Speaker 1: This is Bloomberg Law, with June Brusso from Bloomberg Radio.
Speaker 2: A Texas judge struck down the FTC's ban on non
Speaker 2: compete agreements before the ban even went into effect, blocking
Speaker 2: the agency's effort to make labor markets more competitive. Non
Speaker 2: Compete agreements have become increasingly common, with an estimated twenty
Speaker 2: percent of workers that's about thirty million Americans subject to them.
Speaker 2: Last January, President Joe Biden touted the FTC's overhaul of
Speaker 2: the rules, saying non compete clauses are overused and often
Speaker 2: make it unnecessarily difficult for average working Americans to get
Speaker 2: better jobs.
Speaker 3: That's another thing to say you're working for a subway
Speaker 3: and you can't walk across the street and go to
Speaker 3: Jimmy Johns and get a twenty cent raise. What tells
Speaker 3: that all about others and keeping wages down?
Speaker 2: But Texas Judge Ada Brown, a Trump appointee, said the
Speaker 2: FTC lacked the authority to enact the non compete ban
Speaker 2: and tossed it out. Joining me is William Kavasik, a
Speaker 2: professor at GW Law School and the former chair of
Speaker 2: the FTC.
Speaker 4: The judge said.
Speaker 2: In her twenty seven page ruling that the FTC's proposed
Speaker 2: rule was arbitrary and capricious and would cause irreparable harm.
Speaker 4: Can you tell us more about her decision?
Speaker 1: Judge Brown had two grounds for suspending the implementation of
Speaker 1: the rule vacating it. The first is the one you mentioned,
Speaker 1: which is that the FDC lacked an adequate basis to
Speaker 1: support the scope and the complete reach of the rule.
Speaker 1: That is, the rule applies to a very broad range
Speaker 1: of employment contracts. There are a couple of carbouts, but
Speaker 1: the judge concluded that you lacked a sufficient evidentiary basis
Speaker 1: to implement that rule, and therefore the rule itself as
Speaker 1: arbitrary and caprecious. The second basis for rejecting the rule
Speaker 1: is her conclusion that the FDC lacks the legal authority
Speaker 1: to adopt rules involving competition policy. That is, substantive competition
Speaker 1: rules are beyond the FDC's remit. This involved a fairly
Speaker 1: elaborate and technical analysis the FDC's authority going back to
Speaker 1: nineteen fourteen when Congress established the FDC Act and coming forward,
Speaker 1: but her review of the original framework and its subsequent
Speaker 1: evolution to the FTC simply lacks legal authority to adopt
Speaker 1: and apply such a rule, so that on that basis
Speaker 1: as well, the rule was suspended.
Speaker 4: Do you agree with her reasoning.
Speaker 1: On the second point. I do. It's always difficult to
Speaker 1: decide when you have a good fit between the substantive
Speaker 1: rule and the underlying basis. I think what's a matter
Speaker 1: of concern is that, first, it's an extraordinarily broad rule
Speaker 1: and unashamably it applies to the laws that have forty
Speaker 1: eight states that currently allowed various forms of noncompete. It involves,
Speaker 1: as the FTC emphasized, hundreds of billions of dollars of wages.
Speaker 1: There are tremendous economic stakes here. This is very clearly
Speaker 1: a major extension of the FDC's oversight role in labor
Speaker 1: related agreements. You would think that for a measure of
Speaker 1: that art you would have to have a fairly extensive
Speaker 1: and careful review of the existing literature pro and con.
Speaker 1: I would say, in many ways, the SEC took shortcuts
Speaker 1: on that and tended to brush aside views that it
Speaker 1: found to be incompatible with its policy preferences. And I
Speaker 1: think that did create a real vulnerability with respect to
Speaker 1: the arbitrary and capricious issue you argue about the FDC's
Speaker 1: authority is ambiguous. There are certainly plausible arguments that the
Speaker 1: FDC has the authority. My intuition is that given the
Speaker 1: current direction of Supreme Court jurisprudence involving the grant of
Speaker 1: authority to administrative agencies and the effort that administrative agencies
Speaker 1: regulators to interpret their authority in a way to meet
Speaker 1: new conditions and to stretch in some sense the application
Speaker 1: of their authority, the current Supreme Court is skeptical about that.
Speaker 1: The current Supreme Court says, if you want to do
Speaker 1: bold thing and to apply the law in a broad way,
Speaker 1: we want you to anchor that in a clear statement
Speaker 1: of congressional purpose. That Congress to allow you to do
Speaker 1: bold things has to say so. Clearly, the direction of
Speaker 1: travel of this doctrine runs against the philosophy the interpretation
Speaker 1: approach that the FDC is relying on. Here. Goodness knows
Speaker 1: how the Supreme Court would ultimately evaluate the rule. I
Speaker 1: haven't talked to them today, so I don't know exactly
Speaker 1: what they'll do. But my inference from the current direction
Speaker 1: of their jurisprudence and the attitude that's embedded in that
Speaker 1: jurisprudence is that this rule would have a very difficult
Speaker 1: time surviving review as it goes up to the court,
Speaker 1: and that Judge Brown's ruling here is quite likely to
Speaker 1: be sustained.
