WEBVTT - SCOTUS on Transgender Sports Bans 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June grosseol from Bloomberg Radio. 0:00:09.000 --> 0:00:13.560 The Supreme Court's conservative majority signal it's likely to deal 0:00:13.680 --> 0:00:18.959 another blow to LGBTQ rights. During oral arguments today over 0:00:19.079 --> 0:00:23.880 state laws in Idaho and West Virginia that ban transgender 0:00:23.960 --> 0:00:27.640 girls and women from competing for their schools on female 0:00:27.640 --> 0:00:33.400 athletic teams, Conservative justices like Samuel Alito and Brett Cavanaugh 0:00:33.800 --> 0:00:38.520 directed skeptical questions at the lawyers for the transgender athletes 0:00:38.840 --> 0:00:43.280 who are challenging these bans as violating the Constitution's Equal 0:00:43.360 --> 0:00:48.800 Protection Clause and Title nine, which prohibit sex discrimination in education. 0:00:49.680 --> 0:00:54.480 There are an awful lot of female athletes who are 0:00:54.560 --> 0:01:02.200 strongly opposed to participation by trans athletes and competitions with them. 0:01:02.440 --> 0:01:06.880 What do you say about them? They Are they bigots? 0:01:07.280 --> 0:01:10.800 Are they deluded in thinking that they are subjected to 0:01:10.840 --> 0:01:11.840 unfair competition? 0:01:13.080 --> 0:01:15.440 You know, there's some states in the federal government, and 0:01:15.480 --> 0:01:19.240 the NCAA and the Olympic Committee. So these are a 0:01:19.360 --> 0:01:24.080 variety of groups who study this issue think that allowing 0:01:24.600 --> 0:01:31.640 transgender women and girls to participate will undermine or reverse 0:01:31.760 --> 0:01:34.360 that amazing success and will. 0:01:36.640 --> 0:01:42.600 Create unfairness LGBTQ advocates haven't had a major Supreme Court 0:01:42.680 --> 0:01:46.080 win since twenty twenty, when the Court ruled six to 0:01:46.200 --> 0:01:49.320 three that the main federal job bias law known as 0:01:49.400 --> 0:01:55.080 Title seven Barr's Discrimination against Sexual Orientation and gender identity. 0:01:55.560 --> 0:01:58.960 Joining me is Suzanne Goldberg, a professor at Columbia Law 0:01:58.960 --> 0:02:04.440 School and director of the Sexuality and Gender Law Clinic. Suzanne, 0:02:04.480 --> 0:02:08.040 based on the oral arguments, did it seem like the 0:02:08.080 --> 0:02:12.240 Supreme Court is likely to uphold the state laws that 0:02:12.480 --> 0:02:17.640 ban transgender girls and women from competing on female athletic teams. 0:02:18.360 --> 0:02:21.960 I always hesitate to predict outcomes in the wake of 0:02:22.000 --> 0:02:25.880 an oral argument. I think what is fair to say 0:02:25.960 --> 0:02:28.960 and interesting about the argument is that most of the 0:02:29.160 --> 0:02:32.960 justices really appear to be grappling with the hard questions 0:02:33.160 --> 0:02:36.560 and the implications of a ruling either way, Meaning that 0:02:37.080 --> 0:02:40.840 while I think a couple of the justices on both sides, 0:02:40.880 --> 0:02:43.239 some of the justices on both sides were pretty clear 0:02:43.280 --> 0:02:46.760 about how they would come out, several of them seem 0:02:47.120 --> 0:02:52.440 to understand that ruling strongly in one direction or another 0:02:52.680 --> 0:02:57.120 might pose great risks to constitutional law and to protections 0:02:57.160 --> 0:03:02.080 under Title nine against sex discrimination. The lawyers for both 0:03:02.120 --> 0:03:06.119 of the athletes in these cases made what I thought 0:03:06.120 --> 0:03:10.280 were quite strong arguments that there is not enough information 0:03:10.480 --> 0:03:12.880 in the record in front of the court for the 0:03:12.880 --> 0:03:17.040 court actually to decide that big questions about whether transgender 0:03:17.080 --> 0:03:23.720 athletes are sometimes or always sufficiently controlling any effects of 0:03:23.760 --> 0:03:26.480 testosterone to be able to compete on the same basis 0:03:26.919 --> 0:03:29.600 as non transgender athletes. So I think there are a 0:03:29.600 --> 0:03:33.919 lot of fact questions in the mix, and the lawyers 0:03:33.960 --> 0:03:36.320 for both of the athletes, I think made strong arguments 0:03:36.360 --> 0:03:38.720 that the cases should actually go back to the lower 0:03:38.760 --> 0:03:42.839 courts for full development of a record or dismissal. 