Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: In a landmark decision, the Supreme Court divided down ideological
Speaker 2: lines upheld Tennessee's ban on gender affirming care for transgender miners,
Speaker 2: a stunning setback to transgender rights. Chief Justice John Roberts
Speaker 2: wrote the majority opinion for the six conservative justices, finding
Speaker 2: that the law does not violate the Constitution's equal Protection clause,
Speaker 2: which requires the government to treat similarly situated people the
Speaker 2: same Roberts wrote that there are fierce scientific and policy
Speaker 2: debates about the medical treatments, but quote, we leave questions
Speaker 2: regarding its policy to the people, their elected representatives, and
Speaker 2: the democratic process, Echoing what the Chief and Justice Brett
Speaker 2: kavanaughh pointed to during the oral arguments.
Speaker 3: You know, we might think that we're, you know, we
Speaker 3: can do just as good a job with respect to
Speaker 3: the evidence here as Tennessee or anybody else. But my
Speaker 3: understanding is that the Constitution leaves that question to the
Speaker 3: people's representatives rather than to nine people, none of whom
Speaker 3: is a doctor.
Speaker 4: If the Constitution doesn't take sides, if they're strong, forceful
Speaker 4: scientific policy arguments on both sides In a situation like this,
Speaker 4: why isn't it best to leave it to the democratic process?
Speaker 2: Justice Sonya Soto Mayor wrote a blistering descent for the
Speaker 2: courts three liberals, accusing the Conservatives of abandoning transgender children
Speaker 2: and their families to political whims by retreating from meaningful
Speaker 2: judicial review exactly where it matters most. During the oral
Speaker 2: arguments so to, Mayor had said that the democratic process
Speaker 2: does not protect transgender people against bad laws.
Speaker 5: There one percent of the population or less. Very hard
Speaker 5: to see how the democratic process is going to protect you. Well,
Speaker 5: you are Blacks were a much larger part of the population,
Speaker 5: and it didn't protect them. It didn't protect women for
Speaker 5: whole centuries.
Speaker 2: Twenty three states have bands similar to Tennessees. Joining me
Speaker 2: is Kate Redburn, a professor at Columbia Law School whose
Speaker 2: expertise centers on the law of gender, sexuality, and religion.
Speaker 2: How much of a setback is this decision for transgender rights.
Speaker 6: It's a significant setback for transgender rights, especially regarding the
Speaker 6: availability and access to medically necessary treatments for gender dysphoria.
Speaker 6: So the opinion refers to SB one's Tennessee law, which
Speaker 6: essentially prohibits transgender youth from accessing gender froming care while
Speaker 6: allowing all other youth to access the same treatments. He says,
Speaker 6: that's not a sex classification. What it doesn't do, however,
Speaker 6: is it doesn't hold that trans people are not a
Speaker 6: suspect class in general. So it looks like at least
Speaker 6: three justices were willing to go that far, and the
Speaker 6: opinion didn't go that far. So it's very bad for
Speaker 6: trans kids and potentially trans adults who are seeking medical care,
Speaker 6: but it doesn't necessarily reach as far as all transiscrimination.
Speaker 2: What was the central legal question here regarding the equal
Speaker 2: protection clause?
Speaker 6: So the question before the court was whether or not
Speaker 6: this law violated equal protection, and the United States really
Speaker 6: directed under the prior administration, really directed the court's attention
Speaker 6: to the question of whether or not this law constituted
Speaker 6: a sex classification. So does the law turn on sex?
Speaker 6: And the reason for that is because when laws do
Speaker 6: turn on sex, then the court it looks more closely
Speaker 6: at the law. They call that heightened scrutiny for sex discrimination.
Speaker 6: So the court I said that certain kinds of classifications,
Speaker 6: race classifications paradigmatically more into strict scrutiny. So the Court's
Speaker 6: going to look very hard. Sex classification the Court has
Speaker 6: previously said sometimes are permissible, it's sometimes okay for governments
Speaker 6: to distinguish between people on the basis of sex or
Speaker 6: make sex classifications. But because it sounds a little bit
Speaker 6: potentially suspicious, they're going to look more closely. And so
Speaker 6: the question here was is it a sex classification? And
Speaker 6: then the danger was what had happened in the Sixth
Speaker 6: Circuit where in this case that court had said that
Speaker 6: this law was not a sex classification and sort of
Speaker 6: combined the analysis in a way that made people concern
Speaker 6: that the court was going to find that even certain
Speaker 6: kinds of sex classifications don't Warrant tightened scrutiny. So here
Speaker 6: what happened was the Robert's majority opinion says that this
Speaker 6: law is not a sex classification and therefore only warrant's
Speaker 6: rational basis review.
