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Alison, Liz, and Rebecca welcome another guest to the pod—Sasha Buchert, senior attorney and director of the Non-Binary and Transgender Rights Project for Lambda Legal.
Sasha guides us through a discussion of the history of transgender rights in the courts, the current legislative attacks on trans people we are seeing across the country, and the litigation to overturn anti-trans laws.
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Rebecca Markert:
Welcome back to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts, and our work to keep Religion and government separate. My name's Rebecca Markert, and I'm the legal director at the Freedom From Religion Foundation.
Liz Cavell:
And I'm Liz Cavell, associate counsel at FFRF.
Alison Gill:
I'm Alison Gill, vice President for Legal and Policy with American Atheists.
Rebecca Markert:
So if you enjoy our show, we hope you are following us on our socials, Facebook and Twitter. You can also find us online we-dissent.org.
Alison Gill:
And in this episode, we're excited to welcome our special guest, Sasha Buchert, to help us talk about today's topic, the legislative attacks on trans people we're seeing across the country, and also litigation to overturn these harmful laws. And so Sasha is a senior attorney with Lambda Legal and the director of the organization's non-binary and Transgender Rights Project. During her time with Lambda Legal Sasha has been involved with extensive federal and state legislative and policy efforts on a wide range of issues, including judicial nominations, criminal justice reform, and healthcare initiatives.
She's also litigated a number of cases, expanding and solidifying federal rights, civil rights issues, protections for LGBTQ people. I've known Sasha, I think for about 10 years since we met Sasha working for Transgender Law Center. And your work has always been exemplary in these issues. So I'm really excited to have you here today.
Sasha Buchert:
Oh, thanks so much all. I really appreciate you having me on the program. Thanks so much.
Alison Gill:
Fantastic. Well, I thought we would start today off by, before we dive into litigation by talking about all the really terrible legislative attacks we're seeing all across the country on trans people and issues and communities in different states. So we've seen bills, especially targeting trans young people for more than a decade. I remember when I first started at Glisten in 2010, when the first bills I saw coming out of, there were two of them in Arizona and Tennessee were Bills targeting trans youth when they went into bathrooms. So this is nothing new, right? It's been going on for quite a while.
The scope of it has changed drastically, but it's certainly been around for quite a while. These bills have expanded exponentially over the last year and even more so in this year. And there's a few really big buckets I just wanna lay out of these bills and, you know, feel free to jump in if you have anything to add on these, but I'll just start off by saying a lot of the bills we're seeing ban or restrict trans healthcare, these are mostly focused on youth, but some states are even reaching out to affect adults, sometimes 21, sometimes even 26. They just seem to be making up different ages to restrict healthcare.
And they impact not just by restrictions, but by driving healthcare providers out of state by changing liability restrictions. So basically it makes it impossible to offer health trans healthcare by limiting payments from Medicaid and other types of avenues and insurance make it more difficult to offer. So in those ways, it's not just about trans youth, it's about all trans healthcare. And some states are making trans healthcare, providing it to a child, child abuse, from their parents or even doctors or in some states I saw a bill that's aiding and abetting the same sort of language you saw on these bounty bills around abortion issues. So it's pretty egregious.
And some innovative ones are also trying to go after professional licenses of doctors having absolutely ridiculous liability components. I saw one that if a employer offers trans healthcare and someone years later has an issue, they have liability for, I think 40 years after they offered the healthcare, which is not how insurance or employment works. So it's really fascinating there. And other bills, you know, who run around trans healthcare. So I'll stop there and see if almost anything.
Rebecca Markert:
And when you're talking about these bills, you're talking about bills that have been introduced in the last year or so or are you talking about a longer timeframe?
Alison Gill:
So the most of the ones I've been talking about in the last two years. However, there's been a huge growth these over the last two years, but several of these have now passed into law. And I think that started with, for example, Alabama passed a law last year, and I know we're gonna talk about some of the litigation around this. So I'm excited to do that passed the law that would make it a felony child abuse to provide gender affirming healthcare to trans youth. So that's a good example of what we're seeing in addition to other types of restrictions that I mentioned.
Liz Cavell:
So in, in the absence of all of these anti-trans healthcare laws, you know, bans on types of care and that sort of thing. 10 years ago, Alison you said you, you were seeing some types of legislation in this vein being proposed in different pockets of the us but now we're seeing it as just this, you know, flagrant culture war issue everywhere. Hmm. Is there anywhere where these laws already existed on the books? Like is there some state that's like the hellscape poster child for anti-trans healthcare laws on the books? Or are we on the frontier of all of these bills becoming laws?
