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Justices Likely to Uphold Transgender Health Care Ban · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:11
Speaker 2: Ryan's gender dysphoria was so severe that he was throwing
0:14
Speaker 2: up before school every day. He thought about going mute
0:17
Speaker 2: because his voice caused him so much distress. And Ryan
0:20
Speaker 2: has told the courts that getting these medications after a
0:23
Speaker 2: careful consultation process with its doctors and his parents, has
0:27
Speaker 2: saved his life. His parents say he's now thriving. But
0:31
Speaker 2: Tennessee has come in and categorically cut off access to
0:34
Speaker 2: Ryan's care. And they say this is about protecting adolescent health.
0:38
Speaker 2: But this law harms Ryan's health and the health of
0:40
Speaker 2: all other transgender adolescents for whom these medications are a necessity.
0:45
Speaker 3: As a Supreme Court today, the US Solicitor General argue
0:49
Speaker 3: that Tennessee's ban on gender affirming care for minors violates
0:54
Speaker 3: the Constitution's guarantee of equal protection, But Tennessee's Solicitor General,
0:59
Speaker 3: Matthew Vice, argued that his state was protecting vulnerable children.
1:04
Speaker 4: Tennessee lawmakers enacted SB one to protect miners from risky,
1:09
Speaker 4: unproven medical interventions. The law imposes and across the board
1:13
Speaker 4: rule that allows the use of drugs and surgeries for
1:16
Speaker 4: some medical purposes, but not for others.
1:19
Speaker 3: Conservative justice is like Chief Justice John Roberts and Justice
1:24
Speaker 3: Brett Kavanaugh, expressed reluctance to get into the middle of
1:28
Speaker 3: the medical and policy debate by second guessing the judgments
1:32
Speaker 3: of state lawmakers.
1:34
Speaker 5: You know, we may think that we're you know, we
1:35
Speaker 5: can do just as good a job with respect to
1:40
Speaker 5: the evidence here as you know, Tennessee or anybody else.
1:45
Speaker 5: But my understanding is that the Constitution leaves that question
1:49
Speaker 5: to the people's representatives rather than to nine people, none
1:54
Speaker 5: of whom is a doctor.
1:57
Speaker 6: So it seems to me that we looked at the
1:59
Speaker 6: Constitution and the Constitution doesn't take sides on how to
2:03
Speaker 6: resolve that medical and policy debate. The Constitution's neutral on
2:09
Speaker 6: the question, at least, that's one way to look at
2:11
Speaker 6: it and want to get your reaction to that. You know,
2:14
Speaker 6: if the Constitution doesn't take sides, if they're strong, forceful
2:18
Speaker 6: scientific policy arguments on both sides in a situation like this,
2:24
Speaker 6: why isn't it best to leave it to the democratic process.
2:27
Speaker 3: Liberal Justice Sonya Soto Mayor had this answer.
2:31
Speaker 7: When you're one percent of the population or less, very
2:35
Speaker 7: hard to see how the democratic process is going to
2:38
Speaker 7: protect you.
2:39
Speaker 5: Well, you are you.
2:40
Speaker 7: Blacks were a much larger part of the population and
2:43
Speaker 7: it didn't protect them, didn't protect women for whole centuries.
2:50
Speaker 3: Joining me is counsel for the transgender youth and families
2:53
Speaker 3: in the case. David Cole, a professor at Georgetown Law.
2:57
Speaker 3: He was most recently the National legal director for the
3:00
Speaker 3: American Civil Liberties Union. Thanks so much, David for being here.
3:04
Speaker 3: What was your general impression of the oral arguments.
3:09
Speaker 8: Well, it was a spirited argument. It was an argument
3:12
Speaker 8: in which I think a number of the conservative justices
3:16
Speaker 8: expressed concern about how they are supposed to review a
3:21
Speaker 8: judgment that it involves medical scientific evidence and uncertainty. But
3:28
Speaker 8: also where you know, there was really no good response
3:32
Speaker 8: to the contention, our contention that the law discriminates on
3:36
Speaker 8: the basis of sex. It allows medical treatment if it
3:40
Speaker 8: is consistent with the sex that one is assigned at birth.
3:44
Speaker 8: It bars the treatment if it is inconsistent with your
3:49
Speaker 8: sex assigned at birth. When you tell someone that you
3:52
Speaker 8: can do something only if it's consistent with your sex,
3:55
Speaker 8: that is a sex based classification. If you told people
3:58
Speaker 8: you can only pursue career that are consistent with your sex.
4:01
Speaker 8: Everyone recognized, But that's a sex based classification. So while
4:05
Speaker 8: the court was concerned, some of the conservative members are
4:08
Speaker 8: concerned about the medical issues that underlie this case. The
4:12
Speaker 8: question in the case was simply, what is the proper
4:15
Speaker 8: standard of review and is this actually sex discrimination?
