0:00:00.0 S?: Trans rights are human rights!
0:00:04.1 S?: Trans rights are human rights!
0:00:08.1 S?: Trans rights are human rights!
0:00:11.9 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this episode of 5-4, the hosts are talking to Erin Reed, a journalist and activist who tracks anti-trans legislation across the United states. School, sports, drag, gender affirming care and bathroom access have all been targets of recent anti-trans legislation. It's not yet clear which trans rights issue will appear before the Supreme Court first, but the conservative supermajority does not bode well for equal treatment under the law. This is 5-4 a podcast about how much the Supreme Court sucks.
0:00:52.3 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have ruined our country, like cops ruining a pride parade. [laughter] I'm Peter.
0:01:01.2 Rhiannon: Timely.
0:01:01.8 Peter: And I'm here with Rhiannon.
0:01:02.9 Rhiannon: Hey.
0:01:03.6 Peter: Michael. Not with us today. Not an ally in my view. [laughter],
0:01:09.8 Rhiannon: I think he's just sick.
0:01:12.2 Peter: Possibly just sick might be because he is not an ally. [laughter] You as a listener will never know which one is the truth. [laughter] Today we are going to be talking about the landscape of trans rights with our friend Erin Reed. We had a very cool discussion with her. We are going to be talking about the types of laws that are being passed across the country to restrict trans rights. That includes laws about gender affirming care, but also laws that impact just being trans in public, right? Thinking about things like bathroom bills and even drag bans, laws that are concerning sports. The hot topic of can trans people play sports [chuckle] without being harassed by some psychotic parents? And then we're gonna talk about the legal challenges to those laws, what the basis for those challenges are, what success we've seen.
0:02:15.4 Rhiannon: Yeah, we talk about so many things and I'm so thrilled that Erin was able to join us for this discussion. We should say though, that we recorded this interview a couple of weeks ago, so some of the cases that we talk about later in the interview, there have already been some decisions made, some updates there, and we will share those updates with you at the end of the interview.
0:02:39.5 Peter: Yeah. Alright, let's get to it. Erin Reid coming up.
0:02:43.7 Rhiannon: Yay.
0:02:45.2 Peter: Erin. Welcome to the show.
0:02:46.6 Erin: Thank you so much for having me on.
0:02:47.7 Rhiannon: Hey Erin.
0:02:48.5 Erin: Hey.
0:02:49.0 Peter: Erin. I wanna begin with access to gender affirming care. And one way to sort of bucket this out is that, A, you have laws that target care for minors, and then B, you have laws targeting care for adults or trans people of all ages.
0:03:04.8 Rhiannon: Yeah.
0:03:05.7 Peter: So can you sort of give us a broad overview of these laws with that in mind?
0:03:10.9 Erin: Of course. So as we stand right now, there are several laws that target transgender people's medication. So these are generally called gender affirming care bans. And as of right now, there are 18 states that have passed laws that ban gender affirming care for transgender youth. All of these states are states that have Republican super majorities or trifectas or both. And essentially these laws would state that people under 18 would not be able to be prescribed puberty blockers, hormone therapy, or surgery. Surgeries typically aren't done anyway but puberty blockers and hormone therapy are usually administered between 12 and 14 years old and then 16 years old for hormone therapy as the traditional time of administration. So 18 states currently ban this care for trans youth. Florida is the only state right now that bans it for the majority of trans adults. And what Florida does is reminiscent of old anti-abortion trap laws. Those are targeted restrictions on abortion providers.
0:04:11.7 Rhiannon: Yes.
0:04:12.3 Erin: Is essentially they do not outright ban gender affirming care for transgender adults. What they do is they ban the care from nurse practitioners who provide 80% of that care. They ban the care unless you have a certain misinformation or informed consent form that the board of medicine produces. The problem is that the board of medicine has not produced the form yet. And so what you have is several transgender adults getting pulled off of their medication. Now, in these state legislatures, whenever these bills are being heard, the legislators themselves talk about how these medications are only banned for trans people. They're not banned for people with precocious puberty. They're not banned for young people that are short of stature that want to prevent their growth plates from fusing. So they take puberty blockers for a couple years. They're not banned for gymnasts, they're not banned for any number of other people. And in fact, there are more cisgender people receiving, for instance, breast implants than transgender people under 18 years old.
0:05:07.7 Rhiannon: Absolutely. Yeah.
0:05:08.5 Erin: And so, you know, one of the arguments that's being made in the legislatures is that you are unfairly targeting transgender people in these bans by essentially making them the only ones who you are saying cannot take this medically approved treatment.
0:05:23.9 Peter: So, I think you touched on something there that I wanna drill down on a bit, which is you mentioned nurse practitioners, and this reminded me of the fact that some of these laws target aiding and abetting transition, meaning that anyone who sort of participates in the process is potentially subject to criminal or civil liability.
0:05:47.2 Rhiannon: Again, lots of analog there to bans on abortion and pregnancy related healthcare.
0:05:52.4 Peter: Right. Right. The same basic playbook. Are those types of restrictions common across the country?
0:05:58.1 Erin: So this is a new provision, and I've been tracking this legislation for three to four years now. And I can tell you that the very original gender affirming care bans in Arkansas and Alabama did not have any such language. In fact, they were kind of rudimentary at the time. They just banned the care for trans youth. And that was it. As the model legislation, which you can see, most of these laws are copy-paste from one another. They're being drafted by think tanks, some of which I know of. And so, as time went on and as these laws continued to get challenged, they started to get hearings, etcetera. The drafters of the law started adding new provisions and extra sections. Severability clauses they were adding that would force the medical detransition through the gradual reduction in hormone levels.
0:06:42.7 Erin: We started seeing grandfather clauses, which actually reduce the number of people who can show standing in court, for instance. And then, lastly, we see the aiding and the abetting clauses, which map onto anti-abortion laws, especially in Idaho, which has an aiding and the abetting clause for abortion patients for leaving the state. The states that have aiding and the abetting clauses right now, I believe, are Mississippi, Indiana, I believe Kentucky has one and Ohio is hearing a bill right now that has an aiding and the abetting clause in it.
0:07:13.0 Erin: In fact, in Indiana, there were voice therapists that stood up and gave testimony saying that, "Am I going to be considered aiding and abetting gender transition therefore subject to penalty, if I trained transgender girls on how to use their voice?" You saw the same thing in South Carolina. I believe South Carolina has a similar bill right now where you had people that essentially asked, "If I do hair removal, am I aiding and abetting? If I am a psychologist and I use the person's pronouns, am I aiding and abetting gender transition?" And so these are the questions that are being asked right now.
0:07:50.3 Peter: And I think that starts to touch on another sort of dichotomy, which is medical versus "non-medical" transitioning, right? So you have medication, you have surgeries, which, I think it's worth stating again, are exceedingly rare for minors. But then you also have the sort of social accoutrements, right? You have things that range from therapy, general recognition by teachers of proper pronouns, things like that. Have we seen substantial legislation meant to restrict the sort of more social elements of transition?
0:08:33.0 Erin: Yes, we have seen a heavy attack on the social elements of transition for both trans-youth and trans-adults, actually. In terms of trans-youth and social transition. Yes, there are several bills and laws around the United states right now that restrict the use of pronouns in schools, that state that you cannot share your pronouns in school, that state that you can't change a student's pronouns in schools without their parent's permission. You can't even use or call a trans-person by their chosen name or pronouns without their parents' permission.