Alison Gill:
Yeah, it's the latter. It's the latter. These are all sort of new. We started to see this happening I think in Alabama last year and also in Texas and Florida with some of their restrictions. And those were not legislative, they were by the governor, so that was administrative. So we are sort of on, unfortunately, the cutting edge of this culture war issue and we're seeing it affect more and more states, but actually made me think of a good point, which is around healthcare. What is trans healthcare? Because I think there's a lot of lack of understanding sometimes when we talk about trans healthcare.
So just briefly, especially when we're talking about trans youth healthcare, we're talking about a variety of, of different types of healthcare, most of which are non-medical intervention based. We're talking about social transition, people getting counseling, people maybe possibly changing a young person's name or haircuts, you know, gender presentation issues. It's only when young people start to enter puberty or older that there might be more medical interventions. Sasha, do you often talk about that as something you wanna add to that conversation?
Sasha Buchert:
I totally agree with you Alison. I remember these bills as when we started doing this work together back 10 years ago. You know, we saw a few different attacks from different places, but it's really ramped up in the last I would say the last three to four years. You know, each year it seems like there's just a hundred more bills. We're over 200, you know, that have been introduced, specifically targeting trans folks across the country. And usually from year to year. The issue changes a little bit.
Last year it was sports bans and this year it certainly is gravitated towards, towards healthcare bans. And they're just so dangerous, you know, for so many reasons. Even when they don't pass, it sends this message that is heard loud and clear by trans youth in these states that sends a dangerous messages as a state is seeking to step into the shoes of parents for all the lip service that we hear about parental rights that suddenly goes completely out the window when we're talking about healthcare bans for trans kids.
You know, so much, so much harm in being introduced by folks with very little, often without any medical background whatsoever, as opposed to the science. The science is, you know, very clear after decades of research and studies that have been done on tens of thousands of trans folks shows that the care is clinically effective that we're talking about here. And I think it's important to note with regard to the care that we're talking about, often called gender affirming care, that this isn't new or unique care that is provided just for non-binary trans kids that isn't provided to other folks.
For example, puberty blockers are regularly provided to treat precocious puberty. But you don't see the folks that are seeking to undermine the clinical effectiveness of puberty blockers arguing that that care shouldn't be provided for those conditions. In fact, they go out of their way in these healthcare ban bills to clarify that other conditions would be protected under these discriminatory bills.
So I think one, one thing that gets kinda lost in the discussion here though is, is that's really important to underscore is that we call it gender affirming care, but I think sometimes it's important to remember that this care is essential to treat a serious medical condition, which is gender dysphoria. And without that care, you know, it can lead to serious consequences. And that includes debilitating depression, sometimes even suicide, suicidal ideation. And you know, that's not Sasha Buchert, the attorney speaking, that's the American Medical Association that is relying on best practice medicine for that conclusion. So just a couple of points I wanted to tack on.
Rebecca Markert:
I think that's a really good point too, because I feel like we always hear how they're trying to protect children and there's just this fear mongering out there that you are changing genitals on children. And that's not the case. I just feel like when want to truly protect children, why wouldn't you be protecting the mental health and trying to work to lower suicide rates among our kids who are in a mental health crisis situation?
Sasha Buchert:
And one of the other things I wanted to flag was the point about this being unique legislation. It certainly is, there's no country in Europe, you know, a lot of these folks that sponsor these bills to point to Europe, but there's no country in Europe that categorically bans care for trans people like these bills seek to do. That doesn't happen anywhere else in the world except for the United States of America.
And I think we'll get into the law, but it's one thing to make ungrounded assertions about, you know, what care should be provided and what care shouldn't be as a state legislature with zero medical experience in a legislative courtroom in Arkansas. And it's a completely different thing to do that under the white hot spotlight of judicial scrutiny. And thankfully the courts have not gone for the junk science that's being propped up to support these kind of moves.
Alison Gill:
Yeah, I think you're right also to point out the harm this does to trans young people and their families. There's just been many places, almost like refugees, these families are driven to leave these states because of potential prosecution. And it's just outrageous how these families are being treated and the young people just complete lack of respect for them and their rights. And it's amazing that we're seeing refugees in America. I mean, we just aren't even talking about it.
Sasha Buchert:
And it's just like abortion care in the sense that, you know, the burden is outrage–
Alison Gill:
They can't go back even, you know what I mean? At least abortion care. You could go get an abortion and potentially go back, but here your child is still with you.
Sasha Buchert:
Yeah, no, I was saying that the impact is gonna be on the most vulnerable. The folks that can't, don't have the resources to send their youth to another state to get care.
