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Speaker 1: This is Bloomberg Law with June Brasso from Bloomberg Radio.

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Speaker 1: At the heart of this case is Drew, who testified

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Speaker 1: a trial that he knows with every fiber of his

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Speaker 1: being that he is a boy. Drew Adams, a transgender

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Speaker 1: high school student, suit his Florida school district in seventeen

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Speaker 1: because he wasn't allowed to use the boy's bathroom. His attorney,

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Speaker 1: Terra Borrelly, argued that the school's mandate that Adams used

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Speaker 1: the girl's bathroom or a gender neutral bathroom violated the

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Speaker 1: Constitution's guarantee of equal protection as well as his rights

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Speaker 1: under Title nine, the law barring sex discrimination by educational institutions.

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Speaker 1: The line that we're challenging here is not the one

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Speaker 1: that separates boys and girls under either claim. That's not

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Speaker 1: the line being challenged. The line being challenged is the

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Speaker 1: one that the school board has drawn around every transgender

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Speaker 1: student and only transgender students, and has said not you,

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Speaker 1: you shall not pass. We will padlock the restroom doors

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Speaker 1: to you. You're not fit to share that space with

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Speaker 1: your peers, and your mere presence in that space is unacceptable.

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Speaker 1: But the full Eleventh Circuit Court of Appeals in a

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Speaker 1: sharply divided opinion ruled that the school district's policy of

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Speaker 1: separating school bathrooms based on biological sex is constitutional because

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Speaker 1: it advances a governmental objective of protecting students privacy. Joining

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Speaker 1: me is Noah van Asher, a professor at the Elizabeth

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Speaker 1: Holps School of Law at Pace University. No, what's your

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Speaker 1: reaction to this divided seven to four decision. I am

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Speaker 1: angry this boy. I mean, if you read this case,

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Speaker 1: it's just heartbreaking because this is a case about a

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Speaker 1: particular boy who comes out as a boy right before

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Speaker 1: puberty and wants to use the bathroom. He's not bothering anyone.

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Speaker 1: His friends accept him, his teachers accept him, they used

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Speaker 1: the correct gender pronouns. But for some reasons the school

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Speaker 1: besides that he cannot use the bathroom, he and maybe

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Speaker 1: four other students out of two thousands, cannot use the

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Speaker 1: bathroom of their gender identity because someone, some anonymous person

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Speaker 1: might be offended. That's how wrong this decision is. In

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Speaker 1: all respect to the majority opinion rely heavily on privacy concerns.

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Speaker 1: So the decision legally is talking about the ego protection

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Speaker 1: clause and specifically about the idea of having different bathrooms

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Speaker 1: for boys and for girls, and for that purpose, the

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Speaker 1: court relies heavily on a legitimate state interests of privacy.

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Speaker 1: So in terms of the logic of the court, the

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Speaker 1: court is talking about privacy. Now, the court said that

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Speaker 1: the bathroom policy didn't violate the law because it's based

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Speaker 1: on biological sex, not gender identity. Quote. A policy can

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Speaker 1: lawfully classify on the basis of biological sex without unlawfully

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Speaker 1: discriminating on the basis of transgender their status. Will you

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Speaker 1: explain that difference, I would say, if we were to summarize,

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Speaker 1: the main problem with this decision is that particular definition

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Speaker 1: of biological sex which it relies on and is just

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Speaker 1: incorrect in terms of the medical science and expertise that

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Speaker 1: is out there. The way that the school policy defines

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Speaker 1: biological sex is basically about chromosomal sexts and about the

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Speaker 1: shape of the genitals as a doctor at birth assigned it.

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Speaker 1: That's the school's definition. Now, when we go to the

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Speaker 1: actual evidence that the district court had in front of it,

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Speaker 1: it talked to a lot of experts who testify that

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Speaker 1: as of today, that is simply not the medical definition

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Speaker 1: of facts, which today includes many factors some of which

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Speaker 1: are chromosomal sects, shape of genitals at birth, or internal organs.