0:03:42.920 --> 0:03:44.640 In the case of the college student. 0:03:44.680 --> 0:03:47.480 So explain what the legal issue is. 0:03:48.560 --> 0:03:54.560 The cases are centrally about whether states can ban transgender 0:03:54.720 --> 0:03:57.880 female students a girl in one case, and a college 0:03:57.920 --> 0:04:01.720 student and a young woman and another from participating on 0:04:01.840 --> 0:04:05.040 the girls and women's sports teams. These state laws are 0:04:05.120 --> 0:04:10.520 categorical bands, meaning it doesn't matter how much a student 0:04:10.680 --> 0:04:14.320 has mitigated the effects of testosterone, or in the case 0:04:14.400 --> 0:04:18.839 of the West Virginia young student, she's not gone through 0:04:18.839 --> 0:04:22.240 male puberty, she's going through female puberty, and so the 0:04:22.360 --> 0:04:25.960 legal question in the case is can the state impose 0:04:26.480 --> 0:04:30.680 categorical bands on every transgender girl and woman from ever 0:04:30.720 --> 0:04:35.000 participating on a girls or women's team. The legal questions 0:04:35.040 --> 0:04:38.520 come under the Equal Protection Clause of the US Constitution, 0:04:38.640 --> 0:04:42.080 which guarantees equal treatment and says the government must have 0:04:42.160 --> 0:04:45.240 a good enough reason if it is going to draw 0:04:45.279 --> 0:04:49.040 lines based on sex. And there is also, in the 0:04:49.040 --> 0:04:52.520 case of the West Virginia student, a claim under Title nine, 0:04:52.560 --> 0:04:56.160 which is the federal law that prohibits sex discrimination, and 0:04:56.240 --> 0:05:00.400 that claim is that states, of course can have separate 0:05:00.440 --> 0:05:05.160 girls and boys teams, but it is unreasonable to keep 0:05:05.800 --> 0:05:09.080 this student who is going through female puberty and never 0:05:09.080 --> 0:05:11.720 gone through male puberty off of the girls team. 0:05:12.200 --> 0:05:15.000 So there were a lot of sort of broad statements 0:05:15.080 --> 0:05:20.400 about transgender women. Samuel Alito asked, looking at the broader 0:05:20.480 --> 0:05:22.440 issue that a lot of people are interested in. There're 0:05:22.480 --> 0:05:25.640 an awful lot of female athletes who are strongly opposed 0:05:25.640 --> 0:05:30.320 to participation by trans athletes in competitions with them. Are 0:05:30.360 --> 0:05:34.080 they bigots? And just as Kavanaugh said, the court can't 0:05:34.120 --> 0:05:38.159 look past what he characterized as the harm that transgender 0:05:38.200 --> 0:05:43.240 inclusive sports policies impose on cisgender women and girls' sports 0:05:43.320 --> 0:05:46.040 team For the individual girl who doesn't make the team, 0:05:46.120 --> 0:05:48.080 or doesn't get on the stand for the medal, or 0:05:48.160 --> 0:05:50.880 doesn't make all leagues, there's a harm, and I think 0:05:50.920 --> 0:05:54.240 we can sweep that aside. So do you think that 0:05:55.000 --> 0:05:59.560 a lot of the justices were looking at stereotypes of 0:06:00.080 --> 0:06:01.520 transgender athletes. 0:06:01.960 --> 0:06:09.040 I think the lawyers responded very clearly to the concern 0:06:09.520 --> 0:06:14.359 expressed by the justices related to some girls and women 0:06:14.400 --> 0:06:17.560 objecting to transgender girls and women on their sports teams, 0:06:18.160 --> 0:06:23.120 and what they said was, no, nobody is accusing anybody 0:06:23.160 --> 0:06:26.719 of being a bigot, and you know, of course competition 0:06:26.839 --> 0:06:27.560 is important. 0:06:28.160 --> 0:06:29.000 The question in. 0:06:28.960 --> 0:06:35.480 These cases is whether it is reasonable or discriminatory to 0:06:35.520 --> 0:06:39.160 say every single transgender girl and woman, no matter to 0:06:39.200 --> 0:06:43.160 what extent she's mitigated the effects of testosterone or not 0:06:43.240 --> 0:06:48.839 even experienced them, that it is unreasonable to keep those 0:06:48.880 --> 0:06:52.480 students off of girls and women's teams. You know, it's 0:06:52.600 --> 0:06:55.880 tough always to not make the team or not win 0:06:55.920 --> 0:07:00.880 the competition, but that is part of sports. And part 0:07:00.920 --> 0:07:04.440 of the point the lawyers were making was even when 0:07:04.440 --> 0:07:07.719 somebody is upset about losing, it doesn't necessarily mean their 0:07:07.800 --> 0:07:13.520 loss violates the law or violates the constitution. Always right, 0:07:13.560 --> 0:07:16.400 one athlete wins right, one athlete is better than another. 