Speaker 2: If the rule had been narrower, let's say it just
Speaker 2: applied to low and middle income workers, I think that
Speaker 2: it would have passed.
Speaker 1: Mustard, I think June if it had been limited in
Speaker 1: that way. If it had been limited to say, low
Speaker 1: income workers who were engaged in applying skills that arguably
Speaker 1: don't involve the special training and conveying of know how
Speaker 1: that might take place in other settings. If it had
Speaker 1: been tailored to that specific concern, I think the rule
Speaker 1: would have had a better chance of sidestepping the arbitrarrian
Speaker 1: capricious ruling that Judge Brown found here. It would still
Speaker 1: perhaps run into the concern about whether the FDC has
Speaker 1: the authority in the first place. That is, Judge Brown's
Speaker 1: conclusion that the FDC lacks authority would mean that even
Speaker 1: a narrower rule would not be permissible unless Congress would
Speaker 1: have come back and clearly give the authority to do it.
Speaker 1: But I think a narrower rule would have had a
Speaker 1: stronger chance of surviving review in two respects. One is
Speaker 1: that it would be less likely to be found arbitrary
Speaker 1: and capricious, and the other is that there's another issue
Speaker 1: looking in the background, where the Supreme Court recently has said,
Speaker 1: if you purport to do path breaking economically significant things
Speaker 1: by rule making, you have to point to specific grant
Speaker 1: of legislative authority to do that. In other words, as
Speaker 1: the Court is said, where your initiative raises major questions
Speaker 1: about the operation of the economy, for example, you have
Speaker 1: to be able to show more precisely that Congress intended
Speaker 1: for you to address those major questions and to adopt
Speaker 1: rules to treat them. That is the basis on which
Speaker 1: yet another court in Florida, Federal Court in Florida issued
Speaker 1: a preliminary injunction concerning the application of the rule. So
Speaker 1: when we take all of these, I would say, skeptical
Speaker 1: streams of jurisprudence, the FTC is traveling into a very
Speaker 1: difficult storm, and that a narrower rule would have helped
Speaker 1: avoid the arbitrary and capricious ruling. A narrower rule would
Speaker 1: be less likely to raise concerns under the major question doctrine,
Speaker 1: but even a narrower rule would run into the concern
Speaker 1: that Judge Brown showed that the Commission just doesn't have
Speaker 1: authority to issue any rules involving competition.
Speaker 2: How about another agency doing this? The National Labor Relations
Speaker 2: Board's top lawyer is moving ahead with an enforcement strategy
Speaker 2: to make restrictive covenants illegal. General Counsel Jennifer Brusso says
Speaker 2: such packs deny workers the ability to quit or change jobs,
Speaker 2: which in turn interferes with exercising their organizing rights in
Speaker 2: their current positions for fear of being fired and not
Speaker 2: being able to obtain new employment. Do you think of
Speaker 2: rule by the NLRB would survive.
Speaker 1: I'm less familiar tune with the specific grant of authority
Speaker 1: that the NLRB would be relying upon, certainly in the
Speaker 1: application of its adjudication function, that is, in the prosecution
Speaker 1: of individual cases, it would be less likely to run
Speaker 1: into the question whether it has rule making authority, which
Speaker 1: is the issue in the FTC proceeding. The question for
Speaker 1: the NLRB would be in its law enforcement capacity. Has
Speaker 1: it appropriately interpreted the mandate the Congress gave it, and
Speaker 1: would reviewing courts conclude that its interpretation of its The
Speaker 1: law enforcement mission encompasses the concerns that the NLRB Solicitor
Speaker 1: General has raised about noncompete. So the NLRB might be
Speaker 1: in a position to challenge these I don't know if
Speaker 1: they mean to do it by rulemaking. And I would
Speaker 1: add that the FDC does have authority to challenge individual
Speaker 1: non compete agreements using its law enforcement mandate. It has
Speaker 1: a law enforcement mandate to prohibit unfair deceptive acts or
Speaker 1: practices or unfair methods of competition that involves case by
Speaker 1: case adjudication to challenge specific arrangements. That authority is not
Speaker 1: endangered in the challenges that are present in the federal
Speaker 1: courts now, the FDC can continue to do that. That
Speaker 1: has the disadvantage that you go step by step and
Speaker 1: you don't have the capacity necessarily to adopt a broad
Speaker 1: based prohibition that applies across the country and condemns all
Speaker 1: of the arrangements. It's a more laborious way to get
Speaker 1: to the final destination that you wish to achieve. That
Speaker 1: task is still open to the FDC. That kind of
Speaker 1: litigation I assume is open to the NRB. That case
Speaker 1: by case litigation approach is available. The district judge decision,
Speaker 1: and the FDC case deals with the effort in a
Speaker 1: single rule to achieve what otherwise be attained through a
Speaker 1: collection of cases over time.