Alison Gill:
Yeah, absolutely.
Rebecca Markert:
And the consequences of not getting that care are very dire.
Alison Gill:
Yeah. Well, let's talk about a few of the other types of bills we're seeing besides the healthcare ones. There's ones that restrict trans students and these vary from parental rights bills, which includes some of them forced outing provisions or the don't say gay or trans type provisions, basically saying you can't talk about sexual orientation or gender of identity in school classrooms. I'm sort of paraphrasing briefly here.
Those do vary by state and they're a little bit different. And there's also bills that sometimes limit bathroom and locker room access for students bills that prevent trans students from engaging in athletics with their peers and some bills that even allow misgendering or requiring or using incorrect pronouns to either allow or mandate that teachers use incorrect names or pronouns. Just outrageous.
I find it really interesting. There's some that say if the teacher has a religious objection to using a person's correct name or pronoun, they don't have to. However, no, it doesn't go the other way. If a person does have religious objection to, for example, using an incorrect name or pronoun, then they're as out of luck. So it's interesting how this is just one-sided. We're also seeing a huge rise this year and I think it's very unique this year of obscenity bans and drag bans.
So these are changing the definitions under obscenity laws, which are long standing laws, but making them much broader in defiance of Supreme Court case law that basically sets out what the limits on obscenity can be under the First Amendment. And these are really trying to push the borders on that. And the drag drag bans try to ban, I don't know this idea that a lot of conservatives have about what happens at drag queen story hour, which is of course just a person in makeup reading a book, but for some reason it's like a horrible thing that people are scaremongering about.
Some of these bills are even so broad that they could potentially be used to target trans people engaging in daily life or on stage. I mean, there was one that may be cautious about having our convention in that state because if I were to go on stage and speak, I'd be potentially performing in under the Bill's definition. So it's pretty crazy how they're trying to sort of banish trans people from the public discourse.
Rebecca Markert:
I have two things that I wanna bring up. First is just an anecdote, when you're talking about this increase in drag bans, I was just telling Liz as we were preparing for the show. This morning in my email, I got an email from Tony Perkins from the Family Research Council. I'm on his email list just to see what they're doing. But it just so happened that this morning the email was about the fact that last July at Langley in Virginia, the military hosted their first ever diversity, equity and inclusion festival on base and they had things for children.
And he writes here, it was advertised as including things like bouncy houses and face painting for children. And then this is the next paragraph, what was less advertised with no official photos released post event was that a, and then a big bold text, a drag performer appeared for what one airman described as a hypersexualized stage event. It was not something appropriate for children. And then he goes on to say that there's all these other things happening like service branches, painting helmets with rainbows and a Marine Corps combat helmet had rainbow painted bullets.
Alison Gill:
Shameful,
Rebecca Markert:
Reporting that instructors at the Air Force Academy are told not to use gendered terms like mom and dad in training. And as I'm reading through this, I'm trying to figure out what is the point to this because all of this stuff happened months ago last year. And the only thing that we get to at the end of this email is that they would like you to donate to the Family Research Council because these are attacks on our freedoms and family research council's gonna do something about it. So donate here.
But I just thought it was really interesting that you mentioned the uptick in this and I got this email right away this morning. But the other question that I wanted to pose here for you is why are we seeing this uptick? Like why now? What do you think is driving this?
Sasha Buchert:
I mean this is just Sasha complete wild speculation. So, you know, it's really hard to say. I think it's partly the growing division in the country, in my opinion. And it's insecurity over, you know, what the far right views as proper gender stereotyping that they would love to enforce on the world and their discomfort with actual freedom. You know, the freedom to express yourself consistent with who you are. So I think that that's part of it.
I think it's also being ginned up and manufactured by polling that's been done. We know that's the case with the sports issue. You know, that leading up to the 2020 election there was a lot of pressure on different campaigns to embrace the sports issue in particular because of how poorly it pulled. So I think that the drag queen might be another issue that they've pulled and feel that they can really push their far right to coalesce around.
And so I think that that's probably what's driving it as well as a lot of these far right organizations just have these shops where they just churn out model legislation for these folks across the country. ADF and other folks that freely admit that that's what they do. So legislators are seizing upon it. And I think that the, of all the, you know, all of the legislations, you know, in my view extremely constitutionally suspect, but this is the most obvious, this is one of the most obvious ones.