0:07:17.080 --> 0:07:20.880 And in these cases the point was, it's not because 0:07:20.880 --> 0:07:22.480 this other student is transgender. 0:07:22.760 --> 0:07:24.680 It's because the other student either has. 0:07:24.720 --> 0:07:28.280 You know, practices harder or having a better day of competition, 0:07:28.640 --> 0:07:33.400 or may have more natural ability. But none of that 0:07:33.520 --> 0:07:37.960 in these cases is keyed to a student being transgender. 0:07:38.280 --> 0:07:38.440 Right. 0:07:38.520 --> 0:07:41.480 Athletes vary in many ways, and that is the point 0:07:41.520 --> 0:07:44.000 of the lawyers and the plaintiffs in these cases. 0:07:44.600 --> 0:07:49.640 Aren't these laws, though, based on a belief that transgender 0:07:49.800 --> 0:07:54.960 women or girls have a better chance at women's athletics 0:07:55.480 --> 0:07:56.840 because they're transgender. 0:07:57.840 --> 0:08:03.320 Yeah, the laws are based on a view that transgender 0:08:03.400 --> 0:08:07.440 girls and women are always and automatically going to be 0:08:08.200 --> 0:08:12.720 stronger and faster in ways that matter for athletics because 0:08:13.280 --> 0:08:17.280 they're transgender. The facts in these cases about the two 0:08:17.360 --> 0:08:21.840 athletes show that that is not always true, and the 0:08:21.960 --> 0:08:25.800 science shows that's not always true. One of the questions 0:08:25.840 --> 0:08:28.680 that came up quite a bit during the argument is, well, 0:08:28.680 --> 0:08:31.480 how much should the court get involved in the science, 0:08:31.600 --> 0:08:35.200 especially as the science is under development. The response from 0:08:35.240 --> 0:08:39.680 the athletes lawyers was the records in these cases, which 0:08:39.720 --> 0:08:42.560 is what the court has to look at to examine 0:08:42.559 --> 0:08:47.760 the facts are incomplete and if anything, if this, if 0:08:47.760 --> 0:08:49.920 the court wants to get into the science, then the 0:08:49.960 --> 0:08:52.800 cases should be sent back to the lower courts for 0:08:52.840 --> 0:08:56.720 a trial and development of a full record and the 0:08:56.800 --> 0:09:02.079 trial court's consideration of the compete. Experts and the experts 0:09:02.320 --> 0:09:08.319 in science for the athletes say students can mitigate their 0:09:08.360 --> 0:09:13.000 testosterone levels, and again BPJ the West Virginia student's case, 0:09:13.559 --> 0:09:17.280 she has not never experienced male puberty, has only experienced 0:09:17.320 --> 0:09:22.200 female hormonal puberty, and so to suggest that she is 0:09:22.400 --> 0:09:27.600 somehow advantaged by male puberty is incorrect and is belied 0:09:27.640 --> 0:09:31.360 by the record. A lawyer for the college student athlete 0:09:31.840 --> 0:09:35.640 made the point that there is some scientific evidence that 0:09:35.720 --> 0:09:40.839 transgender women are at a disadvantage because they may, if 0:09:40.840 --> 0:09:43.520 they've gone through mail puberty, have a larger body frame, 0:09:44.280 --> 0:09:48.920 but because they've dropped their testosterone to typical levels for 0:09:49.040 --> 0:09:53.439 women may not have the muscle mass and the strength 0:09:53.920 --> 0:09:56.520 that is needed to propel that larger body frame. So 0:09:56.600 --> 0:09:59.840 there is some scientific evidence showing a disadvantage rather than 0:09:59.840 --> 0:10:02.200 the kind of advantage to the state claims. 0:10:02.000 --> 0:10:05.480 Will you explain? West Virginia is arguing that the laws 0:10:05.559 --> 0:10:07.640 about sex, not gender. 