Latest / rationally BASED / Episode 37 | Family Reconciliation = Hiding Kids From Their Parents?!

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Episode 37 | Family Reconciliation = Hiding Kids From Their Parents?! · rationally BASED

• 0:00
  SPEAKER_02: Welcome back to Rationally Based, a podcast about law and politics on the edge.
• 0:04
  SPEAKER_02: I'm your host, Elon Werman, a law professor at the University of Minnesota Law School.
• 0:07
  SPEAKER_00: I'm Catherine Johnson with Center of the American Experiment.
• 0:10
  SPEAKER_03: And I'm Josh Kleinfeld, Rouse Professor of Law at Scalia Law School.
• 0:14
  SPEAKER_03: Catherine, what's on deck today?
• 0:17
  SPEAKER_00: Another Supreme Court preview episode today, but focused on transgender issues.
• 0:22
  SPEAKER_00: First, we'll talk about a case this term that the Supreme Court will hear involving parental rights and transgenderism.
• 0:28
  SPEAKER_00: The case is about standing, primarily, so we'll start there.
• 0:31
  SPEAKER_00: Second, we'll tackle the merits of the legal issue.
• 0:34
  SPEAKER_00: Do parents have a substantive due process right to know the whereabouts of their children?
• 0:39
  SPEAKER_00: Sounds like we might get a third episode in a row where I rant about lawyers making things more complicated than they need to be.
• 0:45
  SPEAKER_00: Third, we have some developments in the lawsuits against WPATH and the AAP.
• 0:51
  SPEAKER_00: WPATH says it's standards of care for pediatric transgender treatment and transitioning were just opinions.
• 0:58
  SPEAKER_00: Wow, we'll break all of that down for you guys.
• 1:01
  SPEAKER_02: Substantive due process, we just can't quit that topic, can we?
• 1:04
  SPEAKER_02: Well, let's dive in.
• 1:19
  SPEAKER_02: Okay, Catherine, where should we start?
• 1:22
  SPEAKER_00: Let's start with the case at the Supreme Court.
• 1:25
  SPEAKER_00: Again, it involves parental rights and transgenderism.
• 1:29
  SPEAKER_00: Um, this case is called International Partners for Ethical Care versus Ferguson.
• 1:34
  SPEAKER_00: At issue is a Washington state law dealing with children who run away from home.
• 1:38
  SPEAKER_00: It gives a ton of discretion to the shelters and state authorities, not to tell parents where their kids are if those kids want gender-affirming care and worry about abuse, as they call it.
• 1:52
  SPEAKER_02: And this was uh scare quotes or air quotes or whatever we want to call from Catherine for our listening audience.
• 1:57
  SPEAKER_02: Yes, abuse from parents who do not agree with that.
• 2:02
  SPEAKER_00: The law, which is called the Family Reconciliation Act, expands the definition of compelling reasons to delay or deny parental notice to include when a minor is seeking or receiving protective health care services.
• 2:15
  SPEAKER_00: And it expands the definition of protective health care services to include gender-affirming treatment.
• 2:22
  SPEAKER_00: So this is really crazy.
• 2:23
  SPEAKER_00: Basically, someone a kid could run away from home.
• 2:25
  SPEAKER_00: And if it's because their parents weren't affirming of their gender and giving them the hormones or the surgery that the kid thought was appropriate, the shelter or state authorities, whoever runs into them, doesn't actually have to tell the parents where they are just because they're denying them that care, as I put in quotes.
• 2:44
  SPEAKER_00: All kinds of Orwellian language here, by the way, like the term family reconciliation.
• 2:49
  SPEAKER_00: They literally are trying to prevent family reconciliation.
• 2:52
  SPEAKER_00: Like that is their whole goal with this thing.
• 2:54
  SPEAKER_00: And the gender-affirming care of it all, like the way they use language here is just infuriating.
• 3:00
  SPEAKER_03: I I gotta speak to this because to me, this is a particularly egregious and stunning piece of political propaganda.
• 3:07
  SPEAKER_03: I mean, in terms of Orwellian language, this takes the cake.
• 3:12
  SPEAKER_03: And it goes to something we've talked about often on the pod, which is the way in which, you know, both sides in politics, but I think especially the left, routinely use terms that appear to mean the opposite of what they really mean.
• 3:28
  SPEAKER_03: It's like the iron law of politics that you always label something with exactly the opposite of what it really is.
• 3:35
  SPEAKER_03: So I think of like the left talks about defending democracy when what they really mean is they will, you know, use section three of the 14th Amendment to try to take someone off the ballot so that they can't even run for office, even if voters would prefer that person.
• 3:50
  SPEAKER_03: What they really want is more judicial power and administrative power.
• 3:54
  SPEAKER_02: That was a uh that was a dig at a few fellow law professors, including one in Minnesota, uh, who wrote an article uh very that showed up in the New York Times the next day arguing that Trump was disqualified under Section 3 of the 14th Amendment.
• 4:08
  SPEAKER_02: Okay, so if you didn't follow, I think that's what Josh was referring to.
• 4:10
  SPEAKER_03: That's exactly what I was talking about.
• 4:12
  SPEAKER_03: But it's just one example.
• 4:13
  SPEAKER_03: Uh and really it's about the term defending democracy being used to mean everything except voters, right?
• 4:19
  SPEAKER_03: And, you know, accusing the right of politically motivated prosecutions, when the most egregiously politically motivated prosecutions we've ever seen are the ones against Trump himself.
• 4:31
  SPEAKER_03: Or talking about the breakdown of neutral science, uh, say in government funding, when the Biden administration put DEI in almost every grant application, including science grants, uh, or accusing the right of misinformation and disinformation when RussiaGate turns out to be a hoax and the COVID lab leak was deliberately suppressed and uh um using government power to lean on social media to suppress dissenting views, or undocumented immigrant being used for not just immigrants.
• 5:06
  SPEAKER_03: It makes it sound like they just lack appropriate documentation, but in fact they are not here legally at all.
• 5:12
  SPEAKER_03: Or hate speech being used as a term for just disagreeing about uh mostly about race issues, or the Southern Poverty Law Center labeling groups, hate groups, when in fact these are just like very middle-of-the-road conservative organizations that they accuse of it, while secretly they fund the very hate groups they say to be opposing.
• 5:36
  SPEAKER_03: If you haven't read that story, I invite you to look at Southern Poverty Law Center funding hate groups.
• 5:42
  SPEAKER_03: Or anti-racism, the term anti-racism being used to mean um racism?
• 5:50
  SPEAKER_03: Being used to mean favoring people on account of their race, as long as they're from one of the disadvantaged races or supposedly disadvantaged races, and meanwhile labeling colorblindness a form of racism.
• 6:02
  SPEAKER_03: And I think the ultimate example is the very term DEI, diversity, equity, and inclusion.
• 6:08
  SPEAKER_03: What is the opposite of diversity?
• 6:10
  SPEAKER_03: It's homogeneity.
• 6:11
  SPEAKER_03: But not when you use it in this context.
• 6:13
  SPEAKER_03: Diversity means something like the presence of multiple races regardless of whether they all think alike.
• 6:19
  SPEAKER_03: Equity.
• 6:20
  SPEAKER_03: The opposite of equity and DEI is not partiality.
• 6:24
  SPEAKER_03: It means what equity really means for DEI purposes is racial preferences and other preferences to create equal outcomes by group and favor groups designated as disfavored, regardless of the individuals involved, which inevitably requires treating individuals inequitably based on any traditional definition of equity.
• 6:44
  SPEAKER_03: Equity is sort of a synonym for fair treatment or justice.
• 6:48
  SPEAKER_03: But what equity as used in DEI means is you treat people according to their groups, not according to their individual merit.
• 6:54
  SPEAKER_03: So you treat them inequitably according to individual merit.
• 6:58
  SPEAKER_03: Or inclusion, the opposite of inclusion on this term, is not exclusion.
• 7:02
  SPEAKER_03: What inclusion means here is something like accepting a therapeutic culture in which people's emotional comfort takes priority over a neutral standard, self-reliance or free speech.
• 7:13
  SPEAKER_03: Oh, and by the way, the emotional comfort of people on the right don't matter.
• 7:17
  SPEAKER_03: So, you know, on a proper definition of diversity, equity, and inclusion, I'd be all for it.
• 7:22
  SPEAKER_03: Uh, because a marketplace of ideas is diversity and inclusion.
• 7:27
  SPEAKER_03: And this is all uh hypocrisy is equity.
• 7:30
  SPEAKER_02: This is all dynamite stuff, by the way, Josh.
• 7:32
  SPEAKER_02: You're in rare form and very deadpanning this.
• 7:35
  SPEAKER_02: I hope our audience is hanging on to every word.
• 7:37
  SPEAKER_02: Like, this is good stuff.
• 7:38
  SPEAKER_03: I am worked up about the use of language because this might, I thought DEI took the cake.
• 7:45
  SPEAKER_03: But calling this statute the Family Reconciliation Act, I think just took the cake.
• 7:51
  SPEAKER_03: Because the idea of this statute is that you hide children from their parents if they have run away from home and allege that the reason they ran away from home is that their parents didn't affirm their chosen gender identity.
• 8:05
  SPEAKER_03: Make that allegation, and the role of a state social worker or a foster home is to hide the children from the parents.
• 8:13
  SPEAKER_03: Don't inform the law says do not inform the parents of where the children are.
• 8:18
  SPEAKER_03: So that's called family reconciliation.
• 8:22
  SPEAKER_03: Even if insanely, crazily you thought that was the right thing to do, you should call it like the protecting children from Gender Abuse Act or something like that.
• 8:32
  SPEAKER_03: Not Family Reconciliation Act.
• 8:34
  SPEAKER_03: That is that is a way of tricking the public about what this statute is really doing.
• 8:40
  SPEAKER_03: And hey, I am not naive.
• 8:42
  SPEAKER_03: I know that this kind of mislabeling is just part of politics, and I know the right does it too, but it's gotten so extreme, and the left does it so much that I think we're seeing a sea change in the way politics works.
• 8:57
  SPEAKER_03: You know, degree matters, quantity matters.
• 9:00
  SPEAKER_03: There's this great line in Hegel: if you pluck enough hairs from a man's head, eventually he's bald about how quantitative changes become changes of kind.
• 9:09
  SPEAKER_03: And I think we're starting to see a way of doing democratic politics that puts us in, you know, a funhouse mirror and totally distorts reality in order to basically trick low information, normy voters.
