1 00:00:18,160 --> 00:00:21,480 Speaker 1: And we are back with another edition of the Federalist 2 00:00:21,600 --> 00:00:25,359 Radio Hour. I'm Matt Kittle, Senior Elections correspondent at The 3 00:00:25,359 --> 00:00:30,199 Federalist and your experienced Shirpa on today's quest for Knowledge. 4 00:00:30,640 --> 00:00:33,880 As always, you can email the show at radio at 5 00:00:33,920 --> 00:00:38,359 the Federalist dot com, follow us on exit FDR LST. 6 00:00:38,960 --> 00:00:41,600 Make sure to subscribe wherever you download your podcast, and 7 00:00:41,840 --> 00:00:45,359 of course the premium version of our website as well. 8 00:00:45,960 --> 00:00:50,200 Our guest today is Sarah Parshall Perry, Vice president and 9 00:00:50,520 --> 00:00:59,439 legal fellow at Defending Education Little Vheacocks and West Virginia v. BPJ. 10 00:01:01,799 --> 00:01:05,319 He's two Supreme Court cases. If you're not familiar, they 11 00:01:05,359 --> 00:01:10,599 have major implications for women's and girls' sports, whether schools 12 00:01:10,640 --> 00:01:15,879 must allow male athletes to compete on girls teams. The 13 00:01:15,920 --> 00:01:20,480 Supreme Court heard oral arguments on both last week, and 14 00:01:21,359 --> 00:01:25,680 Sarah has a good deal of expertise on this front. 15 00:01:26,079 --> 00:01:28,040 Thank you so much for joining us on this edition 16 00:01:28,079 --> 00:01:29,200 of the Federalist Radio Hour. 17 00:01:29,799 --> 00:01:30,920 Speaker 2: Thanks for having me, Matt. 18 00:01:31,519 --> 00:01:37,079 Speaker 1: You bet remarkable times these and remarkable oral arguments. Let 19 00:01:37,159 --> 00:01:42,319 us begin here with the absolute insanity of what I 20 00:01:42,400 --> 00:01:45,200 like to call the Lola Camp. You remember the Kinks 21 00:01:45,480 --> 00:01:49,079 song Lola, the girls can be boys and boys can 22 00:01:49,159 --> 00:01:53,359 be girls. Side it is. It is indeed a mixed up, 23 00:01:53,439 --> 00:01:57,200 muddled up, shook up world. Supreme Court Justice Samuel Alito 24 00:01:57,959 --> 00:02:01,879 grilled an attorney representing a biological male athlete in the 25 00:02:01,920 --> 00:02:07,000 case of Little v. Peacock's on Tuesday about the definitions 26 00:02:07,120 --> 00:02:10,599 of a woman and girl. This is from Fox News 27 00:02:11,240 --> 00:02:16,479 Alito and Kathleen Heartnet, who is arguing on behalf of 28 00:02:16,520 --> 00:02:21,000 the Idaho student in the Supreme Court case what it 29 00:02:21,120 --> 00:02:23,759 meant to be a boy or a girl, or a 30 00:02:23,800 --> 00:02:27,680 man or a woman when it came to equal protection purposes. 31 00:02:28,759 --> 00:02:35,319 Heartnett said, we don't have a definition, and here we 32 00:02:35,360 --> 00:02:39,400 are against Sarah. We have seen this over and over 33 00:02:39,439 --> 00:02:43,400 and over again. The follow the science folks can't come 34 00:02:43,479 --> 00:02:48,479 up with a definition for a woman. And that is, again, 35 00:02:49,199 --> 00:02:52,719 to my estimation, the underlying insanity of all of this. 36 00:02:54,159 --> 00:02:57,080 Speaker 3: Yeah, I think that indicates exactly where we are culturally. 37 00:02:57,120 --> 00:02:59,520 In fact, the fact that these questions have to go 38 00:02:59,560 --> 00:03:01,840 all the way to the Supreme Court, the highest court 39 00:03:01,879 --> 00:03:05,439 in the land, for resolution, indicates how far we have 40 00:03:05,520 --> 00:03:09,560 strayed from the notion of biological reality and also from 41 00:03:09,840 --> 00:03:15,680 pure textualist application of longstanding federal civil rights law, because remember, 42 00:03:15,719 --> 00:03:19,400 we're not just talking about constitutional challenges here a violation 43 00:03:19,680 --> 00:03:24,080 of the Fourteenth Amendment's Equal Protection clause, but we're also 44 00:03:24,240 --> 00:03:27,560 talking about the implication of Title nine of the Education 45 00:03:27,680 --> 00:03:31,360 Amendments of nineteen seventy two, which has for a long 46 00:03:31,439 --> 00:03:35,919 time acted as a bulwark against sex discrimination in federally 47 00:03:35,960 --> 00:03:39,800 funded education programs and was considered by many to be 48 00:03:39,840 --> 00:03:43,800 the crowning achievement of the women's liberation movement. In fact, 49 00:03:43,840 --> 00:03:47,719 it was a federal court decision coming out of Connecticut 50 00:03:47,800 --> 00:03:49,840 in which a young woman by the name of Susan 51 00:03:50,000 --> 00:03:54,120 Hollander sued her Connecticut high school for failing to offer 52 00:03:54,759 --> 00:03:57,879 a girls track team and preventing her from running with 53 00:03:57,960 --> 00:04:02,599 the boys. But in a i'm dismissal of her litigation 54 00:04:02,759 --> 00:04:06,599 in nineteen seventy one, a federal judge actually wrote the 55 00:04:06,639 --> 00:04:11,520 now infamous term that we need athletic character in our boys, 56 00:04:11,639 --> 00:04:14,719 we don't need that athletic character in our girls. So 57 00:04:14,759 --> 00:04:17,839 it was that kind of sort of outdated sensibility that 58 00:04:18,040 --> 00:04:22,720 motivated the quest for educational quality. But as some have said, 59 00:04:23,160 --> 00:04:26,600 everything old is new again, and biological girls of women 60 00:04:26,759 --> 00:04:30,839 find themselves on the upside down of this argument, trying 61 00:04:30,879 --> 00:04:34,399 to fight for the spaces that their grandmothers had already secured. 62 00:04:35,000 --> 00:04:36,639 Speaker 1: Yeah, we're going to play a little of the audio 63 00:04:36,680 --> 00:04:42,000 here from the questioning, and Justice Alito, per usual, is 64 00:04:42,399 --> 00:04:48,120 right on track and pretty poignant in his questions. 65 00:04:49,040 --> 00:04:52,480 Speaker 4: Is it not necessary for there to be for equal 66 00:04:52,480 --> 00:04:56,079 protection purposes if that is challenged under the equal protection clause? 67 00:04:57,160 --> 00:04:59,439 An understanding of what it means to be a boy 68 00:04:59,519 --> 00:05:02,879 or a girl, or a man or a woman? Yes, sure, hotter, 69 00:05:02,959 --> 00:05:06,360 And what is that definition for equal protection purposes? What 70 00:05:06,399 --> 00:05:08,959 does what does it mean to be a lawy or 71 00:05:09,000 --> 00:05:10,600 a girl, or a man or a woman? 72 00:05:10,839 --> 00:05:12,120 Speaker 2: Sorry, I have a centers to your question. 73 00:05:12,160 --> 00:05:14,959 Speaker 5: I think that the underlying enactment, whatever it was, the policy, 74 00:05:15,040 --> 00:05:16,959 the law the would have, we'd have to have an 75 00:05:17,040 --> 00:05:20,920 understanding of how the state or the government was understanding 76 00:05:20,920 --> 00:05:23,319 that term to figure out whether or not someone was excluded. 77 00:05:23,600 --> 00:05:25,759 We do not have a definition for the court, and 78 00:05:25,839 --> 00:05:28,360 we don't take issue with the We're not disputing the 79 00:05:28,399 --> 00:05:30,600 definition here. What we're saying is that the way it 80 00:05:30,639 --> 00:05:34,519 applies in practice is to exclude birth sex males categorically 81 00:05:34,560 --> 00:05:36,439 from women's teams and that there's a subset of those 82 00:05:36,480 --> 00:05:39,000 birth sex males where it doesn't make sense to do so. 83 00:05:39,519 --> 00:05:41,160 Speaker 2: According to the state's own interest. 84 00:05:41,439 --> 00:05:45,079 Speaker 4: Well, how can you How can a court determine whether 85 00:05:45,120 --> 00:05:49,120 there's a discrimination on the basis of sex without knowing 86 00:05:49,160 --> 00:05:50,120 what sex means? 87 00:05:50,639 --> 00:05:52,079 Speaker 1: For equal protection purposes? 88 00:05:53,360 --> 00:05:55,680 Speaker 5: I think here we just know that we basically know 89 00:05:55,800 --> 00:06:00,120 that the that they've identified pursuing into their own statute. 90 00:06:00,399 --> 00:06:07,680 Speaker 1: What did you think of Justice Alito's frustration through all 91 00:06:07,720 --> 00:06:10,920 of this, And to me it's quite understandable. 