0:10:08.160 --> 0:10:11.440 You know, one of the questions in this case is 0:10:12.760 --> 0:10:17.840 do the state laws impose discrimination based on gender identity 0:10:18.000 --> 0:10:22.079 or do they impose discrimination based on sex. Title nine 0:10:23.120 --> 0:10:27.800 cover sex discrimination, and in constitutional law, the Court has 0:10:27.880 --> 0:10:32.200 long applied heightened scrutiny to sex discrimination. So the states 0:10:32.240 --> 0:10:34.440 in these cases and the government in these cases are 0:10:34.559 --> 0:10:40.720 arguing that these laws don't actually discriminate against transgender people. 0:10:40.840 --> 0:10:45.120 They do draw lines based on biology, and that kind 0:10:45.160 --> 0:10:50.160 of line drawing is permissible. The lawyers for the athletes 0:10:50.200 --> 0:10:55.160 in these cases are arguing, yes, in general, line drawing 0:10:55.240 --> 0:10:58.520 based on biology when it comes to sports might be permissible, 0:10:58.960 --> 0:11:02.959 but categoric banning all transgender girls and women from playing 0:11:03.000 --> 0:11:07.720 girls and women's sports is not reasonable. It defies the science, 0:11:07.840 --> 0:11:11.400 and most importantly, it defies the fact about the athlete. 0:11:11.000 --> 0:11:14.120 Teams cases coming up next on the Bloomberg Law Show, 0:11:14.520 --> 0:11:18.040 could a ruling favoring the bands in Idaho and West 0:11:18.160 --> 0:11:22.840 Virginia affects states that permit transgender girls and women to 0:11:23.000 --> 0:11:27.040 participate on female teams. Remember, you can always get the 0:11:27.120 --> 0:11:30.160 latest legal news by listening to our Bloomberg Law podcasts. 0:11:30.559 --> 0:11:33.560 You can find them on Apple Podcasts. Spotify and at 0:11:33.600 --> 0:11:38.320 Bloomberg dot com, slash podcast Slash Law. I'm June Grasso, 0:11:38.440 --> 0:11:44.520 and you're listening to Bloomberg. Idaho and West Virginia are 0:11:44.559 --> 0:11:50.080 among twenty seven states with laws restricting transgender student athletes, 0:11:50.559 --> 0:11:55.000 all enacted since twenty twenty. During three hours of oral 0:11:55.120 --> 0:12:00.360 arguments today, the Supreme Court's conservatives suggested their law likely 0:12:00.400 --> 0:12:05.000 to uphol those state bands, but Justice Brett Kavanaugh raised 0:12:05.000 --> 0:12:09.079 the question of whether a ruling favoring those state bans 0:12:09.440 --> 0:12:13.800 would affect laws in states that allowed transgender girls and 0:12:13.840 --> 0:12:16.680 women to participate on female teams. 0:12:17.040 --> 0:12:21.040 And those states who do allow it, are they is 0:12:21.080 --> 0:12:25.839 your position that they are violating the Constitution the Equal 0:12:25.880 --> 0:12:32.040 Protection claus rights of biological girls and women by allowing that, 0:12:32.320 --> 0:12:35.880 or do you say that's up to each state to decide, 0:12:36.040 --> 0:12:40.880 and that the Constitution gives discretion to the state whether 0:12:41.040 --> 0:12:44.200 to allow it or not to allow it. I have 0:12:44.320 --> 0:12:46.720 not yet been persuaded by a constitutional theory that would 0:12:46.760 --> 0:12:48.640 let us use the egal protection clause to impose our 0:12:48.640 --> 0:12:50.000 policy on other states in this matter. 0:12:50.280 --> 0:12:53.920 I've been talking to Columbia Law School professor Suzanne Goldberg. 0:12:54.520 --> 0:12:58.200 Suzanne in the Bosta case the twenty twenty case where 0:12:58.200 --> 0:13:03.120 the Court ruled six to three Title seven protects transgender 0:13:03.240 --> 0:13:09.880 workers from discrimination based on sexual orientation and gender identity. 0:13:10.280 --> 0:13:13.000 But did it appear that both the Chief Justice, who 0:13:13.040 --> 0:13:16.560 was in the majority in Bosstok, and Justice Neil Gorsich, 0:13:16.600 --> 0:13:20.520 who wrote the opinion in Bosstok, were backing away from 0:13:20.520 --> 0:13:21.760 it in this case. 0:13:22.720 --> 0:13:24.480 I think it's fair to say that Justice Gorsic and 0:13:24.679 --> 0:13:28.800 Chief Justice Roberts did not heartily endorse. 