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

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Speaker 1: Parents of transgender children in Texas are worried about the

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Speaker 1: state trying to criminalize the treatment of adolescence with gender dysphoria.

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Speaker 1: Rebecca Bryant is fearful about the Governor's ordered to investigate

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Speaker 1: parents for child abuse if they're providing gender affirmative treatments

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Speaker 1: for their transgender children. Is trying to scare families, which

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Speaker 1: is working. We're scared, trying to get us to leave Texas,

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Speaker 1: which some of us are the first parents to be

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Speaker 1: investigated for helping their teenage transgender daughter seek gender affirming healthcare.

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Speaker 1: Are suing the Texas governor and the States Child Welfare Agency.

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Speaker 1: A judge has temporarily stopped the state from investigating them.

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Speaker 1: Audrey Perez is with the a c l U, which

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Speaker 1: brought the suit along with LAMB illegal. This is a

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Speaker 1: clear example of government overreach and intrusion into the lives

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Speaker 1: of Texas families, um and their kids, attempting to dictate

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Speaker 1: what they can and cannot do to support their lgbt

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Speaker 1: Q and transgender, non binary child. Joining me is Anthony

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Speaker 1: christ a professor at the Georgia State University College of

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Speaker 1: Law tell us about Governor Greg Abbot's directive to the

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Speaker 1: Department of Family and Protective Services. So it actually starts

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Speaker 1: back in August, when a state representative had asked the

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Speaker 1: Attorney General of Texas whether certain kinds of gender affirming

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Speaker 1: healthcare for minors could constitute a form of child abuse

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Speaker 1: under Texas state law. Attorney General Paxson came back in

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Speaker 1: February and said yes, that there is a strong likelihood

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Speaker 1: essentially that recognized and generally accepted forms of treatment and

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Speaker 1: healthcare for trans children could constitute child abuse under state law.

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Speaker 1: And then subsequently the governor, using that opinion, directed the

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Speaker 1: state child welfare services officials to begin to investigate any

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Speaker 1: parents who were providing these gender affirming treatments and healthcare

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Speaker 1: for their children, to investigate them as child abusers, and

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Speaker 1: to potentially prosecute them for child abuses. I think it

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Speaker 1: should not go unsaid that, you know, March first was

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Speaker 1: the Texas primaries, and so I don't think the sequencing

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Speaker 1: in the timing of this is exactly removed from politics.

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Speaker 1: I think a lot of this is red meat in

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Speaker 1: order to stir up the Republican base, and they're using

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Speaker 1: trans children and their parents for political gain. Explain the

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Speaker 1: legal theories the parents are suing under. So there are

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Speaker 1: parents of trans children who are providing these forms of,

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Speaker 1: you know, again, widely recognized and accepted treatments for trans

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Speaker 1: children to ensure that their gender identity is respected and

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Speaker 1: and their needs are addressed. These parents sued under a

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Speaker 1: couple of theories in Texas State court. Basically, the first

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Speaker 1: thing was that the state's interpretation of sex abuse right

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Speaker 1: and child abuse was basically inconsistent with the procedures that

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Speaker 1: are required of administrative agencies to make rules right. So

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Speaker 1: basically the allegation is they didn't go through the kind

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Speaker 1: of notice and comment procedure um, and you know, what

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Speaker 1: the Child Services Commission did in Texas was essentially just

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Speaker 1: kind of create law to thin air, which it cannot do.

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Speaker 1: The second claim is also very you know, kind of

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Speaker 1: separation of powers space, which is basically the idea of

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Speaker 1: the state has empowered their child welfare agency to protect children,

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Speaker 1: and that this is actually inconsistent with the statutory command

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Speaker 1: that created the agency. So there are those kinds of arguments,

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Speaker 1: and then there are kind of more substantive civil rights

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Speaker 1: civilibrities arguments, namely that parents have a fundamental right to

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Speaker 1: be charge of their children and to seek things that

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Speaker 1: are in their children's best interests, and that the fundamental

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Speaker 1: right of parenting is implicated here and violated by the

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Speaker 1: state in doing this. And of course there's these equality

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Speaker 1: based arguments for the children right and that essentially what

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Speaker 1: Texas is trying to do is codify sex stereotypes and

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Speaker 1: forced children to comply with the kinds of behaviors and

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Speaker 1: mannerisms and presentations of gender that are consistent with what

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Speaker 1: state officials think people should possess given their sex assigned

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Speaker 1: to birth. So there's an equality based argument there that

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Speaker 1: the rights of the children themselves are also being violated.

