Supreme Court Justice Ketanji Brown Jackson made an odd comparison on Wednesday when she drew parallels between Tennessee’s ban on gender transition procedures for minors and historical bans on interracial marriage.
Jackson made the comments while hearing oral arguments in United States v. Skrmetti. The case examines whether Tennessee’s law prohibiting medical procedures that 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.
US Solicitor General Elizabeth Prelogar argued that the state law constitutes “sex discrimination,” as it factors the minor’s biological sex into treatment decisions, Fox News reported. Following Prelogar’s remarks, Jackson highlighted Loving v. Virginia, the 1967 Supreme Court decision that struck down Virginia’s ban on interracial marriage.
“Interesting to me that you mentioned precedent, because some of these questions about sort of who decides and the concerns and legislative prerogatives, etc., sound very familiar to me,” Jackson said. “They sound in the same kinds of arguments that were made back in the day—50s, 60s—with respect to racial classifications and inconsistencies. I’m thinking in particular about Loving v. Virginia, and I’m wondering whether you thought about the parallels, because I see one as to how this statute operates and how the anti-miscegenation statutes in Virginia operated.”
Jackson elaborated on what she called a “potential comparison” between Tennessee’s law and the historical Virginia statute, questioning whether Virginia could have defended its interracial marriage ban using reasoning similar to Tennessee’s.
“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,” Jackson 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.”
The current case is the most significant regarding transgender ideology faced by the Supreme Court. It comes as conservatives have continued to argue that so-called “gender-affirming” treatments for minors cause irreversible damage and that minors do not have the clarity to make these lifelong decisions.
