Speaker 1: This is Bloomberg Law. A divided Supreme Court rejects a
Speaker 1: religious challenge. Tell us a little about the facts of
Speaker 1: the case. In interviews with prominent attorneys in Bloomberg Legal experts,
Speaker 1: I guess his former federal prosecutor Jimmy Garula. Joining me
Speaker 1: is Bloomberg Law reporter Jordan Ruben and analysis of important
Speaker 1: legal issues, cases and headlines. The Supreme Court takes on
Speaker 1: state secrets. Multiple lawsuits were filed against the emergency rule?
Speaker 1: Is this lawsuit? For real? Bloomberg Law with June Grasso
Speaker 1: from Bloomberg Radio. Welcome to the Bloomberg Law Show. I'm
Speaker 1: Greg Store and I'm Lady Wheeler. We're in for June Grasso.
Speaker 1: Coming up on the show, we'll talk with Jake Belsheni
Speaker 1: at the Alliance for Justice Action Fund about state Supreme
Speaker 1: Court judicial races and why these are courts worth paying
Speaker 1: attention to. And Jennifer Levi, director of glad's Transgender Rights Project,
Speaker 1: will join us to talk about a recent federal Appeals
Speaker 1: Court decision that gives transgender workers honor legal protections. But
Speaker 1: first we're joined by Bloomberg News reporter Angelica Peebles to
Speaker 1: discuss the new lawsuit they're enough filed against Fiser over
Speaker 1: the technology used to create the COVID nineteen vaccine. Angelica,
Speaker 1: thanks for joining us. Tell us why Moderna is filing
Speaker 1: the suit and what the company is alleging. Maderna says
Speaker 1: they're filing this lawsuit now because they are trying to
Speaker 1: protect their MR and a technology platform that they've spent
Speaker 1: the past decade or so making, and they're saying that
Speaker 1: they're claiming that Fiser and bion Tech knowingly copied some
Speaker 1: of the key elements of Maderna's patented technology. And so
Speaker 1: they're not trying to actually stop the sale of their
Speaker 1: COVID vaccine or do anything that would interfere with the
Speaker 1: vaccination campaign, but they do want some some monetary um,
Speaker 1: you know, some money from them starting this spring and
Speaker 1: going forward. So we'll have to see how it plays out,
Speaker 1: um in the court. But um, you could see that, um,
Speaker 1: you know, it's a big deal for for the companies
Speaker 1: and also you know, just the public at large watching this.
Speaker 1: Tell us what Maderna is after in this litigation and
Speaker 1: what's the likelihood that the company is going to be
Speaker 1: successful here. Yeah, So Maderna is not seeking to stop
Speaker 1: the sale of Fisor and BioNTech vaccine, but they are
Speaker 1: seeking what would be essentially a loyalty, so you know,
Speaker 1: a cut of the money that they make on the
Speaker 1: sales of their vaccine. And they're saying that they only
Speaker 1: want some money UM starting from earlier this spring and
Speaker 1: going forward and only in high income countries. And it's
Speaker 1: a little complicated, but it has to do with the
Speaker 1: fact that Maderna made this pledge UM two years ago
Speaker 1: saying that it would not enforce its patents during the pandemic,
Speaker 1: and then this spring they said, never mind, Actually we
Speaker 1: are only going to in for to not enforce our
Speaker 1: patents in low income countries. So it's the way that
Speaker 1: all of those steps have played out. It seems like
Speaker 1: they're trying to match up by saying, you know, now
Speaker 1: we are only seeking money from this period of time.
Speaker 1: But the real question is whether they can go back
Speaker 1: on that pledge that they made two years ago. UM.
Speaker 1: One legal expert we spoke to said that they can't UM.
Speaker 1: So that's something that will be really interesting to watch.
Speaker 1: So is that pledge something that Fiser and Biotech can
Speaker 1: use in their defense against this lawsuit? Yea, so um.