• 9:24
  SPEAKER_03: And, you know, the solution to it, the antidote, is to relentlessly insist on real language and clear language and not the fake labels that are being pushed on us from all sides.
• 9:34
  SPEAKER_03: And I'll quote one more person on that.
• 9:36
  SPEAKER_03: Confucius said the beginning of wisdom is to call things by their name.
• 9:42
  SPEAKER_03: So that's where I'll end my monologue here.
• 9:44
  SPEAKER_03: The beginning of wisdom is to call things by their name.
• 9:47
  SPEAKER_02: By the way, we've talked about this before in the previous Supreme Court transgender episode where we talked about the was it the BHP, BPH, I can't remember the acronyms of and uh the majority opinion studiously avoids, assiduously avoids using any pronouns whatsoever.
• 10:04
  SPEAKER_02: And then you had that debate between Thomas and Jackson.
• 10:07
  SPEAKER_02: Uh Thomas said we absolutely should use the biological pronouns, and Jackson, you know, just said we're gonna use, she was gonna use the um non-biological pronouns, I guess the self-identifying pronouns.
• 10:18
  SPEAKER_02: And we had a whole discussion.
• 10:19
  SPEAKER_02: So you should go back to that, uh, listeners, if you find this really interesting.
• 10:22
  SPEAKER_02: We had a long discussion about the nature of language.
• 10:24
  SPEAKER_02: I'll say one other thing, because it's a hobby horse of mine.
• 10:27
  SPEAKER_02: I do think that it is part of the project of the left, and it's always been.
• 10:32
  SPEAKER_02: I mean, this is part of communism, and they're kind of open about it, to drive a wedge between children and their families.
• 10:38
  SPEAKER_02: And this is just another example of that, right?
• 10:40
  SPEAKER_02: You undermine the independence of the family unit, and that way you can mold and shape, you know, children in the image of the state or what have you.
• 10:48
  SPEAKER_02: And it is one of the fundamental pillars of freedom in a free society that I think a lot of um policies on the left tend to undermine.
• 10:56
  SPEAKER_02: And so this just kind of goes to that.
• 10:57
  SPEAKER_02: It's like it's a combination of a lot of things we've already talked about on this podcast.
• 11:00
  SPEAKER_02: But none of that has to do with the legal question exactly.
• 11:04
  SPEAKER_02: Please get to it.
• 11:06
  SPEAKER_03: Talk about the legal issue because it is more technical.
• 11:08
  SPEAKER_03: It's about standing doctrine.
• 11:10
  SPEAKER_00: I forgot this is my part.
• 11:11
  SPEAKER_00: Usually when someone goes to the legal issue, I'm not the one who speaks next.
• 11:14
  SPEAKER_00: But I do, I will set this up because we've talked about this a lot on the show.
• 11:18
  SPEAKER_00: Um, the legal issue is a preliminary one, right?
• 11:20
  SPEAKER_00: It's whether the parents even have standing to bring this lawsuit.
• 11:25
  SPEAKER_00: Um, because as we talk about a lot on this podcast, who has the standing to sue is very important.
• 11:31
  SPEAKER_00: You need a real injury.
• 11:33
  SPEAKER_00: Um, one example we've talked about is that uh East Wing ballroom, the White House ballroom thing.
• 11:38
  SPEAKER_00: Um, is it sufficient injury that you're offended by how the ballroom looks if you just walk your dog by it?
• 11:44
  SPEAKER_00: Um we also talked about this.
• 11:46
  SPEAKER_02: We will talk about the ballroom soon because according to Chief Justice Roberts and the liberals, yes, it is enough to be offended by how it looks, um, which is super interesting.
• 11:54
  SPEAKER_02: So we hope to get to that uh soon to update our listeners.
• 11:58
  SPEAKER_00: We also talked about this in one of our first episodes where the issue was climate change and why did Massachusetts have standing to require the EPA to regulate greenhouse gas emissions.
• 12:09
  SPEAKER_00: I think you said something about how its coastline was impacted.
• 12:12
  SPEAKER_00: And although the court there found standing, all of the conservatives were in dissent.
• 12:18
  SPEAKER_00: Like that's absurd.
• 12:19
  SPEAKER_00: Its injury had to be concrete and particularized, but harm to coastlines was super general.
• 12:26
  SPEAKER_00: Everyone had that injury, and it was very speculative, right?
• 12:29
  SPEAKER_00: So, like how much coastline would actually be affected in the next hundred years, maybe a couple itches, and there's just way too much uncertainty.
• 12:36
  SPEAKER_00: So the first question I have for you guys is who are these parents that are suing and why is there a dispute over whether or not they have standing?
• 12:44
  SPEAKER_02: Yeah, so that was a uh a great setup and a good reminder from the previous uh episodes that we've done on this uh topic.
• 12:51
  SPEAKER_02: Remember, courts exercise judicial power.
• 12:54
  SPEAKER_02: Judicial power is exercised in actual cases or controversies.
• 12:57
  SPEAKER_02: Judicial power is not supposed to be, it's it's not judicial power if you impanel a bunch of judges simply to give their opinions about the legality of executive or legislative actions.
• 13:07
  SPEAKER_02: The framers of the American Constitution specifically rejected a council of revision.
• 13:12
  SPEAKER_02: There's this famous correspondence of the justices, which I can't remember if we talked about before, but George Washington, through Thomas Jefferson, his Secretary of State, submitted a series of questions to the Supreme Court judges in 1793, maybe, when they were in this uh conflict, uh the French Revolution, and how do you in interpret the treaties with France?
• 13:32
  SPEAKER_02: And the justices says this is not a judicial case.
• 13:35
  SPEAKER_02: You know, you you know, if there's a case in which the laws, the treaties uh matter, which there were, like the Gideon Henfield prosecution, we'll deal with those later.
• 13:45
  SPEAKER_02: This is not a judicial case.
• 13:46
  SPEAKER_02: So, what is a judicial case?
• 13:47
  SPEAKER_02: Judicial case is a dispute between actual people who have been injured.
• 13:52
  SPEAKER_02: So the black letter law here is it's a threefold test.
• 13:56
  SPEAKER_02: So um, law students, listen up.
• 13:58
  SPEAKER_02: This you actually can repeat on your exams.
• 14:00
  SPEAKER_02: Normally, what I say you shouldn't repeat on your exams, even though it's true.
• 14:03
  SPEAKER_02: In this case, you can also repeat it.
• 14:04
  SPEAKER_02: Injury, causation, and redressability, right?
• 14:07
  SPEAKER_02: It's kind of obvious if it's not if there's nothing that the courts can do to redress your injury, it's not judicial.
• 14:12
  SPEAKER_02: If the defendant didn't cause the injury, it's not a judicial kind of case.
• 14:16
  SPEAKER_02: Here, the real question is injury, okay?
• 14:19
  SPEAKER_02: Have these parents been injured?
• 14:20
  SPEAKER_02: So who are these parents?
• 14:22
  SPEAKER_02: These are parents of gender-confused children.
• 14:25
  SPEAKER_02: All of them have gender-confused children.
• 14:27
  SPEAKER_02: But the problem is none of the children has run away yet.
• 14:32
  SPEAKER_02: One parent, set of parents, did have a child who ran away in the past.
• 14:36
  SPEAKER_02: Okay.
• 14:37
  SPEAKER_02: I mean, so like, good for this organization.
• 14:39
  SPEAKER_02: They really found as close of a connection to the statute as possible.
• 14:45
  SPEAKER_02: But still, I don't know if this qualifies because it's arguably speculative, as you said, Catherine.
• 14:52
  SPEAKER_02: Like, how how many inches will the Massachusetts coastline really rate rise in the next century?
• 14:57
  SPEAKER_02: Well, will these children actually ever run away?
• 15:00
  SPEAKER_02: If they run away, will this statute be used?
• 15:02
  SPEAKER_02: Will it be invoked?
• 15:03
  SPEAKER_02: It is a little speculative, right?
• 15:05
  SPEAKER_02: And the reason I'm torn here is there's a case which I teach in constitutional law called Clapper v.
• 15:10
  SPEAKER_02: Amnesty International.
• 15:11
  SPEAKER_02: Uh, this is gonna go um to a point we've talked about where everyone seems to, you know, the shoe's always on the other foot.
• 15:16
  SPEAKER_02: Like you have one view of standing when it's your side, you know, and a different view of standing when it's in the other side.
• 15:22
  SPEAKER_02: And this case is is is an example of that.
• 15:24
  SPEAKER_02: So Clapper v.
• 15:25
  SPEAKER_02: Amnesty International dealt with basically a secret wiretapping program.
• 15:29
  SPEAKER_02: And it was targeting overseas terrorists, including their communications, though, with when one party was an American.
• 15:36
  SPEAKER_02: And so who could sue over this?
• 15:37
  SPEAKER_02: Um, you know, arguably a Fourth Amendment violation and so on.
• 15:40
  SPEAKER_02: So a bunch of plaintiffs' organizations and lawyers sued, including lawyers representing terrorists, right?
• 15:46
  SPEAKER_02: So, like, I think the key lawyer here was the lawyer for Khaled Sheikh Sheikh Muhammad, right?
• 15:52
  SPEAKER_02: The 9-11 mastermind.
• 15:54
  SPEAKER_02: Um, and they claimed that they were highly likely to have their communications intercepted under this program, and therefore they should have standing to challenge this program.
• 16:04
  SPEAKER_02: And it's the conservatives who said no, right?
• 16:06
  SPEAKER_02: That's no standing, it's too speculative.
• 16:08
  SPEAKER_02: You have no idea if your communication would actually be wiretapped.
• 16:12
  SPEAKER_02: Now, to be fair, like if their communications were wiretapped and then they were charged with something, they could always move to suppress the evidence or something.
• 16:20
  SPEAKER_02: So there is a remedy after the fact, but the point is they didn't want to be wiretapped for various reasons, um, beyond simply admissibility of evidence in in court or what have you.
• 16:31
  SPEAKER_02: Um, and I love teaching this case, let me just say, because I don't know who's right.
• 16:36
  SPEAKER_02: I don't know who's right.
• 16:37
  SPEAKER_02: On the one hand, you could say, look, the if if the injury uh isn't concrete and particularized and it's too speculative, you should leave it to the political process.
• 16:47
  SPEAKER_02: On the other hand, who in the political process is gonna care about this issue?
• 16:50
  SPEAKER_02: Like no one's gonna be like, oh yeah, let's really protect the rights of terrorist defending lawyers, right?
