SCOTUS on Transgender Sports Bans

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1:14Red Lion makes it easy to feel welcomed, comfortable, and connected wherever the road takes you. Whether you're traveling for business or pleasure, you can spend less and make more of every trip. When you sign up for Sinesta Travel Pass, you'll get their best rates instantly. Go to Sinesta.com to book your stay and unlock the best rates with Sinesta Travel Pass. Here today, roam tomorrow. Join now at Sinesta.com. Terms and conditions apply. This is Bloomberg Law with June Grosso from Bloomberg Radio. The Supreme Court's conservative majority signaled it's likely to deal another blow to LGBTQ rights during oral arguments today over state laws in Idaho and West Virginia that banned transgender girls and women from competing for their schools on female athletic teams.

2:09Conservative justices like Samuel Alito and Brett Kavanaugh directed skeptical questions at the lawyers for the transgender athletes who are challenging these bans as violating the Constitution's Equal Protection Clause and Title IX, which prohibits sex discrimination in education. There are an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them. What do you say about them? Are they bigots? Are they deluded in thinking that they are subjected to unfair competition? You know, there's some states in the federal government and the NCAA and the Olympic Committee, so these are a variety of groups who study this issue, think that allowing transgender women and girls to participate will undermine or reverse that amazing success and will create unfairness.

3:18LGBTQ advocates haven't had a major Supreme Court win since 2020. When the court ruled 6-3 that the main federal job bias law known as Title 7 bars discrimination against sexual orientation and gender identity. Joining me is Suzanne Goldberg, a professor at Columbia Law School and director of the Sexuality and Gender Law Clinic. Suzanne, based on the oral arguments, did it seem like the Supreme Court is likely to uphold the state laws that ban transgender girls and women from competing on female athletic teams? I always hesitate to predict outcomes in the wake of an oral argument. I think what is fair to say and interesting about the argument is that most of the justices really appeared to be grappling with the hard questions and the implications of a ruling either way, meaning that while I think a couple of the justices on both sides, some of the justices on both sides were pretty clear about how they would come out.

4:25Several of them seem to understand that ruling strongly in one direction or another might pose great risks to constitutional law and to protections under Title IX against sex discrimination. The lawyers for both of the athletes in these cases made what I thought were quite strong arguments that there is not enough information in the record in front of the court for the court actually to decide the big questions about whether transgender athletes are sometimes or always sufficiently controlling any effects of testosterone to be able to compete on the same basis as non-transgender athletes. So I think there are a lot of fact questions in the mix.

5:12And the lawyers for both of the athletes, I think, made strong arguments that the cases should actually go back to the lower courts for full development of a record or dismissal in the case of the college student. So explain what the legal issue is. The cases are centrally about whether states can ban transgender female students, a girl in one case and a college student and a young woman in another, from participating on the girls and women's sports teams. These state laws are categorical bans, meaning it doesn't matter how much a student has mitigated the effects of testosterone or in the case of the West Virginia young student, she's not gone through male puberty.

5:59She's going through female puberty. And so the legal question in the case is, can the state impose categorical bans on every transgender girl and woman from ever participating on a girls or women's team. The legal questions come under the Equal Protection Clause of the U.S. Constitution, which guarantees equal treatment and says the government must have a good enough reason if it is going to draw lines based on sex. And there is also, in the case of the West Virginia student, a claim under Title IX, which is the federal law that prohibits sex discrimination. And that claim is that states, of course, can have separate girls and boys teams.

6:42But it is unreasonable to keep this student who is going through female puberty and never gone through male puberty off of the girls team. So there were a lot of sort of broad statements about transgender women. Samuel Alito asked, looking at the broader issue that a lot of people are interested in, there are an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them. Are they bigots? and Justice Kavanaugh said the court can't look past what he characterized as the harm that transgender inclusive sports policies impose on cisgender women and girls sports team.

7:23For the individual girl who doesn't make the team or doesn't get on the stand for the medal or doesn't make all league, there's a harm and I think we can sweep that aside. So do you think that a lot of the justices were looking at stereotypes of transgender athletes? I think the lawyers responded very clearly to the concern expressed by the justices related to some girls and women objecting to transgender girls and women on their sports teams. And what they said was, no, nobody is accusing anybody of being a bigot. And, you know, of course, competition is important. The question in these cases is whether it is reasonable or discriminatory to say every single transgender girl and woman, no matter to what extent she's mitigated the effects of testosterone or not even experienced them, that it is unreasonable to keep those students off of girls and women's teams.

