Speaker 1: This is Bloomberg Law with June Brasso from Bloomberg Radio.
Speaker 1: At the heart of this case is Drew, who testified
Speaker 1: a trial that he knows with every fiber of his
Speaker 1: being that he is a boy. Drew Adams, a transgender
Speaker 1: high school student, suit his Florida school district in seventeen
Speaker 1: because he wasn't allowed to use the boy's bathroom. His attorney,
Speaker 1: Terra Borrelly, argued that the school's mandate that Adams used
Speaker 1: the girl's bathroom or a gender neutral bathroom violated the
Speaker 1: Constitution's guarantee of equal protection as well as his rights
Speaker 1: under Title nine, the law barring sex discrimination by educational institutions.
Speaker 1: The line that we're challenging here is not the one
Speaker 1: that separates boys and girls under either claim. That's not
Speaker 1: the line being challenged. The line being challenged is the
Speaker 1: one that the school board has drawn around every transgender
Speaker 1: student and only transgender students, and has said not you,
Speaker 1: you shall not pass. We will padlock the restroom doors
Speaker 1: to you. You're not fit to share that space with
Speaker 1: your peers, and your mere presence in that space is unacceptable.
Speaker 1: But the full Eleventh Circuit Court of Appeals in a
Speaker 1: sharply divided opinion ruled that the school district's policy of
Speaker 1: separating school bathrooms based on biological sex is constitutional because
Speaker 1: it advances a governmental objective of protecting students privacy. Joining
Speaker 1: me is Noah van Asher, a professor at the Elizabeth
Speaker 1: Holps School of Law at Pace University. No, what's your
Speaker 1: reaction to this divided seven to four decision. I am
Speaker 1: angry this boy. I mean, if you read this case,
Speaker 1: it's just heartbreaking because this is a case about a
Speaker 1: particular boy who comes out as a boy right before
Speaker 1: puberty and wants to use the bathroom. He's not bothering anyone.
Speaker 1: His friends accept him, his teachers accept him, they used
Speaker 1: the correct gender pronouns. But for some reasons the school
Speaker 1: besides that he cannot use the bathroom, he and maybe
Speaker 1: four other students out of two thousands, cannot use the
Speaker 1: bathroom of their gender identity because someone, some anonymous person
Speaker 1: might be offended. That's how wrong this decision is. In
Speaker 1: all respect to the majority opinion rely heavily on privacy concerns.
Speaker 1: So the decision legally is talking about the ego protection
Speaker 1: clause and specifically about the idea of having different bathrooms
Speaker 1: for boys and for girls, and for that purpose, the
Speaker 1: court relies heavily on a legitimate state interests of privacy.
Speaker 1: So in terms of the logic of the court, the
Speaker 1: court is talking about privacy. Now, the court said that
Speaker 1: the bathroom policy didn't violate the law because it's based
Speaker 1: on biological sex, not gender identity. Quote. A policy can
Speaker 1: lawfully classify on the basis of biological sex without unlawfully
Speaker 1: discriminating on the basis of transgender their status. Will you
Speaker 1: explain that difference, I would say, if we were to summarize,
Speaker 1: the main problem with this decision is that particular definition
Speaker 1: of biological sex which it relies on and is just
Speaker 1: incorrect in terms of the medical science and expertise that
Speaker 1: is out there. The way that the school policy defines
Speaker 1: biological sex is basically about chromosomal sexts and about the
Speaker 1: shape of the genitals as a doctor at birth assigned it.
Speaker 1: That's the school's definition. Now, when we go to the
Speaker 1: actual evidence that the district court had in front of it,
Speaker 1: it talked to a lot of experts who testify that
Speaker 1: as of today, that is simply not the medical definition
Speaker 1: of facts, which today includes many factors some of which
Speaker 1: are chromosomal sects, shape of genitals at birth, or internal organs.
Speaker 1: But most importantly, gender identity has been left out of
Speaker 1: the definition of biological sex as used by the county,
Speaker 1: and that is what this whole case really turns off.
Speaker 1: So the question is really what the definition of biological
Speaker 1: sex is. The question is even the term itself biological
Speaker 1: sext as is used, it no longer uses that way
Speaker 1: by most prevalent medical experts. So what the district did
Speaker 1: here is it took a definition of biological sex that
Speaker 1: it is very narrow and also simply incorrect. And how
Speaker 1: we understand predictors of sexts today Because just to be clear,
Speaker 1: when a baby is born, nobody gives them chromosomal test.
