Speaker 1: And we are back with another edition of the Federalist
Radio Hour. I'm Matt Kittle, Senior Elections correspondent at the
Federalist and your experience ship on today's quest for Knowledge.
As always, you can email the show at radio at
the Federalist dot com, follow us on x at fbr LST,
make sure to subscribe wherever you download your podcast, and
of course to the premium version of our website as well.
Our guest today is John Birsch, director of Appellate Advocacy
for Alliance Defending Freedom. We discuss the upcoming Supreme Court term.
The US Supreme Court term a lot of interesting things
on the way, is expected to take up several hot
button issues, including state bans on the participation by male
athletes insisting they are females on women's and girls sports teams,
voting rights cases coming up, more on religion, our first
Fundamental Freedoms, campaign, finance laws, and the death penalty, among
many others. Before adjourning for their summer recess, the Justices
had granted review of thirty two cases. More to come
certainly in John, thank you so much for joining us
on this edition of the Federalist Radio Hour and giving
us a little insight, a little perspective on what's to come.
Speaker 2: My pleasure. I'm delighted to be here.
Speaker 1: Absolutely. As I said, we say this every term. I
think we've been saying with more insistency and urgency over
the last few years, because there really have been some
remarkable landmark cases. What do you think, in your estimation
is I don't want to say the most important, because
cases vary in importance for different people, for different perspectives,
but as it relates to fundamental principal founding principles, I
should say, what do you think are the most important
cases facing this court in this next term?
Speaker 3: Well, I may be a little biased on this because
I'm going to point to three of ours, two of
which involved the same issue. The first pair of cases
that the Court will hear in January, Heecox and BPJ,
from Idaho and West Virginia, involve state efforts to ensure
that women's sports remain for female athletes, and this is
an issue that has rocked the country over the last
several years, with famously a man who identifies as a
woman participating in and winning an NCAA swimming championship and
beating two former Olympian women swimmers in the process. Twenty
seven state have passed laws similar to the ones that
we have in West Virginia and Idaho, and the Trump
administration has taken that same position. The NCAA and international
I'm sorry, American US Olympic Committee have done the same.
So that's a big one. But there's another one that
I think that's also important culturally and legally, both because
of the breath of the impact that I'll have and
also the free speech implications, and that's Chiles versus Salazar,
which is a case that will be heard in October
on October seventh, involving a Colorado law, which, like twenty
two other states and one hundred local jurisdictions around the country,
says to a professional counselor that if you want to
help a minor become trands, you're welcome to do that.
Speaker 2: You've got our blessing.
Speaker 3: But if the miner and his or her parents want
to grow comfortable with their body and not start down
the process of puberty blockers, cross sex hormones, and surgery,
if the counselor assists in that process, they can lose
their professional license. So I would put my thing an
those cases and then maybe back up one moment too.
And you know you've said that in the last several
terms have been so many big cases. Why is it
do we have such a huge volume of culture defining cases.
Speaker 2: Up at the court right now?
Speaker 3: And that may be because we're not seeing much from
Congress over that period of time. If Congress had simply
legislated the sports issue or made clear that counselors could
have free conversations with their clients without local or state interference,
you know, then maybe we don't end up with these
observed cases where the federal circuits say that that states
can't protect women sports under the Eqal Protection claus or
Title nine. So I think that the more we continue
to see Congress not acting and the only really you know,
legislation put that in quotes that come out of Washington
are from the President's pen and executive orders, the more
contentious litigation will find its way to the Supreme Court.
Speaker 1: You're absolutely right, in my humble opinion, Congress as absolutely
abdicated its responsibility, its duty to legislate, and it has
done so because there isn't a good deal of courage
in Congress. And I don't care what side of the
aisle you are on, and certainly if you are a conservative,
there hasn't been a good deal of courage on the
right side of the isle. And I put this in
contemporary context, in tragic, horrifying context. If members of Congress
on the right had anywhere near the kind of courage
that Turning Point founder Charlie Kirk had, yes, they would
probably face some more threats to their life and property,
but these sorts of things would not have to be
battled out in the court of last resort. What do
you think of.
Speaker 3: That, amen, is what I say to that. I think
that's exactly right. And this really crystallized for me after
the Dobs ruling. You sticking with the Republican conservative side
of the aisle, because that's what you noted. You know,
for years they talked boldly about protecting innocent on more
in life, how the dignity of all life has to
be upheld. But then where did they go when Dobs
came around and all of a sudden there was an
opportunity for legislators at the state level, for people in
Congress to actually do something about that and put their
money where their mouth was.