0:13:28.480 --> 0:13:30.880 The application of Bostok to Title nine. 0:13:31.440 --> 0:13:34.120 At one point, Justice Gorsich even said, I wonder how 0:13:34.160 --> 0:13:37.040 straightforward this all is, and this was after several hours 0:13:37.040 --> 0:13:40.800 of oral argument. Bosstok does not have to be applied 0:13:40.880 --> 0:13:43.920 for the individual athletes to prevail in these cases. 0:13:44.480 --> 0:13:45.319 But I think it is. 0:13:45.320 --> 0:13:48.880 Fair to say that they don't see an easy connection 0:13:49.040 --> 0:13:54.080 or a direct connection between prohibiting sex discrimination under Title 0:13:54.200 --> 0:14:00.080 seven in employment against gay or transgender employees to carry 0:14:00.120 --> 0:14:04.120 over to Title nine, which prohibits sex discrimination in education. 0:14:04.280 --> 0:14:06.080 I mean, obviously we'll see what they have to say 0:14:06.080 --> 0:14:10.040 in their opinions, but they did not say anything in 0:14:10.080 --> 0:14:13.240 the argument to indicate that they see an easy carryover 0:14:13.320 --> 0:14:15.319 of boss Stock from one setting to the other. 0:14:15.640 --> 0:14:21.080 Were lawyers for the transgender athletes, hoping that there would 0:14:21.080 --> 0:14:22.920 be a carryover from Boss Stoc. 0:14:23.600 --> 0:14:27.480 The lawyers for the athletes made the argument that, of 0:14:27.520 --> 0:14:30.720 course there's a connection both in terms of the specifics 0:14:30.800 --> 0:14:35.000 of the language of Title nine and Title seven. In 0:14:35.000 --> 0:14:38.560 interpreting Title nine, the Supreme Court often looks to its 0:14:38.680 --> 0:14:43.800 rulings under Title seven to keep the two statutes and 0:14:43.840 --> 0:14:48.560 their understandings of discrimination in sync, and so the normal 0:14:48.680 --> 0:14:51.520 course would be that a case like Boss Stock, which 0:14:51.520 --> 0:14:55.160 is an important interpretation of Title seven, would carry over 0:14:55.240 --> 0:14:59.360 to Title nine. The athletes lawyers also make the point, 0:14:59.440 --> 0:15:02.840 which I think is very fair, that whether the decision 0:15:02.920 --> 0:15:08.360 carries over formally or not, it's logic certainly should carry over, 0:15:08.880 --> 0:15:12.000 which is that when a government draws a line, or 0:15:12.080 --> 0:15:16.400 when there's line drawing that says all transgender people are 0:15:16.440 --> 0:15:19.880 on one side of the line, that necessarily is a 0:15:20.000 --> 0:15:23.360 kind of sex discrimination. It says we will treat you 0:15:23.960 --> 0:15:29.200 differently and worse because we don't conform to your expectations 0:15:29.240 --> 0:15:31.760 of what a man or woman should be. And that's 0:15:31.800 --> 0:15:35.640 exactly the kind of discrimination that Title seven is understood 0:15:35.680 --> 0:15:36.240 to prohibit. 0:15:36.560 --> 0:15:39.640 Were the three liberal justices on the same page. 0:15:40.400 --> 0:15:45.920 I would say that the three liberal justices seem troubled 0:15:45.960 --> 0:15:51.880 by the state's laws. Their questions reinforced one another. They 0:15:51.920 --> 0:15:54.640 were troubled, especially by an argument made by the state 0:15:55.360 --> 0:15:59.680 and the federal government that, you know, if the group 0:15:59.720 --> 0:16:03.600 that's discriminated against is really small, and the group of 0:16:03.600 --> 0:16:08.760 transgender people are really small, then the Constitution isn't so 0:16:08.880 --> 0:16:12.160 concerned about that. I think that is that argument is 0:16:12.280 --> 0:16:17.400 wildly incorrect and misstates the law, and it seemed that 0:16:17.400 --> 0:16:20.480 that was a key point of concern for those justices. 0:16:21.480 --> 0:16:25.640 Justice Brett Kavanaugh several times asked about the roughly two 0:16:25.720 --> 0:16:30.200 dozen states that allow transgender athletes to compete and whether 0:16:30.240 --> 0:16:34.440 they'd be forced to change course if the Justice is 0:16:34.480 --> 0:16:37.840 uphold state ban so he said, are those states violating 0:16:37.880 --> 0:16:42.400 the constitutional rights of biological girls and women by allowing that? 0:16:42.600 --> 0:16:45.360 And Justice Kagan also asked that question. 