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Speaker 1: President Donald Trump was sued twice on Monday over his

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Speaker 1: plan to ban transgender soldiers from the US military, setting

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Speaker 1: the stage for more court battles over presidential directives. Trump

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Speaker 1: unexpectedly announced the ban in tweets on July. He tweeted

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Speaker 1: that the military quote cannot be burdened with the tremendous

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Speaker 1: medical costs and disruption that transgender and the military would entail.

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Speaker 1: On Monday, Trump defended in August memo that directed the

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Speaker 1: Pentagon to implement a ban on transgender individuals from enlisting

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Speaker 1: in or continuing to serve in the military. It's been

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Speaker 1: a very difficult situation, and I think I'm doing a

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Speaker 1: lot of people a favor by coming out and just say,

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Speaker 1: as you know, it's been a very complicated issue for

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Speaker 1: the military. It's been a very confusing issue for the military,

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Speaker 1: and I think I'm doing the military great favor. This

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Speaker 1: is the third lawsuit to stop the ban on transgender soldiers.

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Speaker 1: Shannon Mintor, legal director of the National Center for Lesbian Rights,

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Speaker 1: one of the organizations that sued first, says this is

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Speaker 1: already affecting many transgender soldiers their face with decisions they

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Speaker 1: have to make right now. About training, re enlistments, health care,

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Speaker 1: the future planning for for their families and their careers.

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Speaker 1: And they have no idea what's about to happen. Our

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Speaker 1: guests or Thomas Sport, director of the Center for National

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Speaker 1: Security at the Heritage Foundation, and Scott Skinner Thompson, professor

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Speaker 1: at the University of Colorado Law School. Scott start by

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Speaker 1: explaining exactly what this August memo directs. Sure. So the memo,

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Speaker 1: the President Trump issue does three things. It indefinitely extends

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Speaker 1: the ban on new enlistments by trans gender people. That

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Speaker 1: ban on new enlistment was set to lift on July one,

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Speaker 1: but had been extended by a Secretary Defense Masses to

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Speaker 1: January first, two thousand eighteen, and Trump UH has extended

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Speaker 1: that indefinitely, so no new no people who are transgender

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Speaker 1: will be able to enlist in the military. Second, it

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Speaker 1: reverses the ability of transgender people currently in the military

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Speaker 1: to stay effective March two thousand eighteen. UH. Since about

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Speaker 1: the two thousand sixteen, maybe even two thousand fifteen, transgender

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Speaker 1: people have been able to serve openly in the military.

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Speaker 1: UM those that are currently enlisted in the military have

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Speaker 1: been permitted to stay of the Trump memo would effectively

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Speaker 1: reverse that effective March two thousand eighteen. And finally, it

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Speaker 1: singles out and prohibits gender confirmation surgery for those enrolled

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Speaker 1: UM enlisted in the military, effective March two thousand eighteen.

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Speaker 1: So we're talking about President Trump's UM. Actually UH months

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Speaker 1: of prisident, Trump was actually putting out a memo saying

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Speaker 1: that UM directing the military that there will be no

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Speaker 1: more UH military transgender people in the military. Before he

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Speaker 1: banned the transgender people from the military, he had revoked

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Speaker 1: guidelines that gave transgender students. So coming up our transgender

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Speaker 1: rights becoming a new dividing line in the country's wars.

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Speaker 1: And we're going to continue this discussion for a little

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Speaker 1: while UM Scott Trump is commander in chief. But let's

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Speaker 1: talk about the constitutional claims that the a c l

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Speaker 1: U and the Heritage Foundation are making here, right. So,

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Speaker 1: the a c l U and LAMB Illegal and the

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Speaker 1: National Center for Lesbian Rights UM have filed a series

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Speaker 1: of lawsuits UM that raised a couple of different claims

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Speaker 1: challenging the constitutionality of President Trump's UM action, And I

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Speaker 1: think the most significant is the equal protection challenges that

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Speaker 1: says that basically transgender people here are being targeted based

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Speaker 1: on the protected characteristics, their transgender status and sex based characteristics,

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Speaker 1: and as such they are subject to UM either intermediate, intermediate,

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Speaker 1: or heightened scrutiny under the Equal Protection Clause UM, and

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Speaker 1: and that requires the government to really have an important

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Speaker 1: or compelling UM government interest for singling them out. And

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Speaker 1: UM what we know is that there is no UM

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Speaker 1: interest here and really no rational basis for this policy.