Speaker 2: They were happy to talk the talk.
Speaker 3: But not walk the walk, and whether it's in the
pro life space, whether it's in the gender ideology space,
whether it's in many many other areas of the law
that we could be talking about.
Speaker 2: It takes courage to stand up and do the right thing.
Speaker 3: But if we want a democracy to flourish and not
watch our country devolve into the rule of one person
and then nine elected justices thumbing up or thumbing down
each executive order, Congress needs to do more.
Speaker 2: There's no question about.
Speaker 1: That, Agris, and I think we know Trump administration. The
President has done the heavy lifting on all of these
different areas.
Speaker 2: Oh oh yes, I mean on this gender ideology.
Speaker 3: As you get right out of the gate declaring with
an executive order that there are only two sexes, male
and female. Well, we shouldn't need an executive order to
establish that. That should be common sense. But to the
extent that that common sense is going to be rejected
by a minority of the country, which it has been,
then Congress needs to step in and act and make
that clear.
Speaker 1: The executive orders. As you well know, as the Supreme
Court knows, the subject to change. Obviously, there were a
lot of members on the left who didn't think Joe
Biden's executive orders should be reversed or removed. But there
are a lot of people on the right in two
thousand and early twenty twenty one who didn't believe that
Donald Trump's executive orders should be reversed or removed. But
that is the reality, and that is the absolute true
power of the executive branch to change executive orders, to
get rid of executive orders, amplify them, or remove them altogether.
That's what we're dealing with. And so the Supreme Court
ultimately has to deal with these sorts of things back
to the Charlie Kirk issue, but just for one moment. Courage,
of course, as I alluded to before, requires people to
stand up during very hostile times. These are indeed very
hostile times. It is clear, and I talked to you
at the Alliance Defending Freedom because you're on the forefront
of this. It is what we have seen and what
we know so far from the assassination of Charlie Kirk
is that he died not only for urging and encouraging
and using First Amendment rights. He died because he was
a Christian who talked about Christian principles. You do a
lot of work in this area, but that's got to
be scary for you.
Speaker 3: Yeah, the whole news of the assassination really hit Alliance
Defending Freedom Herd as an organization because Charlie and Turning
Point USA our clients of ADF We've defended them on
various campuses where campus officials refused to let them speak,
refuse to allow them to have big venues, shutted them
off to small, insignificant venues where fewer students could attend,
demanded exorbitant security fees so that those types of events
can go forward, and even prevented students from forming Turning
Point USA groups because they thought that they were too controversial,
even though other groups on the other side of the
polit spectrum we're freely allowed to not only form, but
take student fee money to put on their programming and
things like that. So we have a very close relationship
with the organization and a lot of what Charlie was doing,
especially in recent years as he leaned into his Christianity
and his faith in Jesus Christ. And that's what we
do at Alliance Defending Freedom. We are not apologetic. We
are a Christian legal organization our mission is to keep
the doors open for the.
Speaker 2: Spread of the Gospel.
Speaker 3: And although we don't typically engage in the type of
debate format that Charlie did.
Speaker 2: If we do a debate, it's usually one.
Speaker 3: On one with a professor or a professional, And when
we do a lot of other speaking to large crowds,
that doesn't involve debate at all.
Speaker 2: Although we're happy to take questions and things like.
Speaker 1: That as well.
Speaker 2: I mean that's right in the.
Speaker 3: Court system too, but even on campuses talking about the
exact same issues that Charlie.
Speaker 2: Is talking about.
Speaker 3: That our bodies are sex male and female. God made
them intentionally. That's something that needs to be respected because
you can't separate the person from the body. We are
integrated bodies and souls. That there's a certain plan for
treating the body, whether that be in the gender identity
context or the sexuality context. Certain things that are good
for human flourishing and certain things that will harm human beings,
and so we talk openly and freely about all those things.
And so we feel like we're in the crosshairs and
so we're looking at more security and things like that,
but at the same time, we're not going to stop
speaking those messages that Charlie was speaking, because it's too
important to the people in the United States, both individually
and collectively, to hear the truth on the most important.
Speaker 2: Cultural issues of the day.
Speaker 3: And so we'll boldly walk into the wind, and we'll
lean on our faith in Jesus Christ and continue doing
that work.