Speaker 1: Jorge can Trist, the professor from the University of Utah
Speaker 1: who we spoke to. He says that under the law,
Speaker 1: these patent pledges are considered contracts, so the companies it's
Speaker 1: a public company, they made a public statement and other
Speaker 1: companies UM can use that information to make decisions about
Speaker 1: their own strategies, which obviously Fiser and bion Tech went
Speaker 1: out and introduced their own COVID vaccine, so they could
Speaker 1: argue that they were just opera wading under you know,
Speaker 1: under um the assumption that Maderna was not going to
Speaker 1: enforce his patents. So at the least the way he
Speaker 1: um he sees it, either and BioNTech have a pretty
Speaker 1: good defense here. It might not even get into all
Speaker 1: of the details of the patents and you know who
Speaker 1: used what and what was patented and what wasn't. But
Speaker 1: that could be that contract, the patent pledge could be
Speaker 1: a solid defense. Or Fiser and BioNTech didn't this lawsuit
Speaker 1: have any impact on the company's market shares for either
Speaker 1: Maderna or Fiser, so they did see a little bit
Speaker 1: of a hit the other day. UM. You know these
Speaker 1: things they're not expecting Analysts are not expecting it to
Speaker 1: be a big money maker for either um for Maderna,
Speaker 1: if they even do win. And that's just because according
Speaker 1: to precedent that we haven't seen a huge impact like
Speaker 1: these payments haven't been jaw dropping, especially in the context
Speaker 1: of the billions of dollars that Maderna has made so far. UM.
Speaker 1: But of course these things take a long time, they're expensive,
Speaker 1: so I think you can imagine that investors are a
Speaker 1: little bit nervous to see what exactly happens and the
Speaker 1: impact it has on all of the companies involved. So
Speaker 1: news of this lawsuit comes out just as we're learning
Speaker 1: we're all going to be eligible for another shot after
Speaker 1: labor Day. Well, this lawsuit uh potentially have any effect
Speaker 1: on the availability of future COVID shots from our understanding, No,
Speaker 1: because Madernas says they're not trying to stop the production
Speaker 1: or stop the sale of Fiser and bion text COVID vaccine.
Speaker 1: So the way at least the complaint was written and
Speaker 1: the damages they're seeking, it doesn't seem that there will
Speaker 1: be any any disruption there. And I'm curious if this
Speaker 1: if there could be any ulterior motives here on Maderna's
Speaker 1: behalf as to why they're bringing this lawsuit against Fiser. Yeah,
Speaker 1: well they're saying that they're trying to protect the technology
Speaker 1: that they've spent so long trying to develop, so you
Speaker 1: could see that as well. They're trying to make sure
Speaker 1: this doesn't happen again. You know, if if Fiser Bronte
Speaker 1: did even infurage on their patents, which obviously the companies
Speaker 1: say they did not. But um Again, the legal expert
Speaker 1: we spoke to, he said that it's probably it wouldn't
Speaker 1: be surprising if Maderna has been trying to get Fiser
Speaker 1: and bion Tech to negotiate some sort of royalty in
Speaker 1: the background here, and maybe those talks haven't gone well,
Speaker 1: and so now Maderna is going to doing the lawsuit
Speaker 1: because of that. He says, it's a classic strategy just
Speaker 1: to companies um into getting them to license technology that
Speaker 1: you think that is yours. So that's one possibility for sure.
Speaker 1: That's Bloomberg News reporter Angelica Peoples, you're listening to Bloomberg Law.
Speaker 1: Up next, we talk about state Supreme Court judicial races
Speaker 1: and which ones are worth paying attention to. I'm Widio Wheeler.
Speaker 1: And I'm Greg Store. This is Bloomberg. This is Bloombird
Speaker 1: Law with June Brusso from bloom Bird Radio. I'm Lidia
Speaker 1: Wheeler and I'm Greg Store. We're in for June Brasso.
Speaker 1: State Supreme court races in a number of states are
Speaker 1: being closely watched this year for their potential to affect
Speaker 1: a host of issues, including congressional maps and abortion restrictions.
