Transgender Policy in the Biden Administration

Listen & Download

The national conversation over transgender students’ inclusion in student athletics and school facilities has received unparalleled levels of attention in the past weeks.  Some transgender advocates argue affording equal rights to transgender students requires forcing public schools to allow transgender students access to the sports team, the locker room, and the bathroom that matches the gender the trans student identifies with. Others oppose such mandatory access, arguing that treating transgender boys who identify as girls the same as biological girls undermines hard-fought women’s gains in developing women’s sports and safety-protections.

Join us for a discussion between Shannon Minter, transgender rights advocate and Legal Director of the National Center for Lesbian Rights, and Lauren Adams, noted feminist advocate and Legal Counsel at Women’s Liberation Front. 

Featuring: 

Shannon Minter, Legal Director, National Center for Lesbian Rights

Lauren Adams, Legal Counsel, Women's Liberation Front 

Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law 

 ---

This event is open to Federalist Society Members.  Register at the link above.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome, everyone, to this Federalist Society virtual event as this afternoon, April 22—I think I have that right—2021 we’re having a special Zoom event on “Transgender Policy in the Biden Administration.” Just a quick note for our audience, this live event is open to Federalist Society members only, and this event will be recorded and published as a podcast for later listening. Also, as we go along, please submit your questions via the chat function or the Q&A box. We’ll be collecting those as we go along, and we’ll get to as many as we can towards the end of the call.

 

I’m Nick Marr, Assistant Director of Practice Groups at The Federalist Society, and as always, please note that expressions of opinion on our event today are those of our experts. We have a great panel. I’m just going to introduce our moderator and thanks to our moderator for organizing this event.

 

And so we’re very pleased to be joined this afternoon by Ken Marcus. He’s founder and chairman of the Louis Brandeis Center for Human Rights Under Law. He most recently served as Assistant U.S. Secretary of Education for Civil Rights. He’s the author of several books, the titles of which are listed on our website. And so with that, Ken, thanks very much for being with us. I’ll give the floor to you.

 

Hon. Kenneth L. Marcus:  Thank you, Nick, and thank you for subbing in and joining us in the civil rights practice group where we have a robust speaker series coming up for the remainder of the spring and summer. But we’re fortunate to begin it today with this important issue of transgender policy in the Biden administration, an area in which there has been substantial change in policy from the past. And I’m very pleased to say that we have today two distinguished speakers, both experienced attorneys and activists on this topic but from different point of views.

 

We have Lauren Adams from the Women’s Liberation Front. She is a legal counsel there who has worked for several years in a variety of legal settings, generally helping women and families impacted by domestic violence to navigate civil and family court. She’s also the founder of the Women Forward Alliance, providing fiscal sponsorship to projects that serve women and children. Lauren, we welcome you.

 

We also have Shannon Minter. Shannon is the legal director of the National Center for Lesbian Rights, one of the nation’s leading advocacy organizations for lesbian, gay, bisexual, and transgender individuals. Shannon Minter was lead counsel for same sex couples in a landmark California equality case which held that same sex couples have the fundamental legal right to marry and that laws that discriminate based on sexual orientation are inherently discriminatory. Shannon has also been involved in a variety of other pertinent cases to our issue and has been recognized as a California Lawyer of the Year. We thank both of you for joining us and welcome you both.

 

For those who are joining us now, I would also suggest that at any time you could provide questions in the chat feature. I will be privileged to join Lauren and Shannon in conversation, but we will welcome questions that you add to the mix as well. I’m going to start with just an opportunity for each of our two speakers to address their views on this new incoming administration’s approach to transgender policy.

 

If you could give some thoughts on the approach of the Biden administration, particularly your views on areas in which the Biden administration has provided a change in policy from the Trump administration, which full disclosure I served in as the head of the U.S. Department of Education’s Office for Civil Rights. Shannon, can we start with you?

 

Shannon Minter:  Yeah. We can. Hello, everyone. And, Ken, thank you so much and thanks so much to The Federalist Society for having to include me in this. I really am so happy to have a chance to talk about these issues, which I think are of great importance and certainly great visibility right now. And I’m coming at this both from a personal and a professional angle.

 

I am a transgendered person myself. I come from a very conservative family in a very conservative rural part of Texas, and perhaps probably because of that I have always really been struck by the fact that this should not be the -- supporting, accepting transgendered people should really not be a partisan issue. It shouldn’t be something that we can easily divide along progressive or conservative lines. I know I’ve found in my own life a lot of warmth and support from more conservative folks, and I think that -- and I hope if there’s one thing that I get to convince anybody of in this little time we have together is that supporting transgender people is fully consistent with a kind of conservative -- generally conservative outlook on politics and the law and society.