92 00:06:11,680 --> 00:06:14,560 Speaker 3: Oh, absolutely, And in fact he is I think one 93 00:06:14,600 --> 00:06:17,800 of my emerging favorite justices because in a lot of 94 00:06:17,839 --> 00:06:21,959 the cases that concern these hot button political questions, and 95 00:06:22,199 --> 00:06:26,519 especially so when there are implications of gender identity, something 96 00:06:26,560 --> 00:06:29,360 we've seen not only in these a pair of cases, 97 00:06:29,720 --> 00:06:32,240 but in the childs versus sala Is Our case earlier 98 00:06:32,319 --> 00:06:37,279 this term, and also in last terms my Mood versus Taylor, 99 00:06:37,800 --> 00:06:41,120 and the US versus Screamtti cases. It is usually Alito 100 00:06:41,160 --> 00:06:46,199 who comes out and says the obvious thing, which is what. 101 00:06:46,040 --> 00:06:47,519 Speaker 2: Does sex mean? Now? 102 00:06:47,560 --> 00:06:50,000 Speaker 3: The fact that he's sitting and very senior, I might 103 00:06:50,040 --> 00:06:54,639 add Supreme Court justice has to ask these questions indicates 104 00:06:54,879 --> 00:06:58,120 how creative some of the litigators have been in trying 105 00:06:58,199 --> 00:07:01,439 to skate the elephant in the room, and that is 106 00:07:01,480 --> 00:07:04,759 what is the nature of biological sex? And on that 107 00:07:04,879 --> 00:07:09,160 colloquy with Kathleen Hartnett, who was representing one of the 108 00:07:09,199 --> 00:07:12,959 transgender athletes, pressing her on the notion of biological sex, 109 00:07:13,040 --> 00:07:16,639 she said, we do not have a definition for the court, 110 00:07:16,759 --> 00:07:18,800 but then said, we're not asking the court. 111 00:07:18,600 --> 00:07:19,360 Speaker 2: To define it. 112 00:07:19,439 --> 00:07:23,079 Speaker 3: We're only asking the court to determine whether, based on 113 00:07:23,199 --> 00:07:28,000 that classification, this individual has been discriminated against. And so 114 00:07:28,680 --> 00:07:32,319 as he asked, exactly the same thing I would, which is, 115 00:07:32,800 --> 00:07:36,240 how can we tell if an individual has been discriminated 116 00:07:36,279 --> 00:07:40,639 against based on this classification? If you can out identify 117 00:07:41,079 --> 00:07:44,399 the classification, that was for me, I think the real 118 00:07:44,519 --> 00:07:45,959 shot across the bow moment. 119 00:07:46,519 --> 00:07:48,360 Speaker 1: It makes you want to pull your hair out as 120 00:07:48,360 --> 00:07:53,199 someone who applies reason to absolutely or at least attempts 121 00:07:53,199 --> 00:07:58,079 to do so. Yeah, it is amazing. But that's how 122 00:07:58,120 --> 00:08:03,199 this argument continues. It's it's a circular firing squad of 123 00:08:03,279 --> 00:08:06,040 an argument and it never gets to it. And that's 124 00:08:06,199 --> 00:08:09,560 obviously the frustration of justice. Alito, Let's let's come, let's 125 00:08:09,560 --> 00:08:15,279 cut through this nonsense now where watching the oral arguments, 126 00:08:16,839 --> 00:08:21,920 there were I think signs from from these oral arguments 127 00:08:21,959 --> 00:08:25,160 that both sides on this issue could grab and say, oh, 128 00:08:25,160 --> 00:08:27,839 well look here they're you know, they're they're talking about, 129 00:08:28,079 --> 00:08:32,879 uh possibility for victory for our side. What did you 130 00:08:33,240 --> 00:08:36,960 What was the ultimate takeaway for you from these these 131 00:08:37,080 --> 00:08:40,639 oral arguments in terms of where this Court may be 132 00:08:41,080 --> 00:08:42,679 standing with this issue. 133 00:08:43,440 --> 00:08:46,559 Speaker 3: It's interesting because the justices, the three liberal justices so 134 00:08:46,639 --> 00:08:49,080 do I or Kagan and Jackson, spent the majority of 135 00:08:49,120 --> 00:08:52,879 their lines of questioning trying to narrow a what I 136 00:08:52,919 --> 00:08:55,960 anticipate to be an upcoming victory for both of the state. 137 00:08:56,639 --> 00:08:59,320 First Justice, so to my was the only one who 138 00:08:59,399 --> 00:09:03,960 seemed even remotely concerned with the arguments advanced by Heacox, 139 00:09:04,279 --> 00:09:07,720 which was that the case was moot because Hecox did 140 00:09:07,759 --> 00:09:12,080 not intend to play sports this year, was readying for graduation, 141 00:09:12,440 --> 00:09:15,440 and had apparently suffered too much of these slings and 142 00:09:15,519 --> 00:09:20,879 arrows of outrageous commentary because of Heacox's presence in the media. 143 00:09:20,559 --> 00:09:22,519 Speaker 2: Over this case. But only so too. 144 00:09:22,559 --> 00:09:25,480 Speaker 3: Mayor and for a very brief period of a few minutes, 145 00:09:25,919 --> 00:09:28,919 asked questions relative to whether the case was moot. 146 00:09:29,320 --> 00:09:32,000 Speaker 2: The rest of the justices did not seem concerned with. 147 00:09:31,960 --> 00:09:33,759 Speaker 3: It at all, So I don't think the moot miss 148 00:09:33,799 --> 00:09:37,480 argument is a winning argument. Then, the other line of questioning, 149 00:09:37,559 --> 00:09:42,879 dedicated specifically to narrowing a potential victory, was related directly 150 00:09:43,279 --> 00:09:48,240 to whether or not we can rule unconstitutional two state 151 00:09:48,360 --> 00:09:53,039 laws for whom ninety nine percent of individuals will be 152 00:09:53,159 --> 00:09:58,200 subject to, but one percent of individuals, those biological males 153 00:09:58,360 --> 00:10:04,080 who have taken the potentially blunting athletic effect drugs like 154 00:10:04,240 --> 00:10:08,399 puberty blockers or cross sex hormones, whether they might be 155 00:10:08,480 --> 00:10:12,120 able to play. And what the Justice is rightly identified 156 00:10:12,159 --> 00:10:15,840 all six of the conservatives was that taking that as 157 00:10:15,919 --> 00:10:19,759 applied versus facial equal protection challenge. And this is sort 158 00:10:19,799 --> 00:10:25,320 of a new creature of American jurisprudence. Is generally, when 159 00:10:25,360 --> 00:10:28,559 we deal with questions of the equal Protection Clause, they 160 00:10:28,559 --> 00:10:33,200 are unconstitutional on their face or they are constitutional on 161 00:10:33,240 --> 00:10:37,519 their face. We don't pick and choose those individuals to 162 00:10:37,600 --> 00:10:42,000 whom the fourteenth Amendment will apply. And so Justice Thomas, 163 00:10:42,759 --> 00:10:46,399 Justice Kavanaugh, Justice Alita rightly pointed out that what the 164 00:10:46,519 --> 00:10:53,679 transgender athlete attorneys we're arguing for here was a very 165 00:10:53,720 --> 00:11:01,720 precise subset a classification within a classification whom those particular 166 00:11:01,799 --> 00:11:02,879 state laws. 167 00:11:02,840 --> 00:11:03,759 Speaker 2: Might not apply. 168 00:11:04,320 --> 00:11:06,960 Speaker 3: And what, just as Alito pointed out, was well, then 169 00:11:07,000 --> 00:11:12,279 you've not asked us to approve and apply intermediate scrutiny, 170 00:11:12,320 --> 00:11:16,799 which we generally use for classifications based on sex, and 171 00:11:16,840 --> 00:11:19,320 that comes from a long line of cases dating all 172 00:11:19,360 --> 00:11:23,720 the way back to Frontierra versus Richardson in nineteen seventy nine. 173 00:11:23,919 --> 00:11:28,399 You are instead asking us to apply the most exacting 174 00:11:28,519 --> 00:11:32,360 constitutional scrutiny, and that is strict scrutiny. 175 00:11:32,080 --> 00:11:34,200 Speaker 2: Which means it must be a. 176 00:11:34,279 --> 00:11:38,960 Speaker 3: Perfect fit for every individual subject to its provisions. The 177 00:11:39,039 --> 00:11:44,440 Constitution does not demand that, It only demands that particular 178 00:11:44,799 --> 00:11:49,399 substantial relation that will satisfy that intermediate tier. 179 00:11:49,919 --> 00:11:52,279 Speaker 2: What these two petitioner. 