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Tuesday, 1 June 2021

The Problems With Age-Based Laws: Do We Need To Draw A Line?



Age-based laws are everywhere. Age determines whether you can vote, work, drink, travel, make healthcare choices, decide who to have relationships with, be criminally punished, and so on. 

Age-based laws affect almost every aspect of life. But should they? 

In this post, I argue that there are significant problems with age-based laws. 

And that we should recognize these problems and consider possible alternatives. 


Do We Need To Draw An Age Line? 

The U.S. Supreme Court, in a case about youth and the death penalty, held that: "The qualities that distinguish juveniles from adults do not disappear when an individual turns 18... However, a line must be drawn."

But is this true? 

Do we really need to "draw a line?" Are age-based classifications even necessary? 

And are there problems with restricting rights based on age? 

Many adults seem to think it is common sense that children should not have rights like adults do. But when we dig deeper, this "common sense" gets pretty flimsy. 

So why, exactly, are children denied their rights? Why do we draw a line? And how is that line chosen?  

This post explains why we should critically question age-based laws


Age-based Laws Are Inconsistent and Based on Flimsy Logic 

As one example of the flimsiness of age-based laws, we might ask why, in Alaska, you can get married at age 14, but you can't work most jobs. 

You can't make most decisions about your own health care. And you can't vape until you're 21. But you can go to war at age 18. How does this make any sense?  

As another example, consider: Why shouldn't kids be allowed to vote? Many adults would say it's because kids are uninformed. But many adults are also uninformed -- that doesn't mean they lose their rights. And many kids are very informed, but they still don't get the right to vote. 

There are many other arguments for why youth should have the right to vote. I just use this as a starting point to get us thinking critically about age-based laws and how they stand on shakier ground than many people realize. 

Below, I will summarize some of the main arguments criticizing age-based laws. 

But first, we need to understand how and why age restrictions came about in the first place. 


History of Age-based Laws 

This is a really complicated historical question. To begin with, like race or gender, childhood is not biological; it is a social construction. For example, in some cultures, 13-year-olds are seen as adults; in others, even 20-year-olds are still considered youths. 

The legal boundaries of childhood have changed over time. But for the past few hundred years, children have basically been considered the quasi-property of their parents. Currently, in the U.S., children aren't considered property, but parental rights are very powerful and basically dominate the wishes of children. That domination is backed up by the legal system. 

Another aspect of legal restrictions on children is child protectionism. This really started in the early 1900s with laws banning child labor to keep children out of unsafe factories where they were exploited. 

Today, in addition to age-based work restrictions, protection laws arguably include things like curfew, truancy laws (mandatory school attendance), the driving age, and restrictions on alcohol and tobacco. 

Protection is one of the main reasons used by adults to justify denying rights to children. This is also tied to paternalism. 


Problems With Paternalism 

Paternalism can be described as a belief or action that limits a person's or group's liberty or autonomy with the intention of promoting their own good. With regard to youth, it is the adult belief that adults know better than children what children need; that children should be controlled by adults because that is what is best for children. 

This type of paternalism has shown up throughout history in problematic ways. In the paper, Children's Oppression, Rights, and Liberation, legal scholar Samantha Godwin points out that in the mid-18th century, many people believed that women and non-white people should similarly be under the control of private individuals (husbands and slave-owners). White men and slave-owners believed that this was for the benefit of the oppressed people. And they would have found it counter-intuitive to recognize equal rights and freedom under the law for women and Black people because they thought that women and Black people were inferior. 

So when people say that children's liberation is counter-intuitive, we should critically question why they believe that. Because, as Godwin points out, those with relative power and status are historically not the best judges of the interests of oppressed people when it comes to changing the social hierarchy. 

Moreover, Godwin has argued that paternalism creates a double standard because even adults who are clearly not capable of acting in their own best interests still generally get to exercise their rights. But youth are denied rights even when they clearly are capable of acting in their own best interests. 


Questioning Age-Based Laws

There are many good reasons to question age-based laws. I'll discuss five of them here. 

First, we already have laws that call age-based restrictions into doubt. In most states, legal minors can get abortions. They can also have kids and get married. These are significant responsibilities that youth are afforded. This suggests that increased rights should extend to other areas of the law as well. For example, a teenager can start a family and have kids, but it is difficult to raise children if they can't get a good job because of age restrictions. 