• 16:55
  SPEAKER_02: Um, so it seems to me that it's unlikely to be resolved in the political process.
• 17:00
  SPEAKER_02: It is the kind of case where a pretty discrete group of individuals is targeted by the law, and the terrorist plaintiff, the terrorist lawyers are the most likely to be swept up here.
• 17:10
  SPEAKER_02: So I was sort of of the view when I teach this case that it's really hard.
• 17:14
  SPEAKER_02: It's a really hard case.
• 17:16
  SPEAKER_02: But now, of course, the shoes on the other foot, right?
• 17:19
  SPEAKER_02: Because now it's the parents who are the conservatives here who have a somewhat speculative injury, right?
• 17:27
  SPEAKER_02: So I don't know if you think it's hard.
• 17:29
  SPEAKER_02: Okay, Catherine, you look perplexed.
• 17:30
  SPEAKER_00: Well, I'm not that far.
• 17:31
  SPEAKER_00: I'm just I'm okay.
• 17:32
  SPEAKER_00: I have a few questions.
• 17:33
  SPEAKER_00: Like, does it matter how um severe the potential harm is at all?
• 17:39
  SPEAKER_00: Like, do the courts care about that?
• 17:41
  SPEAKER_00: Because the examples that I thought of that we um had previously talked about, the lady walking her dog, like what the ballroom's ugly, okay.
• 17:48
  SPEAKER_00: Uh, and then the CO2 emissions or whatever, maybe you'll lose an inch of shoreline.
• 17:54
  SPEAKER_00: Okay, who cares?
• 17:56
  SPEAKER_00: This seems very serious.
• 17:57
  SPEAKER_00: This is an evil attempt by activist leftists to take children out of the homes of parents who they disagree with.
• 18:08
  SPEAKER_00: Can the courts take that into account at all?
• 18:10
  SPEAKER_00: The seriousness?
• 18:12
  SPEAKER_02: That's a really great question.
• 18:15
  SPEAKER_02: And it is a very astute question.
• 18:17
  SPEAKER_02: I don't know the answer.
• 18:19
  SPEAKER_02: There is a doctrine for determining whether injunctions are appropriate.
• 18:23
  SPEAKER_02: If the harm is likely to be irreparable, uh, then you can get an injunction.
• 18:29
  SPEAKER_02: But I don't know that that applies to standing itself.
• 18:33
  SPEAKER_02: I don't know if there's like this sliding scale where even if your potential future injury is speculative, the more severe and egregious that it is, the more likely it is to lead to irreparable harm, justifying an injunction, for example, should the harm occur.
• 18:49
  SPEAKER_02: Uh, does that mean you have standing where someone with a you know less serious injury equally as speculative wouldn't just because you aren't losing?
• 18:59
  SPEAKER_02: Intuitively, that makes a lot of sense to me.
• 19:02
  SPEAKER_03: I don't think Elon, what about the um I think it's a portion of standing doctrine that has to do with injuries that are irreversible and um often cannot be adjudicated in time?
• 19:17
  SPEAKER_03: And so that's traditionally used for abortion, right?
• 19:20
  SPEAKER_03: So women who want to challenge abortion laws and they're actively pregnant, um don't they have the or is that I'm I'm trying to remember if that's the injunction or if that's standing.
• 19:32
  SPEAKER_00: I've stopped the lawyers.
• 19:34
  SPEAKER_02: Yeah, no, it's a it's a it's a great it's a great yeah, it's a great question.
• 19:38
  SPEAKER_02: It's a great question.
• 19:39
  SPEAKER_02: In the case of you know, the abortion case, um most of those plaintiffs claim to want abortions, so it's not speculative.
• 19:46
  SPEAKER_02: Like they want to do the thing that is prohibited to them.
• 19:48
  SPEAKER_02: Here you just don't know um what's going to happen.
• 19:53
  SPEAKER_02: Uh so it's more speculative in that sense.
• 19:55
  SPEAKER_02: Uh, but it is unsatisfying for the reason Catherine says, because if this does happen, are the remedies really adequate?
• 20:04
  SPEAKER_02: And I sense not, right?
• 20:07
  SPEAKER_02: I mean, the the the harm could be potentially irreparable, justifying intervention sort of before it occurs, but we just don't know if it's likely to occur until it occurs.
• 20:16
  SPEAKER_02: It's kind of a trap, right?
• 20:18
  SPEAKER_02: It is kind of a trap.
• 20:19
  SPEAKER_02: Someone should write a paper on this, or if you were listening, and if you are, I don't know, Will Boat, if you still listen to this podcast, which you may or may not, I think you've gotten this far today, uh call in and or send me an email.
• 20:30
  SPEAKER_02: Let me know uh about this point about standing.
• 20:33
  SPEAKER_02: But but my sense is the severity of the potential injury is not taken into account, but I could I could be wrong about that.
• 20:39
  SPEAKER_02: So I have to I have to think about that.
• 20:41
  SPEAKER_00: It's interesting because I do feel like, you know, in this case, when you talk about the amount of time you have to file a legal claim and things like that, you can get um these uh different drugs and you can get them to children very quickly, um, very easily.
• 20:54
  SPEAKER_00: They're super accessible, and they have effects that are irreparable.
• 20:58
  SPEAKER_00: They're they they will have, they will damage your your um body for the rest of your life.
• 21:02
  SPEAKER_00: So it does seem to me to meet some of those things you talk about, but we should talk about what the um what they actually put in their petition, what their argument for standing actually was.
• 21:14
  SPEAKER_00: So one thing they said in their petition is this they said, because of Washington's laws and regulations, petitioners alleged current chilling of their parenting to avoid having their children take advantage of the incentive Washington law now provides for the child to run away and get the treatment, quotes, the parents oppose.
• 21:33
  SPEAKER_00: They also said that petitioners also allege a substantial risk of future harm to their parental free speech, procedural, and religious free exercise rights, given their children's condition, their past behavior, and the perverse incentives created by Washington's laws for gender-confused children to run away.
• 21:50
  SPEAKER_02: How do we feel about that?
• 21:52
  SPEAKER_02: So again, and then Josh, I just need your take on all this standing mumbo jumbo because it often feels like what here's what.
• 22:00
  SPEAKER_02: Okay, just so we're clear what I tell my students, uh, what is the law of standing?
• 22:04
  SPEAKER_02: The law of standing is when the Supreme Court feels like deciding an important question, it will find standing.
• 22:10
  SPEAKER_02: And when it doesn't feel like deciding a question, it will find no standing.
• 22:14
  SPEAKER_02: I mean, that that's the law.
• 22:16
  SPEAKER_02: Like, can you make more sense of that?
• 22:18
  SPEAKER_02: Uh, I don't know.
• 22:19
  SPEAKER_02: The problem with the parents' argument here, again, to which I'm very sympathetic.
• 22:22
  SPEAKER_02: Um, so you know, I was reading this, I'm like, oh, that does kind of sound like an injury.
• 22:26
  SPEAKER_02: And then I was like, wait a minute, but that was exactly the kind of injury that the plaintiffs in Clapper V Amnesty International were saying that were they were saying it's chilling their activity.
• 22:35
  SPEAKER_02: Just like here, it's chilling the parenting activity because they want to make sure that the parent, the kids don't run away and they don't take things too seriously and run off.
• 22:42
  SPEAKER_02: They don't want that damage to happen.
• 22:44
  SPEAKER_02: But the plaintiffs' lawyers in Amnesty, Clapper V Amnesty International said the same thing.
• 22:48
  SPEAKER_02: They said, we are suppressing our own communications, we're altering our movements.
• 22:52
  SPEAKER_02: And and what the Supreme Court basically said is unilateral action taken in light of the legal regime is just normal.
• 22:58
  SPEAKER_02: It's it's not an injury in the sense of the law, right?
• 23:03
  SPEAKER_02: The fact that you choose to take certain actions to avoid certain consequences, I guess, isn't um an injury, unless, of course, you think clapper was wrongly decided.
• 23:13
  SPEAKER_02: Okay.
• 23:14
  SPEAKER_02: I at least am being consistent, right?
• 23:17
  SPEAKER_02: I think the lawyers had a plausible argument that they were going to be captured, and therefore they changed uh within the surveillance and therefore they changed their activities, and that's arguably sufficient for standing for them, and therefore it would be sufficient standing for the parents.
• 23:29
  SPEAKER_02: But if you are on the other side of clapper, then you should be on the other side of this one, right?
• 23:34
  SPEAKER_02: So it's it's you know, I think you can be pro-terrorist lawyers and pro-parents, or you can be anti-terrorist lawyer and anti-parents for purposes of standing.
• 23:44
  SPEAKER_02: So I don't know, pick your poison.
• 23:46
  SPEAKER_02: Josh, what do you what do you think about all this?
• 23:48
  SPEAKER_03: Oh, I mean, this is so interesting.
• 23:49
  SPEAKER_03: But by the way, I remembered the constitutional phrase.
• 23:52
  SPEAKER_03: It it is a standing doctrine um uh piece of piece of law.
• 23:58
  SPEAKER_03: It's uh um capable of repetition yet evading review.
• 24:03
  SPEAKER_03: And that's a mootness for pregnancy and abortion, but it's for mootness.
• 24:07
  SPEAKER_03: It's kind of inapplicable.
• 24:08
  SPEAKER_03: Right.
• 24:08
  unknown: Right.
• 24:09
  SPEAKER_03: It's a mootness doctrine.
• 24:12
  SPEAKER_03: Let me let me give you my take on the big picture.
• 24:15
  SPEAKER_03: Um I agree that there's an incredibly difficult standing issue, but for a little slightly different reasons than the ones you presented, Elon.
• 24:22
  SPEAKER_03: So let me give my sort of take on it.
• 24:24
  SPEAKER_03: See what you think, see what you both think.
• 24:27
  SPEAKER_03: Standing doctrine has a point, right?
• 24:30
  SPEAKER_03: The doctrine of standing was invented for a purpose.
• 24:34
  SPEAKER_03: The purpose of it was to keep courts to their traditional role.
• 24:39
  SPEAKER_03: The traditional role of a court is to resolve individual claims of injury.
• 24:43
  SPEAKER_03: In the 20th century, the court was drifting into a very different role, which was to resolve society's big policy disputes.
• 24:52
  SPEAKER_03: And standing doctrine was developed by conservative jurists and especially judges to restore the traditional role, to keep courts in their lane of resolving individual disputes of injury as opposed to resolving society's big policy disputes.
