The Impermissibility of Sex as a Voter Qualification

*J.D., University of Virginia School of Law, 2023 (they/them/theirs). The idea for this Note was sparked by two things: my own experiences at the polls as a trans, nonbinary voter, and a course I took at UVA, Regulation of the Political Process. For his advice and encouragement, I am grateful to Professor Michael Gilbert, who supervised this Note (and taught me the ins and outs of election law as a 2L). For their advice on the substance and style of this Note, I am indebted to my friends Tom Schnoor, Rachel Parrish, Chad Borgman, and Riley Segars. Additional gratitude is due to the editors of the Virginia Law Review, especially Harrison Gordon, Emma McLaughlin, Mackenzie Kubik, Anne Crumley, and Jordan Allen. The status of state voter ID laws surveyed in this Note is subject to change. This Note provides up-to-date information as of April 1, 2024. Show More

Election officials across the country are turning away voters when they perceive a mismatch between the sex listed on the voter’s identification and the voter’s gender presentation. The problem is particularly acute for transgender and gender nonconforming voters. This Note presents a fifty-state survey of voter ID laws and shows that there is no legal basis for using a mismatch or perceived mismatch between a voter’s documented sex and their gender presentation to deny the franchise. No language in any state statute indicates that an individual’s sex is required as evidence of their identity. Furthermore, this Note argues that changing the statutes to require sex as an identity qualifier would violate the Equal Protection Clause of the Fourteenth Amendment in at least two ways. First, such a requirement would amount to sex discrimination as that term is best understood in light of Bostock v. Clayton County. Second, under the Supreme Court’s voting rights jurisprudence, such a requirement would constitute an invidious restriction on the right to vote, triggering strict scrutiny under Harper v. Virginia Board of Elections. Even if it did not amount to such a restriction, the requirement of sex as a voter qualification would still be struck down under the sliding scale scrutiny of the Anderson-Burdick doctrine. Thus, hinging the right to vote on the verification of one’s sex is almost certainly unconstitutional.

“What is most important is to cease legislating for all lives what is livable only for some, and similarly, to refrain from proscribing for all lives what is unlivable for some.”¹ 1.Judith Butler, Undoing Gender 8 (2004).Show More

Introduction

Jane Doe, like many other Mecklenburg County, North Carolina residents, set out to cast her ballot in the county’s November 2019 general election.² 2.Bruce Henderson, Transgender Voter Sues NC, Mecklenburg Election Officials for Questioning Identity, Charlotte Observer (Feb. 12, 2020, 5:30 PM), https://www.charlotte​observer.com/news/politics-government/election/article240227061.html [https://perma.cc/53​VN-8VP7].Show More A run-of-the-mill local race in a state without a voter ID requirement should have been nothing special; a simple trip to the polls. However, when she attempted to cast her ballot, the chief precinct judge stopped her and demanded to see her ID.³ 3.Id.Show More His reasoning? Her face did not match the name she provided.⁴ 4.Id.Show More Since her transition fourteen years ago, Doe had been living publicly as a woman—but rather than treating her like any other woman, the precinct judge insisted she present proof beyond that required by law to convince him she was who she said she was.⁵ 5.Id.Show More Though Doe’s license had a photo consistent with her female identity, the name on her ID—her deadname,⁶ 6.Deadname, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/​deadname [https://perma.cc/DGC3-FAVZ] (last visited Feb. 25, 2024) (defining “deadname” as “the name that a transgender person was given at birth and no longer uses upon transitioning”).Show More which she was in the process of legally changing⁷ 7.Henderson, supra note 2.Show More—was stereotypically male. The tense exchange between Doe and the precinct judge drew a crowd.⁸ 8.Id.Show More Almost an hour after she arrived at the polls, and after handing over her license to be scrutinized, Doe cast her ballot and returned to her car in tears, rushing past the bystanders who had observed her humiliation.⁹ 9.Id.Show More