0:09:00.6 Erin: The really interesting thing about this, by the way, is that we saw a really clear example of the sort of hypocrisy around this law in Montana when this bill was being heard. It's that essentially, the bills that ban the use of pronouns in schools unless you have parental permission do not work the other way. If you are a parent and you give teachers permission, you say, "I want my trans-student to be affirmed by their teachers. I want my teachers to use 'she' and 'her.' I want my teachers to use my son or daughter or child's name." Teachers, in the same law, have the right to freedom of speech to ignore that. But if you try to... But if you disagree with it, then those teachers suddenly lose their right to freedom of speech to call them by their name and pronouns. And so, you know, it's parental rights for the people who want to dis-affirm their kids, but it's freedom of speech for the teachers who want to dis-affirm the same kids.
0:09:51.3 Rhiannon: That's so wack.
0:09:53.0 Peter: In general, it appears that the anti-trans movement has latched on to parents' rights as a sort of rallying cry. Our children are sort of subject to these cultural whims, and we should be able to intervene on their behalf and do whatever we think is best for the kid, including halting social and medical transition. On the other hand, you have the State and many states stepping in to prevent the transition of minors whose parents are fully on board. Right? And there have been legal challenges that we'll touch on a bit later, talking about parents' rights in those contexts. I think it's sort of naturally tired to talk about conservative hypocrisy, but it's also worth pointing out the ways in which it manifests.
0:10:44.1 Erin: Well, absolutely. And, you know, I've watched several hearings around the United states on this issue. I've seen many different places in which the legislators essentially made the same argument that this is a parental rights issue for us. Like we have the parental rights to dictate our trans-kids' medical care with their care team and their medical professionals. We have the parental rights to say that we want our trans-kid to be affirmed in school. We have the parental rights to take our kid to a Drag Queen Story Hour where somebody reads a book and teaches kids how to read. The idea that somehow there is a single party that is supporting parental rights just isn't really being borne out in reality. And I think that this is been brought up in legislatures and they make excuses for it.
0:11:30.1 Peter: Now, obviously, I think it's safe to say we're not being fully comprehensive when it comes to the restrictions on gender-affirming care. But are there any other areas that are worth discussing before we move on in your mind?
0:11:41.2 Erin: Absolutely, absolutely, I think that there's so much out there. I will say that, whenever we're talking about social transition and we are talking about like school names and pronouns and stuff, like we're also seeing restrictions on legal transition. And so these are places where they are no longer allowing you to change your driver's license gender marker. They are no longer allowing you to change your birth certificate. They're making it so that whenever you die, they put your birth sex on your death certificate. They're making it so that any legal recognition that you might have whatsoever gets ignored. They're banning people from bathrooms in Florida. And Florida, I imagine it's going to come up often whenever we speak about this issue.
0:12:16.3 Erin: But in Florida, there was a bill that was passed that will go into effect on July 1st that essentially states that if you're trans and you're in a bathroom that matches your gender identity, if somebody tells you, like points on you and says, "Leave," and you don't, you're guilty of trespassing, and you could be put in jail for one year for a misdemeanor. And so this is gonna happen, I think that there's a lot of people in Florida, a lot of trans-people who don't really understand the full scope of this law, and I've been really trying to like make sure that the information is out there.
0:12:45.4 Erin: A lot of people assume that if your legal sex has changed, which you know, mine has, I've got F on all my identity markers, all my birth certificates, passport, everything. People assume that that's what they're gonna base this law off of. Whenever you read the law, it states that you your birth certificate doesn't matter, your legal sex doesn't matter. They base this on your biology at time of birth. And so what's gonna happen, like if police go into a bathroom and they think that you don't belong in that bathroom, they're gonna say that they've got probable cause to do a gender investigation on you.
0:13:14.9 Peter: Right. Literally some fucking cop analyzing your gender presentation.
0:13:19.1 Erin: Exactly. Exactly. And then like how are they gonna investigate criminally? 'Cause it's a criminal matter. How are they gonna investigate your birth gender? What are they gonna do? Are they gonna chromosome test you? Are they gonna give you an inspection? Like, I don't know it remains to be seen exactly how this law will be enforced. But I will also say that a similar law was passed in Kansas, although that law does not have any enforcement mechanism, it's not criminal or civil. It just says that bathrooms are designated male and female, you have to use them according to your biological sex at birth. For a while people thought, well this is just a law with no teeth, like nothing's gonna happen because there's literally no enforcement mechanism in it. However, just this last week, the mother of an adult disabled son went into a Wichita public library and as she always has accompanied her son to use the bathroom, and they were told to leave by a security guard.
0:14:07.6 Erin: And so again, and I say this all the time, these laws, they're written targeting transgender people, but cisgender people are often very much affected as well. Gender nonconforming, cisgender people, as well as people that need to be in bathrooms or need medical care or need to change their gender presentation for any reason. And so this is something that has a large expanse of applicability. I'll also close off by saying one more thing. There are another type of law that that's proliferating right now those are drag bans. And these essentially state that if you are male or female, impersonating is often how the language works using exaggerated clothing or makeup, then you could be coming under violation of law.
0:14:49.5 Erin: And yeah, like these are extremely vague terms. And we just saw in Montana today, about an hour before getting on this podcast, a transgender public speaker in a library in Butte, Montana, who was talking about LGBTQ history was barred from her presentation citing the recent drag ban. And so, are trans people, male and female impersonators? I will say that the legislators who passed these laws say yes. Like they, that is how they sell these laws.
0:15:14.4 Rhiannon: Yeah.
0:15:15.6 Peter: Right.
0:15:16.1 Rhiannon: I wanted to talk a little bit more specifically about drag bans. So states are doing this a few different ways. There are criminal laws that already criminalize "obscenity." But there is a push across the country for prosecutors in conservative states to identify drag performance as obscene, to target performers and establishments with criminal charges then of obscenity. The Florida drag ban, if I understand correctly, is similar to this.
0:15:44.6 Rhiannon: It's actually just a general obscenity law, but will be interpreted according to Governor DeSantis to be a drag ban based on lawmakers saying that drag performances are gonna be viewed as sexual and therefore obscene. Texas now the largest state to have a drag ban, that one is a little bit more targeted, maybe more specific to actually drag performances. The Texas law, I'm laughing because it's completely fucking absurd on its face. The Texas law bans "gesticulations" using "exaggerated male or female characteristics."
0:16:21.7 Peter: Does that apply to Texas men who were over-performing their masculinity?
0:16:25.5 Rhiannon: Right. Right, please. So I think the drag bans specifically sort of belay demonstrate a really particular conservative bad faith behavior. Which is that like drag performance isn't even about being trans. Drag performers are very often not trans people, but of course drag performance is gender performance, gender expression. It's a uniquely queer art form. And through creation of like this looming social threat of transness, conservatives really encompass and attack all of this other behavior, all of this other expression, all of these ways of being that conservatives just deem unacceptable.
0:17:06.7 Rhiannon: So it's not really about a misunderstanding of what it is to be trans, although they certainly don't understand gender and how it works, but like it's about this creation at any cost of like us versus them. This is how we derive strength and power by creating an enemy, by targeting them, by attacking them, by using violence in the law, by relegating and harming people. We're recording this on the first day of Pride Month and you write that quote, "Pride is a celebration of people they failed to eradicate." Maybe I don't have a question, but just like your thoughts about what the conservative movement is like actually doing.
0:17:43.7 Erin: Of course, so like brick by brick, they're trying to remove our medication, our art forms, our books, our history, our ability to exist in public life. Whenever we speak so intensely about bathroom bans, it's because what do you do? Like how do you leave your home? It's hard. Like I know people in Florida that are fleeing the state. I know many people that will never get to flee the state.
0:18:09.5 Rhiannon: For sure.
