Latest / rationally BASED / Episode 28 | Supreme Court 6-3: States Can Keep Biological Males Out of Girls' Sports

Transcript

Episode 28 | Supreme Court 6-3: States Can Keep Biological Males Out of Girls' Sports · rationally BASED

• 0:00
  SPEAKER_03: Welcome back to Rationally Based, a podcast about law and politics on the edge.
• 0:03
  SPEAKER_03: I'm your host, Elon Warman, a law professor at the University of Minnesota Law School.
• 0:07
  SPEAKER_01: I'm Catherine Johnson with Center of the American Experiment.
• 0:10
  SPEAKER_02: And I'm Joshua Kleinfeld, Rouse Professor of Law at Scalia Law School.
• 0:14
  SPEAKER_02: Catherine, what's on deck today?
• 0:16
  SPEAKER_01: Well, this is the fourth of our end-of-term Supreme Court episodes.
• 0:20
  SPEAKER_01: Our focus today will be on the blockbuster transgender cases decided by the Supreme Court on the same day as the birthright citizenship decision.
• 0:29
  SPEAKER_01: First, we'll talk about if Title IX requires that schools let transgender athletes compete against members of the opposite sex.
• 0:37
  SPEAKER_01: And what about the Equal Protection Clause?
• 0:39
  SPEAKER_01: Does that require allowing them to compete?
• 0:41
  SPEAKER_01: Third, what's next?
• 0:42
  SPEAKER_01: Might the equal protection actually require states to ban transgender athletes?
• 0:48
  SPEAKER_01: And of course, throughout, we'll discuss the bigger picture.
• 0:50
  SPEAKER_01: Isn't this all pretty obvious?
• 0:52
  SPEAKER_01: How did we even get here?
• 0:54
  SPEAKER_01: And what is next?
• 0:55
  SPEAKER_03: Let's dive in.
• 1:10
  SPEAKER_03: All right, Catherine, Josh, where do we start?
• 1:13
  SPEAKER_01: I think we should start with a disclaimer that relates to something interesting I noticed throughout the opinions.
• 1:20
  SPEAKER_01: The disclaimer is that every time I do a podcast addressing transgender issues, someone hops in the comments and points out that I have somehow misgendered someone, and it's always people on our side, okay?
• 1:34
  SPEAKER_01: So the pronoun police are now conservatives, apparently.
• 1:37
  SPEAKER_01: I find this very ironic.
• 1:38
  SPEAKER_01: So I want to clarify we will do our best to uh use biologically correct pronouns, avoid words like cisgender, which are nonsensical.
• 1:46
  SPEAKER_01: But look, we're we're all we're podcasting, okay?
• 1:48
  SPEAKER_01: We're talking, we might mess it up.
• 1:50
  SPEAKER_01: No need for the pronoun police on our side to hop in our comments.
• 1:54
  SPEAKER_01: But second of all, this is an interesting point because the decision, uh the people on either side, I mean, the justices took this language question very differently.
• 2:04
  SPEAKER_01: So on one hand, the dissent refers to the plaintiff using trans pronouns, she, throughout the whole opinion and does use the word cisgender, girls.
• 2:14
  SPEAKER_01: So it kind of seemed to me like they were taking a whole other political stance on top of what they were already saying.
• 2:22
  SPEAKER_01: Then you got Justice Thomas in his uh concurrence.
• 2:27
  SPEAKER_01: He seemed to address this actually directly, where he said, I'll quote him, as the court recognizes, this case concerns biological men and boys who identify as girls.
• 2:38
  SPEAKER_01: Men and boys with gender dysphoria are not women or girls, even if they believe that they are.
• 2:43
  SPEAKER_01: Sex is an immutable biological characteristic.
• 2:46
  SPEAKER_01: It is binary, and man and woman, boy and girl are the terms that correspond to adults and children of each sex.
• 2:52
  SPEAKER_01: To use language to obscure reality, to show indifference regarding the truth, is to lie to the public and cease to treat our fellow citizens as equals.
• 3:01
  SPEAKER_01: Fire.
• 3:02
  SPEAKER_01: I thought this was so good.
• 3:03
  SPEAKER_01: He clearly addressed exactly what the dissent was doing.
• 3:06
  SPEAKER_01: And then in the majority opinion, it seemed they didn't use pronouns at all.
• 3:09
  SPEAKER_01: Is that right?
• 3:10
  SPEAKER_01: I think that's what I caught.
• 3:11
  SPEAKER_01: So my first question is to you two.
• 3:14
  SPEAKER_01: If you were on the Supreme Court, how would you handle this language issue?
• 3:19
  SPEAKER_01: And do you think it's as important as clearly Justice Thomas thinks, where you're either telling the truth or you're obscuring the truth?
• 3:28
  SPEAKER_03: I'll probably punt this question to Josh, but just to emphasize, re-emphasize what Catherine just said, right?
• 3:34
  SPEAKER_03: This case, West Virginia v.
• 3:35
  SPEAKER_03: BPJ or BPJ v uh West Virginia, BPJ was born a biological male, um, was uh took uh puberty blockers before puberty, right, identified as female and wanted to perform on and play on a female-only sports team.
• 3:51
  SPEAKER_03: And so the majority just says BPJ, BPJ, BPJ, BPJs, BPJs, BPJs, right?
• 3:57
  SPEAKER_03: When the possessive and sort of Mayor says, you know, she, she, she, and hers, and you know, um, Thomas says, what are we doing here?
• 4:04
  SPEAKER_03: So three different approaches.
• 4:05
  SPEAKER_03: And I don't know, I think Thomas is probably right about the truth of the matter, but isn't it just better, Josh?
• 4:11
  SPEAKER_03: What do you think for Kavanaugh to just be neutral and like not weigh in on this debate?
• 4:16
  SPEAKER_03: On the other hand, can you really avoid getting into these sort of cultural issues?
• 4:21
  SPEAKER_03: You know, so I guess there are two things.
• 4:23
  SPEAKER_03: One is the language question, and then there's sort of a bigger picture question about what this case is about.
• 4:27
  SPEAKER_03: But we'll, you know, let's do the language first.
• 4:29
  SPEAKER_03: What do you think about their use of language?
• 4:31
  SPEAKER_02: I I mean, I this is such a hard issue.
• 4:33
  SPEAKER_02: Um, it's I I'm sort of with you, Elon, that I I think that probably what you do is you just speak the truth and as best you see it, which is that uh we're talking about biological males here.
• 4:46
  SPEAKER_02: Uh but uh unf it's kind of like listen, we're teachers, right?
• 4:52
  SPEAKER_02: When we have trans students, do we uh refer to them by their biological sex rather than their um chosen expression of gender identity?
• 5:03
  SPEAKER_02: And the you know, my decision in that regard is sort of to avoid the issue, like to call them by first names and avoid it where possible.
• 5:11
  SPEAKER_02: And if I have to, I probably use their preferred gender term.
• 5:16
  SPEAKER_02: My reasoning in doing that is that it will distract from the educational mission, which is my duty, to uh uh create a controversy in class over how I gender people.
• 5:32
  SPEAKER_02: Um, I that is a different issue than the statutory interpretation or con law or whatever I'm teaching.
• 5:38
  SPEAKER_02: But you know, the larger issue here is that language and power, this this phenomenon of language being used in ways that have to do with political power and ideology, this is a really old issue.
• 5:51
  SPEAKER_02: So, you know, when um when Catherine mentioned this as a topic, I was reminded of something from college when I read Thucydides.
• 5:59
  SPEAKER_02: So Thucydides wrote the history of the Peloponnesian War, and he wrote it in about 400 BC or 420 BC or something like that.
• 6:08
  SPEAKER_02: And he tells the story of the island of Kosaira, a Greek island, falling into sort of mass violence and civil war because of ideological contestation.
• 6:20
  SPEAKER_02: And he he writes that as the civil war got worse and worse and worse, and the violence got worse and worse, he writes this words had to change their ordinary meaning and to take that which was now given them.
• 6:32
  SPEAKER_02: Reckless audacity came to be considered the courage of a loyal ally.
• 6:36
  SPEAKER_02: Prudent hesitation became specious cowardice, moderation became unmanliness, ability to see all sides of a question became inability to act on any.
• 6:47
  SPEAKER_02: Eventually, even blood became a weaker tie than party, the use of fair phrases to arrive at guilty ends was in high reputation, while the moderate part of the citizenry perished between the two.
• 7:00
  SPEAKER_02: So, folks, he wrote that 2,500 years ago.
• 7:06
  SPEAKER_02: So this is an old pattern.
• 7:08
  SPEAKER_02: When you have these kind of disputes over language itself, so that you can't even talk to each other without sort of taking sides, it's a sign of an ideological fever and it's a sign of utmost partisanship.
• 7:21
  SPEAKER_02: And so what's the answer?
• 7:23
  SPEAKER_02: You know, I I I wish I knew.
• 7:25
  SPEAKER_02: I mean, you can't let people take over your language.
• 7:28
  SPEAKER_02: The moment the majority, which it doesn't quite do, but the moment um like like judges feel that they have to call biological men women or girls because of their proposed gender identity, then you've basically already decided the case.
• 7:45
  SPEAKER_02: It's question begging.
• 7:46
  SPEAKER_02: But if you don't, you are um engaging in an act of combat just by speaking.
• 7:56
  SPEAKER_02: So, Catherine, great question.
• 7:57
  SPEAKER_03: No answers here.
• 7:59
  SPEAKER_03: And uh just on the use of language, you know, it's there's other places in this opinion um where they use language in a certain way.
• 8:06
  SPEAKER_03: Now, we will get into exactly what the opinions held.
• 8:10
  SPEAKER_03: The bottom line, as our listeners probably already know, is that the Supreme Court held that West Virginia and other states are allowed to limit, you know, sports to people of the same biological sex based on, you know, biological sex at birth, whatever you identify as subsequently, right?
• 8:26
  SPEAKER_03: And to me, that seems like the judicial restraint answer, right?
• 8:31
  SPEAKER_03: And just as sort of my or's principal dissent, along with you know the other liberals, would have remanded the court for fact-finding, which is like what what fact-finding could possibly sort of determine this question?
• 8:41
  SPEAKER_03: We'll get to that.
• 8:42
  SPEAKER_03: But she labels it, in her opinion, uh, as the judicial restraint approach, right?
• 8:47
  SPEAKER_03: So I wrote this down.
• 8:48
  SPEAKER_03: Uh she says, excuse me, this litigation implicates deeply sensitive, contentious, and evolving issues.
• 8:54
  SPEAKER_03: True, right?
• 8:55
  SPEAKER_03: And then she goes on to say these circumstances demand exercising judicial restraint, not rushing to answer conclusively difficult questions without sufficient evidentiary development.
• 9:06
  SPEAKER_03: Look how they use language.
• 9:07
  SPEAKER_03: Like they they co-opt the language of judicial restraint to make it appear as though wait, remanding it to a district court so potentially the Supreme Court eventually will decide to disable the states would be judicial restraint.
• 9:19
  SPEAKER_03: No, no, no.
• 9:20
  SPEAKER_03: The majority was the judicial restraint position, right?
• 9:23
  SPEAKER_03: So even here, you know, they use language to dull the mind.
• 9:27
  SPEAKER_03: We come back to this so many times on this podcast.
• 9:31
  SPEAKER_03: Okay, that was a setup with and disclaimer for our use of language.
• 9:35
  SPEAKER_03: Catherine, let's give some background on these cases so we can actually dive in uh to the to the meat of it.
