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 experienced Shirpa on today's quest for Knowledge.
As always, you can email the show at radio at
the Federalist dot com, follow us on exit FDR LST.
Make sure to subscribe wherever you download your podcast, and
of course the premium version of our website as well.
Our guest today is Sarah Parshall Perry, Vice president and
legal fellow at Defending Education Little Vheacocks and West Virginia v. BPJ.
He's two Supreme Court cases. If you're not familiar, they
have major implications for women's and girls' sports, whether schools
must allow male athletes to compete on girls teams. The
Supreme Court heard oral arguments on both last week, and
Sarah has a good deal of expertise on this front.
Thank you so much for joining us on this edition
of the Federalist Radio Hour.
Speaker 2: Thanks for having me, Matt.
Speaker 1: You bet remarkable times these and remarkable oral arguments. Let
us begin here with the absolute insanity of what I
like to call the Lola Camp. You remember the Kinks
song Lola, the girls can be boys and boys can
be girls. Side it is. It is indeed a mixed up,
muddled up, shook up world. Supreme Court Justice Samuel Alito
grilled an attorney representing a biological male athlete in the
case of Little v. Peacock's on Tuesday about the definitions
of a woman and girl. This is from Fox News
Alito and Kathleen Heartnet, who is arguing on behalf of
the Idaho student in the Supreme Court case what it
meant to be a boy or a girl, or a
man or a woman when it came to equal protection purposes.
Heartnett said, we don't have a definition, and here we
are against Sarah. We have seen this over and over
and over again. The follow the science folks can't come
up with a definition for a woman. And that is, again,
to my estimation, the underlying insanity of all of this.
Speaker 3: Yeah, I think that indicates exactly where we are culturally.
In fact, the fact that these questions have to go
all the way to the Supreme Court, the highest court
in the land, for resolution, indicates how far we have
strayed from the notion of biological reality and also from
pure textualist application of longstanding federal civil rights law, because remember,
we're not just talking about constitutional challenges here a violation
of the Fourteenth Amendment's Equal Protection clause, but we're also
talking about the implication of Title nine of the Education
Amendments of nineteen seventy two, which has for a long
time acted as a bulwark against sex discrimination in federally
funded education programs and was considered by many to be
the crowning achievement of the women's liberation movement. In fact,
it was a federal court decision coming out of Connecticut
in which a young woman by the name of Susan
Hollander sued her Connecticut high school for failing to offer
a girls track team and preventing her from running with
the boys. But in a i'm dismissal of her litigation
in nineteen seventy one, a federal judge actually wrote the
now infamous term that we need athletic character in our boys,
we don't need that athletic character in our girls. So
it was that kind of sort of outdated sensibility that
motivated the quest for educational quality. But as some have said,
everything old is new again, and biological girls of women
find themselves on the upside down of this argument, trying
to fight for the spaces that their grandmothers had already secured.
Speaker 1: Yeah, we're going to play a little of the audio
here from the questioning, and Justice Alito, per usual, is
right on track and pretty poignant in his questions.
Speaker 4: Is it not necessary for there to be for equal
protection purposes if that is challenged under the equal protection clause?
An understanding of what it means to be a boy
or a girl, or a man or a woman? Yes, sure, hotter,
And what is that definition for equal protection purposes? What
does what does it mean to be a lawy or
a girl, or a man or a woman?
Speaker 2: Sorry, I have a centers to your question.
Speaker 5: I think that the underlying enactment, whatever it was, the policy,
the law the would have, we'd have to have an
understanding of how the state or the government was understanding
that term to figure out whether or not someone was excluded.
We do not have a definition for the court, and
we don't take issue with the We're not disputing the
definition here. What we're saying is that the way it
applies in practice is to exclude birth sex males categorically
from women's teams and that there's a subset of those
birth sex males where it doesn't make sense to do so.
Speaker 2: According to the state's own interest.
Speaker 4: Well, how can you How can a court determine whether
there's a discrimination on the basis of sex without knowing
what sex means?
Speaker 1: For equal protection purposes?