Speaker 1: What happens at the hospital. This is what happened with
Speaker 1: this Clint Stiff as well. Is the doctor looks at
Speaker 1: the genitals and says, oh, this is a girl or
Speaker 1: this is a boy. In many cases, this is not
Speaker 1: going to be the development. And even if it is,
Speaker 1: there are other components that are just not part of
Speaker 1: that initial definition. So the correct way to talk about
Speaker 1: it today, according to the medical experts, that has been
Speaker 1: followed by many courts is to talk about sex assigned
Speaker 1: at birth. So you see there's a difference between talking
Speaker 1: about biological sex versus talking about sex assigns at birth.
Speaker 1: This was a ruling down ideological lines, seven to four,
Speaker 1: with judges appointed by Republican presidents in the majority and
Speaker 1: judges appointed by Democratic presidents in the minority. Why is
Speaker 1: this an ideological dividing line? This issue is, as I've
Speaker 1: written about and many others have noted, is one of
Speaker 1: the hottest topics right now in the divide that we
Speaker 1: sometimes called culture wars, and obviously one of them is
Speaker 1: abortion what happened in the Dob's decision, But transgender identities
Speaker 1: and rights have been an issue in the last least
Speaker 1: five years, released since Alburger, phil since the rights of
Speaker 1: same sex marriage, and so it is no surprise at
Speaker 1: all that the divide here in the eleventh Circuit is
Speaker 1: along ideological line. And I just want to go back
Speaker 1: to the medical understanding of sex of biological sects. And
Speaker 1: I'm going to quote here from the dissenting opinion, quoting
Speaker 1: the medical expert testifying. So this ideological divide that you
Speaker 1: and I are just talking about, it's really about what
Speaker 1: sex means what do we mean when we say sex. So,
Speaker 1: medical experts today and I'm quoting, recognize that a person's
Speaker 1: sex is comprised of a number of components, including chromosomal sects,
Speaker 1: go natal sex, fetal hormonal sex, internal morphologic sex, external
Speaker 1: morphologic sex, hypostalmic sext puretal hormonal sex, neurological sex, and
Speaker 1: gender identity. Enroll. That's the current medical definition of sex.
Speaker 1: The Republican nominees and many conservatives just do not agree
Speaker 1: with this definition of sex, so they come up with
Speaker 1: policies that narrow it substantially, such that a transgender boy
Speaker 1: such as this plaintiff is excluded from using the boys
Speaker 1: back Circuit decisions creates a split with the Fourth and
Speaker 1: Seventh Circuits, which both rule that transgender students can use
Speaker 1: bathrooms that match their gender identities. So the Fourth Circuit,
Speaker 1: in a famous case that almost was heard by the
Speaker 1: Supreme Court, but the Supreme Court ended up de nying
Speaker 1: hearing went the opposite direction and definitely held that gender
Speaker 1: identity and again this is the key. Is gender identity
Speaker 1: part of our understanding of the human being? And if so,
Speaker 1: how important it is? And the Fourth Circuit went with
Speaker 1: the plaintiff they're another transgender boy, and said that his
Speaker 1: gender identity is critical and the school must allow access
Speaker 1: to the bathroom that follows his gender identity. So that
Speaker 1: happened at the Fourth Circuit. We also have a decision
Speaker 1: like that in the Seventh Circuits where similar challenge on
Speaker 1: a coal protection and ninth Title nine grounds. And I
Speaker 1: want to say that these decisions all turn on the
Speaker 1: definition of what we mean by sex and how we're
Speaker 1: going to cabin the idea of of sex biological sex
Speaker 1: versus gender identity. Do we include gender identity in the
Speaker 1: definition of sex or do we exclude it and say
Speaker 1: there is biological sex and then their gender identity. So
Speaker 1: might the Supreme Court intervened to resolve that split. It's
Speaker 1: hard to predict here. It is a question of whether
Speaker 1: this Court has an appetite for this particular case. Given
Speaker 1: its record from the last sitting, it seems that this
Speaker 1: Court is willing to go all in and make this
Speaker 1: very politically oriented decisions. So I wouldn't be surprised if
Speaker 1: the Court takes this circuit split and goes with the
Speaker 1: Eleventh Circuits. But I just wanted to emphasize that in
Speaker 1: the Title nine domain. This particular case in the Eleventh
Speaker 1: Circuit is an outlier and does not reflect for district
Speaker 1: courts are in most of the country and circuit courts are.