• 9:40
  SPEAKER_01: Well, first of all, this case obviously seems like a huge deal to me.
• 9:44
  SPEAKER_01: It also seems obvious to me, um, but it was a big deal because there were some cases preceding these two that made it seem like the outcome of this one it was a little up in the air.
• 9:54
  SPEAKER_01: We weren't quite sure.
• 9:55
  SPEAKER_01: Um, like Bostok.
• 9:57
  SPEAKER_01: Many conservatives were very unhappy with the outcome of that case and what some of those uh conservative uh justices decided.
• 10:05
  SPEAKER_01: So, first, um let me give some background on these two cases.
• 10:08
  SPEAKER_01: West Virginia and Idaho enacted laws.
• 10:11
  SPEAKER_03: For our listening audience, Catherine, did you air-quote conservative unjustices?
• 10:15
  SPEAKER_01: And I air quoted doing that thing with my fingers.
• 10:17
  SPEAKER_01: I air quoted conservative.
• 10:20
  SPEAKER_03: Okay, go ahead.
• 10:21
  SPEAKER_01: So uh West Virginia and Idaho enacted laws that would ban transgender athletes from participating in the sports teams dedicated to persons of the opposite biological sex.
• 10:32
  SPEAKER_01: So, in other words, biological males who identify as female were prohibited from playing on female sports teams.
• 10:39
  SPEAKER_01: So two transgender athletes sued, and surprise, surprise, the fourth circuit, which is like the new Ninth Circuit, uh, said that it was unlawful on both Title IX and equal protection grounds, or at least it remanded for more fact-finding, like you said, Elon, on the constitutional question, which also seems weird to me.
• 10:59
  SPEAKER_01: And then the Ninth Circuit, which I guess is still the Ninth Circuit at the end of the day, even though Trump has a lot of appointees who have reshaped the court, also ruled that the law was unlawful because it applied heightened scrutiny to discrimination on the basis of their transgender status.
• 11:16
  SPEAKER_01: Now, one important complication in one of the two cases, the BPJ case.
• 11:21
  SPEAKER_01: As we mentioned, BPJ is the challenger from West Virginia.
• 11:24
  SPEAKER_01: The student was in middle school and high school while all of this was going on and had taken puberty blockers and hormones.
• 11:33
  SPEAKER_01: So it was an as-aplied challenge.
• 11:36
  SPEAKER_01: I had to look up what this meant.
• 11:37
  SPEAKER_01: Basically, the claim was that it was unlawful discrimination not to let biological males who've suppressed puberty to participate on a sports team of biological females.
• 11:48
  SPEAKER_01: So it's like a more specific issue than just saying the law is unconstitutional on its face.
• 11:54
  SPEAKER_01: Am I saying that right?
• 11:55
  SPEAKER_03: That's right.
• 11:56
  SPEAKER_03: Or facially unconstitutional is something we say.
• 11:59
  SPEAKER_03: Yeah, that that that's a that's a great setup.
• 12:01
  SPEAKER_03: And let me just uh again, I think our listeners basically know what happened.
• 12:05
  SPEAKER_03: So let me give like a 30-second overview.
• 12:07
  SPEAKER_03: And then I do want to kick it back to Josh, you know, for again, sort of the bigger picture, because we have a fun set of dueling opinions uh here, you know, those uh who seem to tackle the bigger picture and those who, like I think Kavanaugh and the principal dissent maybe uh just uh try to avoid the bigger sort of gender centralism, maybe uh question here.
• 12:26
  SPEAKER_03: But just so six to three, it was a six to three ruling.
• 12:29
  SPEAKER_03: Um Kavanaugh wrote for the whole conservative bloc, Title IX, you know, prohibits discrimination in any educational program, you know, that receives federal funding, right?
• 12:38
  SPEAKER_03: For really any school that receives federal funding, any program, they can't uh discriminate on the basis of sex.
• 12:44
  SPEAKER_03: And since the early 70s when this was enacted, this has been interpreted to permit and possibly to require uh sex segregated uh sports.
• 12:52
  SPEAKER_03: And the court basically said because Title IX effectively allows, if it doesn't quite require, um, sex segregated sports, it doesn't require, as a statutory matter, a carve-out from uh that general rule that the statute uh requires or allows sex segregated sports.
• 13:10
  SPEAKER_03: So you don't have to make exceptions for transgender individuals.
• 13:13
  SPEAKER_03: There's nothing about the statute that says that.
• 13:15
  SPEAKER_03: The Equal Protection Clause in the 14th Amendment is a constitutional question.
• 13:19
  SPEAKER_03: And the bottom line here, which we will we will unpack later uh in the episode, is um the equal protection clause, you know, requires uh permits reasonable classifications.
• 13:28
  SPEAKER_03: Uh sex or gender uh classifications get what's called intermediate scrutiny.
• 13:33
  SPEAKER_03: And by definition, intermediate scrutiny as opposed to strict scrutiny does not require um as narrow tailoring as possible, right?
• 13:42
  SPEAKER_03: Strict scrutiny requires narrow tailoring.
• 13:44
  SPEAKER_03: Um, intermediate scrutiny does not require the utmost narrow tailoring.
• 13:48
  SPEAKER_03: And once that's true, then it seems obvious that you don't have to carve out, you know, uh an exception to the sex segregated sports for someone who identifies uh as transgender.
• 13:58
  SPEAKER_03: And that's what they said, six to three.
• 14:00
  SPEAKER_03: Quite frankly, I don't know if we even have to talk about the opinions anymore.
• 14:02
  SPEAKER_03: Uh that seems so straightforward.
• 14:04
  SPEAKER_03: I think that's the bottom line.
• 14:06
  SPEAKER_03: Uh, but Josh, you had some interesting high-level thoughts that when we were discussing the episode.
• 14:10
  SPEAKER_03: Why don't you share those with our viewers?
• 14:12
  SPEAKER_02: What struck me so much was the ways in which the Kavanaugh and the Soda Mayor opinions, right, which are the majority opinion and the principal dissent, are very similar in a lot of ways.
• 14:22
  SPEAKER_02: And they're similar, they're like a pair because they both avoid all the big cultural issues.
• 14:27
  SPEAKER_02: And by the same token, Thomas's um soil authored uh concurrence and and um Jackson's soil-authored, it's styled partly a concurrence and partly a dissent, are bookends in the same way.
• 14:41
  SPEAKER_02: They take on the big cultural issues.
• 14:42
  SPEAKER_02: And so I thought it would be kind of interesting to unpack this and ask some questions about the judicial role.
• 14:48
  SPEAKER_02: So start with Kavanaugh.
• 14:50
  SPEAKER_02: You know, in the opinion you just described, that avoids all the big questions about, you know, um uh is transgenderism mental illness or is it a genuine third gender?
• 15:05
  SPEAKER_02: Should our law and society be reconfigured to give biological males who identify as women treatment as women?
• 15:11
  SPEAKER_02: I mean, those are the big cultural questions our society is sort of convulsed over, right?
• 15:16
  SPEAKER_02: But what does Kavanaugh do?
• 15:18
  SPEAKER_02: He doesn't get into those questions.
• 15:19
  SPEAKER_02: He says this is about sports.
• 15:21
  SPEAKER_02: Just, in fact, it's just girl sports.
• 15:24
  SPEAKER_02: He doubly limits the question.
• 15:25
  SPEAKER_02: He says it's about girl sports and biological men in girl sports.
• 15:29
  SPEAKER_02: He says he's not even asking the question of biological women in boys' sports.
• 15:33
  SPEAKER_02: He's narrowly uh you know addressing um one particular question.
• 15:38
  SPEAKER_02: And then he says, um uh the the only question we're really facing is do biological males uh who are trans have a right to play in women's sports?
• 15:51
  SPEAKER_02: And building on these ideas of competitive advantage and neurotailering and that sort of thing, he says, no, they don't have a right to case closed.
• 15:59
  SPEAKER_02: So he very much takes a I'm protecting girls' sports angle.
• 16:02
  SPEAKER_02: And actually, if you listen to the oral argument, that's his angle at oral argument.
• 16:06
  SPEAKER_02: And if you read the end of the opinion, he sort of waxes poetic about girls' sports.
• 16:10
  SPEAKER_02: I believe he has daughters who are athletes and he coaches and it's sort of like a shtick.
• 16:16
  SPEAKER_02: Meanwhile, there's sort of Josh.
• 16:18
  SPEAKER_01: Can I add one thing on that?
• 16:20
  SPEAKER_01: I listened to and uh which is the podcast on the other side of us, the way left.
• 16:26
  SPEAKER_03: We we don't name that podcast.
• 16:27
  SPEAKER_01: Sorry, we'll bleep it out.
• 16:28
  SPEAKER_01: I listened to that one podcast that was way on that's way on the left.
• 16:32
  SPEAKER_01: And I actually almost agreed with them on something.
• 16:34
  SPEAKER_01: They kind of cruelly mocked Justice Kavanaugh.
• 16:36
  SPEAKER_01: Okay, so I don't agree with that.
• 16:37
  SPEAKER_01: They mocked him for really weaving this this throughout his um his opinion, this thing about how he's really a good guy because he coaches his girls' basketball team.
• 16:48
  SPEAKER_01: And it's almost like every quote I've seen, he's like, but, but I promise I'm a good guy.
• 16:53
  SPEAKER_01: I'm saying this, but I'm a good guy.
• 16:55
  SPEAKER_01: But the very ending, he ends with everyone needs to be treated well, everything he goes above and beyond to add this language that I thought was almost like he's trying to make excuses for his decision.
• 17:06
  SPEAKER_01: And I just want to put it out there for all conservatives.
• 17:09
  SPEAKER_01: The kind and gracious thing to do is to acknowledge biological gender.
• 17:15
  SPEAKER_01: Truth and acknowledging truth is not inherently somehow mean, is not bad.
• 17:19
  SPEAKER_01: You don't have to go above and beyond and say, but I promise I'm still a good guy.
• 17:23
  SPEAKER_01: And I thought that was kind of what Kavanaugh did in his writing.
• 17:27
  SPEAKER_02: So uh, you know, Sotomayor, in a way, her principle of descent is very similar.
• 17:33
  SPEAKER_02: Um, she basically says, you know, when it comes to BPJ, uh he transitioned or she transitioned, whatever, before puberty.
• 17:40
  SPEAKER_02: Does that create a competitive advantage?
• 17:43
  SPEAKER_02: And she says, that is, Sotomayor says, that's a scientific question.
• 17:47
  SPEAKER_02: So we need to remand to the district court so we can get scientific information.
• 17:51
  SPEAKER_02: We need to have expert witnesses come and testify in the courts to make factual findings, and then we'll know the answer about whether a um a person who transitions before puberty uh qualifies as having a competitive advantage.
• 18:04
  SPEAKER_02: And again, look at the angle.
• 18:06
  SPEAKER_02: It's just sports, it's just competitive advantage, it's it's ordinary factual finding of the kind that courts routinely do.
• 18:14
  SPEAKER_02: But of course, folks, our cultural conflict over this is much, much bigger than that.
• 18:20
  SPEAKER_02: I mean, fundamentally, the question is: is gender chosen or is it given?
• 18:25
  SPEAKER_02: And should our society be reconfigured to make gender a personal choice?
• 18:30
  SPEAKER_02: I mean, why has this issue become about sports at all?
• 18:34
  SPEAKER_02: And I would say there's two reasons.
• 18:36
  SPEAKER_02: One is a federal legal level, lever, rather.