8:31You know, it's tough always to not make the team or not win the competition, but that is part of sports. And part of the point the lawyers were making was even when somebody is upset about losing, it doesn't necessarily mean their loss violates the law or violates the Constitution. Always, right? One athlete wins, right? One athlete is better than another. And in these cases, the point was, it's not because this other student is transgender. And it's because the other student either has, you know, practices harder or is having a better day of competition or may have more natural ability. But none of that in these cases is keyed to a student being transgender, right?

9:18Athletes vary in many ways. And that is the point of the lawyers and the plaintiffs in these cases. Aren't these laws, though, based on a belief that transgender women or girls have a better chance at women's athletics because they're transgender? Yeah, the laws are based on a view that transgender girls and women are always and automatically going to be stronger and faster in ways that matter for athletics because they're transgender. The facts in these cases about the two athletes show that that is not always true. And the science shows that's not always true. One of the questions that came up quite a bit during the argument is, well, how much should the court get involved in the science, especially as the science is under development?

10:13the response from the athletes lawyers was the records in these cases which is what the court has to look at to examine the facts are incomplete and if anything if this if the court wants to get into the science then the cases should be sent back to the lower courts for a trial and development of a full record and the trial courts consideration of the competing experts and the experts on science for the athletes say students can mitigate their testosterone levels. And again, BPJ, the West Virginia student's case, she has never experienced male puberty, has only experienced female hormonal puberty.

10:59And so to suggest that she is somehow advantaged by male puberty is incorrect and is belied by the record. A lawyer for the college student athlete made the point that there is some scientific evidence that transgender women are at a disadvantage because they may, if they've gone through male puberty, have a larger body frame. But because they've dropped their testosterone to typical levels for women, may not have the muscle mass and the strength that is needed to propel that larger body frame. So there is some scientific evidence showing a disadvantage rather than the kind of advantage the state claims.

11:42Will you explain West Virginia was arguing that the law is about sex, not gender? You know, one of the questions in this case is, do the state laws impose discrimination based on gender identity, or do they impose discrimination based on sex? Title IX covers sex discrimination. And in constitutional law, the court has long applied heightened scrutiny to sex discrimination. So the states in these cases and the government in these cases are arguing that these laws don't actually discriminate against transgender people. They do draw lines based on biology. And that kind of line drawing is permissible.

12:28The lawyers for the athletes in these cases are arguing, yes, in general, line drawing based on biology when it comes to sports might be permissible. But categorically banning all transgender girls and women from playing girls and women's sports is not reasonable. It defies the science and most importantly, it defies the fact about the athletes in these cases. Coming up next on the Bloomberg Law Show, could a ruling favoring the bans in Idaho and West Virginia affect states that permit transgender girls and women to participate on female teams? Remember, you can always get the latest legal news by listening to our Bloomberg Law Podcast.

13:10You can find them on Apple Podcasts, Spotify, and at Bloomberg.com slash podcast slash law. I'm June Grosso, and you're listening to Bloomberg. The thing about AI for business, it may not automatically fit the way your business works. At IBM, we've seen this firsthand. But by embedding AI across HR, IT, and procurement processes, we've reduced costs by millions, slash repetitive tasks, and freed thousands of hours for strategic work. Now we're helping companies get smarter by putting AI where it actually pays off, deep in the work that moves the business. Let's create smarter business. IBM. Everyone has been there.

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15:10During three hours of oral arguments today, the Supreme Court's conservatives suggested they're likely to uphold those state bans. But Justice Brett Kavanaugh raised the question of whether a ruling favoring those state bans would affect laws in states that allow transgender girls and women to participate on female teams. And those states who do allow it, are they — is your position that they are violating the Constitution, the Equal Protection Clause rights of biological girls and women by allowing that? Or do you say that's up to each state to decide and that the Constitution gives discretion to the state whether to allow it or not to allow it?

16:00I have not yet been persuaded by a constitutional theory that would let us use the Equal Protection Clause to impose our policy on other states in this matter. I've been talking to Columbia Law School Professor Suzanne Goldberg. Suzanne, in the Bostock case, the 2020 case where the court ruled 6-3 that Title VII protects transgender workers from discrimination based on sexual orientation and gender identity. But did it appear that both the Chief Justice, who was in the majority in Bostock, and Justice Neil Gorsuch, who wrote the opinion in Bostock, were backing away from it in this case? I think it's fair to say that Justice Gorsuch and Chief Justice Roberts did not heartily endorse the application of Bostock to Title IX.