Speaker 4: How big a.
Speaker 2: Blow do you think this is to the FTC.
Speaker 1: I think it's a significant blow. And when I look
Speaker 1: at the whole span of the FTC's program since the
Speaker 1: Biden administration began in twenty twenty one, I would characterize
Speaker 1: this as the most significant initiative that they pursued. Most
Speaker 1: significant measured by its purported economic impact, it's anticipated economic impact,
Speaker 1: which is self described as being very broad, most significant
Speaker 1: in terms of it's effort to move the doctrinal framework
Speaker 1: of intervention outwards, the game acceptance through the idea that
Speaker 1: the FTC has power to issue these competition rules and
Speaker 1: include powerful prohibitions in them. And Third, symbolically, it is
Speaker 1: held out as an example of the Biden FTC is
Speaker 1: willing to take more risks, to be far more ambitious
Speaker 1: than its predecessors are, and as such to bring a
Speaker 1: new attitude toward the application of federal power to control commerce.
Speaker 1: In all of these respects, I would say, in the
Speaker 1: entire fleet of FDC initiatives, this is the flagship, and
Speaker 1: if you are running a navy, you don't want your
Speaker 1: flagship to be sunk.
Speaker 2: In a statement, FTC spokesperson Victoria Graham said the agency
Speaker 2: is seriously considering a potential appeal. Do you think they
Speaker 2: should appeal this because it's going to the Fifth Circuit,
Speaker 2: which is ultra conservative as a reputation for overturning Biden
Speaker 2: administration rules, and then likely to the Supreme Court, where
Speaker 2: you know, as you mentioned, I don't think they'll find
Speaker 2: a receptive court.
Speaker 1: I think they should. If I was guiding the strategy,
Speaker 1: I would do it. One reason is that the FDC
Speaker 1: has had some surprising success over the past year in
Speaker 1: front of that very court. It was in the context
Speaker 1: of a merger challenge to an acquisition by a Lumina
Speaker 1: of the Grail Company. It was an appeal from an
Speaker 1: FDC administrative decision, a law enforcement measure. The parties opposing
Speaker 1: the FDC roise four distinct constitutional and administrative law challenges
Speaker 1: to the FDC's authority in addition to challenging the FDC's
Speaker 1: decision on the merits. I think that they thought that
Speaker 1: had gone to exactly the forum that would be favorable
Speaker 1: to them. They didn't quite get the panel that they
Speaker 1: hoped for, but the panel they did get basically brushed
Speaker 1: the side all of the administrative law and constitutional law challenges.
Speaker 1: It upheld the FDC's decision, and in a sense, it
Speaker 1: showed that EVE been in a very difficult litigation environment,
Speaker 1: you can prevail, so it's not a hopeless pursuit. And
Speaker 1: another reason I'd bring the case is it I think
Speaker 1: it would demonstrate the conviction of the agency to take
Speaker 1: on hard, difficult matters notwithstanding the possibility of failure in
Speaker 1: the court. You're ultimately going to have to face a judiciary,
Speaker 1: perhaps ultimately the Supreme Court, that has raised issues with
Speaker 1: this form of approach. My suggestion was have it out now,
Speaker 1: get the appellate decision, take it up to the Supreme
Speaker 1: Court and say we need a basic decision about the
Speaker 1: framework of FDC authority generally and about its application of
Speaker 1: its abserdive authority in this instance. Let's not wait for
Speaker 1: another case or another time. Let's bring it to a
Speaker 1: head now, and if the result is adverse, we go
Speaker 1: back to Congress and say, if you want us to
Speaker 1: be active in this area, give us a clearer mandate
Speaker 1: to do, so.
Speaker 2: There are noncompetes. At state level. Four states have banned
Speaker 2: nearly all non competes, and at least eleven more have
Speaker 2: thresholds protecting lower income, middle income, hourly workers, etc. Do
Speaker 2: you think we'll see more states trying to pass laws
Speaker 2: about non competes.
Speaker 1: I think we'll see an amendment of the legal framework.