4:19
Speaker 3: It seemed to me like the liberal justices discussed that,
4:22
Speaker 3: but the Conservatives stayed away from that issue. The Tennessee
4:25
Speaker 3: Solicitor General argued that it's not sex discrimination and that
4:30
Speaker 3: the law restricts the use of drugs based on medical purposes,
4:36
Speaker 3: not sex.
4:37
Speaker 8: Yeah, that's what he says. But if you read the
4:39
Speaker 8: lull on its face, you can get medical treatment if
4:43
Speaker 8: it is consistent with your sex assigned at birth. You
4:47
Speaker 8: can't get the same treatment if it allows you to
4:50
Speaker 8: live or identify inconsistent with your sex assign at birth.
4:53
Speaker 8: And that is a sex classification. Is enforcing particular you know,
4:58
Speaker 8: sexual stereotypes. People, If you have a birth sex of male,
5:02
Speaker 8: you can get treatment if you want to masculinize, but
5:05
Speaker 8: you can't get treatment if you want to feminize. And
5:08
Speaker 8: the opposite rule applies to birth sex females. That's treating
5:13
Speaker 8: boys and girls differently by seeking to enforce gender conformity.
5:18
Speaker 3: You refer to this, but a lot of the conservative
5:21
Speaker 3: justices kept saying, particularly Chief Justice John Roberts and Justice
5:25
Speaker 3: Brett Kavanaugh, that you know, we're judges, were not doctors.
5:29
Speaker 3: Let's leave it up to the lawmakers. They don't always
5:32
Speaker 3: leave it up to the lawmakers.
5:34
Speaker 8: Right, you leave certain things up to the lawmakers, but
5:36
Speaker 8: you don't leave equal protection of the law up to
5:39
Speaker 8: the lawmakers. You don't leave constitutional rights up to the lawmakers.
5:44
Speaker 8: And those same conservative justices were quite willing and ready
5:49
Speaker 8: to review COVID regulations which were imposed for public health
5:53
Speaker 8: reasons at a time when people were dying by the
5:57
Speaker 8: tens of thousands, and to strike down those regulations that
6:02
Speaker 8: they felt interfered with religious free exercise rights. The same
6:06
Speaker 8: thing is true here. Yes, it's in the area of
6:10
Speaker 8: medical regulation. Yes, that's something that judges don't ordinarily do.
6:14
Speaker 8: But when you discriminate on the basis of sex, as
6:17
Speaker 8: this statue does on it, the court's obligation is to
6:21
Speaker 8: make sure that the state has demonstrated that this ban,
6:26
Speaker 8: a categorical ban, is necessary to further the interest that
6:30
Speaker 8: they assert. That's what the Constitution demands, and there's no
6:34
Speaker 8: exception for medical treatment that says you can discriminate on
6:38
Speaker 8: the basis of sex when you're engaged in medical treatment.
6:41
Speaker 3: What do you make of justice Alito repeatedly pressing your
6:44
Speaker 3: acl you lawyer Cha Strandio, whether being transgender is immutable?
6:51
Speaker 8: Well, you know, one of the questions in the case
6:53
Speaker 8: is whether the Court should recognize the discrimination against trans
6:57
Speaker 8: people is what we call a suspect class and is
7:00
Speaker 8: therefore subject to more careful scrutiny by the courts. And
7:04
Speaker 8: one of the characteristics that the Court has identified in
7:08
Speaker 8: the past as a reason to treat a particular characteristic
7:12
Speaker 8: as suspect, like race or sex or national origin, is
7:16
Speaker 8: that it is immutable. And so he was pressing him
7:19
Speaker 8: on whether transgender status is immutable. But I think you
7:23
Speaker 8: know the response to that is that's not the only
7:27
Speaker 8: qualification for whether a particular group is entitled to protection
7:31
Speaker 8: under the Eco Protection Clause. It looks, in particular, whether
7:34
Speaker 8: this is a group that has political power, whether it's
7:37
Speaker 8: defined by characteristics that are not relevant to their ability
7:41
Speaker 8: to do most things in the world, and whether they've
7:45
Speaker 8: been subject to historical discrimination. And trans people fit every
7:50
Speaker 8: one of those characteristics. So whether it's immutable or not
7:54
Speaker 8: is debatable, but it is not dispositive.
7:58
Speaker 3: So I found it odd that a Justice Gorsuch, who
8:03
Speaker 3: wrote the only decision involving transgender rights I believe to date,
8:08
Speaker 3: didn't ask one question during two and a half hours.
