Ted Cruz and Ketanji Brown Jackson on Gender Discrimination

Ketanji Brown Jackson and Ted Cruz discuss gender discrimination during U.S. Supreme Court confirmation hearings on March 22, 2022.

Ted Cruz: The court has laid out a different standard for gender discrimination. What is the constitutional standard that applies to gender discrimination?

Ketanji Brown Jackson: Gender discrimination, the court has held intermediate scrutiny applies which is that the government has to have an important interest and the tailoring doesn't have to be as narrow.

Ted Cruz: Right. So, yesterday under questioning from Senator Blackburn you told her that you couldn't define what a woman is. That you are not a biologist which I think you're the only Supreme Court nominee in history has been unable to answer the question "what is a woman?". Let me ask you as a judge, how would you determine if a plaintiff had article 3 standing to challenge a gender-based rule, regulation, policy without being able to determine what a woman was?

Ketanji Brown Jackson: So, Senator, I know that I'm a woman. I know that Senator Blackburn is a woman, and the woman who I admire most in the world is in the room today, my mother. It sounded as though the question was . . .

Ted Cruz: Under the modern leftist sensibilities, if I decide right now that I'm a woman, then apparently I'm a woman. Does that mean that I would have article 3 standing to challenge a gender-based restriction?

Ketanji Brown Jackson: Senator, to the extent that you are asking me about who has the ability to bring lawsuits based on gender, those kinds of issues are working their way through the courts and I'm not able to comment on them.

Ted Cruz: Okay, if I can change my gender, if I can be a woman then an hour later, if I decide I'm not a woman anymore, I guess I would lose article 3 standing. Tell me does that same principle apply to other protected characteristics for example I'm a Hispanic man but could I decide I was an Asian man. Would I have the ability to be an Asian man and challenge Harvard's discrimination because I made that decision.

Ketanji Brown Jackson: Senator, I'm not able to answer your question, you're asking me about hypotheticals and um . . .

Ted Cruz: Well, I'm asking you how you would access standing If I came in and said I have decided I identify as an Asian man?

Ketanji Brown Jackson: I would access standing the way I access other legal issues which is to listen to the arguments made by the parties, consider the relevant precedents and constitutional principles involved, and make a determination.