Speaker 1: And this is a respect in which the FDC's initiative,
Speaker 1: despite the risks that I've been describing in the Sensus,
Speaker 1: achieved real success. It has drawn broad attention within the
Speaker 1: United States. So the issue of non compete it's catalyzed
Speaker 1: reconsideration of the existing legal framework, which, with the exception
Speaker 1: of a handful of states such as California, does not
Speaker 1: prohibit these agreements or render them unenforceable. Most states allow
Speaker 1: them to be evaluated by a reasonableness standard. The FDC's
Speaker 1: initiative has inspired a new debate about whether or not
Speaker 1: these kinds of restrictions are appropriate. So I think we're
Speaker 1: going to see a rethink in many states that allow
Speaker 1: these arrangements or a reasonableness standard, to rethink that approach,
Speaker 1: perhaps to create presumptions against them, to apply prohibitions that
Speaker 1: exist now on certain noncompete more broadly, so we could
Speaker 1: see in the States a restoration of bolder enforcement and
Speaker 1: scrutiny regarding noncompete, notwithstanding the result that comes from the
Speaker 1: federal litigation itself. And I think you point to a
Speaker 1: result that the FDC probably had in mind in taking
Speaker 1: a very bold approach here, which was to change the
Speaker 1: policy debate to bring about indirect effects, including in the
Speaker 1: state government. And I suspect if we were to give
Speaker 1: truth theorem to the leadership team at the FTC, the
Speaker 1: FDC might stay. That is an important measure of success
Speaker 1: by itself, and that made the entire effort worthwhile, even
Speaker 1: if our own specific initiative is not successful.
Speaker 2: I've been reading and you know some articles say management
Speaker 2: is back in control. Now you know, this is a
Speaker 2: huge win from management.
Speaker 4: Do you agree with that.
Speaker 1: I'm afraid that's a bit like saying that the match
Speaker 1: is over when there are still many minutes left on
Speaker 1: the clock. So there's a temporary reprieve, but there are still,
Speaker 1: as Jimmy Cliff would say, many rivers to cross before
Speaker 1: you get confidence that the status quo which allows many
Speaker 1: of these arrangements stays in place. So it's way too
Speaker 1: early to speak so confidently about things, especially because of
Speaker 1: the point that we just mentioned. There are some limitations
Speaker 1: on these agreements at the state level, and I think
Speaker 1: the FTC initiative, even if it fails in the court,
Speaker 1: it's set in motion a policy rethink that's going to
Speaker 1: spill over through a number of jurisdictions. So I wouldn't
Speaker 1: be comfortable in simply sitting back and the storm has passed,
Speaker 1: the status quo prevails. I think that is not a
Speaker 1: completely thoughtful understanding of what's taking place now.
Speaker 2: As you say, a lot more to come. Thanks so much, Bill,
Speaker 2: I really appreciate your insights. That's Professor William Kavasik of
Speaker 2: GW Law School. A divided Supreme Court refused to bolster
Speaker 2: the Biden administration's ability to extend protections against discrimination in
Speaker 2: schools to transgender students nationwide in an unsigned order. The
Speaker 2: Justice has left enforced two lower court orders that are
Speaker 2: temporarily blocking a new Education Department rule in ten states.
Speaker 2: Joining me is Chase Stradio, Deputy director for Transgender Justice
Speaker 2: at the American Civil Liberties Union, tell us first about
Speaker 2: the Education Department rule that's at issue here.
Speaker 5: The federal law that prohibits tex discrimination in educational programs
Speaker 5: that receive federal funding, and Title nine has regulations that
Speaker 5: the Department of Education has promulgated over the years, and
Speaker 5: the Biden administration, over the course of the last several years,
Speaker 5: has been working on an extensive rule implementing provisions of
Speaker 5: Title nine that were subject to notice in common and
Speaker 5: we're set to go into effect on August first, and
Speaker 5: we're talking about fifteen hundred pages that cover a lot
Speaker 5: of different areas of issues related to sex discrimination. The
Speaker 5: subject that has received the most attention that's been the
Speaker 5: centerpiece of litigation over these regulations concerns transgender students and
Speaker 5: protections for transgender students and educational settings. First at the
Speaker 5: sort of definitional threshold level, whether or not Title nine
Speaker 5: itself includes discrimination against people who are LGBTQ. And then specifically,
Speaker 5: there are sort of two central provisions that have been
Speaker 5: the subject of litigation. One concerns the inclusion of transgender
Speaker 5: students in sex segregated spaces in most specifically restrooms, and
Speaker 5: then the other concerns the interpretation of basically what is
Speaker 5: a hostile environment harassment under titlemind and in particular, the
Speaker 5: context has been the subject of most of this conversation
Speaker 5: has to do with pronouns for trench under students. So
Speaker 5: those are two, you know, very discrete areas that have
Speaker 5: been the subject of litigation in a rule that covers,
Speaker 5: you know, extensive areas of federal educational programming, including protections
Speaker 5: for pregnant and receiving students, and other areas of interpretation
Speaker 5: under Title nine. So that is the overall context that
Speaker 5: we're dealing with when we're talking about the recents that
Speaker 5: of cases that ultimately made their way up to the
Speaker 5: Supreme Court shadow docket.