Speaker 2: Chief Justice Roberts, in his majority opinions talked about the
Speaker 2: fierce scientific and policy debates about the safety, efficacy, and
Speaker 2: propriety of medical treatments in an evolving field. Quote, we
Speaker 2: leave questions regarding its policy to the people. They're elected
Speaker 2: representatives and the democratic process. Is that just the court
Speaker 2: looking for an out, I mean, they do make policy decisions.
Speaker 6: Yeah, So it sounds not dissimilar to what the Court
Speaker 6: said about Dobbs when it overturned roversus Wade, which was
Speaker 6: under the guise of changing doctrine, and that case quite significantly,
Speaker 6: it described itself as kicking the question back to the states.
Speaker 6: What is suspicious about that language in this context is
Speaker 6: that the heightened scrutiny is actually designed to make it
Speaker 6: possible for course to spend some time really looking at
Speaker 6: the justifications that the governments are using for regulating and
Speaker 6: classifying on sex, and then it also asks whether or
Speaker 6: not the means justify the ed. So it might be
Speaker 6: that there's a close relationship between the purpose of the
Speaker 6: law and its classification, but it's nevertheless not an acceptable
Speaker 6: purpose anyway. All of that's just to say that the
Speaker 6: existing doctrine is meant to give the court the opportunity
Speaker 6: to really weigh evidence. And what this decision does is
Speaker 6: it seems to open up the possibility of authorizing governments
Speaker 6: to regulate around medical procedures that touch on sex without
Speaker 6: courts even looking to weigh the evidence. So it might
Speaker 6: be the case that the Court could have applied heightened
Speaker 6: scrutiny and still found that this particular law had, on
Speaker 6: its view of sufficient evidentiary support, you know, in light
Speaker 6: of the purported medical controversy, But it might not have,
Speaker 6: and it really denied itself and potentially future courts from
Speaker 6: even looking into that.
Speaker 2: Justice Sonia Sotomayo wrote a blistering dissent, and she read
Speaker 2: a summary of it from the bench, which the justices
Speaker 2: sometimes do when they feel strongly about a descent. Then
Speaker 2: she ended with in sadness I dissent, she talked about
Speaker 2: the majority abandoning transgender children and their families to political whims.
Speaker 6: I think that, you know, her sadness stems from the
Speaker 6: fact that this is going to force potentially trans kids
Speaker 6: and their families in half of the states where similar
Speaker 6: laws are on the books to relocate in order to
Speaker 6: simply live their lives. The state of the medical controversy
Speaker 6: about these issues, and the majority of and is vastly overstated.
Speaker 6: Much of the history that it relies on, and some
Speaker 6: of the other concurring opinians rely on, it's just the untrue.
Speaker 6: And so you know what I think, Justice Sodomayor was
Speaker 6: trying to say is that the consequences for trans youth
Speaker 6: in particular are just really, really egregious.
Speaker 2: In her courtroom statement, she said that similar arguments were
Speaker 2: made to defend the Virginia law that prohibited interracial marriage
Speaker 2: that the Supreme Court struck down in nineteen sixty seven.
Speaker 6: Yeah, so we call those equal application laws, and they
Speaker 6: basically say that because so in Loving versus Virginia, the
Speaker 6: argument was well for the law prohibited interracial marriage, and
Speaker 6: the justification for it that the state gave was this
Speaker 6: is not racial discrimination because white people are not allowed
Speaker 6: to marry people of color and people of color are
Speaker 6: not allowed to marry white people. In other words, everyone
Speaker 6: is equally prohibited. But the court said no, this is
Speaker 6: still rooted in racial stereotypes that suggest that interracial marriage
Speaker 6: is bad, and also animus towards racial minorities and trying
Speaker 6: to reinforce the racial hierarchy.
Speaker 3: In the country.