0:16:45.760 --> 0:16:49.320 I think this is one important takeaway from this argument 0:16:49.640 --> 0:16:54.760 is that the governments trying to defend these laws did 0:16:54.840 --> 0:16:59.920 not argue that it would violate the rights of cisgender 0:17:00.120 --> 0:17:04.119 girls to allow transgender girls to compete against them on 0:17:04.240 --> 0:17:07.760 girls or women's teams. And so, you know, a key 0:17:08.560 --> 0:17:12.280 takeaway here is no one seemed to be embracing an 0:17:12.400 --> 0:17:16.280 argument that it would be unconstitutional for nearly half of 0:17:16.320 --> 0:17:20.760 the states in the country to allow transgender girls and 0:17:20.800 --> 0:17:24.439 women to compete on girls and women's teams. The lawyer 0:17:24.480 --> 0:17:27.280 for the United States specifically argued that they were not 0:17:27.600 --> 0:17:30.679 asking the court to address this. The United States has 0:17:30.720 --> 0:17:33.359 taken the position that it violates Title nine for states 0:17:33.400 --> 0:17:37.520 to allow transgender girls and women to participate on girls 0:17:37.520 --> 0:17:42.119 and women's teams. But the lawyer for the government in 0:17:42.160 --> 0:17:45.119 this case try to strongly make the point that that 0:17:45.240 --> 0:17:47.920 is not what this case is about, and it would 0:17:47.960 --> 0:17:50.800 be surprising, I think if the court were to reach 0:17:50.880 --> 0:17:51.800 that question here. 0:17:52.200 --> 0:17:55.199 So, I mean, we've talked about this before, about how 0:17:55.480 --> 0:18:00.280 there have been setbacks to transgender rights from this court 0:18:00.680 --> 0:18:04.480 allowing Donald Trump to ban transgender people from the military, 0:18:05.119 --> 0:18:10.320 blocking transgender and non binary people from choosing passport sex markers, 0:18:10.880 --> 0:18:14.480 as well as the ruling that upheld Tennessee's ban on 0:18:14.640 --> 0:18:18.680 gender affirming care for transgender youth. And when you listen 0:18:18.760 --> 0:18:21.440 to the oral arguments, you know you have the three liberals, 0:18:21.720 --> 0:18:23.600 and then it seems hard for me to find two 0:18:24.000 --> 0:18:28.679 more justices who would side with the transgender athletes in 0:18:28.720 --> 0:18:32.199 these cases. And also it would just be a continuation 0:18:32.359 --> 0:18:35.719 of what the Supreme Court has been doing in recent years, 0:18:35.840 --> 0:18:39.119 which is cutting back on transgender rights. 0:18:39.720 --> 0:18:42.679 It's certainly true that in recent years, and especially this 0:18:42.840 --> 0:18:46.840 past year, the Supreme Court has cut back in profound 0:18:46.880 --> 0:18:50.920 ways on the rights of transgender people by upholding an 0:18:50.960 --> 0:18:56.040 executive order excluding transgender people from military service on an 0:18:56.040 --> 0:18:59.280 emergency basis, or allowing that order to stay in place, 0:19:00.000 --> 0:19:03.120 by allowing an order to stay in place that blocks 0:19:03.160 --> 0:19:07.600 transgender people from getting accurate gender identity documents through the 0:19:07.680 --> 0:19:13.040 passport service, by upholding a ban on access to gender 0:19:13.160 --> 0:19:19.160 firming healthcare for transgender youth. This case presents a different 0:19:19.200 --> 0:19:25.000 type of question because it squarely asks on the merits 0:19:25.040 --> 0:19:28.600 of the case, at least in this early stage. Is 0:19:28.600 --> 0:19:32.640 it a violation of the rights of transgender people directly 0:19:32.760 --> 0:19:36.359 to be excluded from athletics participation? Right, this is not 0:19:36.480 --> 0:19:40.320 a national security issue like with passports or like with 0:19:40.359 --> 0:19:44.240 the military service. It's not a medical care issue that 0:19:44.320 --> 0:19:48.359 states often regulated, like with the gender affirming care case. 0:19:49.080 --> 0:19:52.439 So the question really is, you know, can kids and 0:19:52.560 --> 0:19:55.360 young people be kept out of part of their educational 0:19:55.440 --> 0:20:00.359 program because they're transgender. It's a different kind of ca case. 0:20:00.640 --> 0:20:04.160 We will see where the court comes out. I do 0:20:04.440 --> 0:20:10.359 think the lawyers for the athletes presented the facts in 0:20:10.400 --> 0:20:15.320 a way that was so clearly showing that there isn't 0:20:15.640 --> 0:20:16.680 on the facts. 