8:13
Speaker 8: Yeah, now that was odd. And I argued the boss
8:15
Speaker 8: Stock case in which on behalf of Amy Stevens, transgender
8:19
Speaker 8: woman who was fired from a funeral home when she
8:22
Speaker 8: came out as transgender, and he was very active in
8:24
Speaker 8: that case. You know, I read that as he may
8:26
Speaker 8: be uncertain about where he is in this case, and
8:29
Speaker 8: so he wanted to sit back and listen and hear
8:32
Speaker 8: what other people said rather than speak up, especially because
8:37
Speaker 8: he wrote the Boss Stok decision. But you know, the
8:40
Speaker 8: Boss Dook decision said that when you discriminate against someone
8:42
Speaker 8: because they are transgender, that is, by definition, as a
8:46
Speaker 8: matter of logic, discriminating against them because of their sex,
8:50
Speaker 8: treating them differently because of their sex. If that's the case,
8:54
Speaker 8: then certainly a law that on its face says you
8:57
Speaker 8: can get treatment if you do it consistent with yourself,
9:00
Speaker 8: and you can't get treatment if you do it inconsistent
9:02
Speaker 8: with your sex should also be subject to heightened scrutiny
9:06
Speaker 8: as sex discrimination. So we'll see how he votes, but
9:09
Speaker 8: he gave no indication today.
9:11
Speaker 3: Justice Alito kept pushing back on using boss Stock, saying
9:15
Speaker 3: it was.
9:15
Speaker 8: Different he did he dissented in Bostock. But the Court
9:19
Speaker 8: doesn't need to rely on boss Stock here, because again,
9:23
Speaker 8: when a law on its face says you can do something,
9:26
Speaker 8: it's if it's consistent with sex, and not if it's
9:28
Speaker 8: inconsistent with sex, that's sex discrimination. You don't need boss Stock.
9:32
Speaker 8: You don't need anything other than the ability to read
9:35
Speaker 8: the words in the statue to see that that is
9:38
Speaker 8: a sex based classification. And for the last fifty years,
9:42
Speaker 8: the Supreme Court has said that sex based classifications have
9:47
Speaker 8: to satisfy what they call intermediate scrutiny. Doesn't mean they're
9:50
Speaker 8: all struck down, but it does mean that the state
9:53
Speaker 8: has to come forward and demonstrate that this law and
9:58
Speaker 8: this sex classification is necess to further an important government interest.
10:03
Speaker 8: The court below did not apply that standard, and really,
10:06
Speaker 8: you know, that is the critical question in the case.
10:09
Speaker 8: Did the cord below air by applying a very deferential
10:12
Speaker 8: rational basis test.
10:14
Speaker 3: Justice I've never heard this oral argument, just as Katanji
10:18
Speaker 3: Brown Jackson said, I'm quite nervous and worried.
10:22
Speaker 8: Yeah, well, I think she was reacting to many of
10:26
Speaker 8: her conservative colleagues who seem to be not want to
10:31
Speaker 8: engage with the principal question in the case, whether it's
10:35
Speaker 8: sex discrimination, and instead wanted to engage on whether there's
10:40
Speaker 8: medical uncertainty and what the evidence shows, questions that are
10:45
Speaker 8: really not before them, and with the suggestion that if
10:48
Speaker 8: it's a hard question and if there's medical uncertainty, we
10:52
Speaker 8: ought to accept a law that discriminates on its face
10:56
Speaker 8: as sex based and accept it as somehow sex neutral.
10:59
Speaker 8: And you know, she was concerned because those kinds of
11:02
Speaker 8: arguments were made by the State of Virginia in Loving
11:06
Speaker 8: versus Virginia, in defending a law that prohibited interracial marriage.
11:12
Speaker 8: The state said, and she quoted it in court, that
11:14
Speaker 8: there's a scientific evidence that supports prohibiting people from marrying
11:19
Speaker 8: across races, and this is not a race classification because
11:24
Speaker 8: it applies to whites and blacks equally. The court rejected
11:28
Speaker 8: that and said, no, when it determines what you can
11:31
Speaker 8: do based on your race, that's a race classification. Same
11:34
Speaker 8: thing here. When the law determines what you can do
11:37
Speaker 8: based on your sex and whether you are acting in
11:39
Speaker 8: a way that the state of Tennessee thinks is consistent
11:43
Speaker 8: with how it thinks people of your sex should act,
11:46
Speaker 8: that's a sex classification.
11:49
Speaker 3: So the legal pundits and Supreme Court reporters all seemed
11:54
Speaker 3: to be saying that it looks like there are five
11:57
Speaker 3: votes to a poll Tennessee's ban. Do you agree with that?