Speaker 5: I think here we just know that we basically know
that the that they've identified pursuing into their own statute.
Speaker 1: What did you think of Justice Alito's frustration through all
of this, And to me it's quite understandable.
Speaker 3: Oh, absolutely, And in fact he is I think one
of my emerging favorite justices because in a lot of
the cases that concern these hot button political questions, and
especially so when there are implications of gender identity, something
we've seen not only in these a pair of cases,
but in the childs versus sala Is Our case earlier
this term, and also in last terms my Mood versus Taylor,
and the US versus Screamtti cases. It is usually Alito
who comes out and says the obvious thing, which is what.
Speaker 2: Does sex mean? Now?
Speaker 3: The fact that he's sitting and very senior, I might
add Supreme Court justice has to ask these questions indicates
how creative some of the litigators have been in trying
to skate the elephant in the room, and that is
what is the nature of biological sex? And on that
colloquy with Kathleen Hartnett, who was representing one of the
transgender athletes, pressing her on the notion of biological sex,
she said, we do not have a definition for the court,
but then said, we're not asking the court.
Speaker 2: To define it.
Speaker 3: We're only asking the court to determine whether, based on
that classification, this individual has been discriminated against. And so
as he asked, exactly the same thing I would, which is,
how can we tell if an individual has been discriminated
against based on this classification? If you can out identify
the classification, that was for me, I think the real
shot across the bow moment.
Speaker 1: It makes you want to pull your hair out as
someone who applies reason to absolutely or at least attempts
to do so. Yeah, it is amazing. But that's how
this argument continues. It's it's a circular firing squad of
an argument and it never gets to it. And that's
obviously the frustration of justice. Alito, Let's let's come, let's
cut through this nonsense now where watching the oral arguments,
there were I think signs from from these oral arguments
that both sides on this issue could grab and say, oh,
well look here they're you know, they're they're talking about,
uh possibility for victory for our side. What did you
What was the ultimate takeaway for you from these these
oral arguments in terms of where this Court may be
standing with this issue.
Speaker 3: It's interesting because the justices, the three liberal justices so
do I or Kagan and Jackson, spent the majority of
their lines of questioning trying to narrow a what I
anticipate to be an upcoming victory for both of the state.
First Justice, so to my was the only one who
seemed even remotely concerned with the arguments advanced by Heacox,
which was that the case was moot because Hecox did
not intend to play sports this year, was readying for graduation,
and had apparently suffered too much of these slings and
arrows of outrageous commentary because of Heacox's presence in the media.
Speaker 2: Over this case. But only so too.
Speaker 3: Mayor and for a very brief period of a few minutes,
asked questions relative to whether the case was moot.
Speaker 2: The rest of the justices did not seem concerned with.
Speaker 3: It at all, So I don't think the moot miss
argument is a winning argument. Then, the other line of questioning,
dedicated specifically to narrowing a potential victory, was related directly
to whether or not we can rule unconstitutional two state
laws for whom ninety nine percent of individuals will be
subject to, but one percent of individuals, those biological males
who have taken the potentially blunting athletic effect drugs like
puberty blockers or cross sex hormones, whether they might be
able to play. And what the Justice is rightly identified
all six of the conservatives was that taking that as
applied versus facial equal protection challenge. And this is sort
of a new creature of American jurisprudence. Is generally, when
we deal with questions of the equal Protection Clause, they
are unconstitutional on their face or they are constitutional on
their face. We don't pick and choose those individuals to
whom the fourteenth Amendment will apply. And so Justice Thomas,
Justice Kavanaugh, Justice Alita rightly pointed out that what the
transgender athlete attorneys we're arguing for here was a very
precise subset a classification within a classification whom those particular
state laws.
Speaker 2: Might not apply.
Speaker 3: And what, just as Alito pointed out, was well, then
you've not asked us to approve and apply intermediate scrutiny,
which we generally use for classifications based on sex, and
that comes from a long line of cases dating all
the way back to Frontierra versus Richardson in nineteen seventy nine.