Doe is not alone in facing discrimination at the polls because she is transgender. During Vermont’s 2018 gubernatorial race,¹⁰ 10.This was a historic race featuring the first openly transgender person to win a major party’s nomination for governor. Daniel Trotta, In First, Transgender Woman Wins Democratic Nomination for Vermont Governor, Reuters (Aug. 15, 2018, 12:32 AM), https://www.reuters.com/article/us-usa-election-lgbt-vermont/in-first-transgender-woman-wi​ns-democratic-nomination-for-vermont-governor-idUSKBN1L007K [https://perma.cc/TFP3-F93S].Show More a poll worker refused to provide a ballot to a transgender woman because they thought her name was fake, not believing she was really female.¹¹ 11.Kate Sosin, Trans Americans’ Voting Rights Were Already in Jeopardy. The Pandemic Threatens to Make Things Worse, The 19th (Aug. 18, 2020, 1:45 PM), https://19thnews.org/‌2020/08/trans-americans-voting-rights-pandemic/ [https://perma.cc/J4PF-LGQU].Show More Ten years ago, when first-time voter Oliver headed to the polls in Maryland, the poll worker balked, telling Oliver it couldn’t be his ID because it displayed an “F” gender marker.¹² 12.Julie Moreau, Strict ID Laws Could Disenfranchise 78,000 Transgender Voters, Report Says, NBC News (Aug. 17, 2018, 2:05 PM), https://www.nbcnews.com/feature/nbc-out/strict-id-laws-could-disenfranchise-78-000-transgender-voters-report-n901696 [https://perma.cc/3‌DG5-M864].Show More Oliver is trans masculine and, though he had legally changed his name, he had not yet updated the gender marker on his state-issued ID.¹³ 13.Id. Updating one’s gender marker can often be a more difficult and expensive process. See infra Subsection I.B.1.Show More As Oliver described it, most people perceived him as male at that time due to his physical transition. Despite the “misalignment” between his license and his gender presentation, he expected he would be able to vote and came prepared to handle any resistance at the polls.¹⁴ 14.Id. Though Maryland does not generally require registered voters to present identification, election officials will ask voters to show identification if: (1) a voter registered by mail and had not previously met the identification requirements; (2) someone in the polling place challenges the voter’s identity; or (3) the voter is registering to vote or changing their address during early voting. Voting FAQ, Md. Att’y Gen., https://www.marylandattorneygeneral.​gov/Pages/votingFAQ.aspx#7 [https://perma.cc/5UFN-7Z36] (last visited Feb. 25, 2024). Those who are voting for the first time must either present an ID or, if they do not possess any of the permitted forms of ID, they must present “a utility bill, bank statement, government check, or paycheck that shows [their] name and address and is less than three months old.” Id.Show More Though ultimately permitted to cast his ballot, Oliver was ordered to “stand aside” for over an hour while the poll workers deliberated on whether or not they would allow him to vote.¹⁵ 15.Moreau, supra note 12.Show More All three of these humiliating experiences lacked any legal grounding. In each instance, election officials exercised their discretion to verify voter identity in an unauthorized way.

Decades ago, the United States Supreme Court established that the Constitution protects the “right of all qualified citizens to vote.”¹⁶ 16.Reynolds v. Sims, 377 U.S. 533, 554 (1964).Show More This right is so central that its abridgment or denial renders all other rights, even the most basic, “illusory.”¹⁷ 17.Id. at 560 (quoting Wesberry v. Sanders, 376 U.S. 1, 17–18 (1964)).Show More And while the right to vote is arguably under attack in several ways,¹⁸ 18.See, e.g., Sophia Lin Lakin, Fifty-Seven Years After Its Enactment, the Voting Rights Act Is in Peril, ACLU (Aug. 5, 2022), https://www.aclu.org/news/voting-rights/fifty-seven-years-after-its-enactment-the-voting-rights-act-is-in-peril [https://perma.cc/H6R9-BDHZ].Show More things have reached a tipping point for transgender and gender nonconforming voters. This Note illustrates that there is currently no basis in state law to turn away a voter for a perceived mismatch between the sex listed on their ID and their gender presentation. And in the event a state attempted to enact such a law, this Note argues that it would run afoul of the Equal Protection Clause.

Part I contextualizes the difficulty transgender and gender nonconforming people face in the political process by cataloging voter ID laws across the United States and detailing the hurdles in place that make it challenging for individuals to acquire an accurate ID. Part II presents a novel analysis of these voter ID laws to show what evidence is required to verify one’s identity at the polls. This survey reveals the stark absence of any statutory language indicating that an individual’s sex¹⁹ 19.I use “sex” here and throughout to reflect the “trend in U.S. law . . . toward viewing gender identity, defined as ‘an individual’s own internal sense of whether they are a man, a woman, or nonbinary,’ as a central characteristic of legal sex.” Noa Ben-Asher, Transforming Legal Sex,102 N.C. L. Rev. 335, 335 (2024); see also Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minn. L. Rev. 831, 866–67 (2020) (“[T]he ‘new’ view of sex is premised on an ‘internal, deeply held sense’ of one’s identity. Under this view, sex ‘comes from the brain, not the body,’ from ‘between your ears, not between your legs.’ . . . And despite this confusing terminology, proponents of the new view of sex make clear that gender identity is determinative of legal sex.” (footnotes omitted)).Show More is required as necessary evidence of their identity. Nonetheless, at least some election officials are using sex as a criterion when verifying a voter’s identity. This has two consequences for transgender and gender nonconforming voters: (1) an election official may engage in sex stereotyping when evaluating a transgender voter’s ID, denying them a ballot as a result, and (2) any perceived mismatch between the voter’s gender presentation and the gender marker listed on their ID can be used as a reason to deny them the right to vote. No matter the motivation, such an exercise of discretion is impermissible, having no basis in state law.

