Child Sex Change Bans Are Like Interracial Marriage Bans

Supreme Court Justice Ketanji Brown Jackson stirred the waters of constitutional debate on Wednesday by likening Tennessee’s ban on child sex-change procedures to Virginia’s infamous interracial marriage prohibition struck down in 1967.

As the Independent Journal Review reported, the remarks were made during oral arguments in United States v. Skrmetti, a case scrutinizing whether Tennessee’s law infringes on the Equal Protection Clause of the 14th Amendment.

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.

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Justice Jackson brought up the Supreme Court’s landmark Loving v. Virginia decision, which invalidated Virginia’s miscegenation statutes.

“What was most interesting about the potential comparison to Loving is that in that case, everyone seemed to concede upfront that a racial classification was being drawn by the statute,” Jackson said. She noted that the 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, “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 mused whether Virginia could have defended its segregationist policies by adopting the same classification logic Tennessee employs.

Her comparison raised eyebrows, given the historical context of Loving v. Virginia. Virginia’s law, which exclusively targeted interracial unions involving white individuals, was deemed an explicit tool of white supremacy.

Former Chief Justice Earl Warren’s decision left no ambiguity: “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.”

Critics argue that Jackson’s analogy oversimplifies the issue, ignoring the moral and scientific debates surrounding gender ideology. They contend the Tennessee law is rooted in protecting minors, not enforcing societal hierarchies.

Adding weight to the discussion, the Sixth Circuit Court of Appeals upheld Tennessee’s law in September 2023. The court ruled that transgender individuals do not constitute a politically powerless or immutable group under constitutional law.

Proponents of the ban assert that the court’s decision reflects the public interest in shielding children from what they call “experimental” medical practices.

Jackson’s remarks underscore a broader ideological divide in America’s culture wars, particularly as they intersect with judicial philosophy. Whether her analogy resonates or alienates remains to be seen, but the Tennessee case promises to further ignite national debates over the boundaries of constitutional protections.