Speaker 6: So the fact that you can find in that case
Speaker 6: white people and black people on both sides of the
Speaker 6: line that the regulation draws does not mean that it's
Speaker 6: not subject to heighten scrutiny. And so there's a reading
Speaker 6: of the majority's opinion here, which that it does exactly
Speaker 6: the same thing. That's what she's saying that just because
Speaker 6: there are transgender miners on both sides of the line.
Speaker 6: In other words, transgender miners, according to the Court, can
Speaker 6: still obtain sort of treatments if they're not for the
Speaker 6: purposes of addressing gender dysphoria. That doesn't mean that this
Speaker 6: is not motivated by animus towards transgender people and trying
Speaker 6: to reinforce as sex and gender hierarchy. That suggests that
Speaker 6: there's something normatively preferable about not being transgender.
Speaker 2: How have transgender rights in particular, How have transgender rights
Speaker 2: in particular suffered or been affected by Donald Trump's presidency?
Speaker 6: Basically says it's a little bit after twenty sixteen, it's
Speaker 6: been a major priority among Republicans legislators in particular to
Speaker 6: attack trans rights. There's a lot of reasons why that
Speaker 6: could be the case. You know, one reason that having
Speaker 6: lost the gay marriage fight, there's an effort to find
Speaker 6: a different issue that touches on questions of traditional and
Speaker 6: non traditional gender and sexual role to search for another
Speaker 6: issue became even stronger after Dobs, after the Supreme Court
Speaker 6: overturned row versus ways in part because abortion is actually
Speaker 6: quite popular nationally, and so in order to create some
Speaker 6: kind of coalition that could win national elections, needed to
Speaker 6: find an issue which would connect to traditional gender and
Speaker 6: sexual values without touching on something popular like gay marriage
Speaker 6: or abortion. So a way to understand the effect of
Speaker 6: the Trump administration is really that it has accelerated a
Speaker 6: pre existing tendency, and it's turned what were state level
Speaker 6: efforts to make transgender life extremely difficult, if not impossible,
Speaker 6: into national policy. So the redefinition of sex, attempts to
Speaker 6: regulate medical treatments, access to bathrooms, access to sports teams,
Speaker 6: all of those those efforts that we saw in the
Speaker 6: executive orders, and of course, you know, very important restrictions
Speaker 6: and attempted restrictions now in Congress on access to healthcare
Speaker 6: through various kinds of federal aid are reflecting the nationalization
Speaker 6: of what had been state level attacks.
Speaker 2: Does the decision today help legal challenges by President Trump
Speaker 2: and Republican administrations to roll back protections for transgender people.
Speaker 6: It might that it might not. As I said, there
Speaker 6: is not a majority on the court apparently to hold
Speaker 6: that anti transiscrimination, you know, is not visible to the Constitution.
Speaker 6: In other words, there are other kinds of anti transcrimination
Speaker 6: that the Court seems to have held open the possibility
Speaker 6: for recognizing, and so it's going to really depend on
Speaker 6: what is characterized as a medical condition. In other words,
Speaker 6: this opinion says that SB one is discriminating on the
Speaker 6: basis of gender dysphoria and not transgender identity, and so
Speaker 6: other laws do not have that character of being ostensibly
Speaker 6: justified as medical regulations. Instead, I think the normative stakes
Speaker 6: of just trying to force people not to be transgender
Speaker 6: or even clearer in those other situation, And the Court
Speaker 6: hasn't totally eliminated the possibility of reading those arguments in
Speaker 6: the future.
Speaker 2: So the justices still have to rule in another case
Speaker 2: about whether a Maryland school district is violating the Constitution
Speaker 2: by using LGBTQ friendly books in the classroom without giving
Speaker 2: parents the right to opt out. After hearing the oral
Speaker 2: arguments in that case, and I know everyone says, you
Speaker 2: can't tell what the justices are going to do, but
Speaker 2: it seemed pretty clear that there were enough justices to
Speaker 2: support the position of the religious parents. There is that
Speaker 2: case important.