• 25:08
  SPEAKER_03: So that was the purpose, that was the goal.
• 25:10
  SPEAKER_03: Two things happened.
• 25:12
  SPEAKER_03: One thing that happened is it just didn't work, right?
• 25:15
  SPEAKER_03: The court continued to play that role of being the overseer, uh the House of Lords, with respect to our society's big convulsive policy disputes, the big mega political issues that divide us.
• 25:29
  SPEAKER_03: It required, after standing doctrine developed, it required lawyers to be more clever about designing the case, right?
• 25:36
  SPEAKER_03: But they they were plenty clever and they continued to design cases, and the court was eager to take advantage of those cases.
• 25:43
  SPEAKER_03: And on both sides, left and right, the court continued to resolve mega issues of politics.
• 25:48
  SPEAKER_03: The other thing that happened was when standing doctrine accomplished its purpose at all, when it caused any restraint at all, it was almost invariably on the right.
• 26:00
  SPEAKER_03: It was conservative judges being restrained, while left liberal judges just invoked standing when it was convenient, like in a case like this one, and ignored it where it was inconvenient.
• 26:12
  SPEAKER_03: And so it was just a political football being kicked around, at least on one side.
• 26:16
  SPEAKER_03: So we're kind of not in a second best world right now.
• 26:19
  SPEAKER_03: We are in a third best world.
• 26:21
  SPEAKER_03: Maybe the first best world is the court just stays in its lane and resolves individual disputes of injury.
• 26:27
  SPEAKER_03: But in the second best world, courts um um continue to resolve big policy issues on both sides equally.
• 26:38
  SPEAKER_03: And in the third best world, they continue to resolve big policy issues with standing doctrines selectively restraining the conservative side and never restraining the liberal side.
• 26:48
  SPEAKER_03: So in that universe that we now occupy, no standing, a ruling in this case that there's no standing would amount to unilateral disarmament for the sake of a goal that's worthy but like unachievable in current conditions.
• 27:04
  SPEAKER_03: Um finding standing in this case would turn the doctrine into mush because what you really have here is a collective group, a group of parents objecting to a law on the basis of what might happen in the future, but has happened to literally none of them individually.
• 27:22
  SPEAKER_03: So what we're dealing with here and what makes this case so hard is it's part and parcel of all our prior conversations about unilateral disarmament and how to navigate this fallen legal world we find ourselves in.
• 27:35
  SPEAKER_03: Do you accept the current condition and say standing is just a political football?
• 27:39
  SPEAKER_03: I'm on this side, so I'm gonna give it a kick.
• 27:41
  SPEAKER_03: I'm gonna find standing in this case, I'll create an exception.
• 27:44
  SPEAKER_03: Or do you say I'm gonna stick to my principles, but that just means Washington state is gonna go in one crazy direction and it'll never be reciprocated on the other side.
• 27:55
  SPEAKER_03: Listen, if it were me, I think if I were a judge, I would find standing on the basis of some irreversible damage exception.
• 28:04
  SPEAKER_03: I would develop an irreversible damage exception to standing doctrine in order to find standing in this case, sort of to mitigate the starkness of the choice.
• 28:14
  SPEAKER_03: And I sort of suspect that's what the quote will do in this case.
• 28:17
  SPEAKER_03: But make no mistake, underneath that, the true choice is a stark one.
• 28:23
  SPEAKER_03: Do we play the political game in which we find ourselves or do we insist on pretending that the law is what it should be?
• 28:30
  SPEAKER_02: This is great.
• 28:31
  SPEAKER_02: Uh, you two should co-author a paper about this since Catherine had the idea about irreversible damage earlier, too.
• 28:36
  SPEAKER_02: And then Josh, you also independently had this uh idea.
• 28:39
  SPEAKER_02: So it sounds like there's a paper in the works.
• 28:41
  SPEAKER_02: But like, I don't know.
• 28:42
  SPEAKER_02: Let me say one last thing about this.
• 28:44
  SPEAKER_02: When I teach it, I tend to feel that the judges on the left definitely use it selectively, but my sense isn't that the judges on the right don't.
• 28:54
  SPEAKER_03: And so I'm not used it strategically to some extent.
• 28:58
  SPEAKER_02: Exactly.
• 28:59
  SPEAKER_02: And and uh and that's why I tell them they'll find standing when they feel like it and they won't when they don't want to, right?
• 29:06
  SPEAKER_03: It's uh but the thing is, what the doctrine is trying to achieve is something I profoundly believe in.
• 29:12
  SPEAKER_03: The doctrine is saying courts shouldn't replace legislatures as the main organ of democracy.
• 29:18
  SPEAKER_03: Courts shouldn't take courts should do their traditional job and only their traditional job.
• 29:23
  SPEAKER_03: Someone is injured and alleges that they were injured due to someone else breaking the law, and and then you have a lawsuit about it, or you have a criminal case about it.
• 29:34
  SPEAKER_03: But it's not working, and I don't know if that genie can be put back in the bottle.
• 29:39
  SPEAKER_02: I will say it's hard to maintain that view when the laws in some states are so insane and Orwellian and so far off from sort of the normal uh that it's really hard to stick to your guns and just say, no, no, no, they want to be crazy, they should be crazy.
• 29:53
  SPEAKER_02: I mean, these parents, they could all move to Texas.
• 29:56
  SPEAKER_02: Like we can't, you know, there's always that possibility too, right?
• 30:00
  SPEAKER_02: It's uh so just Josh, I'm just very impressed with you sticking to your guns uh on the standing thing.
• 30:04
  SPEAKER_03: I didn't stick to my guns.
• 30:05
  SPEAKER_03: I I no, quite the opposite.
• 30:07
  SPEAKER_03: What I said was I were being a hypocrite.
• 30:11
  SPEAKER_03: I would find standing in this case by means of an irreversible damage exception, which is not sticking to my guns.
• 30:17
  SPEAKER_03: Because if I was really sticking to like my first best principles, I would say, no standing here, no standing anywhere.
• 30:24
  SPEAKER_03: Like get out of the business of policy resolution.
• 30:27
  SPEAKER_03: Right.
• 30:28
  SPEAKER_00: But you're not gonna answer though, because I think it's a practical response to what the reality is.
• 30:33
  SPEAKER_00: If we lived in a reality where people, you know, in our country all saw, I don't know, good and evil as the same sort of thing, then maybe we could all abide by those sort of rules.
• 30:44
  SPEAKER_00: But when you have the sort of laws being put in place like this one, it's like, what are you supposed to?
• 30:49
  SPEAKER_00: You're really supposed to just tie your own hands at the face of something that I think is profoundly evil?
• 30:54
  SPEAKER_00: I I don't think that's the right answer or the uh best thing to do.
• 30:58
  SPEAKER_03: Yeah, or equally, Catherine, if if we lived in a society where both sides equally agreed that the big policy things that divide us should be given to state legislatures and we're just gonna fight them out in our states.
• 31:10
  SPEAKER_03: And in one state, we're gonna have traditional gender norms and parental roles, and in another, we're gonna have the opposite, and then you know, vote with your feet.
• 31:17
  SPEAKER_03: Like I can live with that world, but I can't live in a world where one side acts like that and the other side tries to just use power whenever they get it.
• 31:26
  SPEAKER_00: Yeah, exactly.
• 31:28
  SPEAKER_00: Well, let's get to the merits because there is a uh substantive due process issue here.
• 31:35
  SPEAKER_00: Now, we had a long episode on due process in the immigration context.
• 31:39
  SPEAKER_00: Elon, you kept saying that those challenges involved substantive due process.
• 31:44
  SPEAKER_00: Josh kept saying that it was procedural due process, and then I fell asleep and I forgot the rest.
• 31:50
  SPEAKER_00: So can you botechnical?
• 31:52
  SPEAKER_02: I think you later told us that that episode made you want to like scratch out your own eyes, which I get- No, she said she said it was like listening to paint peel off a wall.
• 32:04
  SPEAKER_00: Yeah.
• 32:04
  SPEAKER_03: That's better than scratch out your own eyes.
• 32:08
  SPEAKER_00: I must say.
• 32:09
  SPEAKER_00: But can you, it is important regardless of my getting a little bit bored sometimes by the lethalese.
• 32:15
  SPEAKER_00: Can you give me a high-level summary of the difference between those due processes?
• 32:21
  SPEAKER_02: Yes.
• 32:22
  SPEAKER_02: Um, so I also wanted to do this uh to remind the readers, but also because Josh and I, we talked a little bit afterward, and I think we actually agreed on what substantive versus procedural due process is, and we just disagreed over its application in those immigration cases, which is interesting.
• 32:37
  SPEAKER_02: At a high level, Josh and I agree, procedural due process is simply this idea that before the government can take away your life, liberty, or property, before it can execute you, before it can imprison you, before it can deprive you of your property, it must give you some sort of process.
• 32:50
  SPEAKER_02: You must be summoned, you know, and the continental jurists called it a citation, and we call it service of process, right?
• 32:56
  SPEAKER_02: Um, you have to give be given notice of the charges.
• 32:59
  SPEAKER_02: It's the right to be heard.
• 33:00
  SPEAKER_02: It's the right, you know, the truth is a defense.
• 33:02
  SPEAKER_02: You have to be able to defend and determine the truth in a sort of in a hearing.
• 33:07
  SPEAKER_02: Substantive due process is an entirely different idea.
• 33:10
  SPEAKER_02: It's this idea that some rights are so fundamental that the state can never take them away from you, no matter how much process they actually give.
• 33:19
  SPEAKER_02: And again, so we we're not um you know unfamiliar with fundamental rights in our legal system.
• 33:25
  SPEAKER_02: Usually they're written down in like the Bill of Rights, and that's what's enforceable.
• 33:28
  SPEAKER_02: But the idea of substantive due process is some rights are so fundamental, even though they're not written down anywhere, judges can enforce those unwritten rights.
• 33:36
  SPEAKER_02: So that's where we got abortion, the right to an abortion, Roe versus Wade.
• 33:39
  SPEAKER_02: It's where we get the right to same-sex marriage.
• 33:40
  SPEAKER_02: That's Obergefell.
• 33:42
  SPEAKER_02: Now, conservatives, for a long time, though it was always debated among academics.
• 33:47
  SPEAKER_02: Some conservatives always believed uh that you know, uh a law is not properly a law unless it meets certain criteria.
• 33:54
  SPEAKER_02: So when it says due process of law, you could sneak in substantive criteria through the word law, right?
• 34:01
  SPEAKER_02: Like uh law inconsistent with natural laws, no law at all.
