise under which to deny or abridge the right of men to vote on account

consideration as a tool to protect voting rights.”).

For an analysis of the legislative history leading up to the passage of the Nineteenth Amendment, see Kolbert, supra

note 49, at 534–40.

See Eric S. Fish, Note, The Twenty-Sixth Amendment Enforcement Power, 121 YALE L.J. 1168, 1178–79 (2012).

See, e.g., Hasen & Litman, supra note 7, at 33 (“Given the paucity of judicial interpretations and scholarly writings on

the scope of the Nineteenth Amendment, even one hundred years after its ratification, we believe that its interpretation remains

up for grabs in important respects.”); Kolbert, supra note 45, at 508–09. (“Yet, no legislation and barely any litigation have arisen

as a result of the Nineteenth Amendment. One legal encyclopedia spends a mere sixty-nine words on the Nineteenth

Amendment. . . . The Nineteenth Amendment receives so little attention, scholars joke about it.”) (footnote omitted). That said,

the 100

anniversary of the Nineteenth Amendment has occasioned a recent resurgence of scholarship. For example, last winter

the Yale Law Journal hosted a symposium on the Nineteenth Amendment, featuring three articles. See Symposium, The Nineteenth

Amendment at 100, 129 YALE L.J. 450 (2020), https://www.yalelawjournal.org/collection/nineteenth-amendment-at-100

[https://perma.cc/WXR8-5LPJ] (last visited June 30, 2021).

See Leser v. Garnett, 258 U.S. 130 (1922) (striking down a provision of Maryland’s Constitution limiting the franchise

to men but providing minimal analysis of the substance of the Amendment itself).

See Breedlove v. Suttles, 302 U.S. 277 (1937).

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of their sex.”

By sanctioning a voting regulation containing an explicit gender-based classification, in

its only word on the substantive protections of the Nineteenth Amendment, the Court appeared to put

forward what some scholars have called a “thin” conception of the protections afforded by the

Nineteenth Amendment: because Breedlove “allowed for de jure gender discrimination in voting rules,”

Richard Hasen and Leah Litman argue in a recent article on the Nineteenth Amendment, “[t]he case

offers the thinnest possible version of the Nineteenth Amendment.”

Yet one can also read Breedlove’s understanding of the Nineteenth Amendment in a more

expansive light. Although the Court declined to strike down the gender classification, it also recognized

that the Nineteenth Amendment “applies to men and women alike.”

In this way, “the Nineteenth

Amendment [was] understood [by the Court] to extend beyond [its] paradigmatic protected classes,”

suggesting a more robust conception of the Nineteenth Amendment than Breedlove’s holding might

indicate.

Although Breedlove is the Supreme Court’s one and only real assessment of a Nineteenth

Amendment challenge, as other scholars have noted, one can glean the outline of a “thicker”

conception of the Nineteenth Amendment in Supreme Court dicta in voting rights and non-voting

rights cases. For some scholars, the seed of such a conception is found, ironically, in Adkins v. Children’s

Hospital.

In this case, the Court struck down a minimum wage law for women and children as a

violation of the Due Process Clause.

Yet in his majority opinion, Justice Sutherland briefly opined on

the significance of the Nineteenth Amendment, which had passed just a few years earlier:

But the ancient inequality of the sexes, otherwise than physical, as suggested in the

Muller case has continued “with diminishing intensity.” In view of the great—not to

say revolutionary—changes which have taken place since that utterance, in the

contractual, political, and civil status of women, culminating in the Nineteenth

Amendment, it is not unreasonable to say that these differences have now come

almost, if not quite, to the vanishing point.

While the holding—and much of the language—of Adkins itself remains a paternalistic relic

of another era, scholars have interpreted this passage as an affirmation by the Court that the ratification

of the Nineteenth Amendment committed the country to the ideal of robust political sex equality.

According to Reva Siegel, for example, by “discussing equality for women in the framework of the

suffrage debates[,] as emancipation from the traditions of reasoning about gender embodied in the

common law of marital status,” Adkins “approached the Nineteenth Amendment as embodying a sex

Id. at 284.

See Hasen & Litman, supra note 7, at 27, 32, 34.

Breedlove v. Suttles, 302 U.S. 277, 283 (1937).

See Fish, supra note 48, at 1175.

See Monopoli, supra note 43, at 66.

See Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 HARV. L. REV.

947, 1013–17 (2002).

See Adkins v. Children’s Hospital, 261 U.S. 525, 553 (1923) (striking down a D.C. minimum wage law as a violation

of the Due Process Clause).

See id. (quoting Muller v. Oregon, 208 U.S. 412 (1908)).

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equality norm that had implications for constitutional questions other than voting.”

In other words

the Amendment contains constitutional protections beyond the enfranchisement of women.

As other scholars have noted,

the Court has occasionally drawn upon this thicker,

emancipatory conception of the substantive protections of the Nineteenth Amendment. In Reynolds v.

Sims, where the Court first applied one-person, one-vote to strike down a malapportioned districting

plan, Justice Douglas characterized the Nineteenth Amendment, in passing, as part of a project of

“political equality”

—a far cry from Justice Brandeis’ implicit sanctioning of gender classifications in

the voting context in Breedlove.

Along similar lines, in a footnote to her Shelby County v. Holder dissent,

Justice Ginsburg offered an intratextual reading of the Nineteenth Amendment, as embodying, along

with the Fifteenth and Twenty-Sixth Amendments, a commitment “to mak[e] the right to vote equally

real for all U.S. citizens.”

Although state courts were the primary locus for Nineteenth Amendment litigation shortly

after the Amendment’s passage, the cases provide little insight as to how a modern court should apply

the Amendment, as most of these cases were decided in the early twentieth century and involved

challenges to facial bars to women’s right to vote. Yet even in these older cases, state appellate courts

drew upon this thicker conception of Nineteenth Amendment protections. For example, in Graves v.

Eubank, decided just two years prior to Adkins and one year after the Amendment’s ratification, the

Alabama Supreme Court held that Alabama’s poll tax requirement extended to women. But in addition

to offering this “thin” formal holding, the court went further, claiming that the Amendment

“automatically strikes from the state laws, organic and statutory, all discriminatory features authorizing

one sex to vote and excluding the other, or placing conditions or burdens upon one not placed upon the other as a

condition precedent to the right to vote. . . .”

Such language suggests something more robust than simple

formal equality and certainly something far more protective than the paternalistic notion of the

Nineteenth Amendment at work in Breedlove.

See Siegel, supra note 58, at 1013.

See Hasen & Litman, supra note 7, at 28–31.

See Reynolds v. Sims, 377 U.S. 533, 558 (1964) (“And, finally, we concluded [in Gray v. Sanders]: ‘The conception of

political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and

Nineteenth Amendments can mean only one thing—one person, one vote.’”) (quoting Gray v. Sanders, 372 U.S. 368, 381 (1963)).

On the sexism in Breedlove, see Hasen & Litman, supra note 7, at 38 (“Breedlove’s embrace of sexism, its reliance of

[sic] the repudiated Muller case, and its decision to ignore Adkins’ more progressive view of the Nineteenth Amendment, moved

the issue of women’s voting rights and the scope of the Amendment backwards.”).

See Shelby County v. Holder, 570 U.S. 529, 567 n.2 (2013) (J., Ginsburg, dissenting). See also Hasen & Litman, supra

note 7, at 31 (describing Justice Ginsburg’s dissent as embodying a thick conception of the Fifteenth Amendment, and thus, by

implication, of the Nineteenth Amendment).