Speaker 1: Ay Man, God bless you for that very important mission.
I want to ask you about Alliance Defending Freedom. I've
written a lot of late First Amendment issues. Now we
take for granted the First Amendment because we know countries
around the world don't have a First Amendment. Western nations
have freedom of speech built into their constitutions or laws.
But we've seen this, particularly from Alliance Defending Freedom International.
You have been on the front lines of the battle
closing down free speech in places like the United Kingdom,
where it is getting egregious. Now heard, that is what
we've heard from the left over the last several days is, oh,
my goodness, teachers are being teachers, and airline pilots and
even a member of the US Secret Service. Their First
Amendment rights are being closed down. They're being cut off
because simply because they cheered on the assassination of a
conservative leader on their Facebook page or their Instagram page,
whatever social media they're using. What did you think about
that argument that they're trying to make an essence, as
I see it, they're trying to make the argument that
cheering on assassination, political assassination murder equates to free speech
and there shouldn't be any consequences in their lives, particularly
on the employment side.
Speaker 3: Well, I think it's pretty rich that they're making this
argument after ten years since Obergefel was decided back in
twenty fifteen. Anytime that any Christian or Conservative talked in
a loving way about God's plan for marriage and about
the human body and how those teachings lead to human flourishing,
they've been shouted down and told that that was hate
speech and that they had no place in the public square,
no matter how lovingly those messages were expressed, including many
of the messages that Charlie Kirk expressed on campuses. And
now here they are cheering on and actually inciting violence,
which we know is not First Amendment protected, and now
they're claiming that they're the ones whose First Amendment rights
are being violated. I just think that's rich and hypocritical.
I think anybody should be free to speak their views
in a nonviolent way, and that's certainly the goal that
we pursue.
Speaker 2: It's what we protect in the courts.
Speaker 3: That anybody is free to it to speak their views.
And I will protect the right of anyone to say
whatever they want, even if I disagree with it. If
they do it in a civil way, that's actually constructive
to dialogue. But when you're inciting and celebrating violence, you've
crossed a line. No one should be allowed to do that,
And if there are consequences when people engage in that
type of bad behavior, then those are consequences that they
should be ready to accept.
Speaker 1: What do you think about the media's role in say
to say that, corporate media in general. It's been headline
after headline in the Washington Post, the New York Times,
the Guardian, the leftist news organization in the aforementioned United Kingdom.
They're painting this narrative that free speech is somehow being
quashed through these disciplinary actions and firings of people who
are once again praising and celebrating the assassination of a
thirty one year old conservative civil rights leader.
Speaker 3: Well, I think we need to recognize that those corporate
media organizations are in the pocket of the progressive left,
and they have been for a long time. And when
Charlie was alive, and he would speak the truth about
the human body, for example, saying that you can't change
your sex as man or woman, that that's a gift
that should be embraced, and that the medical science around
the world demonstrates that encouraging some one to try to
change their body to align with how they feel instead
of to adjust their feelings with the reality of their
body is harmful to them and that the medical consequences
can be catastrophic. So for years the media said, well,
that was hate speech, that that speech itself was violent
and it must be shut down. And now that he's
been assassinated and people are celebrating that they're upset. The
media are upset when people are castigating those who are
celebrating and cheering on assassination. So I don't think we
can take those media outlets seriously because they take inconsistent
positions and they always cheer for the same side.
Speaker 2: If they took a pre.
Speaker 3: England where people are being arrested not even for speaking
out loud, but for simply praying silently on public sidewalks
outside pregnancy, I'm sorry, outside of abortion clinics, like some
of ADF's clients. That tells you everything you need to
know about the state of free speech in the UK
and the fact that the media doesn't see anything.
Speaker 2: Wrong with that.
Speaker 3: It tells you how perverted their morals have gotten over
the years, and that they're no longer institutions that can
be trusted. That's why podcasts and websites and blogs and
substacks and other things that speak the truth on these
issues have become so popular and mainstream media has fallen
out of such disfavor. They can't be trusted to just
be journalists.
Speaker 4: Are young people really going into debt to impress?
Speaker 5: The watch Dot on Wall Street podcast with Chris Markowski
every day Chris helps unpack the connection between politics and
the economy and how it affects your wallet.
Speaker 4: Apparently the ticket to attention for young people is going
into debt to impress others by things like clothes and
shoes two and five gen zers admid to going into
debt to impress. That'll get you into some trouble.
