From the Courthouse Steps: Little v. Hecox and West Virginia v. B.P.J.

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Welcome to fedsoc Forums, a Federalist Society podcast. I'm Elizabeth Lattery,
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vice president of Practice Groups. Be sure to subscribe wherever
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you get your podcasts so you won't miss an episode. Now,
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please enjoy today's conversation.
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Good afternoon, everybody, and welcome to fedsock Forums. My name
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is Riley Ravilla, and I am a student at Georgetown University.
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I also serve as the student liaison to the Federalist
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Society's Religious Liberties Practice Group. As a reminder, all opinions
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expressed are those of our speakers and not of the
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Federalist Society, as the Federalist Society takes no positions. Today's
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program is titled From the Courthouse Steps Little Versus Heacock's
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and West Virginia Versus BPJ. We're very pleased to welcome
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an excellent group of panelists. Rachel Morrison is an attorney
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and fellow at the Ethics and Public Policy Center, where
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she directs EPPC's Administrative State Accountability Project. Her legal and
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policy work focuses on religious liberty, healthcare, rights of conscience,
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the right to life, non discrimination, and civil rights. Sarah
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Parshal Perry is Vice president and senior legal Fellow at
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Defending Education. Before coming to Defending Education, she served as
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a senior legal fellow for the Edwin mess the Third
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Center for Legal and Judicial Studies, part of the Institute
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for Constitutional Government at Heritage, where her work centered on
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civil rights and the proper rule of the courts. One
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note for our audience before we begin. If you have
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any questions throughout the webinar that pertain to the topic
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at hand, please submit them through Zoom's Q and a
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feature located at the bottom of your screen, not the chat,
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so that we'll be able to access them later in
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the program. With that note, I will turn things over
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to our speaker to start the conversation. Thank you so
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much for joining us today.
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Thanks Riley, and thanks to everyone who's joined us today.
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This is kind of a mo mentous occasion. I'm thrilled
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to be with Rachel. As we were discussing right before
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we get started today, we're not just attorneys.
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We've been following this.
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Particular case very closely, and we're not just former administrative
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administration officials who have served both at the EEOC and
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Department of Education, so we understand sort of the mechanics
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behind what.
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Civil rights law looks like in practice.
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But we are also mothers to girls, and in fact,
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my daughter is playing a college sport, so this particular
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case impacts me distinctly.
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So I'm thrilled to be joined with her.
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Before we start our discussion, let me talk a little
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bit about how we.
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Got to where we are today.
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This case, this pair of cases, Heecock's versus Little and
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West Virginia versus BPJ, were a set of challenges to
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two state laws. The first was passed in Idaho in
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twenty twenty. It was a Fairness in Women's Sports Act.
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It was the first state in the country to pass
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a women's sports protection act, and it barred so called
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transgender girls or biological males from participating on any athletic
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team in the K through twelve or higher education format.
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Since then, twenty seven.
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Other states have passed those particular types of laws. And
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the challenge was brought specifically by a collegiate athlete who
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wanted to try out for the girls Track and Field
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D one team.
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This male did not.
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Make the team, but did in fact play club athletics.
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The second challenge comes out of West Virginia and their
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saved Women's Sports Act, which was enacted in twenty twenty two.
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The challenge to this particular law came from a middle
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school boy who identifies himself as Becky Pepper Jackson and
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wanted to.
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Try out for the girls track and field team.
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As these cases wound their way through the particular federal circuits,
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the Ninth Circuit and the Fourth Circuit actually determined in
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both cases that there was either further fact finding that
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needed to transpire or that these particular claims were successful
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on their face, and when the Supreme Courts took them
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both they were argued separately. The Idaho case involved only
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a challenge to the constitution of Idaho's law based on
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the Equal Protection Clause, and West Virginia's included both an
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Equal Protection Clause claim but also a title mind claim.
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So we're going to break down the opinion.
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Talk a little bit about what we thought were surprises
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or perhaps weren't surprises, were fairly predictable.
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Outcomes, and hear from you all as well. If you
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drop your.
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Questions, as Riley mentioned at the beginning, then we can
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address them as we're going through.
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I want to start out with this.
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The ultimate holding here was a nine to zero victory
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on whether or not West Virginia and Idaho can under
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titlelind ban biological males from competing in girls' sports and
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only equal protection question. That was a six' to three
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victory with the three liberals in, descent as could have
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BEEN i think largely. Predicted kavanaugh took the pen on
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the majority opinion that was joined by all The, conservatives
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with separate concurrences by Both thomas And, gorsich which were
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both excellent in their own, way and which we'll get
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to in a, Second but let me start with. That,
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rachel were you surprised to any of the votes or
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the ultimate outcome in this particular.
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CASE i wasn't.
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Surprised after oral, argument we saw that there was a mass,
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retreat especially on The title nine, issue from the individuals
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challenging the state. Laws in the case at oral, argument
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they seem to Concede title nine in a lot of
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ways and then put all their eggs in the equal
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protection clause. Basis but WHAT i think is surprising is
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just the massive retreat on The title nine issue just
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in general over.
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The last couple of.
