During oral arguments on Wednesday, Justice Ketanji Brown Jackson demonstrated a misunderstanding of the case involving US v. Skrmetti, which concerns a Tennessee law prohibiting medical sex changes for minors. Jackson compared child sex changes to interracial marriage, suggesting both relate to innate characteristics. She referenced the 1967 Loving v. Virginia case, where an interracial couple fought for marriage recognition, arguing that the underlying issues are similar.
Solicitor General Elizabeth Prelogar supported Jackson's viewpoint, claiming that laws restricting actions inconsistent with protected characteristics are discriminatory. Both Jackson and Prelogar equated being transgender with possessing an immutable characteristic like race, suggesting that transitioning is a necessary medical treatment for transgender individuals.
Justice Samuel Alito later questioned the nature of transgender status, asking if it is immutable. This question connects to the experiences of detransitioners, people who regretted their medical sex changes. Outside the court, many detransitioners expressed their discontent with the gender-affirming care they received. While ACLU attorney Chase Strangio acknowledged the possibility of regret, he argued it is less common than reported and focused on discrimination against transgender identity.
Strangio did not claim that being transgender is immutable but highlighted the historical discrimination faced by transgender people. Jackson's comparison focuses on whether being transgender is innate, similar to the issue of interracial marriage in Loving. In the Skrmetti case, plaintiffs argue that differential access to medical treatments for gender dysphoria is discriminatory based on sex.
Jackson reiterated the Loving case, suggesting that opponents of interracial marriage used scientific arguments, similar to those against child sex changes, which opponents claim may lead to serious consequences like infertility. Proponents of child sex changes argue that affirming a child's identity can ease their mental distress, but regret is a significant risk.
Strangio echoed Jackson's assertion that race and transgender identity should be treated similarly under the law. He warned that allowing biological arguments to justify legal differences could erode important legal protections. Overall, both Jackson and Strangio appeared to equate the discrimination faced by interracial couples with restrictions on medical treatments for minors, suggesting a crucial link between the two issues.
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