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

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Speaker 1: Right right, rye, rye, rye, rye. People across the country

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Speaker 1: gathered last month to mark the Transgender Day of Visibility

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Speaker 1: in an effort to build support for transgender rights and

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Speaker 1: call out the hostility toward transgender people seen in a

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Speaker 1: wave of new state laws restricting their rights. In the

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Speaker 1: last three years, nineteen states have enacted measures to restrict

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Speaker 1: the participation of transgender students on school sports teams. The

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Speaker 1: Supreme Court acted for the first time on these state

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Speaker 1: restrictions last week, allowing a twelve year old transgender girl

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Speaker 1: to continue competing on her middle school track team over

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Speaker 1: the descents of two Conservative justices joining me as Catherine Frankie,

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Speaker 1: director of Columbia Law School's Center for Gender and Sexuality Law,

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Speaker 1: tell us about this West Virginia law, which the Attorney

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Speaker 1: General of West Virginia said was a choice to protect

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Speaker 1: fair play and safety for females well. In April of

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Speaker 1: twenty twenty one, the West Virginia legislature passed the law

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Speaker 1: that limited competition in girls sports, whether it's in middle school,

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Speaker 1: lower school, even intramural sports, to girls whose reproductive biology

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Speaker 1: and genetics at birth were marked as female on their

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Speaker 1: birth certificate. Voice sports are not similarly limited to individuals

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Speaker 1: whose reproductive biology and genetics at birth were marked as male.

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Speaker 1: So the law only regulates girls sports, whether it's very

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Speaker 1: competitive or intramural sports. And there's a now twelve year

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Speaker 1: old girl in West Virginia who is trans identifies as

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Speaker 1: mail in every way, and she wants to try out

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Speaker 1: for the cross country and track team at her school

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Speaker 1: and has been barred from doing so by her local

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Speaker 1: school because of this law. So she filed a lawsuit

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Speaker 1: in federal court claiming that she's being discriminated against on

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Speaker 1: the basis for her sex. Nineteen states have passed laws

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Speaker 1: similar to West Virginia in just the past three years.

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Speaker 1: That's sort of remarkably fast, isn't it. It's important to

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Speaker 1: note that there have been almost two hundred bills introduced

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Speaker 1: since state legislatures across the country this year alone that

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Speaker 1: target trans kits and their capacity or ability to compete

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Speaker 1: in sports, but also limit access to gender affirming care

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Speaker 1: or go after parents who seek to recognize their kids

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Speaker 1: gender identity. Targeting and stigmatizing trans people, but particularly trans

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Speaker 1: kits is the go to strategy for the right wing

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Speaker 1: and trying to mobilize their a this year, and so

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Speaker 1: many of us find it so shocking that at a

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Speaker 1: time when kids are being shot with AK forty seven

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Speaker 1: and other automatic weapons in school, these state legislatures are

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Speaker 1: seeing more of an emergency around trans kids competing in

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Speaker 1: sports than the other kids, all the kids in their

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Speaker 1: schools being murdered. The fact of the matter is that

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Speaker 1: a half of one percent of the American population identifies

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Speaker 1: as transgender, and it's an even smaller number of children

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Speaker 1: who do so who want to compete in sports. There

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Speaker 1: simply is no national emergency or sex equality problem that

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Speaker 1: these legislatures are appealing to. In reality, what they're doing

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Speaker 1: instead is mobilizing a form of fear and hatred towards

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Speaker 1: a very small minority of kids, and as a result,

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Speaker 1: I think, making them even more vulnerable to mental health issues,

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Speaker 1: bullying from other students and teachers, and other parents, making

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Speaker 1: their situations worse rather than better. What I find also

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Speaker 1: surprising is this twelve year old girl wasn't like a

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Speaker 1: star athlete whose competition threatened others. Her lawyers described her

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Speaker 1: as a girl who simply enjoys running with her friends

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Speaker 1: and consistently finishes at the back of the pack in races,

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Speaker 1: and her coaches and teammates supported her. So why do

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Speaker 1: you think West Virginia fought this all the way to

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Speaker 1: the Supreme Court and is still fighting it well, because

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Speaker 1: these cases are underwritten by right wing evangelical Christian legal

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Speaker 1: advocacy organizations Alliance Defending Freedom and groups like that, and

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Speaker 1: they have taken up this issue a vilifying trans students,

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Speaker 1: trans kids, and trans girls only not trans boys, but