Second, problems with age-based laws are exposed by the example of independent children -- the millions of young people who live independently from traditional families. This includes street children, unaccompanied migrant children, orphaned children, and many others. 

The law typically restricts children's rights to do things that require making mature decisions. But, as one legal scholar points out, "independent children are often making very mature decisions under the most difficult circumstances." Independent children live largely autonomously, and therefore challenge typical notions of children as dependent and incapable. But the law fails to recognize this reality. 

Third, there is plenty of evidence that even very young children can make mature, rational decisions, particularly in the healthcare context. For example, Priscilla Anderson has documented examples of children as young as two years who can name their cancer drugs and display moral and intellectual understanding of their treatment and nine-year-olds who demonstrate understanding of long-term consequences [1]. Alderson points out that even babies are able to "express realistic views such as happiness or anxiety very strongly." Other research has shown that children seem to have sufficient understanding to make treatment decisions by age nine [2]. 

This evidence shows that even very young children can think long-term and understand complicated issues that affect them. And it calls into question the assumption that children shouldn't be allowed to make serious decisions about their lives. However, it also plays into the competency debate, which is arguably something we should avoid altogether (see below). 

Fourth is one of my favorite examples -- unschooling. Unschooling is basically homeschooling but with no curriculum or plan. Unschoolers do what interests them and learn through living. One of the justifications for forcing kids to attend school is that it is in their best interests. But unschooling shows that for many kids this isn't true. In fact, long-term studies of unschooling show very high levels of life satisfaction for people who were unschooled. This shows how youth do often know what is in their best interests. And this challenges paternalistic age-based control

Fifth, competency and capacity are not simply consequences of age. Rather, competencies are acquired through experience and culture. In other words, capacity and competency are not age-based; they are shaped by environmental factors. For example, you don't learn to be responsible because you turn 18; you learn to be responsible because you are given more chances to be responsible. This means that if we allow children to have more responsibility and autonomy, they will be better able to develop those skills.  

A related issue is that competency and capacity are culturally constructed. That is, competency is a standard that is set up by those with power (in this case, adults and able-bodied individuals). This means that it can operate as a gate-keeping mechanism that marginalizes those who don't meet the standards of competency. 


Responding to Common Concerns 

Some of you might not be convinced. I get that. 

You might say, okay, I hear you, but aren't children fundamentally different? Doesn't science tell us that? Don't we still have to draw a line somewhere? 

These are important questions, so let's dig into them. I'll briefly address six common concerns. 

First, even the psychologists who study the youth brain can't prove that the differences between youth and adults are the result of some "inherent" biology, rather than social or cultural factors. In other words, when we treat children like children -- by limiting their rights and actions -- then of course we should expect to see their brains develop differently. Age-based laws might be contributing to the differences between youth and adult brains. 

Second, one might ask: But aren't children's brains still developing? Of course. But that is true for all brains -- the human brain never stops changing and developing. And the teen brain actually outperforms adult brains in many contexts.  

Third, one might say that young children are biologically much less capable than adults. And that infants and toddlers couldn't even use some of their rights. That may be true, but even if very young children are not able to exercise their rights independently, this is not a reason to deny them rights. People can hold rights that they don't exercise, like the right to vote for adults. If anything, it would be a reason to provide more support so they can exercise their rights. We already do this in many other situations. For example, differently-abled adults are provided with reasonable accommodations in various aspects of life, including voting. We could use a similar approach with children. 

Fourth, even if, on average, most young people were less rational or less intelligent than most adults, that wouldn't be a good reason to restrict their rights. That argument would mean that we should give more rights to people who are more intelligent and rational -- a position that is contrary to ideas of democratic freedom and equality. 

Fifth, the age of 18 (or another age limit) is arbitrary and unfair. Young people are people -- just like those over 18. Young people are humans who deserve dignity and human and civil rights. Why should they have their rights and dignity denied? Because we have to "draw a line?" That seems unjust. Especially in situations where serious autonomy interests are at stake -- like with psychotropic medication. 

Sixth, even if you had to draw a line for certain rights, you could do it based on competence, like we already do with driving. Instead of using age as a (poor) proxy for competence, we could measure competency directly for the given right. 

Of course, competency is problematic. For example, see the voting tests from the Jim Crow South, which were explicitly designed to exclude Black voters. Or, consider current laws restricting the voting rights of people convicted of felonies, which are based on an assumption that those people are not competent to vote. These examples show how competency testing can be used by those in power as a tool of oppression to further exclude marginalized people. 