Speaker 2: Whether it's happening in DC or down on Wall Street.
It's affecting you financially.
Speaker 5: Be informed. Check out the watch Dot on Wall Street
podcast with Chris Markowski on Apple, Spotify, or wherever you
get your podcasts.
Speaker 1: I think you're absolutely right. I wish only wish that
people voters would remember that fact. I think more of
them are paying more attention today than they ever did.
So many simply are not. They're getting their information from
these sources, media outlets, as you say, in the pockets
of the leftist movement, the Democratic Party in this country.
Our guest today is John Birch, director of appellate Advocacy
for Alliance Defending Freedom. ADF has a number of cases,
very important cases coming up as we talk about the
upcoming term of the Supreme Court of the United States.
Let's drill into West Virginia versus. The official case name
is West Virginia versus bp J. Is that correct?
Speaker 2: That is correct?
Speaker 3: And then the companion case in Idaho is Little versus
Heacock's that's right.
Speaker 1: And really what this comes down to is a case
that involves a fourteen year old. Again, let's put this
in perspective, a teenager who has had begun to receive
puberty blockers and hormone therapy and all of the usual
mutilation of the teenage body sort of stuff that is
being practiced in the name of healthy medicine and science.
That individual is seeking to be able to compete on
a girls' sports team or girls sports teams at the
middle school level. The US Court of Appeals for the
Fourth Circuit ruled, I believe it was last year that
West Virginia's ban violates Title nine, and that ban in
West Virginia is a ban on males participating in email sports.
Title nine, of course, a federal law prohibiting sex discrimination
and educational programs and activities that receive federal funding. Because
the argument from those on the trans movement side is
that it discriminates against the student based on sex. Americans
are clearly on the side of no, we don't want men,
we don't want boys participating in women's and girls' sports,
and West Virginia passed a law on this. Where do
you see this case ultimately going. You'll be making your
arguments soon.
Speaker 2: Yeah, the pair of cases will be heard in January.
Speaker 3: And just to be perfectly clear about this, the Heacocks
case involves very similar issues involving the equal protection clause.
Idaho has a nearly identical law on Idaho and West
Virginia are two of twenty seven states that passed versions
of Alliance Defending Freedom's Model Save Women's Sports bill. But
in the Idaho case, it's a male athlete who is
already in college, well passed puberty, never took puberty blocking drugs.
And the ACLU is pushing both of these cases. And
so you might see in some of the media reports, oh,
you know, this is just about pre puberty students who
want to compete in middle school and what's best for them.
Well that's not the case at all. The ACLU wants
nothing less than to totally revolutionize sports so that any
boy or man, no matter what age they are, has
the ability to opt in to women's sports. And all
you have to do is look at the fourth Circuit
and ninth Circuits reasoning to see just how any common
sense kind of falls away from these things. As you mentioned,
Title nine has been in place for about half a century,
and we all understand that its express purpose was to
create more opportunities for women in sports. It was to
allow for women only sports teams so that females would
not have to compete against males who, on average are
generally bigger, stronger, faster, more agile, you know, et cetera.
It's not a fair competition. Everybody knows that. And so
what the Fourth Circuit said in BPJ is that preserving
women's sports for females is actually sex discrimination under Title nine.
Because BPJ, although his you know, this is the Fourth
Circuits words, his sex was assigned male at birth, has
now taken puberty blockers and cross sex hormones and so
functionally that that makes him athletically comparable to a female athlete,
and it's sex discrimination to treat a trans woman differently.
Speaker 2: Than as cis woman.
Speaker 3: That's just a complete turning of Title nine on its head,
because you go from protecting women and making sure that
only female are participating in women's sports to allowing any
male who can show that they're comparable in some way.
And the ruling wouldn't be limited to someone who is
on puberty blockers. What if they were taking another medication
that slightly diminished their athletic abilities. What if they were
a boy who was less athletically gifted on average.
Speaker 2: Than other boys.
Speaker 3: You know, there's a million reasons why you could say
that any individual boy might have some comparability to a girl,
but that still doesn't make them female.
Speaker 2: And so in the.
Speaker 1: Foot that's all, that's all part of the false equivalency
on the left with this issue in many others, is
it not?
Speaker 2: It is absolutely that's the false equivalency.
