Supreme Court Associate Justice Ketanji Brown Jackson stirred the cauldron of constitutional discourse last month comparing child sex-change bans to interracial marriage prohibitions.
Jackson made the remarks during a hearing for United States v. Skrmetti, a case considering whether Tennessee’s law banning medical procedures intended to enable “minor[s] to identify with, or live as, a purported identity inconsistent with the minor’s sex,” violates the 14th Amendment’s Equal Protection Clause.
As Fox News reported, the Tennessee law, enacted in 2023, prohibits medical interventions aimed at altering a minor’s biological sex to match a perceived gender identity. Its supporters argue the law safeguards children from irreversible medical decisions, while opponents claim it discriminates against transgender individuals.
During oral arguments, Justice Jackson brought up the Supreme Court’s landmark Loving v. Virginia decision. She likened Tennessee’s ban on child sex-change procedures to the 1967 Loving v. Virginia case that struck down Virginia’s rule barring interracial marriage.
“What was most interesting about the potential comparison to Loving is that in that case everyone seemed to concede up front that a racial classification was being drawn by the statute. That was sort of like the starting point,” Jackson said. “The question was whether it was discriminatory because it applied to both races and it wasn’t necessarily invidious or whatever.”
She noted that the Virginia law forbade marriages inconsistent with one’s own racial identity, questioning whether Tennessee’s restriction operates under a similar framework regarding sex and gender identity.
She further speculated, “And when you look at the structure of that law, it looks in terms of … you can’t do something that is inconsistent with your own characteristics, it’s sort of the same thing,” she continued. “So, it’s interesting to me that we now have this different argument. And I wonder whether Virginia could have gotten away with what they did here by just making a classification argument, the way that Tennessee is in this case.”
About an hour and a half into oral arguments, Jackson spoke (between nervous chuckles) of her “real concern.” The justice continued, “I’m suddenly quite worried about the role of the court questions and the constitutional allocation of authority concerns.”
The court’s conservative justices responded, hammering away repeatedly as to why courts – and not state legislatures – should be deciding whether states can prevent transgender adolescents from using puberty blockers and hormone therapy.
As oral arguments continued, members of the Supreme Court’s conservative majority seemed inclined to uphold the Tennessee law, saying that the contested scientific evidence around transgender care should be left up to state legislatures rather than judges.
“We might think that we can do just as good a job with respect to the evidence here as Tennessee or anybody else, but my understanding is that the Constitution leaves that question to the people’s representatives rather than to nine people, none of whom is a doctor,” the Chief Justice Roberts interjected.
Brown Jackson’s argument, essentially, was that allowing a minor (who often may simply be a confused adolescent) to undergo irreversible medical treatments, equates to Virginia lawmakers who wanted to ban interracial marriage in the 1960s.
It is an unfathomable contention for anyone to make. But, coming from an associate justice of the Supreme Court, it is an egregious offense to the conscience. But then, this is not the first such offense from Justice Jackson.
Americans were amazed back in 2022 during then-Supreme Court nominee Ketanji Brown Jackson’s Senate confirmation hearing. It seems she could not or rather, would not, answer Sen. Marsha Blackburn’s (R-TN) simple question: Can you define what a woman is?
Brown Jackson replied, “No. I can’t.”
Blackburn pressed, “You can’t?”
The nominee said, “Not in this context. I’m not a biologist.”
It should not be a surprise then for her comparison and (alleged concerns) to raise eyebrows – given the historical context of Loving v. Virginia. Virginia’s law, which exclusively targeted interracial unions involving white individuals, was deemed an explicit tool of white supremacy. Consider the following comments from Brown Jackson and her modern liberal colleague Associate Justice Sotomayor.
Sonia Sotomayor: “Using ‘gender-affirming care on children is like taking aspirin!”
Ketanji Brown Jackson: “If you want to ban ‘gender-affirming care’ for kids, then you’re like people who wanted to ban interracial marriage.”
But beyond the hyperbole from the left or the right there are reasons why the comparison is so contentious.
By equating these contexts, Brown Jackson and Sotomayor oversimplify the legal frameworks involved and overlook the subtle considerations unique to each case.
The Loving v. Virginia decision rested on racial classifications, which the court subjects to the highest standard of judicial review—strict scrutiny. According to the Supreme Court, these classifications directly violate the Equal Protection Clause of the Fourteenth Amendment. Gender-affirming care, however, involves medical treatments rather than purely identity-based discrimination, potentially falling under different standards of review, such as intermediate scrutiny or rational basis.
Furthermore, Brown Jackson’s argument masks a form of “Judicial Activism.”
In likening the debate over gender-affirming care to the civil rights struggles of the mid-20th century, Jackson was attempting to preemptively frame the issue as a moral and constitutional imperative.
The conservative justices on the bench argued, instead, for state legislatures to decide. Her framing could reinforce existing fears about the judiciary overstepping its role in politically sensitive matters which conservative justices, because of their views on “strict construction” interpretation of the Constitution, are keen to avoid.
It seems to this writer that Brown Jackson needs to join the rest of America in the new reality. The justice apparently has not recognized that the cultural landscape is shifting.
Under the Biden administration, the pendulum swung as far to the left as it possibly could. This demanded that even the most extreme views on race and social justice be entertained – however damaging they might be.
But November’s election sent a clear message: voters are rejecting “woke” and extreme-left policies in favor of common sense, fairness and justice.
Those who continue to focus on divisive issues like pronouns or advocating for transgender participation in women’s sports risk being left behind in this changing climate.
Unfortunately, Brown Jackson and her like-minded colleague, Associate Justice Sonia Sotomayor – who compared the risks of transgender treatments to “taking aspirin” – are appointed for life.
The law was being challenged by three families and a doctor. The plaintiffs were backed by the Biden administration.