180 00:11:51,879 --> 00:11:57,559 Speaker 3: Athletic athletes who are competing with biological girls are asking 181 00:11:57,960 --> 00:12:01,279 is to create an exception just for them. That was 182 00:12:01,279 --> 00:12:04,159 what the liberal justice is focused on, and I don't 183 00:12:04,159 --> 00:12:06,759 think it's something the rest of the Court is inclined 184 00:12:06,759 --> 00:12:07,480 to go along with. 185 00:12:08,000 --> 00:12:12,120 Speaker 1: Yeah, I mean, really a very very narrow exception, and 186 00:12:12,159 --> 00:12:17,080 it does beg the question, you know, as a country 187 00:12:17,320 --> 00:12:23,120 of majority rule, but respecting the minority, how far do 188 00:12:23,200 --> 00:12:26,120 you go. I thought this was interesting. My colleague Sean 189 00:12:26,159 --> 00:12:29,919 Fleetwood does an excellent job covering the Supreme Court, and 190 00:12:30,200 --> 00:12:35,000 he covered this extensively. He noted. Chief Justice John Roberts 191 00:12:35,200 --> 00:12:41,360 questioned hee Cox's attorney again, Kathleen Heartlett, about whether or 192 00:12:41,480 --> 00:12:44,799 not the Court should view her position as a quote 193 00:12:45,159 --> 00:12:48,039 challenge to the distinction between boys and girls on the 194 00:12:48,080 --> 00:12:51,559 basis of sex, or whether or not she is perfectly 195 00:12:51,639 --> 00:12:55,799 comfortable with the distinction between boys and girls, but she 196 00:12:55,960 --> 00:12:59,720 just wants an exception to the biological definition of girls. 197 00:13:00,399 --> 00:13:05,480 He also appeared to espouse concern about the can of 198 00:13:05,559 --> 00:13:09,480 worms it would open up should the Court adopt such 199 00:13:09,519 --> 00:13:11,679 a position. What did you think about that exchange? 200 00:13:13,279 --> 00:13:16,440 Speaker 3: Very astute on the Chief's part, I believe, and what 201 00:13:16,559 --> 00:13:19,279 she had said in response did surprise me, and that 202 00:13:19,799 --> 00:13:22,080 she said they are not taking issue. They do not 203 00:13:22,120 --> 00:13:26,519 take umbrage with the state's definitions of male and female 204 00:13:26,559 --> 00:13:30,279 biological sex. And even so to Mayoor, which I thought 205 00:13:30,360 --> 00:13:33,759 was interesting, had to aver that, yes, it was very 206 00:13:33,759 --> 00:13:37,200 clear that is the two prong analysis here, the equal 207 00:13:37,240 --> 00:13:41,399 protection clause and title line. Title line clearly when it 208 00:13:41,440 --> 00:13:46,480 was an Acting seventy two meant biological distinctions between male 209 00:13:46,840 --> 00:13:50,759 and female. And that's precisely what these two states had 210 00:13:50,840 --> 00:13:55,879 replicated in Idaho and in West Virginia. So Kathleen Hartnett 211 00:13:55,919 --> 00:13:58,360 had to be honest and say, we're not taking issue 212 00:13:58,360 --> 00:14:01,720 with the definitions. In fact, it did her well to 213 00:14:01,879 --> 00:14:05,600 make that concession, because to ask the court to pull 214 00:14:05,720 --> 00:14:10,960 from the ether XMLIO this new definition of biological sex, 215 00:14:11,200 --> 00:14:14,679 when we have recognized from time immemorial what that means, 216 00:14:14,919 --> 00:14:19,919 and our entire canon of civil rights laws is organized thereon, 217 00:14:20,519 --> 00:14:21,440 I think would. 218 00:14:21,200 --> 00:14:23,399 Speaker 2: Have been foolish. It would have been a fool's errand 219 00:14:23,399 --> 00:14:23,960 on her part. 220 00:14:24,000 --> 00:14:27,960 Speaker 3: And so she said, I don't take issue with the definitions. 221 00:14:28,159 --> 00:14:29,639 Speaker 2: We are asking foreign exception. 222 00:14:30,080 --> 00:14:32,960 Speaker 3: But again to ask for that exception, as the chief 223 00:14:33,000 --> 00:14:35,519 pointed out, opens an entire can of worms. 224 00:14:38,039 --> 00:14:41,960 Speaker 6: Well, Washington's housing fixes backfire. The Watchdot on Wall Street 225 00:14:42,000 --> 00:14:45,039 podcast with Chris Markowski. Every day Chris helps unpack the 226 00:14:45,039 --> 00:14:47,759 connection between politics and the economy and how it affects 227 00:14:47,759 --> 00:14:51,720 your wallet. Trump plans on purchasing billions in mortgage backed securities, 228 00:14:51,840 --> 00:14:54,360 as well as allowing people to use retirement to make 229 00:14:54,399 --> 00:14:57,519 down payments. Does adding more cash bring down the price 230 00:14:57,720 --> 00:14:59,799 or at fuel to the fire. Whether it's happening in 231 00:14:59,840 --> 00:15:02,320 d See or down on Wall Street, it's affecting you financially. 232 00:15:02,399 --> 00:15:02,960 Speaker 2: Be informed. 233 00:15:03,000 --> 00:15:05,120 Speaker 6: Check out the Watchdot on Wall Street podcast with christ 234 00:15:05,159 --> 00:15:08,200 Markowski on Apple, Spotify, or wherever you get your podcasts. 235 00:15:11,399 --> 00:15:13,080 Speaker 1: I think we do need to take a few steps 236 00:15:13,120 --> 00:15:16,840 back here and ask the question, how on earth did 237 00:15:16,879 --> 00:15:22,159 we get to this point? As you had noted before. Understandably, 238 00:15:22,360 --> 00:15:25,600 it is remarkable that we are even asking these kinds 239 00:15:25,639 --> 00:15:28,279 of questions that we are asking. The highest court in 240 00:15:28,320 --> 00:15:31,840 the land have to ask the question, what do you 241 00:15:32,000 --> 00:15:36,200 think a woman is? What do you think a girl is? 242 00:15:37,000 --> 00:15:41,519 But this goes back some time. Your organization has been 243 00:15:41,559 --> 00:15:43,600 working on this for quite some time. 244 00:15:43,919 --> 00:15:44,399 Speaker 2: Tell me. 245 00:15:45,879 --> 00:15:48,639 Speaker 1: Give me a sense of where this all began, how 246 00:15:48,679 --> 00:15:52,960 it got started, and then of course the work that 247 00:15:53,399 --> 00:16:02,879 you folks have done as well at the organization defending education. 248 00:16:03,519 --> 00:16:04,559 Speaker 2: This is very interesting. 249 00:16:04,600 --> 00:16:07,240 Speaker 3: This has actually followed the better part of the past 250 00:16:07,240 --> 00:16:10,879 six years of my professional career because I was senior 251 00:16:10,960 --> 00:16:13,960 counsel at the United States Department of Education in the 252 00:16:13,960 --> 00:16:18,039 Civil Rights Office enforcing and applying Title nine. We actually 253 00:16:18,159 --> 00:16:22,879 worked to create a rule clarifying protections based on sexual 254 00:16:22,919 --> 00:16:27,039 assault and sexual harassment. We clarified protections for free speech 255 00:16:27,320 --> 00:16:30,080 and religiously based education institutions. 256 00:16:30,440 --> 00:16:31,840 Speaker 2: And as we know, there. 257 00:16:31,799 --> 00:16:36,320 Speaker 3: Was subsequent to that, an election and a decision by 258 00:16:36,320 --> 00:16:38,960 the Supreme Court and a little case called Bostock versus 259 00:16:38,960 --> 00:16:43,720 Clayton County and the Biden administration. Once Biden took office 260 00:16:43,919 --> 00:16:47,159 in January of twenty twenty one, one of his first 261 00:16:47,399 --> 00:16:50,480 actions as president was to issue Order one three nine 262 00:16:50,559 --> 00:16:53,039 eighty eight. It is strange that I know that, but 263 00:16:53,120 --> 00:16:54,399 you can tell I've done a lot. 264 00:16:54,240 --> 00:16:55,960 Speaker 2: Of work in this space, Yes you have. 265 00:16:56,440 --> 00:17:00,799 Speaker 3: That particular executive order actually directed the heads of every 266 00:17:00,960 --> 00:17:06,039 federal agency to take all of their statutes, their regulations, 267 00:17:06,319 --> 00:17:10,400 their anti discrimination provisions, and to expand summarily that term 268 00:17:10,519 --> 00:17:14,759 sex to include gender identity or transgender status. And for 269 00:17:14,839 --> 00:17:19,559 his rationale, relied heavily on Bostock versus Clayton County. Well, 270 00:17:19,599 --> 00:17:22,920 as we know, Bostock versus Clayton County was an education 271 00:17:23,319 --> 00:17:27,519 or an employment decision, not an education decision. Specifically, if 272 00:17:27,559 --> 00:17:30,920 an individual is fired as a result of their sexual 273 00:17:30,920 --> 00:17:35,440 orientation or gender identity, have they been discriminated based on sex? 274 00:17:35,839 --> 00:17:39,200 And the majority in an opinion written by Justice Gorsich, 275 00:17:39,319 --> 00:17:43,119 on whom all eyes are resting for this particular decision 276 00:17:43,119 --> 00:17:47,839 at hands actually wrote an opinion saying yes, but only 277 00:17:47,920 --> 00:17:51,799 because you have to consider sex first. 