Speaker 6: Yeah, that case is enormously important for another front in
Speaker 6: the ongoing attacks on really any kind of non normative
Speaker 6: families or gender or sexual identities. The issue is actually
Speaker 6: not at all new to the country. It has never
Speaker 6: reached the Supreme Court before, but in the nineteen eighties
Speaker 6: there were a series of lower court cases on identical
Speaker 6: issues where conservatives, in that case, people who self identified
Speaker 6: as fundamentalist Christians, objected to content in public school curricula
Speaker 6: that they characterized as secular humanism, and courts universally said
Speaker 6: that mere exposure to ideas which parents dislike, or even
Speaker 6: ideas which are sensitive to the religious beliefs of parents,
Speaker 6: does not constitute coersion, and so it's not constitutionally suspect
Speaker 6: that court does seem poised to equate contact with coersion
Speaker 6: in ways that are potentially quite quite sweet thing. During
Speaker 6: oral argument, the Actings Lister General who made the arguments,
Speaker 6: suggested that the presence of a transgender student, for example,
Speaker 6: could be considered a kind of content to which a
Speaker 6: religious objection might be relevant. In other words, it was
Speaker 6: possible not only that a parent could object to a
Speaker 6: book being on the shelf or a book being read
Speaker 6: in class that includes, for example, gay characters, but also
Speaker 6: that the existence of a person whose self is disliked
Speaker 6: or reported to be against the religious beliefs of the
Speaker 6: parent could prompt an opt out. So it really has
Speaker 6: the potential to destroy the ability of public school teachers
Speaker 6: to make inclusive choices about what kind of content and
Speaker 6: what kind of classrooms they have that reflect the diversity
Speaker 6: of our society.
Speaker 2: Thanks so much for joining me today. That's professor Kate
Speaker 2: Redburn of Columbia Law School. Crowds outside the courthouse in Dedham, Massachusetts,
Speaker 2: cheered this afternoon after a jury found Karen Reid not
Speaker 2: guilty of second degree murder and manslaughter charges in the
Speaker 2: death of her Boston police officer boyfriend in twenty twenty two.
Speaker 2: The jury did find Read guilty of the lesser charge
Speaker 2: of drunk and driving, handing down its decision after deliberating
Speaker 2: for at least twenty two hours over four days. The
Speaker 2: verdict comes nearly a year after another jury had deadlocked
Speaker 2: over Reid's guilt. It's a huge victory for her lawyers,
Speaker 2: who've asserted that she was framed by police after dropping
Speaker 2: O'Keefe off at a party at the home of a
Speaker 2: fellow officer. Prosecutors argued the forty five year old read
Speaker 2: hit O'Keefe with her SUV before driving away, but the
Speaker 2: defense maintained that O'Keefe was killed inside the home and
Speaker 2: later dragged outside. Joining me is former Palm Beach County
Speaker 2: State Attorney Dave Arenberg. Were you surprised at the not
Speaker 2: guilty verdicts here?
Speaker 1: I was very surprised by it because I thought the
Speaker 1: prosecution this time did an excellent job and focusing the
Speaker 1: jury on the evidence, the data, the cell phone data,
Speaker 1: the evidence of the battery of the cell phone and
Speaker 1: when it started to weaken, and when the phone started
Speaker 1: to freeze, the timing. I mean, this was not speculation.
Speaker 1: Data doesn't have any ax to grind. Data is data,
Speaker 1: and as a result, I thought the jury would listen
Speaker 1: to that. Instead, they got distracted by all the things
Speaker 1: and apparently found reasonable doubt.
Speaker 2: Obviously there were no eyewitness accounts, no direct evidence of
Speaker 2: the hit, but there were a series of experts to
Speaker 2: fill in the evidentiary picture. Do you think that testimony
Speaker 2: was too sophisticated for the jury.
Speaker 1: Whenever you get into a battle of experts, it's a
Speaker 1: problem for prosecution because jurors these days, they want eyewitnesses,
Speaker 1: they want the DNA, they want the conclusive smoking guns
Speaker 1: because they're used to seeing that on TV shows which
Speaker 1: are wrapped up in an hour at CSI and other shows.
Speaker 1: And if you don't have that, jurors will quickly find
Speaker 1: some reasonable doubt, especially if it becomes a battle of experts.