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Speaker 1: So you you kind of have this smattering of claims

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Speaker 1: that range from administrative of procedure and separation of powers

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Speaker 1: under the state constitution in Texas to the more substantive

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Speaker 1: equality and liberty interests in parenting and in trans children

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Speaker 1: being respected and treated consistent with their gender identity. So

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Speaker 1: a state court in Austen intervened and issued a temporary

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Speaker 1: restraining order. Briefly, what was the basis of the judge

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Speaker 1: issuing that order, the judge basically said that the investigation

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Speaker 1: and the potential ramifications of such a prosecution for the parents,

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Speaker 1: namely they could be on a child abuse list and

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Speaker 1: the clatter consequences that can come from that, all way

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Speaker 1: in favor of returning to the status quo that existed

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Speaker 1: before the Texas turn in general and the Texas Governor

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Speaker 1: began their opinions and directives to investigate and prosecute these

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Speaker 1: parents for providing gender affirming care. And so essentially, the

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Speaker 1: judge saw that the risks to the parents here by

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Speaker 1: far out way. Whatever interest the state had, and of

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Speaker 1: course interests of the children here is outweighed by whatever

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Speaker 1: immediate action Texas wanted to take. It falls short of

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Speaker 1: what the families had asked for, which was to stop

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Speaker 1: all the investigations by the State of Texas. And apparently

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Speaker 1: there are some other families being investigated. There will be

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Speaker 1: a fuller hearing and I think the court will then

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Speaker 1: address more of the merits of the claims that have

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Speaker 1: been brought by these anonymous parents. The full hearing is

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Speaker 1: going to be so key to see what kind of

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Speaker 1: remedies they sail you in behalf of these anonymous parents

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Speaker 1: will want and need, and that all remains to be

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Speaker 1: seen for sure. You mentioned that both the governor and

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Speaker 1: the Attorney General face challengers in Tuesday's primary, and in

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Speaker 1: a call with reporters on Wednesday, the top strategist for

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Speaker 1: the governor's reelection campaign said that being against medical treatment

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Speaker 1: for transgender children and treating it as child abuse was

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Speaker 1: a winning issue for the governor. Why are the rights

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Speaker 1: of transgender kids being treated as sort of a battleground

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Speaker 1: for certain conservative groups. That's a great question, you know, certainly,

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Speaker 1: I think that the Texas Department of Family and Productive

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Speaker 1: Services here is being used in a way to turn

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Speaker 1: its mission on its head and abused children who are

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Speaker 1: some of the most vulnerable children in American society. So

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Speaker 1: that is just a sad display on its own. And

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Speaker 1: the fact that there's smoking gun evidence here that political

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Speaker 1: operatives see this as an opportunity that they need to

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Speaker 1: grab onto is quite telling. The truth of the matter

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Speaker 1: is of trans folks have been the kind of subject

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Speaker 1: of political operatives, or if she say, they've been in

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Speaker 1: their sights for quite some time now, And we can

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Speaker 1: go back to North Carolina just a few years ago

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Speaker 1: when they passed the bill restricting bathroom access and keeping

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Speaker 1: trans folks kind of relegated to second class status. So

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Speaker 1: using trans people generally certainly is not a new phenomenon.