Speaker 1: We're joined now by Jake Valaskini, legal director at the
Speaker 1: Progressive Alliance for Justice Action Fund, which has been tracking
Speaker 1: these races. So, Jake, UM, Michigan, North Carolina, Illinois, and
Speaker 1: Ohio are or for the states that have been highlighted
Speaker 1: as having particularly important races. Can you just tell us
Speaker 1: generally why those four races are such a big deal. Sure,
Speaker 1: and thank you much so much for having me on.
Speaker 1: I really appreciate it. Um. So, all four of those
Speaker 1: states or states where you have a fairly divided electorate um,
Speaker 1: and also where you have a divided supreme court ideologically,
Speaker 1: so generally speaking, in Michigan we have a four three
Speaker 1: democratic majority on that Supreme Court. In North Carolina we
Speaker 1: also have a four three democratic majority on that Supreme Court.
Speaker 1: And in Illinois, we have a four three Democratic majority
Speaker 1: on that Supreme Court. In Ohio, however, we have a
Speaker 1: three three one Supreme Court with three Democrats, three Republicans,
Speaker 1: and one independent who is a Republican that sometimes sides
Speaker 1: with the Democrats on issues of democracy and voting rights.
Speaker 1: Talk about why, UM, party control matters here and um,
Speaker 1: you know, how these races could impact which party is
Speaker 1: in control. Sure, generally speaking, UM, what we've seen, at
Speaker 1: least over the last ten to fifteen years, a sort
Speaker 1: of consolidation around issues of democracy, UM in differences between
Speaker 1: Republicans and Democrats and how they how they approach those
Speaker 1: issues of democracy. Republicans have tended to be more restrictive
Speaker 1: on on voting, on access to the polls, on redistricting,
Speaker 1: on jerrymanderin, whereas Democrats have tended to be more open
Speaker 1: on those issues, more liberal on those issues, trying to
Speaker 1: expand the franchise, expand the right, protect the rights of
Speaker 1: minorities to vote when they're being restricted. For several of
Speaker 1: those states going forward, uh, some with with litigation that
Speaker 1: is currently pending. Other with litigation that we uh, you know,
Speaker 1: we can't foresee it might come out of a future
Speaker 1: election UM, the justices who sits on those courts might
Speaker 1: matter forward, how those how those different cases are decided. Yeah,
Speaker 1: so you recently tweeted that the state Supreme Court races
Speaker 1: in in Wisconsin, which I guess is next April, as
Speaker 1: well as the ones in Michigan, North Carolina, and Ohio
Speaker 1: this fall, are about as important to our democracy as
Speaker 1: these things get. Can you dive into that a little
Speaker 1: bit more? Why? Why are these races so important? Sure?
Speaker 1: I'd be happy to um so. I think Michigan is
Speaker 1: a perfect example of why these sorts of races are
Speaker 1: extremely important. UM. In Michigan, after the elections, several lawsuits
Speaker 1: were brought in front of the state UH state courts
Speaker 1: UM challenging the results UH in UM at least one
Speaker 1: four three case, the Democratic majority concluded that the election
Speaker 1: results should be certified. Had they not been certified and
Speaker 1: in a timely matter, UM, that could have allowed even
Speaker 1: more chicanery to happen in UH in the final determination
Speaker 1: of the election result nationally UM in UH and in
Speaker 1: after the current election cycles, who who are in those
Speaker 1: positions deciding those election case outcomes could be determinative of
Speaker 1: how elections are certified UM. Same. I think it's true
Speaker 1: also in Wisconsin, where currently you have a four three
Speaker 1: Republican Supreme Court UM, and that court has overwhelmingly decided
Speaker 1: to restrict voting rights UM in several decisions that have
Speaker 1: come down over the past decade UM and UH. In
Speaker 1: next year's election, Wisconsin voters will have the opportunity to
Speaker 1: change potentially the partisan makeup of that court, flipping it
Speaker 1: to a four three Democratic majority UM, in which case
Speaker 1: I think that you would see that that Supreme Court
Speaker 1: would be UH much more responsive to concerns over UH
Speaker 1: over issues of redistricting, voter restriction, UM, limiting ballot boxes,
Speaker 1: that sort of things. There seems to be more of
Speaker 1: a focus on state supreme courts now than there has
Speaker 1: been in the past, and I was wondering to what
Speaker 1: extent is the US Supreme Courts abortion decision driving that UM.