• 18:40
  SPEAKER_02: Um, uh the federal government is funding um um girls' sports programs and schools take federal funding and then come under federal um uh I shouldn't have said that.
• 18:51
  SPEAKER_02: I should have said schools take federal funding and thus are subject to um Title IX requirements, and so Title IX becomes an issue of girls' sports.
• 19:01
  SPEAKER_02: So uh that's how this becomes a sports issue from a legal standpoint, and culturally it's because the competitive nature of sports really puts the trans movement front and center.
• 19:11
  SPEAKER_02: It it provides um vivid images like Leah Thomas standing on the podium taking the gold medal and I think standing six foot four, and it it focuses society.
• 19:23
  SPEAKER_02: But fundamentally, this is not a sports issue.
• 19:26
  SPEAKER_02: This is a much bigger issue than sports.
• 19:28
  SPEAKER_02: And Kavanaugh and Sotomayora are pair because they avoid those big issues and they do it very, very deliberately.
• 19:34
  SPEAKER_02: They do it as a studied kind of conception of the judicial role.
• 19:38
  SPEAKER_02: Meanwhile, Thomas and Jackson go the opposite way.
• 19:42
  SPEAKER_02: Uh Thomas and Jackson show how you would handle this case if you want to take on the big cultural issue.
• 19:48
  SPEAKER_02: So start with Thomas.
• 19:49
  SPEAKER_02: Thomas says gender dysphoria is mental illness, not an immutable characteristic.
• 19:55
  SPEAKER_02: Therefore, gender dysphoric individuals are not a suspect class.
• 20:01
  SPEAKER_02: And finally, the state just needs a rational basis to act contrary to the interests of the mentally ill.
• 20:07
  SPEAKER_02: And so the line that sums it up in Thomas's opinion is quote, a man does not have a legal right to compete against women just because he's just because he believes that he is a woman.
• 20:18
  SPEAKER_02: Right?
• 20:18
  SPEAKER_02: That line captures it perfectly.
• 20:21
  SPEAKER_02: And if you're listening and you're based and you want an opinion that kind of brings the hammer down on this movement in the name of truth, Thomas is your opinion.
• 20:30
  SPEAKER_02: Ah, but what does the other side look like?
• 20:32
  SPEAKER_02: So Jackson says sex in Title IX doesn't just refer to biological sex, it refers to sex and gender identity.
• 20:40
  SPEAKER_02: And here I'm gonna quote her.
• 20:42
  SPEAKER_02: Uh Jackson, that is.
• 20:44
  SPEAKER_02: Title IX makes room for individuals to live in the gender they choose.
• 20:48
  SPEAKER_02: It cares not just about sex assigned at birth, but also about individuals' ability to match or not their gender presentation to their gender identity.
• 20:57
  SPEAKER_02: West Virginia's law forces BPJ to live, and in this case to play, as a boy, though she is a girl.
• 21:05
  SPEAKER_02: It that runs afoul of Title IX.
• 21:07
  SPEAKER_02: So the implication is, you know, the state and other um actors can no more discriminate against trans people than they can discriminate against women under old long-standing federal law.
• 21:19
  SPEAKER_02: So here's the hard question, and I want to put this to both of you.
• 21:22
  SPEAKER_02: Is the narrow avoidance stance of the majority and principal dissent the course of wisdom?
• 21:28
  SPEAKER_02: Is it desirable?
• 21:29
  SPEAKER_02: Is it restrained?
• 21:30
  SPEAKER_02: Does it respect the democracy?
• 21:32
  SPEAKER_02: Does it show the what are in law is in law is called the passive virtues of not getting ahead of the culture?
• 21:39
  SPEAKER_02: Or is this a case where you just have to declare your truth and say it directly and um hope that you have the votes?
• 21:45
  SPEAKER_02: What do you think?
• 21:47
  SPEAKER_03: So it sounds like Catherine's on the side of strict scrutiny was actually right.
• 21:52
  SPEAKER_03: And I think you're on this side, Josh, too.
• 21:54
  SPEAKER_03: Strict scrutiny, in a way, was right to kind of belittle the opinion the way the opinion was written.
• 21:59
  unknown: But
• 22:00
  SPEAKER_03: They would land on the side of Jackson in this Thomas versus Jackson, and you and Catherine would land on the side of Thomas.
• 22:07
  SPEAKER_02: I think I look, um, I I just want to take accept it a little bit.
• 22:14
  SPEAKER_02: I I don't like the um waxing poetic about the greatness of girl sports, but I'm not sure that I'm honestly not sure that Kavanaugh took the wrong approach and being narrow and avoidant in this case.
• 22:28
  SPEAKER_03: Look, in in this case, and maybe it, you know, we can just sort of dive in finally to kind of the legal merits of it.
• 22:34
  SPEAKER_03: I just think it's actually such an obvious case based on existing legal doctrine for the reasons I've already said.
• 22:41
  SPEAKER_03: Like we haven't talked about the the statute yet, which we have to talk about because there's that boss talk, Clayton County BOSTAC, kind of like lurking in the background.
• 22:49
  SPEAKER_03: But under the equal protection stuff, sex classifications get intermediate scrutiny.
• 22:54
  SPEAKER_03: You don't need total narrow tailoring.
• 22:56
  SPEAKER_03: And so obviously the state um can require sex classifications in sports, uh, and it does not have to make carve outs because it doesn't have to do narrow tailoring, because it's not strict scrutiny.
• 23:07
  SPEAKER_03: Uh, and so I just think when a legal avenue to get at the right result is available and you can take that using, you know, avoiding these cultural war bombs and landmines, uh, you should take it, I think.
• 23:21
  SPEAKER_03: But I don't know, I don't want to jump the gun here a little bit, but like same-sex marriage decisions were a bit too legalistic.
• 23:27
  SPEAKER_03: And like sometimes there's just a truth of the matter, and the legalisms just obscure the truth of the matter, and that isn't so good.
• 23:35
  SPEAKER_03: But but maybe this is my way of saying, hey, let's go back to my wheelhouse, which is like the legalistic stuff.
• 23:41
  SPEAKER_03: Um, and uh so and I'll say really quickly.
• 23:44
  SPEAKER_01: I think the idea that this is a culture war issue, like the language is manufactured by the left.
• 23:51
  SPEAKER_01: This is not a culture war issue, this is an issue of truth, and it's only a culture war issue, insofar as the left has decided to out of nowhere start denying biological realities that we as a world and civilization have agreed upon forever.
• 24:09
  SPEAKER_01: And so to say it's a culture war issue, okay, sort of, but only because of one side making it that way.
• 24:15
  SPEAKER_01: And I think if we're in the Supreme Court, they should be on the side of truth and not caring what it's going to do to our culture or our discourse.
• 24:23
  SPEAKER_03: I will just say that I agree 90%, but the other 10% is that truth itself is a culture war, right?
• 24:28
  SPEAKER_03: I mean, moral relativism versus the existence of truth, right?
• 24:32
  SPEAKER_03: I mean, is a cultural issue.
• 24:34
  SPEAKER_03: But but you're right.
• 24:35
  SPEAKER_03: Uh that's why this is so explosive, because to one side it just feels like truth, right?
• 24:39
  SPEAKER_03: Uh and you feel like the other side is manipulating truth.
• 24:41
  SPEAKER_03: So that's that's absolutely true.
• 24:43
  SPEAKER_03: But so let's let's let's unpack the legalistic stuff.
• 24:46
  SPEAKER_03: Let's start with the statute, Title IX, and then we'll talk about Bostok and that awkwardness.
• 24:51
  SPEAKER_03: And then Josh, you you know, you tell me if the legalistic way satisfies you.
• 24:55
  SPEAKER_03: I have a feeling it won't.
• 24:57
  SPEAKER_03: I have a feeling it won't.
• 24:58
  SPEAKER_03: Uh, but we also, you know, talk in advance of these episodes.
• 25:01
  SPEAKER_03: So to our listeners, stay tuned because we'll Josh has some more stuff up his sleeve that I think you'll want to hear.
• 25:07
  SPEAKER_03: Okay, uh, Catherine, um, so should we start with Title IX?
• 25:10
  SPEAKER_01: Yeah, so Title IX, I'll quote it here: prohibited discrimination under any education program or activity receiving federal financial assistance on the basis of sex.
• 25:21
  SPEAKER_01: Two years later, the Javits, is it Javitz amendment?
• 25:24
  SPEAKER_01: So was added, which required administrations to promulgate Title IX regulations and specifically stated the regulations shall include, with respect to athletic activities, reasonable provisions considering the nature of particular sports.
• 25:39
  SPEAKER_01: Then the regulations basically required equal athletic opportunity for members of both sexes and authorized separate teams for members of each sex where selection for such teams was based upon competitive skill or the activity involved is a contact sport.
• 25:57
  SPEAKER_01: So essentially, yeah, established that there should be men's and women's teams.
• 26:00
  SPEAKER_01: But I believe it didn't establish that they need to get equal funding or anything like that.
• 26:05
  SPEAKER_01: It's it's more about the fact that there needs to be equal opportunity, right?
• 26:08
  SPEAKER_03: Right.
• 26:09
  SPEAKER_03: Um, which usually comes too close to equal funding unless there just isn't interest, you know, uh in uh a particular sex in a particular sport.
• 26:16
  SPEAKER_03: But it turns out to be pretty equal, I think, for the most part, though I'm not uh entirely sure.
• 26:20
  SPEAKER_03: Certainly the disparity in funding diminished greatly after the regulations.
• 26:25
  SPEAKER_00: So I think football throws that all uh all off a little, doesn't it?
• 26:28
  SPEAKER_00: But carry on.
• 26:29
  SPEAKER_03: Yeah, that that's probably true.
• 26:30
  SPEAKER_03: That's probably where the big discrepancy actually is from.
• 26:33
  SPEAKER_03: Um so look, the big question here that everyone's wondering and Catherine set up is how is this different from Bostok, which people said was like the end of the conservative uh legal movement.
• 26:42
  SPEAKER_03: So Bostalk was about Title VII.
• 26:44
  SPEAKER_03: Okay.
• 26:45
  SPEAKER_03: So we I already mentioned the there's a constitution, and then the which has the equal protection clause and it has its own line of doctrine, which we already hinted at and we can get more into.
• 26:54
  SPEAKER_03: But then Congress, under its commerce power, which is a whole separate question, like where does that come from?
• 26:59
  SPEAKER_03: Is this really interstate commerce, but whatever, passed a series of anti-discrimination laws which might go beyond the Equal Protection Clause, right?
• 27:06
  SPEAKER_03: So Title VII, uh uh part of the Civil Rights Act of 1964, prohibits discrimination on the basis of race, color, national origin, or sex, okay, uh, in employment.
• 27:17
  SPEAKER_03: Um, interestingly, the inclusion of sex was supposed to be a poison pill by someone who added it at the last minute, and they're like, sure, whatever, let's do it.
• 27:24
  SPEAKER_03: And they passed it anyway, which is kind of a fun history.
• 27:27
  SPEAKER_03: Title IX is, as we said, just the educational programs receiving federal funding.
• 27:32
  SPEAKER_03: You can't discriminate on the basis of sex as well.
• 27:34
  SPEAKER_03: Okay, so Bostok, why was this such a controversial case?
• 27:37
  SPEAKER_03: And why did everybody think this was a problem in this case?
• 27:40
  SPEAKER_03: Well, that involved a transgender individual and I think a gay individual.
• 27:44
  SPEAKER_03: So it was based on sexual orientation.
• 27:46
  SPEAKER_03: It was both, right?