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Years just a few years, ago The biden administration issued a,
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rule saying That title nine's prohibition against sex discrimination and
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federally funged educational programs and activities meant that you had
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to allow participation based on gender. Identity and so we
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went from that a couple of years ago to this
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nine to o decision by The Supreme court on The
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title nine. Issue SO i think that's surprising maybe in,
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context but after oral, argument it didn't actually surprise me
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that that was the, result AND i am pleased to see.
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That that was the.
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RESULT i also was not surprised by the fact that
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this is a fairly cabined.
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Opinion in other, words The Supreme.
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Court did not go so far as to say states
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must separate scholastic athletics by biological sex Per title, nine for,
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example even though there was a fairly extensive discussion of
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sort of a TEXTUALIST i think down the sticks analysis
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of both the law itself titleline when passed in nineteen
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seventy two and signed into effect By Richard, nixon but
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then The javits amendments in seventy four and then again
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in nineteen seventy five with the implementing.
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Regulations every one of those and they.
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Cited the majority sited Lowber bright Versus ramondo enterprises for
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this particular. Proposition they don't prove conclusively what the particular statute,
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means but they can be illustrative and actually teasing out
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what the term. Means and it was very, clear based
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on the sort of evidence that The court had in
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front of, it that in nineteen seventy, two sex In
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title nine meant biological. Sex, Now Justice Kantanji Brown jackson
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took issue with, that calling the definition of sex a
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little more capacious than biological.
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Sex we can get to that in a, second BUT
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i think here it's important for people who are.
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Listening to understand that this was a sort of permissive
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act of representative.
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Democracy in other, words this is.
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Very much akin to The dobbs And scrimmetting decisions that
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we saw from The Supreme, court again cultural watershed cases
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that also came at the end of their respective. Terms
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this is one of those questions that is best left
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to the people and their elected, representatives and we're the
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end of the majority. Opinion kevinaugh actually cited repeatedly to
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The scrimmetting decision on just that particular. Basis did you
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find anything about his particular opinion on either title line
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that question or The Equal protection saws to be particularly
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noteworthy or novel in its.
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Application, WELL i think kind of related to what you are.
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Saying one thing THAT i was pleased to see is
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that The court said That title nine that sex And.
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Title nine means biological.
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Sex so in the Boss stop, decision which involved sex
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discrimination in the employment context Under title, seven The court
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just merely assumed that sex meant biological sex and didn't
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actually definitively decide.
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That that means that's what it means For title.
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Seven SO i was pleased to see that that was
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definitively decided. Here the liberal, JUSTICES i, think would have preferred.
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That it was just, assumed leaving the door open for future.
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Arguments BUT i think this really just takes the legs
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out of some of the arguments that we had been
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seen in court and really JUST helpss focus the decision
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and future litigation that we might. See related, ALSO i
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think to what you're saying is that this is somewhat
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of a limited, decision that it's, permissive it allows this
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kind Of states can have laws and regulations that limit
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participation on girls and women's.
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Sports to actual girls and. Women footnote one.
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Is, important AND i point folks, too if they do
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recognize that there is litigation ongoing on Whether title nine
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actually requires states that have women's and girls sports teams
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to limit participation based on, biology not, identity and SO i,
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think but they didn't address that, issue and SO i
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think that's something that we are going.
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To see more cases on in the.
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FUTURE i know this, Administration department Of, Education department Of
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justice have been advancing that theory.
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In their enforcement actions and in their.
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Litigation and SO i think if it's not decided maybe
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universally by the circuit, courts we might see that issue
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back up at The Supreme court and then how many?
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Years, YEAH i think that's a critical point of emphasis
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here is that this is not certainly the end of the,
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story As kavanaugh, wrote both The International Olympic, committee THE
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Us olympic And Paralympic, committee THE ncaa twenty seven states
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have all said this is an issue we are going
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to relegate participation only to biological females because of inherent,
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differences and that term inherent differences came up over and over. Again,
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Interestingly United states Versus virginia an opinion By ginsburg about
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whether or not women could be constitutionally prohibited from admission
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to a military. Academy came up for both sides of
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the preposition when it was the majority versus the, descent
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and in, Fact kavanaugh cited it multiple times for the
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notion that physical differences between men and women are, enduring
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one of my favorite lines from that. Opinion that's ever
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MORE i think applicable.
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And sort of noteworthy.
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Today but So, TOM i more excited it for the
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proposition that the equal protection clause analysis, portion and here
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The Supreme, court the majority opinion where it fractured from
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the three, liberals determined that, yes it was a sex based. Classification,
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yes it was very clear it was a sex based.
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Classification but there were important governmental, interests and the legislation
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was substantially related to this important. Interests there was not
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a constitutionally required case by case analysis for every individual conceivable.
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Exemption the constitution.
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Did not require that under intermediate or heightened. Scrutiny that
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was a strict scrutiny backdoor attempt by the actual petitioners,
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here WHICH i thought was very, interesting but so to
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my work actually cited the same case for the proposition
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that this had been too broad a categorical, exemption and
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she would have sent this back down to the crowd
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courts to determine future and further fact finding on whether
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or not these athletes and PARTICULARLY bpj had specifically disadvantaged
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themselves any sort of preconceived or pre existing biological distinction
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or inherent advantage would have been muted because of puberty.
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Blackers, now of course there was litigation on.
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This there were dueling expert witness reports in this case about.
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Whether or not there is or is not inherent athletic.