0:18:09.9 Erin: And the thing is that like say you are a trans person in Florida who is on the border of passing, who gets sometimes read as a transgender woman and who gets sometimes read as a cisgender woman, happens. There's a lot of people where how they present and how they get perceived is different from person to person. You're screwed no matter what bathroom you go to.
0:18:29.0 Peter: Right.
0:18:29.2 Erin: You go to a male bathroom and somebody might challenge you. You go to a female bathroom, somebody might challenge you and then all of a sudden you're essentially being pulled into an investigation. It isn't about choosing which bathroom to go to, it's about stopping you from going to bathrooms.
0:18:45.8 Rhiannon: Exactly.
0:18:46.1 Erin: It's about stopping you from going out in public altogether or getting you to leave the state. Which DeSantis' team members, one of his campaign leads essentially whenever somebody stated that these bills are going to make people... Force people to leave the state of Florida essentially just posted the waving hand emoji bye like, that is the purpose. The purpose of this is eradication. Whenever we have Michael Knowles standing in front of a packed CPAC audience talking about how the goal is to eradicate transgenderism from public life, this is the goal, it's the stated goal. And I think that more and more we are seeing laws that are designed to do that, that take away our ability to get legal documents that erase us from all legal code that...
0:19:25.0 Erin: It was really fascinating and troublesome and alarming whenever Representative Zephyr, who by the way, full disclosure is my partner, but she spoke in Montana against that bill. It was 458, it was HB 458, SB 458, and this is the bill that basically defined sex in a way that erases trans people from 41 areas of code of public code in Montana. And it was on that bill that they first refused to acknowledge her to speak and they stopped her from speaking on any bill moving forward. And that was what led to the big protests that happened in Montana. And so just to kinda get around it all, I just think that the way in which these laws are not only drafted but published, made public, spread around and sold to the public, does seek to essentially stop trans and queer people. And even just LGBTQ people at large, all of us and gender nonconforming people. Cisgender gender nonconforming people from feeling free to express their identities in any way that is not in accordance with, to be honest, in accordance with God's plan.
0:20:32.5 Erin: Because if you look at the way that these laws are drafted, if you look at the very initial emails from the working groups in 2019 to 2021, which were leaked by an ex detransitioner, somebody who was part of the detransition movement and then left, similar to the ex-gays of the 1990s. Whenever you look at how these laws were drafted, they explicitly say that like the children belong to God and not to the parents. The children are under his wings and it is in order to dictate how we should all be living our lives based on their narrow understanding of a very particular branch of Christianity.
0:21:07.8 Rhiannon: Yeah, Exactly. Can you talk about how maybe the anti-trans movement shifted from bathroom bills to start with, to sports, to healthcare, the gender affirming care. And you alluded to this a little bit earlier, who is behind it?
0:21:23.3 Peter: And sorry if I can give a little bit of colour to this question or stack a question or topic perhaps. My perception of this is that the narrative a year, maybe a year and a half ago, was that they tried bathroom bills early in the Trump administration era and they were just sort of a flop. People didn't really seem to buy into it. You had states like North Carolina having large businesses say that they're no longer gonna do business there, and there seemed to be a lull before they found sports, something they could get a foothold in, in these political sphere, something that captured people's indignance a bit. And now that they have that foothold, it feels to me they're circling back to bathroom bills. Is that arc correct or am I missing something and how would you narrate that six, seven year span?
0:22:18.0 Erin: That is absolutely the arc, and I often have to explain this to people and it's... I'm glad that you, that you're aware of it. In 2015, early 2016, we had the very first bathroom ban. It was... I always, whenever I deliver talks in this law schools and stuff, I always mark this as the beginning of the modern anti-trans legal movement. This was off the back of the Obergefell decision. Gay marriage had just been won and they had to pivot to a new group of people that were in the LGBTQ community to focus on trans people were the main people. And so HB 2 in North Carolina was passed that banned trans people from bathrooms. It never was fully allowed to go into effect.
0:22:57.6 Erin: It went into effect, but got challenged, got paused, and there was an outcry because immediately on its passage, NBA All Star game pulled out. PayPal pulled out, Deutsche Bank pulled out. The state lost $3.76 billion over this bill, and no other state wanted to deal with that. And so for four years we saw a complete rejection of anti-trans bills. They tried things, they tried birth certificate bans, more bathroom bans that all failed until around 2020, 2019, 2020. And what we saw is a group of organisations and people essentially get together and plan, they had a new strategy. The American Principles Project was one of the major ones. Terry Schilling actually, you can look up interviews that Terry Schilling had with CNN as well as the New York Times. They don't keep any secrets about this. They monologue it like bond villains.
0:23:54.6 Rhiannon: Yes.
0:23:55.0 Erin: Exactly. How they explain how they're gonna basically eradicate trans people and they tell you exactly how they plan to do it. And so what Terry Schilling had said is that they started with sports and they started with sports and they also started with business friendly states on the new attempt because they saw what happened in North Carolina. Bathrooms were too far for people. And so if they could get you to accept an asterisk on trans people as their gender identity for one thing, then it's no longer a matter of are you a woman? Are you a man? Period. It's woman with an asterisk or man with an asterisk. And then it's all about taking that asterisk and applying it to a lot of other places in life until all of a sudden you've erased all legal rights for trans people.
0:24:37.5 Rhiannon: Exactly.
0:24:38.2 Erin: And so that was the idea. He essentially said that, we're gonna start with sports and sports are an easy way to get the foot in the door. Their organisation started with Kentucky. Governor Beshear was the first anti-trans sports ad. It was very provocative ad of like a cisgender woman wrestler winning, winning, winning. And then a big hulking man steps into the ring, not even what transports even looks like. But this is what happened. And after that election they continued, they continued to spend money on this topic, continued to rally on this topic. The other organisation that they worked alongside and that was doing similar work was The Alliance Defending Freedom. And the Alliance Defending Freedom should probably give a lot of your listeners a bit of a memory in the sense that this is the same organisation that's behind the Texas Abortion Pill lawsuit. Same organisation that's behind several anti-abortion bans in the United states. Same organisation that goes to speak at all of the hearings through both the gender affirming care bans and the abortion bans. And so yeah, we have similar orgs doing the same thing.
0:25:34.4 Rhiannon: Yeah. Also, I'll just say the Alliance Defending Freedom, also the same organisation that provided legal support for the Christian business owners refusing to serve LGBTQ customers in both Masterpiece Cake Shop and 303 Creative two Supreme Court cases. Massively well-funded, massively staffed organization that is doing massive dirty legal work across the country.
0:26:00.5 Peter: Yeah.
0:26:00.9 Rhiannon: Yeah.
0:26:01.0 Peter: To call them well-funded, almost undersells it. They are essentially just a pile of funds.
0:26:04.6 Rhiannon: Yes, exactly. It's just money stacks.
0:26:07.2 Peter: Right. Exactly. These organizations are just sort of like reactionary movement money.
0:26:11.7 Rhiannon: Right, right. Laundered into...
0:26:13.7 Peter: Placed into corporate form.
0:26:14.7 Rhiannon: Yeah, exactly.
0:26:15.4 Erin: In some cases laundered by state governments, you know. So like we saw in Florida, the new standards of care for gender affirming care in Florida, there was an organization, the American College of Pediatricians, it's an organization named misleadingly on purpose to confuse lawmakers with the American Academy of Pediatrics. One, the American Academy of Pediatrics is the big org of like tens of thousands of doctors. American College of Pediatricians is a conversion therapy right wing like Catholic Christian organization.
0:26:41.8 Rhiannon: Great.