• 27:47
  SPEAKER_03: So it was both both based on gender identity and based on sexual orientation who were fired, I think, by funeral homes.
• 27:53
  SPEAKER_03: I think it was like the Vietnamese community, which is very conservative, and they thought it would harm their business, and so they fired the individuals.
• 28:00
  SPEAKER_03: And so the question in Boston was is firing someone because of their sexual orientation or because of their gender identity, discrimination on the basis of sex, or sorry, discrimination because of sex.
• 28:14
  SPEAKER_03: And the way they basically uh handle that is, and this also kind of leads into the difference, is they said uh everybody agrees, you know, that discrimination, uh it's it's it's discriminatory to fire someone, right?
• 28:28
  SPEAKER_03: Or or or uh you know, the act of firing someone because of some protected characteristic is discriminatory.
• 28:35
  SPEAKER_03: No one doubts that that is sort of a discriminatory act if done for an improper purpose, right?
• 28:40
  SPEAKER_03: And so then the question becomes okay, is sexual orientation, if you fire someone because of that, firing them because of sex and in a very or transgenderism.
• 28:49
  SPEAKER_02: So two different things.
• 28:50
  SPEAKER_02: I think I think that distinction, I not to interrupt Evon, but just to add, you know, Bostok rolled um homosexuality together with transgenderism and treated them really in the same analysis with no distinction whatsoever.
• 29:03
  SPEAKER_02: And I think that's a mistake.
• 29:04
  SPEAKER_02: I think these are different things that should be analyzed differently.
• 29:07
  SPEAKER_02: But go ahead.
• 29:08
  SPEAKER_03: Well, and actually they not only should they be analyzed differently, but they analyzed them the same as sex, just in ordinary sex, right?
• 29:14
  SPEAKER_03: Because yes, yeah.
• 29:15
  SPEAKER_02: Authority.
• 29:16
  SPEAKER_03: Yeah, and and so the literalistic thing that they said was well, look, um, to discriminate on the basis of sexual orientation or gender identity necessarily is discrimination because of sex, because you know, you're basically saying, well, you're basically saying, again, very literalistically, uh, that this man is not acting the way a man should by sleeping with other men, say.
• 29:38
  SPEAKER_03: And therefore, sex is a necessary ingredient of the discrimination.
• 29:41
  SPEAKER_03: And Justice Kavanaugh and Alito and Descent were like, wait a minute, when they passed the Civil Rights Act, when they said because of sex, they meant literally just because you're a man, not because of some other incidence of your activities or behavior, right?
• 29:55
  SPEAKER_03: And obviously, they had no problem uh hiring men and women generally.
• 29:59
  SPEAKER_03: That's not why they're discriminating.
• 30:01
  SPEAKER_03: They're discriminating on the basis of something else that the Civil Rights Act's, you know, legislative drafters didn't sort of uh talk about talk about, think about, right?
• 30:10
  SPEAKER_03: Um, okay, let me just say one last thing about Bostalk, and then Josh, I really want your reactions on this.
• 30:15
  SPEAKER_03: Everyone thought that this is the end of originalism, the end of textualism, because and in a way, like I could I can get it.
• 30:22
  SPEAKER_03: Like there was it was an overly literalistic reading of the text, right?
• 30:27
  SPEAKER_03: And my question after Bostal was always why do we even follow legal text?
• 30:32
  SPEAKER_03: Right.
• 30:32
  SPEAKER_03: This is sort of the deeper question.
• 30:34
  SPEAKER_03: Why do we follow legal text?
• 30:35
  SPEAKER_03: Why are we textualists?
• 30:37
  SPEAKER_03: I think we're textualists, or I'm a textualist, because the text is the best evidence of what the authoritative lawgiver, right, the lawmaker with legitimate authority to alter the legal state of the world, intended to accomplish, right?
• 30:50
  SPEAKER_03: Right.
• 30:50
  SPEAKER_03: And it's uh in this sense, um, I think it's obvious that the lawgiver intent is what matters here, right?
• 30:56
  SPEAKER_03: To say that, well, they were thinking about some other problem, but they said because of sex and sexual orientation necessarily is because of sex, even though they didn't apply themselves to that problem, right?
• 31:07
  SPEAKER_03: They didn't think about that normatively significant future problem because it wasn't on the horizon horizon.
• 31:12
  SPEAKER_03: We've talked about this before, you know, it's just kind of letting accident govern you.
• 31:16
  SPEAKER_03: It's like looking at the sky and saying, oh, there's a wisp of cloud.
• 31:19
  SPEAKER_03: It says don't discriminate on the basis of sexual orientation.
• 31:22
  SPEAKER_03: Let's follow the wisps of cloud as law.
• 31:25
  SPEAKER_03: No, obviously, no, we don't do that.
• 31:27
  SPEAKER_03: We follow, we don't follow the texts that the clouds accidentally write out for us.
• 31:32
  SPEAKER_03: We follow the text of the laws because of the authoritative, the authority of the lawgiver to write those texts, right?
• 31:40
  SPEAKER_03: And so I just I feel like there was a movement in textualism and originalism.
• 31:44
  SPEAKER_03: Like we we rightly reacted to progressive judges being overly adventurous.
• 31:49
  SPEAKER_03: They they said, Oh, we don't have to look at the text.
• 31:52
  SPEAKER_03: Let's just reconstruct some artificial, broad, high-level purpose.
• 31:55
  SPEAKER_03: And our job is to effectuate the purpose.
• 31:57
  SPEAKER_03: And when progressive judges were in charge of the judiciary, they did that.
• 32:00
  SPEAKER_03: And conservatives were right to say, let's just get back to the text.
• 32:04
  SPEAKER_03: But they were wrong, I think, to ignore the connection of the text to the intent of the authoritative lawgiver.
• 32:09
  SPEAKER_03: So I think Bostalk was a serious mistake.
• 32:11
  SPEAKER_03: How they get around that is a separate question.
• 32:12
  SPEAKER_03: But Josh, what you know, you were there too.
• 32:15
  SPEAKER_03: What did what was your reaction to Bostalk?
• 32:17
  SPEAKER_02: I mean, I'm just hooray.
• 32:19
  SPEAKER_02: Three cheers, Ilan.
• 32:20
  SPEAKER_02: I totally agree with you.
• 32:22
  SPEAKER_02: Your point about rightful authority, or I would say legitimacy, I mean all of it.
• 32:28
  SPEAKER_02: My view is something just went wrong in the conservative legal movement.
• 32:33
  SPEAKER_02: I mean, the conservative legal movement started out by trying to cabin judicial activism by appealing to objective content of the law.
• 32:44
  SPEAKER_02: That was what textualism and originalism were about.
• 32:47
  SPEAKER_02: That's what you find if you read like Scalia's manner of interpretation.
• 32:51
  SPEAKER_02: But then something happened as the textualist and originalist movement got very academiciz, got very much a creature of universities and law schools.
• 33:02
  SPEAKER_02: They got theoretical and they started making these elaborate claims about the nature of language or about the nature of intent.
• 33:10
  SPEAKER_02: And it was just amateur philosophy that was poorly done.
• 33:13
  SPEAKER_02: I say that as a philosopher myself.
• 33:15
  SPEAKER_02: I just thought it was, they sort of did bad philosophy instead of good law.
• 33:19
  SPEAKER_02: And the result was they came up with all these sweeping statements like legislative intent is meaningless.
• 33:25
  SPEAKER_02: Well, no, it's not.
• 33:26
  SPEAKER_02: They acted as though it's forbidden to even talk about legislative intent if you're a conservative lawyer.
• 33:32
  SPEAKER_02: Well, that's daft.
• 33:33
  SPEAKER_02: I mean, of course we can talk about legislative intent.
• 33:35
  SPEAKER_02: And in fact, our legal civilization has been talking about legislative intent going back to the British common law in the early days of British statutes before there was an America.
• 33:46
  SPEAKER_02: So this was not an invention of judicial activists.
• 33:52
  SPEAKER_02: This is an ancient tradition of our legal civilization.
• 33:56
  SPEAKER_02: And the result of these theoretical sort of flights of fancy was to encourage modes of interpretation that were totally cut off from context.
• 34:05
  SPEAKER_02: And so what do you get?
• 34:06
  SPEAKER_02: You get something like the Bostok Frankenstein.
• 34:09
  SPEAKER_02: Um, where the author of Bostok, where Justice Gorsuch is saying, sure, the people who wrote Title VII, and everyone at the time who ever read it or thought about it for decades after it was written, thought they were forbidding discrimination based on biological sex.
• 34:25
  SPEAKER_02: Are you a man or a woman?
• 34:26
  SPEAKER_02: What they were specifically focused on, and what the everyone understood the law to mean, was uh you can't um uh you can't pay women less anymore because they're women.
• 34:39
  SPEAKER_02: You have to pay them equally.
• 34:41
  SPEAKER_02: That was what the law meant.
• 34:42
  SPEAKER_02: But a contraire, said the court, uh, even though no one who wrote Title VII or read it would ever have thought they were resolving questions about uh sexual orientation or let alone gender identity, which were not on the radar screen at the time, they did resolve those because of an accident of the language they used.
• 35:01
  SPEAKER_02: And this is not isolated on the conservative side.
• 35:05
  SPEAKER_02: You know, I teach criminal law, and so I teach cases like Bond v.
• 35:08
  SPEAKER_02: United States or Yates v.
• 35:10
  SPEAKER_02: United States.
• 35:10
  SPEAKER_02: These cases are not famous, they don't make it onto public consciousness.
• 35:14
  SPEAKER_02: But let me give just like a 20-second version.
• 35:16
  SPEAKER_02: In Bond v.
• 35:18
  SPEAKER_02: United States, there was a woman, Carol Bond, who found out that her best friend was pregnant with her husband's child, and she got really, really mad.
• 35:28
  SPEAKER_02: And so she got this like chemical itching powder, like an irritant powder, and put it on her romantic rival, former best friend's door handle.
• 35:36
  SPEAKER_02: She was prosecuted by federal prosecutors under a statute addressed to the Chemical Weapons Implementation Act.
• 35:45
  SPEAKER_02: She was prosecuted as if she were a terrorist using a chemical weapon.
• 35:49
  SPEAKER_02: In a literal sense, I guess this itching powder is a chemical weapon.
• 35:54
  SPEAKER_02: This is totally crazy and absurd, right?
• 35:58
  SPEAKER_03: But it's a weapon It's a weapon and it's chemical, but it's not a chemical weapon in the sense that they intended.
• 36:06
  SPEAKER_02: Yeah, like if I'm mad at you and I spray Windex at you, I'm not doing a chemical weapons attack, right?
• 36:12
  SPEAKER_02: Here's another case.
• 36:13
  SPEAKER_02: Oh gosh, you've you've violated the convention against the use of chemical weapons.
• 36:17
  SPEAKER_02: Well, they prosecuted her for that, but you would think it was like a joke, right?
• 36:21
  unknown: Right.
• 36:21
  SPEAKER_02: Federal prosecutors decided to do the prosecution, the district court judge decided in their favor, the circuit court, three judges decided in their favor, the Supreme Court decided against them and in favor of Carol Bond, but by a narrow majority.
• 36:34
  SPEAKER_02: I mean, this literalistic version of textualism, and I agree with you, Elon.
• 36:39
  SPEAKER_02: You could be a textualist without this craziness, but the craziness has crept into textualism.
• 36:43
  SPEAKER_02: Here's another case, Yates v.
• 36:45
  SPEAKER_02: United States.
• 36:46
  SPEAKER_02: Not a famous case, but I love it.