Speaker 1: I think it is definitely driving that. We've seen a
Speaker 1: huge concern over UM state constitutional rights to an abortion
Speaker 1: UM and and a renewed focus on this issue. UM.
Speaker 1: I think that that's a good thing. Generally, UM state
Speaker 1: Supreme courts have always determined many of our rights and liberties. UM.
Speaker 1: State Supreme courts. Here of all of the lawsuits that
Speaker 1: are filed in America every year, UM, and they've always
Speaker 1: had an outweighed um uh impact on our rights and liberties.
Speaker 1: The fact that people are paying more attention now UM
Speaker 1: is great. And if people UH start to consider whether
Speaker 1: or not our state constitutions might afford even greater rights
Speaker 1: and liberties that are federal uh constitution does, UM, then
Speaker 1: I think that that can be incredibly positive for the
Speaker 1: rights of many. Although it isn't a complete band aid
Speaker 1: for the fact that the you know, the U. S.
Speaker 1: Supreme Court is stripping away so many important rights nationally.
Speaker 1: Let's just take a step back and and talk about
Speaker 1: how state Supreme Court justices get on the court in
Speaker 1: the first place. We've been talking about some states where
Speaker 1: voters go to the polls and vote on state Supreme
Speaker 1: Court justices. But it does vary a bit from state
Speaker 1: to state, right, it does. That's correct. UM. Generally speaking,
Speaker 1: about half of the justices in the United States. State
Speaker 1: Supreme Court justices in the United States each year are
Speaker 1: elected and half are appointed. UM. Of those that are
Speaker 1: elected again about half and half. It's not completely accurate,
Speaker 1: but it's a close estimate. Are elected nonpartisan races and
Speaker 1: about half of those that are elected or elected in
Speaker 1: partisan races. UM. So, like you said, it varies widely
Speaker 1: state to state. There are two real anomalies where the
Speaker 1: legislature picks the justices in those states. That's in South
Speaker 1: Carolina and Virginia. UM. And even in those states, what
Speaker 1: they're where justices are elected. Uh, it's a little bit
Speaker 1: different when those justices might appear on the ballot. What's
Speaker 1: in whether it's in an odd year and h or
Speaker 1: in an even year presidential, congressional um. So, every state
Speaker 1: does it a little bit different. Um. And so it's
Speaker 1: it's not surprising that folks around the country might might
Speaker 1: not know exactly how how the judges and justices and
Speaker 1: their states are picked. You're listening to Bloomberg Law. Up next,
Speaker 1: we continue our conversation with Jake Paliskini, legal director at
Speaker 1: Alliance for Justice Action Fund. I'm Greg Store and I'm
Speaker 1: Lydia Wheeler. This is Bloomberg. This is Bloomberg Law with
Speaker 1: June Grasso from Bloomberg Radio. I'm Greg Store and I'm
Speaker 1: Lydia Wheeler. We're in for June Grasso. We've been talking
Speaker 1: with Jake Falskini legal director and Alliance for Justice Action Fund,
Speaker 1: which has been tracking state Supreme court races. Jake, how
Speaker 1: common is it for state Supreme Court justices to lose
Speaker 1: a retention election? And does this happen when there's a
Speaker 1: coordinated effort by Republicans to house someone? Um. That's a
Speaker 1: great question. So it happened, happened that often in history,
Speaker 1: but there are some reason recent examples of when it's happened,
Speaker 1: especially when you have coordinated and well funded attacks on
Speaker 1: current sitting justices. UM. So. A couple of good examples
Speaker 1: of this that folks normally point you historically are back
Speaker 1: in the early two thousands when the Illinois State Supreme
Speaker 1: Court found a constitutional right for lgbt Q folks to
Speaker 1: marry UM. After that, Republicans and conservative organizations launched a
Speaker 1: coordinated uh uh sitting in Supreme Court justices who had
Speaker 1: ruled in favor of that constitutional right UM and UH,
Speaker 1: and three of those justices were outsted from the court. UM.