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ADVANTAGE i think the general consensus on this is, that,
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yes there is inherent athletic advantage. Advantages some of those
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may be blunt into a certain. Extent but so Tom
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MY r CITED us Versus virginia for the proposition that
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there was further fact finding. Needed when you read her,
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opinion did you find it at all persuasive that she,
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said you, know we really have to go back to
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the drawing board and hear from more people about whether
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or not there is an inherent advantage or for, you
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AS i THINK i, was in addition To, kavanaugh just
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happy to, say, listen contested policy. Issues let the people
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fight it out in the, chambers just like we said
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and jobs.
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Just like we.
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Said us for Many, YEAH i definitely think that that's
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a policy issue that would need to be addressed by the.
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Legislature can you imagine what this would look like if every,
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athlete male athlete that who.
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Identifies as a, girl wants to participate on a team
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is going to court and trying to, say, like here's
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the medical Interventions i've, done here's my current, ability here's
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like who do you compare it to the best female,
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athlete the worst female, athlete of average female.
250
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ATHLETE i think it just leads to a host of practical.
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Problems this is something that's been brought up in a
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number of Talks i've given On title nine for fence
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sooff chapters at various.
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Schools AND i call this the.
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If you suck enough for, All, like if the male
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athlete sucks, enough then he can participate on the. Team
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BUT i think it's just not the purview of the
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courts to get into all of these decisions where, like,
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oh maybe it makes sense in some circumstances to have
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exceptions or different rules or something like, That like that's
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not what the law, requires and so the court shutting
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that down and not opening that, door which then would
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00:14:13.879 --> 00:14:16.000
not even just be limited to this, issue it would
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be something that would extend to any type Of Equal
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Protection clause challenge under intermediate.
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Scrutiny and SO i think the court.
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Rightly saw that this was just not going to be
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workable and something should be shut.
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Down and then kind of related to, that one.
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THING i was happy to see is at the end
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Of kavanaugh's opinion.
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He addressed he just kind of like the, like, well
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what's the.
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Harm it's just one athlete argument that gets brought up
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a lot of times and really is.
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Just, like, look sports is a zero sum, game like.
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What we're talking, about and one athlete can have a
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massive impact across the board for a lot of different female.
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00:14:53.879 --> 00:14:55.960
Athletes it's like one one female.
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Athlete that doesn't make the, team one female athlete that
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doesn't get playing, time one female athlete that doesn't get to.
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Participate in, finals one female.
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Athlete that doesn't get an, award and so this, uh you, know,
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uh and then the impact on other teams or folks
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you're competing, with as well as far as having a
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00:15:13.200 --> 00:15:17.159
male athlete that then is presumably if they're, playing giving
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00:15:17.159 --> 00:15:20.159
an advantage to that team if the, athlete the male
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athlete is good enough to be playing instead of another
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female athlete on the.
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Team and SO i think just really.
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00:15:25.639 --> 00:15:29.840
Recognizing the impact even just one male athlete can have
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00:15:30.399 --> 00:15:33.919
for a whole host of women. Athletes and THEN i
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00:15:33.919 --> 00:15:36.600
Think kavanaugh was a great a great person to write
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about this because HE'S i think the sports.
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Justice, yes two daughters of his, own by the way he.
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Coaches their basketball, teams and, like he really gets. Sports
297
00:15:47.639 --> 00:15:50.039
and SO i think having someone to really appreciate the
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00:15:50.120 --> 00:15:54.200
value of, sports like for for, all for all, athletes
299
00:15:54.240 --> 00:15:56.159
and just the hard work and the impact and the
300
00:15:56.159 --> 00:15:59.000
benefit that sports, play it was great to see that
301
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recognition throughout the opinion and putting it all in.
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Context.
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Yeah in, fact it's interesting because on page twenty eight
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in the majority, opinion he really.
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00:16:09.799 --> 00:16:12.480
Goes into Coach kavanaugh. Mode in, fact when he's got that.
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00:16:12.440 --> 00:16:15.919
Sort of you, know long soliloquy about you, know putting
307
00:16:15.960 --> 00:16:18.360
the girls putting their championship trophies.
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00:16:18.000 --> 00:16:19.799
Or their old league awards on their bedroom.
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00:16:19.799 --> 00:16:23.080
Shelves they learn to endure losses with, grace.
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To lift up their.
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Teammates you could just hear him talking to the girls
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on the, team WHICH i thought was really a great
313
00:16:28.720 --> 00:16:32.320
way to end the, opinion and also with a closing
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00:16:32.360 --> 00:16:37.440
note of, humility, embrace recognizing the humanity of all the students, involved.
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00:16:37.120 --> 00:16:41.039
Right and he was very accurate AND i think sort of.
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00:16:42.919 --> 00:16:46.440
Merciful to the extent that he could be within the
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00:16:46.440 --> 00:16:50.320
confines of the law for the individual circumstances that attended
318
00:16:50.320 --> 00:16:53.000
both of these two students when in middle, school went
319
00:16:53.039 --> 00:16:55.879
at the college level and saying, listen it's never a
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00:16:55.919 --> 00:16:59.159
happy day when an individual loses that on an opportunity
321
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to plan a sports.
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Team that they.
323
00:17:00.559 --> 00:17:04.279
Want but, again this is a zero sum, game, right
324
00:17:04.279 --> 00:17:08.519
there are winners and. Losers ability does play into the.
