The Week in Law: Transgender Athletes, Big Oil & ICE Officer Immunity

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2:13The Supreme Court's conservative majority signaled it's likely to deal another blow to LGBTQ rights by upholding state laws barring transgender girls and women from playing on female school athletic teams. Conservative justices like Samuel Alito and Brett Kavanaugh directed skeptical questions at the lawyers for the transgender athletes who are challenging laws in Idaho and West Virginia as violating the Constitution and Title IX. 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?

3:03Are they deluded in thinking that they are subjected to unfair competition? I mean, I hate that a kid who wants to play sports might not be able to play sports. I hate that.

3:19But it's kind of a zero-sum game for a lot of teams.

3:26And someone who tries out and makes it, who is a transgender girl, will bump from the starting lineup, from playing time, from the team, from the all-league. And those things matter to people big time. will bump someone else. The court has repeatedly ruled against transgender rights in recent years, upholding a state's ban on gender-affirming care for transgender youth and allowing President Trump to kick transgender people out of the military and to block passport sex markers that align with gender identity. In light of what seems like an inevitable decision, Several justices, including Kavanaugh, repeatedly asked whether a decision in favor of the state bans on transgender athletes would have any effect on challenges to state laws that permit transgender athletes to participate on female teams.

4:26And 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? My guest is David Cole, a professor at Georgetown Law and the former National Legal Director of the ACLU. David, let's start with the big question. After listening to these oral arguments, does it seem like the justices are going to uphold these state laws that ban transgender athletes?

5:13Well, I think the pretty broad consensus of those who listen to the arguments is that they will uphold these laws. I think going in, that was also the broad consensus. And I don't think the arguments really changed that assessment. I think they showed the justices, you know, dealing seriously with the implications of how they rule. But I would be surprised if they don't uphold the laws. What legal question do you think the decision will turn on? I mean, there were all kinds of questions about the difference between boys and girls on the basis of sex and where the science is. I mean, what do you think it will turn on?

5:53Well, that's the rub. There are many different ways that the court could resolve these cases, including by declaring that actually because there's a lot of uncertainty and a lot of competing scientific evidence that the states have sought to sort of insert into the record after the district court proceedings were over through amicus briefs and by citing to, you know, public reports and the like, those have not been tested. And so to the extent that the resolution of the case requires a decision about the factual question of to what extent do transgender athletes who have taken puberty blockers or hormone therapy still have some sort of sex-based advantage over cisgender women, that's really something that ought to be sent back to the lower courts, not something that this court should be deciding because most of the evidence that the states are relying on post-dates the trial and the hearings that were involved in these cases.

6:54There was a lot of discussion about athletics being different and about the Javits Amendment. Tell us about the questions that were raised. So there are two legal questions in the cases. One is whether excluding a transgender woman from the women's team violates Title IX of the Civil Rights Act, which requires institutions that receive federal funding not to discriminate on the basis of sex. But the Javits Amendment recognized that sports are different in general and that therefore there can be men's and women's teams. You can have, you know, certain sports have only a men's team like football.

7:40Often other sports can have only a woman's team. Sometimes schools have only a women's volleyball team or only a women's cross country team or what have you. as long as the overall opportunities are equally available to all, that Congress said was permissible. So under Title IX, Congress sort of blessed sex segregation of sports as not constituting sex discrimination in general, as long as equal opportunities are provided to all. But what this case presents is what happens when you've got a situation where a trans woman is denied the ability to participate in women's sports because she was identified male at birth and can't participate on the men's team either without denying who she is.

8:29That's a serious harm and that might well constitute discrimination under Title IX. That's the argument. And then there's a separate legal question in the cases, which is whether under the Equal Protection Clause as a constitutional matter, is it constitutional to divide up teams by sex and then to exclude trans women from the women's team? And on that issue, again, sports might be different in the sense that the court might say, well, there are real differences between men and women that justify having separate women's and men's teams in general. And indeed, the challengers don't dispute that yes, of course you can have men's and women's teams, but as applied to transgender women who have eliminated any sex-based advantage that they might have by virtue of being biologically male, by taking puberty blockers, by taking hormone therapy, by reducing their testosterone levels to the average level that women have.

9:35At that point, it's not clear that the state's interest in having a separate women's team justifies keeping that person off of the women's team because she has eliminated any sex-based advantage that she would have. And it's only that category that the plaintiffs are arguing have a constitutional right to participate. Not all transgender women, but only those who can demonstrate that they actually don't have any sex-based advantage, that they are similarly situated to the other women on the women's team. It seemed to me like the intent of the three liberal justices, mindful of the trend of rulings against transgender rights, that their intent was to try to marshal support for a very narrow decision.