 

But in terms of the question that you asked about what’s going on with the Biden administration and this issue, I think it’s just critical to put this in a larger context. We’ve seen for now, gosh, going on decades now an overwhelming majority of federal courts that have heard cases involving transgender people, whether it’s employment, healthcare, prison issues, all the way back to 1994 when the first openly transgender player appeared before the U.S. Supreme Court in Brennan v. Farmer. That was Dee Farmer, and that was a landmark case that established that prisons do have a responsibility to protect transgender people from sexual violence and assault.

 

So schools, you know -- there’s a long, very weighty significant body of case law now -- federal case law, including from very conservative judges holding that sex discrimination law should protect transgendered people. So that’s kind of the big undergirding context here. And so what we saw start to happen under President Obama was a lot of federal agencies looking to that federal case law, you know, trying to implement that in various agencies, including Department of Education, Ken, where you were -- but housing, healthcare. The affordable care regulations under President Obama were very important in saying there can’t be discrimination against transgender people in healthcare.

 

So that happened under President Obama, and it was really -- at that point kind of the federal policy in the federal courts were of a piece. Then, of course, we had the decision authored by Justice Gorsuch, joined by Chief Justice Roberts in Bostock kind of confirming all that case law and agreeing that yes -- and, again, even from a very conservative textualist point of view such discrimination laws to protect transgender people. So I just think that context is really important.

 

So we’re not -- and then under President Trump there was some I would call it backsliding from that, some reversal of those supportive, inclusive policies, including in your department, Department of Education, kind of rescinded the prior Department of Ed position that Title IX does protect transgender students. And there were some other reversals of policy, but there was also important ones that did not significantly shift, like, for example, the treatment of transgender people who are incarcerated in federal prisons. There were some minor adjustments to that policy but nothing major.

 

And so now, I think what we’re seeing now under the Biden administration is most properly understood, from my point of view, not as something new and different but as kind of going back to a position of having federal agency policy sort of line up with Bostock and other federal court decisions to once again protect and include transgender people across the board. And, again, I want to acknowledge that some of the policies under President Trump continued to do that as well, but I think what we see now with this administration is probably one could fairly say a much more robust and comprehensive commitment to protecting transgender people under all aspects of federal sex discrimination law. So anyhow, that’s my initial take on it.

 

Hon. Kenneth L. Marcus:  Thank you, Shannon. Lauren, what are your thoughts?

 

Lauren Adams:  Hi and thank you for having us come as well. I appreciate the chance to come and talk about this with fellow attorneys and thanks, Shannon, for coming, too. My take on it is that President Biden’s transgender policy is actually really devastating to women and girls.

 

I agree with Shannon that protection of transgender people and transgender rights is consistent with both conservative and liberal values in terms of protection against violence and healthcare and things like that and equal treatment under the law. But I don’t agree that most of the policy proposals being put forth and being implemented by President Biden are consistent with equal treatment under the law, especially with regards to women and girls. And we see that from day one in office.

 

We have the Executive Order which addressed -- that basically said Bostock was going to apply to all of these other federal statutes. And he directed all of these agencies to apply that to these other things he mentioned, Title IX and all of that stuff. And even just looking at Bostock, I found that that was a very alarming interpretation because Justice Gorsuch did say in the opinion that it was not meant to apply to any other federal statutes and, in fact, not even meant to apply under Title VII itself to anything but hiring and firing because, in situations where sex should be irrelevant, such as in hiring and firing, then a person’s transgender status should also be irrelevant.

 

But the truth is is that sex is subject to intermediate scrutiny. There are times when it is acceptable and appropriate and necessary for the government to recognize sex. And in those cases, it’s not appropriate to allow people to self-identify into another sex under a legal category.

 

And that is something that day one there was the Executive Order, which was a misapplication of Bostock, and then during the confirmation hearing of Secretary Cardona he said that he did not intend to enforce Title IX in terms of girls’ and women’s sports. And that was alarming. And so I think all of these things are really concerning, but honestly the things that get the most attention, like sports and even bathrooms and locker rooms, are really -- they’re really the canary in the coalmine for some really deeper issues.

 

And I think that Shannon mentioned prisons, and that is a really serious issue. And we see in cases like California this past year—it just was implemented on January 1st—self-ID in prison. So what that means is that before it was a case-by-case determination based on the Prison Rape Elimination Act about safety. And this new law is all about sort of validating identity, affirmation, things like that.

 

And we have clients in California prisons, female clients, who are devastated. They are terrified. They are scared. They are being harmed by sex offenders and men who have murdered women being moved into their midst, and people don’t pay attention because they’re not out there donating money. They’re in prison. They’re incarcerated. They’re vulnerable.

 

We were able to confirm that 260 requests were made under the new policy for male inmates to be transferred to women’s prisons, and none have been denied yet. Most of them are still in the process of being processed. But it’s very concerning, and it’s specifically these laws. They don’t allow for any nuance. It’s just saying that a person gets to choose how they identify, and the law’s going to recognize that in all contexts. And that’s not consistent with safeguarding. It’s not consistent with common sense.