• 34:04
  SPEAKER_02: And it's like, what is that?
• 34:05
  SPEAKER_02: I I'm very dubious about that, and I've written very skeptically about that.
• 34:10
  SPEAKER_02: Um, so there are sort of two responses that conservatives could make.
• 34:13
  SPEAKER_02: One is get rid of the doctrine altogether, the other is to say, well, no, if we're gonna do substantive due process, we just have to do it right.
• 34:21
  SPEAKER_02: And by right, we mean not like just the rights that conservatives like, although it starts to look like that sometimes, okay, which is tricky.
• 34:29
  SPEAKER_02: But what they say is the right has to be deeply rooted in American history and tradition.
• 34:35
  SPEAKER_02: So you the right must be deeply rooted, and the the right in question must be narrowly described.
• 34:40
  SPEAKER_02: So um uh this comes from a test from a case called Washington against Glucksburg.
• 34:46
  SPEAKER_02: So under that test, you know, the same-sex marriage case, Obergefeld, the question would have been, is same-sex marriage deeply rooted in American history and tradition, right?
• 34:54
  SPEAKER_02: The question wouldn't be, is marriage deeply rooted in American American history and tradition?
• 34:58
  SPEAKER_02: Obviously, marriage is deeply rooted, but same-sex marriage, a more narrowly defined right, is not deeply rooted in American history or tradition.
• 35:06
  SPEAKER_02: So, last point, when the Supreme Court overturned Roe versus Wade in the case of Dobbs against Jackson, it opted for this course.
• 35:14
  SPEAKER_02: It said, we're not getting rid of substantive due process, but we have to follow the Washington v.
• 35:18
  SPEAKER_02: Glacksburg test.
• 35:19
  SPEAKER_02: We have to narrowly define the right, we have to determine if it's deeply rooted in American history and tradition, abortion, the right to an abortion, you know, again, the higher level of generality, the right to bodily autonomy.
• 35:31
  SPEAKER_02: Like, okay, I guess that's deeply rooted in a sense, but the right to an abortion is not, right?
• 35:36
  SPEAKER_02: When you narrowly circumscribe it that way.
• 35:38
  SPEAKER_02: So we kept substantive due process, but we do this Washington v.
• 35:41
  SPEAKER_02: Glucksburg test.
• 35:43
  SPEAKER_02: So how would you apply it here?
• 35:44
  SPEAKER_02: I mean, you know, the question is is there a deeply rooted history and tradition of parents being able to raise their children, including um by denying them gender-affirming care without interference from the state?
• 35:57
  SPEAKER_02: I think obviously the answer is yes.
• 36:00
  SPEAKER_02: And thank you.
• 36:02
  SPEAKER_02: I just spent what five minutes getting to the roundabout conclusion that is so obvious to Catherine and everybody else.
• 36:08
  SPEAKER_03: Now, like no, you spent five minutes setting up a really, really sharp legal question that has an obvious answer, and Catherine gave the clear answer.
• 36:19
  SPEAKER_03: If I could just fill in a little bit more, I agree with everything Elon said, but just to fill in a little bit more of the big picture, you know, our constitution just doesn't speak to a lot of issues people assume it speaks to.
• 36:34
  SPEAKER_03: Like most people think, you know, I'll give some crazy examples.
• 36:38
  SPEAKER_03: The government can't just take my kids away and put them in a military academy like ancient Sparta did.
• 36:43
  SPEAKER_03: I have a right to raise my own children.
• 36:45
  SPEAKER_03: It must be in the Constitution.
• 36:47
  SPEAKER_03: Or I can be friends with whoever I want.
• 36:49
  SPEAKER_03: The government doesn't get to tell me who my friends are.
• 36:52
  SPEAKER_03: Or I can decide my own profession.
• 36:54
  SPEAKER_03: The government can't decide whether I'm a lawyer or a doctor or a bricklayer or whatever.
• 36:58
  SPEAKER_03: In fact, the constitution says nothing about any of this.
• 37:02
  SPEAKER_03: The constitution, if you actually like read the text, the whole like first three-quarters of the 1776, 70, I should say 1788 Constitution is about the structure of government.
• 37:15
  SPEAKER_03: It's about, you know, Congress can do this and the president can do that, and the judiciary can do this other thing, right?
• 37:21
  SPEAKER_03: Says nothing about any of that stuff.
• 37:24
  SPEAKER_03: And even, you know, the anti-federalists um oppose the Constitution because it didn't have a Bill of Rights.
• 37:30
  SPEAKER_03: That's how we got the 10 rights in the Bill of Rights.
• 37:33
  SPEAKER_03: And even they don't say anything about your personal life, your parents, children, sex, abortion, you know, the economy, socialists, capitalists.
• 37:42
  SPEAKER_03: They don't say anything about ever any of that.
• 37:44
  SPEAKER_03: They mostly are about what you might call our individual rights vis-a-vis the government.
• 37:50
  SPEAKER_03: So, like, I have a right to a jury trial if I'm accused of a crime.
• 37:54
  SPEAKER_03: I have a right to um um freedom of speech and freedom of religion.
• 38:00
  SPEAKER_03: The state can't tell me what to do in those respects.
• 38:03
  SPEAKER_03: But you like all this stuff that has been convulsing our society for uh generation upon generation of sort of like, is there a constitutional right to abortion?
• 38:14
  SPEAKER_03: Well, the constitution just doesn't say anything even close to that.
• 38:18
  SPEAKER_03: It doesn't talk about anything connected to marriage and sex and and all of it.
• 38:25
  SPEAKER_03: Um so courts have chafed at that restraint.
• 38:31
  SPEAKER_03: And also um the public has chafed.
• 38:34
  SPEAKER_03: They want a constitution uh that declares natural rights and a court that declares natural rights as long as it agrees with their version of natural rights.
• 38:42
  SPEAKER_03: And so traditionally you've had conservative courts that wanted to create economic rights that weren't textually in the constitution, like um uh a natural right to work, a constitutional right to work that would prevent minimum wage laws.
• 38:57
  SPEAKER_02: And the classic case here to our listeners is the Lochner Against New York case, right, where the New York state legislature sought to limit the number of hours bakers could work in a day and a week under a guise of public health and safety regulations.
• 39:12
  SPEAKER_02: And the US Supreme Court said, no, that violates substantive due process, this idea of lapse-pier capitalism, the right to freedom of contract, which was clearly right on the merits of the political theory, I think.
• 39:22
  SPEAKER_02: But is it in the Constitution?
• 39:24
  SPEAKER_02: Harder to say.
• 39:25
  SPEAKER_03: And then, you know, when when uh progressives got control, that was in the early days of substantive due process, when progressives got control of the court, they wanted to make it protect um things like abortion and gay sex and so on.
• 39:39
  SPEAKER_03: And and uh that led to a flourishing of substantive due process in the area of sort of sexual rights and personal rights.
• 39:47
  SPEAKER_03: And so we've had these different, you know, conservatives making up substantive due process stuff and and liberals making up substantive due process stuff.
• 39:56
  SPEAKER_03: Okay.
• 39:57
  SPEAKER_03: A hundred years ago, the court started declaring substantive due process natural rights to parents to raise their children.
• 40:05
  SPEAKER_03: And so there was a 1923 case called Myers v.
• 40:08
  SPEAKER_03: Nebraska.
• 40:09
  SPEAKER_03: Um, the state, uh Nebraska had passed a law prohibiting parents from teaching their children German.
• 40:16
  SPEAKER_03: This was in the wake of World War I.
• 40:18
  SPEAKER_03: And the court stated that substantive due process, the liberty protected by the due process clause, quote, denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home, and bring up children to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
• 40:47
  SPEAKER_03: So just think about what I just read.
• 40:49
  SPEAKER_03: That's a very, very expansive notion of natural rights in the Constitution under this heading substantive due process.
• 40:58
  SPEAKER_03: Um, and then, you know, a few years later, 1925, Pierce v.
• 41:02
  SPEAKER_03: Society of Sisters, the law, the there was a law requiring all children to attend a public school.
• 41:08
  SPEAKER_03: And the court declared, no, parents have a right to choose a private school for their child.
• 41:13
  SPEAKER_03: Again, the Constitution doesn't say anything about parents, children, education, public schools, private schools.
• 41:19
  SPEAKER_03: It doesn't say anything about any of it.
• 41:20
  SPEAKER_03: But the court said, no, that's fundamental.
• 41:23
  SPEAKER_03: And so, you know, once again, here we are.
• 41:27
  SPEAKER_03: Do we say conservatives have traditionally rejected substantive due process for good reason, because it's judges making stuff up about the Constitution.
• 41:36
  SPEAKER_03: But we've been in this decidedly second best world where judges do exactly that for over a hundred years, right?
• 41:44
  SPEAKER_03: So do we insist that you can't do that anymore?
• 41:47
  SPEAKER_03: So substantive due process doesn't cover the right of parents to, you know, be returned to have their children returned to them and to have their own views of gender-affirming care?
• 41:58
  SPEAKER_03: Or do we insist on a first best where there's no such thing as substantive due process?
• 42:03
  SPEAKER_03: Or do we say the die is cast, substantive due process exists, and if there is any right that is fundamental, even though unwritten, it's the right of parents to oversee their children's health and well-being.
• 42:14
  SPEAKER_03: And, you know, my take on it is we've got to play the hand with dealt as practical political actors and as practical legal actors.
• 42:21
  SPEAKER_03: But it's unfortunate, I would rather a world with no substantive due process at all.
• 42:26
  SPEAKER_03: As long as I have a world where substantive due process is all over the place and the quote refuses to get rid of it, we should use it in this context.
• 42:35
  SPEAKER_02: Yeah, I mean, this is beyond the scope of I think what we wanted to talk about in this episode, but I would be remiss if I didn't say that there are ways conservatives could get substantive due process under a different guise, which is the privileges or immunities clause of the 14th Amendment.
• 42:51
  SPEAKER_02: I'm not going to go into this now.
• 42:52
  SPEAKER_02: You know, my scholarship, I have a whole book called The Second Founding.
• 42:55
  SPEAKER_02: Yes, Catherine, I'm talking about my books again, uh, which you should all get.
• 42:59
  SPEAKER_02: Um, you should see your face if you're just listening.
• 43:01
  SPEAKER_02: Uh, you should follow us on YouTube.
• 43:02
  SPEAKER_00: Wait, you wrote a book?
• 43:04
  SPEAKER_02: Yes, three.