Speaker 2: Federal trial judges in Kentucky and Louisiana issued orders temporary
Speaker 2: blocking the rule in tense states.
Speaker 4: So did they block the entire rule?
Speaker 5: Yes, So there has been a number of different cases
Speaker 5: proceeding through the federal courts and the appeal of courts
Speaker 5: and the district courts. Coming out of three cases, one
Speaker 5: in Kentucky and two consolidated in Louisiana enjoined the entire
Speaker 5: higher Rule, not just the provisions related to the sex
Speaker 5: separated spaces and the hostile environment harassment language that were
Speaker 5: the actual subject of the litigation that was brought by
Speaker 5: the various states and in some instances localities.
Speaker 2: Was the reasoning of the two courts the same or similar?
Speaker 2: Why did they issue this temporary injunction?
Speaker 5: I think there's sort of two sets of questions about,
Speaker 5: you know, why did they issue the induction? The first
Speaker 5: is sort of on the merits. The argument as to
Speaker 5: the provisions that the litigations focused on were that the
Speaker 5: interpretation of the rules exceeded that the administration statutory authority
Speaker 5: under Title nine, and that was the main substantive merits argument.
Speaker 5: In essence, the protections that the statute affords from discrimination
Speaker 5: based on sets did not include discrimination against transgender people,
Speaker 5: and in particular not in these discrete ways. So those
Speaker 5: were the merits questions, and courts held that they were
Speaker 5: likely to succeed that the administration exceeded its authority in
Speaker 5: promulgating these rules. Now, as to why the injunctions threat
Speaker 5: so broadly, the argument there, I know it wasn't even
Speaker 5: really advanced by the states themselves in litigating these claims,
Speaker 5: was that the rest of the rule could not be
Speaker 5: severed from the injury that they complained of with respect
Speaker 5: to the provisions related to transtudents. That is the argument,
Speaker 5: and that is the basis for the sweeping injunctions that
Speaker 5: reach across all of the areas in which this Title
Speaker 5: nine regulation covered, and like I said, including related to
Speaker 5: general protections from discrimination for pregnant and breastleading students. And
Speaker 5: so the vision from the court was that what they
Speaker 5: couldn't sever the various provisions, and.
Speaker 2: The Solicitor General had only asked the Court to allow
Speaker 2: the other provisions to be enforced while the legal fight
Speaker 2: goes on.
Speaker 1: Yes, that's correct.
Speaker 5: So there had been a motion for partial stay that
Speaker 5: had been filed in the appeals courts in the sixth
Speaker 5: and fifth Circuits, and the motion for the partial stay
Speaker 5: was only seeking to stay the injunction with respect to
Speaker 5: the provisions that did not concern the single sex facilities
Speaker 5: in the hostile environment harassment, So in essence saying their
Speaker 5: complaining of injuries with respect to these two discreete things,
Speaker 5: we're not seeking to block the injunction with respect to those,
Speaker 5: but it sleeps too broadly, and we are seeking relief
Speaker 5: from this incredibly broad injunction that prevents us from implement
Speaker 5: mening this critical rule protecting students and staff from sex
Speaker 5: discrimination and education. So that was the stay they thought
Speaker 5: from the lower federal appeals courts. Those were denied at
Speaker 5: the appeals level, and then ultimately they went to the
Speaker 5: Supreme Court seeking the same stay with respect to the
Speaker 5: rest of the rule and not challenging the stay with
Speaker 5: respect to the to the two provisions that I was mentioning,
Speaker 5: the hostile environment and the single sex facilities. Now there
Speaker 5: is some complicated piece to all this, which is that
Speaker 5: it is in part complicated because of how the Supreme
Speaker 5: Court ultimately does it. But there's a definitional provision at
Speaker 5: the center of all this as well, and the SU's
Speaker 5: office also thought a stay of the injunction with respect
Speaker 5: to the definitional provision, and that definitional provision, you know,
Speaker 5: in essence, the piece of the rule that defines what
Speaker 5: is sex discrimination for purposes of Title nine and explains
Speaker 5: that sex includes cender identity, sex, stereotyping, pregnancy status, and
Speaker 5: this broad understanding of what it means to discriminate because
Speaker 5: of sex Undercidle nine. So this definitional provision was also
Speaker 5: at the center of the litigation. Even though the states
Speaker 5: that brought the initial lawsuit never complained that they were
Speaker 5: injured by the definitional provision, and if you think about
Speaker 5: what that means in essence, the idea here would be well,
Speaker 5: certainly after Boss Stock, which held that under Title seven,
Speaker 5: sex discrimination includes a prohibsion on discrimination against LGBT people
Speaker 5: in educational settings, a school couldn't say deny someone the
Speaker 5: ability to be a graduation speaker simply because they're transgender.