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Speaker 1: trans girls as part of their larger effort to have

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Speaker 1: the federal law embrace a religious view of who God

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Speaker 1: made us to be when we were born, and some

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Speaker 1: people who can hold that view, but many other people don't,

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Speaker 1: and the law shouldn't embrace that view and that perspective

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Speaker 1: on gender identity. So there's a crow line between these

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Speaker 1: cases and of course restrictions on abortion and homosexuality more generally,

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Speaker 1: there's a longer term agenda here of a kind of

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Speaker 1: Christian nationalism that's being mobilized through a false sense or

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Speaker 1: a false argument around sex based equality. You know, June

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Speaker 1: I competed in sports in elementary and middle school and

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Speaker 1: high school. I was an average athlete. There were other

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Speaker 1: girls on the team. I think I remember Sue Bransfield

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Speaker 1: as an amazing basketball and softball player. There are always

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Speaker 1: kids on sports teams who have physical endowments that make

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Speaker 1: them better at those sports than other kids, and we

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Speaker 1: don't see them as having an unnatural or unfair advantage

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Speaker 1: because their legs are longer in their runners, or they're

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Speaker 1: taller and they're better at basketball. We allow the whole

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Speaker 1: range of kids to compete, and to isolate only trans

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Speaker 1: kits for some unfair advantage ignores the fact that there

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Speaker 1: are lots of kids with lots of different bodies that

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Speaker 1: compete in sports, and we should allow all of them

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Speaker 1: to compete and compete fairly. This decision was on what's

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Speaker 1: called the shadow docket, so there's no opinion of the

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Speaker 1: court that we can look at. So how important is

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Speaker 1: it and what can we take from it? Well, the

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Speaker 1: fact that the Supreme Court did not take this case,

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Speaker 1: I think is a good sign. It means that the

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Speaker 1: normal appellate process is taking place. There was a ruling

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Speaker 1: from the district court. It was appealed to the appellate court,

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Speaker 1: and the a appellate Court is considering the case while

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Speaker 1: it's being fully briefed and argued, and then after that decision,

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Speaker 1: a normal appeal would go to the Supreme Court. And

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Speaker 1: what the advocate sought here was an expedited appeal from

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Speaker 1: that appellate court to the Supreme Court when the appellate

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Speaker 1: Court hadn't even reached a decision yet. And we're seeing

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Speaker 1: more and more that the Supreme Court is reaching down

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Speaker 1: and grabbing cases early and issuing decisions on them before

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Speaker 1: they've been fully litigated below because they have a political

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Speaker 1: agenda or rule on things like abortion or trans or

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Speaker 1: sexual orientation based rights. So the fact that the Court

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Speaker 1: didn't take this case this time shouldn't be big news.

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Speaker 1: It's normal law. This is how things normally work. But

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Speaker 1: of course you've got Justice as Alito and Thomas who

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Speaker 1: would issue at dissent to the Court's refusal to take

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Speaker 1: this case, saying they would take it now, expressing out

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Speaker 1: loud the idea that the courts should move peremptorily and

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Speaker 1: speed up the process in cases like this. But thankfully,

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Speaker 1: seven other members of the Court felt that they didn't

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Speaker 1: need to take the case yet. It's not ready for

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Speaker 1: an appeal to the Supreme Court. How would you characterize

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Speaker 1: the record of the Supreme Court on transgender rights or

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Speaker 1: haven't there been enough cases to characterize it? Well, I

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Speaker 1: guess I'd answer with Supreme Court. And we had Justice

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Speaker 1: Kennedy on the Court and Justice Ginsburn for that matter.

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Speaker 1: The Court began to be quite open to hearing trans

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Speaker 1: discrimination cases as a form of injustice and inequality, and

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Speaker 1: in a case Bostoc several years ago, the Supreme Court,

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Speaker 1: by five to four vote recognized that discrimination on the

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Speaker 1: basis of gender identity or sexual orientation was a form

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Speaker 1: of sex discrimination. Now two of those members of the

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Speaker 1: Court are now gone and have been replaced with more

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Speaker 1: conservative members. So we'll see where this current court takes

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Speaker 1: that jurisprudence, if they out and out reverse those earlier

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Speaker 1: decision or they modify and narrow it. And that's something

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Speaker 1: we'll have to wait and see. But what Justice Thomas

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Speaker 1: did in the Dab's decision, the abortion decision, in his