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Speaker 1: But most importantly, gender identity has been left out of

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Speaker 1: the definition of biological sex as used by the county,

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Speaker 1: and that is what this whole case really turns off.

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Speaker 1: So the question is really what the definition of biological

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Speaker 1: sex is. The question is even the term itself biological

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Speaker 1: sext as is used, it no longer uses that way

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Speaker 1: by most prevalent medical experts. So what the district did

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Speaker 1: here is it took a definition of biological sex that

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Speaker 1: it is very narrow and also simply incorrect. And how

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Speaker 1: we understand predictors of sexts today Because just to be clear,

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Speaker 1: when a baby is born, nobody gives them chromosomal test.

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Speaker 1: What happens at the hospital. This is what happened with

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Speaker 1: this Clint Stiff as well. Is the doctor looks at

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Speaker 1: the genitals and says, oh, this is a girl or

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Speaker 1: this is a boy. In many cases, this is not

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Speaker 1: going to be the development. And even if it is,

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Speaker 1: there are other components that are just not part of

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Speaker 1: that initial definition. So the correct way to talk about

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Speaker 1: it today, according to the medical experts, that has been

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Speaker 1: followed by many courts is to talk about sex assigned

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Speaker 1: at birth. So you see there's a difference between talking

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Speaker 1: about biological sex versus talking about sex assigns at birth.

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Speaker 1: This was a ruling down ideological lines, seven to four,

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Speaker 1: with judges appointed by Republican presidents in the majority and

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Speaker 1: judges appointed by Democratic presidents in the minority. Why is

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Speaker 1: this an ideological dividing line? This issue is, as I've

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Speaker 1: written about and many others have noted, is one of

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Speaker 1: the hottest topics right now in the divide that we

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Speaker 1: sometimes called culture wars, and obviously one of them is

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Speaker 1: abortion what happened in the Dob's decision, But transgender identities

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Speaker 1: and rights have been an issue in the last least

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Speaker 1: five years, released since Alburger, phil since the rights of

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Speaker 1: same sex marriage, and so it is no surprise at

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Speaker 1: all that the divide here in the eleventh Circuit is

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Speaker 1: along ideological line. And I just want to go back

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Speaker 1: to the medical understanding of sex of biological sects. And

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Speaker 1: I'm going to quote here from the dissenting opinion, quoting

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Speaker 1: the medical expert testifying. So this ideological divide that you

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Speaker 1: and I are just talking about, it's really about what

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Speaker 1: sex means what do we mean when we say sex. So,

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Speaker 1: medical experts today and I'm quoting, recognize that a person's

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Speaker 1: sex is comprised of a number of components, including chromosomal sects,

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Speaker 1: go natal sex, fetal hormonal sex, internal morphologic sex, external

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Speaker 1: morphologic sex, hypostalmic sext puretal hormonal sex, neurological sex, and

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Speaker 1: gender identity. Enroll. That's the current medical definition of sex.

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Speaker 1: The Republican nominees and many conservatives just do not agree

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Speaker 1: with this definition of sex, so they come up with

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Speaker 1: policies that narrow it substantially, such that a transgender boy

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Speaker 1: such as this plaintiff is excluded from using the boys

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Speaker 1: back Circuit decisions creates a split with the Fourth and

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Speaker 1: Seventh Circuits, which both rule that transgender students can use

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Speaker 1: bathrooms that match their gender identities. So the Fourth Circuit,

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Speaker 1: in a famous case that almost was heard by the

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Speaker 1: Supreme Court, but the Supreme Court ended up de nying

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Speaker 1: hearing went the opposite direction and definitely held that gender

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Speaker 1: identity and again this is the key. Is gender identity

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Speaker 1: part of our understanding of the human being? And if so,

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Speaker 1: how important it is? And the Fourth Circuit went with