• 36:48
  SPEAKER_02: Um a commercial fisherman was caught by fish and wildlife or by the Coast Guard or something with fish that were too short.
• 36:57
  SPEAKER_02: And he swapped them out and replaced them with fish that were long enough so he wouldn't get a ticket.
• 37:02
  SPEAKER_02: Prosecutors prosecuted him under the Sarbanes-Oxley Act.
• 37:06
  SPEAKER_02: That's the act meant to address uh like Arthur Anderson, Enron style corporate fraud.
• 37:13
  SPEAKER_02: And they prosecuted him because the relevant piece of a statute, a relevant piece of the Sarbanes-Oxley Act, said anyone who destroys records, documents, or other tangible objects to interfere with a federal investigation shall be found guilty of a felony.
• 37:29
  SPEAKER_02: Well, a fish is a tangible object.
• 37:32
  SPEAKER_02: So we got you.
• 37:33
  SPEAKER_02: Yeah, I mean, a fish is made of matter, but that doesn't make it a you know, so again, this is craziness.
• 37:40
  SPEAKER_02: It's a crazy way of reading statutes.
• 37:43
  SPEAKER_02: It opens up new forms of legal manipulation.
• 37:45
  SPEAKER_02: The point of the textualist originalist movement was to have a more objective, more defensible kind of law.
• 37:51
  SPEAKER_02: But now, instead of the old style of legal manipulation, lying about legislative intent, the new style of legal manipulation is finding word games, ways of manipulating text.
• 38:03
  SPEAKER_02: Your point, Ilan, is exactly right.
• 38:05
  SPEAKER_02: It undermines the basic premise of legal authority, legitimacy of the law, right?
• 38:11
  SPEAKER_02: The uh who is the lawgiver and what did they instruct us?
• 38:15
  SPEAKER_02: And notice this is my fixation and obsession.
• 38:18
  SPEAKER_02: Notice what it does to democratic decision making.
• 38:21
  SPEAKER_02: Our society in the last 25 years has been convulsed over the question of homosexuality and transgenderism.
• 38:29
  SPEAKER_02: Like we are, put it this way, we are apprised as a society of a controversy about these fundamental choices of value and the direction our civilization is going to go.
• 38:40
  SPEAKER_02: And when you have a big civilizational conflict in a democracy, what do you do with it?
• 38:46
  SPEAKER_02: You vote on leadership and you make decisions as a democracy, maybe as a federal democracy, and you resolve them.
• 38:52
  SPEAKER_02: What did Bostok do?
• 38:54
  SPEAKER_02: It took them out of the hands of the people and said, Oh, you already resolved this by an accident of old federal law that you didn't even know was resolving this.
• 39:03
  SPEAKER_02: So, from every perspective, we have this Bostok craziness and um a generation of young textualists.
• 39:11
  SPEAKER_02: I see them in my classes who think this is the right way to go and it's crazy.
• 39:16
  SPEAKER_01: So, okay, now my question is how did these decisions end up so different from Bostok?
• 39:23
  SPEAKER_01: Wouldn't these both be cases of discrimination based on that ruling?
• 39:29
  SPEAKER_03: That's that's what everyone feared, right?
• 39:32
  SPEAKER_03: Uh, because of the Bostalk ruling.
• 39:34
  SPEAKER_03: Catherine, I'll answer that question.
• 39:35
  SPEAKER_03: Can I ask you a question first?
• 39:37
  SPEAKER_03: So the the one possibility that you know textualists say, well, forget intent.
• 39:43
  SPEAKER_03: It's the original public meeting that matters, how the public would have understood it.
• 39:47
  SPEAKER_03: But I think the public would have understood it the same way, right?
• 39:49
  SPEAKER_03: Catherine, if you were there and the guy dumped the red grouper fish because they were undersized and you saw the statute, oh, documents, what is it, Josh?
• 39:58
  SPEAKER_03: It's documents, records, and other tangible objects.
• 40:01
  SPEAKER_03: Would you be like, oh yeah, grouper fish, tangible object?
• 40:04
  SPEAKER_03: Or would you be like, no, the statute has nothing to do with it?
• 40:07
  SPEAKER_03: Yeah.
• 40:07
  SPEAKER_01: I wouldn't, Elon, because you I listened to rationally based.
• 40:10
  SPEAKER_01: I'm on rationally based, and I know that Elon has taught me that you have to use the context and the words around it.
• 40:16
  SPEAKER_01: You even have a fancy name for this.
• 40:18
  SPEAKER_01: If you talk about banks in the context of a river, well, I'm gonna ruin this, but you're not talking about monetary, you know, banks.
• 40:26
  SPEAKER_01: You're talking about the banks of a river.
• 40:28
  SPEAKER_01: So you have to take context into account, and clearly they didn't mean fish here.
• 40:33
  SPEAKER_03: Yes, it's called the No Center Associates canon or the neighboring words canon or the words.
• 40:38
  SPEAKER_01: I knew that a stupid name.
• 40:39
  SPEAKER_02: But Catherine is also right that stupid names aside, it's just common sense.
• 40:44
  SPEAKER_03: That's right.
• 40:45
  SPEAKER_03: Well, okay, good.
• 40:46
  SPEAKER_03: So that's so that's out of, you know, um uh that solves that problem to anyone who says, well, original public meeting is what matters.
• 40:52
  SPEAKER_03: One other point, and then I'll answer the Bostal thing.
• 40:54
  SPEAKER_03: I've um this goes back to a theme that we've talked about multiple times, the major questions doctrine.
• 40:59
  SPEAKER_03: I'm actually working on a paper about this.
• 41:01
  SPEAKER_03: Like everyone's debating like, when does the majorness matter?
• 41:04
  SPEAKER_03: You know, and I think the majorness matters today, because if it's major today, it's the kind of question that the legislator, the legislature, the legitimate lawgiver today should address itself to.
• 41:16
  SPEAKER_03: And by implication, when it wasn't an important issue a hundred years ago, when the FDC Act was enacted, or the Federal Trade Commission Act was enacted, or when the you know, EPA laws uh whatever were enacted, well, then we know that the legislator back then didn't apply itself to it either.
• 41:33
  SPEAKER_03: And so, like, we're literally governed by accident and force.
• 41:36
  SPEAKER_03: How many times do I have to quote the Federalist on this, right?
• 41:38
  SPEAKER_03: Rather than reflection and choice.
• 41:40
  SPEAKER_03: Birthright citizenship, we've talked about it in the same context.
• 41:42
  SPEAKER_03: They weren't thinking about these issues 150 years ago.
• 41:45
  SPEAKER_03: We the people have not told us ourselves what we think about the issue today in a constitutional amendment.
• 41:50
  SPEAKER_03: We're just being governed by accidental force of language.
• 41:52
  SPEAKER_03: Joshua, it's the same thing with Boss Talk, isn't it?
• 41:55
  SPEAKER_03: And it's the same thing with the dissent today.
• 41:57
  SPEAKER_02: So you know it's interesting, Nilan, because on prior episodes, you and I have argued about legal interpretation and taken different perspectives on it.
• 42:04
  SPEAKER_02: But sometimes when you talk, I'm just like, yes, yes, yes, yes, yes.
• 42:07
  SPEAKER_02: And I one of these days we'll have to figure out exactly where we agree and where we disagree.
• 42:11
  SPEAKER_02: I think we mostly agree.
• 42:12
  SPEAKER_02: I'd agree with what you just said.
• 42:14
  SPEAKER_03: And one day, like we'll have Adrian Vermule on, and now hopefully he's listening.
• 42:20
  SPEAKER_03: And so we'll, you know, not talk about common good constitutionalism probably on the episode because we've got a lot of administrative law things we want to ask him about.
• 42:26
  SPEAKER_03: But one thing I've always not I've not quite understood is I don't know, I I find him persuasive a lot of the time, but I also think my originalism is consistent with a lot of what he says because I just think I'm reasonable about how people actually would have um interpreted language and the purpose for which we use language and statutes and so on.
• 42:44
  SPEAKER_02: So I'm I anyway, Adrian, I know we'll talk about the other stuff as well, but uh but but Elon, let's get into like okay, so we've talked about how crazy and uh Bostok was and why it was crazy, and that's worth doing, and we've unpacked it.
• 42:57
  SPEAKER_02: So this court in BPJ, our our present case, our trans case, had to distinguish Bostok.
• 43:05
  SPEAKER_02: How did they do it and is it sound?
• 43:08
  SPEAKER_03: Okay, so forcing me to answer Catherine's question, which was a good one.
• 43:11
  SPEAKER_03: So Catherine, I will uh answer the question.
• 43:14
  SPEAKER_03: So here's what they basically said.
• 43:16
  SPEAKER_03: Gorsuch said in concurrence, and the majority basically said this, but let me start with Gorsuch, I guess, because it's a little bit uh cleaner.
• 43:23
  SPEAKER_03: He's like, this is totally consistent with Bostok.
• 43:26
  SPEAKER_03: This is totally consistent with Bostok, okay?
• 43:28
  SPEAKER_03: Uh I just see the thoughts churning in my co-host's brain right now.
• 43:33
  SPEAKER_03: Like, how do you know what he's saying?
• 43:36
  SPEAKER_02: Well, he doesn't just say this is totally consistent with Bostok.
• 43:38
  SPEAKER_02: He's like, no, no, this is really, really consistent with Bostock.
• 43:41
  SPEAKER_02: Listen to me.
• 43:42
  SPEAKER_02: If you just understand Bostak, it is so consistent with Boston.
• 43:44
  SPEAKER_02: It is so I was right about Bostok, and I'm right about BPJ, and they're consistent.
• 43:48
  SPEAKER_02: And here's what like it's really uh you know, he doth protest too much.
• 43:53
  SPEAKER_03: But he got it birthright citizenship right, so all is forgiven.
• 43:57
  SPEAKER_03: All is forgiven.
• 43:58
  SPEAKER_03: Okay.
• 43:59
  SPEAKER_03: Uh so Basically, he said, look, it's three steps.
• 44:02
  SPEAKER_03: Step number one, sex means biological sex.
• 44:04
  SPEAKER_03: That's always been true.
• 44:05
  SPEAKER_03: Okay.
• 44:06
  SPEAKER_03: Step number two, because of sex or on the basis of sex, also mean the same thing here.
• 44:12
  SPEAKER_03: Sex merely needs to be a factor in the discrimination.
• 44:16
  SPEAKER_03: So Boss talk and this case, BPJ, are identical on those first two steps.
• 44:21
  SPEAKER_03: The difference is simply in Boss Talk, that was discrimination.
• 44:26
  SPEAKER_03: Here, it wasn't discrimination.
• 44:28
  SPEAKER_03: Everyone agrees that firing someone is discrimination.
• 44:32
  SPEAKER_03: Whereas here, if it's from improper purpose, whereas here, we all agree that Title IX requires or at least authorizes sex segregated um sports because that is what gives women equal opportunity.
• 44:45
  SPEAKER_03: So the classification using sex here is using sex in a non-discriminatory manner.
• 44:52
  SPEAKER_03: So yes, sex is involved.
• 44:54
  SPEAKER_03: Yes, the statute is on the basis of sex, and but it's not um discrimination.
• 45:00
  SPEAKER_03: But it's not discrimination because firing someone because of their sex is discrimination, telling BPJ you have to play on the sports team of your own biological sex is not.
• 45:13
  SPEAKER_03: And this is effectively what the majority said as well.
• 45:15
  SPEAKER_03: So I I'll skip that part.
• 45:17
  SPEAKER_03: But my big question for you, Josh question number one is is this persuasive?