Speaker 5: There's general educational protections against discrimination for the community, and
Speaker 5: that is distinct from the injuries being complained of with
Speaker 5: respect to you know, in particular bathrooms and pronouns. And
Speaker 5: so they did speak a stay with respect of the
Speaker 5: definitional provision, but again that was denied at the Intermediate
Speaker 5: appeals Court and then at the Supreme Court they thought
Speaker 5: the partial stay of the sweeping injunction with the exception
Speaker 5: of the two provisions that they did not seek of.
Speaker 2: Stay coming up next. So what split the court five
Speaker 2: to four? This is Bloomberg. So it was five to
Speaker 2: four decision, but all nine members of the court agreed
Speaker 2: that the parts of the rules that include the protections
Speaker 2: for transgender students, you know, the definition of sex discrimination
Speaker 2: including gender identity, and the restrictions on same sex spaces
Speaker 2: shouldn't go into effect until the legal challenges are resolved.
Speaker 2: But tell us why the majority the five in a
Speaker 2: very very short opinion agreed with the lower courts.
Speaker 5: So this is where things get complicated and pretty unfortunate.
Speaker 5: And that is you know, again, this is all happening
Speaker 5: on the shadow docket and the context of emergency relief,
Speaker 5: without the benefit of full briefing and without the benefit
Speaker 5: of oral argument in a procureum order that is, as
Speaker 5: you know, two and a half pages and two and
Speaker 5: a half pages addressing legal issues that are underlying hosts
Speaker 5: of cases in the lower courts over many years, and
Speaker 5: then a fifteen hundred page rule, and this cursory treatment
Speaker 5: just shows that the hazards of the shadow docket and
Speaker 5: how unfortunately imprecise it is. And then what happens with
Speaker 5: critical pieces of federal administrative action, and then of course
Speaker 5: the rights and responsibilities of individuals across the country, because
Speaker 5: you have this two and a half page order which
Speaker 5: in essence doesn't really say anything and in fact misconstrues
Speaker 5: the United States's day application, in essence suggesting that they
Speaker 5: have not sought relief from the injunction against the definitional provision,
Speaker 5: and so they sort of just ignore that. And then
Speaker 5: I think this is really important, and it is also unclear,
Speaker 5: but that's how I'm interpreting it. And then the question is,
Speaker 5: in essence, are they likely to succeed on the merits
Speaker 5: meaning day of the United States, on the merits of
Speaker 5: the claim that you can set the provisions that this
Speaker 5: alleged injuries flow from from the rest of the rule,
Speaker 5: And in essence, the procureum order says, no, they are
Speaker 5: not likely to succeed on that claim, in essence that
Speaker 5: they're all interconnected, in part because this definitional provision is
Speaker 5: sort of at this center. But they don't in any
Speaker 5: way contend with several of the arguments that the United
Speaker 5: States has raised, and you know, somewhat curiously, and I
Speaker 5: would say disingenuously, they suggest that the United States has
Speaker 5: not explained how you can sever those things, even though
Speaker 5: in their briefing they say, you know, so quite clearly
Speaker 5: that an injury related to trans people using the bathroom
Speaker 5: has no impact on the rest of the rule concerning
Speaker 5: whether or not you could, for example, kick a breastfeeding
Speaker 5: student out of school. And I think intuitively, any person
Speaker 5: understands these to be discreet things, even when it comes to,
Speaker 5: you know, the overall authority of the government to promulgate
Speaker 5: these rules with respect to the meaning of Title nine.
Speaker 5: So the majority of two and a half page order,
Speaker 5: as far as I can tell, doesn't really take the
Speaker 5: United States arguments at base value. It doesn't even seem
Speaker 5: to contend with them as they were presented, and an
Speaker 5: essence just suggests that these provisions rise and fall together.
Speaker 2: Let's talk about the four in the minority or dissent,
Speaker 2: which was the three Liberals and Justice Gorsuch. And they
Speaker 2: at least wrote nine pages. What was their descent about?