You are instead asking us to apply the most exacting
constitutional scrutiny, and that is strict scrutiny.
Speaker 2: Which means it must be a.
Speaker 3: Perfect fit for every individual subject to its provisions. The
Constitution does not demand that, It only demands that particular
substantial relation that will satisfy that intermediate tier.
Speaker 2: What these two petitioner.
Speaker 3: Athletic athletes who are competing with biological girls are asking
is to create an exception just for them. That was
what the liberal justice is focused on, and I don't
think it's something the rest of the Court is inclined
to go along with.
Speaker 1: Yeah, I mean, really a very very narrow exception, and
it does beg the question, you know, as a country
of majority rule, but respecting the minority, how far do
you go. I thought this was interesting. My colleague Sean
Fleetwood does an excellent job covering the Supreme Court, and
he covered this extensively. He noted. Chief Justice John Roberts
questioned hee Cox's attorney again, Kathleen Heartlett, about whether or
not the Court should view her position as a quote
challenge to the distinction between boys and girls on the
basis of sex, or whether or not she is perfectly
comfortable with the distinction between boys and girls, but she
just wants an exception to the biological definition of girls.
He also appeared to espouse concern about the can of
worms it would open up should the Court adopt such
a position. What did you think about that exchange?
Speaker 3: Very astute on the Chief's part, I believe, and what
she had said in response did surprise me, and that
she said they are not taking issue. They do not
take umbrage with the state's definitions of male and female
biological sex. And even so to Mayoor, which I thought
was interesting, had to aver that, yes, it was very
clear that is the two prong analysis here, the equal
protection clause and title line. Title line clearly when it
was an Acting seventy two meant biological distinctions between male
and female. And that's precisely what these two states had
replicated in Idaho and in West Virginia. So Kathleen Hartnett
had to be honest and say, we're not taking issue
with the definitions. In fact, it did her well to
make that concession, because to ask the court to pull
from the ether XMLIO this new definition of biological sex,
when we have recognized from time immemorial what that means,
and our entire canon of civil rights laws is organized thereon,
I think would.
Speaker 2: Have been foolish. It would have been a fool's errand
on her part.
Speaker 3: And so she said, I don't take issue with the definitions.
Speaker 2: We are asking foreign exception.
Speaker 3: But again to ask for that exception, as the chief
pointed out, opens an entire can of worms.
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Speaker 1: I think we do need to take a few steps
back here and ask the question, how on earth did
we get to this point? As you had noted before. Understandably,
it is remarkable that we are even asking these kinds
of questions that we are asking. The highest court in
the land have to ask the question, what do you
think a woman is? What do you think a girl is?
But this goes back some time. Your organization has been
working on this for quite some time.
Speaker 2: Tell me.
Speaker 1: Give me a sense of where this all began, how
it got started, and then of course the work that
you folks have done as well at the organization defending education.
Speaker 2: This is very interesting.
Speaker 3: This has actually followed the better part of the past
six years of my professional career because I was senior
counsel at the United States Department of Education in the
Civil Rights Office enforcing and applying Title nine. We actually
worked to create a rule clarifying protections based on sexual
assault and sexual harassment. We clarified protections for free speech
and religiously based education institutions.
Speaker 2: And as we know, there.
Speaker 3: Was subsequent to that, an election and a decision by
the Supreme Court and a little case called Bostock versus
Clayton County and the Biden administration. Once Biden took office
in January of twenty twenty one, one of his first
actions as president was to issue Order one three nine
eighty eight. It is strange that I know that, but
you can tell I've done a lot.
Speaker 2: Of work in this space, Yes you have.
Speaker 3: That particular executive order actually directed the heads of every
federal agency to take all of their statutes, their regulations,
their anti discrimination provisions, and to expand summarily that term
sex to include gender identity or transgender status. And for
his rationale, relied heavily on Bostock versus Clayton County. Well,
as we know, Bostock versus Clayton County was an education
or an employment decision, not an education decision. Specifically, if
an individual is fired as a result of their sexual
orientation or gender identity, have they been discriminated based on sex?