325
00:17:08.599 --> 00:17:14.200
Equation title line does conceive of and permit sex separate separated.
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00:17:14.240 --> 00:17:16.319
Teams SO i think it was a great way to
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00:17:16.359 --> 00:17:19.960
really end the opinion. OVERALL i want to ask you
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00:17:20.000 --> 00:17:20.640
a little bit.
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00:17:20.480 --> 00:17:22.599
Because you And i've been following sort of the regulatory.
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00:17:22.640 --> 00:17:25.240
History we talked a little bit About, bostock but when
331
00:17:25.319 --> 00:17:29.799
do you sort of pinpoint the fact for the chronological
332
00:17:30.200 --> 00:17:34.279
import of when we started to see these trans inclusive sports.
333
00:17:34.319 --> 00:17:36.480
Policies was that a relic of The obama?
334
00:17:36.519 --> 00:17:41.359
Administration did it really sort of only germinate in The biden?
335
00:17:41.359 --> 00:17:42.839
Administration what's your take on.
336
00:17:42.880 --> 00:17:47.359
THAT i think it really took off after The Supreme
337
00:17:47.400 --> 00:17:50.440
court's decision In bostock in twenty, twenty and then The
338
00:17:50.440 --> 00:17:52.839
biden administration came in shortly after, that and SO i
339
00:17:52.839 --> 00:17:55.680
think there had been some of these arguments and cases
340
00:17:55.720 --> 00:17:57.960
and policies like kind of percolating a little, Bit but
341
00:17:58.880 --> 00:18:01.559
really WHEN i came came into the issue was during
342
00:18:01.559 --> 00:18:04.000
The biden, administration AND i think it really took.
343
00:18:04.079 --> 00:18:07.640
Off and Boss stock was the loan star.
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00:18:07.559 --> 00:18:11.880
That The biden administration was looking to reinterpret every prohibition
345
00:18:11.960 --> 00:18:15.640
against sex discrimination to include a transgender status or a gender,
346
00:18:15.680 --> 00:18:21.240
identity and so that it was in basically every, context
347
00:18:21.240 --> 00:18:24.440
and not just, sports not just. Education it was in,
348
00:18:24.440 --> 00:18:26.920
insurance it was in, Bathrooms it was in all of
349
00:18:26.960 --> 00:18:30.640
these different aspects That bosstok's decision really just did not
350
00:18:31.039 --> 00:18:31.880
address at.
351
00:18:31.880 --> 00:18:34.039
All but that WAS i.
352
00:18:33.920 --> 00:18:36.920
Think the impetus and the starting point for a lot
353
00:18:36.960 --> 00:18:40.359
of courts to jump on board and kind of related to,
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00:18:40.440 --> 00:18:43.240
THAT i think another interesting point is that this involved
355
00:18:43.240 --> 00:18:46.839
both The Equal protection clause and the sex discrimination Law title,
356
00:18:46.960 --> 00:18:49.200
nine and so we've seen a lot of the gender
357
00:18:49.240 --> 00:18:52.400
identity and transgudor status type discrimination claims that rise both
358
00:18:52.480 --> 00:18:57.279
under sex discrimination non discrimination laws in various, contexts whether
359
00:18:57.319 --> 00:19:00.160
That's title nine Or title seven Or section fifty fifty
360
00:19:00.200 --> 00:19:03.519
seven of The Affordable Care, act and then also under
361
00:19:03.519 --> 00:19:06.440
The Equal Protection. Clause and so something like the challenge
362
00:19:06.480 --> 00:19:10.240
to the Law tennessee's LAW instagrammeti just involved The Equal
363
00:19:10.240 --> 00:19:13.000
protection clause, challenge but in a lot of the litigation
364
00:19:13.119 --> 00:19:17.279
on a lot of these issues related to gender, identity
365
00:19:17.400 --> 00:19:21.079
we've see both The Equal Protection clause and the non
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00:19:21.079 --> 00:19:25.799
discrimination statutes which are similar but obviously have different. Analyzes
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00:19:26.720 --> 00:19:29.759
AND i think the courts just flat out rejection of
368
00:19:29.880 --> 00:19:32.119
Boss stock being relevant at all and just not like
369
00:19:32.160 --> 00:19:33.720
we don't even have to get into it because it's
370
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not relevant.
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00:19:34.359 --> 00:19:36.680
Here it's completely different from what we're talking.
372
00:19:36.680 --> 00:19:40.920
ABOUT i think will be helpful to shutting down a
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00:19:40.920 --> 00:19:43.039
lot of these arguments that we're trying to pull in
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Boss stock into all these other contexts that Boss stock
375
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did not address at.
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00:19:46.799 --> 00:19:49.880
All, yeah and it's interesting, because as you AND i
377
00:19:49.920 --> 00:19:53.480
were talking, Beforehand gorsich cites his own majority opinion in
378
00:19:53.559 --> 00:19:57.440
Boss stock basically, saying, well you, know the majority opinion
379
00:19:57.480 --> 00:20:01.119
said that bosstoc does not, apply and that's an argument
380
00:20:01.160 --> 00:20:02.559
that certainly holds legal.
381
00:20:02.599 --> 00:20:04.559
Water BUT i think it does. Apply and by the,
382
00:20:04.559 --> 00:20:05.359
way it only.