Speaker 1: Similar instances have happened, say, in Illinois, a siting Supreme
Speaker 1: Court justice lost the retention election in UM. In Michigan,
Speaker 1: this happened a few years ago as well. UM and
Speaker 1: other attacks have been launched against current sitting justices UM.
Speaker 1: Ultimately many of those were unsuccessful, but sometimes they do happen.
Speaker 1: How much does money play a role in all this?
Speaker 1: Are we seeing just a significant at all amount of
Speaker 1: money going into state supreme court races and retention battles? Yes,
Speaker 1: absolutely it plays a huge role. UM Our friends at
Speaker 1: the Brennan Center have done a great job tracking the
Speaker 1: flood of money into judicial elections over time, UM and
Speaker 1: I would highly suggest that listeners take a look at
Speaker 1: their great resources on the state supreme courts and and
Speaker 1: money that bloods into those races. But generally speaking, over time,
Speaker 1: we've seen a huge increase in the amount of money
Speaker 1: that's gone into these judicial elections UM and UH and
Speaker 1: often not times those are coordinated by groups that have
Speaker 1: a very particular idea of what results they want out
Speaker 1: of the election, And often what we also see is
Speaker 1: that the advertising doesn't necessarily match up with the end
Speaker 1: results that they want. So business groups will often, for example,
Speaker 1: launch attacks on justices where they don't like the outcome
Speaker 1: of business decisions in their cases. Yet their advertising will
Speaker 1: often focus on issues of criminal law. UM and focus
Speaker 1: on UM, you know, advertisements that might impugne the justices
Speaker 1: around their decisions on criminality and other issues like that.
Speaker 1: Let's talk a little bit about the particular states, um
Speaker 1: with these races that are worth worth watching. UM, can
Speaker 1: you talk to us about what's happening in Illinois, Like
Speaker 1: what are the issues that could come before the state
Speaker 1: Supreme Court there, um where an ideological shift would make
Speaker 1: a big impact. So, I going back to your earlier question,
Speaker 1: I think one of the most obvious is going to
Speaker 1: be abortion. UM. That issue could definitely come back before
Speaker 1: the Illinois Supreme Court. UM if that court were to
Speaker 1: flip from liberal to more conservative majority. If that were
Speaker 1: to happen, then you know, it becomes a question as
Speaker 1: to whether or not the right to an abortion could
Speaker 1: still be deemed legal in Illinois. And that has a
Speaker 1: huge downstream effect on other Midwestern states because Illinois dipped
Speaker 1: so deep into the Midwest, UM that the right to
Speaker 1: an abortion is often protected for other Midwestern people, UM
Speaker 1: through Illinois still having that right. There are so many
Speaker 1: issues and many other issues that are going to be
Speaker 1: in front of that state state Supreme Court. Issues of
Speaker 1: business law and issues of UM, you know, criminal rights
Speaker 1: and UM. All all sorts of other issues would come
Speaker 1: before that court too. And one one other state we've
Speaker 1: talked about a little bit is Ohio. Are the issues
Speaker 1: the same there or are they different from Illinois? In Ohio,
Speaker 1: the you have many of the same issues. But also
Speaker 1: I would just stress the importance of democracy cases there. Um,
Speaker 1: you have a state legislature in Ohio and a state
Speaker 1: governor that have done everything that they possibly can really
Speaker 1: to restrict the right to vote in that state. Hundreds
Speaker 1: of thousands of voters are stripped from the roles every
Speaker 1: year in Ohio. Um, they've gerrymandered the state legislature to
Speaker 1: an incredible degree. Um, there really is uh. There are
Speaker 1: many cases there uh to protect the right to vote
Speaker 1: that I think um would be extremely uh uh under
Speaker 1: threat with a more conservative court there. That's Jake Falaskini
Speaker 1: at Alliance for Justice Action Fund. Thanks for joining us, Jake,
Speaker 1: thank you so much for having me. I really appreciate it.