See Graves v. Eubank, 205 Ala. 174, 175 (1921) (emphasis added).

Beyond the few cases that constitute our Nineteenth Amendment Supreme Court jurisprudence, the text and history

of the Amendment also point toward a thicker conception. See Hasen & Litman, supra note 7, at 38–56 (defending a thick

conception of the Nineteenth Amendment on the basis of the Amendment’s text and history, the broader constitutional history

of the expansion of voting rights, and the Court’s recognition of voting as a fundamental right); Siegel, supra note 58, at 952

(“This Article proposes a synthetic reading of the Fourteenth and Nineteenth Amendments that would bring to the interpretation

of the Equal Protection Clause a knowledge of the family-based status order through which women were disfranchised for most

of this nation’s history and from which they were emancipated after over a half century of struggle. Interpreted from this

sociohistoric standpoint, a core meaning of equal protection for women is freedom from historic forms of subordination in the

family.”).

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B. The Nineteenth Amendment’s Scrutiny Framework: Per Se Unconstitutionality

Assuming the ratification of the Nineteenth Amendment committed the country to a “thick,”

robust ideal of political equality, what sort of scrutiny framework should a modern court apply when

assessing Nineteenth Amendment challenges?

We begin with what courts have done already. On the one hand, courts sometimes have read

Nineteenth Amendments protections as simply coextensive with the Fourteenth Amendment. In Ball

v. Brown, for example, a federal district court explicitly adopted this theory, noting that “[t]o the extent

that the Nineteenth Amendment provides a further guarantee of the right to vote, that guarantee is

encompassed within the [F]ourteenth [A]mendment guarantee of equal protection under laws

prohibiting state action which invidiously encroaches upon the right to vote.”

Under current

Fourteenth Amendment jurisprudence, gender classifications receive intermediate scrutiny, requiring

the government to show that the challenged law furthers an important government interest and uses

means substantially related to that interest.

By extension, according to the logic of the Ball v. Brown

court, Nineteenth Amendment challenges to voting regulations implicating gender classifications

should similarly receive intermediate scrutiny.

On the other hand, other courts have adopted the theory that the Nineteenth Amendment

embodies analogous protections to those of the Fifteenth Amendment. The Supreme Court appeared

to adopt such a theory in Leser v. Grant, noting that the Nineteenth Amendment “is in character and

phraseology precisely similar to the Fifteenth.”

Similarly, shortly after the Nineteenth Amendment’s

passage, a state high court held that “[t]he privileges conferred upon women by the Nineteenth

Amendment are precisely the same as those conferred upon the colored race by the Fifteenth.”

This

makes sense from a textualist perspective, as the Nineteenth Amendment was written as an analogue

to the Fifteenth Amendment.

Forty years later in Williams v. Rhodes, the Supreme Court affirmed this

theory of the Nineteenth Amendment in dicta, writing that “[c]learly, the Fifteenth and Nineteenth

Amendments were intended to bar the Federal Government and the States from denying the right to

vote on grounds of race and sex in presidential elections.”

It did the same in Gray v. Sanders,

and the

Eleventh Circuit recently affirmed this understanding.

Whether there is a meaningful difference between these two theories—that the Nineteenth

450 F. Supp. 4, 8 (N.D. Ohio 1977) (citing Williams v. Rhodes, 393 U.S. 23, 89 (1968)).

See Craig v. Boren, 429 U.S. 190 (1976) (holding that intermediate scrutiny is the proper standard of review for

scrutinizing gender classifications under the Equal Protection Clause).

Leser v. Garnett, 258 U.S. 130, 136 (1922).

See Opinion of the Justices, 113 A. 603, 616 (Me. 1921).

Compare U.S. CONST. amend. XV (“The right of citizens of the United States to vote shall not be denied or abridged

by the United States or by any State on account of race, color, or previous condition of servitude.”), with U.S. CONST. amend.

XIX (“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on

account of sex.”).

393 U.S. 23, 29 (1968).

372 U.S. 368, 379 (1963) (“The Fifteenth Amendment prohibits a State from denying or abridging a Negro’s right

to vote. The Nineteenth Amendment does the same for women.”).

Jones v. Governor of Fla., 975 F.3d 1016, 1042 (11th Cir. 2020) (“Race is never a permissible criterion for

determining the scope of the franchise [under the Fifteenth Amendment]. And this understanding extends to the Nineteenth

Amendment’s prohibition of sex-based voter qualifications.”).

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Amendment’s protections are coextensive with the Fourteenth Amendment or that the Nineteenth

Amendment’s protections are analogous to those of the Fifteenth Amendment—depends in large part

upon whether the Fifteenth Amendment’s protections are merely coextensive with those of the

Fourteenth Amendment. In Jones v. DeSantis, a federal district court adopted this view, holding that:

The Nineteenth Amendment was an effort to put women on the same level as men

with respect to voting, just as the Fifteenth Amendment was an effort to put African

American men on the same level as white men. . . . As is settled, a claim under the

Fifteenth Amendment requires the same showing of intentional discrimination as

the Fourteenth Amendment’s Equal Protection Clause.

Yet, in the few modern cases in which the Supreme Court and Courts of Appeals have offered

a Fifteenth Amendment analysis independent of a Fourteenth Amendment analysis, they have treated

the Fifteenth Amendment as an independent and stronger source of protections beyond those afforded

by the Fourteenth Amendment. In Rice v. Cayetano—the Court’s most recent Fifteenth Amendment

case—the Court struck down a Hawaii statute limiting those who could vote for a certain office on the

basis of ancestry as a violation of the Fifteenth Amendment.

The Court explicitly treated the statute

as a racial classification but then noted, in assessing the state’s claim that the Fourteenth Amendment’s

one-person, one-vote command may be in conflict with the demands of the Fifteenth Amendment,

that “[t]he Fifteenth Amendment has independent meaning and force” relative to the Fourteenth

Amendment.

Courts of Appeals have also treated the Fifteenth Amendment as an independent source of

voting rights. In Davis v. Guam, for example, the Ninth Circuit elected to strike down racial

classifications on Fifteenth Amendment grounds, rather than Fourteenth Amendment grounds,

and

in Jones v. Governor of Florida, the Eleventh Circuit spent considerable energy assessing plaintiffs’ claims

under the Fourteenth, Fifteenth, and Nineteenth Amendments, offering distinct analyses for each.

Assuming the Fifteenth Amendment—and by extension the Nineteenth Amendment

—

provides protections separate from those afforded to voters under the Fourteenth Amendment, the

question remains: what precisely are these protections? In the limited contexts where the Courts of

Appeals have addressed this question, the answer has been absolute. In Davis v. Guam, the Ninth Circuit

described restrictions imposed by the Fifteenth Amendment upon states as “fundamental and

absolute.”

Although the Ninth Circuit did not lay out a clear framework for Fifteenth Amendment

challenges, it did note that “[a]s ‘[t]here is no room under the Amendment for the concept that the right

to vote in a particular election can be allocated based on race,’ the levels of scrutiny applied to other

462 F. Supp. 3d 1196, 1239 (N.D. Fla. 2020).

528 U.S. 495, 499 (2000).

Rice v. Cayetano, 528 U.S. 495, 522 (2000).