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Speaker 1: the plaintiff they're another transgender boy, and said that his

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Speaker 1: gender identity is critical and the school must allow access

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Speaker 1: to the bathroom that follows his gender identity. So that

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Speaker 1: happened at the Fourth Circuit. We also have a decision

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Speaker 1: like that in the Seventh Circuits where similar challenge on

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Speaker 1: a coal protection and ninth Title nine grounds. And I

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Speaker 1: want to say that these decisions all turn on the

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Speaker 1: definition of what we mean by sex and how we're

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Speaker 1: going to cabin the idea of of sex biological sex

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Speaker 1: versus gender identity. Do we include gender identity in the

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Speaker 1: definition of sex or do we exclude it and say

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Speaker 1: there is biological sex and then their gender identity. So

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Speaker 1: might the Supreme Court intervened to resolve that split. It's

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Speaker 1: hard to predict here. It is a question of whether

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Speaker 1: this Court has an appetite for this particular case. Given

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Speaker 1: its record from the last sitting, it seems that this

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Speaker 1: Court is willing to go all in and make this

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Speaker 1: very politically oriented decisions. So I wouldn't be surprised if

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Speaker 1: the Court takes this circuit split and goes with the

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Speaker 1: Eleventh Circuits. But I just wanted to emphasize that in

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Speaker 1: the Title nine domain. This particular case in the Eleventh

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Speaker 1: Circuit is an outlier and does not reflect for district

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Speaker 1: courts are in most of the country and circuit courts are.

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Speaker 1: Is the Supreme Court's ruling in the boss Dot case

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Speaker 1: that Title nine protects l g B T workers is

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Speaker 1: that persuasive here? Although that was when Justice Ruth Bader

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Speaker 1: Ginsburg was still on the Court, and it's a very

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Speaker 1: different court now. Bostock was decided on Title seven grounds,

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Speaker 1: which is an employment context and not in the school context,

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Speaker 1: so it's it's a different statutory grounding. And Justice Gore

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Speaker 1: such writing the decision for the majority specifically never talks

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Speaker 1: about gender identity, so he rules in favor of the

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Speaker 1: transgender plaintiff without talking about gender identity, but relying again

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Speaker 1: folding back on the idea of biological sex. And so

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Speaker 1: Bostock did not help put the plaintiff make his claim

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Speaker 1: regarding Title mind and the equal protection clause. It's going

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Speaker 1: to be hard to predict based on boss Stock, especially

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Speaker 1: the equal protection case regarding Title nine. I would say that,

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Speaker 1: you know, we could lead to a similar kind of

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Speaker 1: textual reading of what the congressmant in nineties seven to

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Speaker 1: two guarding Title nine what's sex needs. But even there,

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Speaker 1: you know, just the score such ended up in favor

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Speaker 1: of the transgender plaintiff. So I would say that we

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Speaker 1: cannot predict how the Supreme Court will decide this case.

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Speaker 1: In line of this decision, one Florida school district, Pasco County,

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Speaker 1: has already changed its rules to require students to use

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Speaker 1: restrooms based on their sex assigned at birth. So can

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Speaker 1: we expect some far ranging consequences of this decision? Absolutely

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Speaker 1: definitely from now on in Florida, Alabama, and Georgia school boards.

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Speaker 1: School districts can just decide to use this incorrect category

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Speaker 1: of biological sex that doesn't rely on any medical line,

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Speaker 1: and use it to deny access to transgender students to bathrooms.

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Speaker 1: And that, according to this particular decision, which is why

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Speaker 1: it's so harmful, is not in violation of the protection

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Speaker 1: clause and not in violation of Title mine. So these

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Speaker 1: three states will now be able to do that. Will

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Speaker 1: they all do that in all districts? Probably not so,

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Speaker 1: even in the eleventh circuits. Some school districts have other

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Speaker 1: policies that are more inclusive towards transgender students. The divide

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Speaker 1: right now. I don't think is necessarily by state, but

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Speaker 1: we have states like in Texas and Florida where we

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Speaker 1: have other legislation that is very anti trans specifically around

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Speaker 1: preventing care for trans youth, and Texas to course, the

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Speaker 1: more conservative leaning states have other policies in place to

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Speaker 1: discriminate against transgender students. There's so much to talk about here.