0:20:16.320 --> 0:20:17.240 In these cases. 0:20:17.840 --> 0:20:21.160 These two students were not at some sort of special 0:20:21.240 --> 0:20:25.280 advantage because they were transgender. And so the question is, 0:20:25.440 --> 0:20:30.679 can states override the right of these two students to 0:20:30.840 --> 0:20:34.080 participate in girls and women's teams even when the facts 0:20:34.160 --> 0:20:38.840 show that these students are similarly situated to their female peers. 0:20:39.200 --> 0:20:43.320 There was also a discussion about the small percentage of 0:20:43.520 --> 0:20:46.639 athletes made up by transgender athletes. 0:20:47.440 --> 0:20:51.160 You know, one of the interesting legal questions the court 0:20:51.200 --> 0:20:55.280 may need to address here is what happens when a 0:20:55.320 --> 0:20:59.040 small group of people challenge a law saying this law 0:20:59.280 --> 0:21:04.120 is not a reasonable fit when applied to us, and 0:21:04.280 --> 0:21:08.600 the law discriminates against us based on sex. The governments 0:21:08.640 --> 0:21:13.600 in these cases we're arguing, well, you know, the law 0:21:13.640 --> 0:21:15.480 doesn't have to be a perfect fit, it just has 0:21:15.520 --> 0:21:18.520 to be reasonable, and well, you know, it's too bad 0:21:18.560 --> 0:21:22.120 if some people are left out, but the constitution allows that. 0:21:22.680 --> 0:21:27.040 I do think that even some of the justices in 0:21:27.080 --> 0:21:30.000 the middle would be troubled to reach that kind of 0:21:30.080 --> 0:21:34.359 conclusion because it is fairly damning, I think to suggest 0:21:34.480 --> 0:21:38.199 that the equal protection guarantee in the Constitution does not 0:21:38.440 --> 0:21:45.119 guarantee minority groups, however, defined the ability to challenge discriminatory 0:21:45.200 --> 0:21:47.479 laws as applied to those groups. 0:21:47.480 --> 0:21:49.639 That's the whole point of the equal Protection clause. 0:21:49.680 --> 0:21:53.119 It's to say, yes, of course governments can engage in 0:21:53.160 --> 0:21:57.199 line drawing, but they cannot engage in line drawing that 0:21:57.400 --> 0:22:01.720 is unreasonable with respect and certainly illegitimate with respect to 0:22:01.760 --> 0:22:05.359 any group. And in these cases, as applied to students 0:22:05.480 --> 0:22:10.280 who are transgender girls and women who have mitigated the 0:22:10.320 --> 0:22:13.840 effects of testosterone and are able to compete against other 0:22:13.840 --> 0:22:18.480 girls and women, those are unreasonable rules, right. They categorically 0:22:18.520 --> 0:22:21.440 exclude those students from those teams, and I think the 0:22:21.440 --> 0:22:23.600 court will have to take that up, and some of 0:22:23.640 --> 0:22:25.840 the justices will be troubled by that. 0:22:26.880 --> 0:22:30.480 Also. I found it odd that the girl in the 0:22:30.640 --> 0:22:35.760 Idaho case wanted to drop the case, but Idaho officials, 0:22:36.040 --> 0:22:39.560 who are the defendants, don't want the case to be dropped. 0:22:39.880 --> 0:22:43.760 So the college student went back to the trial court 0:22:43.800 --> 0:22:48.600 and said, I'm not going to participate in school athletics anymore. Right, 0:22:48.680 --> 0:22:51.920 I'm going to focus on finishing college, and you know 0:22:52.040 --> 0:22:55.280 it will be harmful to me. I've already come under 0:22:55.320 --> 0:22:57.160 a lot of scrutiny, you know, having. 0:22:56.960 --> 0:22:57.760 This case decided. 0:22:57.800 --> 0:23:00.680 My case decided by the Supreme Court will not be 0:23:00.760 --> 0:23:01.320 in my interest. 0:23:01.359 --> 0:23:02.480 I don't want to play anymore. 