See 932 F.3d 822, 825 (9th Cir. 2019).

See generally 975 F.3d at 1029.

See id. at 1043 (“The Nineteenth Amendment forbids the use of sex as a voter qualification in the same way [as the

Fifteenth Amendment].”).

932 F.3d at 832 (citing Shaw v. Reno, 509 U.S. 630, 639 (1993)).

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constitutional restrictions are not pertinent to a race-based franchise limitation.”

In other words,

whatever the level of scrutiny the Fourteenth Amendment demands a court apply to a voting regulation

implicating a racial classification, the Fifteenth Amendment demands more: “[o]ur decision makes no

judgment about whether Guam’s targeted interest in the self-determination of its indigenous people is

genuine or compelling. Rather, our obligation is to apply established Fifteenth Amendment principles,

which single out voting restrictions based on race as impermissible whatever their justification.”

The Eleventh Circuit reached a similar conclusion last September.

Although the case

ultimately upheld the Florida legislature’s severe restrictions on the scope of Amendment 4, which

enfranchised thousands of former felons, the case’s analyses of the Fifteenth Amendment and

Nineteenth Amendment are instructive. The en banc panel interpreted the Fifteenth Amendment, citing

Rice, to stand for the proposition that “[s]tates must set voter qualifications without any regard to

race.”

For this reason, according to the panel “[t]he Fifteenth Amendment does not subject race-

based voter qualifications to strict scrutiny—they are per se unconstitutional.”

For the panel, treating laws

that trigger the Fifteenth Amendment as per se unconstitutional, rather than evaluating them under

strict scrutiny, “ensures that any argument that a race-based voter qualification is ‘tied rationally to the

fulfillment’ of an important government interest falls on deaf ears.”

Importantly, the panel was also

clear that “[t]he Nineteenth Amendment forbids the use of sex as a voter qualification in the same way

[as the Fifteenth Amendment].”

Thus, based on the Supreme Court’s decision in Rice and decisions by the Courts of Appeals

in Davis and Jones, any regulations that trigger the protections of the Fifteenth and therefore

Nineteenth Amendment should not be evaluated under either intermediate scrutiny or strict scrutiny;

rather, such regulations should be treated as per se unconstitutional. This rule makes it critical to

understand precisely what sorts of regulations would trigger the Amendments’ protections. The next

section explores this question in depth.

C. Triggers for Nineteenth Amendment Protections

While facial gender classifications without a doubt trigger the Nineteenth Amendment, the

Amendment’s protections are not limited to such classifications. The Supreme Court acknowledged in

Rice that the Fifteenth Amendment has been used to strike down voting regulations containing both

“subtle” and “indirect” classifications.

Although the statute in question in Davis involved a facial

ethnic classification, in that case the Ninth Circuit made clear that courts should be suspicious of

“sophisticated as well as simple-minded modes of discrimination.”

To support this proposition, the

Id. (quoting Cayetano, 528 U.S. at 523 (emphasis added)).

Id. at 843 (emphasis added).

Jones v. Governor of Fla., 975 F.3d 1016, 1025 (11th Cir. 2020).

Id. at 1043.

Id. (emphasis added).

Id. at 1043 (11th Cir. 2020) (quoting Cayetano, 528 U.S. at 548 (Ginsburg, J., dissenting) (internal quotation marks

omitted)).

Id.

Cayetano, 528 U.S. at 514.

Davis v. Guam, 932 F.3d 822, 832–33 (9th Cir. 2019) (quoting Gomillion v. Lightfoot, 364 U.S. 339, 342 (1960))

(“Determining whether a law discriminates ‘on account of race’ is not, however, always straightforward. Voting qualifications

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Ninth Circuit pointed to two additional types of laws that the Supreme Court has found trigger

Fifteenth Amendment protections: laws with facially neutral classifications but passed with racially

discriminatory intent, as the plurality in City of Mobile v. Bolden recognized,

and facially neutral laws

applied in a discriminatory manner, as the court recognized in Lassiter v. Northampton County Board of

Elections.

Thus, under the Nineteenth Amendment, facially discriminatory laws, laws passed with

sexually discriminatory intent, and facially neutral laws applied in a manner that discriminates on the

basis of sex should all trigger the Amendment’s protections.

The Jones panel provided a similar analysis, yet crucially it added an additional category of

regulations that would trigger the protections of the Fifteenth and Nineteenth Amendment. The en banc

panel confirmed that the Fifteenth Amendment is “powerful enough to ‘remove . . . or render

inoperative’ any suffrage provision in a state constitution that refers to race, even in the absence of

implementing legislation by Congress”

—in other words, facial racial classifications. But the panel also

made clear that the Amendment extends to facially neutral laws that inherently implicate a suspect classification

and uniquely burden voters on one side of that classification:

The [Fifteenth] amendment has similar bite even when States impose discriminatory

voting qualifications by facially neutral means. In Guinn, the Supreme Court

invalidated an amendment to the Constitution of Oklahoma that created a literacy

test for voting but exempted from the test any person who was eligible to vote before

the ratification of the Fifteenth Amendment. Although the state constitution

“contain[ed] no express words” limiting the franchise “on account of race, color, or

previous condition of servitude,” the grandfather clause “inherently [brought] that

result into existence,” which violated the Fifteenth Amendment.

For this category of Fifteenth Amendment cases, the panel ultimately—and importantly—

landed on but-for causation as the trigger for the Amendment’s protections. The panel plainly stated

that “[t]he Fifteenth and Nineteenth Amendments are best understood to forbid any voter qualification

that makes race or sex a but-for cause of the denial of the right to vote.”

That is, just as Title VII prohibits but-

that, by their very terms, draw distinctions based on racial characteristics are of course prohibited . . . . But ‘[t]he (Fifteenth)

Amendment nullifies sophisticated as well as simple-minded modes of discrimination. . . . So, in addition to facial racial

distinctions, classifications that are race neutral on their face but racial by design or application violate the Fifteenth

Amendment.”). Cf. Jolicoeur v. Mihaly, 488 P.2d 1, 4 (1971) (assessing a Twenty-Sixth Amendment challenge and writing “[t]he

Twenty-sixth Amendment, like the Twenty-fourth, Nineteenth, and Fifteenth before it, ‘nullifies sophisticated as well as simple-

minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise . . .

although the abstract right to vote may remain unrestricted.’”) (quoting Lane v. Wilson, 307 U.S. 268, 275 (1939)).

See City of Mobile v. Bolden, 446 U.S. 55, 62 (1980) (plurality opinion) (“Our decisions, moreover, have made clear

that action by a State that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory

purpose.”). Although this quoted language in Bolden appears to endorse a narrower interpretation of the Fifteenth Amendment

that would only forbid voting laws passed with a racially discriminatory intent, only four justices signed on to this portion of the

opinion.

See Lassiter v. Northampton Cnty. Bd. of Elections, 360 U.S. 45, 53 (1959) (“Of course a literacy test, fair on its face,

may be employed to perpetuate that discrimination which the Fifteenth Amendment was designed to uproot.”).

Jones v. Governor of Fla., 975 F.3d 1016, 1042 (11th Cir. 2020).

Id. (citations omitted).

Id. (emphasis added).

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for discrimination on the basis of sex and gender identity, so too does the Nineteenth Amendment

prohibit but-for discrimination in voting on the basis of sex and, as we argued in Part I, gender identity.