383
00:20:05.160 --> 00:20:09.799
Supports the proposition that title line permits sex separated. Sports
384
00:20:09.799 --> 00:20:11.559
and in, fact he talked about the, fact as you
385
00:20:11.599 --> 00:20:16.400
AND i have both, discussed that biological sex was the starting, point.
386
00:20:16.559 --> 00:20:18.920
Right it was that initial sort of.
387
00:20:18.920 --> 00:20:22.680
North star within the boss back opinion that often gets
388
00:20:22.759 --> 00:20:25.680
lost in the. Outcome it is the Way vorsus actually
389
00:20:25.720 --> 00:20:28.839
began that, opinion and so he's, saying we never strayed
390
00:20:28.839 --> 00:20:32.119
from a biological sex definition In title.
391
00:20:32.240 --> 00:20:33.559
Seven we're not doing so.
392
00:20:33.680 --> 00:20:37.839
Here and by the, way employment is completely different than
393
00:20:37.880 --> 00:20:41.799
sports because in one you cannot you cannot conceive of
394
00:20:42.119 --> 00:20:45.119
or take into effect sex at. All the other actually
395
00:20:45.200 --> 00:20:49.519
mandates sex consideration for purposes of equality and. Fairness i've
396
00:20:49.599 --> 00:20:53.720
Called title seven sex prohibitive And title nine sex permissive
397
00:20:53.839 --> 00:20:55.319
in that that's sort of the way that the.
398
00:20:55.680 --> 00:20:57.200
Statutory frameworks are laid.
399
00:20:57.240 --> 00:20:59.720
Out one of the things THAT i wanted to mention
400
00:21:00.240 --> 00:21:03.839
was the fact That Lindsey heacox In september of twenty
401
00:21:03.880 --> 00:21:07.839
twenty five tried to moot their own, case and they
402
00:21:07.880 --> 00:21:10.960
filed the suggestion of. MOOTNESS i found this very interesting
403
00:21:11.039 --> 00:21:16.119
Because shotmayor takes as a given That heacox's case is
404
00:21:16.160 --> 00:21:20.559
mood and doesn't even deign to address those particular principles
405
00:21:20.640 --> 00:21:26.519
In peacox's case in her. Dissent but, interestingly in footnote
406
00:21:26.680 --> 00:21:32.960
nine of the majority, Opinion kavanaugh points out specifically that
407
00:21:33.160 --> 00:21:35.440
when you've got a change in position after cert is,
408
00:21:35.480 --> 00:21:38.839
granted and it would insulate that particular case from judicial, review.
409
00:21:38.799 --> 00:21:41.160
You have to look at that with a very steely.
410
00:21:41.519 --> 00:21:43.960
Eye and this was a circumstance where there was nothing
411
00:21:44.000 --> 00:21:46.839
in the record to indicate that this individual had suddenly
412
00:21:46.920 --> 00:21:47.599
ceased to.
413
00:21:47.480 --> 00:21:51.319
Have an interest in playing in girls'. SPORTS i was
414
00:21:51.400 --> 00:21:52.240
glad to see that.
415
00:21:52.519 --> 00:21:56.559
Addressed were you surprised that the mootness argument did not
416
00:21:56.720 --> 00:21:59.200
get MORE i think airtime in the majority.
417
00:21:59.240 --> 00:21:59.599
Opinion.
418
00:22:01.160 --> 00:22:03.079
NO i, MEAN i think once they decided they weren't
419
00:22:03.079 --> 00:22:05.839
going to moot, it there wasn't right they moved. Forward
420
00:22:05.880 --> 00:22:08.759
in THE bpg case had both the equal protection clause
421
00:22:08.839 --> 00:22:12.039
and the title mind, claims so in a lot of,
422
00:22:12.079 --> 00:22:17.039
ways the result would have been SUBSTANTIALLY i, think or
423
00:22:17.359 --> 00:22:20.440
essentially identical even without The hecox, case even though there
424
00:22:20.480 --> 00:22:23.480
are you, know maybe some additional considerations with that case
425
00:22:23.519 --> 00:22:28.079
that where war it's. Addressing BUT i did want to
426
00:22:28.079 --> 00:22:31.519
go back to one thing you said About kavanaugh's. CONCURRENCE
427
00:22:32.279 --> 00:22:36.200
i think the way he views it is there's kind
428
00:22:36.200 --> 00:22:38.680
of two different. Issues one is it like sex discrimination
429
00:22:38.799 --> 00:22:41.400
and then two is it a lawful sex discrimination right
430
00:22:41.440 --> 00:22:43.839
and discrimination just meaning kind of different treatment on the
431
00:22:43.839 --> 00:22:44.400
basis of.
432
00:22:44.440 --> 00:22:47.519
Sex and as he pointed, out and this was From,
433
00:22:47.559 --> 00:22:51.319
scremti every piece of legislation classifies.
434
00:22:50.839 --> 00:22:53.920
One way or another that doesn't always amount to, discrimination.
435
00:22:54.079 --> 00:22:56.720
Yes and so then he AND i think this actually
436
00:22:56.720 --> 00:22:59.480
really tracks with what the descents were arguing as. Well
437
00:22:59.519 --> 00:23:03.680
and there you except they kind of came to, WELL
438
00:23:03.720 --> 00:23:06.759
i guess Under title nine they. Agreed but like in
439
00:23:06.799 --> 00:23:11.279
the sports, Context title nine permits sex discrimination or you,
440
00:23:11.279 --> 00:23:15.880
know kind of the separate the separate the separate teams
441
00:23:16.000 --> 00:23:17.599
based on, sex.