• 45:22
  SPEAKER_03: Question number two, really, which might be the same question, isn't this question-bending?
• 45:26
  SPEAKER_03: In other words, how do we know that firing someone because of sexual orientation is invidious discrimination, as opposed to a reasonable thing to do if you're like a conservative funeral home in the Vietnamese community?
• 45:39
  SPEAKER_03: And how do we know that segregating on the basis of sex uh in sports is not an invidious discrimination and is actually a good classification, right?
• 45:48
  SPEAKER_03: So this goes to the qu so it seems entirely question-banking, actually, what the both he and the majority have done here.
• 45:54
  SPEAKER_03: And so I think there are two possibilities, and then I'll throw it back to you.
• 45:57
  SPEAKER_03: One is like generally speaking, and this also bleeds into the equal protection analysis, how do we know what is a legitimate classification versus an invidious discrimination?
• 46:06
  SPEAKER_03: We talked about this with the trans in the military episode, right, Catherine?
• 46:09
  SPEAKER_03: You might remember we talked about this.
• 46:10
  SPEAKER_03: All laws make classifications, a point Josh has made as well.
• 46:14
  SPEAKER_03: So why are some classifications like doctors should have an MD to practice medicine, right?
• 46:19
  SPEAKER_03: Why are some classifications good?
• 46:20
  SPEAKER_03: See, I'm bringing it back to all our prior episodes to the listeners, you got to go back and uh and catch up.
• 46:25
  SPEAKER_03: Those classifications are connected to some legitimate government purpose or the purpose of the right, right?
• 46:30
  SPEAKER_03: And so how do we know that like the black codes are obviously an invidious discrimination?
• 46:35
  SPEAKER_03: Well, because race has nothing to do with property rights, race has nothing to do with contract rights, race is just generally irrelevant.
• 46:40
  SPEAKER_03: Okay, same thing with the gay code, by the way.
• 46:42
  SPEAKER_03: If it said gays can't own guns, gays can't own property, that would be invidious discrimination.
• 46:48
  SPEAKER_03: But should marriage be limited to a man and a woman?
• 46:51
  SPEAKER_03: Ah, well, is that a reasonable classification that legitimately advances the purpose of marriage, or is it does it is it not, and therefore an invidious discrimination, right?
• 47:02
  SPEAKER_03: Now, I will say one other possibility here that makes this easier.
• 47:06
  SPEAKER_03: Maybe it's like the affirmative action cases, because classifying in an attempt to like help one person be PGA or help an underperforming, say, African-American student necessarily discriminates against other groups on the basis of protected characteristics.
• 47:22
  SPEAKER_03: So in the affirmative action cases, you know, helping black and Hispanic students necessarily discriminates against um whites and Asians when it's zero sum.
• 47:31
  SPEAKER_03: Here, if it's sports or zero sum, some people don't make the team.
• 47:34
  SPEAKER_03: Some people won't get those medals.
• 47:35
  SPEAKER_03: You are necessarily discriminating against biological women who identify as women, right?
• 47:40
  SPEAKER_03: Um, by allowing um a uh a biological man into the sports team.
• 47:45
  SPEAKER_03: So maybe the easier way to figure this out is there's discrimination on a protected characteristic by allowing them to participate.
• 47:53
  SPEAKER_03: So the point my point is it seems question-begging.
• 47:55
  SPEAKER_03: We have to know, figure out how do we know what a discrimination is versus a classification?
• 47:59
  SPEAKER_03: And they kind of just dodge that.
• 48:01
  SPEAKER_03: Okay, reactions.
• 48:03
  SPEAKER_02: I mean I can follow all the distinctions you're invoking or the majority invokes, or or indeed Sotomayor's descent invokes, right?
• 48:16
  SPEAKER_02: Or Grosicha's concurrence, like this endless train of distinctions for, you know, again, why is Bostok different from this?
• 48:23
  SPEAKER_02: Um but at some level, I think a lot of these distinctions are unpersuasive or even kind of ridiculous.
• 48:33
  SPEAKER_02: I mean, I I have spent my adult life in the law, and I've come to think that the capacity to make these sorts of distinctions, so that, you know, oh no, these two cases really are different, or this statute really means X when you thought it meant Y, like the capacity to weave an intellectual web that gets to that outcome you want to get to, I think that capacity is infinite.
• 48:58
  SPEAKER_02: And like if person A cannot see a way to manipulate legal materials to get to a desired outcome, add a few uh IQ points and person B can do it.
• 49:08
  SPEAKER_02: And if person B can't do it, add a few more IQ points and person C can do it, so that every act of intellectual manipulation just has a sort of threshold level of intelligence, which by the way, does not speak well of intelligence itself.
• 49:21
  SPEAKER_02: Like the very capacity of intellection that we honor is not necessarily a truth-finding capacity, it's a manipulation capacity, uh, which should make us skeptical of intellect itself in some in some contexts when it's not truth-oriented.
• 49:39
  SPEAKER_02: So let's talk big basic directions of thought that are more reliable.
• 49:45
  SPEAKER_02: The reason Bostok seems like it probably would resolve this case is the big question we're facing as a society and as a as lawyers is is it okay to disfavor transgender people or not?
• 49:59
  SPEAKER_02: Bostok says it's okay it's not okay to disfavor transgender people in the employment context.
• 50:07
  SPEAKER_02: And BPJ says it is okay to disfavor transgender people in the sports context.
• 50:13
  SPEAKER_02: And it's just hard to see.
• 50:14
  SPEAKER_02: I mean, listen, what does the left say?
• 50:16
  SPEAKER_02: Left says if you disfavor transgender people, if you don't accept their gender identity and include them in all things according to their gender identity, you're a bigot, right?
• 50:25
  SPEAKER_02: That's wrongful discrimination because this is a true identity that has to be honored.
• 50:30
  SPEAKER_02: And what does the right say?
• 50:31
  SPEAKER_02: The right says this is mental illness, this is not a true identity, we do not have to, and it would be dangerous for us, it would be destructive for us to honor this identity.
• 50:40
  SPEAKER_02: So the big impulses on both sides say you either are wrongfully discriminating against transgender people in all contexts, or you're not.
• 50:48
  SPEAKER_02: And here the court is making this distinction between Title VII and Title IX, between um employment and sports, between, I mean, I can distinguish them.
• 50:59
  SPEAKER_02: Title VII is a seven and title IX is a nine.
• 51:02
  SPEAKER_02: There's two more.
• 51:04
  SPEAKER_02: Is that a good distinction?
• 51:05
  SPEAKER_02: So I just just to finish the thought.
• 51:10
  SPEAKER_02: I can follow the distinctions.
• 51:12
  SPEAKER_02: I think at some level they're specious.
• 51:16
  SPEAKER_02: There is an argument that seems serious to me, and I want to acknowledge it, which is basically the argument that in most employment decisions, you're not hurting anyone, right?
• 51:27
  SPEAKER_02: So you include transgender people, you don't discriminate against them.
• 51:31
  SPEAKER_02: Maybe somebody else didn't get the job, but you're not in a zero-sum competitive way, like directly hurting someone.
• 51:37
  SPEAKER_02: But in sports situations, if I choose person A, I'm presumably person B doesn't make the team.
• 51:43
  SPEAKER_02: If person A medals, person B doesn't.
• 51:46
  SPEAKER_02: If Leah Thomas gets the gold, what was the Emma Wyant, I think, was the um silver medalist, does not get the gold.
• 51:54
  SPEAKER_02: Um so maybe that's the distinction.
• 51:56
  SPEAKER_02: Uh I guess I can see it.
• 51:58
  SPEAKER_02: I don't buy it.
• 52:00
  SPEAKER_02: What do you guys think?
• 52:01
  SPEAKER_01: Well, isn't there, I'm not saying I agree with this, but isn't there another distinction between sports and employment in just the way the biological reality of um people's bodies and their ability to play sports?
• 52:15
  SPEAKER_01: I mean, how does that factor in?
• 52:17
  SPEAKER_01: Because now you create a dangerous situation potentially that doesn't exist anywhere in employment, I don't think.
• 52:24
  SPEAKER_01: Um, whereas in sports, I mean, uh, I think it was Peyton McNabb.
• 52:28
  SPEAKER_01: She was the one who's, you know, permanently um injured for the rest of her life because of a transgender that in a volleyball game smacked, it was this is a man, smacked a volleyball into her head and she will never be the same again.
• 52:41
  SPEAKER_01: Isn't that different than employment from that perspective?
• 52:44
  SPEAKER_01: Is that a point anyone made?
• 52:46
  SPEAKER_03: Yeah, so so this you know actually bleeds into the equal protection analysis, which is really hard to disentangle from the statute, right?
• 52:53
  SPEAKER_03: Because as we've just suggested, it's all question begging.
• 52:56
  SPEAKER_03: Why is one thing discrimination versus another?
• 52:58
  SPEAKER_03: And that's the question under you know the statute.
• 53:02
  SPEAKER_03: I mean, I mean, the statutory question, the Boston question was is sexual orientation even protected?
• 53:06
  SPEAKER_03: All right.
• 53:07
  SPEAKER_03: So that's a separate question.
• 53:09
  SPEAKER_03: Uh but the point is, let's how do we know it's a discrimination versus not a discrimination?
• 53:14
  SPEAKER_03: It's the same thing in equal protection analysis.
• 53:16
  SPEAKER_03: Some characteristics will never be relevant, like race.
• 53:19
  SPEAKER_03: So they get strict scrutiny, right?
• 53:21
  SPEAKER_03: It has to be, you have to have a really compelling government interest, and it has to be the government's regulation or classification has to be very narrowly tailored.
• 53:27
  SPEAKER_03: So, like race, like a race riot in a prison.
• 53:30
  SPEAKER_03: Like the court has like once said you can consider race and you could segregate in prisons to avoid race riots.
• 53:36
  SPEAKER_03: Compelling government interest, you know, narrowly tailored.
• 53:39
  SPEAKER_03: Things like sex and sexual, well, things like sex get intermediate scrutiny because they will sometimes be relevant, right?
• 53:48
  SPEAKER_03: And um, which is so intermediate scrutiny has to be an important government interest.
• 53:53
  SPEAKER_03: Um, and the regulation or classification doesn't have to be narrowly tailored.
• 53:57
  SPEAKER_03: It just has to sort of substantially advance that interest.
• 54:00
  SPEAKER_03: This is why this was an easy case, right?
• 54:03
  SPEAKER_03: Sex segregated uh sports clearly uh empowers women, clearly creates equal opportunity for women to participate.
• 54:11
  SPEAKER_03: That was the whole point, right, uh of creating sex segregated schools.
• 54:15
  SPEAKER_03: And because it's intermediate scrutiny and you don't need a precise fit, you can carve, you don't have to carve out transgender individuals.
• 54:22
  SPEAKER_03: You just don't, because you don't need that precise fit.
• 54:24
  SPEAKER_03: Well, it's the same thing to your question, Catherine.
• 54:26
  SPEAKER_03: You could say sexual orientation or gender identity will sometimes be relevant, right?
• 54:32
  SPEAKER_03: And so you don't it doesn't get strict scrutiny because it sometimes will be relevant, for example, in the sports context.
• 54:38
  SPEAKER_03: So one could say, um, but but in the same way that being gay is almost never relevant, uh, and therefore a gay code saying gays can't own guns, I think would be unconstitutional.
• 54:48
  SPEAKER_03: That would be an invidious discrimination, okay?
• 54:51
  SPEAKER_03: But gay, being gay can be relevant to things like marriage, right?
