Supreme Court Justice Ketanji Brown Jackson compared child sex change bans to interracial marriage prohibitions on Wednesday.
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. She likened the current issue to the 1967 Loving v. Virginia Supreme Court case that reversed Virginia’s rule barring interracial marriage.
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“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. But you know, as I read … the case here, you know, the court starts off by saying that Virginia is now one of sixteen states which prohibited and punishes marriages on the basis of racial classifications.”
“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.”
The Virginia law referenced by Jackson solely banned interracial marriages that involved white individuals, former Chief Justice Earl Warren noted in the court’s decision to strike down the prohibition.
“There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race,” he wrote, later adding, “The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.”
The Sixth Circuit Court of Appeals upheld the Tennessee ban in September 2023, asserting that transgender individuals are not a “politically powerless” or “immutable” group.
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