 

And going back to talking about prisons, we’re not talking about a population of transgender people. We’re talking about people who have committed crimes and, in many cases violent crimes, who happen to be transgender. But also these laws usually don’t do any kind of verification into anything.

 

They’ll specifically say, “You don’t have to have any -- we’ll do it regardless of anatomy. We’ll do it -- you don’t have to be taking hormones.” There are two men in the California Correctional Women Facilities who don’t even identify as women. They identify as nonbinary. They’re not on hormones. They haven’t had surgery. Why is this happening? Why are we letting this happen?

 

So we are more concerned about things like that, homeless shelters, rape crisis centers, things were women aren’t safe to speak up and can’t do it. And no one is paying attention to that. But even more fundamental than that is very deep concerns that I have about the First Amendment, about free speech and freedom of belief. We’ve got compelled speech going on. I’m very concerned about this type of capture in the legal profession that I’m seeing in state bar associations.

 

Two cases I’m involved with which are dealing with sports where sex is relevant, litigants have been barred from referring to the male athletes as males, even biological males. They’re required to refer to them as female -- as transgender female. And I think we can all appreciate what kind of impact that has on your ability to create a persuasive argument when you’re not allowed to use clear and accurate language to state your case. How can we talk about the difference between sex and how relevant that is if you’re not allowed to say what sex is and what the difference is between men and women in cases where it's important?

 

And I think we can also all agree that in most cases -- in most situations in our life sex is not relevant, but sometimes it is. And when it is, it is. And so I just really get very concerned when we’re talking about that type of stuff, and it just goes deeper into those levels. And I think that these are just really important issues the deeper you go into it. And things like sports and bathrooms are really just the tip of the iceberg. Yeah.

 

Hon. Kenneth L. Marcus:  Thank you. Lauren and Shannon, you’ve already in initial remarks, I think, gotten out on the table a large number of issues, including both legal and policy issues. Shannon, we’ll certainly want to give you an opportunity to address any of the issues that Lauren has just mentioned. I’ll say that among the legal issues one of the areas in which the two of you have, I think, expressed or at least implied divergent views would be the meaning of Bostock for other areas, including Title IX.

 

This is an area to my recollection where the Secretary of Education indicated during his confirmation hearing that he believed that the Supreme Court had answered the question of transgender rights when asked about the sports question -- about the rights of transgender athletes, vis a vis women or girl athletes, in the state of Connecticut. But the Attorney General was less willing to take a specific position on that. The Trump administration in the wake of Bostock had taken the view that Bostock did compel certain additional protections of women and girls in educational institutions where the issues were analogous to what was presented in Bostock, so basic issues of different treatment or harassment.

 

But the Trump administration declined based in part on the reasoning that Lauren mentioned -- declined to extend that generally to Title IX with respect to sports issues or intimate facilities. So in addition to the policy discriminate, we had a basic divergence of interpreting what did the Supreme Court require in Bostock, if anything, relating to schools and colleges and the hot button issues of girls’ and women’s sports and intimate facilities. So I’d be particularly interested in your views on that but also on any other aspect of what’s been raised so far.

 

Shannon Minter:  Great. Yeah. Let’s talk about Bostock. So one of the most salient features, I guess, of Justice Gorsuch’s decision in Bostock, a majority opinion, was its simplicity and its directness and clarity and lack of ambiguity. I mean, it would be hard actually, I think, to think of a more straightforward analysis than what’s set forth in that opinion that it is -- as he said it’s impossible to discriminate against someone for being transgender—since that’s the topic of the day—without taking sex into account, that being transgender is an inherently sex-based characteristic, so to discriminate against a person because they are transgender is to engage in a type of prohibited sex discriminate. That’s pretty darn straightforward.

 

And I think what we see from the President is that the Supreme Court has consistently interpreted the term “sex” across the full spectrum of federal laws that prohibit sex discrimination in different contexts consistently and also has interpreted the term consistently in the equal protection context as well. So I think y’all are going to have a pretty hard road to hoe to try to convince courts that somehow the analysis in Bostock would not equally apply to Title IX or to the Fair Housing Act, to the Affordable Care Act, or to any other federal law that prohibits discrimination because of sex. I think we’re seeing that already in federal courts and, again, across a real spectrum of courts.

 

And we had a case that was pending in the Eighth Circuit under the Fair Housing Act where in that case it was a lesbian couple who had been excluded from a retirement community because they were lesbian -- because they were a same sex couple rather than a heterosexual couple. And the federal district court—this was in Missouri—had thrown our case out before Bostock, and then the appeal was stayed pending the outcome of Bostock. And once Bostock came down the defendant’s filed something with the court immediately saying, “Look. We know we’re going to lose, so just send us back. And we’ll try to resolve this in a settlement,” which we did.