442
00:23:18.200 --> 00:23:20.279
And so like that's not unlawful sex.
443
00:23:20.279 --> 00:23:23.839
Discrimination so like the title seven, context it doesn't permit
444
00:23:25.279 --> 00:23:28.319
differences in hiring based on. Sex so it's not only
445
00:23:28.319 --> 00:23:32.400
a sex based, distinction but it's also unlawful sex. Discrimination
446
00:23:32.480 --> 00:23:33.839
SO i think that's kind of the way he was
447
00:23:33.880 --> 00:23:34.319
looking at.
448
00:23:34.359 --> 00:23:38.880
It but he he again quoting some of the.
449
00:23:37.920 --> 00:23:42.720
Boss S dooc, language said some broad statements like discriminating
450
00:23:42.759 --> 00:23:46.039
against a person for being homosexual or transgender necessarily entails
451
00:23:46.079 --> 00:23:49.240
discriminating against the person at least in part because of
452
00:23:49.279 --> 00:23:52.680
his biological. Sex AND i think broad statements like that
453
00:23:52.720 --> 00:23:56.400
are somewhat problematic and self contradictory depending on how how
454
00:23:56.440 --> 00:23:59.079
you apply it into. This in the, INSTANCE i think
455
00:23:59.279 --> 00:24:02.039
none of the their justices signed onto. This and this
456
00:24:02.079 --> 00:24:04.680
seems to be a little bit different from how the
457
00:24:04.680 --> 00:24:05.200
majority In.
458
00:24:05.240 --> 00:24:07.400
Scrammettee in the majority here seems to be.
459
00:24:07.400 --> 00:24:09.720
Moving away from boss stock and really trying to limit
460
00:24:09.759 --> 00:24:13.200
boss stock to hiring and firing in title seven and
461
00:24:13.400 --> 00:24:17.319
the focus on the focus on sex and not really
462
00:24:17.359 --> 00:24:21.279
focusing on the sexual orientation or transgender status of the,
463
00:24:21.319 --> 00:24:25.200
person but really having sex be the focal. Point i'm
464
00:24:25.200 --> 00:24:27.200
not going to bring in these other, concepts WHICH i
465
00:24:27.200 --> 00:24:30.200
think muddy the water with the analysis when you take
466
00:24:30.240 --> 00:24:31.880
those statements out of.
467
00:24:31.960 --> 00:24:36.400
Context, yeah and there was, INDEED i, think and we've
468
00:24:36.519 --> 00:24:41.039
yet to take this particular issue head on the issue
469
00:24:41.079 --> 00:24:44.680
of whether or not transgender status is a sort of
470
00:24:44.799 --> 00:24:47.839
quasi suspect or suspect class for purposes of egal protection.
471
00:24:47.880 --> 00:24:50.799
Flaws scrutiny has yet to be taken on because in.
472
00:24:50.759 --> 00:24:53.799
THE scrimmti decision it was very clearly this is a
473
00:24:54.000 --> 00:24:55.160
regulation based on.
474
00:24:55.160 --> 00:24:55.920
Age and medical.
475
00:24:55.960 --> 00:24:59.599
Diagnosis we're not making a distinction based on transgender status,
476
00:25:00.119 --> 00:25:02.680
here the exact same thing we are. Saying sex is
477
00:25:02.880 --> 00:25:05.759
distinctly an issue. Here this is a regulation a restriction
478
00:25:05.839 --> 00:25:06.839
based on biological.
479
00:25:06.880 --> 00:25:08.480
Sex but it satisfies intermediate.
480
00:25:08.519 --> 00:25:11.119
Scrutiny at no point has the court, said and by the,
481
00:25:11.119 --> 00:25:15.519
way even if it were to consider transgender status or
482
00:25:15.519 --> 00:25:18.799
a classification or restriction based on transgender, status that wouldn't
483
00:25:18.839 --> 00:25:22.680
meet equal protection clause heightened. Scrutiny, now that did not
484
00:25:22.759 --> 00:25:26.240
Prevent Justice thomas from weighing in and citing back To
485
00:25:26.400 --> 00:25:29.559
Justice barrett's concurrence In, spremmetti WHICH i think is, excellent
486
00:25:29.640 --> 00:25:32.519
points the way forward in which he, says we have
487
00:25:32.640 --> 00:25:37.200
in the past had occasion to consider additional suspect classes mental, illness,
488
00:25:37.680 --> 00:25:41.119
poverty immigration, status for. Example every one of, those they
489
00:25:41.160 --> 00:25:45.319
have declined anything beyond the concept of, immutability as was,
490
00:25:45.359 --> 00:25:48.559
discussed for, example in Frontier o versus richardson which The
491
00:25:48.599 --> 00:25:51.720
court sites in the majority opinion here in the.
492
00:25:51.720 --> 00:25:53.319
CASE i think it's.