278 00:17:52,279 --> 00:17:53,759 Speaker 2: In fact, he began. 279 00:17:53,559 --> 00:17:57,279 Speaker 3: The opinion with the understanding that Title seven of the 280 00:17:57,319 --> 00:18:00,519 Civil Rights Act of nineteen sixty four, when an acted, 281 00:18:00,839 --> 00:18:05,240 the term sex meant male and female. So Bostog does 282 00:18:05,279 --> 00:18:08,720 not support the holding that the Biden administration argued for. 283 00:18:09,200 --> 00:18:10,440 Speaker 2: But that was of no. 284 00:18:10,480 --> 00:18:13,799 Speaker 3: Matter, and so all of the agencies created new regulations, 285 00:18:14,200 --> 00:18:17,400 the most pressing and applicable of which for purposes of 286 00:18:17,440 --> 00:18:24,200 these cases was on Title nine. That was a regulation created, finalized, 287 00:18:24,279 --> 00:18:28,640 and enforced in August of twenty twenty four, which preceded 288 00:18:28,720 --> 00:18:33,400 the election, obviously of President Donald Trump. But in the interim, 289 00:18:33,759 --> 00:18:38,759 eleven different federal lawsuits were brought against the administration, and 290 00:18:38,880 --> 00:18:43,480 in eleven times the Biden administration lost. Every single time, 291 00:18:44,039 --> 00:18:48,119 nine courts enjoined either permanently or on a temporary basis 292 00:18:48,640 --> 00:18:53,079 the Biden era rule, and two others vacated, meaning threw 293 00:18:53,160 --> 00:18:54,319 it out entirely. 294 00:18:54,839 --> 00:18:57,400 Speaker 2: So we went into August with. 295 00:18:57,359 --> 00:19:01,480 Speaker 3: A patchwork of states across the country in response to this, 296 00:19:01,759 --> 00:19:05,079 and I think seeing the writing on the wall. Back 297 00:19:05,119 --> 00:19:08,720 in twenty twenty and twenty twenty one, Idaho and West 298 00:19:08,799 --> 00:19:14,160 Virginia respectively enacted Save Women's Sports Acts when they recognize 299 00:19:14,200 --> 00:19:17,279 that the Biden Department of Education would no longer act 300 00:19:17,359 --> 00:19:22,400 to protect biological girls, they did with the constitution anticipates 301 00:19:22,440 --> 00:19:25,720 and protects their ability to do which is legislate to 302 00:19:25,759 --> 00:19:29,440 protect their welfare of their own citizens. And in fact, 303 00:19:29,480 --> 00:19:32,759 Idaho and West Virginia were only two of twenty seven 304 00:19:32,880 --> 00:19:37,240 states to enact women's sports protection Acts. It just so 305 00:19:37,319 --> 00:19:39,920 happens that their cases were the first to get to 306 00:19:39,960 --> 00:19:43,480 the Supreme Court. So remember, we are still dealing with 307 00:19:43,599 --> 00:19:47,599 the fallout of the gender identity juggernaut that was a 308 00:19:47,640 --> 00:19:51,799 hallmark of the Biden era administration. And so these state 309 00:19:51,920 --> 00:19:58,519 laws passed democratically, went through the appropriate process, were deliberated upon, 310 00:19:58,720 --> 00:20:01,680 debated on the he House and Senate floors in the 311 00:20:01,720 --> 00:20:05,720 two states, went through the democratic process, were ratified. We're 312 00:20:05,759 --> 00:20:09,880 immediately challenged by the ACLU for violations of the Equal 313 00:20:09,880 --> 00:20:14,079 Protection Clause and Title nine respectively. Now will we get 314 00:20:14,119 --> 00:20:17,400 clarity from the Supreme Court on whether or not to 315 00:20:17,440 --> 00:20:23,519 the title line biden eraror regulation was indeed legal and constitutional. 316 00:20:24,039 --> 00:20:28,920 Speaker 2: No, that may appear. I think in one of the concurrences. 317 00:20:30,160 --> 00:20:34,359 Speaker 3: Thomas may allege certain representations about how it was sort 318 00:20:34,359 --> 00:20:36,079 of extra judicial and. 319 00:20:36,000 --> 00:20:37,640 Speaker 2: It did not have any basis in law. 320 00:20:37,880 --> 00:20:40,559 Speaker 3: I can also see Justice Alito weighing in on the 321 00:20:40,599 --> 00:20:44,079 fact that it violated something called the major Questions doctrine. 322 00:20:44,240 --> 00:20:47,920 But we are not going to see the Court deal 323 00:20:48,000 --> 00:20:51,319 with the legality of that regulation head on. They will 324 00:20:51,319 --> 00:20:54,279 only deal with the questions before them, which are does 325 00:20:54,279 --> 00:20:58,759 a state have a power to restrict men and women's 326 00:20:58,759 --> 00:21:02,680 sports based on biolae logical sex without violating the Fourteenth 327 00:21:02,680 --> 00:21:06,039 Amendment or Title nine? And I think after oral arguments, 328 00:21:06,039 --> 00:21:08,519 it's pretty clear to me that the answer will be yes. 329 00:21:09,319 --> 00:21:11,880 Speaker 1: Yeah. I think so, because if it comes down to 330 00:21:12,400 --> 00:21:16,640 a tenth Amendment States rights issue on this front, you 331 00:21:16,680 --> 00:21:20,720 can look back at Scrimmetti and kind of read the 332 00:21:21,279 --> 00:21:23,559 tea leaves on how this is all going. We'll talk 333 00:21:23,599 --> 00:21:26,200 about that in the moment. Our guest today is Sarah 334 00:21:26,240 --> 00:21:31,400 Parshall Perry, vice president legal fellow at Defending Education. We're 335 00:21:31,400 --> 00:21:34,359 talking about the two major cases in Idaho and West Virginia. 336 00:21:34,559 --> 00:21:41,480 The Supreme Court heard oral arguments on those late and 337 00:21:41,519 --> 00:21:46,200 it really boils down to the key question we've been 338 00:21:46,240 --> 00:21:51,920 talking about for some time, and that is women's and 339 00:21:52,079 --> 00:21:56,519 girls' sports, whether schools must allow male athletes to compete 340 00:21:57,039 --> 00:22:02,200 on girls' teams. So we kind of touched upon it before, 341 00:22:02,279 --> 00:22:06,279 But what do the recent cases inform us about where 342 00:22:07,240 --> 00:22:11,559 these cases will be going as the Supreme Court weighs 343 00:22:11,599 --> 00:22:12,519 all of this stuff. 344 00:22:13,279 --> 00:22:16,559 Speaker 3: Great question you had mentioned the US versus Scrammeti decision. 345 00:22:16,680 --> 00:22:19,480 You know, we've seen not just in Scrimmetti, but also 346 00:22:19,519 --> 00:22:24,480 in the Dabbs decision. Language relative to leaving controversial, hot 347 00:22:24,599 --> 00:22:29,559 buttoned political issues to the reasoned judgment of the legislative bodies, 348 00:22:29,599 --> 00:22:35,079 where people can, through their elected representatives, debate and discuss 349 00:22:35,160 --> 00:22:38,839 these issues and can make the decisions that are most 350 00:22:38,920 --> 00:22:43,119 appropriately suited to the governance of their own citizenry. They 351 00:22:43,200 --> 00:22:46,279 do not want to get involved in questions on which 352 00:22:46,519 --> 00:22:50,960 state legislators have already spoken. In fact, in a decision 353 00:22:51,039 --> 00:22:53,599 dating back to the year two thousand, in case called 354 00:22:53,640 --> 00:23:00,000 Cameron versus EMW Women's Surgical Center, Justice Gorsuch actually wrote 355 00:22:59,640 --> 00:23:04,359 a state's ability to defend its own democratically enacted laws 356 00:23:04,759 --> 00:23:08,880 should not likely be cut off. And that's precisely what 357 00:23:09,079 --> 00:23:13,119 these transgender petitioners are asking for here. They are asking 358 00:23:13,440 --> 00:23:16,799 the Supreme Court to second guess what Idaho and West 359 00:23:16,880 --> 00:23:21,039 Virginia have done, even though the states have benefited from 360 00:23:21,079 --> 00:23:24,720 the democratic process. The people have weighed in through their 361 00:23:24,799 --> 00:23:28,759 elected representatives in very much the same way. I would 362 00:23:28,799 --> 00:23:33,039 be very surprised if that nearly verbatim language does not 363 00:23:33,160 --> 00:23:37,200 make an appearance in these issues here, and I think 364 00:23:37,240 --> 00:23:41,119 it goes to, I think, strengthen the notion of our 365 00:23:41,240 --> 00:23:46,359 federalist system of government, where it is the strict purview, 366 00:23:46,400 --> 00:23:49,680 according to Marbury versus Madison, of the judiciary to say 367 00:23:49,720 --> 00:23:53,640 what the law is, not to make the law or 368 00:23:53,759 --> 00:23:58,000 second guess the law of other states, and that is important. 