Speaker 3: And so the bottom line of the Fourth Circuit ruling
is that in the Fourth Circuit you can only assign
sports teams based on someone's self professed gender identity, they're hipwith,
and their fat distribution. And you can imagine how many
girls are going to be excited about showing up for
basketball tryouts and being asked for their hit measurements and
where their.
Speaker 2: Fat is distributed.
Speaker 1: Lordy.
Speaker 3: But the Fourth Circuit says that's what Title nine requires,
not just that a state can do that, but a
state must do that. They can't have a women's team
that's reserved solely for female athletes. And the Ninth Circuit
decision in Heacocks is just as bizarre.
Speaker 1: There.
Speaker 2: They say it's all.
Speaker 3: About circulating testosterone, and of course even people who suppress
their testosterone very frequently aren't able to do it. Three
quarters of them won't be able to diminish their testosterone
very much. Of the males you try to do that,
a quarter of them won't be able to do it
at all. And even when circulating testosterone is suppressed after puberty,
the male advantages from going through puberty, stronger bones, taller,
you know, different kinds of muscles and things like that,
those all prevail. The Ninth Circuit says that the Equal
Protection I'm sorry, yeah, the Eco Protection Clause, enacted in
eighteen sixty eight, requires schools to assign teams based on
circulating testosterone instead of sex.
Speaker 1: Well, yeah, I know that. The post Civil War Congress,
what they were most concerned about was the version and
trans movement of eighteen sixty seven, and they saw that
as the pressling civil rights movement of their time.
Speaker 2: Yeah, exactly, of course, I jest.
Speaker 1: But that's the ridiculousness of the ninth and fourth that
you're talking about here.
Speaker 2: Right exactly.
Speaker 3: And then one last practical point that I want to
make about BPJ, because he is now a high school freshman,
and you know, the contention from the beginning again was
that well, because he was on puberty blockers and then
later cross sex hormones, somehow that makes him comparable to
the female athletes, and so he should be able to
compete as a girl or as a woman. Well, the
reality was that even through middle school, BPJ, even while
on puberty blockers, had a male body that was starting
to grow and develop that pushed his athletic abilities much
faster than any of the other girls. And so in
these field events, like the throwing events, where strength is
really important, he quickly displaced teammates. And so you know,
there was one female teammate and she was supposed to
go to the conference meet, but she was knocked out
of her spot because BPJ, a boy, took it instead,
and he displaced hundreds of girls in competitions, and as
a freshman in high school finished top three in the
state in these field events, even though he was competing
against much older girls seniors and juniors in high school,
and beat many many others. And so you go back
and you look at the science, and it's clear that
even pre puberty boys have a modest advantage over girls
when it comes to these various athletic traits, and having
puberty blockers or suppressing testosterone does not fully compensate for
the differences between male and female bodies.
Speaker 2: It just doesn't.
Speaker 3: And tragically, on top of all this, that same teammate,
her initials are AC, who in middle school was displaced
from a state or a conference opportunity to participate by BPJ,
has also been sexually harassed by BPJ in some of
the most despicable words that you can imagine in middle
school are ever saying something that I will not repeat
here on this podcast. And so to suggest that somehow
Title nine requires all this, the diminuition, the exclusion, the
displacement of women and girls in sports is ludicrous.
Speaker 1: And again, how is that equality? Which is a movement,
of course, that had its roots other than the Marxist
trying to glom onto it for political empower uses. Equality
had its roots in you know, Christian principles, in Judeo
Christian faith. How is that equality? It is absolutely the
left's version, perverse version of equity, that's for sure. But
I remember taking all kinds of heat for writing an
investigative piece. This was years ago, about some women who
were involved in the sort of mountain biking, off road
racing on mountain bicycles, and all of a sudden they
were experiencing trans people men who you know, thought they
were women allowed to compete in their sports. And in
one particular incident, you had a man who is masquerading
as a woman in this sport who all of a sudden,
who you know, who competed toward the back of success
on the male side of things, was on the podium
in the women's side of things, and they were under
the women who were competing that the real women who
were competing this, we were understandably upset. So I looked
into this, investigated it was a real problem, and I
just kept hearing from people, well, that's you know, that's
a big that's transphobic, and all of these sorts of things.
But the America can people have watched this, They've watched
this on their own children's teams over and over again.
This is an eighty twenty issue which has nothing. Ultimately,
I shouldn't say nothing, but an popular issue doesn't impact
the law. The law is the law, and that's what
you're arguing here is the law is on the side
of West Virginia and Idaho.