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Speaker 1: Do you have any closing thoughts for us? Well, I

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Speaker 1: just want to clarify that the main things that I

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Speaker 1: think went wrong in this decision are too right. The

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Speaker 1: first is that it really turns on this kind of

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Speaker 1: public debate that is happening now in the courts and

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Speaker 1: in Congress in a different levels around what transgender means

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Speaker 1: and if transgender is real, right, it's gender identity is

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Speaker 1: real or not? So in many ways, this decision, when

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Speaker 1: we read the descent, when we read the majority, is

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Speaker 1: really that debate about what gender means, the gender mean

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Speaker 1: what we are at birth, or does gender mean other

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Speaker 1: things but sex and gender? So I feel like we

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Speaker 1: we must understand that this is what's at stake, and

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Speaker 1: as you said earlier, it is an ideological question. Right,

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Speaker 1: we can turn to science and we can have medical

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Speaker 1: experts testify, and they have been, and they have been

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Speaker 1: testifying in favor of the transgender plaintiffs. So this is

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Speaker 1: this is number one in the debate. And another important

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Speaker 1: thing that I really want to clarify is that turning

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Speaker 1: this decision, as the majority did, into a debate about

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Speaker 1: whether sex segregated bathrooms are legitimate or not is not

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Speaker 1: the question. So the court averts the questions of excluding

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Speaker 1: transgender students in favor of a different question that whatether

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Speaker 1: raised by the clienttiffs, which is is it okay to

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Speaker 1: have boys rooms and girls rooms? Right? And so those

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Speaker 1: two misconcepts shows, I think lead to this decision that

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Speaker 1: seems highly ideological because it is that's Noah ben Asher,

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Speaker 1: a professor at the Elizabeth Hope School of Law at

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Speaker 1: Pace University. Republican attorneys general jointly challenging the Biden administration

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Speaker 1: have found their preferred venue. Nine of the forty five

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Speaker 1: multi state Republican lawsuits against the Biden administration have been

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Speaker 1: heard in the U. S. District Court for the Western

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Speaker 1: District of Louisiana, which stretches from the Arkansas state line

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Speaker 1: down to the Gulf of Mexico, and within that district,

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Speaker 1: they found an ideal judge in a rural farming parish

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Speaker 1: of less than fifty thousand people, best known for its

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Speaker 1: proximity to the Duck Dynasty reality TV show family Joining

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Speaker 1: me as Madison Alder Bloomberg Law reporter mass and we've

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Speaker 1: seen that Texas has been a preferred venue for Republican

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Speaker 1: attorney generals to sue in. But tell us what this

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Speaker 1: b Law and Now list has found. So we looked

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Speaker 1: at the data set by a Marquette University political science

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Speaker 1: Profesptor Paul Nolt, and we dove into this data and

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Speaker 1: found that the Western District of Louisiana has kind of

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Speaker 1: emerged as a preferred venue for Republican attorneys general when

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Speaker 1: they're filing a lawsuit together against the Bide administration. There's

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Speaker 1: a district judge in the Western District of Louisiana, and

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Speaker 1: Republican attorneys general have been trying to get him to

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Speaker 1: hear their suits. So within those the lawsuits that we

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Speaker 1: found that are going to the Western District of Louisiana,

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Speaker 1: there is one judge who has heard more of those

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Speaker 1: cases than any other judge in the district than any

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Speaker 1: other judge in the country, and that's Judge Terry Doughty.