Speaker 1: But I thought that it was a defense that came
Speaker 1: up with a cockamamie alternative theory and thus raised the
Speaker 1: bar for the defense by saying that John O'Keefe entered
Speaker 1: the home. There's no evidence he entered the home. There's
Speaker 1: no evidence that anything happened, but he was hit by
Speaker 1: the car by a drunk, enraged woman who left dozens
Speaker 1: of angry voicemails on the victim's phone while he lay
Speaker 1: dying in the snow.
Speaker 2: And how did the defense explain Read's own words to
Speaker 2: paramedics afterwards, repeatedly saying I hit him.
Speaker 1: Yeah, her own words, I mean, she admitted it. But
Speaker 1: they were able to somehow frame it as maybe she
Speaker 1: was unsure, maybe she thought she did, but the witnesses
Speaker 1: said no, she said I hit him. I hit him.
Speaker 1: I mean. Her own lawyer when this case started said
Speaker 1: that she did hit him, that this was an accident,
Speaker 1: but then they changed their view to try to get
Speaker 1: away with it entirely, and she did.
Speaker 2: Would we call it a mixed verdict because they did
Speaker 2: convict her of operating under the influence of alcohol. Of course,
Speaker 2: the judge just gave her probation for that.
Speaker 1: Well, yeah, but they didn't find or guilty of leaving
Speaker 1: the seam of an accident, so they didn't even feel
Speaker 1: that it was conclusive that she caused an accident. So
Speaker 1: how did he die? It's a binary choice. Either she
Speaker 1: hit him or he went into the house and was
Speaker 1: murdered by law enforcement officers and soccer moms who got
Speaker 1: together in a conspiracy of silence the murder their friend
Speaker 1: and then dump his body on the front lawn. I
Speaker 1: don't even understand how anyone can think that makes sense.
Speaker 1: I mean, if you're a law enforcement officer and you're
Speaker 1: in cahoots with soccer moms, wouldn't you think you would
Speaker 1: just claim self defense if you wanted to kill another
Speaker 1: law enforcement officer, or wouldn't you try to hide the body?
Speaker 1: Why would you throw the body onto the front of
Speaker 1: your house unless it didn't happen, which it didn't happen.
Speaker 2: What some people say is the most powerful defense testimony
Speaker 2: was a snowplow driver who passed the home several times
Speaker 2: in the hours after the alleged collision and said he
Speaker 2: didn't see a two hundred and sixteen six foot one
Speaker 2: man lying in the yard.
Speaker 1: Yeah, and no one did. The snow was coming down
Speaker 1: and no one did. The only person who found this person,
Speaker 1: who is then the next morning buried under the snow.
Speaker 1: The only person who found John O'Keefe was the person
Speaker 1: who hit him, because she knew where his body was.
Speaker 1: Because she hit him, She knew what happened. No one
Speaker 1: else could find him. They were driving around looking for him,
Speaker 1: but she boughted them from a while away because she's
Speaker 1: the one who hit him. So in this case, I
Speaker 1: feel the same way as I did after the O. J.
Speaker 1: Simpson verdict or the Casey Anthony verdict that he had
Speaker 1: a guilty person go free.
Speaker 2: The jury deliberated about twenty two hours over four days.
Speaker 2: Does that sound to you like there was a holdout.
Speaker 1: Yes, it does sound like there was a Vibman discussion
Speaker 1: and this was their compromise verdict. But the compromise isn't
Speaker 1: really much of a compromise because the only buster on
Speaker 1: the lowest count, which gave her probation, so he gets
Speaker 1: the walk free. It's not over yet, though, because there'll
Speaker 1: be civil lawsuits than there are, and there also will
Speaker 1: be a trial of Turtle Boy, one of the bloggers
Speaker 1: who was on her side.
Speaker 2: Usually on a retrial, it's the prosecution that has the advantage.
Speaker 2: Why do you think it was different here?
Speaker 1: I thought the prosecution did a really good job. I
Speaker 1: don't have any issues with him. I think the defense
Speaker 1: was able to capitalize on discontent with police. You had jurors.
Speaker 1: All it takes his few jurors who would have issues
Speaker 1: with police. And here the accusation was that there was
Speaker 1: a police cover up and that the police officers were
Speaker 1: too close to the family inside the house, and the
Speaker 1: police officers were not only incompetent in collecting the evidence.