0:26:42.0 Erin: That has very close ties again, with the Alliance Defending Freedom, they were on the same emails for instance. And so like this organization was tapped specifically to write the standards of care in Florida. And Florida, the state government paid members of the American College of Pediatricians large amounts of money to essentially write and research with the end conclusion of ban trans care. And like in recent lawsuits in Florida, they actually have a slide that shows how they were gonna commission "independent research" that would essentially lead to the baning of gender affirming care. And they tapped and paid money to people from the ACP, American College of Pediatricians to do so.
0:27:18.6 Rhiannon: Yeah. Not only targeted lawsuits, absolutely ideological and violent targeted litigation. These organizations, the Alliance Defending Freedom, a massive part of what they do is provide state legislatures with model legislation, right? The law template, the example to copy. And Alliance Defending Freedom has not only done this with, certainly with anti-trans legislation, but people might remember that in Dobbs, the Alliance Defending Freedom wrote the model legislation after which Mississippi wrote its 15 week abortion ban. It was designed to be litigated all the way up to this Supreme Court, designed of course for the Supreme Court to overturn Roe versus Wade. It's the same fucking people, I guess is what I'm saying.
0:28:05.2 Erin: Very much so. Very much so. And you know like you have members of like associates, Alliance Defending Freedom associates like Vernadette Broyles who runs the Child and Parental Rights campaign, attorney who has also done work with the Alliance Defending Freedom. And she was the one who was the architect of the "Don't Say Gay" bill in Florida.
0:28:23.1 Rhiannon: Yes.
0:28:23.2 Erin: She wrote that bill and she was specifically tapped to write that bill. Also, by the way, one of the people that has done abortion cases and also gender affirming care cases around the United states. And so absolutely. Like the model legislation arm of the Alliance Defending Freedom is huge.
0:28:37.6 Rhiannon: Yeah.
0:28:37.9 Erin: They write this model legislation and then they get paid to defend the model legislation.
0:28:41.7 Rhiannon: Exactly.
0:28:42.2 Erin: And all of that basically.
0:28:44.1 Rhiannon: And you know maybe because it's graduation season, this has also started to pop up kind of percolate, at least for me in what I'm seeing in the news. There was a recent story, maybe earlier this week or last week from Alabama, I believe that a child, a teenager, was told by the school district, the superintendent, that he could not wear his chosen attire at graduation. That he had to wear clothes that supposedly matched his gender assigned at birth. So just wanted to get your input of things you've seen in that regard in terms of restrictions on clothing being another way that kids especially are targeted.
0:29:27.4 Peter: Right.
0:29:27.4 Erin: Yeah. So the case was even a little bit more complex than that. So what happened is it was kind of two part. First, a transgender girl was essentially barred from wearing a white dress underneath her graduation gown. And she was not allowed to do that. That was the dress code. You either wear the white dress for the girls or black slacks for boys. She was barred. She had a lawsuit and she was barred kinda last minute. So they didn't really have a lot of time to file the lawsuits. A judge in Mississippi essentially did not grant her a restraining order and they didn't have enough time to appeal it because it was graduation night.
0:30:03.8 Rhiannon: Right.
0:30:04.1 Erin: That was the big story. But then within a single day on the day of graduation, a cisgender girl who was gender non-conforming, short hair, wears pants, slacks, and boots, she showed up and was wearing the slacks and the shoes. And the administration basically told her like, no, you have to take your pants off underneath your gown to walk to graduate. And she was essentially barred at the last minute for that. And you know like this is troublesome because like this is essentially Mississippi and a judge in Mississippi stating that if you are trans, you have to dress according to your assigned sex at birth. Clothing in and of itself does not have an assigned sex. And it's...
0:30:54.6 Peter: Right.
0:30:55.2 Erin: It's just, it's wild.
0:30:56.2 Peter: That's what's interesting about those cases is even if you take trans students out of it, it feels like that's illegal. Just mandating attire based on sex feels like it's a Title IX violation. But we'll talk about the legal challenges later. Let's talk sports. So we mentioned this is sort of like the thin edge of the wedge. They managed to really change the national conversation about trans people with sports and the idea that trans women were going to ruin women's sports by competing against women. And as such, we've seen a bunch of state legislation. Can you give us an overview of what that legislation looks like.
0:31:43.5 Erin: Of course, there are 20 states that ban transgender people from competing in sports in various levels. Some of these states only ban up to high school level. Some states ban college and professional sports as well. And essentially, these bills state that if you were assigned male at birth, then you have to play on men's teams and if you were assigned female at birth then you've got to play on women's teams no matter your gender identity, medical transition, etcetera. And I think that this is the thin wedge of how they managed to cleave people into accepting some level of discrimination. And what I will say is that there's so much misinformation around trans participation in sports out there.
0:32:20.3 Rhiannon: Yes.
0:32:20.3 Erin: You know. Number one, I mean, before we even get to higher levels, I think it's absurd to argue that like in golf for 9-year-olds, like, we need to be segregating sports by assigned sex at birth. And yet most of these bills do that kids soccer. But even whenever you go to higher levels number one, trans people have been competing in sports for a very long time now, for decades. In fact, this "controversy" goes back 30 or 40 years to the Olympics whenever they first tried to do sex testing and they started testing chromosomes of all athletes to see if people were competing in the proper category. There's some interesting stories about that as well, but I'll get to that. What you see though around trans people in sports is not a story of domination. You don't see trans people winning everything that they belong to.
0:33:09.2 Erin: In fact, trans people are massively underrepresented in sports tremendously so. I think that last I saw there were like 30 trans athletes in all of the NCAA all sports combined, and given the percentage of trans people in the population up to 1 to 2%, you would expect there to be hundreds. And yet there's not. Even thousands, and yet there's not. And then on top of that, a lot of the times, these bills that banned trans people in sports and sporting organizations that set these rules state that like you're banned unless you've undergone two years or three years of hormonal transition in your youth. Like you've skipped puberty. And yet the same states are also banning gender affirming care for transgender youth.
0:33:47.1 Peter: Right.
0:33:53.2 Rhiannon: Exactly.
0:33:56.9 Erin: And I think that like my partner talks about this a lot, Zooey, she talks about this a lot. The story that she tells, and it's one that really strikes me is that like, what does it mean to be a transgender girl who has been playing, for instance, let's say soccer your whole life. You transitioned at 9, 10 years old, you've played soccer with your friends, you go through puberty blockers at 12, you continue to be allowed to play soccer, you get to high school and then all of a sudden they say you're trans, you can't participate anymore even though like you suppressed your puberty, you went through medical transition, all of that. And so that's the case. That's what we're seeing right now. We just had a case in California, the name of the athlete is slipping me, but she's a disc golf, I think it's Natalie Ryan. She's a disc golf player in California and around the United states. And she's been transitioned for several years.
0:34:40.5 Erin: I don't wanna quote, but I think like six or seven years. And she's been participating in disc golf for as long. She's been in 60 disc golf tournaments. She hadn't won a single one. In her 61st tournament. She won a tournament and that's whenever they banned her from sports. They said, well, nope. And it really like belies the question. It's like, is a trans person who has competed in 60 events and never won, only allowed to compete and then once they win, it's over. Like, was that "advantage" not there? The last 60, if she supposedly had an advantage? I mean, it's a bit ridiculous. And I think that like there's a conversation at high levels of sports as to like what kind of rules should be around it. Like should you need two years of hormone therapy, medical transition, etcetera. I think that like there are reasonable conversations to be had around this, but that's not what we're seeing? We're seeing bans, we're seeing outright expulsions as soon as somebody is good enough. And it's haphazard and very discriminatory.