493
00:25:53.240 --> 00:25:56.400
Very notable that there are justices who are willing to
494
00:25:56.440 --> 00:25:59.240
kind of pick around the edges of that question of
495
00:25:59.480 --> 00:26:03.000
whether or not a class is sort of quasi suspects
496
00:26:03.160 --> 00:26:06.599
to include gender identity or transgender. Status just the sodoma
497
00:26:06.680 --> 00:26:10.079
ore and her dissent assumes. It she just goes immediately
498
00:26:10.119 --> 00:26:13.440
to to the endpoint without addressing the fact, that after
499
00:26:13.640 --> 00:26:20.279
multiple requests for individual characteristic representations and recognitions for protected
500
00:26:20.319 --> 00:26:23.200
status for heightened, scrutiny The court has time and again
501
00:26:23.799 --> 00:26:27.640
only held fast to immutable, characteristics not as just As thomas,
502
00:26:27.680 --> 00:26:28.839
wrote mutable.
503
00:26:28.880 --> 00:26:32.240
Ones AND i think we're going to see that soon.
504
00:26:32.359 --> 00:26:35.880
ENOUGH i think before too, long The court will have
505
00:26:35.920 --> 00:26:38.960
to wrestle head on with the question of whether or
506
00:26:38.960 --> 00:26:42.240
not it's willing to stray from that bright line of
507
00:26:42.279 --> 00:26:48.599
immutability when it comes to suspect class qualifications and. CHARACTERISTICS i,
508
00:26:48.720 --> 00:26:52.599
think you, know and my sense about this is that
509
00:26:53.279 --> 00:26:56.559
they would be. DISINCLINED i Think barrett wrote such a
510
00:26:56.559 --> 00:26:59.599
great concurrence In, scrummetti just, saying, Listen i'm going to
511
00:26:59.680 --> 00:27:00.519
lay out and and.
512
00:27:00.559 --> 00:27:02.920
In, FACT i had predicted she.
513
00:27:03.000 --> 00:27:06.160
Might be the one to author the, opinion because if
514
00:27:06.160 --> 00:27:10.839
we were taking a transgender restriction on its, face she
515
00:27:10.960 --> 00:27:12.720
might be the one to sort of chart the path
516
00:27:12.720 --> 00:27:16.359
forward on an Equal Protection clause analysis based on protected.
517
00:27:16.480 --> 00:27:20.359
Characteristics but do you think that's a question that will
518
00:27:20.400 --> 00:27:23.839
come up sort of relatively soon in litigation about whether
519
00:27:23.920 --> 00:27:28.079
or not we treat sex and gender identity or transgender
520
00:27:28.119 --> 00:27:31.759
status as the same level of suspect class and both
521
00:27:31.920 --> 00:27:33.680
subjected to heighten the scrutiny.
522
00:27:33.720 --> 00:27:38.839
Analysis i'm not sure if we'll actually see that issue
523
00:27:38.880 --> 00:27:41.119
in a way that The Supreme court wouldn't sidestep that
524
00:27:41.200 --> 00:27:42.720
maybe in the same way we've already, seen BECAUSE i
525
00:27:42.759 --> 00:27:45.599
think a lot of what we've seen is distinctions based
526
00:27:45.599 --> 00:27:47.160
on sex being claimed to also.
527
00:27:47.039 --> 00:27:50.160
Be distinctions based on transgender status or gender. Identity, right we.
528
00:27:50.079 --> 00:27:52.720
Don't see an exclusion of like no one who identifies
529
00:27:52.720 --> 00:27:56.640
as transgender can participate at. All, right there's a male
530
00:27:56.680 --> 00:27:59.119
team and a female, team and then, like whether you're
531
00:27:59.160 --> 00:28:00.720
male or female than that that's the team you have
532
00:28:00.759 --> 00:28:02.759
to be. On and then the folks trying to say
533
00:28:02.799 --> 00:28:06.480
that that's gender identity discrimination or transgender status. Discrimination SO
534
00:28:06.599 --> 00:28:08.880
i think that's different in kind than a rule that
535
00:28:08.920 --> 00:28:12.119
says no transgender identifying student athlete can.
536
00:28:12.160 --> 00:28:14.960
Participate AND i don't see those laws that.
537
00:28:15.039 --> 00:28:17.119
Exist SO i think a lot of what we have
538
00:28:17.240 --> 00:28:21.160
been seeing are essentially sex based or maybe other types of,
539
00:28:21.960 --> 00:28:27.519
classifications like the medical knucle user age in The discremetti
540
00:28:27.720 --> 00:28:29.839
THE scremmeti. Base So i'm not actually sure if we
541
00:28:29.880 --> 00:28:33.160
will if we will see that issue BECAUSE i don't
542
00:28:33.200 --> 00:28:39.559
see going to overt exclusions based or classifications based on
543
00:28:39.599 --> 00:28:43.119
transgender status or gender. IDENTITY i was going to, SAY
544
00:28:43.200 --> 00:28:45.319
i do think WE i was gonna, say we're coming
545
00:28:45.400 --> 00:28:46.799
up at the top of the half, hour we do
546
00:28:46.960 --> 00:28:48.599
we do have. TO i think read a couple of
547
00:28:48.599 --> 00:28:51.279
the quotes From Justice thomas's concurrence THAT i thought.
548
00:28:51.559 --> 00:28:53.119
Because we didn't get into, that but it was.