Speaker 1: That's the defense talking, not me, but also that the
Speaker 1: lead investigator, who was not even called to the stand,
Speaker 1: but that the lead investigator was much discussing individual with
Speaker 1: his comments about Karen Reid, and he did make defensive
Speaker 1: comments that the whole thing was tainted, and I think
Speaker 1: that did have some residents with the jury. I think
Speaker 1: they press want to know why the lead investigator did
Speaker 1: not testify. Maybe they were hiding something, which they weren't.
Speaker 1: They just thought that this guy was aside show a
Speaker 1: distraction because of his comments.
Speaker 2: Yeah, and the defense seemed to emphasize that in the
Speaker 2: closing arguments. Did the defense improve over the first trial
Speaker 2: where it just presented a day and a half of
Speaker 2: defense witnesses.
Speaker 1: I thought the defense did a really good job as
Speaker 1: they did in the first trial. I mean, anytime you
Speaker 1: are able to get a guilty client acquitted, it's a
Speaker 1: real feat for the defense, and they deserve credit. They're
Speaker 1: great lawyers, and it is my belief that she was guilty,
Speaker 1: and I think the evidence conclusively establishes that. But when
Speaker 1: you're a defense learning able to create a s I
Speaker 1: show a distraction and it works with the jury, then
Speaker 1: you're doing your job, I guess. And that's a shame
Speaker 1: for the victims' families, but that's what it is.
Speaker 2: So explain how in a civil case the standard is lower,
Speaker 2: so there might be a verdict in the family's favor
Speaker 2: for damages in the civil case, even though she was
Speaker 2: found not guilty in the criminal case.
Speaker 1: Right in a civil case. The standard is just proponents
Speaker 1: of the evidence. It's much easier to prove and either
Speaker 1: have proved negligence, which is a lower burden, So all around,
Speaker 1: it's easier to prove that case of the evidence just
Speaker 1: means is it more likely than not that Karen Reid
Speaker 1: did something wrong here, committed a tort. You don't have
Speaker 1: to prove anything beyond a reasonable doubt.
Speaker 2: So is the logical conclusion after this verdict that the
Speaker 2: murderer is still out there?
Speaker 1: Yeah? I guess she and Simpson will go search for
Speaker 1: the real killers. That's really what this is, right, This
Speaker 1: was a binary choice. Either she hit him with the
Speaker 1: car or he went inside the house and was murdered
Speaker 1: by law enforcement officers and soccer moms, and then they
Speaker 1: threw their friend's body onto their front lawns. Doesn't make
Speaker 1: any sense.
Speaker 2: So, Dave, what do you make of her supporters? I mean,
Speaker 2: there were crowds of people outside the courthouse waiting for
Speaker 2: the verdict.
Speaker 1: I mean why she became a cult of personality. I
Speaker 1: think that the narrative that was fed by bloggers was
Speaker 1: that here's this sweet, innocent woman who's being framed for
Speaker 1: a crime she didn't commit by by corrupt law enforcement officers.
Speaker 1: And I just feel for those law enforcement officers and
Speaker 1: the families for having their names dragged through the mud
Speaker 1: when they didn't deserve that. They lost a loved one.
Speaker 1: And John o' keith was a good man, and now,
Speaker 1: in my mind, a guilty defendant walks free.
Speaker 2: And when Reid came out of the courthouse, she made
Speaker 2: this statement, no one has fought harder for justice for
Speaker 2: John O'Keefe than I have.
Speaker 1: That's her oj Simpson, I'm gonna find the real killers moment,
Speaker 1: and just tells you all you need to know about her.
Speaker 1: I mean to make a statement like that, what an
Speaker 1: insult to the family, Now, what an insult. It rubs
Speaker 1: salt in the wounds to say something like that. You know,
Speaker 1: at least just go on with your life, and this
Speaker 1: family is suffered enough. But she continues to rub salt
Speaker 1: in that one.
Speaker 2: And following the verdict, several witnesses in the case said
Speaker 2: in a statement that their hearts are with John and
Speaker 2: the entire O'Keefe family and that the result is a
Speaker 2: devastating miscarriage of justice. Thanks so much, Dave. That's former
Speaker 2: Palm Beach County State Attorney Dave Ehrenberg, and that's it
Speaker 2: for this edition of The Bloomberg Law Show. Remember you
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