The statutes surveyed in Part II could of course be changed. Assuming states started to require sex as a qualifier of voter identity, Part III argues such a regime would violate the Equal Protection Clause of the Fourteenth Amendment in at least two ways. As Section III.A addresses, such a requirement can be classified as sex discrimination following the Supreme Court’s decision in Bostock v. Clayton County.²⁰ 20.140 S. Ct. 1731 (2020).Show More Because Bostock “fundamentally redefin[ed] what it means to discriminate on the basis of sex under the Equal Protection Clause,”²¹ 21.Susannah Cohen, Note, Redefining What It Means to Discriminate Because of Sex: Bostock’s Equal Protection Implications, 122 Colum. L. Rev. 407, 438 (2022).Show More its logic can be extended through the Nineteenth Amendment to protect transgender and gender nonconforming voters. Though this framework is persuasive, this Note asserts that it is not proactive in addressing the threat posed at the polls.

Section III.B posits an alternative and novel equal protection argument. At the core of the Supreme Court’s voting rights jurisprudence is the maxim that all voters must be accorded an equal vote.²² 22.See Gray v. Sanders, 372 U.S. 368, 379 (1963) (“[A]ll who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit.” (emphasis added)).Show More This has been reinforced several times over, most notably in Harper v. Virginia Board of Elections²³ 23.383 U.S. 663, 665 (1966).Show More and Bush v. Gore.²⁴ 24.531 U.S. 98, 98 (2000).Show More Building on these cases, this Note advances two arguments: (1) requiring sex as an identity qualifier is an “invidious restriction” on the right to vote that triggers strict scrutiny under Harper and must be held unconstitutional, and (2) even if sex as a qualifier does not rise to the level of “invidious” discrimination, such a requirement will still fail when subjected to the sliding scale scrutiny of Anderson-Burdick.²⁵ 25.In Crawford v. Marion County Election Board, the Supreme Court set out the sliding scale scrutiny to be applied when evaluating restrictions on election administration set by states. 553 U.S. 181, 189–91 (2008). Courts must balance the asserted state interests for setting the restriction against the burden it places on voters. Id. at 190. Derived from two earlier cases, this process of balancing is referred to as the Anderson-Burdick test. Id.; see also SCOTUSblog, The Anderson-Burdick Doctrine: Balancing the Benefits and Burdens of Voting Restrictions, https://www.scotusblog.com/election-law-explainers/the-anderson-burdi​ck-doctrine-balancing-the-benefits-and-burdens-of-voting-restrictions/ [https://perma.cc/Q3​UC-RV23] (last visited Mar. 16, 2024).Show More To the extent sex is conceived of as a “voter qualification,” hinging the right to vote on its verification is almost certainly unconstitutional.

This Note concludes by imagining a way forward. There are simple and easily deployed measures states can take both to ensure transgender and gender nonconforming constituents have unhindered access to the polls and to promote election integrity. California is an exemplar here. Though not a voter ID state, California has promulgated guidance for its election officials that directly addresses how to handle potential questions or issues regarding a voter’s gender identity. This guidance helps rein in the discretion of poll workers and functions as a template that other states can implement. By adopting similar guidance, states would manage transgender and gender nonconforming voters more uniformly and fairly going forward. The successful voter identification system California has in place helps demonstrate why requiring sex as an identity qualifier makes little sense; rather than introducing a qualifier that may be difficult to verify or leave a state in the crosshairs of the Fourteenth Amendment, a state need only provide guidance similar to California’s to guide its poll workers in serving a diverse electorate.