• 54:55
  SPEAKER_03: It's the same intuition you have.
• 54:57
  SPEAKER_03: Sexual uh uh gender identity, gender dysphoria or whatever it is, transgenderism might not be relevant to the mind run of regulations and life and classifications, but it might be relevant to sports precisely for this reason, because there's some connection there.
• 55:12
  SPEAKER_03: And so it all goes back to the question of how do we know what is an invidious discrimination versus what is a legitimate classification.
• 55:18
  SPEAKER_03: Even on that question, I don't know that Bostok was right.
• 55:21
  SPEAKER_03: You know, it's like if someone is presenting uh as someone of the opposite sex or cross-dressing, you know, just forget, forget if you actually identify like a cross-dresser in the context of a funeral home in Bostok, where customers are emotionally distraught, and it was a particularly conservative ethnic community, the Vietnamese community, I think.
• 55:38
  SPEAKER_03: It's like, is it really irrelevant?
• 55:40
  SPEAKER_03: I don't know, even all the merits of that of that question.
• 55:42
  SPEAKER_03: So I think that's how you get both the statutory question and the equal protection question.
• 55:47
  SPEAKER_03: It's it's just what is in a video discrimination?
• 55:50
  SPEAKER_02: I want to acknowledge that there's a really strong argument, and I'm you know, okay, so the basic way I think that the basic way that the typical person, you know, sees these contexts is they are you are either sort of for the trans movement or you are against it.
• 56:07
  SPEAKER_02: If you're for the trans movement, you think trans should be included on an equal basis in all contexts and protected against discrimination in all contexts, because to be to not accommodate trans people is to be a bigot, right?
• 56:22
  SPEAKER_02: And if you're on the other side, if you're um uh skeptic, uh opponent of the trans movement, you think um we shouldn't have to uh pretend that transgenderism is a healthy sexual identity and bend and flex our society in all sorts of ways and our anti-discrimination laws to accommodate it.
• 56:47
  SPEAKER_02: And so you have these two sides where it kind of breaks down into you're either for or against, and there's no in-betweens.
• 56:54
  SPEAKER_02: And and you two are both pointing out that there is an in-between.
• 56:58
  SPEAKER_02: And the in-between is the employment context is different from the sports context.
• 57:02
  SPEAKER_02: And the sports context, it's zero sum and it's physical and it's physically dangerous, and so it makes sense to be against transgenderism there, but not elsewhere.
• 57:14
  SPEAKER_02: Is that a fair characterization of your your basic argument?
• 57:18
  SPEAKER_01: I mean, Oh, I get the argument, but I think if there's a man showing up to your place of employment grotesquely dressed as a woman, you should absolutely be able to fire them.
• 57:27
  SPEAKER_01: I mean, that's just the point.
• 57:30
  SPEAKER_03: Right, but the oh, go ahead.
• 57:31
  SPEAKER_03: Sorry.
• 57:32
  SPEAKER_01: No, that's all.
• 57:33
  SPEAKER_01: I that's my opinion.
• 57:34
  SPEAKER_01: Um I was just gonna say I understand the distinction, though, and I think that that's a fair distinction.
• 57:38
  SPEAKER_03: The the common, I I love it.
• 57:40
  SPEAKER_03: The you know, the common sense, common man sort of view of it.
• 57:43
  SPEAKER_03: Uh, but I do think the the law, the legal doctrine here gives that mechanism, right?
• 57:48
  SPEAKER_03: Um Catherine might be right on the merits uh of whether it's it is invidious discrimination or reasonable classification to say, you know, a funeral home when customers are distraught, you know, that's not where we're gonna experiment with employment, employing, you know, transgender individuals or whatever.
• 58:03
  SPEAKER_03: I will say, Josh, let me ask you a question.
• 58:05
  SPEAKER_03: Um, you had mentioned before we were recording this, and I want to I want to ask it to you because you had something very insightful to say, and I think it's related.
• 58:13
  SPEAKER_03: Why can't we get around all of this?
• 58:16
  SPEAKER_03: So when we had talked about this before the show, you said tiers of scrutiny are all made up.
• 58:20
  SPEAKER_03: I just suggested how the tiers of scrutiny can sort of get, you know, it's all a heuristic.
• 58:25
  SPEAKER_03: It's a heuristic, right?
• 58:26
  SPEAKER_03: For what is a reasonable classification and therefore legitimate, and what is an invidious discrimination and therefore illegitimate, like the black codes.
• 58:34
  SPEAKER_03: And so the question is, why can't we just have um, you know, like leagues, call them League A, B, C, and D?
• 58:41
  SPEAKER_03: League A, all the best players um in whatever sport, 100% men.
• 58:45
  SPEAKER_03: It's just gonna happen to be that way.
• 58:47
  SPEAKER_03: League B is the next best players, you'll have 10% biological women on that team.
• 58:52
  SPEAKER_03: Team C will be more 50-50.
• 58:54
  SPEAKER_03: Team D, you know, will be let's say 90% women.
• 58:57
  SPEAKER_03: I I don't know, right?
• 58:58
  SPEAKER_03: And why can't it all be co-ed for that reason?
• 59:02
  SPEAKER_03: Wouldn't that classification be sort of more reasonable?
• 59:05
  SPEAKER_03: But when we posed this question, you suggested that it sort of proves that this whole it goes back to we have to actually recognize the truth of the matter or that sports are actually you know aimed at something else than what Kavanaugh seemed to say.
• 59:18
  SPEAKER_03: What why don't you tell the audience what your reflections were on that?
• 59:21
  SPEAKER_02: Yeah, okay.
• 59:22
  SPEAKER_02: So so thanks for thanks for bringing me back to this, Elon.
• 59:26
  SPEAKER_02: I I do think the tiers of scrutiny analysis is sort of made up by the courts and sort of doctrinally distracting.
• 59:34
  SPEAKER_02: And the focus on you know competitive advantage and competitive disadvantage in sports is also just basically distracting.
• 59:42
  SPEAKER_02: Because if what you're if what you're saying, the court says that the state is allowed to make rough generalizations.
• 59:50
  SPEAKER_02: And so, in general, boys are bigger and stronger than than girls, and therefore we can have boys' sports for the sake of competitive advantage and safety versus girls' sports, right?
• 1:00:02
  SPEAKER_02: Because again, not all the time.
• 1:00:04
  SPEAKER_02: Some boys are small and not particularly athletic, some girls are big and very strong, but for the most part, uh these generalities hold.
• 1:00:12
  SPEAKER_02: And I don't buy it because, again, as you suggest, you know, if if what you're concerned about is the generalities, just have all sports be co-ed and just have different leagues, like in intramurals, where you have an A League, a B league, a C League, and a D League.
• 1:00:27
  SPEAKER_02: Um I think what's really driving this is that in sports, we're looking for a certain kind of human excellence, the excellence of the human body or the excellence of the human body and athletic spirit.
• 1:00:42
  SPEAKER_02: And since human beings come in this binary of male and female, what we're looking for is the sort of apex of the male body and apex of the female body.
• 1:00:52
  SPEAKER_02: That's why we divide sports up, and that's why we have this sort of process of sort of honoring excellence in sports.
• 1:00:59
  SPEAKER_02: It's like we look at the fastest female runner and we say that is the apex of a certain kind of female body.
• 1:01:05
  SPEAKER_02: We look at the fastest male runner and we say that is the apex of a certain kind of human body, the male body, and we're honoring that kind of physical excellence.
• 1:01:15
  SPEAKER_02: And so what you what you get when you throw transgendered people into that mix is a monkey wrench in the whole project.
• 1:01:24
  SPEAKER_02: You're not really seeing the, like when you have a trans male, like a biological male in trans sports, like Leah Thomas, you're not really seeing the excellence of the female body because Leah Thomas isn't female athletic excellence.
• 1:01:37
  SPEAKER_02: What Leah Thomas is, is a second-rate male athletic excellence competing against women.
• 1:01:43
  SPEAKER_02: Right.
• 1:01:43
  SPEAKER_02: And when people saw that astonishing picture of this broad-shouldered, immensely powerful, I think, six foot-four swimmer presenting as a girl and getting a gold medal, while this much smaller, slighter biological female is getting the silver medal and still another the bronze medal.
• 1:02:01
  SPEAKER_02: They're thinking this whole mission, the whole mission of sports is being distorted here.
• 1:02:07
  SPEAKER_02: It's not about competitive disadvantage.
• 1:02:09
  SPEAKER_02: It's about we're supposed to be honoring like the highest level of athletic achievement of a male or the highest level of a female.
• 1:02:17
  SPEAKER_02: And we're not doing that anymore because we're bringing in second-tier male athletes into female sports.
• 1:02:24
  SPEAKER_02: So this case isn't really about what the court said it's about, which is drawing broad, general lines and asking whether those sort of rough cuts are good enough for government work, you're right, intermediate scrutiny, good enough for government work.
• 1:02:38
  SPEAKER_02: This case is about whether we are allowed to divide humanity into male and female and honor those distinctive forms of physical excellence.
• 1:02:47
  SPEAKER_02: So, what I think the way I would have done the equal protection analysis is would is to say allowing trans athletes into sports distorts the whole project of sports, or allowing trans athletes into non-coed sports, into male sports or female sports, distorts the whole project of identifying um uh and honoring athletic excellence in its two primary human forms.
• 1:03:15
  SPEAKER_02: I mean, sports is a kind of human enterprise, I call it a project, and it's got a mission, and I'm trying to identify its mission.
• 1:03:23
  SPEAKER_02: And so the state can lawfully, like any institutional actor, can lawfully discriminate against a group when including that group would disturb their pursuit of a legitimate mission?
• 1:03:34
  SPEAKER_02: And so here's my analogy for it.
• 1:03:36
  SPEAKER_02: Um can a uh a public school um say we won't hire Jewish teachers?
• 1:03:45
  SPEAKER_02: Well, no, that has nothing to do with the mission of excluding Jews has nothing to do with the mission of the public school.
• 1:03:51
  SPEAKER_02: Can a Catholic church in picking priests say we're gonna exclude Jewish priests?
• 1:03:56
  SPEAKER_02: 100% because they're trying to be a Catholic church and that's a legitimate mission.
• 1:04:01
  SPEAKER_02: So that's how I look at this.
• 1:04:03
  SPEAKER_02: What you're doing is you're trying to preserve the core mission of sports by excluding uh trans individuals.
• 1:04:11
  SPEAKER_02: And since the core mission is legitimate, the exclusion is legitimate.
• 1:04:14
  SPEAKER_02: What do you what do you think?
• 1:04:15
  SPEAKER_02: I realize there's a totally different take on the whole thing, but it's, I don't know.
• 1:04:19
  SPEAKER_02: I I think that's what sports is really about.
• 1:04:21
  SPEAKER_01: I think that Serena Williams is always a good example of this, too.
• 1:04:24
  SPEAKER_01: She's spoken to it before.
• 1:04:26
  SPEAKER_01: If she were to compete against men, she would be a nobody.
• 1:04:29
  SPEAKER_01: She would be shockingly low on the ranking of tennis players in the world in the deep hundreds because she cannot hit the ball as fast as they can.
• 1:04:38
  SPEAKER_01: She's a phenom and just a force of name, like everyone should know who she is, and they wouldn't if she was forced to compete against men.
• 1:04:44
  SPEAKER_01: It's a great example, I think.
• 1:04:46
  SPEAKER_03: And by allowing her to or by sex segregating the sport of tennis, we can then admire her as sort of like the apex of what you know female athleticism should be.