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Speaker 1: concurrence in that case is signaled to the advocates, please

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Speaker 1: bring on these sexual orientation and gender identity cases, because

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Speaker 1: at least I'm prepared to overrule them now that we

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Speaker 1: have a more conservative supermajority on the court. Supporting the

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Speaker 1: position of West Virginia at the Supreme Court were tennis

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Speaker 1: star Martina Navratalova and Olympic gold medal winning swimmers Donna

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Speaker 1: de Verona, Nancy Hogshead macarr and Summer Sanders. Is it

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Speaker 1: surprising that those female athletes would take a position against

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Speaker 1: the transgender girl participating in school sports? Well, simply because

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Speaker 1: they are professional athletes and they some of them are lesbians,

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Speaker 1: doesn't mean that they necessarily agree or about the justice

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Speaker 1: of granting trans right. Unfortunately, there remains a diversity of

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Speaker 1: opinions about the legitimacy of trans people competing in either

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Speaker 1: ultra elite sports like Martina Navratalova's level, or intramural sports

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Speaker 1: like what this kid wants to do this girl wants

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Speaker 1: to do in West Virginia, and it's unfortunate. I think

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Speaker 1: that Martina Navratalova can't see that the stakes for sex

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Speaker 1: based equality in this case apply to her ability, Marquini's

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Speaker 1: ability to have been an equally well paid athlete as

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Speaker 1: a tennis player, that there are similar issues around sex

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Speaker 1: based discrimination that affected her as a competitive athlete and

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Speaker 1: are now affecting these trans kits, and that's the work

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Speaker 1: we still have to do, is to make it clear

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Speaker 1: why there's a sex based discrimination issue at stake in

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Speaker 1: these cases. And it's just too bad that some of

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Speaker 1: these prominent athletes haven't quite gotten that message yet. So

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Speaker 1: under a rule change proposed by the Biden administration last week,

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Speaker 1: schools would not be able to categorically ban transgender athletes.

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Speaker 1: Can the Biden administration put that rule forward by itself, Yes, Well,

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Speaker 1: they've been considering this rule change for some time, and

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Speaker 1: what they did is a little bit of a compromise,

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Speaker 1: I would say, in order to meet some of the

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Speaker 1: concerns by the most adamant opponents to having trans girls

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Speaker 1: compete in sports. It's a proposed rule, So according to

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Speaker 1: the rules of how these rules get implemented, there will

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Speaker 1: be a period of time where people can comment and

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Speaker 1: provide feedback to the Department of Education around the wisdom

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Speaker 1: of this rule, and then they will consider those objections

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Speaker 1: or letters of support and issue a final rule that

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Speaker 1: may be different from this one that they have proposed.

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Speaker 1: So we'll see what the final rule looks like. But

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Speaker 1: I think it's an effort by the administration to both

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Speaker 1: respect the rights of trans athletes but also hear some

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Speaker 1: of the objections from those who are concerned about trans

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Speaker 1: girls competing at the highest levels. Any final thought on

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Speaker 1: all these efforts to restrict transgender girls from participating in

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Speaker 1: school sports, I think it's important to notice that boys

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Speaker 1: sports or men's sports are not being similarly regulated. I mean,

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Speaker 1: if you look at the top athletes in male sports,

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Speaker 1: Michael Phelps, for instance, he was born with enormous physical

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Speaker 1: and adowments that made him an incredible an incredible swimmer,

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Speaker 1: and actually those endowments kind of tests the border between

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Speaker 1: human and dolphin in some respects, just as the claim

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Speaker 1: is that some of these trans female athletes are testing

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Speaker 1: the border between male and female. And the fact remains

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Speaker 1: that there's some people who are just built in ways

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Speaker 1: that make them extremely well suited for the sports that

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Speaker 1: they've chosen to compete in. And it's part of why

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Speaker 1: this is a form of sex discrimination and has only

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Speaker 1: female sports where the best athletes are being challenged for

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Speaker 1: not being real women. But we don't see the best

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Speaker 1: male athletes being challenged for being having an unfair advantage

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Speaker 1: because of their physical endowments, and only targeting female trans

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Speaker 1: athletes who are at the top of their field, or

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Speaker 1: as is the case with this West Virginia girl, is

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Speaker 1: in the back of the pack and being disqualified from

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Speaker 1: even trying out for the team is clearly, on its face,