16:48At one point, Justice Gorsuch even said, I wonder how straightforward this all is. And this was after several hours of oral argument. Bostock does not have to be applied for the individual athletes to prevail in these cases. But I think it is fair to say that they don't see an easy connection or a direct connection between prohibiting sex discrimination under Title VII in employment against gay or transgender employees to carry over to Title IX, which prohibits sex discrimination in education. I mean, obviously, we'll see what they have to say in their opinions, but they did not say anything in the argument to indicate that they see an easy carryover of Bostock from one setting to the other.

17:32Were lawyers for the transgender athletes hoping that there would be a carryover from Bostock. The lawyers for the athletes made the argument that, of course, there's a connection both in terms of the specifics of the language of Title IX and Title VII. In interpreting Title IX, the Supreme Court often looks to its rulings under Title VII to keep the two statutes and their understandings of discrimination in sync. And so the normal course would be that a case like Bostock, which is an important interpretation of Title VII, would carry over to Title IX. The athletes' lawyers also make the point, which I think is very fair, that whether the decision carries over formally or not, its logic certainly should carry over, which is that when a government draws a line or when there's line drawing that says all transgender people are on one side of the line, that necessarily is a kind of sex discrimination.

18:38It says, we will treat you differently and worse because we don't conform to your expectations of what a man or woman should be. And that's exactly the kind of discrimination that Title VII is understood to prohibit. Were the three liberal justices on the same page? I would say that the three liberal justices seem troubled by the state's laws. Their questions reinforced one another. They were troubled especially by an argument made by the state and the federal government that, you know, if the group that's discriminated against is really small and the group of transgender people are really small, then the Constitution isn't so concerned about that.

19:27I think that argument is wildly incorrect and misstates the law. And it seemed that that was a key point of concern for those justices. Justice Brett Kavanaugh several times asked about the roughly two dozen states that allow transgender athletes to compete and whether they'd be forced to change course if the justices uphold state bans. So he said, are those states violating the constitutional rights of biological girls and women by allowing that? And Justice Kagan also asked that question. I think this is one important takeaway from this argument is that the government's trying to defend these laws did not argue that it would violate the rights of cisgender girls to allow transgender girls to compete against them on girls or women's teams.

20:23And so, you know, a key takeaway here is no one seemed to be embracing an argument that it would be unconstitutional for nearly half of the states in the country to allow transgender girls and women to compete on girls and women's teams. The lawyer for the United States specifically argued that they were not asking the court to address this. The United States has taken the position that it violates Title IX for states to allow transgender girls and women to participate on girls and women's teams. But the lawyer for the government in this case tried to strongly make the point that that is not what this case is about.

21:04And it would be surprising, I think, if the court were to reach that question here. So, I mean, we've talked about this before, about how there have been setbacks to transgender rights from this court, allowing Donald Trump to ban transgender people from the military, blocking transgender and non -binary people from choosing passport sex markers, as well as the ruling that upheld Tennessee's ban on gender affirming care for transgender youth. And when you listen to the oral arguments, you know, you have the three liberals, and then it seems hard for me to find two more justices who would side with the transgender athletes in these cases.

21:46And also it would just be a continuation of what the Supreme Court has been doing in recent years, which is cutting back on transgender rights. It's certainly true that in recent years, and especially this past year, the Supreme Court has cut back in profound ways on the rights of transgender people by upholding an executive order, excluding transgender people from military service on an emergency basis or allowing that order to stay in place. By allowing an order to stay in place that blocks transgender people from getting accurate gender identity documents through the passport service. by upholding a ban on access to gender-affirming health care for transgender youth.

22:34This case presents a different type of question because it squarely asks on the merits of the case, at least in this early stage, is it a violation of the rights of transgender people directly to be excluded from athletics participation, right? This is not a national security issue, like with passports or like with the military service. It's not a medical care issue that states often regulate in, like with the gender-affirming care case. So the question really is, you know, can kids and young people be kept out of part of their educational program because they're transgender? It's a different kind of case.

23:17We will see where the court comes out. I do think the lawyers for the athletes presented the facts in a way that was so clearly showing that there isn't on the facts in these cases. These two students were not at some sort of special advantage because they were transgender. And so the question is, can states override the right of these two students to participate in girls and women's teams, even when the facts show that these students are similarly situated to their female peers? There was also discussion about the small percentage of athletes made up by transgender athletes. You know, one of the interesting legal questions the court may need to address here is what happens when a small group of people challenge a law saying this law is not a reasonable fit when applied to us.