 

But I’m not aware -- I’m trying to think, but I can’t think of a single federal court—Lauren, you may know some—but that has since Bostock not held that that same text-based analysis applies to other sex discrimination laws and means that when a person encounters discrimination on account of being transgender that that is prohibited. We’ve seen cases already from the Eleventh and Fourth Circuits addressing whether it violates Title IX to exclude a transgender boy from the boys’ restroom, and both of those courts concluded that especially in light of Bostock it does violate Title IX. So yeah, I mean, I understand a lot of people were disappointed in the outcome of Bostock and the opinion, but, boy, it is very recent law and I think pretty straightforward.

 

Hon. Kenneth L. Marcus:  Lauren, I’m guessing you might have a different reading of Bostock.

 

Lauren Adams:  I do, and I pulled up a quote from it that I like. So this is from  Justice Gorsuch. This is towards the end of the opinion. He says -- so they’re trying to grapple with some of the concerns that had been raised about “What if we rule in this way today? What impact could this analysis be used for?” And they say -- he says, “The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination, and under Title VII itself they say sex segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us. We have not had the benefit of adversarial testing about the meaning of their terms, and we do not pre-judge any such question today.”

 

And they go on to say that this decision is not meant to impact those things. And I get what Shannon is saying about how -- he’s not saying that Gorsuch said this thing. He’s saying that the analysis based on existing case law about definitions of sex and it applies -- so I do get that. And he’s right that it is disappointing to see this decision applied this way.

 

But I just think that it’s really confusing to say that we’re going to say this where sex is relevant -- and I know I already said this in my opening. But I think one of the best pieces of evidence that they did not mean it to apply in cases where we would use intermediate scrutiny is the fact that they did not define “transgender” at all in the decision. They talked about transgender status. They used that phrase. I think they mentioned gender identity one time. Didn’t define that either.

 

And if you think about what that means—and people have different definitions—a lot of people think transgender means one thing, and it really might mean another. And truth be told in law this is what’s really alarming about the Biden policies in its various forms, the Executive Order, the Equality Act. It’s not defined, so it’s literally what I say about myself. So it doesn’t matter whether or not -- the sincerity of it, how you look.

 

And I hate using it in these terms because I hate saying that stereotypes are defining. But you can have someone in front of you -- and this is what we’re talking about in restrooms and in prisons where I’m a women in a vulnerable state, and I see what looks and sounds to me like a man. And I’m expected to instead really upon what he says his identity is and put my needs and my safety and my privacy on the backburner so that I don’t offend or hurt someone’s feelings essentially. So not to get too off course, but I’m saying that a lot of times people think transgender and they think someone who has undertaken some sort of transition and lives as the opposite sex or something like that.

 

And I think it used to kind of mean that, and it doesn’t anymore because that’s where you see -- again, in California in the prison there’s inmates in there who they got on hormones a couple months before they transferred. They got transferred. They’re off the hormones. And that’s all they ever did is they checked the box, and they did that. And they moved.

 

And so whenever we’ve created this situation where we’re not supposed to question people’s -- like what they say about themselves and their identities -- and it’s become this really taboo thing. And it’s this real emperor’s new clothes scenario. So going back to Bostock, I think if they truly meant that if a person says that they’re transgender then they need to be treated as the sex that they say they identify as, they would have said so. And they didn’t.

 

They didn’t say employers have to let these employees use the restroom. They specifically said this decision does not apply to restrooms and locker rooms under Title VII either, which means they did not see the analysis as completely straightforward and portable like that or else it would have been no big deal to just say, yes, it does able or to not even say it doesn’t apply. So that’s my take on it is otherwise what does it mean? Like, what’s the definition of transgender other than a person who identifies as something, and what does that mean?

 

Shannon Minter: Would it be okay to respond to that?

 

Hon. Kenneth L. Marcus:  Sure. If you care to, I would absolutely be interested to hear your thoughts.

 

Shannon Minter: I’ve heard that a lot actually. So I think it’s maybe important to talk about it. And I hear your concern about that, Lauren. But you know what this reminds me of so much -- I mean, it’s one of the hazards of getting older and having done this for three decades now. But we used to hear very similar concerns about sexual orientation. People were like, well, what does it really mean to be lesbian or gay? And how do we know that someone is lesbian or gay or bisexual?

 

This still comes up, actually, sometimes in the context of asylum where people are seeking -- lesbian, gay or bisexual people are seeking asylum when they’re persecuted in their home countries. And part of their burden is to prove their identity. But the same way that we now -- I think almost everyone now understands, and the Supreme Court did expressly address this is the Obergefell decision where they acknowledged that a person’s sexual orientation is an immutable part of their personal identity. That is also true for transgender identity.

 

It’s not any more a matter of something a person just decides or whips up or cooks up in a hot minute than a person’s sexual orientation. It’s quite real. And again, back to my point about how from a conservative point of view it would make sense to embrace transgender people, I mean, every human society that we’re aware of has included transgender people.