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Speaker 1: a form of sex basis nomination. It's always great to

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Speaker 1: have your insights, Catherine. Thank you so much. That's Professor

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Speaker 1: Katherine Frankie, director of the Center for Gender and Sexuality

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Speaker 1: Law at Columbia Law School. Since the beginning of the year,

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Speaker 1: at least thirty two bills have been filed in states

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Speaker 1: targeting drag performances, with more on the way. Tennessee was

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Speaker 1: the first state to pass its bill into law last month,

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Speaker 1: banning adult cabaret performances in public or in the presence

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Speaker 1: of children. Memphis drag artist Slade Kyle questions the purpose

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Speaker 1: of the law, and my question to the governor was,

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Speaker 1: can you produce any evidence of a child being harmed

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Speaker 1: or abused at a drag show? He can't cite one,

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Speaker 1: not a single instance as has ever occurred. So we're

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Speaker 1: battling this amorphous thing that does not exist, rather than

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Speaker 1: tackling real issues that face our kids. Here in Tennessee,

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Speaker 1: A federal judge also questioned the law's purpose. Judge Thomas

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Speaker 1: Parker issued a temper our injunction to stop enforcement of

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Speaker 1: the law, writing that the state has failed to make

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Speaker 1: a compelling argument as to why Tennessee needed the new law,

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Speaker 1: adding that the statute is likely vague and overbroad. Joining

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Speaker 1: me is Susan Scaffiti, a professor at Fordham Law School.

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Speaker 1: Tennessee's governor compared this to sexualized entertainment in front of children.

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Speaker 1: The state co sponsor said, we're protecting kids and families

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Speaker 1: and parents who want to be able to take their

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Speaker 1: kids to public places. What's the real reason behind this law?

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Speaker 1: Right now? There's a moral panic June, not about the

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Speaker 1: old feminist question of who wears the pants, but who's

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Speaker 1: allowed to wear a dress. And there is so much

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Speaker 1: concern over policing the boundaries of gender in this moment,

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Speaker 1: and I think it's for various reasons. One is because

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Speaker 1: the transgender community has become much more visible and there

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Speaker 1: is fear of that change, even though we have had

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Speaker 1: transgender people with us for all of human history more

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Speaker 1: than likely. And secondly, because drag entertainment, which is not

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Speaker 1: specific to being transgender but is a performance of the

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Speaker 1: being of the opposite gender has become so very popular,

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Speaker 1: and so there is a concern that somehow children will

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Speaker 1: be converted to some kind of gender queerness, and that

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Speaker 1: drag is part of that, and things like having a

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Speaker 1: man in address to read a story at a school

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Speaker 1: is going to groom children to become confused about their

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Speaker 1: sexual identities. I think anything that promotes literacy is a

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Speaker 1: good idea, no matter who's reading it. But that's the

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Speaker 1: expressed concern. But you know, I think there's something deeper

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Speaker 1: culturally going on. There is. So there is that widespread,

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Speaker 1: expressed concern among certain parents and other individuals, but there's

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Speaker 1: also something coming from the extreme conservative religious rights because

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Speaker 1: if you go back to the the Book of Deuteronomy,

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Speaker 1: right Deuteronomy twenty two five, there is an actual prohibition

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Speaker 1: against cloth dressing. A woman shall not wear anything that

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Speaker 1: pertains to a man norgual a man put on a

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Speaker 1: woman's garments. And so I think there is among some

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Speaker 1: individuals a deep seated belief that simply wearing the traditional

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Speaker 1: clothing of the opposite sex or that is affiliated with

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Speaker 1: the opposite sex, is somehow evil. And we're seeing that

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Speaker 1: played out here. Let's talk about some of the possible

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Speaker 1: legal challenges. Does this violate the First Amendment rights of

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Speaker 1: drag artists? The bill in Tennessee that you mentioned, which

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Speaker 1: is probably only the first of a series of if

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Speaker 1: you will, anti drag gills that we will see, because

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Speaker 1: there are a number that are under consideration in other states,

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Speaker 1: has been challenged specifically on First Amendment ground. The organization

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Speaker 1: that has challenged it is called Friends of George's. They're

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Speaker 1: a community theater group that features drag performances that features

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Speaker 1: a performers from the LGBTQIA plus community. I hope I

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Speaker 1: got all the letters in there, but the plus covers

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Speaker 1: a whole range of gender Curtis, of course, but that