Speaker 1: Is the Supreme Court's ruling in the boss Dot case
Speaker 1: that Title nine protects l g B T workers is
Speaker 1: that persuasive here? Although that was when Justice Ruth Bader
Speaker 1: Ginsburg was still on the Court, and it's a very
Speaker 1: different court now. Bostock was decided on Title seven grounds,
Speaker 1: which is an employment context and not in the school context,
Speaker 1: so it's it's a different statutory grounding. And Justice Gore
Speaker 1: such writing the decision for the majority specifically never talks
Speaker 1: about gender identity, so he rules in favor of the
Speaker 1: transgender plaintiff without talking about gender identity, but relying again
Speaker 1: folding back on the idea of biological sex. And so
Speaker 1: Bostock did not help put the plaintiff make his claim
Speaker 1: regarding Title mind and the equal protection clause. It's going
Speaker 1: to be hard to predict based on boss Stock, especially
Speaker 1: the equal protection case regarding Title nine. I would say that,
Speaker 1: you know, we could lead to a similar kind of
Speaker 1: textual reading of what the congressmant in nineties seven to
Speaker 1: two guarding Title nine what's sex needs. But even there,
Speaker 1: you know, just the score such ended up in favor
Speaker 1: of the transgender plaintiff. So I would say that we
Speaker 1: cannot predict how the Supreme Court will decide this case.
Speaker 1: In line of this decision, one Florida school district, Pasco County,
Speaker 1: has already changed its rules to require students to use
Speaker 1: restrooms based on their sex assigned at birth. So can
Speaker 1: we expect some far ranging consequences of this decision? Absolutely
Speaker 1: definitely from now on in Florida, Alabama, and Georgia school boards.
Speaker 1: School districts can just decide to use this incorrect category
Speaker 1: of biological sex that doesn't rely on any medical line,
Speaker 1: and use it to deny access to transgender students to bathrooms.
Speaker 1: And that, according to this particular decision, which is why
Speaker 1: it's so harmful, is not in violation of the protection
Speaker 1: clause and not in violation of Title mine. So these
Speaker 1: three states will now be able to do that. Will
Speaker 1: they all do that in all districts? Probably not so,
Speaker 1: even in the eleventh circuits. Some school districts have other
Speaker 1: policies that are more inclusive towards transgender students. The divide
Speaker 1: right now. I don't think is necessarily by state, but
Speaker 1: we have states like in Texas and Florida where we
Speaker 1: have other legislation that is very anti trans specifically around
Speaker 1: preventing care for trans youth, and Texas to course, the
Speaker 1: more conservative leaning states have other policies in place to
Speaker 1: discriminate against transgender students. There's so much to talk about here.
Speaker 1: Do you have any closing thoughts for us? Well, I
Speaker 1: just want to clarify that the main things that I
Speaker 1: think went wrong in this decision are too right. The
Speaker 1: first is that it really turns on this kind of
Speaker 1: public debate that is happening now in the courts and
Speaker 1: in Congress in a different levels around what transgender means
Speaker 1: and if transgender is real, right, it's gender identity is
Speaker 1: real or not? So in many ways, this decision, when
Speaker 1: we read the descent, when we read the majority, is
Speaker 1: really that debate about what gender means, the gender mean
Speaker 1: what we are at birth, or does gender mean other
Speaker 1: things but sex and gender? So I feel like we
Speaker 1: we must understand that this is what's at stake, and
Speaker 1: as you said earlier, it is an ideological question. Right,
Speaker 1: we can turn to science and we can have medical
Speaker 1: experts testify, and they have been, and they have been
Speaker 1: testifying in favor of the transgender plaintiffs. So this is
Speaker 1: this is number one in the debate. And another important
Speaker 1: thing that I really want to clarify is that turning
Speaker 1: this decision, as the majority did, into a debate about
Speaker 1: whether sex segregated bathrooms are legitimate or not is not
Speaker 1: the question. So the court averts the questions of excluding
Speaker 1: transgender students in favor of a different question that whatether