• 43:04
  SPEAKER_02: Actually, they're great.
• 43:06
  SPEAKER_02: Uh thank you.
• 43:06
  SPEAKER_00: Uh they are wonderful.
• 43:08
  SPEAKER_00: I recommend them.
• 43:09
  SPEAKER_02: Thank you, Catherine.
• 43:10
  SPEAKER_02: That's why we keep it.
• 43:10
  SPEAKER_03: Two thumbs up, two thumbs up.
• 43:12
  SPEAKER_03: He's a brilliant Lego scholar.
• 43:13
  SPEAKER_02: Josh, you too.
• 43:14
  SPEAKER_02: You can stay on.
• 43:15
  SPEAKER_02: Uh, okay.
• 43:16
  SPEAKER_02: Uh so basically, the 14th Amendment says no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
• 43:26
  SPEAKER_02: Some scholars argue, like Kurt Lash and Randy Barnett and others, that well, Kurt Lash focuses, I guess, on federal protected rights.
• 43:32
  SPEAKER_02: So this is more like Randy Barnett and those in his school of thought say that the privileges and immunities of citizens, what does that mean?
• 43:40
  SPEAKER_02: It means those, you know, rights deeply rooted in American history and tradition, in the common law, the freedom to marry, to contract, and so on.
• 43:47
  SPEAKER_02: And that you abridge those rights when you deny them.
• 43:51
  SPEAKER_02: Uh, and so that's totally plausible.
• 43:52
  SPEAKER_02: My take in the amendment uh in my scholarship is that to abridge means to discriminate in the provision of them, which is a much narrower reason.
• 44:00
  SPEAKER_02: But as I'm about to confess, may lead to a lot of the same results.
• 44:04
  SPEAKER_02: And I don't want to be accused of, you know, like selective, you know, picking and choosing here.
• 44:09
  SPEAKER_02: But, you know, how do you know?
• 44:10
  SPEAKER_02: So the bottom line, under my view, is states would get to regulate contract rights and property rights and marriage and so on, but they can't discriminate.
• 44:18
  SPEAKER_02: So the states can't say black people can't marry, black people can't own guns, gays can't own property.
• 44:23
  SPEAKER_02: We've talked about it before.
• 44:24
  SPEAKER_02: That's an abridgement, it's an arbitrary discrimination because the regulation has nothing to do with the content of the right.
• 44:29
  SPEAKER_02: Now, how would we treat, you know, um Pearsby Society Sisters or actually Myers v.
• 44:34
  SPEAKER_02: Nebraska?
• 44:35
  SPEAKER_02: You can make an argument that while singling out German is an arbitrary discrimination, uh, that the state may be able to come back with sort of a compelling reason.
• 44:43
  SPEAKER_02: I don't know.
• 44:44
  SPEAKER_02: Like you could you could see how a lot of these cases might occur under the privileges or immunities clause, under either version of the meaning of a bridge, right?
• 44:53
  SPEAKER_02: I just wanted to flag to the to the listeners that just because substantive due process is an oxymoron, it it's possible that you could recover some of that doctrine under the privileges or immunities clause.
• 45:05
  SPEAKER_02: Now it depends again how broad or narrow you have of the understanding of privileges and immunities, and how broad or narrow your view of the word abridge is, but it's it's possible.
• 45:13
  SPEAKER_02: Okay, let me stop there and just make one point and then ask you another question, I guess, um, Josh.
• 45:18
  SPEAKER_02: The small point is remember there was a case, um, wasn't there a case last year about whether parents have a right to know whether California schools are secretly transitioning their children, like socially transitioning?
• 45:33
  SPEAKER_02: Catherine, does this ring a bell to you?
• 45:35
  SPEAKER_02: Wasn't there a case about this?
• 45:37
  SPEAKER_02: I don't know if we talked about it.
• 45:38
  SPEAKER_02: I I don't remember exactly, but um, the the Federalist Society in its National Lawyers Convention last year had a debate between someone from Alliance Defending Freedom, I think it was Kristen Wagner, and Professor Marianne Case of the University of Chicago Law School.
• 45:54
  SPEAKER_02: And I think the audience was generally in favor of the ADF position, which is like, of course, you have a substantive due process right.
• 46:00
  SPEAKER_02: And actually, I think it's really hard in that case, because you could always withdraw your kids from public schools, right?
• 46:06
  SPEAKER_02: And so, do you really have a substantive due process right to send your kids to public schools and then not have parents socially transition them?
• 46:14
  SPEAKER_02: That's much different from telling your that you parents that you can't send your kids to private school, that you can't educate them at home, right?
• 46:20
  SPEAKER_02: Forcing them into public schools strikes me as a much more difficult problem.
• 46:23
  SPEAKER_02: Secretly transitioning them or not telling you where your kids are when they run away.
• 46:27
  SPEAKER_02: I actually think that's a clearer due process problem than the school case, which I don't know what happened to it or if it's still circulating in the lower courts.
• 46:35
  SPEAKER_02: I thought that was going to be up in the Supreme Court soon.
• 46:37
  SPEAKER_02: But anyway, this case strikes me as a clearer case for the parents than the public school case.
• 46:41
  SPEAKER_02: Okay, last thing I want to say about that.
• 46:44
  SPEAKER_02: Does it, isn't it still the case that, Josh?
• 46:48
  SPEAKER_02: Suppose there is a substantive due process right.
• 46:50
  SPEAKER_02: Let's just agree with that.
• 46:52
  SPEAKER_02: Parents being able to know where their kids are, free of state interference and secretly raising them, you know, transgender or whatever, deeply rooted American history and tradition.
• 47:01
  SPEAKER_02: How do we know?
• 47:02
  SPEAKER_02: Like, doesn't it follow that the state can still regulate it?
• 47:05
  SPEAKER_02: And how do we know, you know, what are the bounds of that regulation?
• 47:10
  SPEAKER_02: Like, again, this goes back to like what's a regulation versus an infringement, right?
• 47:15
  SPEAKER_02: Um, does that make sense?
• 47:17
  SPEAKER_02: Like, we were talking about this in in the context of like the AR-15 episode with Joel Elisea.
• 47:22
  SPEAKER_02: Like, yeah, having guns is a right, but you can still regulate rights.
• 47:25
  SPEAKER_02: How do we know what's a genuine regulation?
• 47:27
  SPEAKER_02: Does it apply here?
• 47:29
  SPEAKER_02: Um, you know, the the even recognizing parental rights, the courts have held that when kids are in imminent danger of like abuse or something, can't you it is the problem that this is just the state's excuse is so crazy?
• 47:43
  SPEAKER_02: But if if we're weighing how compelling the state's interest is, aren't we just having judges do it all over again?
• 47:50
  SPEAKER_02: But I guess if we're doing substantive due process, then we're having judges decide these questions.
• 47:53
  SPEAKER_02: Is that all too abstract?
• 47:55
  SPEAKER_02: I'm do you get what the question I'm getting at, Josh?
• 47:57
  SPEAKER_03: I I suppose, I mean, I I I guess you could imagine the following.
• 48:01
  SPEAKER_03: Let's say that the law said um if a child alleges that he is being sexually abused by his parents, um the state can hold the child incommunicado in a f in the foster foster care system or with social workers or in an institution while it you know performs an assessment uh and investigates the situation, right?
• 48:36
  SPEAKER_03: Would parents have a substantive due process right to have their child who is alleging sexual abuse be returned?
• 48:43
  SPEAKER_03: And you know, in a case like that, um it may well be that we would say this is a regulation of the right, not a violation of it.
• 48:53
  SPEAKER_03: And so the I guess the question is is what is driving our sense that this is an infringement of fundamental liberty interests uh or fundamental rights, that you're taking a parent's child away on such an outrageous basis?
• 49:10
  SPEAKER_03: Or is what's really going on that you're taking a child away at all?
• 49:16
  SPEAKER_02: Can I ask by the by the way, just so we could be cutting edge, did you hear about that story um in Virginia, that mom of like five kids sending her kid down on his own to the pond in the like the local community?
• 49:31
  SPEAKER_02: It was just like five minutes away, and then she got a six-month suspended jail sentence.
• 49:36
  SPEAKER_02: Are those laws a violation of your substantive due process right to raise your kids independently, like create the conditions in which they become like normal functioning citizens and not yeah that that goes to a very interesting and important issue.
• 49:51
  SPEAKER_03: I I think that um in the era of kind of trans madness and also state interference with independence of children, I mean, it used to be children could, you know, roam around and play, and now uh there are numerous examples like that one of um kind of Karen neighbors uh alleging that a child is unsupervised and social workers interfering with parents raising their own children.
• 50:19
  SPEAKER_03: And I think all of these problems, the trans problems, the sort of institutional left of public schools and so on interfering with parents and the way they want to raise their children, and the uh kind of uh officious bureaucratic intermedling in family life, both of those are bad and getting worse.
• 50:39
  SPEAKER_03: And the response is a full-throated defense of parental rights under the notion of substantive due process.
• 50:48
  SPEAKER_03: And um, courts should plunge into that opening because it's the right thing to do as a matter of what our fundamental rights really are.
• 50:56
  SPEAKER_03: And substantive due process isn't going anywhere, and so we should embrace it in this context in which it's so, so important.
• 51:03
  SPEAKER_02: I used to say that the only substantive due process right I believe in is the right to be free of PowerPoint presentations, but I'm starting to think that I also believe very strongly in parental uh rights if we're if we're gonna do it.
• 51:13
  SPEAKER_02: But okay, Catherine, you had a lot to say about our third topic, the WPATH AAP litigation over the standards of care, speaking of transgender health.
• 51:22
  SPEAKER_02: Do you wanna uh lead that off?
• 51:24
  SPEAKER_00: Yeah, this is uh this is really crazy, and I actually haven't seen this all over, and it should be all over.
• 51:29
  SPEAKER_00: So um I'm excited to talk about it.
• 51:31
  SPEAKER_00: So the juicy legal news related to this is the kind of update on the Florida lawsuit against WPATH and the AAP.
• 51:41
  SPEAKER_00: WPATH, as you remember, World Professional Association for Transgender Health, AAP American Academy of Pediatrics.
• 51:49
  SPEAKER_00: Listeners of this podcast will remember that in state court in December of last year, the Florida Attorney General sued WPATH, the Endocrine Society, and AAP, and accused them of engaging in deceptive practices and racketeering by promoting gender-affirming care for minors without sufficient scientific evidence.
• 52:07
  SPEAKER_00: Again, we covered that in depth on episode 22.