Speaker 5: Well, I mean, that's a great question. What was their
Speaker 5: dis about? They wrote more, you know, in terms of
Speaker 5: the number of pages, not much more, And they don't challenge,
Speaker 5: first and foremost, they don't challenge the majorities in misrepresentation
Speaker 5: of the United States position. So, in essence, we end
Speaker 5: up with this very hard to follow, very cursory, you know,
Speaker 5: order and dissent that does not to be responding to
Speaker 5: what is actually presented before them. And so the descent
Speaker 5: leaves unchallenged this idea that the United States has an
Speaker 5: essence conceded to leave the definitional provision in place. So
Speaker 5: that's a big problem because it sort of does not
Speaker 5: get at sort of the fundamental question of their stay application,
Speaker 5: which is that, you know, there's a huge amount of
Speaker 5: harm flowing from this, and in fact, these provisions can
Speaker 5: be severed from from one another, and here's how and
Speaker 5: why not to mention, there is within the United States
Speaker 5: stay application argument that the definitional provision is compelled by
Speaker 5: boss stock. In other words, the Supreme Court has already
Speaker 5: held that, you know, at least in Title seven, which
Speaker 5: usually is interpreted to be the same with respect to
Speaker 5: whether or not something is because of or based on sex,
Speaker 5: has held that it is because of sex to discriminate
Speaker 5: against someone because they are transgender. This seemingly obviously flows
Speaker 5: from that. But there's a lot of confusion here because
Speaker 5: it is not clear when the dissent says all nine
Speaker 5: members of the Court agree that the respondents were entitled
Speaker 5: to the underlying relief, what that refers to, and if
Speaker 5: in fact all nine members of the Court agree on anything,
Speaker 5: especially given the misrepresentation by the Perterium Order of what
Speaker 5: the United States position actually was. And so I hesitate
Speaker 5: to say what this means or or says, because it
Speaker 5: seems unlikely that they meant the states were entitled to
Speaker 5: relief on the merits that somehow, you know, Title nines
Speaker 5: protections can't be interpreted into aclude LGBTQ students. I find
Speaker 5: that to be very unlikely interpretation of what this very
Speaker 5: curious sentence in is referring to. That said, it is
Speaker 5: unclear and it is causing obviously a lot of confusion
Speaker 5: among people who are trying to decipher this short but
Speaker 5: impactful order. You know, my interpretation of it is in
Speaker 5: essence that you know, as to the provisions first that
Speaker 5: everyone has either agreed or has misrepresented that are not
Speaker 5: being challenged with respect to a stay. So, in other words,
Speaker 5: the provisions that the court has said, nobody is seeking
Speaker 5: a stay of the injunction. As to those, my read
Speaker 5: is they're saying, everyone agrees that the alleged injuries allow
Speaker 5: them to receive injunctive relief as to those provisions, in
Speaker 5: other words, that was a proper scope of remedy, not
Speaker 5: necessarily that they were entitled to relief on the merrit.
Speaker 2: Justice Corsetch wrote the boss Stock opinion, as you know,
Speaker 2: and he sided with the liberals here, is it surprising
Speaker 2: to you that the Chief Justice who joined in the
Speaker 2: boss Stock majority opinion sided with the other conservatives here,
Speaker 2: I mean, do you read anything into that?
Speaker 5: Well, so again, I mean I'm not exactly sure, and
Speaker 5: I hesitate to guess what any of them are suggesting
Speaker 5: as to the underlying Merit's question, that is to say,
Speaker 5: you know, whether or not Title nine can or must
Speaker 5: be interpreted in such a way that includes prohibitions on
Speaker 5: discrimination against LGBTQ people, because I think, and again coming
Speaker 5: back to the extraordinary hazards of the shadow docket and
Speaker 5: these emergency orders, it's very possible that everyone is just
Speaker 5: laying in to one degree another on what is the appropriate,
Speaker 5: you know, scope of the injunction visa the claimed injuries
Speaker 5: that the States alleged in their initial filing. I recognize
Speaker 5: that that is somewhat difficult to square with some aspects
Speaker 5: of the order and the descent, but I also don't
Speaker 5: think it's clear what everyone is referring to at various points.
Speaker 5: So you know, in some sense, it is possible to
Speaker 5: me that you have a procureum order that reflects a
Speaker 5: subset of the justices saying two circuits have said these things,
Speaker 5: multiple district courts have enjoined it. We are, in this
Speaker 5: emergency posture going to let it stand. Do I think
Speaker 5: that's a consistent position with what they've done in other cases? No,
Speaker 5: But could that be what's happening here in a Friday
Speaker 5: night order in August with very little reasoning. Maybe so,
Speaker 5: I would say in terms of whether or not it
Speaker 5: means that the Chief, you know, sort of has a
Speaker 5: limited interpretation of Bostock's reach with respect to other statutory
Speaker 5: and constitutional protections for trans people, I'm not willing to
Speaker 5: sort of hazard a guess on that justice yet, but
Speaker 5: I don't think either of these, the order or the descent,
Speaker 5: are particularly encouraging endorsements of this Title nine rule. I
Speaker 5: think it is deeply upsetting in terms of what it
Speaker 5: means for people across the country, because we now have
Speaker 5: a regulation that is in effect in some parts of
Speaker 5: the country and not others, with some provisions you know,
Speaker 5: enjoined to varying degrees depending on the circuit, and obviously
Speaker 5: as an enforceability administrability matter, that is horrible for the
Speaker 5: federal government, but it's also horrible for the individuals who
Speaker 5: are trying to protect their rights Title Mine, and it's
Speaker 5: also horrible for the entities that are, you know, trying
Speaker 5: to comply with their obligations under Title.