369 00:23:58,079 --> 00:24:00,319 I think it is a hallmark of the company position 370 00:24:00,519 --> 00:24:03,279 of this Court, and I think we're likely to see 371 00:24:03,319 --> 00:24:06,079 that type of language in the majority opinion in the 372 00:24:06,079 --> 00:24:07,200 women's sports cases. 373 00:24:08,559 --> 00:24:13,000 Speaker 1: That has been a constant theme over many years, but 374 00:24:13,079 --> 00:24:18,319 particularly in the Trump era courts making law, activist courts, 375 00:24:18,359 --> 00:24:20,880 activist judges. We've seen it time and time again. This 376 00:24:21,000 --> 00:24:24,000 issue is part and parcel of all of that. So 377 00:24:24,039 --> 00:24:27,480 on the other side of the coin, Sarah the states 378 00:24:27,640 --> 00:24:31,880 that are have been and continue to be all treands happy. 379 00:24:32,319 --> 00:24:36,839 They want to see men in women's sports, girls in 380 00:24:36,920 --> 00:24:43,440 boys' sports. This kind of thinking would suggest that they 381 00:24:43,480 --> 00:24:46,799 have a right to do whatever they want in their states. 382 00:24:47,680 --> 00:24:50,319 Correct not correct. Where do you see that falling? 383 00:24:51,160 --> 00:24:53,400 Speaker 3: That's a great question, And in fact I have had 384 00:24:53,640 --> 00:24:56,839 people ask me where I believe of this type of 385 00:24:56,839 --> 00:24:59,519 a decision, which we anticipate to be a victory coming 386 00:24:59,559 --> 00:25:02,559 down in terms of what we see states to state, 387 00:25:02,640 --> 00:25:06,039 and in much the same way that we saw post Dubbs, 388 00:25:06,079 --> 00:25:10,000 a bit of a patchwork of laws that either restricted 389 00:25:10,160 --> 00:25:13,559 or expanded access to abortion. As is the nature of 390 00:25:13,599 --> 00:25:17,319 the Tenth Amendment police power to regulate on things like 391 00:25:17,759 --> 00:25:22,680 health safety, welfare, medical licensing, education, We may see the 392 00:25:22,720 --> 00:25:27,319 same thing here. Now, there is one superseding question under 393 00:25:27,559 --> 00:25:33,079 the understanding of the Constitution's supremacy clause, federal law trump's 394 00:25:33,319 --> 00:25:37,960 state law when federal law would be frustrated when the 395 00:25:38,000 --> 00:25:41,880 congressional aims of that body would be frustrated by contrary 396 00:25:41,960 --> 00:25:46,279 state laws. So Title nine stands apart from the equal 397 00:25:46,319 --> 00:25:50,440 protection analysis here. Now California, for example, who takes a 398 00:25:50,599 --> 00:25:55,880 very trans inclusive approach not only to scholastic athletics, but 399 00:25:55,920 --> 00:26:01,480 to all aspects of public accommodations and education accepts federal funding, 400 00:26:01,839 --> 00:26:05,440 they are under no obligation to accept federal funding through 401 00:26:05,640 --> 00:26:08,240 their commitment to follow Title mind. And in fact, I 402 00:26:08,319 --> 00:26:13,319 remember dealing with certifications from state educational associations every year. 403 00:26:13,720 --> 00:26:15,200 Speaker 2: It is a qualification that in. 404 00:26:15,200 --> 00:26:17,599 Speaker 3: Order to get your money from the federal government, you 405 00:26:17,680 --> 00:26:21,799 must covenant and sign a certificate saying we will follow 406 00:26:22,039 --> 00:26:26,000 this cagory of civil rights laws within education. California is 407 00:26:26,039 --> 00:26:28,880 under no obligation to take federal funding, and for that matter, 408 00:26:29,160 --> 00:26:32,720 neither is main and in fact both states are embroiled 409 00:26:32,720 --> 00:26:35,720 currently with litation through. 410 00:26:35,519 --> 00:26:36,480 Speaker 2: The Department of Justice. 411 00:26:36,519 --> 00:26:40,160 Speaker 3: Why because the Department of Justice has said your laws 412 00:26:40,279 --> 00:26:43,839 run contrary to the plain text, statutory meaning, and congressional 413 00:26:43,920 --> 00:26:47,319 history of Title NI. So it will be a very 414 00:26:47,319 --> 00:26:50,440 interesting question as to what happens next. 415 00:26:50,839 --> 00:26:52,240 Speaker 2: Those states will not be. 416 00:26:52,319 --> 00:26:57,880 Speaker 3: Able to litigate their way out of a Title nine challenge. However, 417 00:26:58,480 --> 00:27:01,480 there is some question on what we heard in oral 418 00:27:01,559 --> 00:27:06,160 arguments that equal protection clause may or may not be 419 00:27:06,319 --> 00:27:12,279 sufficient to bring challenges for individuals with blunted athletic advantage. 420 00:27:12,640 --> 00:27:16,400 How that sort of moves forward remains to be seen. 421 00:27:16,759 --> 00:27:20,200 I anticipate we will see one of two outcomes. An 422 00:27:20,319 --> 00:27:25,160 increase in legislation like Idaho's in West Virginia, where states 423 00:27:25,279 --> 00:27:28,519 finally feel sort of the moral fortitude to be able 424 00:27:28,559 --> 00:27:31,119 to say, we've now got Supreme Court backing and we 425 00:27:31,160 --> 00:27:34,720 can indeed protect our girls and women because we have 426 00:27:34,839 --> 00:27:39,160 Supreme Court analysis as our legal cover. Or we will 427 00:27:39,160 --> 00:27:43,359 see an influx in creative new arguments from people like 428 00:27:43,400 --> 00:27:47,880 the Newsome administration or the Janet Mills administration to say 429 00:27:47,920 --> 00:27:50,920 it may violate Title nine, but it does not violate 430 00:27:50,920 --> 00:27:54,680 the equal Protection clause because we are arguing as well 431 00:27:55,039 --> 00:27:59,200 a subclass of individuals might be allowed to play that 432 00:27:59,240 --> 00:28:02,519 will be determined largely largely by the rationale and the 433 00:28:02,519 --> 00:28:03,880 holding of the Supreme Court. 434 00:28:04,759 --> 00:28:08,720 Speaker 1: Fascinating. It takes me back in my time machine to 435 00:28:08,880 --> 00:28:13,400 the late nineties and what the definition of is is. 436 00:28:13,440 --> 00:28:16,720 Speaker 2: It's just I'm also old enough to remember that. 437 00:28:17,480 --> 00:28:19,559 Speaker 1: Yeah, and you know, you know who's old enough to 438 00:28:19,920 --> 00:28:24,519 remember Title nine in the battles therein is Joe Biden. 439 00:28:24,599 --> 00:28:26,640 I don't know if he remembers anything at this point, 440 00:28:26,680 --> 00:28:29,920 but he certainly was around during the Title nine battles, 441 00:28:30,039 --> 00:28:34,319 and do you find it remarkable that we are at 442 00:28:34,319 --> 00:28:41,279 this point where really you are seeing a reversal of 443 00:28:41,359 --> 00:28:47,480 Title nine through these policies that say men can participate 444 00:28:47,559 --> 00:28:49,160 in women's sports. 445 00:28:50,440 --> 00:28:54,200 Speaker 3: I am not surprised because when we saw a sort 446 00:28:54,200 --> 00:28:57,559 of the parting shot from the Obama administration through the 447 00:28:57,599 --> 00:29:01,519 Department of Education, when Catherine Lehman was then Assistant Secretary 448 00:29:01,559 --> 00:29:04,319 for Civil Rights, who parenthetically went on to also be 449 00:29:04,319 --> 00:29:06,480 Assistant Secretary for Civil Rights under Biden. 