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Speaker 1: The focus on children does seem to be. You know,

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Speaker 1: I think that the truth of the matter is most

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Speaker 1: Americans are very sympathetic trans issues, and increasingly so. The

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Speaker 1: courts have been increasingly open to transgender claims and have

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Speaker 1: been particularly welcoming of trans students claims under the Equal

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Speaker 1: Protection Clause and Title nine. So to me, it's just

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Speaker 1: a really strange dynamic because American society the whole, seems

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Speaker 1: to be headed in one direction, the courts have been

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Speaker 1: pretty steadily headed in one direction, and yet Republicans in

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Speaker 1: Texas are trying to thwart that momentum. So it's it's

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Speaker 1: really quite perplexing. Arkansas Kentucky have passed laws prohibiting gender

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Speaker 1: confirming treatments from minors, and those are being challenged, So

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Speaker 1: tell us about the wider litigation over transgender rights. So

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Speaker 1: a lot of these states have attempted to pass very

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Speaker 1: restrictive measures against trans minor care, and a lot of

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Speaker 1: them failed. So, you know, we're starting to see the

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Speaker 1: beginning of the litigation process and the cases beginning to

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Speaker 1: percolate in the appellate court. So we are in for

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Speaker 1: a wave of not only legislation and executive based action

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Speaker 1: like what we saw in Texas, but I think we're

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Speaker 1: going to see much more litigation coming forward about it.

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Speaker 1: The circuit courts are going to have to address it.

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Speaker 1: And you know, it's really anyone's guess what happens from there.

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Speaker 1: Texas passed a rule curbing transgender youth participation in school sports.

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Speaker 1: Is that being appealed? I don't know about that particular case,

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Speaker 1: although a number of states have passed or are you

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Speaker 1: attempting to pass similar piece of legislation? And um, I'm

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Speaker 1: sure that they will be what will be challenged if

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Speaker 1: they haven't been already. Um, you know, and I think again,

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Speaker 1: I think right, You've got a couple of different issues

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Speaker 1: right there are the school based cases about whether and

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Speaker 1: to what extent trans children must be um respected in

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Speaker 1: their gender identity that that are going forward through the

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Speaker 1: court seal. The Circuit, for example, has one pending now

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Speaker 1: out of Florida. Um, you're going to see the cases

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Speaker 1: that arise out of fans of trans affirming healthcare UM

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Speaker 1: and you're going to see this right similar things about

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Speaker 1: particularly trans girls playing in girls sports um. Right, states

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Speaker 1: all across the country, including Georgia right here where I am,

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Speaker 1: to have these pieces of legislation making their ways to

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Speaker 1: the legislative process. So, particularly given that we are in

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Speaker 1: the kind of the tail end of many state legislatures

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Speaker 1: legislative sessions, I anticipate we're going to see a lot

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Speaker 1: of these kinds of cases or you know a lot

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Speaker 1: of these pieces of legislations or forms of this legislation past,

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Speaker 1: and there's going to just gonna be an onslot perhaps

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Speaker 1: of litigation in the you know, the coming weeks. But

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Speaker 1: of course I think the other thing too is so

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Speaker 1: many of these pieces of legislation are are going to

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Speaker 1: be challenged by you know, individuals. Yes, but I think

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Speaker 1: that there is going to be perhaps the strategy but

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Speaker 1: find it because we have so many of these like

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Speaker 1: impact litigation organizations behind it, right the A C O.

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Speaker 1: You land illegal. So I think there's there's probably going

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Speaker 1: to have to be some strategy they're involved about you know,

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Speaker 1: which cases you take when and where you know, what

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Speaker 1: venue do you want them in? And so I think

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Speaker 1: part of what we're going to see is a kind

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Speaker 1: of a figuring out on behalf of civil rights organizations

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Speaker 1: exactly how to attack these in the courts um in

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Speaker 1: the most strategically advantageous way. So as far as the

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Speaker 1: transgender bathroom case in Florida, that Appellate Court may rule

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Speaker 1: against the transgender youth and the Fourth Circuit has ruled

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Speaker 1: in favor, that may end up at the Supreme Court.

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Speaker 1: What cases has the Court taken involving transgender issues. The

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Speaker 1: only one I can recall is the case involving Title seven.