And the majority in an opinion written by Justice Gorsich,
on whom all eyes are resting for this particular decision
at hands actually wrote an opinion saying yes, but only
because you have to consider sex first.
Speaker 2: In fact, he began.
Speaker 3: The opinion with the understanding that Title seven of the
Civil Rights Act of nineteen sixty four, when an acted,
the term sex meant male and female. So Bostog does
not support the holding that the Biden administration argued for.
Speaker 2: But that was of no.
Speaker 3: Matter, and so all of the agencies created new regulations,
the most pressing and applicable of which for purposes of
these cases was on Title nine. That was a regulation created, finalized,
and enforced in August of twenty twenty four, which preceded
the election, obviously of President Donald Trump. But in the interim,
eleven different federal lawsuits were brought against the administration, and
in eleven times the Biden administration lost. Every single time,
nine courts enjoined either permanently or on a temporary basis
the Biden era rule, and two others vacated, meaning threw
it out entirely.
Speaker 2: So we went into August with.
Speaker 3: A patchwork of states across the country in response to this,
and I think seeing the writing on the wall. Back
in twenty twenty and twenty twenty one, Idaho and West
Virginia respectively enacted Save Women's Sports Acts when they recognize
that the Biden Department of Education would no longer act
to protect biological girls, they did with the constitution anticipates
and protects their ability to do which is legislate to
protect their welfare of their own citizens. And in fact,
Idaho and West Virginia were only two of twenty seven
states to enact women's sports protection Acts. It just so
happens that their cases were the first to get to
the Supreme Court. So remember, we are still dealing with
the fallout of the gender identity juggernaut that was a
hallmark of the Biden era administration. And so these state
laws passed democratically, went through the appropriate process, were deliberated upon,
debated on the he House and Senate floors in the
two states, went through the democratic process, were ratified. We're
immediately challenged by the ACLU for violations of the Equal
Protection Clause and Title nine respectively. Now will we get
clarity from the Supreme Court on whether or not to
the title line biden eraror regulation was indeed legal and constitutional.
Speaker 2: No, that may appear. I think in one of the concurrences.
Speaker 3: Thomas may allege certain representations about how it was sort
of extra judicial and.
Speaker 2: It did not have any basis in law.
Speaker 3: I can also see Justice Alito weighing in on the
fact that it violated something called the major Questions doctrine.
But we are not going to see the Court deal
with the legality of that regulation head on. They will
only deal with the questions before them, which are does
a state have a power to restrict men and women's
sports based on biolae logical sex without violating the Fourteenth
Amendment or Title nine? And I think after oral arguments,
it's pretty clear to me that the answer will be yes.
Speaker 1: Yeah. I think so, because if it comes down to
a tenth Amendment States rights issue on this front, you
can look back at Scrimmetti and kind of read the
tea leaves on how this is all going. We'll talk
about that in the moment. Our guest today is Sarah
Parshall Perry, vice president legal fellow at Defending Education. We're
talking about the two major cases in Idaho and West Virginia.
The Supreme Court heard oral arguments on those late and
it really boils down to the key question we've been
talking about for some time, and that is women's and
girls' sports, whether schools must allow male athletes to compete
on girls' teams. So we kind of touched upon it before,
But what do the recent cases inform us about where
these cases will be going as the Supreme Court weighs
all of this stuff.
Speaker 3: Great question you had mentioned the US versus Scrammeti decision.
You know, we've seen not just in Scrimmetti, but also
in the Dabbs decision. Language relative to leaving controversial, hot
buttoned political issues to the reasoned judgment of the legislative bodies,
where people can, through their elected representatives, debate and discuss
these issues and can make the decisions that are most
appropriately suited to the governance of their own citizenry. They
do not want to get involved in questions on which
state legislators have already spoken. In fact, in a decision
dating back to the year two thousand, in case called
Cameron versus EMW Women's Surgical Center, Justice Gorsuch actually wrote
a state's ability to defend its own democratically enacted laws
should not likely be cut off. And that's precisely what
these transgender petitioners are asking for here. They are asking
the Supreme Court to second guess what Idaho and West
Virginia have done, even though the states have benefited from
the democratic process. The people have weighed in through their
elected representatives in very much the same way. I would
be very surprised if that nearly verbatim language does not
make an appearance in these issues here, and I think
it goes to, I think, strengthen the notion of our
federalist system of government, where it is the strict purview,
according to Marbury versus Madison, of the judiciary to say
what the law is, not to make the law or
second guess the law of other states, and that is important.