The panel’s particular formulation—”any voter qualification that makes race or sex a but-for

cause of the denial of the right to vote”

—focuses on but-for discrimination that denies the right to

vote. While this may lead one to think that the Nineteenth Amendment does not reach laws that merely

burden the right to vote, the text of the Amendment provides a clear rebuttal. As noted in Part II, the

language of the Nineteenth Amendment reads: “[t]he right of citizens of the United States to vote shall

not be denied or abridged by the United States or by any State on account of sex.”

In Fifteenth

Amendment case law, courts have construed the term “abridge” to mean “shorten.”

In the little

Nineteenth Amendment case law we have, courts have similarly regarded the Nineteenth Amendment

as extending to regulations that merely “burden” the right to vote on the basis of sex.

100

Thus, the Nineteenth Amendment’s protections should be understood to be triggered not

only by regulations passed with sexually discriminatory intent, nor only by neutral laws applied in a

sexually discriminatory manner, but also by “any voter qualification that makes . . . sex a but-for cause

of the denial of the right to vote”

101

or the abridgment or burdening of the right to vote.

102

As laid out

in Part I, these sex-based protections should be understood to encompass analogous gender-based

protections. Any law that triggers these protection should be held per se unconstitutional.

III. BOSTOCK’S IMPLICATIONS ON THE FOURTEENTH AMENDMENT

We recognize that the relative dormancy of the Nineteenth Amendment in voting rights

litigation, and in jurisprudence more broadly, may raise doubts among readers that there is enough

“there there” to sustain our argument. Yet Bostock’s constitutional implications do not stop with the

Nineteenth Amendment. While the textualist logic of Bostock and textual parallels between Title VII

and the Nineteenth Amendment make it an obvious first target, the Bostock Court’s analysis of gender

provides a solid foundation to expand voting rights for transgender and gender-nonconforming voters

via the protections of the Fourteenth Amendment.

To recap Part I, in Bostock the Court recognized that gender identity classifications are sex

classifications—or rather, that one cannot discriminate on the basis of gender identity without also

discriminating on the basis of sex. Since then, courts have already begun to operationalize this logic to

afford transgender individuals the gender protections inherent in the Equal Protection Clause. In Corbitt

v. Taylor, for example, a district court in Alabama recently struck down a state law requiring Alabama

residents to “surgically modify their genitals before they can change the sex designation on their

Id.

U.S. CONST. amend. XIX (emphasis added).

See Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 333–34 (2000); see also Hasen & Litman, supra note 7, at 39.

100

See, e.g., Graves v. Eubank, 87 So. 587, 588 (Ala. 1921) (interpreting the Nineteenth Amendment to prohibit the

state “placing conditions or burdens upon one [sex] not placed upon the other as a condition precedent to the right to vote.”);

see also Hasen & Litman, supra note 7, at 39 (“[L]aws and procedures diminishing voting on the basis of gender are constitutionally

impermissible [under the Nineteenth Amendment.”).

101

Jones v. Governor of Fla., 975 F.3d 1016, 1042 (11th Cir. 2020).

102

Hasen and Litman reach a similar conclusion by way of a different of analysis. See Hasen & Litman, supra note 7, at

39 (“[T]he term ‘abridgement’ is consistent with the thick reading of the Amendment as barring laws that have discriminatory

effect on voting power on the basis of gender.”).

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licenses.”

103

In doing so, the court applied intermediate scrutiny on the theory that “[a]ll state actions

that classify people by sex are subject to the same intermediate scrutiny. The State need not favor or

disfavor men or women to trigger such scrutiny; the classification itself is the trigger.”

104

Civil rights

litigators too are seeking to operationalize this logic, mounting arguments, for example, that

“[d]iscrimination based on sex includes, but is not limited to, discrimination based on gender, gender

nonconformity, transgender status, gender expression, and gender transition.”

105

As noted above, laws containing a gender classification are reviewed under intermediate

scrutiny. To be sustained under intermediate scrutiny, the law must further an important government

interest and must do so through means substantially related to that interest.

106

Separately, challenges to

generally applicable election laws brought under the Fourteenth Amendment are typically evaluated

under Anderson-Burdick review.

107

Under Anderson-Burdick review, “a court evaluating a constitutional

challenge to an election regulation weigh[s] the asserted injury to the right to vote against the ‘precise

interests put forward by the State as justifications for the burden imposed by its rule.’”

108

Then, unless

the court finds the burden to be severe, it should uphold the voting regulation at issue

109

as a

“reasonable, nondiscriminatory restriction”

110

on the right to vote, justified by “the State’s important

regulatory interests.”

111

This applies to “evenhanded restrictions that protect the integrity and reliability

103

Corbitt v. Taylor, No. 2:18cv91-MHT, 2021 WL 142282, at *1 (M.D. Ala. Jan. 15, 2021).

104

Id. at *3.

105

First Amended Complaint at 68, Diamond v. Ward, No. 5:20-cv-00453-MTT (M.D. Ga. Feb. 16, 2021),

https://ccrjustice.org/sites/default/files/attach/2021/02/36_2-16-21_Amended-Complaint_w.pdf [https://perma.cc/UU6P-

XY94] (last visited June 30, 2021).

106

See Craig v. Boren, 429 U.S. 190, 197 (1976) (“To withstand constitutional challenge, previous cases establish that

classifications by gender must serve important governmental objectives and must be substantially related to achievement of those

objectives.”).

107

This test derives from two Supreme Court cases. See Burdick v. Takushi, 504 U.S. 428, 430 (1992) (upholding a

Hawaii law proscribing write-in votes); Anderson v. Celebrezze, 460 U.S. 780, 805–6 (1983) (striking down an Ohio filing deadline

for independent candidates to get on the ballot). For more on Anderson-Burdick review, see Christopher S. Elmendorf, Structuring

Judicial Review of Electoral Mechanics: Explanations and Opportunities, 156 U. PA. L. REV. 313, 316–18 (2007) (providing a thorough

analysis of Anderson-Burdick review); Edward. B. Foley, Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial

Review of Election Laws, 84 U. CHI. L. REV. 655 (2017), 674–78 (analyzing Anderson-Burdick review and the doctrinal confusion it

has created).

108

See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 190 (2008) (quoting Anderson, 460 U.S. at 789) (majority

and dissent both applying Anderson-Burdick review to a voter ID regulation).

109

See Jamelia N. Morgan, Disparate Impact and Voting Rights: How Objections to Impact-Based Claims Prevent Plaintiffs from

Prevailing in Cases Challenging New Forms of Disenfranchisement, 9 Ala. C.R. & C.L. L. Rev. 93, 157 (2018) (“Unless courts are willing

to characterize the burden on voting as a particularly severe or burdensome restriction, and require the defendant jurisdiction to

demonstrate a narrowly tailored compelling interest, the plaintiff’s claim will typically be rebutted.”).

110

Burdick, 504 U.S. at 434.

111

Id. Many scholars have noted the ways in Anderson-Burdick review untethered the court’s voting rights jurisprudence

from the Warren Court’s more robust voting jurisprudence, giving states greater latitude to enact burdensome and discriminatory

voting regulations. See Joshua S. Sellers, Political Participation, Expressive Association, and Judicial Review, 69 AM. U. L. REV. 1617, 1626

(2020) (“Anderson introduced a less rigorous form of judicial review in the election regulations context.”); Pamela S. Karlan, Undue

Burdens and Potential Opportunities in Voting Rights and Abortion Law, 93 IND. L. J. 139, 145 (2018) (“The retreat in voting rights began

in Burdick v. Takushi. . . . The Court rejected the idea that ‘a law that imposes any burden upon the right to vote must be subject

to strict scrutiny.’”) (quoting Burdick, 504 U.S. at 432).