• 52:10
  SPEAKER_00: So go back to that episode if you want to hear more details about that case.
• 52:13
  SPEAKER_00: But in brief, the biggest issue in the case was the standards of care, which insurers and hospitals followed basically required gender-affirming care and even surgery for minors.
• 52:26
  SPEAKER_00: But the evidence justifying it was almost non-existent.
• 52:30
  SPEAKER_00: And as you'll remember, it was circular.
• 52:32
  SPEAKER_00: They'd cite themselves saying things somewhere, and then they cite themselves again, and no one really had any proof that this was helping kids.
• 52:38
  SPEAKER_00: Um, well, AAP then went to federal court in Illinois to argue that Florida's litigation was brought in bad faith.
• 52:47
  SPEAKER_00: In June, a district court judge in Illinois granted a preliminary injunction blocking Florida Attorney General Uthmeyer's office from pursuing its lawsuit pending the outcome of the AAP's lawsuit in Illinois.
• 53:00
  SPEAKER_00: In July, the Seventh Circuit stayed the preliminary injunction and decided it will hear the appeal and blanc.
• 53:06
  SPEAKER_00: Bonk and bonk?
• 53:08
  SPEAKER_02: Unbank.
• 53:09
  SPEAKER_02: Depends who you ask.
• 53:10
  SPEAKER_02: If you ask the judge for whom I clerk, Jerry Smith, he says in bank, because this is America, I guess.
• 53:16
  SPEAKER_02: Uh, but most people say on bank.
• 53:19
  SPEAKER_00: I love that take.
• 53:20
  SPEAKER_00: Okay.
• 53:20
  SPEAKER_00: And bank is what I'm gonna say.
• 53:23
  SPEAKER_00: Uh ultimately, AAP decided to dismiss its own lawsuit, I guess, after it became clear that the Seventh Circuit wasn't going to let them enjoy the Florida proceedings.
• 53:33
  SPEAKER_00: So before we talk about the Boer explosive developments in that Florida case, Elon, do I have all that right except for the whole bonk blonck blonc thing?
• 53:40
  SPEAKER_02: Yeah, you actually had it all right.
• 53:41
  SPEAKER_02: Um, and so I really want to hear you and Josh on this uh development in the Florida case, um, where they basically say, just kidding, these are all opinions, right?
• 53:51
  SPEAKER_02: But just for the CLE portion of this, we should, by the way, start offering CLE for our legal podcast.
• 53:56
  SPEAKER_02: There is an issue.
• 53:57
  SPEAKER_00: No, no, no, no.
• 53:58
  SPEAKER_00: Then people will think we're boring.
• 53:59
  SPEAKER_02: We're not okay.
• 54:01
  SPEAKER_02: All right, fair enough.
• 54:02
  SPEAKER_02: But to those students who will be taking federal jurisdiction with me in the spring, uh, for example, or those in federal jurisdiction now, we've talked about this.
• 54:09
  SPEAKER_02: Federal judges generally cannot enjoy state court proceedings except under very rare circumstances.
• 54:15
  SPEAKER_02: It's even crazier that a federal judge in a totally different state purported to enjoy proceedings uh in a different state entirely.
• 54:24
  SPEAKER_02: That is basically unheard of uh as far as I know.
• 54:28
  SPEAKER_02: Even if it were a federal judge within the state, and there's all sorts of problems with like how do you procure the presence of the defendant?
• 54:34
  SPEAKER_02: How do you have personal jurisdiction over the Florida attorney general?
• 54:36
  SPEAKER_02: How do you have jurisdiction over the court, right?
• 54:38
  SPEAKER_02: It's it's very, very tricky.
• 54:40
  SPEAKER_02: But even if this were in Florida itself, there's something called the Anti-Injunction Act, which basically says federal courts cannot enjoin state court proceedings except under narrow circumstances where Congress has expressly authorized it.
• 54:54
  SPEAKER_02: Has Congress expressly authorized it?
• 54:55
  SPEAKER_02: The only theory here would be a statute, which we've talked about on that prior episode, called 42 USC Section 1983, which prohibits state officials from violating constitutional rights.
• 55:04
  SPEAKER_02: And the court has said for this to justify enjoining state court proceedings, the statute that the state court must be enforcing has to be so utterly and blatantly unconstitutional that it can't possibly have any constitutional application.
• 55:16
  SPEAKER_02: Obviously, it doesn't apply here, right, to the Unfair Deceptive Practices Act, whether the federal or the or the or the state one.
• 55:23
  SPEAKER_02: So uh this resolved much more quickly than I think we anticipated when we were doing it on episode 22.
• 55:28
  SPEAKER_02: We thought that this was gonna stop the Florida lawsuit, and there's this gonna be this whole interstate dispute between a federal judge and a state court judge of a different state.
• 55:36
  SPEAKER_02: Turns out the Seventh Circuit very quickly stopped the federal district judge's injunction, took it on Bonk, I think, so a sponte.
• 55:42
  SPEAKER_02: And so what happened?
• 55:43
  SPEAKER_02: The AAP voluntarily dismissed its lawsuit.
• 55:47
  SPEAKER_02: They said, okay, our ploy isn't gonna work.
• 55:49
  SPEAKER_02: Before we make some bad law here for us, we dismiss the lawsuit.
• 55:53
  SPEAKER_02: So great development.
• 55:54
  SPEAKER_02: They're correct, I think under the law of federal state jurisdiction, federal state relations.
• 55:59
  SPEAKER_02: Um, so uh that's the um federal jurisdiction update.
• 56:02
  SPEAKER_02: But Catherine, tell us about the development of the state court lawsuit because I have a feeling Josh is gonna have a lot to say about this, and we can wrap up that way.
• 56:09
  SPEAKER_00: So, what happened in the state lawsuit is WPATH and the AAP tried to defend against the state lawsuit by arguing that it should be dismissed because it infringed on their First Amendment rights.
• 56:21
  SPEAKER_00: Basically, they raised the First Amendment as a defense in the lawsuit, which I suppose is okay to do as a defense in the state proceedings, though it's not okay to do offensively in federal court, bar.
• 56:34
  SPEAKER_02: Right, I guess I just I know we we talked about that earlier because, like, um, yes, the AAP was trying to use the First Amendment offensively by filing a lawsuit in federal court.
• 56:45
  SPEAKER_02: But of course, that's not okay.
• 56:46
  SPEAKER_02: Of course, they could still defend in Florida state court, like defensively, as a answer to the complaint that, hey, this violates our First Amendment rights.
• 56:53
  SPEAKER_02: That's still open to them in state court.
• 56:55
  SPEAKER_02: And that's what they're trying to do, which leads to what happened.
• 56:58
  SPEAKER_00: Okay, so then they argue that it was a First Amendment violation to go after them because their standards of care were just opinions.
• 57:07
  SPEAKER_00: Here's what they said in their motion to dismiss.
• 57:09
  SPEAKER_00: This is a quote.
• 57:10
  SPEAKER_00: The action is without merit and was brought because defendants exercised their constitutional rights of free speech and petition on a subject of intense public debate to offer opinions that plaintiff dislikes.
• 57:24
  SPEAKER_00: They were just opinions.
• 57:26
  SPEAKER_03: Just to be clear, the way the First Amendment works in this context is you're not free to lie.
• 57:32
  SPEAKER_03: Like you can't, as a doctor, say, uh, hey, it would be fun if you took a thousand milligrams of morphine, uh, you'll have a great high to your patient, and then they die from it, and you say, Well, I'm free speech protected.
• 57:45
  SPEAKER_03: No way.
• 57:46
  SPEAKER_03: That's you made a claim of fact about the patient having a great time or whatever, or healing, and uh it was false.
• 57:54
  SPEAKER_03: It was a it was a reckless mistake, it was even just a blatant lie, and that is not protected.
• 58:00
  SPEAKER_03: So, in order to get the benefit of the First Amendment, the protection of the First Amendment, WPATH has to say that all of the things it said about gender-affirming care were opinions, not claims of fact, right?
• 58:13
  SPEAKER_03: Because otherwise, they could be liable civilly for false claims of fact.
• 58:18
  SPEAKER_03: They could be liable criminally for false claims of fact.
• 58:22
  SPEAKER_03: And the problem is it wasn't opinions.
• 58:25
  SPEAKER_03: Like on no reasonable basis are these claims opinions.
• 58:28
  SPEAKER_03: If they say there are medical studies that show that denying uh children gender-affirming care, that is, transitions from one biological sex to another, uh reduces their likelihood of suicide.
• 58:44
  SPEAKER_03: If that's the claim, that is a factual claim.
• 58:48
  SPEAKER_03: That is not an opinion, that is a factual claim.
• 58:51
  SPEAKER_03: The whole power of WPATH and the Pediatric Association, the American Association of Pediatrics, is that they make claims of medical fact, not just political opinions.
• 59:02
  SPEAKER_03: And now they're trying to hide behind they know that they're false, they know that they can't prove it, they're trying to hide behind the idea that it's a it's that everything they said was merely opinion.
• 59:13
  SPEAKER_03: Like if I say, I think that um the trans movement is uh totally reasonable and sound and just, or if I say the opposite, I think the trans movement is madness and lunacy and unjust, right?
• 59:26
  SPEAKER_03: Those are opinions.
• 59:27
  SPEAKER_03: But if I say your child is going to be more likely to commit suicide based on medical scientific studies, and you need to give that child uh gender-affirming care to prevent that suicide, that is a claim of fact.
• 59:43
  SPEAKER_03: That is a medical claim.
• 59:45
  SPEAKER_03: They should be liable for this claim.
• 59:46
  SPEAKER_03: This is outrageous, folks.
• 59:48
  SPEAKER_03: And it's ironically outrageous because they took advantage of all of their authority and power as doctors to make medical claims of fact.
• 59:57
  SPEAKER_03: And as soon as they got called up uh under the law for what they were saying, they hid behind the idea, oh, it's just opinions anyway.
• 1:00:06
  SPEAKER_00: Yeah, and they this the whole thing, as everyone knows, their whole thing for years has been that they are the ones who are talking about the settled science.
• 1:00:15
  SPEAKER_00: They're the ones who are talking about, you know, every doctor agrees on this, is what we would hear.
• 1:00:20
  SPEAKER_00: That gender-affirming care is the only good way, like you said, Josh, is the only thing that's going to keep these kids living.
• 1:00:27
  SPEAKER_00: They've said this for years.