Speaker 1: raised by the clienttiffs, which is is it okay to
Speaker 1: have boys rooms and girls rooms? Right? And so those
Speaker 1: two misconcepts shows, I think lead to this decision that
Speaker 1: seems highly ideological because it is that's Noah ben Asher,
Speaker 1: a professor at the Elizabeth Hope School of Law at
Speaker 1: Pace University. Republican attorneys general jointly challenging the Biden administration
Speaker 1: have found their preferred venue. Nine of the forty five
Speaker 1: multi state Republican lawsuits against the Biden administration have been
Speaker 1: heard in the U. S. District Court for the Western
Speaker 1: District of Louisiana, which stretches from the Arkansas state line
Speaker 1: down to the Gulf of Mexico, and within that district,
Speaker 1: they found an ideal judge in a rural farming parish
Speaker 1: of less than fifty thousand people, best known for its
Speaker 1: proximity to the Duck Dynasty reality TV show family Joining
Speaker 1: me as Madison Alder Bloomberg Law reporter mass and we've
Speaker 1: seen that Texas has been a preferred venue for Republican
Speaker 1: attorney generals to sue in. But tell us what this
Speaker 1: b Law and Now list has found. So we looked
Speaker 1: at the data set by a Marquette University political science
Speaker 1: Profesptor Paul Nolt, and we dove into this data and
Speaker 1: found that the Western District of Louisiana has kind of
Speaker 1: emerged as a preferred venue for Republican attorneys general when
Speaker 1: they're filing a lawsuit together against the Bide administration. There's
Speaker 1: a district judge in the Western District of Louisiana, and
Speaker 1: Republican attorneys general have been trying to get him to
Speaker 1: hear their suits. So within those the lawsuits that we
Speaker 1: found that are going to the Western District of Louisiana,
Speaker 1: there is one judge who has heard more of those
Speaker 1: cases than any other judge in the district than any
Speaker 1: other judge in the country, and that's Judge Terry Doughty.
Speaker 1: He's based in Monroe. He has heard five of these
Speaker 1: cases so far, and Republicans seemed to kind of find
Speaker 1: him by accidents, but then returned to him time and
Speaker 1: time again after he gave them a favorable ruling. And
Speaker 1: you know, he has definitely become frequent target for for
Speaker 1: this tex logation. He's given nationwide injunctions in some pretty
Speaker 1: big cases. Tell us about some of the bigger cases
Speaker 1: that he's been involved in. So the first case was
Speaker 1: a case involving um oil and gas weeping on federal lands,
Speaker 1: and that one was in the summer of that one
Speaker 1: was initially filed in Lake Child's division, where he only
Speaker 1: gets ten percent of the cases, So it was a
Speaker 1: little bit by chance that they got him, but he
Speaker 1: gave the Attorney General that filed that lawsuit is favorable ruling.
Speaker 1: And then they returned to him again for a case
Speaker 1: fighting Biden COVID nineteen vaccine mandates for healthcare workers and
Speaker 1: had start teachers. And they've filed in the Monroe division,
Speaker 1: where he's gotten anywhere between eighty percent of the cases
Speaker 1: to a percent of the case, says several times after that.
Speaker 1: How do the district courts decide who gets what case?
Speaker 1: How do they divvy them up? Is it the same
Speaker 1: for all are different, So it's different, and courts have
Speaker 1: a lot of ability to how they assigned cases. Sometimes
Speaker 1: it's more transparent than others. In these courts that happens
Speaker 1: to be pretty transparent, they post their case assignment orders online.
Speaker 1: Oftentimes you know they'll they'll break it down by division
Speaker 1: or judge, and they'll be percentages assigned to those judges
Speaker 1: in those divisions, which are based on geography, and that's
Speaker 1: kind of what determines what cases go to which judges.
Speaker 1: So in a small division Monroe, for example, um is
Speaker 1: one of these small divisions, there might only be two
Speaker 1: judges hearing the majority of the cases, and the percentages
Speaker 1: could could vary between, you know, one judge and for
Speaker 1: another judge, or for one judge for another judge, So
Speaker 1: people filing lawsuits and the divisions can have a degree
Speaker 1: of certainty about who the judge they're going to get.