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Speaker 1: theater has challenged on the basis of the First Amendment,

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Speaker 1: claiming that the statute which redefines adult cabaret entertainment and

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Speaker 1: then prohibits adult cabaret entertainment both in public places and

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Speaker 1: anywhere that children might happen to see it passing by

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Speaker 1: the windows or with have you, maybe in a private

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Speaker 1: home with the television set on, is completely prohibited and

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Speaker 1: has no exception even for parental guidance or consent. In

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Speaker 1: other words, under this bill, you probably can't take your

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Speaker 1: kids to a grated drag brunch. And so sent of

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Speaker 1: Georgis has challenged this, saying that it is overbroad and

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Speaker 1: vague under the First Amendment standards and because this is

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Speaker 1: content based regulation of speech. The court has issued a

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Speaker 1: preliminary injunction, meaning that the bill cannot yet be enforced,

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Speaker 1: even though we're supposed to have gone into effect on

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Speaker 1: April first, and the court believes that there is at

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Speaker 1: least possibility that this law is indeed vague and overbroad

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Speaker 1: and might not survive a First Abendment challenge. Yeah. The

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Speaker 1: judge also said the state failed to make a compelling

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Speaker 1: argument as to why Tennessee needed the new law, so

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Speaker 1: that will be a challenge, I suppose as the case

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Speaker 1: goes forward. The LGBTQIA community is concerned about the language

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Speaker 1: of the bill because drag performers are defined as male

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Speaker 1: or female impersonators, and they say that that could impact

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Speaker 1: queer Tennesseeans across the board, not just drag performers. That's

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Speaker 1: absolutely true. On Easter, we often rewatched the old bing

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Speaker 1: Crosby Duty Garland Felt Easter Parade, and she sure enough

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Speaker 1: shows up dressed as a man in all type sketch

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Speaker 1: in that movie. Right, We've got lots of different kinds

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Speaker 1: of performances that could be prohibited under these terms. And

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Speaker 1: in addition to the First Amendment challenge, I think we

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Speaker 1: could we could actually consider a whole other way of

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Speaker 1: challenging this law, and that is as discrimination on the

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Speaker 1: basis of sex, because as you've just said, it applies

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Speaker 1: to male or female impersonators. That is to say, men

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Speaker 1: wearing women's clothes, women wearing wearing men's clothes, or somehow

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Speaker 1: impersonating a woman. My goodness as an undergrad, and our

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Speaker 1: mascot was the Duke Blue Devil underneath that giant foamhead.

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Speaker 1: Some of the Duke Blue Devils who perform at halftime

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Speaker 1: and when rev up the crowd are women, as some

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Speaker 1: are men. But the Duke Blue Devil looks looks male,

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Speaker 1: and so is that a male impersonator. Are we not

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Speaker 1: going to be able to have mascots at halftime who

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Speaker 1: happened to be gendered male with females underneath the costumes,

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Speaker 1: or vice versa. So this could indeed be a reach

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Speaker 1: far beyond drag in some ways, depending on how the

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Speaker 1: statute is read. The last time the Supreme Court took

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Speaker 1: up an issue related to this was in Bostock, fe

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Speaker 1: Clayton County a few years ago. Tell us about the

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Speaker 1: issues they sidestep there, June, I'm so glad that you

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Speaker 1: brought up Boss Box against Clayton County, Georgia, because, as

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Speaker 1: you know, that was actually three combined cases, two cases

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Speaker 1: involving gay men and one involving a transgender woman, Amy Stevens,

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Speaker 1: who had worked for a funeral home for sixty years,

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Speaker 1: and then when she informed them that she was going

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Speaker 1: to continue her work, but to live and work as

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Speaker 1: a woman, they dismissed her. Amy Stephens, of course didn't

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Speaker 1: live to see the outcome of the case in her favor.

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Speaker 1: But the court specifically said that it was not reaching

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Speaker 1: the question of bathrooms, locker rooms, or this is what's

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Speaker 1: important for us dress codes. Now, to my mind, I

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Speaker 1: don't see how the court didn't reach the question of

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Speaker 1: dress codes, because all Amy Stevens did was change her

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Speaker 1: name and change her outward appearance in terms of what

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Speaker 1: people at the funeral home could have seen, right, I

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Speaker 1: don't know to what stent she engaged in any further transition,

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Speaker 1: but that is all that would have been visible to

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Speaker 1: her employer or anyone else at the funeral home, And

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Speaker 1: so Amy Stevens putting on a dress is something that

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Speaker 1: the court implicitly allowed, even though it says it didn't

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Speaker 1: reach the question of dress code, which is another reason

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Speaker 1: why I think that the Tennessee law and other similar

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Speaker 1: anti drag laws could indeed be challenged under these cases

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Speaker 1: having to do with discrimination on the basis of sex.

