When Individual Differences Demand Equal Treatment: An Equal Rights Approach to the Special Needs of Girls in the Juvenile Justice System

Abstract

This article argues that disparities girls face in the juvenile justice system can be remedied by employing equal rights analysis including the federal Equal Protection Clause, state Equal Rights Amendments, and Title IX of the Education Amendments of 1972. Unlike the adult prison context, in which equal protection and Title IX have had limited success, the juvenile justice system is premised on individualized rehabilitative justice. Where differences between male and female offenders have undermined equal rights challenges in the adult arena, in the juvenile justice system differences among individual youth are acknowledged, and dispositions are driven by those individual needs. Under that individualized approach, equality means attending to the gender specific needs of girls. The article addresses the two situations in which the juvenile justice system treats girls most inequitably: development of specialized programs for boys that exclude girls, and providing girls with the same programming as boys without modification to address gender needs.