Speaker 3: Law correct absolutely, and it recognizes the common sense principle
that states under Title nin and the Equal Protection Clause.
Speaker 2: Have the ability to preserve.
Speaker 3: Fairness and competition as well as safety in women's sports
for female athletes alone. And you mentioned that the off
road biking. You can give example after example of this.
I'm just looking now at the opening brief that we
just filed on Friday.
Speaker 2: In the Heacock's case.
Speaker 3: In Washington State, a male high school track athlete who
identify as a girl went back to back state titles
in the four hundred meter dash. In Oregon, a male
high school athlete who identified as a girl took first
place in the two hundred meter and four hundred meter
races at the Portland Interscholastic League Championship, eight seconds ahead
of female competitors in the four hundred meters. In New Hampshire,
a male high school track athlete who identified as a
girl won two state high jump championships and a state
championship for girls indoor track. In Canada, there's a male
high school triple jump participant who identified as a girl
won the Ontario Relays invitation by eight feet over the
female competitors. And I can go on and on and
on with these examples. What they show is exactly what
common sense would predict that when you allow people to
participate in athletics based on their self professed subjective identity
rather than limiting them to male and female teams based
on sex. The girls are going to lose.
Speaker 2: All the time.
Speaker 1: Yeah, and that should be again self evident, as our
rights should be self evident. But they are perpetually under
threat as we have seen this again. This is a
big case that we're talking about, but it's certainly not
the only case that you in particular are dealing with.
It's going to be a very robust docket coming up,
but you know, you're dealing with, you know, all kinds
of issues, particularly faith issues. Let's talk a little bit
more about that. And not to say that this whole
you know battle in West Virginia and Idaho aren't involved
in faith issues, but oh sure there are there are
some some you know, faith issues on the line once
again this session.
Speaker 2: Yeah, so let's talk about Kayleie Child.
Speaker 3: She's the counselor in Colorado who brought the reinforcement lawsuit
to challenge the counseling censorship that's happening in Colorado and
so many other states. And her counseling is motivated by
her Christian beliefs and she wants to help clients who
predominantly are a Christian because they seek her out precisely
because she provides the counseling that they want, which is
going to be based in biblical principles and what God's
plan is for flourishing of the human body. And the
sad reality is that in Colorado and these many other
states and local jurisdictions, if you have a young person
and they've transitioned to another gender and now they want
to de transition, they cannot get professional help to make
that change because counselors will lose their professional license. If
you have a minor child who's experiencing genderdice for you
and they desperately want to get comfortable with their body
rather than pursue medical intervention, which again the science overwhelmingly
supports that that's the best way to do it is
to have counseling and change the mind and the feelings,
not to change the body they in their parents can't
go to a counselor and get that counseling because the
councilor could lose their license. It's just an abomination and
it's so one sided.
Speaker 1: Yeah, it definitely is. And as you say it, is
a battle in Colorado which over the family members who
will tell you that over the last couple of decades
plus it has gone from at the very least a
libertarian state into a far leftist bash you although people
are fighting back, but this isn't just Colorado. This is
happening in states and local jurisdictions all over the country.
So ultimately, if you folks win this case, this isn't
just a matter for Colorado, correct, this is a matter.
Speaker 3: Yeah, this will change twenty three states and one hundred
local jurisdictions policies overnight, and it will also re establish
an important free speech principle that no matter the context,
you know, even in a context like this one where
it involves counseling, the government is not allowed to step
in and in not only content based but viewpoint based
ways insist that only its viewpoint can be expressed to
the exclusion of all others. Just to use an example
that the left should appreciate, you could have had the
same dialogue thirty years ago if states had prohibited counselors
from talking to minors about having same sex attractions and
having same sex relationships, those could have been banned. Well,
we don't allow professionals to have their free speech impacted
that way by government officials, because these are private, voluntary,
free conversations that are happening between these counseling patients and
their counselors with their parents' permission and approval and blessing.
Speaker 2: And the last thing we want.
Speaker 3: Are government bureaucrats picking their sides of any particular issue
and putting themselves in that same room and saying, Nope,
you can't say that. Nope, you can't say that. Oh
you can say that, I like that, say more of that. Oh, Nope,
you can't say that. That's exactly what Colorado and these
other states are doing when they try to enforce these
counseling censorship laws.