I think it is a hallmark of the company position
of this Court, and I think we're likely to see
that type of language in the majority opinion in the
women's sports cases.
Speaker 1: That has been a constant theme over many years, but
particularly in the Trump era courts making law, activist courts,
activist judges. We've seen it time and time again. This
issue is part and parcel of all of that. So
on the other side of the coin, Sarah the states
that are have been and continue to be all treands happy.
They want to see men in women's sports, girls in
boys' sports. This kind of thinking would suggest that they
have a right to do whatever they want in their states.
Correct not correct. Where do you see that falling?
Speaker 3: That's a great question, And in fact I have had
people ask me where I believe of this type of
a decision, which we anticipate to be a victory coming
down in terms of what we see states to state,
and in much the same way that we saw post Dubbs,
a bit of a patchwork of laws that either restricted
or expanded access to abortion. As is the nature of
the Tenth Amendment police power to regulate on things like
health safety, welfare, medical licensing, education, We may see the
same thing here. Now, there is one superseding question under
the understanding of the Constitution's supremacy clause, federal law trump's
state law when federal law would be frustrated when the
congressional aims of that body would be frustrated by contrary
state laws. So Title nine stands apart from the equal
protection analysis here. Now California, for example, who takes a
very trans inclusive approach not only to scholastic athletics, but
to all aspects of public accommodations and education accepts federal funding,
they are under no obligation to accept federal funding through
their commitment to follow Title mind. And in fact, I
remember dealing with certifications from state educational associations every year.
Speaker 2: It is a qualification that in.
Speaker 3: Order to get your money from the federal government, you
must covenant and sign a certificate saying we will follow
this cagory of civil rights laws within education. California is
under no obligation to take federal funding, and for that matter,
neither is main and in fact both states are embroiled
currently with litation through.
Speaker 2: The Department of Justice.
Speaker 3: Why because the Department of Justice has said your laws
run contrary to the plain text, statutory meaning, and congressional
history of Title NI. So it will be a very
interesting question as to what happens next.
Speaker 2: Those states will not be.
Speaker 3: Able to litigate their way out of a Title nine challenge. However,
there is some question on what we heard in oral
arguments that equal protection clause may or may not be
sufficient to bring challenges for individuals with blunted athletic advantage.
How that sort of moves forward remains to be seen.
I anticipate we will see one of two outcomes. An
increase in legislation like Idaho's in West Virginia, where states
finally feel sort of the moral fortitude to be able
to say, we've now got Supreme Court backing and we
can indeed protect our girls and women because we have
Supreme Court analysis as our legal cover. Or we will
see an influx in creative new arguments from people like
the Newsome administration or the Janet Mills administration to say
it may violate Title nine, but it does not violate
the equal Protection clause because we are arguing as well
a subclass of individuals might be allowed to play that
will be determined largely largely by the rationale and the
holding of the Supreme Court.
Speaker 1: Fascinating. It takes me back in my time machine to
the late nineties and what the definition of is is.
Speaker 2: It's just I'm also old enough to remember that.
Speaker 1: Yeah, and you know, you know who's old enough to
remember Title nine in the battles therein is Joe Biden.
I don't know if he remembers anything at this point,
but he certainly was around during the Title nine battles,
and do you find it remarkable that we are at
this point where really you are seeing a reversal of
Title nine through these policies that say men can participate
in women's sports.
Speaker 3: I am not surprised because when we saw a sort
of the parting shot from the Obama administration through the
Department of Education, when Catherine Lehman was then Assistant Secretary
for Civil Rights, who parenthetically went on to also be
Assistant Secretary for Civil Rights under Biden.