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Speaker 1: He's based in Monroe. He has heard five of these

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Speaker 1: cases so far, and Republicans seemed to kind of find

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Speaker 1: him by accidents, but then returned to him time and

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Speaker 1: time again after he gave them a favorable ruling. And

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Speaker 1: you know, he has definitely become frequent target for for

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Speaker 1: this tex logation. He's given nationwide injunctions in some pretty

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Speaker 1: big cases. Tell us about some of the bigger cases

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Speaker 1: that he's been involved in. So the first case was

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Speaker 1: a case involving um oil and gas weeping on federal lands,

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Speaker 1: and that one was in the summer of that one

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Speaker 1: was initially filed in Lake Child's division, where he only

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Speaker 1: gets ten percent of the cases, So it was a

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Speaker 1: little bit by chance that they got him, but he

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Speaker 1: gave the Attorney General that filed that lawsuit is favorable ruling.

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Speaker 1: And then they returned to him again for a case

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Speaker 1: fighting Biden COVID nineteen vaccine mandates for healthcare workers and

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Speaker 1: had start teachers. And they've filed in the Monroe division,

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Speaker 1: where he's gotten anywhere between eighty percent of the cases

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Speaker 1: to a percent of the case, says several times after that.

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Speaker 1: How do the district courts decide who gets what case?

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Speaker 1: How do they divvy them up? Is it the same

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Speaker 1: for all are different, So it's different, and courts have

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Speaker 1: a lot of ability to how they assigned cases. Sometimes

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Speaker 1: it's more transparent than others. In these courts that happens

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Speaker 1: to be pretty transparent, they post their case assignment orders online.

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Speaker 1: Oftentimes you know they'll they'll break it down by division

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Speaker 1: or judge, and they'll be percentages assigned to those judges

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Speaker 1: in those divisions, which are based on geography, and that's

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Speaker 1: kind of what determines what cases go to which judges.

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Speaker 1: So in a small division Monroe, for example, um is

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Speaker 1: one of these small divisions, there might only be two

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Speaker 1: judges hearing the majority of the cases, and the percentages

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Speaker 1: could could vary between, you know, one judge and for

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Speaker 1: another judge, or for one judge for another judge, So

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Speaker 1: people filing lawsuits and the divisions can have a degree

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Speaker 1: of certainty about who the judge they're going to get.

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Speaker 1: This one of the important things in getting a judge

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Speaker 1: in Louisiana or Texas is that it goes to the

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Speaker 1: Fifth Circuit Court of Appeals which is one of the

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Speaker 1: most is not the most conservative circuits in the country, right,

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Speaker 1: and that that definitely adds to the appeal of um

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Speaker 1: pardon my pun, the musual of any court in the

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Speaker 1: Fifth Circuit. Um. If you file at a district court

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Speaker 1: that is in the Fifth Circuit, that would be appealed

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Speaker 1: to the Fifth Circuit. And the Fifth Circuit, as you said,

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Speaker 1: is um is known as one of the most conservative

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Speaker 1: circuit courts in the country. Um. And that, combined with

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Speaker 1: the fact that there is a conservative majority on the

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Speaker 1: Supreme Court right now, gives Republicans um the best shot

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Speaker 1: that they've had in a long time at at getting

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Speaker 1: a favorable ruling all the way up the ladder. Have

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Speaker 1: any of Judge Doty's decisions gone to the Fifth Circuit

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Speaker 1: and then been reviewed by the Supreme Court. In the

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Speaker 1: highest profile of those cases, which was the vaccine mandate

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Speaker 1: for healthcare workers, uh Dodi's ruling was limited by the

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Speaker 1: Fifth Circuit. Um he enjoined he had an injunction. They

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Speaker 1: limited it to the fourteen states that filed the litigation. Um,

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Speaker 1: but then they tossed it out or staff out in

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Speaker 1: light of the Supreme Court decision to allow the mandate

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Speaker 1: to take effect in a different case. And he doesn't

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Speaker 1: think that he's political. No, he said that he's making

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Speaker 1: determinations about you know, what he thinks the law is.

