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Jackson Won't Say Whether She Agrees with Ginsburg That Men and Women Have Physical Differences

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Republican Sen. Marsha Blackburn of Tennessee has created some of the more memorable moments during this week’s confirmation hearings for Supreme Court nominee Judge Ketanji Brown Jackson.

On Tuesday, Blackburn questioned Jackson about the definition of woman.

The issue is front and center as gender identity permeates our nation’s schools, sports competitions and laws.

In other words, should biological males who identify as females or vice versa, really be treated that way for purposes of the law and otherwise?

If so, what does that do to the decades-long fight women waged to gain equal footing with men under the law?

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Blackburn first quoted from the late Justice Ruth Bader Ginsburg’s majority opinion in the 1996 case United States v. Virginia, which ruled that the then-all male Virginia Military Institute must allow females to enroll.

“Supposed ‘inherent differences’ are no longer accepted as a ground for race or national origin classifications,” she said.

“Physical differences between men and women, however, are enduring: ‘[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both,'” Blackburn added, still quoting from Ginsburg’s opinion.

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“Do you agree with Justice Ginsburg that there are physical differences between men and women that are enduring?” the lawmaker asked.

“Um, senator, respectfully, I am not familiar with that particular quote or case, so it’s hard for me to comment,” Jackson responded.

Blackburn followed up, questioning, “Do you interpret Justice Ginsburg’s meaning of men and women as male and female?”

Jackson again declined to answer, saying she would need to read the case.

Blackburn then went broader, separating the issue from Ginsburg’s majority opinion.

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“Can you provide a definition for the word ‘woman’?” she asked.

“No, I can’t,” Jackson said.

“The meaning of the word ‘woman’ is so unclear and controversial that you can’t give me a definition?” Blackburn followed up.

“Senator, in my work as a judge, what I do is I address disputes. If there’s a dispute about a definition, people make arguments, and I look at the law, and I decide, so I’m not –,” Jackson said.

“The fact that you can’t give me a straight answer about something as fundamental as what a woman is underscores the dangers of the kind of progressive education that we are hearing about,” Blackburn replied.

The senator then cited transgender swimmer Lia Thomas’s recent win in the NCAA 500-yard freestyle championship.

“Just last week an entire generation of young girls watched as our taxpayer-funded institutions permitted a biological man to compete and beat a biological woman in the NCAA swimming championships,” Blackburn said.

“What message do you think this sends to girls who aspire to compete and win in sports at the highest level?” she asked.

“Senator, I’m not sure what message that sends. If you’re asking me about the legal issues related to it — those are topics that are being hotly discussed, as you say, and could come to the court,” Jackson replied.

“I think it tells our girls that their voices don’t matter,” Blackburn said.

“I think it tells them that they’re second-class citizens. And parents want to have a Supreme Court justice who is committed to preserving parental autonomy and protecting our nation’s children.”

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