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of the electoral process itself.”

112

The Supreme Court has applied Anderson-Burdick review to challenges to voter ID laws. In

Crawford v. Marion County, a constitutional challenge to Indiana’s voter ID law, the court upheld the law

under Anderson-Burdick review.

113

In doing so, the Court made it clear that Anderson-Burdick review

applies to facially-neutral policies of election administration even if they have a disproportionate impact

on an identifiable group: the Court recognized that the Indiana voter ID laws being challenged would

make it more difficult for certain categories of voters to obtain the requisite ID, yet it decided to

evaluate the laws under Anderson-Burdick review anyway.

114

The burdens imposed by the voter ID law in Crawford differ in important ways from the

burdens imposed on transgender and gender-nonconforming voters by the layering of voter ID laws

on top of strict identity document laws. Specifically, there is a fundamentally different relationship—

and a much closer tie—between the burden on voting rights imposed by these laws and a voter’s

identity within a suspect class. The effects of the law challenged in Crawford were felt disproportionately

by certain voters,

115

yet the law was, at least in one sense, “even-handed”: The law did not specifically

require voters of a suspect or non-suspect class to obtain or update an ID because of their identity.

According to the Court, it merely “incidentally” burdened some voters more than others. In advocating

for Anderson-Burdick review, Justice Scalia’s concurring opinion stressed this element of the voter ID

scheme, writing:

[W]hat petitioners view as the law’s several light and heavy burdens are no more than

the different impacts of the single burden that the law uniformly imposes on all

voters. To vote in person in Indiana, everyone must have and present a photo

identification that can be obtained for free. The State draws no classifications, let

alone discriminatory ones . . . .

116

By contrast, laws that jointly require voters to both (1) obtain a form of voter ID that has a

gender marker that accurately conveys a voter’s gender identity and (2) to pay a hefty expense and/or

undergo gender confirmation surgery to update their gender marker operate differently. While in

Crawford the voter ID law—at least in theory—burdened all voters (with some “incidentally” more

burdened than others), laws that at once require an up-to-date gender marker on an ID to vote and

charge voters to change their identity documents—either directly or indirectly via a proof-of-surgery

requirement—uniquely burden voters on one half of a gender classification because the only voters who

will encounter the burden erected by these laws are those whose gender identity differs from that on

their current identification documents.

117

In other words, unlike in Crawford, the burden is triggered by a

voter’s identity within a quasi-suspect class: their transgender or gender-nonconforming identity. That gender

identity places voters on one side of a quasi-suspect classification, triggering the gender-based

112

Crawford, 553 U.S. at 189–90 (quoting Anderson, 460 U.S. at 788).

113

Id.

114

See id. at 205 (Scalia, J. concurring).

115

See id. at 221 n.25 (Ginsburg, J. dissenting) (recognizing that “the burdens of an ID requirement may . . . fall

disproportionately upon racial minorities”).

116

See id. at 205 (Scalia, J. concurring). Separate from this classification issue, the plurality and concurrence also decided

to apply a lower standard of review because the law did not severely burden voting rights. Id. at 204.

117

Cf. Corbitt v. Taylor, No. 2:18cv91-MHT, 2021 WL 142282, at *2 (M.D. Ala. Jan. 15, 2021).

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protections of the Equal Protection Clause. Unlike in Crawford, there is thus a direct tie between a voter’s

identity within a protected class and the burden experienced by that voter under the laws.

So while laws like these, as in Crawford, are “generally applicable” in the narrow sense that all

voters are potentially subject to the requirements and, as in Crawford, the operation of the laws will have

a disproportionate impact on certain voters, the joint operation of these laws goes a step further by

impacting solely—not just disproportionately—voters on one side of a suspect classification. Laws like

these implicate an identity-based classification more strongly than a generally applicable and even-

handed law that has a disproportionate impact on an identifiable group. That classification is a quasi-

suspect classification, deserving of intermediate scrutiny.

Thus, although we believe the Nineteenth Amendment should principally apply to gender-

identity-based barriers to the franchise, we recognize the gravity of Crawford may pull courts away from

evaluating voter ID schemes under the Nineteenth Amendment and towards the Fourteenth

Amendment. Nevertheless, voter ID laws and other election administration laws that uniquely burden

transgender and gender-nonconforming individuals should not be evaluated using Anderson-Burdick

review in as-applied Fourteenth Amendment challenges. Rather, given the now judicially cognizable

gender classification between cisgender and transgender and gender-nonconforming individuals and

the ways in which the combination of strict voter ID laws and strict identity document requirements

burden voters because of their gender identity, such laws should receive at least intermediate scrutiny

under the Fourteenth Amendment.

118

We acknowledge that the analysis above would potentially put the Court’s equal protection

gender jurisprudence in tension with the Nineteenth Amendment, since a voting regulation with a

gender classification might get intermediate scrutiny under the Fourteenth Amendment and also be

treated as per se unconstitutional under the Nineteenth Amendment. In such a case, the demands of

the Nineteenth Amendment should take precedent because in constitutional theory “the specific

governs the general”

119

—that is, where both a general constitutional protection and a specific

constitutional protection overlap, the specific should govern. The Nineteenth Amendment was passed

specifically for the purpose of ensuring that all voters, regardless of sex can participate as equals in the

political process. Therefore, when voting regulations could be analyzed under either the Fourteenth

Amendment or the Nineteenth Amendment, they should principally be assessed under the Nineteenth

Amendment.

Beyond the specific governing the general, there are other important reasons for the

118

There is also a good argument that on the basis of the severity of the burden alone, such regulations should be

evaluated using a higher level of scrutiny than Anderson-Burdick review. In Crawford the court recognized that generally applicable

laws that imposed severe burdens on the right to vote or that imposed “‘excessively burdensome requirements’ on any class of

voters” should be subject to higher scrutiny. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 202, 204 (2008) (citing Storer

v. Brown, 415 U.S. 724, 738 (1974)). As laid out in Part IV, in some states transgender and gender-nonconforming voters must

pay considerable expenses and/or undergo gender confirmation surgery to change the gender marker on their ID required to

vote. See infra Part IV. Since courts have been less tolerant of voter ID laws under which voters cannot obtain a free voter ID,

there are good reasons to think that courts would regard laws placing financial burdens between a voter and their free ID with

similar suspicion. See Karen Shanton & Wendy Underhill, Costs of Voter Identification, NAT’L. CONF. OF STATE LEGISLATURES,

June 2014, at 1-2, https://www.ncsl.org/documents/legismgt/elect/Voter_ID_Costs_June2014.pdf [https://perma.cc/99NY-

G962] (last visited June 30, 2021).

119

See Travis Crum, The Superfluous Fifteenth Amendment?, 114 NW. UNIV. L. REV. 1549, 1566 (2020) (citing Morales v.

Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)) (arguing that Congress’ enforcement powers under the Fifteenth

Amendment should be understood to be distinct and broader than its enforcement powers under the Fourteenth Amendment).