24:21And the law discriminates against us based on sex. The governments in these cases were arguing, well, you know, the law doesn't have to be a perfect fit. It just has to be reasonable. And well, you know, it's too bad if some people are left out, but the Constitution allows that. I do think that even some of the justices in the middle would be troubled to reach that kind of conclusion because it is fairly damning, I think, to suggest that the equal protection guarantee in the Constitution does not guarantee minority groups, however defined, the ability to challenge discriminatory laws as applied to those groups.

25:04That's the whole point of the Equal Protection Clause. It's to say, yes, of course, governments can engage in line drawing, but they cannot engage in line drawing that is unreasonable with respect and certainly illegitimate with respect to any group. And in these cases, as applied to students who are transgender girls and women who have mitigated the effects of testosterone and are able to compete against other girls and women, those are unreasonable rules, right? They categorically exclude those students from those teams. And I think the court will have to take that up. And some of the justices will be troubled by that.

25:44Also, I found it odd that the girl in the Idaho case wanted to drop the case, but Idaho officials, who are the defendants, don't want the case to be dropped. So the college student went back to the trial court and said, I'm not going to participate in school athletics anymore, right? I'm going to focus on finishing college, and, you know, it will be harmful to me. I've already come under a lot of scrutiny, you know, having this case decided by the Supreme Court will not be in my interest. I don't want to play anymore. And so there's a question whether the court actually can address her case or should address her case.

26:27The government tried to argue that there are other similar cases in the past when the court has gone ahead and said, yes, we're going to address your case anyway, but none of those situations really apply here. And at the end of the day, I think if the court were to go ahead and say, you know what, you were a plaintiff before, so we're making you stick on through this whole case, even though you want to drop it, that would have implications far beyond this case and would actually be quite dangerous, I think, for the court to pursue. On a separate note, another question that came up was, well, what about laws that treat boys and girls differently for other purposes, right?

27:06What about restrictions on a chess club or restrictions on participation of girls in calculus classes or other things? How far can discrimination extend? And this was connected to this question about, well, what does science show? And if science somehow showed that men or boys were sort of better at math or better at chess, would that mean that the state could then exclude girls and women. That also, the court seemed troubled by pretty much everybody. And so I suspect that whatever the justices do, at least most of them are going to want to stay away from those questions. Thanks so much, Suzanne.

27:48That's Professor Suzanne Goldberg of Columbia Law School. Coming up next, former Supreme Court advocate on trial. So there's a lot of noise about AI, but time's too tight for more promises. So let's talk about results. At IBM, we work with our employees to integrate technology right into the systems they need. Now, a global workforce of 300 ,000 can use AI to fill their HR questions, resolving 94 % of common questions. Not noise. Proof of how we can help companies get smarter by putting AI where it actually pays off. Deep in the work that moves the business. Let's create smarter business. IBM.

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29:01With Bali from iShares, you get access to both monthly income and growth potential in one simple ETF. It's the best of both worlds. Discover Bali, iShares large cap premium income active ETF. iShares, the market is yours. Visit www.iShares.com to view perspectives for investment objectives, risks, fees, expenses, and other information that you should read and consider carefully before investing. Risks include principal loss in the use of derivatives, which could increase risks and volatility. Monthly income is not guaranteed. Prepare by BlackRock Investments, LLC. This is Bloomberg. Tom Goldstein was a top Supreme Court advocate who shocked the legal community when he was charged with tax evasion and his double life was revealed.

29:41The allegations in the indictment painted a picture of a wild lifestyle that included ultra high stakes poker games, millions in gambling debts, extramarital affairs and more. Goldstein faces charges of tax evasion and making a false statement. The tax charges revolve primarily around Goldstein's alleged mischaracterization of business and personal expenses and failure to report certain income. The willful failure to pay taxes charges are based on the theory that Goldstein opted to pay off other expenses, including gambling debts, first. Joining me is former federal prosecutor Marissa Darden. She's chair of the White Collar Government Investigations and Regulatory Practice Group at Benish.

30:31Marissa, tell us a little about Tom Goldstein. I think everybody revered him as, you know, one of the scions of the Supreme Court. He has argued some of the most important cases of our time. He has had some really successful wins for Google and for other huge companies in, you know, sort of bet the stakes, you know, sort of antitrust and other sort of complicated, really sophisticated First Amendment issues trying to persuade the court in his favor, which he's done really well. I think, you know, I remember learning more about him in the Bush v. Gore era because I think he was part of that original team with David Boyce.