Justice Ketanji Brown Jackson compares sex changes for children to interracial marriage, activist ACLU attorney agrees

In questions during oral arguments on Wednesday, Justice Ketanji Brown Jackson showed how deeply she misunderstood the case at hand by deciding to conflate gender identity with race. The case, US v. Skrmetti, sees the Department of Justice and the ACLU taking the state of Tennessee to court over a law that bans medical sex changes for minors. Jackson argued that child sex changes are akin to interracial marriage in law. 

In her attempt to unearth the basis of the case, Jackson brought up the 1967 Loving v. Virginia, in which an interracial couple sued to have their marriage recognized by the state. Jackson said that the case about banning medical sex changes for minors and the case about the legality of interracial marriages were "sort of the same thing" in that both were about innate characteristics. 

"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 Tennessee is in this case," Jackson said

Solicitor General Elizabeth Prelogar, who has been leaning into the idea that the Tennessee law is discriminatory on the basis of sex, agreed with Jackson's assessment, saying "Yes, I think that's exactly right, that there is absolutely a parallel between any law that says you can't act inconsistent with a protected characteristic."

Both Prelogar and Jackson have made the leap that to be trans is the same thing as being of a certain race, something immutable and unchangeable, and in the case of trans, a condition that requires a person to undergo medical treatment to enable them to appear as the opposite sex.

It wasn't until Justice Samuel Alito brought up the question of trans as an immutable characteristic, however, that it was addressed outright. Alito asked ACLU attorney Chase Strangio, who is a female who presents as a man and identifies as trans, "Is transgender status immutable?"

The question speaks to the heart of what many destransitioners have said, those who have undergone medical sex changes, whether with drugs, surgeries, or both, and realized with profound regret that changing sex is not actually possible. Those detransitioners, many of who were protesting and speaking outside the court on Wednesday, had turned to mental and medical professionals when they were experiencing extreme distress and were sold the false bill of goods that is gender-affirming care. Strangio had already admitted during questioning that there is a risk of regret, though Strangio said it was far less than reports indicate, parsing the time frame of when sex change drugs are administered.

Strangio did not go so far as to say that it is an immutable characteristic, instead bringing up the concept of discrimination against that given identity. "I would say that under this Court's consideration of that criteria," Strangio said, "if it is a distinguishing characteristic. Transgender people are characterized by having a gender identity that differs from their birth sex. That is distinguishing and discrete. And that also within the characterization, I would also point, if I could, to the history of discrimination, and there are many examples of in law, discrimination, exclusions from the military, criminal bans on cross-dressing and others."

Whether or not the condition is immutable, unable to be changed, or innate, is essential to Jackson's comparison. In Loving, the question was one of interracial marriage and denying people basic rights in order to keep races separate. In Skrmetti, the question as framed by the plaintiffs is that it is discriminatory based on sex to provide specific pharmaceuticals for some medical conditions but not to ease the mental distress of gender dysphoria. 

Jackson brought up the Loving case again with Strangio, saying that just as in Skrmetti, the Virginia attorneys in Loving who opposed interracial marriage used scientific arguments in their attempt to uphold the prohibition. In Skrmetti, science is also part of the argument, but in this case, the argument from the defendants in Tennessee is that children cannot consent to the very serious consequences and side effects of sex changes, namely infertility, the loss of sexual function, body mutilation, and the development of irreversible secondary sex characteristics of the opposite sex.

The arguments in favor of child sex changes is that a child will grow up without appearing as their natal sex, which will make it easier for them to pass in adulthood. But of course, with regret as a possibility, those changes could be found to be horribly unwelcome, as they have been for so many detransitioners. "I'm worried that we're undermining the foundations of some of our bedrock equal protection cases," Jackson said.

Strangio upheld Jackson's assertion that race and trans are similar conditions under the law. "I think one of the things that's happening in this case," Strangio said, "is we're seeing a lot of concerns that come in at step two of the analysis being imported into that threshold question of whether a classification has been drawn in the first instance, concerns about real differences between males and females.

"That is exactly what heightened scrutiny is intended to test. In the application of heightened scrutiny, if Tennessee can have an end run around heightened scrutiny by asserting at the outset that biology justifies the sex-based differential in the law that would undermine decades of this Court's precedent," Strangio said.

In other words, the two seem to believe that there is no difference between discriminating against interracial couples who choose to get married and saying that children should not be subjected to mutilation prior to maturing as adults. For Strangio, allowing girls to take estrogen for medical reasons but not allowing boys to take estrogen for mental health reasons is sex-based discrimination, and allowing boys to take testosterone for medical reasons but denying testosterone for girls who want to be boys is akin to preventing loving couples from marrying.