Speaker 1: You're listening to Bloomberg Law. Up next, we're joined by
Speaker 1: Jennifer Levi, director of Glad's Transgender Rights Project, to talk
Speaker 1: about a recent appeals court decision that expanded legal protections
Speaker 1: for transgender workers I'm Lidia Wheeler and I'm egg Store.
Speaker 1: This is Bloomberg. This is Bloomberg Law with June Brusso
Speaker 1: from Bloomberg Radio. I'm Lidia Wheeler and I'm gregg Store.
Speaker 1: We're in for June Grasso. Earlier this month, the Fourth
Speaker 1: US Circuit Court of Appeals declared gender dysphoria a disability
Speaker 1: under the Americans with Disabilities Act. Joining us now is
Speaker 1: Jennifer Levi, director of glad's transgender Rights Project. GLAD stands
Speaker 1: for the g l B t Q legal advocates and defenders. Jennifer,
Speaker 1: thanks for joining us. UM talked a little bit about
Speaker 1: this ruling, call us how significant it is and what
Speaker 1: it means for transgender and gender fluid people. Yeah, so
Speaker 1: thanks for having me, and yeah, this is a really
Speaker 1: important decision that makes it clear that there's no exclusion
Speaker 1: under the a d A for disability claims that are
Speaker 1: brought by transgender people. The reality is because of both
Speaker 1: misunderstandings about gender dysphoria as a health condition and also
Speaker 1: because of outdated language in the a d A. There
Speaker 1: have been people and courts that have um in the
Speaker 1: past said that transgender people can't bring disability claims, and
Speaker 1: this really clarifies that individuals can which is very important
Speaker 1: source of federal protections. Can you explain what gender dysphoria
Speaker 1: is and how someone um with it might benefit from
Speaker 1: being covered under the Americans with Disabilities Act? Yeah, absolutely so.
Speaker 1: Gender dysphoria is the clinically significant distress that a transgender
Speaker 1: person experiences if they can't live consistent with the gender
Speaker 1: identity that they know themselves to be. So, for example,
Speaker 1: a transgender woman as somebody who has assigned the sex
Speaker 1: of mail at birth but has the identity and internalized
Speaker 1: experience of being a female, and of gender dysphoria is
Speaker 1: the experience that that individual has if they can't live
Speaker 1: as a woman. How did this ruling by the Fourth
Speaker 1: Circuit come about? What was the underlying dispute that that
Speaker 1: got us here? Yeah, So the underslying dispute in this
Speaker 1: case was that there is was the transgender woman who
Speaker 1: was um incarcerated and denied medical treatment and made to
Speaker 1: reside with men despite having lived as a woman, and
Speaker 1: so she brought claim under this very important source of
Speaker 1: federal protections against discrimination because of having a stigmatized medical condition.
Speaker 1: And the court decision in this case makes clear that
Speaker 1: she has to be fairly treated, and that fair treatment
Speaker 1: has to take into account the medical condition that she experiences.