12:02
Speaker 8: I think the five conservatives who spoke all expressed some
12:07
Speaker 8: unease with recognizing that this is sex discrimination. You know,
12:12
Speaker 8: maybe that when they go back into their conference and
12:15
Speaker 8: they study the matter further, they may decide, you know,
12:19
Speaker 8: a law that on its face defines what can be
12:22
Speaker 8: done and what can't be done based on whether it's
12:24
Speaker 8: consistent with sex or inconsistent with sex, is sex based,
12:27
Speaker 8: and it would be ludicrous to suggest if not. It
12:31
Speaker 8: may be that the law could satisfy heightened scrutiny on remand,
12:35
Speaker 8: and they could say, you know that heightened scrutiny should
12:38
Speaker 8: apply with a softer touch when you're dealing with issues
12:41
Speaker 8: of medical uncertainty. So I don't think it's absolutely clear
12:45
Speaker 8: that our side lost today, but certainly five justices expressed
12:50
Speaker 8: some discomfort with ruling in our favor.
12:52
Speaker 3: This is a time for transgender rights of Donald Trump
12:57
Speaker 3: campaigned on cutting back on transgender rights and possibly a
13:03
Speaker 3: national ban on gender firm and care. If the Justices
13:07
Speaker 3: affirm the Tennessee ban, what does that mean for transgender rights?
13:12
Speaker 3: I mean, is it like a legal turning point.
13:14
Speaker 8: You're absolutely right that this is a time where one
13:17
Speaker 8: side of the aisle is targeting trans people for political exploitation.
13:22
Speaker 8: For the Court to sort of allow that to happen,
13:25
Speaker 8: and to say that a law of this type that
13:28
Speaker 8: is facially sex based is somehow sex neutral and can
13:32
Speaker 8: be upheld without any searching inquiry into whether the state
13:37
Speaker 8: has a legitimate interest in whether it is furthering it
13:40
Speaker 8: in the tailored way would just open the door to
13:44
Speaker 8: rampant anti transdiscrimination across the country. And as was pointed
13:49
Speaker 8: out at argument, if it's okay for Tennessee to do this,
13:52
Speaker 8: then it would be okay for the entire country to
13:54
Speaker 8: do for Congress to do it, and to deny to
13:57
Speaker 8: every trans youth and every parent of every trans youth
14:01
Speaker 8: who has determined that this treatment is medically necessary with
14:06
Speaker 8: their doctors to deny them the ability to get it
14:10
Speaker 8: anywhere in this country. There would be no bar to
14:13
Speaker 8: such a draconian policy. So I think that would be
14:17
Speaker 8: a terrible, terrible result for trans people.
14:20
Speaker 3: The plaintiffs, how did they feel after this argument?
14:23
Speaker 8: Well, I think they look to us, but they also
14:25
Speaker 8: can hear the concerns and I think, you know, some
14:28
Speaker 8: of the concerns that were articulated were pretty hostile to
14:31
Speaker 8: who they are, to the plight that they face, to
14:34
Speaker 8: the really really difficult decisions that you know, parents and
14:38
Speaker 8: families have to make in these situations, and to hear,
14:41
Speaker 8: you know, the justices say, well, it's too complicated, it's
14:44
Speaker 8: too difficult for us to address, even where a statute
14:48
Speaker 8: on its face discriminates on the basis of sex. Very disappointing,
14:53
Speaker 8: very disappointing.
14:54
Speaker 3: Thanks so much for coming on the show, David. That's
14:56
Speaker 3: Professor David Cole of Georgetown Law. It was a historic
15:01
Speaker 3: day at the Supreme Court as American Civil Liberties Union
15:05
Speaker 3: lawyer Chase Strangio became the first transgender attorney ever to
15:10
Speaker 3: argue a case in the Supreme Court.
15:12
Speaker 9: On its face. SB one banned medical care only when
15:15
Speaker 9: it is inconsistent with a person's birth sex. An adolescent
15:19
Speaker 9: can receive medical treatment to live and identify as a
15:23
Speaker 9: boy if his birth sex is male but not female,
15:26
Speaker 9: and an adolescent can receive medical treatment to live and
15:30
Speaker 9: identify as a girl if herber sex is female but
15:33
Speaker 9: not male. Tennessee claims this sex based line drawing is
15:38
Speaker 9: justified to protect children, but SB one has taken away
15:42
Speaker 9: the only treatment that relieved years of suffering for each
15:46
Speaker 9: of the adolescent plaintiffs.
15:48
Speaker 3: Strangio represents transgender youse and their families who are challenging
15:52
Speaker 3: Tennessee's ban on gender affirming care for miners. But five
15:57
Speaker 3: of the six conservative justices voiced varying degrees of skepticism
16:02
Speaker 3: about the arguments made by Strangio and the Biden administration.
16:07
Speaker 3: Joining me is Michelle Goodwin, a professor at Georgetown Law.
16:10
Speaker 3: The Biden administration was making an equal protection argument. Here
16:16
Speaker 3: tell us a little about that.