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Nineteenth Amendment to take precedent over the Fourteenth Amendment in constitutional

challenges to election laws. In equal protection jurisprudence, regulations using gender classifications

receive only intermediate scrutiny, rather than strict scrutiny, because according to courts, unlike racial

classifications, there are certain situations in which it is normatively superior for courts to probe a

gender classification with less scrutiny than a racial classification. This is because, unlike racial

classifications, which according to the courts are inherently suspect, gender classifications can

sometimes be benign and beneficial to women.

120

Such a rationale simply does not apply to the voting context. As with any racial classification

in the voting context, there are no benign reasons for a state to impose a gender-based regulation in

the voting context. Any such regulation would only restrict or pose obstacles to the exercise of the right

to vote by a certain class of voters on the basis of an aspect of identity that has no bearing on the

capacity to participate in a democracy. As with race-based regulations, we should view any such

regulations with suspicion, and, accordingly, courts should regard them principally as per se

unconstitutional under the Nineteenth Amendment.

IV. ASSESSING A POTENTIAL NINETEENTH AMENDMENT CHALLENGE: VOTER ID

For the reasons laid out in Part I, we believe that the textual analysis offered in Bostock has

clarified those who fall under the protections of the Nineteenth Amendment and expanded the types

of classifications that should receive intermediate scrutiny under the Fourteenth Amendment. The

consequences of such a reading of the Nineteenth and Fourteenth Amendments are momentous, given

both the substantive protections potentially afforded to voters under the Nineteenth and Fourteenth

Amendments as well as the significant challenges that voter ID schemes and restrictive identity

document laws pose to transgender and gender-nonconforming voters. We conclude this article by

providing just one example of the ways in which our two novel constitutional theories could serve as

an important font for the voting rights of transgender and gender-nonconforming voters.

Below, we argue that laws requiring identification documents containing a gender marker in

order to vote and those requiring that voters pay significant economic sums and/or undergo surgery

to change a gender marker on their ID abridge the right to vote. Specifically, when acting together,

these laws create a gender classification that imposes burdens on transgender and gender-

nonconforming voters not imposed on cisgender voters solely because of their gender identity. “[B]ut-

for”

121

the gender identity of the voters, their right to vote would not be “abridged.”

122

The joint

operation of voter ID laws and restrictive identity document laws is thus suitable for challenge,

following Bostock, under the expansive view of the Nineteenth Amendment outlined in Part II and, if

challenged under the Fourteenth Amendment, should be reviewed under intermediate scrutiny as

120

See Kim Shayo Buchanan, The Sex Discount, 57 UCLA L. REV. 1149, 1169 (2010) (“By

choosing intermediate scrutiny of gender classifications over the strict scrutiny advocated by Justice Brennan’s plurality in

Frontiero v. Richardson, the Court presumes that, while some gender classifications are invidious, others are likely benign.”). See also

Melissa Murray, The Equal Rights Amendment: A Century in the Making Symposium Foreword, 43 N.Y.U. REV. OF L. & SOC. CHANGE

HARBINGER 91, 97 (2019) (noting cases in which the Court has upheld benign gender legal classifications under intermediate

scrutiny, including “laws that make it easier for mothers to transmit citizenship to children born out of wedlock in foreign

countries, as well as laws that preclude women from the draft”).

121

Jones v. Governor of Fla., 975 F.3d 1016, 1042 (11th Cir. 2020).

122

U.S. CONST. amend. XIX.

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argued in Part III.

Voter identification schemes across the country pose a significant threat to the voting rights

of transgender and gender-nonconforming individuals. To cast a ballot once registered to vote—a

hurdle in itself

123

—transgender and gender-nonconforming people must first identify their state’s voter

ID laws and determine whether any of the acceptable forms of identification they have list the correct

gender marker.

124

If none of the voter’s identification documents list the correct gender or name (in

this case, the gender or name other than that assigned to the voter at birth), the voter must then embark

on a lengthy and costly process to update their documents.

125

If the state’s procedures for updating

identification documents are too cumbersome for the voter, the voter risks having to cast a provisional

ballot at the polls, which grants wide discretion to local officials to confirm the validity of a person’s

vote.

126

Voters may also face harassment and humiliation at the hands of election workers and judges

at both steps of the process.

127

A recent study by the Williams Institute estimated that 965,350

transgender people were eligible to vote in the November 2020 general election and that, of that group,

over 378,000 voting-eligible transgender people may have faced barriers to voting due to voter

registration requirements and voter ID laws.

128

To protect these voters from barriers to voting as a

direct result of voter ID and identity document laws, several organizations staffed Election Day hotlines

reserved specifically for transgender voters facing difficulties at the polls.

129

Accounts of harassment

and disenfranchisement are likely to emerge over the coming months.

Thirty-five states had some form of voter ID requirement in place for the 2020 election.

130

123

S. E. JAMES, J. L. HERMAN, S. RANKIN, M. KEISLING, L. MOTTET, & M. ANAFI, THE REPORT OF THE 2015 U.S.

TRANSGENDER SURVEY 232–34 (Nat’l Ctr. for Transgender Equality 2016),

https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf [https://perma.cc/P5WM-9XFW] (last

visited June 30, 2021).

124

TAYLOR N. T. BROWN & JODY L. HERMAN, VOTER ID LAWS AND THEIR ADDED COSTS FOR TRANSGENDER

VOTERS 4 (Williams Inst. 2016), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Trans-Voter-ID-Mar-2016.pdf

[https://perma.cc/D289-6XBG] (last visited June 30, 2021).

125

Id. at 4–5.

126

Id. at 4.

127

See JAMES, HERMAN, RANKIN, KEISLING, MOTTET, & ANAFI, supra note 123, at 232; Scottie Andrew, Why Some

Transgender Voters Have an Even Bigger Challenge to Casting Their Ballots, CNN (Oct. 13, 2020),

https://www.cnn.com/2020/10/13/politics/transgender-voter-suppression-2020-election-trnd/index.html

[https://perma.cc/5HPF-HUZM] (“Ozias, a transgender man from Corpus Christi, Texas, couldn’t afford to legally change his

name or update his ID before he went to vote in state elections in November 2013. He brought his old ID—with a name he no

longer used and a photo that no longer resembled him—to the polls that year. Poll workers grilled him on his identity. They

attempted to stop him from voting . . . .”).

128

KATHRYN O’NEILL & JODY L. HERMAN, THE POTENTIAL IMPACT OF VOTER IDENTIFICATION LAWS ON

TRANSGENDER VOTERS IN THE 2020 GENERAL ELECTION 1–2 (Williams Inst. 2020),

https://williamsinstitute.law.ucla.edu/wp-content/uploads/Trans-Voter-ID-Feb-2020.pdf [https://perma.cc/ML2B-G8AA]

(last visited June 30, 2021).

129

See, e.g., TRANS VOTER PROTECTION HOTLINE, https://outvoters.org/ [https://perma.cc/DS6P-HVH2] (last

visited June 30, 2021); Protecting Trans Voters: Call the National Trans Protection Hotline, NAT’L CTR. FOR TRANSGENDER EQUALITY

BLOG (Nov. 2, 2020), https://transequality.org/blog/protecting-trans-voters-call-the-national-trans-voter-protection-hotline

[https://perma.cc/R97E-67EP].

130

Voter Identification Requirements | Voter ID Laws, NAT’L CONF. OF STATE LEGISLATURES (Aug. 25, 2020), https://

www.ncsl.org/research/elections-and-campaigns/voter-id.aspx [https://perma.cc/9DQN-YUN9].