0:35:34.8 Peter: It seems like a lot of the conversation gets driven by a very small number of outlier cases like Lia Thomas, the swimmer. And the reality for 98, 99% of trans athletes is just completely ignored. [laughter] I mean, there are a thousand things you can say about this. I find these debates hard to have with people because I don't think that people, first of all, understand that almost every advocate for trans students in these situations believes in some level of restrictions. Right? Says that there are certain parameters that are reasonable. And I also believe that the other side is completely disingenuous because if you ask them what's the reason for your position? They will say, well, biological male physiology, blah, blah, blah. It is inherently unfair. And all I can think about is the poor kids who had to play high school basketball against LeBron James.
0:36:33.1 Rhiannon: Right?
0:36:33.9 Peter: Like, well, was that unfair? Should LeBron James have been barred from basketball? No, no, of course not. Right.
0:36:40.4 Erin: Michael Phelps with like a double wingspan and twice the lung capacity.
0:36:43.1 Peter: Right.
0:36:43.8 Rhiannon: Exactly.
0:36:44.3 Erin: And like a genetic advantage on metabolism of oxygen. Yeah, absolutely. And look, I will also say that I know Lia Thomas, she's a sweet woman. We've had conversations and she... One thing that is never reported about Lia Thomas is that whenever, like you see these stories about how she went from like a 400th ranked swimmer to like a eighth ranked swimmer or something like that. She was on hormone therapy for the year and a half to get eligible whenever she was swimming, and she continued to swim in the men's team at that time. I'll also say that all of the outrage that you saw about Lia Thomas and the idea that these people care about women's sports, we heard crickets the very next year when her record was broken by a cisgender woman athlete.
0:37:25.0 Rhiannon: Exactly.
0:37:25.5 Erin: And so it's just like, do these people actually care about sports? Are they ever going to talk about a cisgender athlete that is a woman who just did incredible at collegiate swimming? We didn't even hear a word about girl's collegiate swimming until Lia Thomas was swimming. We know from people who've come out and said... Like Megan Rapinoe, she stated like, "If you want to support women's sports, if you want to protect women's sports, there are about a thousand things that we can tell you that you can do that are going to have 10 million times the impact than banning an edge case of a trans swimmer."
0:37:56.5 Rhiannon: Yeah. Did y'all see the Fox News coverage of a trans woman runner in a marathon? The headline, Fox News headline is, "Trans woman beats 2000 other runners in such and such marathon." They never say in the story that she didn't come in first and beat 2000 people. Her place was like 6,000. Like it was a massive, it was a massive marathon.
0:38:23.7 Peter: Yeah. Like she actually kinda sucks. [laughter]
0:38:25.7 Erin: Right, right.
0:38:26.0 Rhiannon: I mean, she's actually not that great of a runner.
0:38:28.5 Erin: And that's the thing, like there's a lot of trans athletes that like, they're never gonna win, they're never gonna get headlines, they're never gonna dominate the sport.
0:38:35.6 Rhiannon: Exactly.
0:38:36.0 Erin: But the vast majority of people, cisgender and transgender, sports are part of experiencing life. Playing on a team and being part of something. And I think that most people, even their teammates would understand that.
0:38:50.9 Rhiannon: Yeah.
0:38:51.0 Peter: Right. I think it's worth, before we talk about some other elements of this, pointing out that you have a sort of different variation of the same phenomenon that you pointed out vis-à-vis bathrooms. The idea that someone who is trans and might be on the border of presenting as one gender or another wouldn't feel entirely accepted in either bathroom. And of course, the purpose is not to push them to use the bathroom of their biological sex. The purpose is to make them feel uncomfortable in public life. You have a similar phenomenon in the trans athletes conversations because you will have trans men on hormones that are doing well competing against cis women. And these same complaints will pop up.
0:39:42.4 Rhiannon: Exactly.
0:39:43.0 Peter: Even though this is ostensibly what they wanted. And again, there's only so long you can hit your head against the wall claiming hypocrisy. The point is that they are targeting outgroups to make them uncomfortable in public life because they are fascists. And that is what fascists do. They target outgroups.
0:40:01.9 Erin: And often the outrage that gets spun up around a transgender male athlete is then directed to the transwoman community. So like Iszac Herzog, who also won some races in swimming, he is a transgender man who was forced to compete on the women's team. And so they would show pictures of him and say, "A trans person beat several other swimmers." And...
0:40:25.5 Peter: Yeah. Yeah.
0:40:25.8 Erin: He presents fairly masculine. And so what happens though is that in Fox News brain, people see this and they're like, "Oh, it's another man competing in women's sports."
0:40:33.7 Rhiannon: Right.
0:40:33.9 Erin: And it's just like...
0:40:34.8 Peter: All it does is I think reaffirm their pre-conceived notion that all of this is fucked up somehow. This is sort of a disturbance of the natural order.
0:40:44.6 Rhiannon: Yep.
0:40:44.9 Peter: Right. And they're, they're not trying to make too much sense of it or justify the rules that they create. They're just trying to lash out with punishments towards the groups that they feel deserve to be on the fringes of society.
0:40:58.1 Rhiannon: Mm-hmm.
0:40:58.6 Erin: Absolutely.
0:41:00.9 Peter: So I wanna move a bit away from the state laws on this and talk about the Biden administration. 'Cause a couple of months ago they proposed a regulation that sort of, I would say was a bit controversial, at least at first. Essentially prohibiting categorical bans on transgender sports participation, but allowing for certain individualized decisions to be made in certain circumstances and within certain confines. Initially, I think a lot of people read that as, "Oh, Biden is allowing for bans on trans athletes just in sort of a slightly narrower form." But a lot of trans rights organizations came out in support of it, basically saying, "This is within the realm of what we were looking for." Do you have any thoughts on that proposal?
0:41:52.3 Erin: Yes. Most orgs did come out in support of it. Not all. Most did. Lambda Legal expressed some concerns. I was one of the people that expressed concerns about that particular proposal because after reading it, it did seem to cave on a few things that can then lead to discrimination. And if I see for instance in the rationale section of the Title IX policy drafting document. For instance, one of the places where it says that you can perhaps have other concerns is, if scholarships are on the line. And it's like, "Are trans people not deserving of scholarships as well?" And so I found some issues with it and I wasn't the only one. At first, I was one of the few that was talking about those issues, but then other people, some of the organizations, sort of started to speak up about, saying like, "I'm not so sure about this either." And then 14 of the 16 transgender representatives signed a letter stating that they know how these policies, regardless if they were written with good intent, and I believe that it probably was written with good intent, these policies, the conservative governments, state governments are going to read the worst reading into them.
0:43:03.7 Peter: Right?
0:43:03.9 Erin: And so if you do cede ground that like, it's okay to discriminate on, for instance, if scholarships are on the line, then what all they're gonna do is they're gonna say, "Well, starting at high school, scholarships are on the line, we divide by two and then we're done."
0:43:17.0 Peter: Right.
0:43:17.4 Erin: They're not gonna try to finesse it to meet your Title IX rule. And so, there were a few changes that I suggested making. I'd spoken to members of the Biden administration. Others have spoken to members of the Biden administration. I think that this is all we're gonna get from them. I don't think that they're gonna be changing anything and especially with some organizational backing early on in the process. But I remain concerned, I remain concerned to see how this actually gets implemented. I will say that more likely than not, from the people that are more knowledgeable about the court side of things, it's probably gonna get enjoined by the Fifth Circuit and the second it gets dropped. And so we'll see, we'll see what happens.
0:43:50.9 Peter: Yep. The reg features the same problem that a lot of Biden policies do, which is that I think it is sort of assuming that its opponents are reasonable people. And what that does is ends up giving discretion to states, to municipalities, to school districts, to fashion rules of their own design within confines that are relatively flexible. And if you give people who want to eliminate the existence of transgender students flexibility, they will use that flexibility to try to eliminate transgender students.