16:17
Speaker 10: Equal protection provides protection for groups of people against state
16:24
Speaker 10: discrimination based on their identity, and it emerged from a
16:30
Speaker 10: period of American slavery, from where there were distinctions between
16:35
Speaker 10: how people who are of African descent were treated as
16:39
Speaker 10: compared to whites, and this related to matters of education,
16:45
Speaker 10: accessibility to accommodations, where people could live, where and how
16:50
Speaker 10: they could travel, and many other virtually every area and
16:54
Speaker 10: aspect of life. And over the last one hundred and
16:57
Speaker 10: forty years or so, since the raphication of the fourteenth Amendment,
17:01
Speaker 10: the equal Protection Clause has been used to protect individuals
17:05
Speaker 10: against being treated unfairly because of who they are, what
17:10
Speaker 10: they look like, these immutable characteristics. Historically, this has been
17:15
Speaker 10: used to combat racial discrimination, It's been used to combat
17:19
Speaker 10: sex discrimination. It's even come up within spaces of discrimination
17:25
Speaker 10: against people because they are gay, and we saw that
17:28
Speaker 10: with Obergerfeld decision, which allows now for same sex marriage
17:34
Speaker 10: and also struck down federal policies that ban same sex marriage.
17:38
Speaker 10: Now this question has emerged with regard to individuals who
17:42
Speaker 10: are trends, and very specifically in this case, youth who
17:45
Speaker 10: are trends who are targeted facially by this Tennessee law.
17:50
Speaker 10: And what that means by facially is that embedded in
17:53
Speaker 10: the law itself is a distinction and discrimination in terms
17:58
Speaker 10: of access to medications that are gender affirming, but only
18:03
Speaker 10: for individuals that are trends. So the Tennessee laws prohibit
18:08
Speaker 10: puberty blockers and prohibit the use of hormone hormone treatment
18:15
Speaker 10: for young people who identify as trends. It does not
18:20
Speaker 10: do the same for young people who identify as this gender,
18:25
Speaker 10: and this means that their identity on their birth certificate
18:29
Speaker 10: conforms with what they later see as their identity.
18:33
Speaker 3: So the Solicitor General and the ACLU argued that this
18:39
Speaker 3: law is sex discrimination, and the Tennessee Solicitor General said, no,
18:44
Speaker 3: what we're doing here is about distinguishing based on the
18:48
Speaker 3: medical purpose and not based on sex right.
18:54
Speaker 10: And what the state has argued is that it has
18:58
Speaker 10: the right to be able to address matters of health
19:02
Speaker 10: and safety for its state, which traditionally has been within
19:07
Speaker 10: the purview of the states. So dating back to at
19:09
Speaker 10: nineteen oh five, famously in Jacobson, Massachusetts, where the Supreme
19:14
Speaker 10: Court upheld a local ordinance that mandated vaccination, it did
19:20
Speaker 10: have a carve out that one could simply pay a
19:22
Speaker 10: fine if one refused to do so, but that case
19:24
Speaker 10: has been understood as providing state's authority to impose inoculation
19:31
Speaker 10: and otherwise address public health and safety. What Tennessee wants
19:37
Speaker 10: to do is to use this as a lever against
19:41
Speaker 10: what actually is quite explicit sex based discrimination. Right, So
19:47
Speaker 10: Tennessee is trying to use this as an escape latch
19:52
Speaker 10: or hatch for a law that otherwise, if you substituted
19:57
Speaker 10: race for it would be intolerable, such as if you
20:01
Speaker 10: substituted religion for it, it would be intolerable, such as
20:05
Speaker 10: if you slipped in something that was sex based. But
20:11
Speaker 10: addressing the distinction between this women and men would be
20:16
Speaker 10: seen as being hostile, such as Tennessee enacting a law
20:20
Speaker 10: saying that hormone treatments will not be available to women
20:25
Speaker 10: because of the state's paternalistic interest in the health and
20:29
Speaker 10: safety of women. But the state believes that men can
20:32
Speaker 10: make these decisions and are equipped to make these decisions
20:35
Speaker 10: on their own. That would be seen as hostile to
20:39
Speaker 10: the Fourteenth Amendments protection of individuals against unequal treatment.
20:44
Speaker 3: So the liberal justices seemed to agree with that, and
20:49
Speaker 3: Justice Katanji Brown Jackson actually several times brought up the
20:52
Speaker 3: Loving case as a comparison, but the conservatives did not
20:56
Speaker 3: seem to be buying that argument.