450 00:29:06,640 --> 00:29:08,000 Speaker 2: So she said two kicks at the. 451 00:29:07,960 --> 00:29:14,279 Speaker 3: Can to effectuate an incredibly progressive administrative aim of transing 452 00:29:14,359 --> 00:29:18,839 everything and transing all the things. One of his parting 453 00:29:18,839 --> 00:29:22,960 shots through Catherine Layman's office was to direct all of 454 00:29:22,960 --> 00:29:28,200 the state educational associations to open their bathrooms two transgender 455 00:29:28,240 --> 00:29:32,119 identified males, regardless of what their biological sex was. That 456 00:29:32,319 --> 00:29:36,079 set the stage for what we saw as a further 457 00:29:36,200 --> 00:29:39,000 battle down the road. Now, serving as I did in 458 00:29:39,039 --> 00:29:42,200 Trump forty five, we did not spend as much time 459 00:29:42,440 --> 00:29:47,200 fighting the gender identity notion and clarifying sex based protections. 460 00:29:47,519 --> 00:29:49,440 Speaker 2: Our work on Title nine was to. 461 00:29:49,440 --> 00:29:53,960 Speaker 3: Clarify sexual assault and sexual harassment were forms of discrimination 462 00:29:54,119 --> 00:29:58,200 under Title nine, and as I said before clarifications based 463 00:29:58,279 --> 00:30:02,720 on free speech and religious education and their institutions. We 464 00:30:02,799 --> 00:30:07,240 now look back and see an opportunity to perhaps be 465 00:30:07,440 --> 00:30:13,720 missed in making sure we relegated specific federal regulations to 466 00:30:13,799 --> 00:30:17,359 the notion of a biological and sext reality. But this 467 00:30:17,519 --> 00:30:20,640 was in the Terminus Bostock we received in the summer 468 00:30:21,039 --> 00:30:24,000 of twenty twenty, and then, of course in the fall 469 00:30:24,039 --> 00:30:27,039 of twenty twenty was the election in which Biden won. 470 00:30:27,200 --> 00:30:31,359 So we really did not anticipate such a sea change 471 00:30:31,480 --> 00:30:35,759 in such a short period of time. I think, recognizing 472 00:30:35,839 --> 00:30:39,599 what we've seen through the Biden administration, and for Heaven's sake, 473 00:30:39,640 --> 00:30:43,039 he appointed a man in address to chair the Department 474 00:30:43,079 --> 00:30:46,559 of Health and Human Services, So tell us again about 475 00:30:47,039 --> 00:30:52,000 biological reality and sex. I'm disheartened from the standpoint that 476 00:30:52,079 --> 00:30:54,759 as a parent of three children who have been through 477 00:30:54,799 --> 00:30:57,519 the public education system, I not only fight this in 478 00:30:57,559 --> 00:30:58,240 the public sphere. 479 00:30:58,279 --> 00:31:00,880 Speaker 2: I've not only thought it at the and of Education 480 00:31:01,119 --> 00:31:02,240 and during. 481 00:31:01,960 --> 00:31:04,039 Speaker 3: My time as the senior legal fellow at the Heritage 482 00:31:04,039 --> 00:31:06,920 Foundation and now as the Vice president and Legal counsel 483 00:31:06,960 --> 00:31:10,720 of Defending Education, but this is something I have walked. Specifically, 484 00:31:10,759 --> 00:31:13,640 my daughter is benefiting from a Title nine athletic scholarship. 485 00:31:13,799 --> 00:31:16,839 I'm d two volleyball right now in college, and I'm 486 00:31:16,920 --> 00:31:20,240 thrilled of the games that Title mind has allowed she 487 00:31:20,480 --> 00:31:24,799 and I to both achieve in our educations and those opportunities. 488 00:31:25,200 --> 00:31:28,319 I am I think flummixed to this day on the 489 00:31:28,440 --> 00:31:32,759 silence of the first wave feminists, those individuals that Betty 490 00:31:33,039 --> 00:31:36,240 Frijans and the Bella Abzugs and the glorious Steinems who 491 00:31:36,680 --> 00:31:38,720 told all of us that a woman needs a man 492 00:31:38,799 --> 00:31:40,680 like a fish needs a bicycle, and then when a 493 00:31:40,680 --> 00:31:43,839 woman's place on an athletic field is divested to a 494 00:31:43,880 --> 00:31:47,000 biological man, they have nothing to say. And I think, 495 00:31:47,119 --> 00:31:49,960 as a woman someone who would not classify myself as 496 00:31:50,000 --> 00:31:54,480 a feminist, but for whom textualist and originalist principles of 497 00:31:54,559 --> 00:31:58,359 legal interpretation have always applied. We have to be honest 498 00:31:58,480 --> 00:32:02,000 on what the progenitor of Title Line meant and what 499 00:32:02,079 --> 00:32:06,359 they anticipated. And some of the floor speeches are absolutely astounding. 500 00:32:06,400 --> 00:32:09,279 Senator Burt buy of Indiana, who was one of the 501 00:32:09,319 --> 00:32:12,079 sponsors of Title Line, got up on the floor and 502 00:32:12,119 --> 00:32:15,799 talked about the fact that we were all familiar with 503 00:32:15,920 --> 00:32:18,680 the old adage that women were pretty little things who 504 00:32:18,759 --> 00:32:21,519 went to college to get an interesting husband and went 505 00:32:21,559 --> 00:32:25,200 to graduate school to get a more interesting husband. And 506 00:32:25,559 --> 00:32:29,160 those were the types of fallacies that title line was 507 00:32:29,279 --> 00:32:32,200 enacted to fight against. And while there was lots of 508 00:32:32,240 --> 00:32:36,200 conference and consternation between sort of left and right wing 509 00:32:36,279 --> 00:32:39,359 factions of the House and Senate, two hundred and fifty 510 00:32:39,440 --> 00:32:43,839 versions of legislation went passed back and forth between those committees. 511 00:32:44,519 --> 00:32:49,920 Gender identity transgender status never appeared once, so we recognized 512 00:32:49,960 --> 00:32:53,079 it was to protect women in nineteen seventy two. When 513 00:32:53,119 --> 00:32:56,759 the Javit's amendments were passed in nineteen seventy four, specifically 514 00:32:56,880 --> 00:33:00,839 on athletics, it was the sense of Congress then after 515 00:33:00,920 --> 00:33:04,240 six days of hearings that nets we meant what we 516 00:33:04,359 --> 00:33:08,200 said in nineteen seventy two. We're not changing anything, We're 517 00:33:08,240 --> 00:33:12,920 just adding athletics. There have been multiple opportunities to expand, 518 00:33:12,960 --> 00:33:16,400 to revise, to amend, but I don't think this particular 519 00:33:16,480 --> 00:33:20,759 Supreme Court will take lightly the interpretation of federal law 520 00:33:20,799 --> 00:33:24,640 that is not supported by a directive from Congress. We 521 00:33:24,720 --> 00:33:29,400 all remember the Watershed West Virginia versus EPA case and 522 00:33:29,480 --> 00:33:33,400 the Clean Air Act shoved through that was instituting millions 523 00:33:33,440 --> 00:33:37,240 of dollars in costs passed off to these co two 524 00:33:37,359 --> 00:33:42,440 producers and their companies and their corporate operations. 525 00:33:43,160 --> 00:33:44,680 Speaker 2: One cannot pass. 526 00:33:45,079 --> 00:33:50,200 Speaker 3: As the Justices wrote a regulation of massive economic and 527 00:33:50,319 --> 00:33:56,359 political significance without clear congressional authority. It's clear the Biden 528 00:33:56,400 --> 00:33:58,160 administration did not have it. 529 00:33:58,240 --> 00:33:58,519 Speaker 2: Then. 530 00:33:58,920 --> 00:34:02,039 Speaker 3: I do believe that of rhetoric will come up at 531 00:34:02,039 --> 00:34:05,240 some point, and one of the justice is concurring opinions here. 532 00:34:06,400 --> 00:34:10,159 Speaker 1: So Betty Free Dan and the Gang, their new Virginia 533 00:34:10,559 --> 00:34:14,360 Slim slogan is You've come along, not you've come a 534 00:34:14,360 --> 00:34:16,880 long way baby, You've come a long way buddy. For 535 00:34:16,960 --> 00:34:22,119 the trans movement in America, it appears to me what 536 00:34:22,639 --> 00:34:25,559 this is. This is perhaps an unfair question because you're 537 00:34:25,559 --> 00:34:28,199 delving in, you know, the legal aspects of all of this, 538 00:34:28,320 --> 00:34:32,719 but you know, law is not in a vacuum. Politics 539 00:34:32,760 --> 00:34:35,960 surround it. What do you think the political ramifications of 540 00:34:36,000 --> 00:34:37,880 all of this will be moving forward. 