Speaker 2: So she said two kicks at the.
Speaker 3: Can to effectuate an incredibly progressive administrative aim of transing
everything and transing all the things. One of his parting
shots through Catherine Layman's office was to direct all of
the state educational associations to open their bathrooms two transgender
identified males, regardless of what their biological sex was. That
set the stage for what we saw as a further
battle down the road. Now, serving as I did in
Trump forty five, we did not spend as much time
fighting the gender identity notion and clarifying sex based protections.
Speaker 2: Our work on Title nine was to.
Speaker 3: Clarify sexual assault and sexual harassment were forms of discrimination
under Title nine, and as I said before clarifications based
on free speech and religious education and their institutions. We
now look back and see an opportunity to perhaps be
missed in making sure we relegated specific federal regulations to
the notion of a biological and sext reality. But this
was in the Terminus Bostock we received in the summer
of twenty twenty, and then, of course in the fall
of twenty twenty was the election in which Biden won.
So we really did not anticipate such a sea change
in such a short period of time. I think, recognizing
what we've seen through the Biden administration, and for Heaven's sake,
he appointed a man in address to chair the Department
of Health and Human Services, So tell us again about
biological reality and sex. I'm disheartened from the standpoint that
as a parent of three children who have been through
the public education system, I not only fight this in
the public sphere.
Speaker 2: I've not only thought it at the and of Education
and during.
Speaker 3: My time as the senior legal fellow at the Heritage
Foundation and now as the Vice president and Legal counsel
of Defending Education, but this is something I have walked. Specifically,
my daughter is benefiting from a Title nine athletic scholarship.
I'm d two volleyball right now in college, and I'm
thrilled of the games that Title mind has allowed she
and I to both achieve in our educations and those opportunities.
I am I think flummixed to this day on the
silence of the first wave feminists, those individuals that Betty
Frijans and the Bella Abzugs and the glorious Steinems who
told all of us that a woman needs a man
like a fish needs a bicycle, and then when a
woman's place on an athletic field is divested to a
biological man, they have nothing to say. And I think,
as a woman someone who would not classify myself as
a feminist, but for whom textualist and originalist principles of
legal interpretation have always applied. We have to be honest
on what the progenitor of Title Line meant and what
they anticipated. And some of the floor speeches are absolutely astounding.
Senator Burt buy of Indiana, who was one of the
sponsors of Title Line, got up on the floor and
talked about the fact that we were all familiar with
the old adage that women were pretty little things who
went to college to get an interesting husband and went
to graduate school to get a more interesting husband. And
those were the types of fallacies that title line was
enacted to fight against. And while there was lots of
conference and consternation between sort of left and right wing
factions of the House and Senate, two hundred and fifty
versions of legislation went passed back and forth between those committees.
Gender identity transgender status never appeared once, so we recognized
it was to protect women in nineteen seventy two. When
the Javit's amendments were passed in nineteen seventy four, specifically
on athletics, it was the sense of Congress then after
six days of hearings that nets we meant what we
said in nineteen seventy two. We're not changing anything, We're
just adding athletics. There have been multiple opportunities to expand,
to revise, to amend, but I don't think this particular
Supreme Court will take lightly the interpretation of federal law
that is not supported by a directive from Congress. We
all remember the Watershed West Virginia versus EPA case and
the Clean Air Act shoved through that was instituting millions
of dollars in costs passed off to these co two
producers and their companies and their corporate operations.
Speaker 2: One cannot pass.
Speaker 3: As the Justices wrote a regulation of massive economic and
political significance without clear congressional authority. It's clear the Biden
administration did not have it.
Speaker 2: Then.
Speaker 3: I do believe that of rhetoric will come up at
some point, and one of the justice is concurring opinions here.
Speaker 1: So Betty Free Dan and the Gang, their new Virginia
Slim slogan is You've come along, not you've come a
long way baby, You've come a long way buddy. For
the trans movement in America, it appears to me what
this is. This is perhaps an unfair question because you're
delving in, you know, the legal aspects of all of this,
but you know, law is not in a vacuum. Politics
surround it. What do you think the political ramifications of
all of this will be moving forward.