Speaker 1: How does the left and the government square what you
just said, You could not do this on the other
side of this issue, if you will, You could not
block a counselor from talking to someone about his or
her homosexuality or whatever the case may be. How do
they square this on the other side.
Speaker 2: They have not squared that point. The primary.
Speaker 3: Move that they've made is to say, look, this is
part of medical treatment, medical practice. States get to heavily
regulate medical practice. Look at what the Supreme Court just
said last term in Scremetti, and this type of counseling
is dangerous and therefore we want to prohibit it. They
call it conversion therapy, which is to scare people into
thinking about, you know, shock treatment and other things that
may have happened decades ago when someone was trying to
avoid same sex attractions that no one anywhere is advocating for.
And it's not happening anywhere that I'm aware of in
the United States. If that was happening, I'm sure they
would be pointing to it. But even on the science,
they're absolutely wrong on this. The studies show that anywhere
between eighty to ninety five percent of young people who
experience gender dysphor you will naturally desist if they're not
affirmed in their gender identity. And to say that that
eighty five to ninety or eighty to ninety five percent
of the minor population shouldn't be allowed to get counseling
to help them achieve that very positive outcome that they
can live comfortably with their bodies, that they won't have
to have surgery, that they won't be on drugs the
rest of their life, that they won't lose their fertility,
that they won't lose their capacity to engage in sexual relations,
that they can't even get that unseling is just a
horrible message to send to parents and kids, to families everywhere.
And then, you know what we know from the science
that was presented in SCURMETI. We know that the long
term outcomes for the kids who end up on these
drugs and have the surgeries are not good, that they're
not helping people. And yet in Colorado and these other states,
it's only a one way road. You have to be
trans you can't get comfortable with your body, and we're
not going to allow any counselor to try to encourage
you to do that.
Speaker 1: That's not only illegal, it's immoral. I mean sad.
Speaker 3: Yes, yeah, it shows a total lack of compassion for
families who are absolutely suffering from this difficult issue. You know,
there are a lot of reasons that the rate of
depression and anxiety among our young people has skyrocketed. The
way that the government handled COVID is a big part
of that. All the school shootings and things like the
Charlie kirkist that's part of it. The demise of churches
and families is all a part of that, but certainly
the government stepping in and constantly driving families towards solutions
that harm them instead of help them, that force kids
to be trans that force you know, the abortion issue,
on students in schools even without parental permission, These secret
transition cases where public school officials are socially transitioning kids
at school without their parents consenting to that or even
being made aware of it, often keeping it hidden from them.
These are all things that are just absolutely killing our kids.
And you know, to say that it's immoral is one
hundred percent true, but really isn't even a strong enough
word to describe how diabolical these types of laws and
policies are.
Speaker 1: What does the Court's decision in Scurmeti portend for these
cases we're talking about.
Speaker 3: I think it portends well for all three of these
cases that we've been focused on. In the case of
the athletes, the key point there is just because a
law talks about something in terms of sex, which was
necessary in the Billin Scrimmetti, is necessary in these save
women's sports bills, doesn't mean that it's sex discrimination. That
you can make distinctions based on biology, which is what
the Scrimetti bill did. It's what the bills in Idaho
and West Virginia do that don't even require heightened scrutiny
as a sex differentiator. You keep in mind that BPJ
and Hcock's the plainff athletes in both those cases, they're
not actually seeking the end of sports teams assigned based
on sex. They don't want to eliminate boys and girls teams.
What they want to do is redefine what female or
women's sports means by including certain boys.
Speaker 2: Who fit their character.
Speaker 3: And if you follow the Scrimeti template, that's the kind
of regulation that should receive rational basis review, not even
heightened scrutiny, much less strict scrutiny, and so then the
law easily passes. In the case of Kayley, the Scurmeti
decision doesn't have as direct an impact because, after all,
this is a free speech case, not an equal protection case.
But the science that was presented by Tennessee and Alabama,
and it's ANIKI brief, and many of the doctors and
MEIKI briefs, it was so compelling about the need for
this type of counseling, about the benefits that it can
provide to young people about the dangers of encouraging child
to transition and then take drugs and then have the
surgery that I think the optics around the free speech
issue look even stronger. And it's notable that Colorado and
coming forward with its best evidence, has not been able
to point to a single study, not one that merely
talking to a counselor about these issues as a minor
causes any harm.