21:01
Speaker 10: Well, that's not surprising, and one has to understand the
21:04
Speaker 10: atmosphere in which this law comes about which I think
21:06
Speaker 10: is really important, and I've loved your reporting, June. So
21:10
Speaker 10: I hope that in this article or articles that will
21:12
Speaker 10: be written about it, that it's centered, which is the
21:15
Speaker 10: fact that this is a law which is a creature
21:17
Speaker 10: of recent times. Right, gender affirming care and even care
21:23
Speaker 10: that involves surgeries dates back decades. So why now with
21:27
Speaker 10: this particular laws in just these recent years. The use
21:31
Speaker 10: of hormone therapies in children is also something that is
21:35
Speaker 10: actually not new. Children have received hormone blockers for quite
21:41
Speaker 10: some period of time, for decades, hormones the same. This
21:46
Speaker 10: law then, and the other merely two dozen others of
21:50
Speaker 10: them that have been enacted in the last three years
21:55
Speaker 10: are a reflection of political wins that were kicked up
21:59
Speaker 10: during the last Trump presidency and that have now made
22:04
Speaker 10: their way into this space. And what I mean specifically
22:06
Speaker 10: about that is that there is a Christian fundamentalism that
22:12
Speaker 10: has now made its way within American legislation. We hear
22:17
Speaker 10: this articulated within federal policy making, and it's now even
22:22
Speaker 10: breached its neck into our court. And I say that
22:26
Speaker 10: as an empirical matter, because again, you know, technically, these issues,
22:32
Speaker 10: these medical techniques have been used for decades, and it
22:38
Speaker 10: has only been within this recent space where we've seen
22:41
Speaker 10: equally attacks on reproductive health rights and justice that have
22:46
Speaker 10: been quite extreme. It's within the same period of time
22:50
Speaker 10: that we see these particular laws. Now. To make one
22:54
Speaker 10: other note here, when Tennessee makes its argument that it's
23:00
Speaker 10: intervening as a matter of its authority with regard to
23:05
Speaker 10: health and safety, note that Tennessee is not making those
23:08
Speaker 10: claims with regard to use that gender. So equally, Tennessee
23:14
Speaker 10: could have just simply said, we don't want any kids
23:18
Speaker 10: to have access to hormones. We don't think that it's
23:21
Speaker 10: a good idea for young boys who are going on
23:25
Speaker 10: the wrestling team to use the fosterone, and so we
23:29
Speaker 10: are enacting a policy that says it's not available to
23:33
Speaker 10: any of them. State of Tennessee could have said, you know,
23:36
Speaker 10: if you are a dancer or a gymnast and you're
23:42
Speaker 10: worried about gaining weight with puberty and so you wanted
23:46
Speaker 10: to use this puberty blocker, we don't think that that's
23:48
Speaker 10: a good reason for it. So we're going to ban
23:51
Speaker 10: puberty blockers and hormone treatments for all kids in the state.
23:57
Speaker 10: But that's not what Tennessee did, Althoughnessey could have done
24:00
Speaker 10: that right, So, if Tennessee has a concern with regard
24:03
Speaker 10: to health and safety and what these medical technologies do,
24:09
Speaker 10: they could have said that, well, we see this as
24:11
Speaker 10: being harmful to all children, and we don't see the
24:13
Speaker 10: benefit as being significant enough in order to make a
24:17
Speaker 10: carve out or an exception. But that is not what
24:21
Speaker 10: Tennessee did. And Tennessee would be able to survive a
24:27
Speaker 10: claim that it is engaged in unequal treatment if, in
24:32
Speaker 10: fact it's that we truly are treating all use in
24:35
Speaker 10: the same way. So that is not what Tennessee is
24:38
Speaker 10: choosing to do.
24:39
Speaker 3: Coming up next on the Bloomberg Law Show, I'll continue
24:42
Speaker 3: this conversation with Professor Michelle Goodwin of Georgetown Law. We'll
24:46
Speaker 3: discuss the implications of this decision. I'm June Grasso, and
24:51
Speaker 3: you're listening to Bloomberg. I've been talking to Professor Michelle
24:54
Speaker 3: Goodwin of Georgetown Law. Conservative Justice is Samuel Alito, Larrence Thomas,
25:01
Speaker 3: and Brett Kavanaugh in particular, question the efficacy of gender
25:05
Speaker 3: affirming care and referred to a point made by Tennessee
25:10
Speaker 3: in its brief that claim that health authorities in Sweden, Finland,
25:14
Speaker 3: Norway in the UK found that the medical treatments post
25:18
Speaker 3: significant risks with unproven benefits. Here's Justice Alido challenging the
25:24
Speaker 3: Solicitor General and asking her if she wants to reconsider
25:28
Speaker 3: what she said about the efficacy of the treatments.
25:33
Speaker 1: So I wonder if you would like to stand by
25:36
Speaker 1: the statement that you made in your petition, or if
25:40
Speaker 1: you think it would now be appropriate to modify that
25:43
Speaker 1: and withdraw the statement that there is overwhelming evidence establishing
25:48
Speaker 1: that these treatments have benefits that greatly outweigh the risks
25:53
Speaker 1: and the dangers.