 

Being transgender is a part of kind of the spectrum of human identities, and it always has been. And it probably always will be. And what are we going to do with -- I mean, the reality is that there are people in our society, including myself but lots of other people, who are transgender, who were born with a gender identity -- sometimes it’s referred to as brain sex. It clearly has a biological foundation that doesn’t match the sex that they were identified at birth or body -- the rest of their anatomy. And what are we going to do about that? What do we do with that?

 

There have been attempts in the past, very serious attempts to try to deal with that reality by subjecting transgender people to, I guess, something like what we would now call conversion therapy, you know, attempts to get people to embrace their birth sex and just be like can’t you just deal with the fact that you were born with this body? And so you should just embrace being a man or woman or male or female. And it just doesn’t work.

 

It’s a hardwired disconnect between the person’s internal knowledge and sense of who they are and their body. I mean, believe me. I understand that if you’re not transgender or you haven’t spent a lot of time talking to transgender folks and (Inaudible 31:06) about it, I understand this sounds very difficult to credit. I get it. I totally -- and I’ve often wondered if I didn’t happen to be transgender myself would I be supportive and a good ally? I hope so, but I don’t know. I don’t know because I understand it’s a hard thing for people to wrap their minds around.

 

But it is real, and there’s so many more -- and the medical community now has recognized that trying to get people to change their identity just doesn’t work. In fact, it causes enormous harm. It is devastatingly harmful and that the only thing that works from a medical point of view is just allowing people to transition and just live and be who they are. I mean, that’s what we have seen happening for the past few decades, a real opening up of the opportunities for transgender people to do that and then go on to do all the things that everyone wants to do, get an education, work, have a family, contribute to society, be part of the social fabric.

 

And it’s been a wonderful thing for our country, and it’s really an essential thing for our democracy because the only alternative, which is just unthinkable, is to have just -- what are we going to do? Have a group that’s just permanently excluded and marginalized? And what are you going to do with these kids at school? What are you going to do with transgender employers on the job?

 

You either let them integrate and live according to the same -- within the same institutions and based on the same standards that apply to everyone else, or you, what, just say, “Sorry, you can be fired for being transgender”? Everyone has to use the restroom at work, so trying to say, “Oh, it’s fine to be transgender, but we’ll fire you if you have to use the appropriate restroom” -- I mean, that’s tantamount to saying you really can’t work or you really can’t go to school.

 

So I just think that for -- I mean, we’ve seen it. There’s been states now that have had antidiscrimination laws on the books for a really long time. We’ve had longstanding federal court decisions that have provided really robust protections for transgender people in a lot of contexts.

 

And the fears that people have are hypothetical. But the actual lived experience that we have on the ground is that letting transgender people be included and supported is really good for them, and that’s good for everyone else because we want people to be included, self-supporting, getting an education, contributing. And the alternative is pretty grim. So I’ll stop there.

 

Hon. Kenneth L. Marcus:  That’s good, and it may be that Lauren will want to respond to some aspect. But Shannon, I’d also like to get a little bit more into your thinking about an aspect of the application of Bostock that we haven’t heard as much from you about. You have made the case that Bostock’s reasoning is quite straightforward. And I think that from just reading the opinion itself it does appear to be both straightforward and, I would say, rather sweeping. Lauren has made the case that it may not be as straightforward as it appears based on some of the text, even with respect to Title VII issues like bathrooms in the workplace.

 

But it’s an even harder question I would argue as to whether it applies to other statutes that appear to have a different structure and function, like Title IX. In the battleground issue of women’s and girls’ sports, there is, I would say, a debate as to whether Title IX should be just differently interpreted, either because of its text or because the statute read in light of the purposes of its authors and the regulation that implements it is not just about individual different treatment in the same way as Title VII but rather that it was passed in large part to protect women’s and girls’ athletic opportunities. And an overly straightforward as it were interpretation of Bostock could threaten the very purpose for which Title IX was passed in the first place.

 

And for that reason the argument goes Bostock may not apply to Title IX or at any rate a subsequent court applying Bostock should consider the different, at a minimum, regulatory structure if not also statutory structure. And I can see it being argued either way, including I can see it being argued either way by textualists. What are your thoughts, Shannon, on that difficult question of whether Bostock really should be applied to Title IX in light of the importance of protecting women and girls’ sports?

 

Shannon Minter:  You know, we had a very helpful decision by Judge David Nye, who was appointed by President Trump. I think he’s a really well-regarded conservative judge in Idaho who’s so far the only judge in the country that’s been called on to consider the validity of a state law that banned trans girls from playing any school-based sports. And I was really impressed by his decision.

 

I mean, the clarity of his decision I thought was so helpful and illuminating. He pointed out just what you’re saying. It is true. I’ve been thinking a lot about this lately. Title IX is -- unlike our usual way of thinking about antidiscrimination law that’s very focused on the individuals, Title IX, at least as applied to sports -- of course, it has a much broader application, too -- but in the sports arena is really about ensuring that girls as a whole have equal opportunities to play athletics compared to boys as a whole. And that’s not a mode of analysis that we’re used to engaging in with most antidiscrimination statutes.