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Speaker 1: The Obama administration and the Department of Defense UH did

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Speaker 1: what governments are supposed to do, which is study issues

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Speaker 1: before making UM decisions, and they commissioned a report by

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Speaker 1: the RAND Corporation hardly UM, a liberal fire brand group,

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Speaker 1: and that report concluded that inclusion of transgender people in

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Speaker 1: the military would have a minimal effect on military readiness,

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Speaker 1: and they would have it would impose minimal costs on

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Speaker 1: the US UM government. And as such, the Department of

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Speaker 1: Defense lifted the ban on transgender UM service members, concluding

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Speaker 1: that there was no reason UH that there's a military

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Speaker 1: or readiness justification for this UM that overcomes the targeting

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Speaker 1: of UH of the of transgender people. TOM give us

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Speaker 1: the other side, what's the strongest arguments in favor of

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Speaker 1: the legality of this this new policy. I'm not going

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Speaker 1: to speak really to the legality. I will speak to

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Speaker 1: what we think is potentially disqualifying, and that is, Uh,

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Speaker 1: there are internal statistics, self reporting statistics to talk about

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Speaker 1: transgender individuals attempting suicide at nine times the rate of

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Speaker 1: the US population as a whole, and so of transgender

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Speaker 1: individuals and reported that they attempt suicide versus four point

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Speaker 1: six of the United States population. This the service in

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Speaker 1: the military is perhaps the most stressful occupation that we have,

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Speaker 1: and so I think we have a duty to assure

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Speaker 1: ourselves and placing transgender individuals in harm's way will not

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Speaker 1: contribute to increased rates of psychological damage or trauma to

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Speaker 1: these individuals. But the Tom, Tom, I'm curious that you

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Speaker 1: you don't want to talk about the legality of this because, um,

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Speaker 1: you know, we heard on the other side of an

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Speaker 1: argument that there's not a uh not a not a

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Speaker 1: legal basis for this new policy. Um uh, why don't

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Speaker 1: you address that? No, I certainly will, so let me

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Speaker 1: say this. Every day, in recruiting stations across America, the U.

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Speaker 1: S Military discriminates against individuals who want to join the military,

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Speaker 1: and I I respect people that want to serve and

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Speaker 1: respect those that want to join the military, but they

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Speaker 1: discriminate and then discriminate on a bunch of different categories. So,

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Speaker 1: for example, if you're thirty years old, you can't join

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Speaker 1: the Marine Corps because you're too old. If you have

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Speaker 1: asthma to any degree, flat feet, or bad peanut allergies,

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Speaker 1: you can't join the military. You can't join the military

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Speaker 1: if you don't have high school diploma in most cases,

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Speaker 1: and you don't pass various UH stages. So joining the

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Speaker 1: military is UH an aspect, something that we appreciate people doing,

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Speaker 1: but it is not open to all people with all

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Speaker 1: kinds of different situations. Scott, how are those qualifications that

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Speaker 1: Tom just mentioned different from excluding someone because they're transgender. Well,

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Speaker 1: let me just say really quickly, the argument about the

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Speaker 1: suicide rate, I think is really specious and cyclical. The

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Speaker 1: reason why transgender people maybe at higher risk of mental

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Speaker 1: health problems has nothing to do with the act that

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Speaker 1: they are transgender. It has to do with policies just

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Speaker 1: like this, discriminatory social policies that stigmatize them, single them out,

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Speaker 1: and make them feel inferior. That's why they might have

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Speaker 1: a greater degree of mental health issues. And suggesting that, oh, well,

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Speaker 1: the results of our discrimination causes transgender people to have

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Speaker 1: higher sewers side rates means that you can continue, um

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Speaker 1: to discriminate against them, is uh cyclical and um you know,

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Speaker 1: really just illogical. With regard to the point about um

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Speaker 1: physical fitness, I would say, nobody here is questioning that

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Speaker 1: there are standards that must be satisfied in terms of

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Speaker 1: people's fitness to be in the military. But transgender people

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Speaker 1: are perfectly capable of meeting those standards and have been

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Speaker 1: meeting those standards. And I would add that these same

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Speaker 1: kinds of arguments have been raised time and time again

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Speaker 1: to justify excluding certain people from the military. They were

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Speaker 1: raised against including women in the military. Military, they were

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Speaker 1: raised against excluding gays, lesbians, and bisexual people from the military.

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Speaker 1: And every time, after some initial uh wrongheaded policies, our

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Speaker 1: country has finally come to the right decision and I

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Speaker 1: feel confident that will reach the right decision again, a

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Speaker 1: decision that recognizes the full humanity of transgender people and

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Speaker 1: doesn't use them as President Trump is clearly doing here

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Speaker 1: for political gain. To to um uh to ingratiate himself

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Speaker 1: to the conservative base. Um. This policy was announced in

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Speaker 1: a tweet, and it was a tweet that that occurred

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Speaker 1: while the Defense Secretary was studying the issue. The president

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Speaker 1: was responding to arguments that the military shouldn't have to

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Speaker 1: pay for the costs of surgery. Uh. And and then

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Speaker 1: he went further in said, UM that I I don't

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Speaker 1: want to have transgender people in the military at all. UM.