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Speaker 1: Now that's, of course. Bostock is, of course a Title

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Speaker 1: seven case, that is to say, an employment case under

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Speaker 1: the Civil Attact of nineteen sixty four, and Amy Stevens,

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Speaker 1: the transgender woman was employed and then dismissed by the

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Speaker 1: funeral home. We could think about drag performers who are employed.

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Speaker 1: Can an adult cabaret entertainment establishment in the words of

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Speaker 1: the Tennessee Statute, or could any theater employ a man

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Speaker 1: to do something but not a woman wearing men's clothes,

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Speaker 1: or vice versa. That would seem to be right in

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Speaker 1: the way house of a Title seven challenge. But even

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Speaker 1: beyond that, we could think of the cases like a

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Speaker 1: Bergofell against Hodges, the same sex marriage case the Supreme

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Speaker 1: Court also said prohibition against same sex marriage would constitute

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Speaker 1: discrimination on the basis of sex. So we have a

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Speaker 1: strong line of cases. I'm not sure whether they would

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Speaker 1: be decided all the same way by the current court,

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Speaker 1: but they are established precedent, nonetheless saying that it is

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Speaker 1: not legal to discriminate on the basis success. So how

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Speaker 1: is it that we can permit one gender to perform

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Speaker 1: in a particular costume and not allow someone of the

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Speaker 1: opposite gender to perform in that same costume doing that

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Speaker 1: same routine. And that's just assuming we only have two genders.

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Speaker 1: The plaintiffs in this case, Friends of George's, gave the

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Speaker 1: example of a Tennessee Titans cheerleader wearing a crop top

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Speaker 1: and miniskirt and performing at halftime being allowed to do

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Speaker 1: so is suming that cheerleader was female, but a man

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Speaker 1: putting on the exact same outfit and doing the exact

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Speaker 1: same routine being prohibited from doing so in any place

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Speaker 1: where he might be seen by miners. Another thing about

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Speaker 1: this bill, and it seems like the bill was poorly drafted,

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Speaker 1: or maybe it's just difficult to draft a bill like this,

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Speaker 1: But the law calls drag shows harmful to miners. But

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Speaker 1: the legal definition for harmful to minors is narrow in Tennessee.

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Speaker 1: It only covers extreme sexual or violent content. So might

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Speaker 1: that be another challenge? Absolutely, I think that it would be,

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Speaker 1: at the end of the day, very difficult to actually

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Speaker 1: convict someone under this law, or at least that's my

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Speaker 1: hope if the criminal case were brought before a court

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Speaker 1: that actually read closely, because the harmful to miners language

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Speaker 1: in the Tennessee law actually tracks federal extanity law very closely.

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Speaker 1: And it's a tripartite standard which includes, as you mentioned,

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Speaker 1: some of the description of content, but also says and

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Speaker 1: it's an and not an ore. And the performance or

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Speaker 1: the art being challenged, taken as a whole, lacks serious literary, artistic, political,

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Speaker 1: or scientific value for miners. Now, it's hard to argue

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Speaker 1: that any dance performance, any musical performance, any drag performance

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Speaker 1: that will lacks artistic value, including for miners, and certainly

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Speaker 1: in the current day, it's very hard to argue that

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Speaker 1: it lacks political value, including political value for miners. I

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Speaker 1: don't know if you follow RuPaul's drag race at all June,

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Speaker 1: my daughter does. They did a wonderful sketch that is

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Speaker 1: essentially a protest of laws like this one based off

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Speaker 1: the movie Footloose, only they called it wig loose, and

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Speaker 1: it was not permission just to don but permission to

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Speaker 1: perform in drag and a small town that tried to

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Speaker 1: prohibit it until more festive minds prevailed and more open

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Speaker 1: minds prevailed, and everyone ends up dancing while happily at

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Speaker 1: the end. You know. So a short and happy story,

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Speaker 1: but it is very much an indication that I believe,

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Speaker 1: in the current environment, pretty much any drag show would

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Speaker 1: have artistic and political value, including for minors. Now, which

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Speaker 1: is not to say that every performance, every bit of

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Speaker 1: adult cavalry entertainment is appropriate to children. There's certainly sexualized

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Speaker 1: performances that might not be. I think that this still

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Speaker 1: might be a stronger bill if it did have some

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Speaker 1: exceptions for parental consent or oversight, And of course it

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Speaker 1: would need to be written much more carefully so that

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Speaker 1: it didn't just define male or female impersonation as somehow harmful,

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Speaker 1: which is one very clear way of reading this bill.