Speaker 1: And so basically it means, you know that trans gender
Speaker 1: women have to be treated UM. In this case, it
Speaker 1: was UM in a prison, but the A d A
Speaker 1: applies in other contexts, including in workplaces and public accommodations
Speaker 1: and other public institutions, and so she has to be
Speaker 1: treated like other women would be treated. Can you give
Speaker 1: us some specific examples about how people transgender people could
Speaker 1: benefit by being covered under the A D A. I mean,
Speaker 1: I know that you you mentioned accommodations, um, you mentioned
Speaker 1: things in the workplace. Can you give us some examples
Speaker 1: as to how this could be a benefit. Yeah, absolutely so,
Speaker 1: I mean the workplace provides a lot of uh examples
Speaker 1: where um, you know, it's really important for a transgender
Speaker 1: woman to be treated like other women. It may involve
Speaker 1: um uh making sure that uh you can you know,
Speaker 1: if there's a dress code in the workplace conformed with
Speaker 1: a female dress code. Certainly, if there are accommodations for
Speaker 1: changing or for restroom access, making sure that she has
Speaker 1: access to those um for trans for transgender people who
Speaker 1: might UM, taking you know, a period of time to transition.
Speaker 1: Then it's important that they get them accommodations or any
Speaker 1: kind of medical care that they might need during a
Speaker 1: particular gap of time. So, I mean, one of the
Speaker 1: things I want to say is that, you know, the
Speaker 1: ADA has been such an important source of protection for
Speaker 1: people who are fully capable of contributing and working but
Speaker 1: are facing barriers because of the stigma and misunderstandings associated
Speaker 1: with some underlying medical condition. And this is such an
Speaker 1: important decision because it really levels the playing field for
Speaker 1: transgender people in those um series like the workplays or
Speaker 1: public institutions where the ad A applies. Let me dig
Speaker 1: in a little bit to the legal battle here. So
Speaker 1: the A d A includes some language that says this
Speaker 1: law excludes people with gender identity disorders now, and that
Speaker 1: that's a phrase that we don't use anymore, and perhaps
Speaker 1: more importantly, psychiatrists don't use anymore, isn't it though? Or
Speaker 1: the argument, at least from the Descent and the other
Speaker 1: side in this case was that it is an indication
Speaker 1: that may be Congress meant to exclude transgender and gender
Speaker 1: fluid people from the statute. What's the counter to that? Yeah,
Speaker 1: I mean, so what the majority said is that that
Speaker 1: language of gender identity disorders is outdated, um and doesn't
Speaker 1: reflect the current medical understanding of gender dysphoria, which is
Speaker 1: the underlying medical condition that this individual experience. And so um,
Speaker 1: you know, just looking at the plane, the plain text
Speaker 1: and the plain meaning of what that exclusion reflected, there
Speaker 1: would be no basis to deny somebody who experiences gender dysphoria,
Speaker 1: which is a different medical condition than than gender identity disorders,
Speaker 1: which was excluded under the original law. So just like
Speaker 1: a straight non textual reading suggests there's no basis for
Speaker 1: excluding transgender people. But what the majority also recognized is
Speaker 1: that to the extent that it were to be read
Speaker 1: to create that categorical exclusion, that that really violates the
Speaker 1: most basic guarantees of equal protection, which is that you
Speaker 1: can't be excluded from a law's protection just because of
Speaker 1: bias or animus against a particular group. Do you think
Speaker 1: that the ad A should be amended um at some point,
Speaker 1: and and and do you think that lawmakers wrote it
Speaker 1: in a way, um, in a kind of a bigoted way. Yeah, Look,
Speaker 1: I mean I think there is very clear um testimony
Speaker 1: and very clear history, that legislative history that has been
Speaker 1: on earth. That does reflects the fact that you know,
Speaker 1: there were some legislators, um who who were speaking you know,
Speaker 1: out of from a very bias uh and discriminatory perspective.