541 00:34:39,039 --> 00:34:42,800 Speaker 3: It's very interesting to me because the transgender lobby is 542 00:34:42,800 --> 00:34:46,400 a very small and vocal but well funded minority. And 543 00:34:46,440 --> 00:34:50,559 this is as sports are concerned, an eighty twenty issue. 544 00:34:50,559 --> 00:34:54,440 In fact, the most recent ipsis polling indicates that sixty 545 00:34:54,559 --> 00:34:59,760 five percent of Democrats want sports separated by by a 546 00:34:59,800 --> 00:35:06,119 life logical sex. That, in conjunction with Republican right leaning voters, 547 00:35:06,159 --> 00:35:09,800 constitutes eighty percent of the American electorate. So the political 548 00:35:09,800 --> 00:35:14,440 consequences really should not be significant. But do I expect 549 00:35:14,440 --> 00:35:17,239 a great deal of howling, wailing and gnashing of teeth 550 00:35:17,320 --> 00:35:21,400 from the trans lobby. Undoubtedly, But what we see here 551 00:35:21,880 --> 00:35:25,400 is an opportunity for those individuals. 552 00:35:24,639 --> 00:35:27,079 Speaker 2: If they are so keen to play on athletic teams. 553 00:35:27,119 --> 00:35:30,519 Speaker 3: And listen, as Kavanaugh mentioned, he is himself, by the way, 554 00:35:30,519 --> 00:35:34,199 a coach has coach women's athletics four years, has multiple 555 00:35:34,280 --> 00:35:36,639 children of his own. He said, I hate the thought 556 00:35:37,159 --> 00:35:40,039 of a kid not getting to play on a sports team. 557 00:35:40,159 --> 00:35:41,239 Speaker 2: I stand it. 558 00:35:41,599 --> 00:35:45,440 Speaker 3: Well, here's an opportunity if indeed these individuals will not 559 00:35:45,559 --> 00:35:48,679 play on teams associated with their natal sex. Here's an 560 00:35:48,679 --> 00:35:52,400 opportunity to let the democratic process work, to go back 561 00:35:52,440 --> 00:35:55,639 into the state houses and to create a third category 562 00:35:55,960 --> 00:35:59,960 for whom biological males with blunted athletic advantage based on 563 00:36:00,039 --> 00:36:03,559 Mormon suppression might be able to compete. And in fact, 564 00:36:03,719 --> 00:36:07,639 there is nothing in Title nine preventing the operation and 565 00:36:07,719 --> 00:36:13,559 application of co ed teams. The regulation specifically states the 566 00:36:13,599 --> 00:36:18,079 regulation includes the opportunity, if there are not enough of 567 00:36:18,159 --> 00:36:21,320 one or the other, to mount a co ed team 568 00:36:21,559 --> 00:36:25,840 and to create co ed divisions, two opportunities for these 569 00:36:25,920 --> 00:36:30,239 children to go out and play athletics without feeling the 570 00:36:30,559 --> 00:36:35,239 sort of stigmatization of going into, for example, a team 571 00:36:35,719 --> 00:36:39,079 with biological girls as natal men. But I do not 572 00:36:39,280 --> 00:36:44,559 believe constitutional or statutory principles of interpretation require the ninety 573 00:36:44,639 --> 00:36:47,239 nine to bend the will of the one. And that 574 00:36:47,400 --> 00:36:51,079 is exactly what we heard in colloquies with Justice Thomas, 575 00:36:51,599 --> 00:36:56,199 Justice Alito, and Justicekavanaugh when they said the law applies 576 00:36:56,639 --> 00:36:59,800 for ninety nine percent of individuals, you are asking us 577 00:36:59,840 --> 00:37:04,119 to create an exception, and both attorneys, both advocates for 578 00:37:04,159 --> 00:37:07,760 the transgender athletes, had to be honest. I admit that, yes, 579 00:37:07,840 --> 00:37:10,079 that was precisely what they were asking for. 580 00:37:10,800 --> 00:37:15,039 Speaker 1: Interestingly enough, as we get ready for the Winter Olympics, 581 00:37:16,079 --> 00:37:22,400 you have the International Olympic Committee starting to get the 582 00:37:22,440 --> 00:37:27,559 fact that men competing in women's sports is a severe 583 00:37:27,880 --> 00:37:31,199 disadvantage for the women, and I hope they learned that 584 00:37:31,320 --> 00:37:34,159 lesson during the last Summer Olympics. When we saw some 585 00:37:35,599 --> 00:37:42,719 very awful things, you know, a biological male insisting that 586 00:37:42,840 --> 00:37:46,880 he was a woman in that boxing ring. I think 587 00:37:46,920 --> 00:37:50,360 that's the image that stays with me, just how badly 588 00:37:50,440 --> 00:37:53,639 beaten that young woman was, and I think that is 589 00:37:53,639 --> 00:37:58,039 an image that stays with a lot of Americans. So 590 00:37:58,079 --> 00:38:02,320 what do we expect in the United States when finally 591 00:38:02,360 --> 00:38:04,599 you have the Olympic Committee coming around to this, but 592 00:38:04,639 --> 00:38:07,360 you have so many politicians here who. 593 00:38:07,199 --> 00:38:11,639 Speaker 3: Refused to Well, that's a great reference historically, because I 594 00:38:11,679 --> 00:38:16,400 think the world stage watching Angela Karini be hit as 595 00:38:16,400 --> 00:38:18,480 hard as she was by a main klief who is 596 00:38:18,519 --> 00:38:21,000 a biological mail but has what's called a disorder of 597 00:38:21,039 --> 00:38:25,679 sexual development a DSD, meaning he is still a biological mail, 598 00:38:26,039 --> 00:38:31,280 but he did not develop naturally the way any biological 599 00:38:31,320 --> 00:38:38,559 mail would develop. However, still stronger, faster, has greater punching capacity, wingspan, 600 00:38:38,920 --> 00:38:44,760 muscle capacity, muscle twitch response, bone density. The physiological advantages 601 00:38:45,320 --> 00:38:46,920 are myriage. 602 00:38:46,639 --> 00:38:49,760 Speaker 2: And so much research has been done. But the fact 603 00:38:49,760 --> 00:38:50,519 that we had. 604 00:38:50,320 --> 00:38:54,079 Speaker 3: To do this research before the International Olympic Committee went okay, 605 00:38:54,320 --> 00:38:57,679 you know what we give. You're probably right there's probably 606 00:38:57,679 --> 00:39:01,639 a disadvantage here. And I think for the female athletes 607 00:39:01,679 --> 00:39:04,800 like Serena Williams, like Martina Nevertlovo who have come out 608 00:39:04,840 --> 00:39:07,960 and say absolutely, I would never play with a man. 609 00:39:08,360 --> 00:39:11,719 It's an un level playing field. It has taken that 610 00:39:12,000 --> 00:39:17,079 much public scrutiny, public controversy, and still to this day, 611 00:39:17,880 --> 00:39:23,880 Emmain Khalif and his trainer refused sex verification tests until 612 00:39:23,880 --> 00:39:28,320 the very end when everyone recognized, oh, look exactly what 613 00:39:28,360 --> 00:39:31,239 we thought. He is a biological male with all the 614 00:39:31,320 --> 00:39:32,719 attendant advantages. 615 00:39:32,880 --> 00:39:34,880 Speaker 2: But the fact that we had to get to. 616 00:39:34,760 --> 00:39:37,800 Speaker 3: That point, Matt, I think is where I find sort 617 00:39:37,840 --> 00:39:42,679 of the cultural schism here, that those purveyors of the 618 00:39:42,760 --> 00:39:48,840 notion of fungibility between sex and gender identity and the 619 00:39:48,920 --> 00:39:53,159 fact that one may identify different than their natal sex, 620 00:39:53,199 --> 00:39:56,519 and we as a culture have to go along with 621 00:39:56,679 --> 00:40:01,280 that self perception an internal reality. It is often malleable 622 00:40:01,639 --> 00:40:04,559 and changing from one day to the next. And I 623 00:40:04,559 --> 00:40:07,639 will drop a footnote here and mention the colloquy between 624 00:40:07,639 --> 00:40:11,960 transgender attorney Chase Strangio during the Scrimmetti War arguments and 625 00:40:12,159 --> 00:40:16,199 Justice Alito, who put Strangio to a very hard question 626 00:40:16,719 --> 00:40:19,159 when he said, what if one day I'm a girl, 627 00:40:19,639 --> 00:40:21,719 the next day I identify as a boy, and what 628 00:40:21,800 --> 00:40:24,920 if the third day I identify as non binary? Is 629 00:40:24,920 --> 00:40:27,000 that an immutable characteristic? And by the way, I am 630 00:40:27,079 --> 00:40:31,079 mutability being that characteristic on which all of our equal 631 00:40:31,199 --> 00:40:38,679 protection questions hinge or sex, national origin, and race. That 632 00:40:38,920 --> 00:40:41,800 was the question. It was the sixty four thousand dollars question. 