Speaker 2: Nind next term, the Supreme Court is going to take
Speaker 2: up the issue of gender transition care in a Tennessee case.
Speaker 4: Do you think that in that case.
Speaker 2: The Court will actually decide the issue?
Speaker 5: Well, so in scrimmati, which is the case that the
Speaker 5: Court is going to be hearing this term, which which
Speaker 5: comes from the United States petitions out of the prohibition
Speaker 5: on medical care for transgender adolescence in Tennessee. You know,
Speaker 5: the question is whether or not these laws that categorically
Speaker 5: prohibit medical care for transgender minors violate the Constitution, And
Speaker 5: so they will be answering, you know, sort of one
Speaker 5: set of questions with respect to the ways in which
Speaker 5: transgender people and particularly transgender youth have had their rights
Speaker 5: attacked by state legislatures. And the question there is really
Speaker 5: is it sex discrimination? Is it trans status discrimination? When
Speaker 5: the government draws these lines based on gender transition and
Speaker 5: categorically prohibits this medical treatment, this is a constitutional case.
Speaker 5: I think the main question is really what level of
Speaker 5: scrutiny is going to apply? And whether they resolve it
Speaker 5: in such a way that answers other questions, whether they don't,
Speaker 5: I think that is still very much up in the air.
Speaker 5: I think whatever happens in Scrimmati, they're going to separately
Speaker 5: have to contend with the Title nine regulations, because at
Speaker 5: this point it seems that this is going to be
Speaker 5: percolating in the lower courts and likely to end up
Speaker 5: the Supreme Court. Of course, all of that is dependent
Speaker 5: on what happens in the election, because these are rules
Speaker 5: that are promulgated by the Biden administration's Department of Education.
Speaker 5: If Trump wins the presidency, those rules will be rescinded
Speaker 5: or they will no longer enforce them, and then they
Speaker 5: will seek to promulgate new rules and probably have some
Speaker 5: sort of temporary rule of rescinding the old ones. So
Speaker 5: some of this all depends on what happens in the election.
Speaker 5: And then with respect to the constitutional challenges to the
Speaker 5: gender firming medical care bands for adolescents, the Supreme Court
Speaker 5: is going to consider those. They are going to have
Speaker 5: to contend with what is the nature of discrimination against
Speaker 5: trans people and what is the reach of Bostock. And
Speaker 5: then also because the states have argued that these cases
Speaker 5: are governed by dobs. Also, what is the reach of dobs.
Speaker 5: So there's a lot that's already up at the court imminently,
Speaker 5: and I expect there will be more. And obviously trans
Speaker 5: people and their families are are just trying to live
Speaker 5: their lives.
Speaker 2: Conservative states have passed a slew of laws aimed at
Speaker 2: transgender youth, including restricting treatments like puberty blocking drugs, hormone therapy,
Speaker 2: or surgeries for miners experiencing gender dysphoria, laws regulating bathroom use,
Speaker 2: and pronouns. Which laws affecting transgender youths are the most
Speaker 2: common in these states.
Speaker 5: Just to give sort of temporal framework here, in twenty twenty,
Speaker 5: no states had any of these laws, and now we're
Speaker 5: in a situation where half the country, so about twenty
Speaker 5: four states bans both medical care for transcender adolescents related
Speaker 5: to gender transitions, as well as the inclusion of trans
Speaker 5: girls and sports.
Speaker 1: Those are the main.
Speaker 5: Central pieces of legislation that have been passed in the
Speaker 5: most Then, the bills that ban trans students from the
Speaker 5: bathroom are you know, increasing in number, and there's you know,
Speaker 5: sort of about ten or so states that ban or
Speaker 5: restrict the ability of trans students to use the restroom
Speaker 5: that aligns with who they are. Then there's you know,
Speaker 5: a number of leather laws that aren't you know, increasing
Speaker 5: that we're seeing, including you know, sort of the don't
Speaker 5: say gay style laws, so restrictions on discussions of LGBTQ
Speaker 5: people and content in schools. There's restrictions on the ability
Speaker 5: of students and school staff to use pronouns that accord
Speaker 5: with their gender identities. So those are sort of percolating
Speaker 5: and expanding. But I would say the primary legal frameworks
Speaker 5: or emphasism and states across the country over the last
Speaker 5: three years has been banning medical care and inclusion in sports.
Speaker 2: Unbelievable number of laws in just about three years. Thanks
Speaker 2: so much for joining me today, Chase. That's Chase Strangio,
Speaker 2: Deputy director for Transgender Justice at the ACLU. And that's
Speaker 2: it for this edition of the Bloomberg Law Podcast. Remember
Speaker 2: you can always get the latest legal news by subscribing
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Speaker 2: at Bloomberg dot com slash podcast Slash Law.
Speaker 4: I'm June Grosso and this is Bloomberg