By F. Andrew Wolf, Jr.
Supreme Court Associate Justice Ketanji Brown Jackson stirred the cauldron of constitutional discourse when she compared 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. But comparing sex changes for trans kids to interracial marriage between consenting adults is intellectually dishonest. It’s an offense to the conscience.
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 Virginia ban on interracial marriage that Loving struck down in 1967.
Justice Jackson on Tennessee’s Trans Ban
“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 said. “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 the oral arguments, Jackson spoke (between nervous chuckles) of her “real concern.” The justice added: “I’m suddenly quite worried about the role of the court questions and the constitutional allocation of authority concerns.”
Counterpoint From Court Conservatives
The court’s conservative justices responded, hammering away repeatedly at the idea that 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,” Chief Justice Roberts interjected.
Genuine Confusion, or Ideological Manipulation?
Jackson’s argument, essentially, was that stopping a “trans” minor (who often may simply be a confused adolescent) from undergoing irreversible medical treatments to “change genders” equates to Virginia lawmakers banning interracial marriage in the 1960s.
It seems 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. That said, 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:
Blackburn: “Can you define what a woman is?”
Jackson: “No. I can’t.”
Blackburn: “You can’t?”
Jackson: “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. 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 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 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 sex changes for trans kids to the civil rights struggles of the mid-20th century, Jackson is attempting to frame the issue preemptively 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 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.
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Andrew Wolf, Jr. is director of The Fulcrum Institute, an organization of scholars dedicated to the classical liberal tradition. He has also been published stateside in American Spectator, The Thinking Conservative, and American Thinker, as well as abroad in International Policy Digest, Times of Israel, and The Daily Philosophy, among others.