Speaker 3: It's very interesting to me because the transgender lobby is
a very small and vocal but well funded minority. And
this is as sports are concerned, an eighty twenty issue.
In fact, the most recent ipsis polling indicates that sixty
five percent of Democrats want sports separated by by a
life logical sex. That, in conjunction with Republican right leaning voters,
constitutes eighty percent of the American electorate. So the political
consequences really should not be significant. But do I expect
a great deal of howling, wailing and gnashing of teeth
from the trans lobby. Undoubtedly, But what we see here
is an opportunity for those individuals.
Speaker 2: If they are so keen to play on athletic teams.
Speaker 3: And listen, as Kavanaugh mentioned, he is himself, by the way,
a coach has coach women's athletics four years, has multiple
children of his own. He said, I hate the thought
of a kid not getting to play on a sports team.
Speaker 2: I stand it.
Speaker 3: Well, here's an opportunity if indeed these individuals will not
play on teams associated with their natal sex. Here's an
opportunity to let the democratic process work, to go back
into the state houses and to create a third category
for whom biological males with blunted athletic advantage based on
Mormon suppression might be able to compete. And in fact,
there is nothing in Title nine preventing the operation and
application of co ed teams. The regulation specifically states the
regulation includes the opportunity, if there are not enough of
one or the other, to mount a co ed team
and to create co ed divisions, two opportunities for these
children to go out and play athletics without feeling the
sort of stigmatization of going into, for example, a team
with biological girls as natal men. But I do not
believe constitutional or statutory principles of interpretation require the ninety
nine to bend the will of the one. And that
is exactly what we heard in colloquies with Justice Thomas,
Justice Alito, and Justicekavanaugh when they said the law applies
for ninety nine percent of individuals, you are asking us
to create an exception, and both attorneys, both advocates for
the transgender athletes, had to be honest. I admit that, yes,
that was precisely what they were asking for.
Speaker 1: Interestingly enough, as we get ready for the Winter Olympics,
you have the International Olympic Committee starting to get the
fact that men competing in women's sports is a severe
disadvantage for the women, and I hope they learned that
lesson during the last Summer Olympics. When we saw some
very awful things, you know, a biological male insisting that
he was a woman in that boxing ring. I think
that's the image that stays with me, just how badly
beaten that young woman was, and I think that is
an image that stays with a lot of Americans. So
what do we expect in the United States when finally
you have the Olympic Committee coming around to this, but
you have so many politicians here who.
Speaker 3: Refused to Well, that's a great reference historically, because I
think the world stage watching Angela Karini be hit as
hard as she was by a main klief who is
a biological mail but has what's called a disorder of
sexual development a DSD, meaning he is still a biological mail,
but he did not develop naturally the way any biological
mail would develop. However, still stronger, faster, has greater punching capacity, wingspan,
muscle capacity, muscle twitch response, bone density. The physiological advantages
are myriage.
Speaker 2: And so much research has been done. But the fact
that we had.
Speaker 3: To do this research before the International Olympic Committee went okay,
you know what we give. You're probably right there's probably
a disadvantage here. And I think for the female athletes
like Serena Williams, like Martina Nevertlovo who have come out
and say absolutely, I would never play with a man.
It's an un level playing field. It has taken that
much public scrutiny, public controversy, and still to this day,
Emmain Khalif and his trainer refused sex verification tests until
the very end when everyone recognized, oh, look exactly what
we thought. He is a biological male with all the
attendant advantages.
Speaker 2: But the fact that we had to get to.