10:22Well, I think there certainly is concern that this decision not preclude or pre-termitt challenges to other kinds of laws that treat trans people differently. I think you've got some of that concern, not just from the liberal justices, but from some of the conservative justices as well. Justice Kavanaugh expressed concern, what about the blue states? About half the states permit trans women to participate in women's sports. And some have argued that that's unconstitutional, that that violates Title IX, that you can only do it one way. And he seemed to be concerned about the implications of this case for that kind of policy, seemed to want to leave it to the legislatures of the states.

11:08And if they want to allow trans women, fine. If they don't, that would be fine too. Whereas the Trump administration is taking the position trans women should basically not exist, but they certainly should not be participating in women's sports. And it is illegal for a state to even permit trans women to participate, even where those women have no sex-based advantage because they've eliminated those advantages. So I think they're thinking about those consequences. So the Bostock case was the last time that transgender advocates won at the Supreme Court, but the chief justice was quick to say this isn't that case.

11:49He said the question here is whether or not a sex-based classification is necessarily a transgender classification. How far is the justices stepping back from the Bostock case? They haven't stepped back from the Bostock case yet. I mean, what the Bostock case said was that when in the employment context, when an employer fires someone because they are transgender, that is sex discrimination. That treating someone differently because of their sex assigned at birth and their gender presentation is a form of sex discrimination. I think in this case, they're not going to have to address Bostock because the state argues we're not actually targeting trans people in any formal way.

12:36We're not saying, as the employer did in the Bostock case, I won't hire any trans person. What we are saying is that we are dividing up the teams by birth sex. So those people who were designated male at birth are on the men's team. Those people who are designated female at birth are on the women's team. And we exclude from the women's team anyone who was designated male at birth, whether today they present as a man and are what we call a cisgender man, or whether today they present as a woman and are what we call a transgender woman. And so the state's argument is that they're not actually discriminating on the basis of trans status itself.

13:20Now, we all know, of course, this was driven by trans women athletes in particular, and by a whole set of assumptions about trans women athletes that are not true as to many trans women athletes, that they have this extraordinary advantage over other women. Some do. But the case was brought by those who, through medical intervention, have ensured that they do not have any sex-based advantage. And as to them, the question is, if the state's justification for denying you participation on the team because of your sex assigned at birth, is that permissible when their interests are not furthered by excluding you?

14:06Their interests are in making sure that the women's team does not get overrun by people who have a sex-based advantage. But those transgender women who have eliminated their sex-based advantage through the medical intervention and the like, they don't pose that threat. They don't undermine the fairness or the safety of women's sports. In more than three hours of oral arguments, it seemed like there were a lot of balls in the air. Do you have any idea what they might focus on in the decision? You know, if I had to guess, I would say they know the destination, but they're not sure on the route. And if they are going to rule against the transgender women here, I think it's important that they do so in ways that leave open for future litigation a whole host of other kinds of questions that don't involve sports, don't involve this one area where you do actually have a long history of separation based on generalizable physical differences.

15:08The same kinds of arguments about fairness and the like don't apply to bathrooms and don't apply to excluding trans people from all kinds of activities in life. And so, you know, I think it's important that the court not decide too much, because I think in the long run, we're going to recognize trans people are people. They deserve equal dignity. We should not be treating them as categorically, as somehow an illegitimate class. And we need judicial protection to ensure that they have equal protection under the law, precisely because they are a small minority, one that has faced a lot of discrimination over history.

15:54And the court should not write itself out of that task. You know, it's an ongoing task, I think, but it's part of the court's responsibility is to protect those who can't protect themselves from the majority. And boy, trans folks are, you know, squarely in the middle of that category. It'll be interesting to see what direction they take in their opinion. Thanks for joining me again, David. That's Professor David Cole of Georgetown Law. Coming up next on the Bloomberg Law Show, Louisiana faces off against big oil at the Supreme Court with billions on the line. I'm June Grosso, and you're listening to Bloomberg.

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20:07Benjamin Aguanaga arguing at the Supreme Court in a case where repair of his state's wetlands, which have been called one of the most critically threatened environments in the United States, is at stake and potentially billions of dollars. Back in 2013, six Louisiana parishes filed 42 nearly identical lawsuits against Chevron, Exxon, and other oil and gas companies, accusing them of violating a state law and demanding that they repair severe damage to the state's coastline from decades of oil and gas production. And last April, in the only case to go to trial so far, a jury in state court ordered Chevron to pay $745 million toward restoring the coastal region.

20:56Now, Chevron and the other companies are asking the Supreme Court to move the cases from state court to federal court, which is often seen as a venue friendlier to corporate interests. Chief Justice John Roberts and Justice Neil Gorsuch expressed concerns about the ripple effects of allowing such a move. Well, you're right, obviously, that relating to is very broad, but it's hard to see where you stop. I mean, is it a butterfly effect? You know, the butterfly flaps its wings and it has the end result halfway around the world. The Big Bang is related to you being here today, counsel, right? The ultra-conservative Fifth Circuit had ruled that the cases belong in state court.