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Speaker 1: He's got to follow what he thinks the law is.

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Speaker 1: And he he told you Lydia that he he doesn't

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Speaker 1: believe that he's political, and he doesn't rule a particular

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Speaker 1: way because he was appointed by a certain president. And

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Speaker 1: he's not the only judge is he that Republican attorneys

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Speaker 1: general go to? As you mentioned, there is already kind

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Speaker 1: of this focus on Texas and UM Professor Stephen Laddick

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Speaker 1: has looked at some of the litigation in Texas, you know,

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Speaker 1: by the Texas a G by the Texas Governor UM,

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Speaker 1: and when litigation is filed in Texas UM, they can

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Speaker 1: similarly look for these divisions that have a majority of

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Speaker 1: the Republican appointees or have a very small number of

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Speaker 1: judges where they can be pretty sure about who they're

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Speaker 1: going to get. The Texas is already a an area

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Speaker 1: where this this happens and is well known that this happens.

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Speaker 1: Then I just want to point out there's nothing on

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Speaker 1: ethical in forum shopping. So forum shopping is something that

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Speaker 1: all litigants pans and and in a lot of scenarios

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Speaker 1: do as as a part of uh, you know, good lawyering.

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Speaker 1: And this is pointed out by a former judge UM

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Speaker 1: the Fifth Circuit, Um, Greg Costa, who recently left to

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Speaker 1: return to private practice, and he noted that, you know,

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Speaker 1: forum shopping is something that UM lawyers do to make

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Speaker 1: sure that they're they're going to have the best chance

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Speaker 1: uh you know, getting there, um getting a favorable ruling.

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Speaker 1: But um, you know, critics of forum shopping and judge

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Speaker 1: shopping also um point out that this is a way

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Speaker 1: that just because you can do it doesn't necessarily mean

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Speaker 1: that it's a good thing. And uh, you know, maybe

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Speaker 1: instances where you can really pinpoint who your judge is

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Speaker 1: going to be, there needs to be a change. And

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Speaker 1: the only change that could really happen there would be

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Speaker 1: a systematic change too, uh prevent people from targeting a

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Speaker 1: judge in in a particular area. So Judge Costa has

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Speaker 1: advocated for changes, and he's made a suggestion. Right there

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Speaker 1: is uh a proposal that that he has talked about

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Speaker 1: in the past, which is to have three judge panels

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Speaker 1: here cases that are seeking nationwide injunctions instead of a

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Speaker 1: single judge. There could still be forum shopping under that system.

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Speaker 1: You could still you know, choose a court in the

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Speaker 1: Fifth Circuit to have an appealed to the Fifth Circuits tents.

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Speaker 1: But it would prevent judge shopping, and it would it

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Speaker 1: would limit forum shopping some at least. This is what

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Speaker 1: got that says, you know, instead of being able to

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Speaker 1: target one judge, there's less certainty if two other judges

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Speaker 1: that you can't choose are added to that panel. Democratic

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Speaker 1: a g s also do forum shopping. Where do they

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Speaker 1: do their form shopping? So when Democratic Attorneys general forum shop,

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Speaker 1: they target the northern districts of California and the southern

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Speaker 1: districts of New York. Those are venues that saw quite

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Speaker 1: a few lawsuits during the Trump administration, and Democrats sued

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Speaker 1: the Trump administration a lot. There were more multi state

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Speaker 1: suits against the Trump administration than they're wordering a bomb administration.

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Speaker 1: Thanks so much, Madison. That's Madison Alder of Bloomberg Law.

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Speaker 1: And that's it for this edition of the Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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Speaker 1: our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: and at www dot Bloomberg dot com slash podcast, Slash Law,

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Speaker 1: and remember to two to The Bloomberg Law Show every

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Speaker 1: week night at ten p m. Wall Street Time. I'm

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Speaker 1: June Grosso and you're listening to Bloomberg m