Should the Drinking Age Be Different for Men and Women?
Exploring whether laws should be gender blind.
Reviewed by Abigail Fagan
June 1, 2021
In a famous Supreme Court case, Craig v. Boren, at issue was an Oklahoma statute that said young women could buy “non-intoxicating” beer (which had 3.2% alcohol) at the age of 18, but young men had to be 21. The Supreme Court decided in this case that equal protection under the 14th amendment meant you cannot discriminate between men and women in drinking age, making this a classic case in sex discrimination.
The Supreme Court is wary of laws that draw lines between people based on race or sex or certain other classifications (“suspect classifications”); if laws do so, the government has to have a really good reason (a “compelling” state interest), and the law has to be “narrowly tailored” to fit the objective of the law, without involving too many other restrictions or distinctions.
Justice Ginsburg and Equal Protection for Men and Women
We can mostly thank Justice Ruth Bader Ginsburg, of blessed memory, for convincing the Supreme Court that gender discrimination should be viewed with “heightened scrutiny” (though gender-based laws often don’t get quite the high level of “strict” scrutiny” that racially based laws often do; the 14th Amendment is, after all, a “Civil War amendment”.)
A Supreme Court case she wrote the majority opinion for was instrumental in treating men and women the same under the law. In this case, women had been excluded from admission to the Virginia Military Academy, and Justice Ginsburg wrote that even if few women would be interested in the macho and militaristic education there, the state could not exclude the ones that did.
When it came to the drinking ages case, the Supreme Court likewise decided that we cannot discriminate between men and women in ability to buy this barely alcoholic beer. Luckily, when it comes to drunk driving, we can make that equally illegal for both men and women, treating them the same.
As a person who values fairness and treating people equally, I’ll drink to that.
Gender Difference Statistics vs. Equal Protection
But as a statistically trained social psychologist who also knows about sex differences, the case made me put down my beer and think. A statistic cited by the Court in this case showed that 0.18% of females but 2.0% of males between 18-20 were arrested for alcohol related driving offenses. I found that to be a sobering statistic: Young men were more than eleven times as likely to be arrested for drinking and driving than young women.
By way of context, most group differences in psychology, including gender differences, are so small that members of different groups are basically indistinguishable and you need huge sample sizes to detect the group differences. However, the Supreme Court decided that while the disparity in drunk driving between men and women “…is not trivial in a statistical sense, it hardly can form the basis for employment of a gender line as a classifying device.”
Compelling Sex Differences: The Young Male Syndrome
Just how big of a sex difference would there need to be for the Court to be prepared to draw lines based on sex? Granted, certainly not every young man drinks and drives—but how strong does a correlation need to be before we should have our laws reflect differing propensities between men and women?
When it comes to males engaging in risky behavior like drinking and driving, the case made me think about the Young Male Syndrome, identified by the evolutionary psychologists Margo Wilson and Martin Daly. Young men are particularly likely to engage in risky and dangerous behaviors, so as to garner social status and attract mates.
This theory helps to explain why young men are prone to drinking and driving, along with other risky behaviors to show off and impress other males to compete with them (intrasexual competition), and to attract women (thus the theory thought-provokingly implies young women may select males to mate with, based on this apparently bone-headed behavior). Not only is there a specific statistic that young men are much more likely to drive drunk, but there is also a compelling theoretical explanation for this gender difference, along with a broader pattern of risky behavior.
Should the Law be Blind to Gender?
So, one of the questions I now ponder when I drink — and am careful not to drive — is how much our laws should be gender-blind, and how much our laws should take into account strong and meaningful differences between the sexes, in the rare cases where those exist.