Speaker 1: This one of the important things in getting a judge
Speaker 1: in Louisiana or Texas is that it goes to the
Speaker 1: Fifth Circuit Court of Appeals which is one of the
Speaker 1: most is not the most conservative circuits in the country, right,
Speaker 1: and that that definitely adds to the appeal of um
Speaker 1: pardon my pun, the musual of any court in the
Speaker 1: Fifth Circuit. Um. If you file at a district court
Speaker 1: that is in the Fifth Circuit, that would be appealed
Speaker 1: to the Fifth Circuit. And the Fifth Circuit, as you said,
Speaker 1: is um is known as one of the most conservative
Speaker 1: circuit courts in the country. Um. And that, combined with
Speaker 1: the fact that there is a conservative majority on the
Speaker 1: Supreme Court right now, gives Republicans um the best shot
Speaker 1: that they've had in a long time at at getting
Speaker 1: a favorable ruling all the way up the ladder. Have
Speaker 1: any of Judge Doty's decisions gone to the Fifth Circuit
Speaker 1: and then been reviewed by the Supreme Court. In the
Speaker 1: highest profile of those cases, which was the vaccine mandate
Speaker 1: for healthcare workers, uh Dodi's ruling was limited by the
Speaker 1: Fifth Circuit. Um he enjoined he had an injunction. They
Speaker 1: limited it to the fourteen states that filed the litigation. Um,
Speaker 1: but then they tossed it out or staff out in
Speaker 1: light of the Supreme Court decision to allow the mandate
Speaker 1: to take effect in a different case. And he doesn't
Speaker 1: think that he's political. No, he said that he's making
Speaker 1: determinations about you know, what he thinks the law is.
Speaker 1: He's got to follow what he thinks the law is.
Speaker 1: And he he told you Lydia that he he doesn't
Speaker 1: believe that he's political, and he doesn't rule a particular
Speaker 1: way because he was appointed by a certain president. And
Speaker 1: he's not the only judge is he that Republican attorneys
Speaker 1: general go to? As you mentioned, there is already kind
Speaker 1: of this focus on Texas and UM Professor Stephen Laddick
Speaker 1: has looked at some of the litigation in Texas, you know,
Speaker 1: by the Texas a G by the Texas Governor UM,
Speaker 1: and when litigation is filed in Texas UM, they can
Speaker 1: similarly look for these divisions that have a majority of
Speaker 1: the Republican appointees or have a very small number of
Speaker 1: judges where they can be pretty sure about who they're
Speaker 1: going to get. The Texas is already a an area
Speaker 1: where this this happens and is well known that this happens.
Speaker 1: Then I just want to point out there's nothing on
Speaker 1: ethical in forum shopping. So forum shopping is something that
Speaker 1: all litigants pans and and in a lot of scenarios
Speaker 1: do as as a part of uh, you know, good lawyering.
Speaker 1: And this is pointed out by a former judge UM
Speaker 1: the Fifth Circuit, Um, Greg Costa, who recently left to
Speaker 1: return to private practice, and he noted that, you know,
Speaker 1: forum shopping is something that UM lawyers do to make
Speaker 1: sure that they're they're going to have the best chance
Speaker 1: uh you know, getting there, um getting a favorable ruling.
Speaker 1: But um, you know, critics of forum shopping and judge
Speaker 1: shopping also um point out that this is a way
Speaker 1: that just because you can do it doesn't necessarily mean
Speaker 1: that it's a good thing. And uh, you know, maybe
Speaker 1: instances where you can really pinpoint who your judge is
Speaker 1: going to be, there needs to be a change. And
Speaker 1: the only change that could really happen there would be
Speaker 1: a systematic change too, uh prevent people from targeting a
Speaker 1: judge in in a particular area. So Judge Costa has
Speaker 1: advocated for changes, and he's made a suggestion. Right there
Speaker 1: is uh a proposal that that he has talked about
Speaker 1: in the past, which is to have three judge panels
Speaker 1: here cases that are seeking nationwide injunctions instead of a
Speaker 1: single judge. There could still be forum shopping under that system.
Speaker 1: You could still you know, choose a court in the
Speaker 1: Fifth Circuit to have an appealed to the Fifth Circuits tents.
Speaker 1: But it would prevent judge shopping, and it would it
Speaker 1: would limit forum shopping some at least. This is what
Speaker 1: got that says, you know, instead of being able to
Speaker 1: target one judge, there's less certainty if two other judges
Speaker 1: that you can't choose are added to that panel. Democratic
Speaker 1: a g s also do forum shopping. Where do they
Speaker 1: do their form shopping? So when Democratic Attorneys general forum shop,
Speaker 1: they target the northern districts of California and the southern
Speaker 1: districts of New York. Those are venues that saw quite
Speaker 1: a few lawsuits during the Trump administration, and Democrats sued
Speaker 1: the Trump administration a lot. There were more multi state
Speaker 1: suits against the Trump administration than they're wordering a bomb administration.
Speaker 1: Thanks so much, Madison. That's Madison Alder of Bloomberg Law.
Speaker 1: And that's it for this edition of the Bloomberg Law Show.
Speaker 1: Remember you can always get the latest legal news on
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Speaker 1: June Grosso and you're listening to Bloomberg m