Supreme Court Justice Ketanji Brown Jackson did not define “female” during his confirmation hearing, but during oral argument Wednesday he said a Tennessee law banning puberty blockers for minors constitutes sex discrimination. suggested.
Mr. Jackson made the comments as the parties filed their lawsuit. USA vs. Scumetti. The Biden-Harris administration is challenging the law, saying it deals with gender classification and should be subject to strict oversight.
Under extensive precedent developed by the Court regarding civil rights and the Equal Protection Clause of the Fourteenth Amendment, government racial distinctions are subject to so-called “strict scrutiny” in order to pass legal scrutiny. I have to take it. Gender distinctions 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 reasonable purpose for enacting the law in question.
The Biden-Harris administration argued that the Tennessee law, upheld by the U.S. Court of Appeals for the Sixth Circuit, should be sent back for stricter scrutiny, an analysis under the intermediate standard of scrutiny in gender classification cases.
Tennessee State Solicitor General Matthew Rice argued there was no need for increased oversight because the law does not mention sex. He said both boys and girls are protected by the ban on puberty-blocking substances, meaning there is no distinction.
Judge Jackson, who infamously refused to define what a “woman” is during her confirmation hearing, pushed back.
She said the very fact that girls who want to be boys, or boys who want to be girls, can't get puberty blockers means the law mentions sex and therefore has to go through intense scrutiny. Ta.
Professor Rice disagreed, saying the same drugs were still available for girls and boys who experienced “precocious” puberty, or puberty that came too early, and wanted to delay it. What is important is not the gender of the children, but the same drug that simply delays the process of sexual maturation in a child who wishes to remain the same gender, but is irreversible if used to change that child's gender identity. It could cause untold harm, he said.
Jackson countered by pointing out that Rice was still referring to sex, even if he explained that it was part of a different medical purpose. Rice responded that it was impossible to avoid referring to biological sex at some point, but argued that the law says otherwise.
Jackson tried to argue that Rice's approach was similar to that taken by defenders of laws banning interracial marriage, which the court invalidated in its ruling. Loving vs. Virginia (1967). There, too, she said the Virginia law in question does not apply to different races, but still supports racial discrimination.
Tennessee's claims threaten the entire foundation of equal protection jurisprudence, including landmark cases on racial equality, she said.
Jutis Samuel Alito pushed in the opposite direction, pointing out that transgender identity, unlike gender or race, is not an “immutable” category. Chase Strangio, an attorney with the American Civil Liberties Union (ACLU), the first openly transgender lawyer to argue in court, tried to avoid Alito's questions, but ultimately I had to admit that gender individuals can change their minds.
The case is USA vs. ScumettiUnited States Supreme Court, No. 23-477.
Joel B. Pollack is a senior editor at Breitbart News. Breitbart News Sunday Sunday nights from 7:00 PM to 10:00 PM ET (4:00 PM to 7:00 PM PT) on Sirius XM Patriot. he is the author of Agenda: What should President Trump do in his first 100 days?available for pre-order on Amazon. He is also the author of Trumpian Virtues: Lessons and Legacy of the Donald Trump Presidencynow available on Audible. He is the recipient of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter @joelpolak.