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Speaker 1: It doesn't The haphazard way uh that was the policy

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Speaker 1: was announced suggests that it wasn't very well thought through

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Speaker 1: and and probably increase the chances that a court will

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Speaker 1: strike it down. You know, I can't speak to whether

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Speaker 1: the court will strike it down because of the way

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Speaker 1: it was initially announced on tweets. I do know that

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Speaker 1: when you read the the executive order that the President signed,

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Speaker 1: it sounds very logical and it makes perfect sense. It

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Speaker 1: talks about the impact on the military and the unknown

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Speaker 1: nature of what gender dysphoria, the underlying a situation that

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Speaker 1: transgender causes on the readiness of the force, and it

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Speaker 1: also goes on to say that in terms of the

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Speaker 1: people that are currently serving in the military that are transgender,

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Speaker 1: the Secretary of Defense is going to make your recommendation

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Speaker 1: to the president on how to handle them, so it's

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Speaker 1: not a categoric they're all being kicked out. He has

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Speaker 1: asked to Victory managed to give him his recommendations on

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Speaker 1: how to address and handle people currently serving in the military. Scott,

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Speaker 1: what would have to be proven in court in order

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Speaker 1: to get an injunction? Well, I'm happy to answer that,

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Speaker 1: but just want to correct one factual UM point. With

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Speaker 1: all due respect the the UM. The memo that the

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Speaker 1: president issues does not permit transgender people currently serving to

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Speaker 1: stay beyond March two, eighteen. Secretary Mathis does not have

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Speaker 1: discretion to permit them to stay beyond that date. He's

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Speaker 1: given discretion for to deal to figure out how to

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Speaker 1: deal with them in the interim and tell that date.

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Speaker 1: But beyond that date, they will not be able to

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Speaker 1: UH permitted um UH to stay in the military. With

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Speaker 1: respect to your question about UM an injunction, UH, the

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Speaker 1: UM the plainiffs will need to demonstrate that there's a

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Speaker 1: likelihood of success in the merits and that they will

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Speaker 1: UM suffer irreparable harm if this UM if a court

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Speaker 1: doesn't step in to UM stop this policy. And i

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Speaker 1: I've already discussed a little bit why I think there's

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Speaker 1: a likelihood of success on the merits with respect to

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Speaker 1: the equal protection um uh claim. But I think with

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Speaker 1: respect to irreparable UM harm, anybody who wants to be

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Speaker 1: in the UM military now is currently being banned as

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Speaker 1: we speak, and all those UM so they're suffering harm now.

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Speaker 1: And all those currently serving in the military UM, including

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Speaker 1: people who are seeking um UH gender confirmation surgery, are

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Speaker 1: being UM are being harmed because it's there's this cloud

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Speaker 1: hanging over them and an imminent UM their dismissal is

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Speaker 1: is imminent. So I think UM, based on the stigmatization

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Speaker 1: that they're currently suffering in addition to the practical effects

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Speaker 1: UH the are about to occur on their career, they'll

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Speaker 1: be able to demonstrate a reparable harm and they'll be

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Speaker 1: able to demonstrate that the balance of hardships UM tilt

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Speaker 1: in their favor. UM. There are a lot of parallels

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Speaker 1: with the debate we had a few years ago about

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Speaker 1: gay people serving in the military openly. UM. Is there

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Speaker 1: any evidence that Well, first of all, you can tell

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Speaker 1: me why that parallel may may not be perfect, if

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Speaker 1: you like, But I'm interested to know whether there's any

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Speaker 1: evidence that having gay people in the military has in

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Speaker 1: any way undermined the readiness of the military. No, I'm

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Speaker 1: not aware of any UH data or any results to

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Speaker 1: show that is undermined the readiness. I think that's an

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Speaker 1: example of an integration and acceptance if you will, it

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Speaker 1: has worked well, you know. I would draw a distinction though,

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Speaker 1: between me the incorporation of gay people with that of

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Speaker 1: transgender because transgender which is caused by gender dysphoria, that's

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Speaker 1: the technical name for It's outlined as a disorder in

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Speaker 1: the Manual of Mental Disorders, and this is something put

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Speaker 1: out by the American Psychological Association. So not not a social, social,

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Speaker 1: or a cultural kind of thing that we have to accept.