0:44:30.0 Erin: Absolutely. Absolutely.
0:44:30.9 Rhiannon: Yeah. This idea of prioritizing a sort of negotiation in politics, that like, "We meet in the middle on this." When actually it should be, "I don't negotiate with people who don't believe my friends are human beings." Right?
0:44:44.9 Peter: Right.
0:44:45.0 Rhiannon: "Who think that they should be eradicated legally and socially from our world." That's not the tactic to use in politics with them.
0:44:52.7 Erin: No, I agree. And any middle ground that you try to seek, you're gonna have half the states that essentially try to take that middle ground and pull it hard right. And they're gonna make things a lot worse for the trans people there.
0:45:00.9 Rhiannon: Exactly. Exactly.
0:45:02.1 Erin: And it's hard.
0:45:02.9 Rhiannon: When you give a mouse a cookie.
0:45:04.5 Peter: Right.
0:45:05.4 Rhiannon: So that's sort of the horrific state of affairs, in terms of all of these state laws being passed to attack trans people, to attack trans identities. But we should maybe shift our conversation to the second phase. Erin, we want to talk to you about the legal challenges. What can be done in the legal fight against these laws? How can these laws be challenged in court to protect trans people and protect trans rights?
0:45:35.5 Peter: Yeah, and I wanna give some context to our listeners here. A key part of the background is Bostock County. The Supreme Court case from a few years ago that was a huge liberal win, where the court held that the prohibition on sex discrimination in Title VII applies to protect LGBT people.
0:45:54.8 Erin: Yeah.
0:45:55.1 Peter: Which sort of functions in these cases as a weapon, a tool for anyone looking to challenge these anti-trans laws.
0:46:05.3 Rhiannon: Yeah. Not all of these laws happen in the Title VII employment context, but because the court ruled that way, in that context, it's this argument that organizations are putting forward to hopefully get courts to apply in other contexts.
0:46:20.5 Peter: But because of that decision, any federal prohibitions on sex discrimination likely protect LGBT people too. So there's this very strong operating principle for anyone challenging these laws that they are likely discriminatory. And I wanna work our way through the types of challenges we've seen, the legal basis for those challenges and the level of success that we've seen. We can start with the challenge to the gender-affirming care ban in Arkansas, which is now before the Eighth Circuit. I believe this is a law that would prohibit gender-affirming health care, including referrals. And it was challenged on a few basis. One, and this is sort of the most common form of this challenge across all of these laws, is an equal protection challenge. Functionally saying that this is discrimination on the basis of sex. The law forbids treatment based only on your assigned sex at birth. In other words, it does not necessarily forbid a certain type of medical treatment per se. It forbids treatment for the purpose of gender transition, which is predicated on the sex of the patient and is therefore unconstitutional.
0:47:30.0 Peter: That basic line of argument is like the foundation for equal protection arguments to almost everything that we've discussed and has been sort of baked into nearly every challenge of these laws. But there are a couple of other interesting nuances here. One is that there's this argument that the law violates parents' fundamental rights with respect to their child's care. There are longstanding notions in the law that parents have the right to make decisions with respect to their children's medical care. There's a Supreme Court case from the year 2000, Troxel v. Granville, for example, which I think is the most recent example of this, about child visitation rights, that said that parents have a constitutional right to direct the upbringing of their child. And so I thought that was sort of a unique argument that I didn't entirely expect. And you can say that the parental rights argument sort of cuts both ways, but there does seem to be a strong legal basis here that parents who support their child's transition should be able to give material support to their child without the intervention of the state.
0:48:32.4 Erin: Mm-hmm. Yeah, no, I've seen that and I've seen that Arkansas is gonna be a major one to watch because Arkansas was the first lawsuit on all of this to get into effect. And I know that that lawsuit has like... It's been going on for a while now. It's been bounced back and forth up between the Eighth Circuit Court, the judge there. And so we've seen a lot of focus on that state. In fact, this is where John Stewart in one of his recent shows went there and questioned the Attorney General of Arkansas on the enforcement of this law and essentially made her look like a fool in the way that he kind of just questioned her about this. But yes, I've seen, for instance, the application of Bostock sex, gender-based discrimination on transgender people is sex discrimination and therefore prohibited under equal protection, stuff like that. We've seen a lawsuit filed in Alabama as well. And that is the other state that has a gender-affirming care ban that is currently blocked.
0:49:26.2 Erin: Now as we speak, there is a lawsuit that is being heard in Florida on the gender-affirming care ban in Florida that makes similar arguments as the one in Arkansas. And in fact, there is a decision that is expected out at any moment. So we will see, it could come while we are in this chat if the Florida law becomes the first modern anti-trans law from this year to be enjoined in court. And so, yeah, we are seeing a number of these for the gender-affirming care bans. There are a lot of court challenges out there for all kinds of the trans laws though.
0:50:02.8 Erin: Right.
0:50:03.7 Peter: Okay. So I want to move on to the ability of trans people to designate the proper gender on their birth certificates or other identifying documents. I think the most prominent challenge was to a Montana law, SB 280, which requires a court order stating that a person has received surgical treatment before the gender designation on their birth certificate can be changed. I imagine that you know something about this.
0:50:33.0 Erin: Yeah. So this one was a bit of a fascinating one. It was kind of just wild the way that this played out, because what happened is that the judge overturned that ruling, overturned the idea that you needed to have surgical transition in order to change your birth certificate gender. And so they made them roll it back. But what Montana did is they said, "Okay, well then, we're gonna roll it back all the way to not allowing birth certificate changes at all." And so instead of allowing gender changes on your birth certificate, regardless of whether you had surgical transition, they ban gender changes on birth certificates entirely in Montana. A judge was like, "No, that's not what I said for you to do. You need to allow gender changes on birth certificates."
0:51:14.0 Erin: And for about a month, the state of Montana basically like had a staring contest, said, "No, we're not gonna do it. We're just... We're literally gonna ignore this ruling." There were threats to hold the attorneys in contempt. It was exploding into a major sort of like local constitutional crisis of sorts. But then eventually they gave in and they started allowing birth certificate changes. However, because of 458, which is the law that we were talking about earlier, which defines sex as binary and makes it so that it's only your assigned gender at birth, we're back to square one again. Now that ruling is probably gonna get affected by this new law that says that birth certificates have to be your assigned sex at birth.
0:51:51.7 Rhiannon: Round and round and round we go.
0:51:54.0 Peter: Yeah. See that's sort of interesting because I think, just to contextualize that sort of stare down, the equal protection argument in that case was like, look, cis people can have their birth certificates amended for all sorts of reasons. Adoptive parents, name changes, etcetera. So this is an equal protection violation because it disproportionately burdens trans people. So that's an attempt to call that bluff and say, "Okay, fine. No changes of any type." And I also think this case highlights an interesting and common legal issue in these cases, which is that the state constitutions are often more protective than the federal constitution. So in Montana, there are fundamental rights to informational and medical privacy, which are burdened by these sorts of laws. And that was part of the challenge there too. We've seen similar state constitutional challenges across the country. And because the federal constitution is worse than a lot of state constitutions on these issues.
0:53:01.8 Rhiannon: It's the floor, right? The federal constitution establishes the floor.
0:53:04.9 Peter: Exactly.
0:53:05.5 Rhiannon: Yeah.
0:53:05.7 Peter: The state constitutional rights tend to be a little more robust, and so these state constitutional challenges tend to be a little more successful. Not to mention that if you're bringing state-level challenges, even though you might have conservative, state-level courts, you can avoid appeals to the Fifth Circuit, for example. You can avoid the potential that this ends up at the conservative Supreme Court.