Speaker 1: Final question for you as it relates to all of this,
and I ask this in the context of Charlie Kirk.
I asked this in the context of the threats against
Justice Kavanaugh and others. Are you concerned that another term
brings the potential for more violence against Supreme Corps members,
particularly conservatives who hold the majority.
Speaker 2: Now, yeah, of course I'm concerned about that.
Speaker 3: You know, all we have to do is look at
the last twenty four months or so of these types
of events taking place, and I think it's easy to
predict that there could be more attempts, whether that's on justices,
on lawyers, on public advocates like Charlie, on the president,
on members of Congress, you know, And that's what's scary
because when violence rears its head like that. In a
free culture like ours, where you can be punished simply
for expressing ideas or being on the wrong side of
a political or legal question, the natural thing for people
to do is to be fearful and get out of
the public square.
Speaker 2: And I will not blame a single person who does that.
Speaker 3: You know, Anybody who's married, has children, has grandchildren like
I do, should take seriously their safety because they've got
commitments to their family and God wants them to keep those.
At the same time, if all people of goodwill, with
truthful messages that will help our culture and individuals flourish,
step out of the public square and stop advocating because
of fear, then things will get much worse and much
more quickly than if they stay in the fight. And
so I hope people do that. And you know, as
another example of that, I'm going to point to another
adf case that we've got coming up just very quickly,
first Choice, and this involves network of pregnancy resource centers
in New Jersey who are being persecuted by the New
Jersey Attorney General, you know, and this is a perfect
example of an organization. A CEO who stood up in
the face of all kinds of threats. We know pregnancy
resource centers are being firebombed and graffitied and attacked all
across the country, and she had the courage to stand
up to the Attorney General who has the temerity to
demand all of their top donors and their contact information,
which we know is unconstitutional under Americans for Prosperity.
Speaker 1: We know that's unconstitutional as well from what the ku
Klux Klan was doing to the black civil rights movement
in this world.
Speaker 2: Exactly.
Speaker 3: Yeah, AAFP built on the NAACP case. So he's demanding
these under the pretense that people who give to pro
life pregnancy centers may have been fooled into thinking that
they provided abortions when they really don't.
Speaker 2: No one thinks that.
Speaker 3: And his goal has been to keep this matter in
state court. And why would he care about that? Well,
because in New Jersey, like in some states, all of
the judges, the state court judges in New Jersey are
appointed by the pro choice governor's supported by the pro
choice Attorney General in advancing this persecution against pregnancy centers.
The Attorney General openly admitted that he's collaborating with Planned
Parenthood to affect this. So the whole Supreme Court battle
there is whether the federal courts should be deciding the
constitutional rights of the pregnancy centers vis a vis these
investigative subpoenas that have been served for all their donor
information and lots of other documents and nonsense. And the
federal courts below lacked courage to say, yes, these are
federal constitutional issues.
Speaker 2: They're ripe. There's clearly standing.
Speaker 3: This is not an issue where the danger is unpredictable
and far off in the future. It's imminent, it's present,
it's happening right now. They've already chilled their speech, but
they didn't have the courage to say, no, we're going
to take this issue and we're going to apply cases
like the NAACP and Americans for Prosperity to save these
ignancy resource centers from this persecution.
Speaker 2: We're just going to let it work out in the
state courts and then.
Speaker 3: Maybe we'll see if there's anything left at the end
of it that's not covered by race Jutakata.
Speaker 2: You know, just.
Speaker 3: In miniature, it shows the political persecution, It shows the
courage and conviction of someone standing up, and it shows
how the legal system is being twisted to try to
obtain outcomes that clearly violate the Constitution.
Speaker 1: Well beyond all of that, I hope that New Jersey
voters have the courage to release the new Jersey Attorney
General from the job. You would certainly hope, So I
hope voters do that up and down the line, for
a lot of elected officials in that state, vote them
out of office. That that is the kind of courage
I want to see across this country. We shall see.
The midterms will be here before you know it. But
we know this by the history of this exceptional republic.
Defining times or very often dangerous times, and these are
the times in which we live. Thanks to my guest today,
John Birsch, director of Appellate Advocacy for Alliance Defending Freedom,
you've been listening to another edition of the Federalist Radio Hour.
I'm Matt Kittle, Senior Elections correspondent at the Federalist. We'll
be back soon with more. Until then, stay, lovers of
freedom and anxious for the frame.
Speaker 2: Heard the famevoice a reason they