633 00:40:42,199 --> 00:40:44,840 And Chase Strangio for the ACLU. By the way, one 634 00:40:44,840 --> 00:40:47,840 of the attorneys who also tried to moot the case 635 00:40:48,199 --> 00:40:50,519 for Lindsay Heacocks in the extant. 636 00:40:50,199 --> 00:40:54,840 Speaker 2: Cases we're discussing, said no, justice alito, it is not immutable. 637 00:40:55,360 --> 00:40:59,920 Speaker 3: Well, never an American civil rights jurisprudence has the court 638 00:41:00,119 --> 00:41:05,400 recognize that someone's internal sense of their own reality requires 639 00:41:05,440 --> 00:41:09,159 the rest of American culture to facilitate it. And in fact, 640 00:41:09,559 --> 00:41:14,199 we would not, for example, facilitate an individual who, for example, 641 00:41:14,559 --> 00:41:19,239 was anorexic by withholding food, or a belimic by giving 642 00:41:19,400 --> 00:41:25,400 too much food, or schenzophrenic by entertaining delusions. These are questions, 643 00:41:25,440 --> 00:41:29,920 and again, the American Psychiatric Association for years, dating all 644 00:41:29,960 --> 00:41:33,559 the way back to the seventies, has identified gender dysphoria 645 00:41:33,960 --> 00:41:38,920 as a mental disorder in need of help. We would 646 00:41:38,920 --> 00:41:43,000 not in any other context require the justices to turn 647 00:41:43,039 --> 00:41:46,119 the entire canon of equal protection law on its head 648 00:41:46,559 --> 00:41:51,079 to facilitate an internal reality That is not something on 649 00:41:51,119 --> 00:41:54,920 which I think lawyer worth their salts or any justice 650 00:41:55,320 --> 00:41:58,000 worth their robe would be willing to compromise on. 651 00:41:58,840 --> 00:42:01,320 Speaker 1: Yeah, that is a great, great point, and I think 652 00:42:01,360 --> 00:42:08,519 that is the underlying point to all of this. And 653 00:42:08,559 --> 00:42:11,199 that's the thing I think ultimately, what we have here 654 00:42:11,719 --> 00:42:15,079 we talk about red states and blue states, and Republicans 655 00:42:15,119 --> 00:42:18,960 and Democrats and liberals and conservatives. I think what is 656 00:42:19,000 --> 00:42:21,400 happening in America, has been happening in America for some 657 00:42:21,559 --> 00:42:28,119 time now, is a battle between reality and insanity. And 658 00:42:28,199 --> 00:42:30,159 I think a lot of Americans, like you said, a 659 00:42:30,159 --> 00:42:35,480 lot of Democrats see that certainly on this front. So 660 00:42:37,760 --> 00:42:40,079 this is a huge issue that's taken a lot of 661 00:42:40,079 --> 00:42:43,679 your time. But I must ask as we close, what's 662 00:42:43,800 --> 00:42:48,199 next for defending education? What is next for Sarah Parshall 663 00:42:48,239 --> 00:42:49,920 Perry Well. 664 00:42:49,760 --> 00:42:52,239 Speaker 3: I will tell you that we are tracking three very 665 00:42:52,239 --> 00:42:55,119 interesting cases at the Supreme Court right now, two of 666 00:42:55,159 --> 00:42:58,119 which and a third we are about to have submitted 667 00:42:58,119 --> 00:43:02,199 a meek us briefs on cases directly related to the 668 00:43:02,239 --> 00:43:07,760 constitutionality of so called gender secrecy plans for parents who 669 00:43:07,760 --> 00:43:12,239 have had their children socially transitioned behind their backs, who 670 00:43:12,280 --> 00:43:16,440 have as applied challenges for violation of their parental rights 671 00:43:16,519 --> 00:43:19,760 under the Fourteenth Amendment. And a third that's coming out 672 00:43:19,760 --> 00:43:22,960 of the Ninth Circuit in the state of California Mirabelli 673 00:43:23,079 --> 00:43:26,639 versus Bontam or Banta, and that is specifically requesting an 674 00:43:26,679 --> 00:43:30,920 emergency appeal to the Supreme Court to weigh in and 675 00:43:31,159 --> 00:43:35,199 halt the Ninth Circuit's decision staying a victory for the 676 00:43:35,239 --> 00:43:39,320 parents in the lower court, requesting that the Justices take 677 00:43:39,360 --> 00:43:42,440 it up with the other two cases and finally clarify 678 00:43:42,519 --> 00:43:47,960 once and for all that hiding a minor's gender identity information, 679 00:43:48,559 --> 00:43:53,639 school administrators, teachers, those who hide that information have directly 680 00:43:53,679 --> 00:43:58,159 interfered with that long standing custodial rights to direct the 681 00:43:58,239 --> 00:44:01,960 care and upbringing of one's minor children. At this point, 682 00:44:02,239 --> 00:44:06,480 Justice Alito, Justice Gorsetch, Justice Thomas have not once but 683 00:44:06,760 --> 00:44:10,920 three times weighed in to dissents from denial of sert 684 00:44:11,079 --> 00:44:14,400 in similar cases, saying we have come to the point 685 00:44:14,440 --> 00:44:18,599 where we cannot ignore this question any longer. Those cases 686 00:44:18,840 --> 00:44:22,880 are actually being considered within the next few days in conference. 687 00:44:23,079 --> 00:44:26,920 They have been reconsidered multiple times, as was the Dobbs decision, 688 00:44:27,079 --> 00:44:30,159 as was the Scrimmetti decision. My hope, if we're playing 689 00:44:30,159 --> 00:44:33,679 the numbers game, is that it indicates the justices will 690 00:44:33,719 --> 00:44:36,639 finally take those cases up. And we have maintained for 691 00:44:36,719 --> 00:44:39,000 the better part of six years the only database in 692 00:44:39,000 --> 00:44:42,880 the country tracking the number of gender secrecy policies coast 693 00:44:42,880 --> 00:44:47,159 to coast. At this point there are approaching thirteen million 694 00:44:47,440 --> 00:44:51,800 children who attend schools with these express policies on the books. 695 00:44:52,039 --> 00:44:53,840 Speaker 2: We are eager for the court's resolution. 696 00:44:54,719 --> 00:44:58,199 Speaker 1: Very interesting, We are very eager to be following those cases, 697 00:44:58,199 --> 00:45:00,599 and we will here at the Federalist all the good work, 698 00:45:00,639 --> 00:45:05,920 of course being done at defending education. It's isn't it 699 00:45:06,000 --> 00:45:09,360 sad that we live in such dull time? Sarah. 700 00:45:09,400 --> 00:45:11,760 Speaker 3: I will tell you if you would ask me twenty 701 00:45:11,800 --> 00:45:13,599 seven years ago if this is how I would be 702 00:45:13,679 --> 00:45:15,760 applying my long degree, I would have laughed and said, 703 00:45:15,760 --> 00:45:16,559 absolutely not. 704 00:45:16,800 --> 00:45:20,119 Speaker 2: But this is the age in which we find ourselves. 705 00:45:20,599 --> 00:45:24,119 Speaker 1: Well, twenty seven years ago you would have been laughing 706 00:45:24,280 --> 00:45:28,159 at a president asking what the definition of is is. 707 00:45:28,280 --> 00:45:31,800 But the more things change, the more they they say 708 00:45:31,840 --> 00:45:35,719 the same exactly. Thanks to my guest today, Sarah Parshial Perry, 709 00:45:35,800 --> 00:45:41,079 Vice president and legal fellow at Defending Education, you've been 710 00:45:41,079 --> 00:45:43,719 listening to another edition of the Federalist Radio Hour. I'm 711 00:45:43,760 --> 00:45:47,559 Matt Kittle, Senior Elections correspondent at The Federalist. We'll be 712 00:45:47,599 --> 00:45:51,000 back soon with more. Until then, stay lovers of freedom 713 00:45:51,400 --> 00:45:59,880 and anxious for the fray. 714 00:46:00,239 --> 00:46:00,920 Speaker 5: Two bos