0:53:30.2 Erin: Absolutely.
0:53:31.0 Peter: Which, I think activists have tried to do in many regards.
0:53:35.0 Rhiannon: Yeah.
0:53:35.5 Erin: Absolutely. And in fact, in the case of Montana, the Montana State Constitution is extremely strong. It's one of the strongest out there. For instance, there's a right to a clean and healthy environment, which is coming to sort of a head on environmentalism issues. And yes, there is a right to privacy. They just medical privacy.
0:53:51.1 Peter: There's no at-will employment in Montana.
0:53:53.0 Rhiannon: Whoa.
0:53:53.8 Peter: Yeah. It's the only state.
0:53:55.0 Erin: It's wild. I know. It's wild. And the unions are extremely strong in Montana. But for instance, the State Court of Montana just reaffirmed, the State Supreme Court, just reaffirmed basically their own version of Roe v. Wade there. And so, there is, I think in attacking some of these anti-trans laws, there have been several states where people have gone to the state-level court system. In Texas, we know that Texas has the Fifth Circuit Court, which is terrifying. They're under the Fifth Circuit Court and for a lot of these bills, people don't really see a lot of these bills getting challenged there. But Ken Paxton, Attorney General, Ken Paxton's basically investigation of the parents of trans youth in Texas last year for child abuse. Interpreting gender-affirming care as child abuse with no new law, this was just a reinterpretation of child abuse statutes, the Texas Supreme Court kind of put a block on that. They said, "This is a little too much here." And so, as far as I know, that is still moving around the court system there, but it is currently blocked and...
0:54:53.6 Peter: Well, Ken's having a rough few weeks.
0:54:54.9 Rhiannon: Yeah.
0:54:55.1 Erin: Ken is having a rough few weeks. Yes.
0:54:56.6 Rhiannon: Yeah. Let's hope he gets permanently blocked from public life.
0:55:00.0 Erin: We have seen some other really interesting cases, and I've written a little bit about some of them. Drag bans. We do have our first drag ban case in Tennessee, where a, I believe it was a federal judge in Tennessee stated that this is... I think like just a powerful quote here, it says that, "The United states Constitution has placed some issues beyond the reach of the democratic process. First among them is freedom of speech. If Tennessee wishes to exercise its power in restricting speech it considers obscene, it must do so within the frameworks of the US Constitution. The court finds that as it stands, the record here suggests that when the legislature passed the statute, it missed the mark." And then said that the Tennessee drag ban is enjoined. This came up in the hearing on the drag ban in Montana and in several other hearings around the United states.
0:55:50.0 Erin: And in fact, this decision was used to essentially beat a bunch of the drag bans. And that's why you saw several of the drag bans that were targeting male and female impersonation got retooled to essentially be general obscenity laws. Or, in the case of Texas, they didn't retool it as much. They did retool it to be a general obscenity law, but then they added, they're like, "Oh, male and female, exaggerated makeup, clothing, etcetera." And so it was because of this decision that you saw several states sort of just reevaluate what they wanted to do.
0:56:21.3 Erin: Yeah, and changing their language.
0:56:23.8 Peter: Rhi, are you worried about the exaggerated makeup thing?
0:56:28.2 Peter: I've seen you go to some concerts.
0:56:29.7 Rhiannon: A Texas Dallas girly till the end, okay? [laughter]
0:56:35.1 Peter: Alright. I think that is one of the unique elements of the drag bans is that there's a strong First Amendment argument that this is expressive. And that reminds me, by the way, that the Arkansas Law on gender affirming care, part of that challenge was that doctor referrals are a First Amendment matter. And that was, at least temporarily, a successful argument.
0:56:57.7 Rhiannon: Can you explain that a little bit, Peter? Doctor referrals are a First Amendment.
0:57:02.1 Peter: Yeah. The argument is that a doctor who says, "I can't give you this care, but I can refer you to someone who can," is doing something expressive.
0:57:12.7 Rhiannon: Okay.
0:57:13.1 Peter: Now, I'm not entirely sure that I'm super compelled by that, but I'll take a win, where we get it on these issues. [chuckle]
0:57:19.8 Rhiannon: Right, right. Why not?
0:57:21.1 Peter: Whereas I think with things like drag bans, it's open and shut First Amendment law...
0:57:27.9 Rhiannon: For sure. Right.
0:57:28.5 Peter: Or should be, right? This is pure artistic expression. And, of course, the courts have long struggled with the outer edges of obscenity law. But for 99.9% of drag shows we're not at the outer edges of obscenity law, and so there's really no reason to even bother thinking about it.
0:57:50.3 Erin: And, in fact, in the legislatures where these hearings on drag bans would happen, I remember one in particular in Missouri, several drag queens put on their best outfits they possibly could have, and gave testimony. And we saw this in several state houses. I saw this in Arkansas. I saw this in Montana. But in Missouri, we saw, one person came up and she had this beautiful outfit. And what one of the Democratic representatives said was like, "It is never more clear than now that drag is a form of protected speech and artistic expression. What you have done here today with what you're wearing is beautiful." And I think that, for a lot of conservatives, this does get across. And I think that's why the drag bans have faltered a lot more than in other places. That said, we still have State Freedom caucuses that control several state governments. And so I know that there are places where the conservatives will come out and say like, "We don't want this drag ban," and yet they still will push it and pass it. And that's what we're seeing. It's the story of a lot of these gender affirming care bans and a lot of these anti-trans laws that are out there.
0:58:57.9 Rhiannon: Yeah. Yeah, yeah.
0:58:58.9 Peter: The last thing to touch on is the state of bathroom bills. And this one's sort of spicy, especially in the school context. So there was a Florida school board that instituted a policy requiring that students use the bathroom corresponding to their biological sex, and that law was challenged and upheld by the Eleventh Circuit late last year. That created a circuit split, because the Second to the Fourth, the Seventh and the Ninth circuit have all come out more or less the other way on this issue. And so there hasn't been an appeal to the Supreme Court yet, but wherever there is a circuit split, there is a heightened possibility that the issue is brought up to the Supreme Court. We're a Supreme Court podcast and it's very hard to predict when something will get escalated through the federal appellate courts and actually land before the Supreme Court. But I would say we are, at least technically speaking, closest on bathroom bills. I certainly wouldn't say that that's good. [chuckle] I don't necessarily know how bad it is at this point, but I think a lot of people have asked us over the last couple of years, "Is this going to pop up to the Supreme Court?" I think the answer is yes. The only question is when and how. And right, now the closest we are is on bathroom bills, which is...
1:00:25.5 Erin: Moderately terrifying. Yes.
1:00:26.6 Rhiannon: Right. I don't feel great. [chuckle]
1:00:29.0 Erin: That case in Florida has just so many implications, because we know that very famous case, Grimm versus Gloucester County School Board that was the one in, I believe Virginia. Where Gavin Grimm, very well-known in the trans community as a powerful activist and advocate, was allowed to use the bathroom of his gender identity, and where that was an explicitly decided decision by the Fourth Circuit Court of Appeals. And so, yeah, we've got the circuit split now, and what happens from here? One of the questions that we're gonna have, I think, is how does this affect Florida's adult trans bathroom ban that's coming into play? The Eleventh Circuit case was decided on schools and around a single school's decision. How does this interact with a statewide law that essentially says that you can get arrested and thrown in jail if you are told to leave a bathroom of your gender identity? And so, yeah, I think that they're pushing this. I think that Ron DeSantis is pushing this, and he would love nothing more than to get this to the Supreme Court while they've got a conservative advantage in the Supreme Court. The question is, how does the Supreme Court take some of its previous decisions around this issue, especially with Bostock, and apply it to bathroom related challenges?