• 1:00:29
  SPEAKER_00: And now to get out of this lawsuit, they want to completely change their tune and say, well, those were just opinions.
• 1:00:33
  SPEAKER_00: And they even talk about um somewhere in there that, you know, well, in this society of free speech, you know, more speech is better.
• 1:00:39
  SPEAKER_00: Like that is that is not what they have been saying for years.
• 1:00:43
  SPEAKER_00: And so this is crazy.
• 1:00:44
  SPEAKER_00: I mean, it just blew me away.
• 1:00:46
  SPEAKER_00: And apparently WPATH made the same claim in another lawsuit.
• 1:00:50
  SPEAKER_00: I was just gonna add this.
• 1:00:51
  SPEAKER_00: There is a quote from this other lawsuit with the FTC where they said, and I quote, non-actionable opinions about subjects on which there is medical and scientific uncertainty protected by the are protected by the first amendment.
• 1:01:05
  SPEAKER_00: Among WPAT citations is a fifth circuit opinion that merely publishing a medical opinion, even a hotly debated one in a peer-reviewed journal, cannot give rise to a misrepresentation claim.
• 1:01:15
  SPEAKER_00: But that piece about uncertainty hotly debated.
• 1:01:19
  SPEAKER_01: What who wasn't hotly debated?
• 1:01:21
  SPEAKER_01: I thought the debate was over.
• 1:01:23
  SPEAKER_00: We were told that there was medical and scientific certainty on this issue over and over and over for years, and now they changed their tune.
• 1:01:30
  SPEAKER_00: I mean, what in the world?
• 1:01:31
  SPEAKER_00: I was followed by Chair when I read that.
• 1:01:33
  SPEAKER_03: And the First Amendment is not a privilege for doctors and associations of doctors, medical associations, to tell lies about what science shows.
• 1:01:44
  SPEAKER_03: It is not an excuse.
• 1:01:46
  SPEAKER_03: More speech is better, does not equate to scientific professionals, medical professionals have a privilege to lie whenever they feel like it.
• 1:01:56
  unknown: Right?
• 1:01:56
  SPEAKER_03: I also want to tell you this is lying, it is not protected, and it cannot pretend to be opinion when it's not opinion.
• 1:02:02
  SPEAKER_03: You know, I I want to repeat something.
• 1:02:04
  SPEAKER_03: I I mentioned in a previous episode when we talked about this.
• 1:02:07
  SPEAKER_03: Okay, think of a two by two matrix, right?
• 1:02:10
  SPEAKER_03: So there's four squares to fill, and the issue is always individual versus collective or corporate, and civil versus criminal.
• 1:02:20
  SPEAKER_03: And right now, what we're seeing is a lawsuit against WPATH and a lawsuit against AAP.
• 1:02:26
  SPEAKER_03: That is to say, it is a civil suit against an organizational defendant.
• 1:02:31
  SPEAKER_03: But you could have a civil suit against individual doctors or individual W PATH leadership.
• 1:02:37
  SPEAKER_03: You could have a criminal suit against individual doctors or individual W PATH leadership, and you could have a criminal suit against WPATH as an organization or the AAP as an organization.
• 1:02:49
  SPEAKER_03: There are four boxes to fill on in this matrix.
• 1:02:54
  SPEAKER_03: I teach corporate criminal law.
• 1:02:56
  SPEAKER_03: People always forget that you have criminal liability for organizations in America, and a prosecutor could file a criminal indictment, not just a lawsuit, but a criminal indictment against an organization.
• 1:03:09
  SPEAKER_03: I think WPATH I think the prosecutors of America, uh, including the state DAs, should think hard about whether WPATH has committed crimes.
• 1:03:19
  SPEAKER_02: I have a bad joke here, Josh.
• 1:03:20
  SPEAKER_02: Um, could WPATH raise the insanity defense?
• 1:03:23
  SPEAKER_02: And I joke because to our listeners, well, we've been debating the insanity defense among ourselves, and we're gonna do an episode about this soon.
• 1:03:30
  SPEAKER_02: And I'm not a big believer in the insanity defense, but can you describe anything uh, you know, that how can you describe it otherwise than WPATH was going through some insanity?
• 1:03:40
  SPEAKER_02: Like they went through this insane view and this social contagion that their own doctors got, you know, swept up in.
• 1:03:46
  SPEAKER_02: So could they raise the insanity defense?
• 1:03:48
  SPEAKER_02: Kind of interesting, but let me just add two other things and then we can wrap this up.
• 1:03:51
  SPEAKER_02: Uh, it's not just about criminal lying, Josh.
• 1:03:54
  SPEAKER_02: It's also just commercial speech, right?
• 1:03:56
  SPEAKER_02: I mean, um, it's uh there's a there's a Fifth Circuit decision, which thank you to my RA for finding this for me.
• 1:04:03
  SPEAKER_02: Uh, the failure of a physician to exercise reasonable care and diligence and his best judgment in meeting the standard of care exercised in the medical community is actionable negligence.
• 1:04:12
  SPEAKER_02: This has to do with commercial speech and whether doctors are actually going to be negligent.
• 1:04:17
  SPEAKER_02: Um, Lior Sapir um at uh Leo uh uh at uh at City Journal basically said that uh there are major commercial has shown that major commercial insurers, including Kaiser, Etna, Cigna, United Healthcare, uh rely on the standards of care.
• 1:04:32
  SPEAKER_02: They relied on it in order to make determinations of health insurance coverage, right?
• 1:04:37
  SPEAKER_02: And just one last juicy piece, and then we I'll get your final thoughts from both of you.
• 1:04:42
  SPEAKER_02: Just two years ago, the Biden administration in United States v.
• 1:04:47
  SPEAKER_02: Scremenetti, do you remember that case to our audience?
• 1:04:50
  SPEAKER_02: This is the case where Tennessee was trying to ban gender affirming care, and the government and other plaintiffs were challenging that as unconstitutional.
• 1:05:00
  SPEAKER_02: They argued the Biden administration argued that it was unconstitutional, I guess, under substantive due process or whatever, because uh gender-affirming care was medically necessary.
• 1:05:10
  SPEAKER_02: Medically necessary.
• 1:05:11
  SPEAKER_02: Okay, and now, despite all of that, despite actionable negligence, that doctors follow it, that insurers follow it, that they the government cited it as medically necessary for their argument in Scremdi.
• 1:05:25
  SPEAKER_02: It they when they have a lawsuit, they are all going about face and they're saying, just kidding, it's actually uncertain.
• 1:05:31
  SPEAKER_02: There's a debate, we were just stating an opinion.
• 1:05:34
  SPEAKER_02: It is amazing how salutary litigation can be.
• 1:05:37
  SPEAKER_02: Right?
• 1:05:38
  SPEAKER_02: It people do not want to lie when they're under oath, when they are filing a pleading.
• 1:05:45
  SPEAKER_02: And it just good on the Florida Attorney General uh and I guess the FTC for having brought these lawsuits because I think it finally forced the truth out of them.
• 1:05:52
  SPEAKER_02: Okay, we're basically out of time.
• 1:05:54
  SPEAKER_02: Any concluding thoughts uh from the two of you?
• 1:05:55
  SPEAKER_02: Just this.
• 1:05:56
  SPEAKER_00: I would just say one thing.
• 1:05:57
  SPEAKER_00: Mine's not very profound, so let me go first, Josh.
• 1:05:59
  SPEAKER_00: You should end it because it's probably more profound.
• 1:06:01
  SPEAKER_00: But I do think this is working, and it's working not just in these lawsuits, but with people who are not involved in these lawsuits, like some of these hospitals.
• 1:06:07
  SPEAKER_00: I just saw on Friday the Department of Justice announced that they had an agreement with Mount Sinai uh health system, which is one of the largest healthcare providers in New York, that they have agreed to stop providing gender interventions on minors altogether.
• 1:06:21
  SPEAKER_00: Um, and this a number of high-profile hospitals have done the same.
• 1:06:25
  SPEAKER_00: And this was the result, I think, of the pressure that these lawsuits have brought on these uh associations and hospitals, and then also the investigations that the department is doing.
• 1:06:34
  SPEAKER_00: So there's real progress here, which is fantastic because I think we hear so often, you know, the wheels of justice turn slowly, but the the ripple has been farther than just the people involved in these lawsuits, but also many of these hospitals who have done so much harm.
• 1:06:48
  SPEAKER_00: And it's a huge, huge win to see that they're finally ending these uh these programs, at least for minors.
• 1:06:54
  SPEAKER_03: Well, I I actually am quite glad that you went first, Catherine, because uh not because what I have to say is more profound, but because it's more cynical.
• 1:07:02
  SPEAKER_03: Um so you're right, real progress is happening.
• 1:07:06
  SPEAKER_03: It seems like the kind of madness that we saw in in society over trans issues has crested and is declining for now, although I don't know that that's a permanent state.
• 1:07:20
  SPEAKER_03: But we we are seeing progress with the you know, the wonderful work of the Department of Justice and the Trump administration on this and the kind of vibe change in the country.
• 1:07:29
  SPEAKER_03: However, stopping this great evil is not the same thing as consequences for the people responsible for this great evil.
• 1:07:40
  SPEAKER_03: And unless there are consequences, there will never be deterrence.
• 1:07:43
  SPEAKER_03: It'll just be wait and try again next time around.
• 1:07:46
  SPEAKER_03: It'll be a temporary cessation.
• 1:07:48
  SPEAKER_03: It really is necessary for there to be consequences, not just a change of heart or a change of policy.
• 1:07:54
  SPEAKER_03: Um, one of the things I think the right in particular has done a poor job of is imposing consequences.
• 1:08:03
  SPEAKER_03: Well, I think the left has been very skillful at uh imposing consequences for being on the other side of their ideas.
• 1:08:11
  SPEAKER_03: In this case, we have um some real evil, some real lying, some real falsehood.
• 1:08:16
  SPEAKER_03: And what this case is about is will WPATH and will the American Association of Pediatrics get away with it?
• 1:08:23
  SPEAKER_03: Will they get away with it?
• 1:08:24
  SPEAKER_03: Don't let them get away with it.
• 1:08:26
  SPEAKER_03: There has to be consequences.
• 1:08:28
  SPEAKER_02: Well, on that cynical, and if I may say so, based note, please, if you thought this was another dynamite great based episode, give a like, give us a rating, give us a review.
• 1:08:38
  SPEAKER_02: It helps so so much at this early stage.
• 1:08:40
  SPEAKER_02: Follow us on Substack, rationally based on substack.com, and we will see you next time.