549
00:28:53.119 --> 00:28:56.799
Great so, yeah SO i Think Justice thomas really just
550
00:28:56.839 --> 00:28:59.039
getting to the heart of the issue of like what
551
00:28:59.079 --> 00:29:01.440
does it mean to be a human, person and like
552
00:29:01.559 --> 00:29:03.839
what is male and what is? Female he says a
553
00:29:03.880 --> 00:29:05.920
man does not have a legal right to compete against
554
00:29:05.920 --> 00:29:08.160
women just because he believes that he is a, woman
555
00:29:09.200 --> 00:29:11.720
and then at the end he says men and boys
556
00:29:11.720 --> 00:29:14.880
with gender dysphoria are not women or, girls even if
557
00:29:14.880 --> 00:29:15.720
they believe that they.
558
00:29:15.759 --> 00:29:18.160
Are sex is an immutable biological.
559
00:29:18.240 --> 00:29:21.920
Characteristic it is, binary and man and, woman boy and
560
00:29:22.000 --> 00:29:24.680
girl are the terms that correspond to adults and children
561
00:29:24.720 --> 00:29:28.640
of each. Sex to use language to obscure, reality to
562
00:29:28.720 --> 00:29:31.400
show indifference regarding the, truth is to lie to the
563
00:29:31.440 --> 00:29:33.839
public and cease to treat our fellow citizens as.
564
00:29:33.960 --> 00:29:35.799
Equals you, know it's really.
565
00:29:35.720 --> 00:29:40.279
Refreshing to see not this obscuring of language such as
566
00:29:40.279 --> 00:29:42.839
like transgender girl or and you're, like, wait is this
567
00:29:42.960 --> 00:29:43.720
a female or a?
568
00:29:43.759 --> 00:29:47.960
Male and he JUST i think concedes a.
569
00:29:47.920 --> 00:29:52.799
Lot of the, arguments and it's just speaking truthfully that
570
00:29:53.160 --> 00:29:57.759
men are not. Women and SO i really appreciated that
571
00:29:58.359 --> 00:29:58.519
we do.
572
00:29:58.680 --> 00:30:01.839
Too you. Know his concurrence was about a page and
573
00:30:01.839 --> 00:30:02.119
a half.
574
00:30:02.119 --> 00:30:05.000
Long it was very, brief but, boy he cut right
575
00:30:05.079 --> 00:30:09.400
to the chase and made that final point about failing
576
00:30:09.440 --> 00:30:13.920
to treat our fellow citizens as equals if we lie to,
577
00:30:13.960 --> 00:30:18.039
them essentially about the reality of biological, truth citing from
578
00:30:18.480 --> 00:30:20.920
abuse of. Language and it's interesting because one of the
579
00:30:21.039 --> 00:30:23.599
questions is the discussion about sex.
580
00:30:23.319 --> 00:30:25.799
Being, immutable but whether or not that could.
581
00:30:25.599 --> 00:30:31.960
Be substantially changed by a transgender, surgery making transgender status equally.
582
00:30:32.039 --> 00:30:34.519
Immutable and the answer to that is there are only
583
00:30:34.519 --> 00:30:38.079
two reproductive. Systems there are only two gamme, meets there
584
00:30:38.079 --> 00:30:42.039
are only two, sexes and even those sort of disorders
585
00:30:42.039 --> 00:30:46.319
of sexual development or so called intersex, conditions there is
586
00:30:46.359 --> 00:30:47.960
still one predominance or the.
587
00:30:48.039 --> 00:30:51.359
Other there is no third. Sex and so anything that
588
00:30:51.480 --> 00:30:53.319
can be, changed like an.
589
00:30:53.160 --> 00:30:58.839
Identity a self, professed, internal, subjective malleable sense of one's own,
590
00:30:58.880 --> 00:31:02.920
identity is not. Immutable it is not a characteristic about
591
00:31:02.920 --> 00:31:05.880
which you can do, nothing but is in, fact just
592
00:31:05.880 --> 00:31:09.400
by its very, nature. Changeable SO i knew we were
593
00:31:09.400 --> 00:31:12.519
going to do. This we got, rolling and we're already
594
00:31:12.519 --> 00:31:14.240
two minutes. Past So i'm going to kick it back
595
00:31:14.279 --> 00:31:17.640
To riley lest we run a foul of the time.
596
00:31:17.720 --> 00:31:21.000
Clock, here we just can keep keep going all.
597
00:31:21.079 --> 00:31:23.799
DAY i think we can great victory for the rule
598
00:31:23.839 --> 00:31:28.000
OF awe and for girls and women and women's.
599
00:31:28.000 --> 00:31:32.920
Sports yeah here, HERE i want to thank our panelists
600
00:31:32.920 --> 00:31:35.960
for sharing your expertise and opinions on this important. Issue
601
00:31:36.240 --> 00:31:38.960
if our audience is interested in learning more about all
602
00:31:39.000 --> 00:31:41.839
of The Federalist society's, programming please visit their website at
603
00:31:41.920 --> 00:31:44.079
fedsoc dot, org and with that we are.
604
00:31:44.119 --> 00:31:48.440
Adjourned thanks for listening TO Fedsoc, forums A federalist society.
605
00:31:48.519 --> 00:31:51.880
Podcast be sure to subscribe wherever you get your podcasts
606
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so you won't miss an. Episode to learn, more visit
607
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