1:01:48.1 Peter: Right.
1:01:48.4 Erin: It was a 6-3 decision too. We've lost one liberal and gained one conservative since then, it's like that decision, I think, maintains... If it's decided today and nothing else changes, it would be a 5-4 decision, most likely. But then, how does that then carry over to non Bostock challenges?
1:02:04.5 Rhiannon: Exactly.
1:02:04.8 Erin: And Bostock was employment in Title VII. How does that apply to Title IX? How does that apply to trans protections in bathrooms?
1:02:11.1 Peter: Yeah. I think it's worth noting that there's a big difference between the adult and student bathroom bills in this context, because there is a history of deference to school boards in their gender-based requirements. Title IX also expressly mentions sex-based bathrooms because, of course, there would be a theoretical argument that that's inherently discriminatory, that you're discriminating based on sex, right, in and of itself, trans issues aside. And courts have said, "No, no, no, that's not what that is." And so there are a lot of assumptions about what schools can do, and they are given more discretion than employers, for example, which gives someone like Gorsuch a little bit of leeway that we don't want him to have in that context. So I think that is where I am truly concerned in the student context because of that nuance. But I will not have a panic attack until it's fully before the court.
1:03:10.4 Erin: We will see.
1:03:11.2 Rhiannon: Yeah.
1:03:11.5 Peter: Alright. Erin, thank you so much for joining us. This has been great.
1:03:16.2 Rhiannon: Thank you. And thank you for your writing and your work. Really important. Covering it like nobody else.
1:03:21.9 Peter: Yeah. Where can people find you?
1:03:23.7 Erin: So you can find me at www.erininthemorning.com. That is where I write my newsletter. I talk about LGBTQ issues and bills every single day. I also post on TikTok, Twitter and Instagram at erininthemorn, or erininthemorning, depending on the platform. I essentially try to make it so that this is digestible for everybody in whatever platform feels best to them.
1:03:46.0 Rhiannon: Very grateful for your work.
1:03:47.3 Peter: Your bill tracker is by far the best resource on this topic.
1:03:52.2 Erin: Worked hard on it. [chuckle]
1:03:52.7 Peter: [laughter] It shows, it shows. Erin, thank you so much for joining us. We appreciate your time, and happy Pride Month.
1:04:01.8 Erin: Happy Pride Month.
1:04:04.0 Peter: We told you at the top that that that interview was recorded a couple weeks ago. So we do have some updates on some of the cases we discussed with Erin. On June 6th, a federal court in Florida enjoined the enforcement of portions of Florida's anti-trans law, as well as rules adopted by the Florida Board of Medicine, namely bans on puberty blockers and hormone treatment for trans children, as well as penalties for doctors who provide care. The holding in that case is genuinely the largest win for trans medical care in the courts to date. The ruling itself was limited to care for minors, but what the judge held was that these bans are violations of equal protection as we discussed with Erin, because the laws are not banning medical treatment outright, for example, they are banning them specifically for trans people, specifically for the purpose of transitioning, which operates as discrimination on the basis of sex and gender identity.
1:05:07.5 Peter: The judge in that case, Judge Hinkle, he's a Clinton appointee, he said, and I quote, "The elephant in the room should be noted at the outset, gender identity is real." That sort of language pretty unprecedented in cases like this. He also said, "Any proponent of the challenged statute and rules should put up or shut up. Do you acknowledge that there are individuals with actual gender identities opposite their natal sex or do you not? Dog whistles ought not be tolerated."
1:05:46.2 Peter: So not just a kingly display of allyship during Pride Month from the judge, but a direct challenge to the proponents of these laws, saying you need to provide a basis for the laws if you want them to hold up in federal court. And if you want to provide a basis, you need to make the argument that you think trans people aren't real. And I think the purpose of that is to put those proponents in a corner because, for example, in that case, members of the medical board acknowledged that gender identity is real, that trans people actually do exist, in their medical opinions. So the judge is pointing out that disconnect between the laws and rules in Florida and what the people who are in charge of medicine in Florida actually think. So a big win, an interesting win, and just the most full-throated defense of trans rights we've seen in the courts to date.
1:06:55.3 Rhiannon: Right. We also talked with Erin about an Indiana law. Indiana has just banned gender-affirming medical care for minors. That law was challenged in federal court. And in that case, just on June 16th, a federal judge, this one a Trump appointee, Judge James Hanlon, stopped Indiana from enforcing aspects of that law. He issued an injunction, meaning the state cannot enforce that law on the basis of sex discrimination. We mentioned this during the interview, that Bostock County Supreme Court case that holds that discrimination against LGBT people, at least in the employment Title VII context, is sex discrimination, right? So Judge Hanlon, in that case, says the same, that the ban on gender-affirming care in Indiana is a sex-based discriminatory law that cannot, at this time, be enforced.
1:08:01.3 Peter: Yeah. Very conceptually similar to the ruling in Florida, although the judge didn't say as much cool shit.
1:08:08.0 Rhiannon: That's right, yeah. [chuckle]
1:08:09.6 Peter: [chuckle] So there are other challenges to these laws floating around. Of course, we will, I think, continue to see this play out in the courts. But, so far, some dubs for the good guys it seems. And my preliminary take on this is that the more psychotic wing of the Republican Party has perhaps gotten a little bit out over its skis with these laws. We're talking about laws that are extremely aggressive, and perhaps so aggressive that they're going to run into some walls in the federal courts. We'll see if any of this gets run up to the Supreme Court. We'll see what, for example, the Fifth Circuit might have to say about laws like the this once they hear it.
1:09:00.2 Peter: I would not expect it to be nothing but wins, but it does seem like perhaps the Right will have to reconceptualize these laws if they want them to survive in federal court. We'll see if they want to do that. I'm cautiously optimistic here just based on the early wins, but very cautiously optimistic given the state of federal courts today.
1:09:26.4 Rhiannon: Yeah. I think it remains to be seen where the culture war goes. Is this something that the Right coalesces around in terms of a loss like they did on abortion in the 1970s and '80s, or do they move on to the next horrific conceptualization of minority rights, right?
1:09:44.0 Peter: Yeah.
1:09:44.6 Rhiannon: I think time will tell. I think the federal courts will tell. And I also think it will be a result of our... On the Left, our organizing in the law and otherwise.
1:09:57.5 Peter: Yeah. A lot of the problem that the Right is going to have in court is that their culture war fearmongering is frequently predicated on outright lies about, for example, the frequency of transitions among minors, which are very rare, and the access that minors have to medical transition resources, which is actually very limited, but the Right, of course, pretends is nearly unlimited. Those aren't really things that you can lie to federal courts about super successfully, maybe a little bit successfully. But I think that the disconnect between their anti-trans rhetoric and reality, and that is causing problems for them in these cases. So that's the news, nothing but dubs all Pride Month. Come July, we're fucked.
1:10:50.3 Peter: July, of course, famously straight month starting off with the fourth.
1:10:54.4 Rhiannon: Yeah.
1:10:57.9 Peter: Alright. Next week, Sackett v EPA, a case from just a couple of weeks ago about what water the Clean Water Act protects. Does it protect all the water or maybe just a tiny fraction of the water? Where can you pollute? We'll be telling you next week.
1:11:20.6 Peter: Thanks for subscribing. You can follow us on Twitter and other socials @fivefourpod. Happy Pride. We love you very much. Have a nice week.
1:11:31.8 Speaker 5: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support, and our researcher is Jonathan deBruin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.