Conservative justices waved their hands during oral arguments in a transgender rights case involving minors. Liberals did their best to call them out.
There was a clarifying moment late in Wednesday’s two-and-a-half-hour-long oral argument in United States v. Skrmetti, a history-making challenge to Tennessee’s ban on gender-affirming care for minors.
Justice Ketanji Brown Jackson had listened to her Republican-appointed colleagues take two different tacks in their questions: open hostility to the idea, asserted by the plaintiffs, that Tennessee’s law is unconstitutional sex discrimination (voiced by Justices Samuel Alito and Clarence Thomas) and faux humility (coming from Justice Brett Kavanaugh and Chief Justice John Roberts). In the latter approach, the justices threw up their hands, saying that sifting through the medical evidence was just so hard, the research so contested, that it required them, as Roberts put it, “to leave those determinations to the legislative bodies rather than try to determine them for ourselves.”
Jackson called out these tactics in real time, in unmistakably clear terms. She repeatedly described herself as “quite worried” and “nervous” because the same justifications that the state of Tennessee was using to ban transgender health care for minors were previously used to justify bans on interracial marriage, which the court had struck down in Loving v. Virginia — namely, that the laws couldn’t be discriminatory because everyone was equally restricted: No minor in Tennessee is able to access gender-affirming care, whether they were assigned female or male at birth, just as no one was able to marry someone of a different race in Virginia before Loving was decided in 1967.
Jackson referred to the long-standing interpretation of the equal-protection clause of the 14th Amendment as protecting against multiple forms of discrimination.