Speaker 1: And yeah, I think it creates a stain on that
Speaker 1: law to have that exclusion written into it, and ultimately
Speaker 1: it would make sense to update the language and get
Speaker 1: rid of the archaic references. But the reason why this case,
Speaker 1: you know, is so important is that transgender people should
Speaker 1: not have to wait for that change in order to
Speaker 1: um be able to secure such important federal protections. But yeah,
Speaker 1: I mean there's probably a lot of ways in which
Speaker 1: our laws uh need to be updated, and doing so
Speaker 1: would be important, but um, those who should be protected
Speaker 1: by the laws should not have to wait. And I
Speaker 1: actually I want to say one other, one other side
Speaker 1: of that, if if I have a minute, which is
Speaker 1: this is important not just for transgender people, but also
Speaker 1: you know, for the workplaces and the public institutions to
Speaker 1: which they contribute. I mean, the point of the ADA
Speaker 1: was to ensure that people who can thrive and make
Speaker 1: contributions aren't held back um by you know, misunderstanding, by
Speaker 1: stigma associated with the medical condition, and the point is
Speaker 1: really so that we can all benefit from the contributions
Speaker 1: that they can make. So this is obviously just one
Speaker 1: federal appeals court, important decision, but just one. Where have
Speaker 1: other courts come down on this? Where does the state
Speaker 1: of the law stand nationwide on this issue? Yeah? So no,
Speaker 1: there has been a number of at this point federal
Speaker 1: district courts which have are in agreement with what UM
Speaker 1: the Fourth Circuit recently said, And so, I mean, at
Speaker 1: this point it is very much the UM prevailing understanding
Speaker 1: of the idea, which is that it does apply UM.
Speaker 1: It can be used UM in you know, where somebody
Speaker 1: faces discrimination or biased because of the medical condition of
Speaker 1: gender dysphoria. This is the first circuit court decision, but
Speaker 1: there are a number of federal district courts which are
Speaker 1: aligned with the outcome here. How should employers who are
Speaker 1: trying to comply with this lot respond to this decision? Yeah, so,
Speaker 1: I mean, I think one of the ways to respond
Speaker 1: is to just make sure that people's h R policies
Speaker 1: are taking into account and ensuring equal treatment for UM.
Speaker 1: Anyone who speaks an accommodation because of gender dysphoria, or
Speaker 1: who is trying to ensure that they have full and
Speaker 1: equal access to UM the workplace or you know, other
Speaker 1: public accommodations, public including you know, federal UM places, for
Speaker 1: which not just the Americans with Disabilities Act but also
Speaker 1: the Federal Rehab Act applies. And so it's really just
Speaker 1: making sure that there's that the touchstone is equal treatment,
Speaker 1: you know, to the extent because its employers have to
Speaker 1: have you know, um UH policies to address a d
Speaker 1: A accommodations and probitions against discriminations. So this is just
Speaker 1: making sure that there's no carve out or no exclusion
Speaker 1: for transgender people. It's a touchdown of equal equal treatment.
Speaker 1: Given the importance of this issue and the fact that
Speaker 1: there is some disagreement among lower court judges as evidenced
Speaker 1: by the dissenting judge in this case, does this seem
Speaker 1: like an issue that inevitably is going to be decided
Speaker 1: by the Supreme Court? Um? I actually not convinced of that,
Speaker 1: because you know, I think that UM, you know, the
Speaker 1: Fourth Circuit got it right here. I think that we
Speaker 1: are likely to see other favorable decisions. UM. If there
Speaker 1: are issues are cases that go up on appeal. As
Speaker 1: they said, there's a growing number of federal district courts
Speaker 1: that have also clarified there's no exclusion for gender dysphoria
Speaker 1: under the A d A. And you know, I think
Speaker 1: that this is kind of an issue, Whereas they said,
Speaker 1: just like a you know, straightforward plane reading of the
Speaker 1: text of the statute um would would support this outcome here.
Speaker 1: And so I don't think that we're going to see
Speaker 1: a divide among appeal to courts on this issue, but
Speaker 1: we'll see. I'm hopeful. Well, that's Jennifer Levi, director of
Speaker 1: Glad's Transgender Rights Project. Thanks for joining us, Jennifer, Yeah,
Speaker 1: thanks for inviting me on. I appreciate the coverage. And
Speaker 1: that does it for this episode of Bloomberg Law. I'm
Speaker 1: Lydia Wheeler, I'm Greg Store. This is Bloomberg