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Speaker 1: Merely appearing in even proper church lady drag if it

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Speaker 1: belongs to the opposite gender, could conceivably be considered harmful

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Speaker 1: under this bill, you could have on everything from a

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Speaker 1: hat to a high place blouse, wrong sleeves, and if

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Speaker 1: we're length skirt and pumps and still being considered harmful

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Speaker 1: to miners if you appeared as a performer in this context,

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Speaker 1: and that strikes me as definitely overbroad. If what we're

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Speaker 1: really trying to do is protect miners from harm, I mean,

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Speaker 1: I think this says it all. This is the third

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Speaker 1: year in a row that the state House says, somehow,

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Speaker 1: you know, peel back the rights of transgender Tennesseeans. The

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Speaker 1: governor also signed a ban on gender affirming healthcare for

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Speaker 1: youth in the state. Now, would a judge take that

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Speaker 1: into consideration that this is ongoing and it seems like

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Speaker 1: the target is transgender people, whether or not it has

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Speaker 1: to do with drag or anything else. Very few drag

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Speaker 1: performers are actually transgender individuals, But it does seem that

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Speaker 1: drag as a performance art is being caught up in

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Speaker 1: this moral panic of transgender individuals because drag performers are

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Speaker 1: indeed forming in the persona of the opposite sex. So yes,

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Speaker 1: you definitely are connecting the dopts if you will, in

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Speaker 1: terms of what is happening in Tennessee and other places.

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Speaker 1: Could a court take that into account? It would be

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Speaker 1: difficult because the court is asked to examine the law

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Speaker 1: on its face and to examine the law as it

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Speaker 1: will be applied, and so a court is not like

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Speaker 1: to take into account the entire cultural background and a

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Speaker 1: suite of other laws that may or may not be constitutional.

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Speaker 1: But it's certainly given that judges are human as either

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Speaker 1: those appearing before the court. It's certainly in the back

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Speaker 1: of everyone's mind. There's no question when the representatives, the

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Speaker 1: state senator and representative in particular who introduced the still

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Speaker 1: have spoken about it publicly, that that is what is

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Speaker 1: in their minds when they talk about the grooming of

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Speaker 1: children and something that is harmful to miners. They believe

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Speaker 1: that exposure to someone who is pretending to be, even

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Speaker 1: for the purposes of entertainment, a member of the opposite sex,

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Speaker 1: somehow predisposes little minds to be warped. And it's unfortunate

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Speaker 1: in general, but it's certainly tragic for drag performers who

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Speaker 1: could lose their livelihoods, and many of whom have had

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Speaker 1: difficult personal histories and depend on being members of the

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Speaker 1: drag community and using that membership in the drag community

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Speaker 1: to create a career and to pursue an art form

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Speaker 1: that is very meaningful to them as individuals. It's not

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Speaker 1: just a matter of choosing between the violin and the

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Speaker 1: trumpet in high school band. This is part of who

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Speaker 1: they are as individuals and what they want to express

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Speaker 1: on the stage, even though they themselves are not personally transgender.

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Speaker 1: It is a way of joyfully exploring themes of gender

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Speaker 1: without actually being an individual who is a transgender Thanks

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Speaker 1: so much for being on the show season. That's Professor

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Speaker 1: Susan Scaffiti of Fordham Law School, and that's it for

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Speaker 1: this edition of The Bloomberg Law Show. Remember you can

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Speaker 1: always get the latest legal news on our Bloomberg Law Podcast.

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Speaker 1: You can find them on Apple Podcasts, Spotify, and at

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

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00:29:19,960 --> 00:29:23,000
Speaker 1: remember to tune into The Bloomberg Law Show every weeknight

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Speaker 1: at ten pm Wall Street Time. I'm June Grosso and

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Speaker 1: you're listening to Bloomberg