Judging by news coverage and social media, Senate hearings on the confirmation of appellate Judge Ketanji Brown Jackson to replace Supreme Court Justice Stephen Breyer have provided more political theater than enlightenment on the law.
One media storm erupted over the claim that Judge Jackson doesn’t know what a woman is.
The question actually posed to her by Republican Sen. Marsha Blackburn of Tennessee was: “Can you provide a definition for the word ‘woman’?”
The exchange that followed went like this:
Jackson: “I can’t.”
Blackburn: “You can’t?”
Jackson: “Not in this context. I’m not a biologist.”
Some conservatives leaped to question how a woman, nominated by a president wanting to choose a Black woman, doesn’t know what she is.
But the question was about defining the word, a more difficult matter — as Supreme Court Justice Potter Stewart famously told us in 1964, when he said he wasn’t sure how to define a phrase like “hardcore pornography,” but “I know it when I see it.”
One perspective is that Judge Jackson was declining to prejudge a legal issue that could come before the court. Judicial nominees are not supposed to answer such questions, because they should make their judgment based solely on the facts and arguments presented by both sides in the case.
And that would make sense.
For decades, Title IX of the Education Amendments of 1972 has barred discrimination “on the basis of sex” at educational institutions receiving federal funds. But in 2016, the Obama administration issued guidance claiming that “sex” should be defined in terms of a student’s self-identification.
That policy was enjoined by a federal court, which found no basis for this new definition in the law’s text or history. The Trump administration then reversed the Obama policy, saying it would interpret “sex” in accord with the biological differences between men and women.
Finally, President Joe Biden has expressed interest in restoring the Obama policy, with final regulations expected this spring.
The outcome of this dispute may determine whether Title IX continues to ensure equitable support for women’s athletics at American colleges. Recently, University of Pennsylvania student Will Thomas, after changing his name to Lia and identifying as a woman, won the NCAA women’s swimming championship.
Even transgender advocate Caitlyn Jenner has said that Thomas is not the “rightful winner” of the title, and that allowing biological men to compete against women is “not good for women’s sports.” Many states are trying to stop this trend, but a contrary federal law could block their efforts. This will end up in federal court.
The interesting thing about Judge Jackson’s answer, though, is that she suggested this is a question of biological fact, not of personal choice or legal dictate. Which is what the Trump administration said. Perhaps the senator should have thanked her for this excellent answer and moved on.
Supreme Court justices have sometimes ignored the relevance of biological facts. In 1973, for example, they said, “We need not resolve the difficult question of when life begins” because “those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus.” But it is biology that is “the study of life.” The court ignored the embryology textbooks to create a new “right” to extinguish life before birth.
Pope Francis has spoken against gender ideologies “that attempt to sunder what are inseparable aspects of reality,” in the apostolic exhortation “Amoris Laetitia.” (No. 56). He urges us not to ignore or replace the gift of our Creator. The church’s theology reminds us that biology is real. On this one point, we saw a moment of nonpartisan clarity at the hearing.
Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.
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