 

But as Judge Nye pointed out in his decision, he talked about a case from the Ninth Circuit where a boy had wanted to play on a girl’s volleyball team, and the court had said that it was not unlawful for the school to limit participation to the girls’ volleyball team to girls. And Judge Nye pointed out that the rationale for that decision was because, if you opened it up and said that any body that wanted to could play on the girls’ volleyball team, there’s a significant chance that a good number of girls would then be displaced and girls would then not have an equal opportunity for athletic opportunity. But as Judge Nye pointed out the risks from that for letting a transgender girl play on a girls’ team is zero.

 

I mean, we’re talking about an incredibly small group of kids, less than one percent of the population. So the kind of systemic impact that Title IX when it comes to sports is characteristically concerned with just is completely absent from this different scenario. But just as important, I think, he also pointed out that it just doesn’t make sense to use transgender status as a proxy for athletic ability.

 

Like, there are plenty of transgender girls who transition long before puberty. They have no athletic advantage. There’s plenty of transgender girls who are on hormone therapy, don’t have any advantage. These state laws that impose these categorical bans really just don’t make sense.

 

We had probably one of the most conservative judges in the whole country look at all the medical evidence, consider the legal arguments on both sides, consider the purposes of sex discrimination law when it comes to athletics, and had very little difficulty concluding that that state ban just lacked anything remotely approaching sufficient justification. So I would really encourage people to take a look at that decision. I think it’s very illuminating.

 

Hon. Kenneth L. Marcus:  Thank you, Shannon. Lauren, did you want to address that question?

 

Lauren Adams:  I think there were a couple of things that came up. And again, one of the things that Shannon had before initially been responding to was me talking about how there’s not really a definition of transgender. And I noticed he also used the word “transition,” which is also undefined when we’re talking about self-ID. What does it mean to transition when identifying as the opposite sex does not require surgery, hormones, doing anything?

 

So what does it mean to transition? And I think people usually say it’s personal. And regarding the hormones thing, I mean, there’s a document called “Schools and Transition.” And it was written in 2015 by the ACLU, HRC, NEA and the NCLR, which is Shannon’s organization. They were the lead authors on it. And it was distributed to K-12 schools, and it was meant to be a guide for schools serving transgender students. It was meant to provide some practical guidance, some legal guidance on being in line with the law.

 

And what the NCLR said about this is that “Some schools and athletic associations may require a transgender student to receive a particular type of medical treatment to participate in sports teams that align with their gender.” I presume that means hormones or something. “Pursuing medical treatment is a very personal decision that should be made between a patient and their healthcare providers without influence from the school. Thus, requiring medical treatment to participate in sports is inappropriate.”

 

So I’m wondering -- and this is not the first time I’ve seen this argument either. So there’s these moving goalposts of saying, well, you know, in the aggregate it’s not really affecting girls, which is also not true. There’s the lawsuit in Soule in Connecticut where you have these male athletes who came in without being on hormones and start just winning all these titles, and they have now set new girls’ state records. And so I just don’t know how -- we’re grappling with law and policy, right? So it’s not just these arguments about how things should be.

 

We’re talking about tangible effects. And where are the goalposts? And so I don’t know where they are. Are hormones inappropriate to require, and, if so, what’s the level? And the risk is not zero because you have girls who did not win first and second place consistently in these meets. So what about them? What about the girls who were third, fourth, fifth, sixth? They matter too, and these regulations were created for them so that they could have opportunity because that’s what it’s there for. And they deserve that, too. They deserve that.

 

Hon. Kenneth L. Marcus:  Lauren, thank you for putting those issues on the table. And I’m hoping that Shannon might address them in a moment. But there’s a lot there, and I would also say that the general issue also encompasses some of the questions that are coming up from our audience.

 

So let me say generally there seems to be a spectrum of opinion and not just two views on some of these questions. And I can say certainly from my time in government that we saw, on the one hand, there were some people and institutions who took the view that one should only be able to use the bathrooms that reflect one’s birth certificate, that there should never be a deviation. On the other extreme, there was a practice in one school that we investigated in which someone using a bathroom that appeared inconsistent with their gender presentation would be asked, “Are you going there on purpose?” And if the answer was yes, they would be allowed to use that bathroom simply because they wanted to.

 

Then, in between those two extremes, there is a wide range. So for instance, under one policy students would be able to use an intimate facility or join a team that differed from their biological sex if they had a different gender identity that they expressed in their everyday activities. Do they consistently present themselves in a different way? Then, there were other more rigorous approaches that might require hormone treatments at some level or for some period of time and then more rigorous still that required not only hormone treatment but perhaps various forms of surgery.