0:23:03.440 --> 0:23:07.600 And so there's a question whether the court actually can 0:23:07.680 --> 0:23:10.360 address her case or should address her cases. The government 0:23:10.440 --> 0:23:13.600 tried to argue that there are other similar cases in 0:23:13.640 --> 0:23:16.880 the past when the court has gone ahead and said, yes, 0:23:16.880 --> 0:23:18.840 we're going to address your case anyway, but none of 0:23:18.880 --> 0:23:23.399 those situations really apply here. And at the end of 0:23:23.440 --> 0:23:25.399 the day, I think if the court were to go 0:23:25.480 --> 0:23:29.879 ahead and say, you know what, you were a plaintiff before, 0:23:29.920 --> 0:23:32.359 so we're making you stick on through this whole case, 0:23:32.400 --> 0:23:34.879 even though you want to drop it, that would have 0:23:34.920 --> 0:23:38.560 implications far beyond this case and would actually be quite dangerous, 0:23:38.600 --> 0:23:40.879 I think for the court to pursue on a separate 0:23:41.040 --> 0:23:45.679 Another question that came up was, well, what about laws 0:23:45.840 --> 0:23:49.040 that treat boys and girls differently for other purposes? Right, 0:23:49.640 --> 0:23:54.760 what about restrictions on a chess club or restrictions on 0:23:55.240 --> 0:23:59.200 participation of girls in calculus classes or other things. How 0:23:59.280 --> 0:24:03.119 far can discrimination extend? And this was connected to this 0:24:03.240 --> 0:24:06.320 question about well, what a science show? And if science 0:24:06.359 --> 0:24:10.679 somehow showed that men or boys were better at math 0:24:11.000 --> 0:24:14.520 or better at chess, would that mean that the state 0:24:14.560 --> 0:24:18.320 could then exclude girls and women? That also, the court 0:24:18.359 --> 0:24:22.919 seemed troubled by pretty much everybody, And so I suspect 0:24:22.960 --> 0:24:26.640 that whatever the justices do, at least most of them 0:24:26.680 --> 0:24:28.960 are going to want to stay away from those questions. 0:24:29.320 --> 0:24:33.520 Thanks so much, Suzanne. That's Professor Suzanne Goldberg of Columbia 0:24:33.640 --> 0:24:38.120 Law School coming up next. Former Supreme Court advocate on trial. 0:24:38.520 --> 0:24:44.159 This is Bloomberg. Tom Goldstein was a top Supreme Court 0:24:44.280 --> 0:24:47.920 advocate who shocked the legal community when he was charged 0:24:47.960 --> 0:24:52.400 with tax evasion and his double life was revealed. The 0:24:52.480 --> 0:24:55.840 allegations and the indictment painted a picture of a wild 0:24:55.880 --> 0:25:00.399 lifestyle that included ultra high stakes poker games, million in 0:25:00.440 --> 0:25:06.199 gambling debts, extramarital affairs, and more. Goldstein faces charges of 0:25:06.359 --> 0:25:10.800 tax evasion and making a false statement. The tax charges 0:25:10.960 --> 0:25:16.520 revolve primarily around Goldstein's alleged mischaracterization of business and personal 0:25:16.560 --> 0:25:21.639 expenses and failure to report certain income the willful failure 0:25:21.680 --> 0:25:24.680 to pay taxes. Charges are based on the theory that 0:25:24.800 --> 0:25:29.840 Goldstein opted to pay off other expenses, including gambling debts. 0:25:30.040 --> 0:25:35.320 First joining me is former federal prosecutor Marissa Darden. She's 0:25:35.400 --> 0:25:39.840 chair of the White Collar Government Investigations and Regulatory Practice 0:25:39.880 --> 0:25:44.600 Group at Benisch. Marissa tell us a little about Tom Goldstein. 0:25:45.640 --> 0:25:48.920 I think everybody revered him as one of the scions 0:25:48.920 --> 0:25:51.960 of the Supreme Court. He has argued some of the 0:25:52.040 --> 0:25:56.240 most important cases of our time. He has had some 0:25:56.280 --> 0:26:00.879 really successful wins for Google and for other huge companies 0:26:01.720 --> 0:26:03.800 in you know, sort of bet the stakes, you know, 0:26:03.840 --> 0:26:06.840 sort of anti trust and other sort of complicated, really 0:26:07.240 --> 0:26:10.680 sophisticated First Amendment issues, trying to persuade the Court in 0:26:10.720 --> 0:26:13.439 this favor, which he's done really well. I think, you know, 0:26:13.600 --> 0:26:16.040 I remember learning more about him in the bushby core 0:26:16.160 --> 0:26:18.000 Era because I think he was part of that original 0:26:18.000 --> 0:26:21.240 team with David Boyce. But he's you know, got a 0:26:21.280 --> 0:26:24.159 stellar reputation or at least had a stellar reputation in 0:26:24.240 --> 0:26:28.719 front of the Supreme Court, very successful Washington lawyer, and 0:26:28.800 --> 0:26:31.000