25:54
Speaker 2: I of course acknowledged Justice Alito that there is a
25:57
Speaker 2: lot of debate happening here and abroad about the proper
26:00
Speaker 2: model of delivery of this care and exactly when adolescents
26:03
Speaker 2: should receive it, and how to identify the adolescence for
26:06
Speaker 2: whom it would be helpful. But I stand by that
26:08
Speaker 2: there is a consensus that these treatments can be medically
26:12
Speaker 2: necessary for some adolescents, and that's true no matter what
26:14
Speaker 2: source you look at.
26:16
Speaker 3: And just as Brett Kevanaugh asked both the Solicitor General
26:20
Speaker 3: and the ACLU attorney whether they agreed that people can
26:24
Speaker 3: regret transitioning.
26:27
Speaker 6: Just one point there. You agree that there's some group
26:30
Speaker 6: of people who receive the treatments who later wish they
26:35
Speaker 6: hadn't and wish to detransition. I know you say it's
26:38
Speaker 6: a smaller group. I understand that. I just want to
26:40
Speaker 6: make sure you agree as a factual matter, there is
26:42
Speaker 6: some set of people.
26:45
Speaker 9: I agree with the factual matter as there is an
26:47
Speaker 9: all areas of medicine.
26:48
Speaker 3: So it seemed like the conservatives were all about the
26:51
Speaker 3: medicine isn't proven here.
26:54
Speaker 10: Well, so what's been concerning of this? And in this
27:01
Speaker 10: regard this is not new, but it is of a
27:04
Speaker 10: newer trend that emerged significantly starting in twenty ten. So
27:10
Speaker 10: starting in twenty ten, with the emergence of the Tea
27:14
Speaker 10: Party came its political sweep into office, first at the
27:19
Speaker 10: state legislative level and then within Congress. And with that
27:25
Speaker 10: also later came then the appointment of judges and justices
27:32
Speaker 10: whose points of view, whose methodologies, whose understandings of law
27:38
Speaker 10: seemed to be not much distinct from those that were
27:42
Speaker 10: in the legislative space. And I say that as a
27:44
Speaker 10: lead up to the following, which is that there came
27:48
Speaker 10: to be this challenge of what is science, what is help?
27:53
Speaker 10: Can you trust people in the medical fields? And it's
27:57
Speaker 10: been deeply alarming the disregards for medical science. It's been alarming,
28:03
Speaker 10: the deep disregard for learned societies, learned societies where individuals
28:11
Speaker 10: have to earn the respects of their colleagues based on
28:15
Speaker 10: peer reviewed scholarship, based on the quality of the scholarship,
28:20
Speaker 10: based on the research that you know, vetted research, vetted
28:24
Speaker 10: research now seems to have a There seems to be
28:30
Speaker 10: a low respect or limited respect for learned societies and
28:37
Speaker 10: for scientific evidence. And one sees that across a series
28:42
Speaker 10: of cases preceding Scremetti. So one sees that disregard. Let's say,
28:48
Speaker 10: in Burwell v. Hobby Lobby, where the Supreme Court conflates
28:52
Speaker 10: contraceptive with abortizations in an alarming way, in a way
28:57
Speaker 10: that still deserves significant distension. Unpacking where you have for
29:02
Speaker 10: profit corporations that claim that they have religious perspectives and
29:07
Speaker 10: those religious perspectives should be respected and honored by the Court,
29:10
Speaker 10: which Justice Alito grants. And then where they say they
29:14
Speaker 10: see no difference between an IUD and an abortifation, they
29:17
Speaker 10: are technically and very significantly different, and iud will not
29:22
Speaker 10: perform an abortion. They truly are different. And so there
29:25
Speaker 10: is in one season also in the Supreme Court's case
29:31
Speaker 10: the Carhart case, which is another case that involved abortion,
29:34
Speaker 10: where Justice Kennedy before he leaves the Court says that,
29:37
Speaker 10: you know, women feel regret after having abortions. Technically, we know,
29:41
Speaker 10: through empirical research that has involved literally thousands of people
29:47
Speaker 10: who have had abortions, that that happens to not be true.
29:50
Speaker 10: It is technically just simply not true. But again, this
29:54
Speaker 10: disregard for science, this disregard for health, and the disregards
29:58
Speaker 10: for social science as may making its way, you know,
30:01
Speaker 10: as part of what is being espoused legislatively and what
30:05
Speaker 10: we hear coming from the Court now on the question,
30:09
Speaker 10: it's not that it's not a valid question or an
30:13
Speaker 10: important question. The problem is how the Court refuses to
30:17
Speaker 10: engage in evidence is the problem. And in fact, technically,
30:22
Speaker 10: on that question, with regards to puberty blockers, what we
30:25
Speaker 10: know is that with puberty blockers that once they are
30:29
Speaker 10: no longer used, then their effects goes away.