 

So there’s sort of a wide spectrum of both views and policies. And perhaps, Shannon, you could address the question of should there be, in your view -- your permissiveness, that one should be able to use whatever facility, whatever team one wants to? Should there be more consistency of some sort? Should hormonal treatment, surgery, or something of the sort be an element of the decision making?

 

Shannon Minter:  Sure. I think that the rule should be -- and I think it is the law in many, many states now and I think is reflected in the great bulk of, again -- sorry to come back to this -- but federal court opinions on these issues that, yeah, a transgender person should be treated the same -- transgender boys should be treated the same as other boys. Transgender girls should be treated the same as other girls.

 

And back to this, I guess, kind of definitional question of how do we know who’s transgender or not, we know what it means to be transgender, just like we know what it means for somebody to be gay or lesbian or bisexual. A transgender person is someone who has a gender identity that’s different than their sex at birth and the sex they were identified as at birth. And, of course, schools, employers, whoever of course can have reasonable policies to verify or determine that the person is really transgender and is not just somebody saying that they’re transgender for some nefarious purpose.

 

That’s no big deal. We’ve got just decades of experience on the ground with umpteen hundreds and hundreds of school districts across the country dealing with that, tens of thousands of employers dealing with that. This fear that people have -- and I understand it in the abstract, just as an abstract proposition and a hypothetical fear that a person might have that somebody would just pretend to be transgender. I can entertain that as an intellectual proposition.

 

But boy, it just is vanishingly rare, if it’s ever happened at all, and it’s not something that should be of any more concern than the fear, I guess, that somebody who’s asserting a religious belief will do so insincerely or improperly. Like, if we want to find some kind of doctrinal guidance on this, we have a whole body of case law saying that in order to get the benefit of religious accommodation or religious exemption, certain circumstances that the person does have to be sincerely asserting a sincere religious belief. It’s fine to apply a similar standard to a transgender person.

 

But look, transgender people are real. They are part of our society. And I think for people who know transgender people this becomes kind of a -- I mean, this just becomes a bit of a nonissue. Once you interact in a school environment or a workplace environment or family or community or church or synagogue or temple with transgender people, you’re like, yeah, they’re just -- you know, they’re just part of our community. And this fear that somehow by protecting transgender from discrimination you’re going to open the floodgates to people abusing that, I guess, or exploiting that in order to pretend to be transgendered to do something improper or harmful, I mean, that’s just not a very good reason to deny basic legal protections to a whole class of people when that really is just not materialized on the ground as something to worry about. And in any case, we have plenty of safeguards against that.

 

Hon. Kenneth L. Marcus:  Lauren, do you care to respond to any of that in general or in particular the sincere belief standard that Shannon argues we should import from religious accommodation cases?

 

Lauren Adams:  Yeah. And that is actually very, very relevant in the prison context because one of my clients in California who is currently having to share a cell with a male sex offender is a Muslim, and she did have to go through a verification process where they have an imam have these discussions with you. She had to get a card proving that she was because there are privileges associated with it. And so, of course, when there’s reasons to safeguard or reasons to do that kind of gatekeeping it makes sense. And they do that in the prison context.

 

And I know this is an uncomfortable sort of scenario, and I want to clarify that I’m only referring in this context to people who are criminals, not transgender people. But when we’re looking at prisons, in 2009 the California prison system reported that 20 percent of the inmates who identified themselves as transgender were sex offenders, and 50 percent had committed crimes against persons.

 

And this was before there was self-ID that they were saying this. So this was before there was any reason to lie about it. And now, there’s reason to lie. And we know from stats from PREA, the Prison Rape Elimination Act, reports we know that the biggest risk factor for sexual victimization in prisons is being a sex offender, more than anything else. 35 percent of substantiated cases last year in the federal prison system of being a victim was being convicted of a sex offender.

 

So who has the incentive to lie to transfer? It’s a reasonable thing to do. Why wouldn’t you? Why wouldn’t you lie if you’re a man in a men’s prison and you’re in danger? Why wouldn’t you lie about your identity to get out? I would if it was to save my life.

 

So that’s a problem that needs to be addressed in men’s prisons because the other thing is that transgender status is also treated as a risk factor. It’s been identified as a risk factor. And again, last year in the federal prison system out of the 12 percent of substantiated cases had a transgender victim, and 9 percent had a gay or bisexual victim. What are we doing for gay and bisexual men to protect them? Why aren’t we taking steps? They appear to be at almost or approximately the same at risk.

 

So it’s lazy policy making to say this is a vulnerable group of men and we’re going to solve it by making all women vulnerable and humiliating them by having to shower and use the toilet in front of men. These cells, they’re eight people to a cell. They all have to use the toilet in front of each other. And it’s completely inappropriate.

 

And we have cases -- our other case we just took on the ACLU is suing to suppress a freedom of information request in Washington that just looked at -- wanted to know the number of male inmates in women’s facilities because we’ve received credible reports, whistleblower reports about rape happening and sex offenders. There’s a man in those prisons, he murdered three prostitutes. 86 percent of women in prison have histories of sexual abuse. Many of them have histories of being prostituted.