Speaker 3: That point, Matt, I think is where I find sort
of the cultural schism here, that those purveyors of the
notion of fungibility between sex and gender identity and the
fact that one may identify different than their natal sex,
and we as a culture have to go along with
that self perception an internal reality. It is often malleable
and changing from one day to the next. And I
will drop a footnote here and mention the colloquy between
transgender attorney Chase Strangio during the Scrimmetti War arguments and
Justice Alito, who put Strangio to a very hard question
when he said, what if one day I'm a girl,
the next day I identify as a boy, and what
if the third day I identify as non binary? Is
that an immutable characteristic? And by the way, I am
mutability being that characteristic on which all of our equal
protection questions hinge or sex, national origin, and race. That
was the question. It was the sixty four thousand dollars question.
And Chase Strangio for the ACLU. By the way, one
of the attorneys who also tried to moot the case
for Lindsay Heacocks in the extant.
Speaker 2: Cases we're discussing, said no, justice alito, it is not immutable.
Speaker 3: Well, never an American civil rights jurisprudence has the court
recognize that someone's internal sense of their own reality requires
the rest of American culture to facilitate it. And in fact,
we would not, for example, facilitate an individual who, for example,
was anorexic by withholding food, or a belimic by giving
too much food, or schenzophrenic by entertaining delusions. These are questions,
and again, the American Psychiatric Association for years, dating all
the way back to the seventies, has identified gender dysphoria
as a mental disorder in need of help. We would
not in any other context require the justices to turn
the entire canon of equal protection law on its head
to facilitate an internal reality That is not something on
which I think lawyer worth their salts or any justice
worth their robe would be willing to compromise on.
Speaker 1: Yeah, that is a great, great point, and I think
that is the underlying point to all of this. And
that's the thing I think ultimately, what we have here
we talk about red states and blue states, and Republicans
and Democrats and liberals and conservatives. I think what is
happening in America, has been happening in America for some
time now, is a battle between reality and insanity. And
I think a lot of Americans, like you said, a
lot of Democrats see that certainly on this front. So
this is a huge issue that's taken a lot of
your time. But I must ask as we close, what's
next for defending education? What is next for Sarah Parshall
Perry Well.
Speaker 3: I will tell you that we are tracking three very
interesting cases at the Supreme Court right now, two of
which and a third we are about to have submitted
a meek us briefs on cases directly related to the
constitutionality of so called gender secrecy plans for parents who
have had their children socially transitioned behind their backs, who
have as applied challenges for violation of their parental rights
under the Fourteenth Amendment. And a third that's coming out
of the Ninth Circuit in the state of California Mirabelli
versus Bontam or Banta, and that is specifically requesting an
emergency appeal to the Supreme Court to weigh in and
halt the Ninth Circuit's decision staying a victory for the
parents in the lower court, requesting that the Justices take
it up with the other two cases and finally clarify
once and for all that hiding a minor's gender identity information,
school administrators, teachers, those who hide that information have directly
interfered with that long standing custodial rights to direct the
care and upbringing of one's minor children. At this point,
Justice Alito, Justice Gorsetch, Justice Thomas have not once but
three times weighed in to dissents from denial of sert
in similar cases, saying we have come to the point
where we cannot ignore this question any longer. Those cases
are actually being considered within the next few days in conference.
They have been reconsidered multiple times, as was the Dobbs decision,
as was the Scrimmetti decision. My hope, if we're playing
the numbers game, is that it indicates the justices will
finally take those cases up. And we have maintained for
the better part of six years the only database in
the country tracking the number of gender secrecy policies coast
to coast. At this point there are approaching thirteen million
children who attend schools with these express policies on the books.
Speaker 2: We are eager for the court's resolution.
Speaker 1: Very interesting, We are very eager to be following those cases,
and we will here at the Federalist all the good work,
of course being done at defending education. It's isn't it
sad that we live in such dull time? Sarah.
Speaker 3: I will tell you if you would ask me twenty
seven years ago if this is how I would be
applying my long degree, I would have laughed and said,
absolutely not.
Speaker 2: But this is the age in which we find ourselves.
Speaker 1: Well, twenty seven years ago you would have been laughing
at a president asking what the definition of is is.
But the more things change, the more they they say
the same exactly. Thanks to my guest today, Sarah Parshial Perry,
Vice president and legal fellow at Defending Education, 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 fray.
Speaker 5: Two bos