Supreme Court Justice Ketanji Brown Jackson, who would not define a “woman” in her confirmation hearing, suggested in oral arguments Wednesday that a Tennessee law banning puberty blockers for minors constitutes sex discrimination.
Jackson made her comments as the parties presented their cases in United States v. Skrmetti. The Biden-Harris administration is challenging the law, arguing that because it deals with classifications of sex, it should be subject to heightened scrutiny.
Under the extensive jurisprudence developed by the Court concerning civil rights and the Equal Protection Clause of the Fourteenth Amendment, any distinctions of race by the government must be subject to what is called “strict scrutiny” if they are to pass legal muster. Distinctions of sex are subject to a lower level of scrutiny, called “intermediate scrutiny.” Other distinctions are subject to “rational analysis” scrutiny, which simply asks whether the government had a rational purpose in enacting the law in question.
The Biden-Harris administration argued that the Tennessee law, which was upheld by the Sixth Circuit of the U.S. Court of Appeals, should be remanded back down for analysis under heightened scrutiny, i.e. the intermediate scrutiny standard in sex classification cases.
Tennessee Solicitor General Matthew Rice argued that heightened scrutiny was not necessary because the law did not refer to sex. Both boys and girls would be protected by the ban on puberty blockers, he said, meaning there was no distinction.
Justice Jackson, who infamously refused to define what a “woman” is during her confirmation hearing, pushed back.
She said that the very fact that a girl who wanted to become a boy, or a boy who wanted to become a girl, would not be able to obtain puberty blockers meant that the law referred to sex and therefore had to pass heightened scrutiny.
Rice disagreed, saying that the same drugs were still available to girls and boys who experienced “precocious” puberty — i.e. puberty at too early an age — and wanted to delay it. The point was not the sex of the children, he said, but that the same drugs that would simply delay the process of sexual maturation in a child who wanted to remain the same gender would cause irreparable harm when used to change that child’s gender identity.
Jackson pushed back, noting that Rice was still referring to sex, even if describing it as part of a different medical purpose. Rice responded that at some point it was impossible to avoid noting biological sex, but insisted that the law did not.
Jackson tried to argue that Rice’s approach was similar to that adopted by defenders of laws against interracial marriage, which the court struck down in Loving v. Virginia (1967). There, too, she said, the Virginia law in question did not apply differently to members of different races, but nevertheless upheld racism.
Tennessee’s argument, she said, threatened the entire foundation of Equal Protection jurisprudence, including landmark cases on racial equality.
Jutice Samuel Alito pushed in the opposite direction, noting that transgender identity, unlike sex or race, was not an “immutable” category. American Civil Liberties Union (ACLU) attorney Chase Strangio — the first openly transgender lawyer to argue before the court — tried to dodge Alito’s question, but ultimately had to admit that transgender individuals could change their minds.
The case is United States v. Skrmetti, Supreme Court of the United States, No. 23-477.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of The Agenda: What Trump Should Do in His First 100 Days, available for pre-order on Amazon. He is also the author of The Trumpian Virtues: The Lessons and Legacy of Donald Trump’s Presidency, now available on Audible. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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