 

Why are we doing this to them? Who cares if it’s sincere? It’s bad policy, and it’s bad law. I don’t think there’s any law to support saying, oh, these sex offenders because they identify as women, even if it’s sincere -- that this is the solution to do it. Sorry, I could go on about that, but I won’t. But I just think we’re really losing logic and empathy in this by saying that in order to serve the needs of one group we are going to throw this other group completely under the bus. And I object to that. So I’ll stop.

 

Hon. Kenneth L. Marcus:  Thank you, Lauren. We have about five minutes left in the hour. There’s one issue that I know is of interest to at least one member of the audience who wrote in. It relates to the First Amendment. Lauren has alluded to First Amendment free speech rights earlier in the hour.

 

Shannon, I’m certainly interested in your views on that. The questioner says the following: “There is a Sixth Circuit case regarding a professor who for religious and academic freedom reasons declined to use the proper pronoun regarding a transgendered individual. The court held that the First Amendment support the professor’s comments.” So I guess this issue is sometimes framed as a religious liberty issue, sometimes as a freedom of speech issue. Shannon, do you care to provide thoughts on that?

 

Shannon Minter:  Yeah. I will. I know we’re running out of time. I just want to say really quick there is zero evidence that transgender people and transgender women in particular pose any threat to anyone. Transgender women are one of the most victimized groups in this country and are at huge risks in prison settings. So I just wanted to say that. I think it’s important to really be careful with our generalizations there.

 

Yeah. I’m very familiar with that Sixth Circuit case. We represented the transgender student in that case who was in this professor’s class and will carry the trauma of that for the rest of her life. It was a brutal, brutal experience for her to be singled out and referred to by her professor as male.

 

She’s a transgender young woman. She’s legally changed her gender and her name. She’s trying to get her education, and it was a humiliating experience and excruciating experience for her to have to be in that class and be continually every single class singled out and humiliated and stigmatized.

 

So look, there’s a really big difference between saying that a professor or anybody in our society has of course a protected right to express any view. If you want to say that you don’t think people can really change their sex, if you want to say that you think somebody who’s a transgender man is really a woman or somebody who’s a transgender woman is really a man, have at it. I mean, seriously, that is a cherished cornerstone of our constitutional system is that type of free speech. A professor can write articles about it, can say that in class to his heart’s content.

 

But that is a really different matter than how you treat an individual student when you’re referring to them, to call on them to participate in class. And I think there’s a lot of very adamant pro-First Amendment scholars and advocates and probably plenty of people who maybe are not that crazy about transgender people either but who have been alarmed by that decision for that reason. That is a pretty out there ruling, I will say that, that a professor can -- literally for everyone else you’re referring to them the way they desire to be referred to, but somehow because you have a certain view about transgender people you can single out this one student and refer to them in a way that is objectively singling them out, treating them differently than everyone else.

 

Boy, that is pretty rough. There’s nothing in the analysis that would cabin that ruling to transgendered students. So it just is opening up a pretty concerning pandora’s box. I mean, does that mean a professor, based on the First Amendment, could refer to students from some other category in some demeaning way?

 

What if someone’s changed their name for religious reasons but the professor doesn’t approve of their religion and so refuses to use their new religious name? You could have feminist professor, I guess, who doesn’t think that women should use their husband’s last name, and you have a student who wanted to be referred to by her husband’s last name. And the teacher doesn’t have to do that. I mean, I just don’t think this is a place that we want to go as  a society, and I don’t think it’s well-supported in First Amendment case law. But it is a decision now from the Sixth Circuit.

 

Hon. Kenneth L. Marcus:  Lauren, we have less than a minute. Do you have a few seconds to say on that?

 

Lauren Adams: I just think it’s one of our most fundamental freedoms, and I actually just really encourage people to read the decision because it’s very encouraging for people who feel strongly about free speech to see such an unambiguous defense of it.

 

Hon. Kenneth L. Marcus:  Well, Shannon and Lauren, you’ve both provided very illuminating remarks today. From the Q&As it’s clear that there’s a lot more that people would have loved to hear from both of you. I’m sorry for the questioners that we weren’t able to get to all of the questions and all of the chatroom issues. But I do want to thank you for your excellent comments and discussions today. Thank you both.

 

Lauren Adams:  Thank you for having us.

 

Shannon Minter:  Thank you.

 

Nick Marr:  I’ll just offer a quick thanks at the end here. On behalf of The Federalist Society, thanks for our panelists and our moderator for tuning in today for the benefit of your valuable time an expertise in this really great robust discussion -- of course to our audience for calling in, your great questions. Sorry we didn’t get to all of them. We had a lot, and maybe we’ll have to do this again. But until the next time, be checking your emails and our website for announcements about upcoming teleforum calls and Zoom events like this one. And until that time, thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.