21:41Joining me is an expert in environmental law, Pat Parenteau, a professor at the Vermont Law and Graduate School. Pat, give us the background on these lawsuits. So this has to do with Louisiana's continuing loss of coastal wetlands. You know, it's the largest loss of wetlands in the nation, and it's causing all kinds of horrific problems for the communities on the coast of Louisiana. The floods, the storms, the loss of fisheries, much of it relates to the oil and gas activities in extracting oil and gas from the Gulf of Mexico. And, you know, I've been down there. I've seen the damage that's being done from the oil and gas activities, it's complicated.

22:26But one of the major reasons for the loss of wetlands is the discharge of really toxic polluted water, processed water from the oil and gas extraction activities, both on land and offshore, by the way, and also building these canals to move these great big rigs in and out of the Gulf. And all of this erodes the wetlands. It contaminates them. It causes the vegetation to die. And when the vegetation dies, the wetlands die. All of this has been going on for decades. All of this has been well understood and researched for that period of time. The oil companies, they've been told that they're causing this damage by the state of Louisiana in violation of the state of Louisiana's permit programs for oil and gas activities, in violation of the state's laws requiring restoration of wetlands that have been damaged, causing billions of dollars worth of damage.

23:20And so finally, the parishes of Louisiana, which are counties everywhere else in the country, have had enough. I mean, you know, they've had this uneasy relationship with oil and gas activity, which creates jobs, brings money into the communities, but it's destroying their way of life. So they go to court in Louisiana, and they finally got a major jury verdict, over$700 million. That's the backstory of this case. The only question before the Supreme Court is, should these cases be heard in federal as opposed to state court? So a purely procedural issue, right, but one with enormous consequences.

23:58The six Louisiana parishes sued in 2013, but yet only one case has gone to trial in all that time? That's right. And, you know, that is right out of the oil company's playbook. We've seen it in the climate cases as well, which is delay, delay, delay. Throw up roadblocks, argue every kind of procedural motion you can to keep the case first from going to trial, getting to a jury. And then now, after all these years and after all the time and effort spent to win a jury verdict, now the oil companies go to the U.S. Supreme Court saying, save our butts because we've lost big time. We fought, you know, in the state court.

24:43We lost. And now we want to set aside that that loss and start all over again. And if the Supreme Court rules in favor of the oil companies, that seven hundred forty five million dollar verdict delivered after a three week trial could be thrown out. But the merits of the cases are not before the court. You know, that question doesn't even get raised. Are they responsible? That's the fiendishly complicated aspect of a case like this, right? The merits don't count. It's all about which court to hear the merits. After there have been years of litigation in state court, a jury verdict against them, now they want to start the clock all over again.

25:25It's outrageous, but it is the law. I mean, you know, the law of removal of cases from state court to federal Court. That's well-established law. This is a real extension of that law. And the key issue before the Supreme Court is an amendment to the federal officer removal statute, a law that gives federal courts jurisdiction over civil cases that concern the actions of federal officials or those acting under the orders of a federal official. That was the focus of the oral argument. And in that statute, in Congress's inimitable fashion, they dropped this phrase relating to. So that's the focus of the case.

26:06Was the activity of producing oil and gas in the coastal zone of Louisiana related to the federal contracts that these companies and their predecessors had during World War II? This goes all the way back to the 40s. So the question is, the government contracted with these companies to refine fuel for the war effort. And what the companies are now arguing is, well, in order to refine the fuel, we have to produce the fuel. So the oil and gas production activities that are destroying Louisiana's wetlands are related to our contract to produce fuel for the war effort. That is the key fact in this case.

26:50Is that enough to prove that refining oil is related to producing oil? That may be a bit of an oversimplification, but that's the essence of it. And how does the state of Louisiana interpret those words relating to? The state says the two activities are separate. And if you think about this, what was the reason that Congress had for requiring removal of cases from state court to federal court? And the logic of it is if a company, lease oil companies, have become an agent of the federal government doing the government's bidding, then they should be insulated to some extent from being subject to liability in state court.

27:40That's the kind of issue that should be litigated in federal court because the companies are acting as agents of the federal government. I mean, isn't this also about what they're doing now? So how can this depend on something that happened in World War II? That's true. And that is one of the arguments Louisiana is making, of course, that this has been going on for decades and continues today. So it has nothing to do with World War II. But if there's logic in this, it's that once an agent, always an agent. I don't buy that. I'm just saying their argument to the court is, you know, everything that we have been doing relates to, in the broadest possible sense, relates to these original contracts which carry forward to today.

28:24I don't think the court is going to buy this, but we always have to say, but they might. It sounded to me like at the oral argument, questions coming from Thomas Gorsuch, the chief justice, questions that were harder to read from Kavanaugh, Barrett, even Justice Jackson was saying at one point to the oil companies, your argument has some weight. That surprised me. So these procedural questions could go either way. But it looks to me and sounds to me like the court is going to deny the company's argument that these cases should have been brought in federal court and have to be relitigated in federal court.