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Speaker 1: It's actually defined as a mental disorder. And as I

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Speaker 1: mentioned earlier, these people, self reporting survey data say that

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Speaker 1: they commit our attempt suicide at a rate nine times

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Speaker 1: the US population. And there's no there's no saying that

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Speaker 1: that is being caused by their not being accepted. This

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Speaker 1: is from across the United States where perhaps they are

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Speaker 1: being accepted. So before we put people like this in

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Speaker 1: increased harm's way, it only makes sense to us that

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Speaker 1: we make sure that We're not going to cause them

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Speaker 1: even greater mental anxiety. Well, there are a lot of

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Speaker 1: mental disorders that people have, you know, one that jumps

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Speaker 1: out clinical depression. Um, we don't have a ban on

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Speaker 1: people with clinical depression serving in them interrupt Jet the

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Speaker 1: me interrupted right there. If you if you try and

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Speaker 1: join the military and you have clinical depression, you are

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Speaker 1: not able to join the military. He is, what, Well,

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Speaker 1: let me let me, let me turn to another point,

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Speaker 1: or Scott, you want to jump in and help me

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Speaker 1: on this point. I feel free, but but let me

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Speaker 1: say I mean. One of the things the cl U

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Speaker 1: says in its lawsuit is that at least for new

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Speaker 1: people joining the military, UH, there has to be a

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Speaker 1: showing that. UM. It says that somebody who has gender

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Speaker 1: dysphoria is disqualified unless a doctor has certified that the

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Speaker 1: person was stable and didn't have any clinically significant distress

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Speaker 1: or impairment. If is that accurate? And and if it

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Speaker 1: is accurate, doesn't that take care of a lot of

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Speaker 1: the arguments that you're you're raising. No, I don't think so.

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Speaker 1: We're talking about people that are clinically stable in UH.

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Speaker 1: In Downtown United States of America, there's a there's an

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Speaker 1: entirely different h aspect of play. If you're in the

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Speaker 1: Helman Province in Afghanistan and the Taliban is shooting at you,

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Speaker 1: and so you're in a situation of an extraordinary stress,

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Speaker 1: not comparable to anything that you might find in the

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Speaker 1: United States. And so the fact that you might be

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Speaker 1: stable in your own home environment, when we take you

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Speaker 1: away from all your friends and family and place you

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Speaker 1: in an unknown environment where people are trying to kill you, uh,

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Speaker 1: it places a stress that we cannot anticipate or even evaluate.

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Speaker 1: The United States UM. The plaintiffs in the A. C. L.

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Speaker 1: You lawsuit include a Petty Officer brock Stone, who served

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Speaker 1: in the U. S. Navy for eleven years, including a

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Speaker 1: nine month deployment to Afghanistan, and Staff Sergeant Kate Cole,

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Speaker 1: who served in the U. S. Army for almost ten years,

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Speaker 1: including a year in Afghanistan where she was a team

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Speaker 1: leader and designated marksman. Scott with the evidence that you

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Speaker 1: have on the plaintiff side, on the opposite side, you

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Speaker 1: have the fact that Trump is the commander in chief,

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Speaker 1: and is the commander in chief empowered to make these

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Speaker 1: kinds of decisions. Well certainly UM. You know, the commander

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Speaker 1: in chief UH power. The president's power is that had

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Speaker 1: seen as when he's acting as commander in chief. But UM,

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Speaker 1: time and time again, we've seen courts recognize that that

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Speaker 1: power is not unlimited, that there are checks on the

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Speaker 1: president's power. And you know, an example of in the

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Speaker 1: military context, it doesn't necessarily deal with presidential power, but

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Speaker 1: it does deal with sex discrimination in UM in the

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Speaker 1: military context is the case of the United States versus

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Speaker 1: Virginia Military Institute, where you had one of the nation's

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Speaker 1: military few military colleges discriminating against UM female UM potential cadets,

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Speaker 1: saying they weren't permitted, and the U. S. Supreme Court,

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Speaker 1: in a seven one decision said, notwithstanding that we're dealing

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Speaker 1: with military policy, we're dealing with military readiness, there's no

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Speaker 1: reason to discriminate based on based on sex, and mandated

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Speaker 1: that women be permitted in to the Virginia Military Institute.

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Speaker 1: And I'd like to just go back to the description

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Speaker 1: of Okay, not not not all transgender people necessarily suffer

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Speaker 1: from UH mental health issues or even gender dysphoria. That

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Speaker 1: dysphoria comes when they are not permitted to UM to

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Speaker 1: take social steps to confirm their their gender identity. So

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Speaker 1: the impression being I'll have to stop you there. I

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Speaker 1: want to thank you both Scott Skinner Thompson, professor at

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Speaker 1: the University of Colorado Law School, and Thomas Spore, director

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Speaker 1: of the Center for National Security the Heritage Foundation. Coming

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Speaker 1: up on Bloomberg Law, we're going to be talking about

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Speaker 1: President Trump, who was expected to decide soon on the

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Speaker 1: fate of young immigrants who were brought into the country

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Speaker 1: illegally as children. This is Bloomberg for Purpo