1.  Judith Butler, Undoing Gender 8 (2004). ↑
2.  Bruce Henderson, Transgender Voter Sues NC, Mecklenburg Election Officials for Questioning Identity, Charlotte Observer (Feb. 12, 2020, 5:30 PM), https://www.charlotte​observer.com/news/politics-government/election/article240227061.html [https://perma.cc/53​VN-8VP7]. ↑
3.  Id. ↑
4.  Id. ↑
5.  Id. ↑
6.  Deadname, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/​deadname [https://perma.cc/DGC3-FAVZ] (last visited Feb. 25, 2024) (defining “deadname” as “the name that a transgender person was given at birth and no longer uses upon transitioning”). ↑
7.  Henderson, supra note 2. ↑
8.  Id. ↑
9.  Id. ↑
10.  This was a historic race featuring the first openly transgender person to win a major party’s nomination for governor. Daniel Trotta, In First, Transgender Woman Wins Democratic Nomination for Vermont Governor, Reuters (Aug. 15, 2018, 12:32 AM), https://www.reuters.com/article/us-usa-election-lgbt-vermont/in-first-transgender-woman-wi​ns-democratic-nomination-for-vermont-governor-idUSKBN1L007K [https://perma.cc/TFP3-F93S]. ↑
11.  Kate Sosin, Trans Americans’ Voting Rights Were Already in Jeopardy. The Pandemic Threatens to Make Things Worse, The 19th (Aug. 18, 2020, 1:45 PM), https://19thnews.org/‌2020/08/trans-americans-voting-rights-pandemic/ [https://perma.cc/J4PF-LGQU]. ↑
12.  Julie Moreau, Strict ID Laws Could Disenfranchise 78,000 Transgender Voters, Report Says,
    

    NBC

    News (Aug. 17, 2018, 2:05 PM), https://www.nbcnews.com/feature/nbc-out/strict-id-laws-could-disenfranchise-78-000-transgender-voters-report-n901696 [https://perma.cc/3‌DG5-M864]. ↑

13.  Id. Updating one’s gender marker can often be a more difficult and expensive process. See infra Subsection I.B.1. ↑
14.  Id. Though Maryland does not generally require registered voters to present identification, election officials will ask voters to show identification if: (1) a voter registered by mail and had not previously met the identification requirements; (2) someone in the polling place challenges the voter’s identity; or (3) the voter is registering to vote or changing their address during early voting. Voting FAQ, Md. Att’y Gen., https://www.marylandattorneygeneral.​gov/Pages/votingFAQ.aspx#7 [https://perma.cc/5UFN-7Z36] (last visited Feb. 25, 2024). Those who are voting for the first time must either present an ID or, if they do not possess any of the permitted forms of ID, they must present “a utility bill, bank statement, government check, or paycheck that shows [their] name and address and is less than three months old.” Id. ↑
15.  Moreau, supra note 12. ↑
16.  Reynolds v. Sims, 377 U.S. 533, 554 (1964). ↑
17.  Id. at 560 (quoting Wesberry v. Sanders, 376 U.S. 1, 17–18 (1964)). ↑
18.  See, e.g., Sophia Lin Lakin, Fifty-Seven Years After Its Enactment, the Voting Rights Act Is in Peril,
    

    ACLU

    (Aug. 5, 2022), https://www.aclu.org/news/voting-rights/fifty-seven-years-after-its-enactment-the-voting-rights-act-is-in-peril [https://perma.cc/H6R9-BDHZ]. ↑

19.  I use “sex” here and throughout to reflect the “trend in U.S. law . . . toward viewing gender identity, defined as ‘an individual’s own internal sense of whether they are a man, a woman, or nonbinary,’ as a central characteristic of legal sex.” Noa Ben-Asher, Transforming Legal Sex, 102 N.C. L. Rev
    

    .

    335, 335 (2024); see also Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minn. L. Rev

    .

    831, 866–67 (2020) (“[T]he ‘new’ view of sex is premised on an ‘internal, deeply held sense’ of one’s identity. Under this view, sex ‘comes from the brain, not the body,’ from ‘between your ears, not between your legs.’ . . . And despite this confusing terminology, proponents of the new view of sex make clear that gender identity is determinative of legal sex.” (footnotes omitted)). ↑

20.  140 S. Ct. 1731 (2020). ↑
21.  Susannah Cohen, Note, Redefining What It Means to Discriminate Because of Sex: Bostock’s Equal Protection Implications, 122 Colum. L. Rev
    

    .

    407, 438 (2022). ↑

22.  See Gray v. Sanders, 372 U.S. 368, 379 (1963) (“[A]ll who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit.” (emphasis added)). ↑
23.  383 U.S. 663, 665 (1966). ↑
24.  531 U.S. 98, 98 (2000). ↑

25.  In Crawford v. Marion County Election Board, the Supreme Court set out the sliding scale scrutiny to be applied when evaluating restrictions on election administration set by states. 553 U.S. 181, 189–91 (2008). Courts must balance the asserted state interests for setting the restriction against the burden it places on voters. Id. at 190. Derived from two earlier cases, this process of balancing is referred to as the Anderson-Burdick test. Id.; see also SCOTUSblog, The Anderson-Burdick Doctrine: Balancing the Benefits and Burdens of Voting Restrictions, https://www.scotusblog.com/election-law-explainers/the-anderson-burdi​ck-doctrine-balancing-the-benefits-and-burdens-of-voting-restrictions/ [https://perma.cc/Q3​UC-RV23] (last visited Mar. 16, 2024). ↑