• 1:04:57
  SPEAKER_03: Whereas if we had this five tiers just based on skill, women would just disappear and would not be admired in this way.
• 1:05:04
  SPEAKER_03: Exactly.
• 1:05:04
  SPEAKER_03: Josh, I think combining your point and Catherine's instinct, which was your instinct, I think, which is not to evade the truth of the matter, this goes back to the very beginning of the podcast.
• 1:05:14
  SPEAKER_03: Do you evade the truth of the matter by evading language?
• 1:05:17
  SPEAKER_03: And maybe you have just convinced me that we can't evade the truth of the matter by evading the language.
• 1:05:23
  SPEAKER_03: Because at the end of the day, the way this opinion could have been written is three paragraphs, which is we are allowed to admire um human excellence based on this binary, based on, you know, we're allowed to admire female excellence, we're allowed to admire male excellence.
• 1:05:38
  SPEAKER_03: Sports is a way, humanity has always done that.
• 1:05:40
  SPEAKER_03: And if we just mixed teams, um uh uh made all teams co ed, um, we would not be able to do that.
• 1:05:48
  SPEAKER_03: That is a legitimate government objective.
• 1:05:50
  SPEAKER_03: It's been an objective since the dawn of time, and that's it.
• 1:05:54
  SPEAKER_03: That's it.
• 1:05:55
  SPEAKER_03: It's a one paragraph opinion.
• 1:05:56
  SPEAKER_03: But you know, that's how they should have decided Oberga fell.
• 1:06:00
  SPEAKER_03: Same-sex marriage case in a way, right?
• 1:06:02
  SPEAKER_03: Uh about marriage, which is uh uh, you know, I mean, look, I'm somewhat more sympathetic on the same-sex marriage thing, but I think Obergefell is probably wrong, but a closer case than something like this.
• 1:06:12
  SPEAKER_03: But again, if you evade the truth of the matter, you know, then you've got hundreds of pages of legalisms when it's just like you and Catherine have just written this opinion in three paragraphs.
• 1:06:23
  SPEAKER_03: And it's compelling.
• 1:06:24
  SPEAKER_03: It's just compelling to me.
• 1:06:25
  SPEAKER_03: Okay.
• 1:06:27
  SPEAKER_01: Could we get to the the part I really want to get to, which is that what happens next?
• 1:06:32
  SPEAKER_01: Because I think some people are speculating that the next step is that the Supreme Court might actually say not only are states allowed to ban transgender athletes from their chosen gender identity sports, they have to compete with their biological gender.
• 1:06:48
  SPEAKER_01: Not only are they allowed to ban it, they have to require it.
• 1:06:51
  SPEAKER_01: So in states like Minnesota, where you can compete in whatever sport you want, we would now say we would be forced, based on Title IX, I believe, to require that transgender athletes um compete with their given biological gender.
• 1:07:06
  SPEAKER_01: Is that what's next?
• 1:07:08
  SPEAKER_03: It would be under the Equal Protection Clause of the 14th Amendment.
• 1:07:11
  SPEAKER_03: Basically, it would the idea would be, I guess you could do it under Title IX.
• 1:07:15
  SPEAKER_03: That's true too, actually, because it would supersede contrary state law.
• 1:07:18
  SPEAKER_03: That's true.
• 1:07:19
  SPEAKER_03: So whether Title IX or Equal Protection Clause, so as Catherine just set it up, the current case says states are allowed to limit, uh, they're allowed to limit sports teams to the same biological sex, right?
• 1:07:30
  SPEAKER_03: And the next step would be to say, and actually, Title IX and/or the Equal Protection Clause prohibits allowing transgender individuals to interfere in that.
• 1:07:40
  SPEAKER_02: And look, I'm a bit torn- And if I may, I think of that as red states and blue states.
• 1:07:44
  SPEAKER_02: So the question of this case is: can red states prohibit trans individuals from participating in women's sports?
• 1:07:50
  SPEAKER_02: Answer yes.
• 1:07:52
  SPEAKER_02: Question two, which is coming, it's already working through the courts, is must blue states prohibit trans individuals from participating in female sports?
• 1:08:03
  SPEAKER_02: Is California allowed to let trans individuals into um uh otherwise all female sports?
• 1:08:10
  SPEAKER_03: So that case is coming.
• 1:08:11
  SPEAKER_03: Yeah, and look, it's a tough argument, but I don't think it's a bad one.
• 1:08:16
  SPEAKER_03: So I'm a little torn, okay?
• 1:08:18
  SPEAKER_03: So the remember, the whole premise that we've been talking about is that sex segregated sports are actually necessary for equal athletic opportunity for women because otherwise men will dominate.
• 1:08:26
  SPEAKER_03: And if that's true, and if a state allows biological men to compete with and possibly dominate females, then isn't that actually invidious discrimination against women?
• 1:08:36
  SPEAKER_03: Now, the problem is this doesn't fit neatly because you're dealing with two classifications.
• 1:08:41
  SPEAKER_03: You're dealing with a classification on the basis of sex, you know, sex segregated sports, and then you're dealing with another classification based on gender identity that CART, you know, says you cannot participate it with this original classification.
• 1:08:53
  SPEAKER_03: So is it a classification on the basis of sex, or is it a classification on the basis of gender identity?
• 1:08:58
  SPEAKER_03: And what tier does that get?
• 1:09:00
  SPEAKER_03: You know, who is the discrimination against women or against the transgender individual?
• 1:09:04
  SPEAKER_03: Like who's being discriminated, who's doing the discriminating?
• 1:09:07
  SPEAKER_03: So legal doctrine makes it very tricky.
• 1:09:10
  SPEAKER_03: And from a legalistic perspective, I would just end on the point uh from my perspective, the legalist legalistic perspective, that the tiers of scrutiny are heuristics.
• 1:09:19
  SPEAKER_03: There are heuristics for reasonable classifications, are okay, and it's a heuristic for unreasonable, totally unreasonable, totally arbitrary discriminations are invidious and unconstitutional.
• 1:09:29
  SPEAKER_03: But because there is a range of legitimate disagreement about it, it's also hard, right?
• 1:09:34
  SPEAKER_03: I think you should leave it be look, some things are so arbitrary and obviously invidious, like the black codes.
• 1:09:41
  SPEAKER_03: Race has nothing to do with contracts or gun rights or whatever.
• 1:09:44
  SPEAKER_03: A gay code, a Catholic code would be the same.
• 1:09:46
  SPEAKER_03: Um, but here, you know, could there be a range of reasonable disagreement over whether this is reasonable or not, and therefore should it be left to the democratic process?
• 1:09:55
  SPEAKER_03: Or, you know, is this discrimination against women?
• 1:09:57
  SPEAKER_03: So hard case, but a totally plausible argument, and I'm torn.
• 1:10:00
  SPEAKER_03: Josh, what do you think?
• 1:10:02
  SPEAKER_02: Torn.
• 1:10:02
  SPEAKER_02: I'm also torn.
• 1:10:03
  SPEAKER_02: So, and it's it's basically, you know, it's basically what you said, but I'm on the same page.
• 1:10:08
  SPEAKER_02: I the argument that allowing trans individuals into women's sports constitutes discrimination against women is a good argument.
• 1:10:17
  SPEAKER_02: I I have uh two daughters, not to play the Kavanaugh thing and personalize this, but I have two daughters who run cross-country.
• 1:10:25
  SPEAKER_02: Um and letting biological males directly compete against them clearly harms them, right?
• 1:10:32
  SPEAKER_02: Like it clearly harms their chances of success and their sport, like making varsity and and meddling.
• 1:10:38
  SPEAKER_02: So I wouldn't most naturally say it discriminates against them as women.
• 1:10:42
  SPEAKER_02: I would just say it harms them.
• 1:10:44
  SPEAKER_02: But like that shoe is a pretty close fit.
• 1:10:47
  SPEAKER_02: So I think that's the argument in favor of saying California, Minnesota, Illinois, Blue State Scalore, you are not allowed to let trans individuals into women's sports.
• 1:10:58
  SPEAKER_02: At the same time, you know, my obsession in general and in many of our podcasts is about democratic decision making and leaving things to the democracy to decide.
• 1:11:09
  SPEAKER_02: And in this case, we have two critical elements that favor letting the democracy decide.
• 1:11:15
  SPEAKER_02: One of them is that the laws in question do not directly speak to this, right?
• 1:11:21
  SPEAKER_02: They they were not, let me put that differently, they were not written squarely to answer the question of trans individuals and women's sports.
• 1:11:29
  SPEAKER_02: They weren't written for that purpose.
• 1:11:30
  SPEAKER_02: They were written for other purposes.
• 1:11:32
  SPEAKER_02: And, you know, that's a sort of non-application paradigm or um open textured, open-ended law.
• 1:11:39
  SPEAKER_02: The other critical characteristic is we are as a society in a great values-based dispute over the proper resolution of this question.
• 1:11:50
  SPEAKER_02: And that is the kind of thing that really belongs to the democracy to decide.
• 1:11:54
  SPEAKER_02: So that's the flint and the steel of open-ended law mixed with a values-based question.
• 1:12:01
  SPEAKER_02: I'm very inclined to say, just give it to the democracy, let the states go their own way.
• 1:12:06
  SPEAKER_02: Over time, the madness of the blue states will be defeated by the sanity of the red states.
• 1:12:12
  SPEAKER_02: That's my instinct.
• 1:12:15
  SPEAKER_02: But but again, I am torn because I really do think that, you know, the ideas of Title IX is you're supposed to protect equal opportunity for women and equal opportunity for women in sports, and you're not doing that if trans individuals are let in.
• 1:12:34
  SPEAKER_02: So I see I see both sides, and I'm a little torn.
• 1:12:36
  SPEAKER_01: And when it comes to issues of discrimination, I mean, I think I do think this is discrimination against women to let males into their sports.
• 1:12:43
  SPEAKER_01: When it comes to issues of discrimination, I don't think historically as a country, we've always put that up to a vote, and have we?
• 1:12:49
  SPEAKER_01: It's often been the people at the top who have said, no, we're not gonna tolerate discrimination in this country anymore.
• 1:12:55
  SPEAKER_01: And that's been a good thing for our country.
• 1:12:57
  SPEAKER_01: So when it comes to this, I see it as very similar of uh, yeah, some people in this country have been captured by this radical ideology, but when we have to keep a country that um cares about the values we were founded on, and maybe that does take some um some action from the court, whatever means necessary to save the country.
• 1:13:16
  SPEAKER_01: Maybe I can save that.
• 1:13:17
  SPEAKER_01: Save that once an episode.
• 1:13:19
  SPEAKER_03: And that'll be our pillow.
• 1:13:20
  SPEAKER_03: Um, so let's end there.
• 1:13:23
  SPEAKER_03: This is a rational discussion and a base discussion that you will not see on other podcasts.
• 1:13:27
  SPEAKER_03: I mean, this is a really, really hard issue.
• 1:13:29
  SPEAKER_03: And on some of our competitor podcasts, dare I say, you know, you listen to they clearly think X is the case.
• 1:13:34
  SPEAKER_03: And it's like, wait, why is X the case?
• 1:13:36
  SPEAKER_03: Is X obviously the case?
• 1:13:37
  SPEAKER_03: They don't have that discussion.
• 1:13:38
  SPEAKER_03: We on the Rationally Based Podcast do have that discussion.
• 1:13:41
  SPEAKER_03: So please like, subscribe, give us a rating, follow us on Substack so we can stay in touch, rationallybase.substack.com, and we will, as always, stay there.