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Most states require only non-photo identification, like bank statements or lease documents.

131

Eighteen

states require photo identification but offer an avenue for those without acceptable identification to

cast a ballot that will be counted, either by a poll worker’s voucher or provisional ballot.

132

Twelve of

these states have “non-strict” voter ID schemes, so called because they do not require voters lacking

acceptable ID to take additional action after election day in order to have their ballot counted.

133

The

six “strict” voter ID states require either government-issued photo or non-photo identification, and

they require voters to take additional steps after the election to have a provisional ballot counted should

they not show the required identification when they cast their ballot in person.

134

Outside of the voting context, identification requirements for a range of activities pose

obstacles for transgender and gender-nonconforming individuals. In many states, it is difficult and

expensive to obtain identification documents that reflect a person’s gender if that gender is different

than the one assigned to them at birth.

135

In fact, in a 2015 report by the National Center for

Transgender Equality, sixty-eight percent of transgender respondents said that none of their

identification documents listed their correct name and gender.

136

The legal gender and name change

process can cost up to $2,000 in certain cases, which may make the process inaccessible for many.

137

In nine states, including Georgia, gender confirmation surgery—a costly, intensive procedure that many

transgender and gender-nonconforming people choose not to pursue

138

—is required

139

in order to

change the gender marker on a state ID or birth certificate.

140

In many states, the process involves

paying court fees, undergoing a background check, and collecting and submitting medical

documentation.

141

In the voting context, transgender and gender-nonconforming voters are subjected to

harassment and stigmatic harms when casting a ballot. Identification requirements often result in

transgender and gender-nonconforming people being turned away at the polls.

142

When poll workers

examine the voter registration rolls and match voters’ information to the information on the

131

Id.

132

Id.

133

Id.

134

Id.

135

O’NEILL & HERMAN, supra note 128, at 5.

136

JAMES, HERMAN, RANKIN, KEISLING, MOTTET, & ANAFI, supra note 234, at 82.

137

Id. at 84.

138

BROWN & HERMAN, supra note 124, at 3 (noting that not every transgender person undertakes the same steps to

transition from their sex assigned at birth to their gender). In addition, not every transgender or gender-nonconforming person

wishes to undergo surgical transition.

139

Georgia, Kansas, and Wisconsin permit court orders of gender change in lieu of a physician letter confirming gender

confirmation surgery. Id. at 14. However, in some states, including Georgia, obtaining such a court order of gender change

requires proof of gender confirmation surgery. See infra note 134.

140

ID Documents Center | Georgia, NAT’L CTR. FOR TRANSGENDER EQUALITY, (May 2020),

https://transequality.org/documents/state/georgia [https://perma.cc/A2PH-TVC5] (last visited June 30, 2021).

141

Scottie Andrew, Why Some Transgender Voters Have an Even Bigger Challenge to Casting Their Ballots, CNN (Oct. 13, 2020),

https://www.cnn.com/2020/10/13/politics/transgender-voter-suppression-2020-election-trnd/index.html

[https://perma.cc/S8A8-6FAU].

142

See O’Neill & Herman, supra note 128, at 2.

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identification they present, poll workers may—and often do

143

—find that a transgender or gender-

nonconforming voter’s name, gender marker, and appearance do not match, providing a reason to turn

away the voter.

144

Even in the least restrictive voter ID states, poll workers have asked for ID and

subsequently turned away voters because their faces have not “matched” their names on voter rolls.

145

In some states, poll workers have been actively encouraged to turn away transgender and gender-

nonconforming voters.

146

Although poll workers are not statutorily required to turn voters away on this

basis, and may not even be permitted to do so,

147

in practice they do so with some frequency.

148

strict voter ID states, turning away these voters leaves them with no recourse: if a denied voter does

not have identification that presents a name and gender marker determined by a county registrar to

match their appearance—likely because of the obstacles associated with obtaining that

identification

149

—they will not be able to take the required steps to have a provisional vote counted.

150

The combination of strict voter ID laws and identity document laws in many states

accordingly poses a severe threat to the voting rights of many transgender and gender-nonconforming

individuals. One such state is Georgia, where government-issued photo identification is required—all

of which, except military or governmental employer identification cards, require a voter to indicate their

sex or gender

151

—provisional ballots are not accepted without demonstration of ID within three days

of the election,

152

and the state requires that individuals show proof of gender confirmation surgery in

order to update the gender marker on their birth certificate or state identification.

153

143

Sarah Fielding, ‘The System is Unfair’: US Trans and Non-Binary People Hit by Voting Barriers, GUARDIAN (JUNE 16,

2020), https://www.theguardian.com/us-news/2020/jun/16/trans-people-voting-november-election [https://perma.cc/JHP3-

UZ3E].

144

See O’Neill & Herman, supra note 128, at 6.

145

See Fielding, supra note 137 (reporting that a precinct judge requested ID from a woman in North Carolina, a state

that does not require ID to vote, because “[her] face d[id]n’t match [her] name.”).

146

See Voting Rights Watch, Ready to Vote? Rampant Suppression Threatens Already Tight Race, NATION (Nov. 2, 2012),

https://www.thenation.com/article/archive/ready-vote-rampant-suppression-threatens-already-tight-race/ [https://perma.cc/

KR5N-2B8Q] (noting the use of transphobic images in a training manual for poll workers that suggest transgender and gender-

nonconforming voters are committing voter fraud).

147

See #VotingWhileTrans Guide, TRANSFORM THE VOTE (2020), https://transformthevote.org/voting-resources

[https://perma.cc/4P82-2ZPU] (last visited June 30, 2021).

148

See Fielding, supra note 143.

149

Legal gender and name changes can cost up to $500. JAMES, HERMAN, RANKIN, KEISLING, MOTTET, & ANAFI,

supra note 123, at 82 (reporting thirty-five percent of trans people surveyed who did not try to change their legal name cited the

cost as their primary barrier). People looking to effectuate a gender and name change must, in most states, file paperwork with

the court. Often, the paperwork is not easy to complete on one’s own and may require attorney representation. Trans Legal Services

Network, NAT’L CTR. FOR TRANSGENDER EQUALITY (Aug. 26, 2019), https://transequality.org/issues/resources/trans-legal-

services-network-directory [https://perma.cc/CD22-QWWJ]. In some states, gender confirmation surgery is a prerequisite for

obtaining a gender marker change. NAT’L CTR. FOR TRANSGENDER EQUALITY, supra note 140. As a result of the ongoing

COVID-19 pandemic, many courts nationwide are temporarily closed and are not accepting name or gender change petitions.

Id.

150

NAT’L CONF. OF STATE LEGISLATURES, supra note 136.

151

See id. Georgia law requires voters to present a state-issued photo ID, a Georgia drivers’ license, a state- or county-

issued voter ID card, a U.S. passport, federal government employee ID card, or a military or tribal ID. Id.

152

Id.

153

Identity Document Laws and Policies, MOVEMENT ADVANCEMENT PROJECT,

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We believe that statutory schemes like those in Georgia are vulnerable under the Nineteenth

Amendment and Fourteenth Amendment. A challenge to the combined effect of two or more statutory

regulations is appropriate when the “joint operation” of the laws in question, but not the operation of

each law on its own, results in an unconstitutional set of circumstances.