One could easily imagine how even well-meaning adults might construct competency laws that disenfranchise and discriminate against young people and other people who don't meet hetero-normative standards of competency and capacity. 

Perhaps a better approach is to conclude that no one should be denied rights based on age or other arbitrary markers. And if someone wants to exercise a right, we should provide the supports to make that happen


The Tricky Part 

There are some aspects of our society that make challenging age-based laws a bit tricky. 

For example, parents are legally responsible for their children. A parent who lets their child roam free may be criminally liable for neglect or abuse. Same with teachers. 

It's difficult for adults to give kids more freedom because they are afraid of the legal consequences for themselves if something goes wrong. 

Also, parents are legally obligated to support their children. This creates a complicated situation because, for example, a 13-year-old can't contribute much financially to the household (because they are denied almost all opportunities to work), but they are using a lot of resources. 

This can create conflict because a young person might not want to follow their parent's rules, but the parent still has to support the young person. Even if the young person is cruel and manipulative toward their parents, the parent still has a legal obligation to support them. This puts both parties in a difficult position. 

One solution is to do away with the property-like parental rights currently in place. Children, like all people, are vulnerable and require support. But the fact that children may need adult support to survive doesn't mean that the adult should have control over the child's actions and life. 

Another part of the solution is to make sure that young people (and all people) have their basic needs met (e.g., housing, food, water, healthcare, access to education). 

This way, a youth could just leave the home (or school, etc.) when there is conflict. This would help remove the need for age-based laws that give adults authority over youth in order to maintain unequal power structures. And it would greatly reduce unnecessary and traumatic conflict. But it would also require more support from the state or communities to ensure that young people's needs are met. 

Another complicated issue is the age of consent, which I have previously discussed on this blog


Alternatives and Conclusion 

Some legal scholars have argued that age-based laws should be presumed unconstitutional based on equal protection grounds. They would be subject to strict scrutiny and the burden would be on the government to show that the law or policy is narrowly tailored to achieving a compelling government interest. This would be difficult for the government because reasonable alternatives exist.  

Some people have proposed competency testing as an alternative to age-based classifications. In his book Teen 2.0, psychologist Dr. Robert Epstein argues that youth could gain rights by showing that they are competent. This might work in a limited number of situations, like driving (which already uses competency testing). However, as I pointed out above, this approach has problems of biases and exclusion, among others. It may just perpetuate an ageist and ableist legal system.

Instead, I argue that we should focus on the presumption that age-based laws are illegal. In general, no one should be denied rights because of their age. 

Of course, this will require certain supports and accommodations to ensure that young people can exercise their rights. 

One way to provide this support, as proposed by Godwin, is to have child agents to facilitate supported decision-making. These could be older youth or adults who could help younger children make and communicate their decisions. That way, young people could retain their rights and express their interests and also have the support necessary to make informed choices.

In conclusion, age-based laws are largely inconsistent and irrational. They often harm, rather than help, young people. And they violate principles of equality and liberty. 

However, there are alternatives. We could create a society where the rights of individual young people are respected, while still supporting young people as they grow and develop. 

The question is whether we can muster the political will necessary to change the current regime. 


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[1] Priscilla Anderson, Young Children’s health care rights and consent, in The new handbook of children’s rights–Comparative policy and practice, Bob Franklin ed. 157 (2002).

[2] Jacinta Tan and Jorg Fegert, Capacity and competence in child and adolescent psychiatry, 12 Health Care Analysis 285, 288 (2004). 

2 comments:

  1. It’s tricky because many of the examples you give as alternatives to voting exclusion (competency tests, felons losing the right) have been tested in other forms and Are almost always terribly problematic. Perhaps a focus on examples of where extending voting and other rights has restructured our understanding of who should be allowed to vote and have rights?

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    1. Zach, thank you for the thoughtful comment. I went back and edited the post after thinking about your points. I emphasized the problems with competency, and how we might think about a more inclusive alternative, including providing supports in situations where children don't have the ability to independently exercise rights (as we already do in other contexts in society with differently abled adults, for example).

      In particular, I agree with you that it's important to recognize how problematic competency testing has been in many situations. And I think that's correct that expanding rights over time has shifted, and can shift, perceptions about who counts as a person and a rights-holder.

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