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Speaker 1: So there are there's kind of two I think important

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Speaker 1: things that developed at the Screme Court. The Gavin Grim case,

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Speaker 1: at one point I believe reached the Supreme Court not

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Speaker 1: on the merits and so it was kind of a

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Speaker 1: shadow docket issue. But in terms of merits based decisions,

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Speaker 1: the one that of course I think everyone does know

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Speaker 1: about is Title seven, the boss Doc decision, where the

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Speaker 1: Supreme Court said that both sex orientation discrimination and transgender

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Speaker 1: based discrimination were forms of actionable sex discrimination under Title seven.

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Speaker 1: And that's really the big case that we have from

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Speaker 1: the Supreme Court, which outlines essentially why transgender discrimination is

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Speaker 1: sex discrimination now of course, that's the statutory case. So

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Speaker 1: there's a couple of questions that I have given that right.

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Speaker 1: One is in the student context Title nine, which is

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Speaker 1: a parallel statute that says that federally funded educational institutions

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Speaker 1: can't discriminate on the basis of sex. If you take

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Speaker 1: the statutory interpretation that was employed in the boss Doc

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Speaker 1: decision and transfer it to a parallel, e constructed statute

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Speaker 1: Title nine, then one would think that sex discrimination claims

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Speaker 1: in federally funded, you know, educational institutions would also apply.

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Speaker 1: There's also a question about whether or not sex discrimination

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Speaker 1: claims will include both sex pritation and gender identity based

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Speaker 1: discrimination claims as a constitutional matter, and so right there's

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Speaker 1: a question about what levels of scrutiny get applied and

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Speaker 1: how will the court treat that. And so that's kind

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Speaker 1: of influx to given the Supreme Court's decision in Bostock,

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Speaker 1: which again was not a constitutional decision, but it's rationale

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Speaker 1: and its logic does have some implications for constitutional law

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Speaker 1: going forward. Um So, so I, you know, I think

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Speaker 1: that's all influx, and you you're you're quite correct that

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Speaker 1: you know, the Eleventh Circuit may very well rule against

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Speaker 1: the transgender discrimination claim out of the Florida school district,

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Speaker 1: in part because the panel that initially heard a rule

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Speaker 1: in favor of the student, and now the entire court

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Speaker 1: has decided it wants to hear the case sitting as

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Speaker 1: a whole. And that's really inconsistent with what we've seen

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Speaker 1: from appellate courts cross country, which have generally been quite

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Speaker 1: favorable towards transgender students claims, including the Third Circuit and

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Speaker 1: the Seventh Circuit and the Fourth Circuit. And so that

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Speaker 1: could also tee up an additional issue for the Supreme

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Speaker 1: Court to have to address if there's a circuit split

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Speaker 1: coming out of the Eleventh Circuit. So I think the

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Speaker 1: big takeaway is a lot of these cases have been

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Speaker 1: moving fairly fast. There will be a lot more litigation,

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Speaker 1: certainly in the future, and there are going to be

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Speaker 1: handful of opportunities for the Supreme Court to get involved,

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Speaker 1: and perhaps where the supurt will absolutely have to get

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Speaker 1: involved because you will have these major questions of federal

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Speaker 1: constitutional and statutory law which are not being resolved in

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Speaker 1: the same direction among the circuit courts. So I'm very

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Speaker 1: hesitant generally to make bets and wagers on what the

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Speaker 1: Supreme Court of the United States will do. But if

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Speaker 1: I was a betting man, I was certainly say there's

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Speaker 1: a high likelihood that disprove we'll have to hear one

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Speaker 1: of these cases in the very near future. Thanks for

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Speaker 1: being on the Bloomberg Law Show. That's Professor Anthony christ

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Speaker 1: of Georgia State University College of Law. And that's it

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

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Speaker 1: can always get the latest legal news on our Bloomberg

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Speaker 1: Law Podcast. You can find them on Apple Podcasts, Spotify,

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

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Speaker 1: and remember to tune into The Bloomberg Law Show every

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

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