154

Here, the joint operation of

Georgia’s strict voter ID laws and highly restrictive identity document requirements places a significant

financial, logistical, and emotional burden on certain categories of voters solely because of their gender

identity. From the perspective of the Court’s current voter ID jurisprudence, considering strict voter

ID laws in isolation, anyone who can obtain a photo or non-photo identification document in the state

where they are registered to vote is presumed by the Court to be able to overcome the burden imposed

by these laws.

155

For the purposes of the argument here, the requirement that voters present

identification is not, by itself, unconstitutional, and was upheld by the Court in Crawford.

156

But layering

strict voter ID regimes atop strict state statutory requirements for altering the gender marker on one’s

identity documents presents the constitutional problem.

Operating in tandem, voter ID laws and laws restricting changes to gender markers construct

a fine mesh through which only cisgender voters can pass unburdened. Transgender and gender-

nonconforming voters, in order to comply with both laws’ requirements, must choose whether to

undergo the time, expense, and emotional cost of gender confirmation surgery in order to obtain an

ID that accurately reflects their gender identity or use an ID that does not reflect their gender identity

and risk being turned away at the polls on that basis. The result is a de facto gender classification scheme

that operates, in practice, to burden any voter whose gender identity differs from that listed on their

requisite ID. Other similarly situated voters are not similarly burdened—in fact they are not burdened

at all. Thus, but-for their gender identity, these voters would not be subject to this abridgement of their

right to vote. In this sense, as laid out in Part III, the operation of laws like Georgia’s as applied to

transgender and gender-nonconforming voters are distinguishable from that of the Indiana law in

Crawford.

Strange as it may sound at first blush, we believe the best analogy may be Guinn v. United States.

Recall from Part II that, in Guinn, the Supreme Court struck down an Oklahoma constitutional scheme,

excepting voters enfranchised prior to the passage of the Fifteenth Amendment from having to pass

an otherwise generally applicable literacy test. The court struck down the provision as a violation of the

Fifteenth Amendment because the “neutral” law inherently and uniquely burdened newly enfranchised

Black men.

Over one hundred years later, transgender and gender-nonconforming voters face an

analogous problem. In Guinn, a generally applicable law created a “generally applicable” burden: all

https://www.lgbtmap.org/equality-maps/identity_document_laws [https://perma.cc/3ZDY-LY5X] (last visited June 30,

2021). See also NAT’L CTR. FOR TRANSGENDER EQUALITY, supra note 140.

154

See, e.g., Kane v. Fortson, 369 F. Supp. 1342, 1343 (N.D. Ga. 1973) (recognizing plaintiff’s Nineteenth Amendment

claim that “[t]he joint operation of [several provisions of the] Georgia [Code] . . . , in so far as it establishes an irrebuttable

presumption that the domicile and residence of a married woman is that of her husband, and thereby prevents her from

registering to vote in Georgia, violates the [N]ineteenth [A]mendment of the Constitution of the United States.”).

155

Of course, contrary to the Court’s understanding in Crawford, strict voter ID laws do present severe obstacles and

adverse consequences for a number of eligible voters. See, e.g., John Kuk, Zoltan Hajnal & Nazita Lajevardi, A Disproportionate

Burden: Strict Voter Identification Laws and Minority Turnout, POLITICS, GROUPS, AND IDENTITIES (2020). These obstacles are well-

documented and are outside the scope of this paper.

156

Crawford v. Marion Cty. Election Bd., 553, U.S. 185, 204 (2008).

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voters were required to pass a literacy test, but those eligible to vote on January 1, 1866 were exempt

from the test because they were grandfathered in.

157

Yet because of the timing of the grandfather clause,

the only voters actually subject to the burden of a literacy test were Black male voters newly

enfranchised by the Fifteenth Amendment.

158

Similarly, under Georgia’s scheme, a set of generally

applicable laws creates a “generally applicable” burden: all voters must have a requisite voter ID with

an up-to-date gender marker, and in order to update their ID with a different gender identity, they must

submit proof of gender confirmation surgery. Yet, like in Guinn, in practice the only voters actually

subject to this obstacle are voters of a protected class: here transgender and gender-nonconforming

voters. Thus, in both cases, laws are structured in facially neutral ways that not only disproportionately

burden members of suspect classes, but—crucially—uniquely burden members of suspect classes. In

this way, just as in Guinn the grandfather clause “‘contain[ed] no express words’ limiting the franchise

‘on account of race, color, or previous condition of servitude,’”

159

yet “‘inherently [brought] that result

into existence,’” violating the Fifteenth Amendment, schemes like Georgia’s “‘contain no express

words’ limiting the franchise ‘on account of [sex],’” yet “‘inherently [bring] that result into existence,’”

160

violating the Nineteenth Amendment.

The analogy remains just as clearer if one flips the presumption of the grandfather clause, as

the panel did in Jones. In Jones, the panel noted that Guinn stood for the proposition that “the Fifteenth

Amendment forb[ids the state from] discriminat[ing] within [a] class of illiterate non-voters by

exempting only white citizens from literacy tests.”

161

From this point of view, the proper way to view

the grandfather clause is not as an additional burden on Black voters. Instead, one should view the

grandfather clause as an exemption of white voters from a requirement. Georgia’s scheme arguably

operates in the same way: cisgender voters are exempted from paying a kind of “gender fee” that

transgender and gender-nonconforming voters must pay solely by virtue of their gender identity.

As presented in Part II, laws that uniquely burden voters on one side of a gender classification

trigger the Nineteenth Amendment’s protections. The regulatory scheme outlined above thus should

be regarded as per se unconstitutional under the Nineteenth Amendment.

If evaluated under the Fourteenth Amendment, the result is the same by way of a different

analysis. While election security is plausibly an important government interest, it would be unreasonable

for a court to hold that the expenses associated with changing identity documents—and, where

mandated by law, requiring voters to undergo surgery—are substantially related to election security. In-

person voter fraud is extraordinarily rare—in-person fraud somehow enabled by placing fewer

economic and stigmatic burdens between gender-transitioning voters and the ballot box is ludicrous.

Thus, under either of our theories, the laws should be held unconstitutional.

157

Guinn v. United States, 238 U.S. 347, 357 (1913).

158

Id. at 365.

159

Jones v. Governor of Fla., 975 F.3d 1016, 1042 (11th Cir. 2020) (quoting Guinn, 238 U.S. at 364–65).

160

Id. (quoting Guinn, 238 U.S. at 364–65).

161

Id. at 1040.

https://scholarship.law.upenn.edu/jlasc/vol24/iss3/2

TRANSGENDER AND GENDER-NONCONFORMING VOTING RIGHTS AFTER BOSTOCK

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CONCLUSION

Transgender and gender-nonconforming voting rights are an urgent matter. It is long past

time for transgender and gender-nonconforming voters to be accorded equal dignity and respect as

equal participants in the political process. The joint operation of voter ID laws and restrictive laws on

changing identity documents reifies unjust gender norms, subjects voters to harassment and

intimidation by bigots, and disenfranchises thousands of voters every year, who either cannot jump

through the hoops necessary to obtain an acceptable form of voter ID with an accurate gender marker

or, in view of these barriers to voting, discourage transgender and gender-nonconforming voters from

participating in the political process at all. This article has tried to use the holding and analysis of Bostock

as an opportunity to forge a path to tear down these unjust laws.

Published by Penn Carey Law: Legal Scholarship Repository, 2021