30:33
Speaker 3: I didn't hear that mentioned in the oral arguments.
30:37
Speaker 10: So it's surprising, right, like that's the whole Like if
30:40
Speaker 10: a puberty blocker doesn't less. If you're using a puberty blocker,
30:47
Speaker 10: Let's say there someone is fourteen, fifteen years old using
30:51
Speaker 10: a puberty blocker. The impression that is given is that, oh,
30:57
Speaker 10: my goodness, now from the age of fifteen, and let's
31:00
Speaker 10: say when they're using it or fourteen, that that puberty
31:03
Speaker 10: that it affects them. They're twenty and there's still no Actually,
31:07
Speaker 10: if they used it for three months and then stop,
31:10
Speaker 10: it would go away. Puberty would be on set. And
31:12
Speaker 10: that's worth noting you, no matter whether the child is
31:16
Speaker 10: sist or transgender. Right this the science is important to
31:22
Speaker 10: note and then to be able to adjudicate from there.
31:27
Speaker 10: But when scientific evidence is ignored such then that the
31:31
Speaker 10: justices ask questions based not on the scientific evidence but
31:38
Speaker 10: based on an assumption or that that assumption is furthered
31:42
Speaker 10: and bakes its way into law, can be dangerous. And
31:46
Speaker 10: in fact, when Justice Katanji Brown Jackson asks those questions
31:49
Speaker 10: related to loving, that actually matters too. So it's possible
31:53
Speaker 10: to read the Loving decision as a case that simply
31:56
Speaker 10: involves into racial marriage and a state's law that strong headed,
32:00
Speaker 10: but that bans interracial marriage. If you read the briefs
32:05
Speaker 10: and listen to the oral arguments, then what you know
32:08
Speaker 10: is that there is this hocus pocus with regards to
32:12
Speaker 10: medicine that comes in there too. If a state is
32:15
Speaker 10: alleging that if inter racial marriages are tolerated and allowed,
32:20
Speaker 10: there will be a term mongoloi children emerges in the
32:25
Speaker 10: briefing that there will be children with disabilities that are
32:29
Speaker 10: born from these union that will overwhelm the state. This
32:33
Speaker 10: is the same argument that's used in nineteen twenty seven
32:35
Speaker 10: and Boughs v. Bell, one of the most egregious cases
32:37
Speaker 10: in the United States, where the court sanctions compulsory sterilization,
32:41
Speaker 10: again under this notion that there will be people who
32:46
Speaker 10: are unfit to live in our society, and those unfit
32:51
Speaker 10: people are going to burden our society for all of
32:55
Speaker 10: their unfitness, and Justice Holm says, better than to let
32:58
Speaker 10: them starve for their im facility, society can prevent those
33:01
Speaker 10: who are manifestly unfit from continuing their kind in case
33:05
Speaker 10: has nothing to do with health and science, and yet
33:07
Speaker 10: health and science is all around it, you know, playing
33:09
Speaker 10: this role that is actually not a credible About half.
33:12
Speaker 3: The states have these kinds of bands. If the court
33:16
Speaker 3: upholds this ban, what happens in the other.
33:18
Speaker 10: States those bans, many of them are in effect. That
33:22
Speaker 10: there are some that are not an effect, but it
33:24
Speaker 10: means that those that are not an effect can go
33:26
Speaker 10: into effect if the court upholds this ban. And that
33:29
Speaker 10: also means that parents in those states who want to
33:33
Speaker 10: provide care for their children may end up leaving those states.
33:36
Speaker 10: They may move out of those states, they may move,
33:38
Speaker 10: they may you know, travel to other states for their
33:41
Speaker 10: children to get the care that they believe that their
33:44
Speaker 10: children need and deserve. So one might see parallels that
33:49
Speaker 10: one saw in relation to reproductive health matters where states
33:53
Speaker 10: enacted abortion bands and people have had to travel from
33:57
Speaker 10: you know, states that have bands in order to get
33:59
Speaker 10: the healthcare that they desire.
34:01
Speaker 3: So nice to have you on the show again, Michelle.
34:03
Speaker 3: That's Professor Michelle Goodwin of Georgetown Law. And that's it
34:07
Speaker 3: for this edition of the Bloomberg Law Show. Remember you
34:10
Speaker 3: can always get the latest legal news on our Bloomberg
34:12
Speaker 3: Law Podcast. You can find them on Apple Podcasts, Spotify,
34:16
Speaker 3: and at www dot Bloomberg dot com Slash podcast Slash Law.
34:22
Speaker 3: I'm June Grosso and you're listening to Bloomberg