You know, it's, you know, it's it's first Amendment speech to express yourself in the way that drag queens do. And it sends, it surely sends a message to kids that, that they're not alone, that there's hope. And so I feel like that's the danger for all of the discussion and all of the accusations of sexualization. The fact that they would seek to sexualize drag queens in the way that they try to do in this legislation. It clearly shows that it's not us that has sex on the brain it's the folks that are introducing this kind of legislation.
Alison Gill:
Yeah, really. I think that's a really great explanation. Sasha. I would also add that there's a lot of money on the other side around making trans people the scapegoats. You know, what we're seeing is rising fascism and it always needs a target, it always needs outsiders to focus on. And they've made a political bet, the Republican party, the conservatives, that this is their issue to focus on. And you know, that's what the last selection was focused on, even though it was losing, it's just gonna be the focus cuz they think it's going to be a winning issue for them. So we're just seeing a lot of money focused on it.
Sasha Buchert:
Well, and the other point is that I feel like the far right has invested millions and millions of dollars in capturing the courts.
Alison Gill:
That's true.
Sasha Buchert:
I feel like they're in this moment where they feel like they really need to seize this moment and push up this really whackadoodle legislation that, that will test the boundaries of, of protections for LGBTQ people for decades. Yeah. You know, maybe longer by getting adverse rulings at the Supreme Court. I was on a call with somebody the other day and they were like, look, it's a lot of doom and gloom and it's a really difficult moment for, for non-binary trans folks and, and LGBTQ people and women and vulnerable populations across the board.
But I think it's really important to embrace hope too. And one thing I always want to underscore is the importance of courts. Yes, they have done a lot of damage and harm to the judiciary, but the Biden administration is really turning that around at a significant clip. As of today, there are 76 confirmed district court judges that have been appointed by the Biden administration and 30 circuit court nominees that have been confirmed. So the courts are being repaired.
Alison Gill:
That's fantastic. Thanks for, you know, I think that's really great to highlight cause we talk about the courts all the time on this podcast.
Rebecca Markert:
We joke that our podcast is sponsored by court reform.
Alison Gill:
I also think you're right about the adverse rulings because when it comes to LGBTQ issues, cause if they can sort of tip the balance in some of these things, and we're gonna talk about some of these with regard to like healthcare focus on trans people. Those are great wedges that can undermine more of the law.
Well I think we talked enough about state bills. Oh actually there's a couple crazy outliers I wanted to point out. Like one we saw this year already was a Florida bill that makes it per se, defamation to accuse someone of discrimination. So that's–
Liz Cavell:
I'm sorry
Sasha Buchert:
What's that mean?
Alison Gill:
So there you go. They have not discrimination laws in Florida, but if you were to bring a claim. Uh oh, they could sue you back for defamation. I guess
Liz Cavell:
That's a bill that has been proposed.
Alison Gill:
It is a bill that has been proposed. It has not yet moved forward to be fair. Someone thought it was a good idea.
Liz Cavell:
To be fair? That is very overly fair. I would say.
Alison Gill:
Someone thought it was a good idea.
Liz Cavell:
Good times in Florida.
Alison Gill:
There's also an Arkansas bill that would make it a crime for any trans person. Use a bathroom where there are minors, a misdemeanor to use a bathroom if there are minors present. And so how do you know if there are minors present before you go in? I have no idea. Did you know trans people have x-ray vision?
Liz Cavell:
You could just, you know, shout out cuz that's–
Sasha Buchert:
That's what every trans person loves to do in the bathroom.
Liz Cavell:
Hey kids, you in there?
Rebecca Markert:
That's not scary at all.
Liz Cavell:
No. Let's take a totally neutral situation where everyone's just trying to relieve themselves and make it super creepy.
Alison Gill:
I always think about these dolls too. Like they don't think how they're gonna actually play out when you have a bunch of trans men, for example, using women's restrooms and trans women using men's. I mean really, how does that actually play out? Anyway, the goal was not to make it fair or to protect anybody. The goal is to drive trans people out of public square.
Like I mentioned before. Let's turn to litigating against anti-trans bills and Sasha, it'd be really great if we could start by talking about some of the theories or laws that are often used to oppose anti-trans bills. And so maybe you could discuss some of the approaches that different groups have taken.
Sasha Buchert:
Yeah, happy to. There's been litigation addressing discrimination against trans folks for many, many years. You know, going back I think 30 years at this point. It's impossible to talk about this actually. And I know hopefully I've not skipping ahead here, but it's impossible to talk about the challenges and the theories without talking about the Supreme Court case law precedent that a lot of it's grounded under, which is the Price Waterhouse decision.
There was a woman who was up for a promotion at Price Waterhouse and was told that she needed to fem it up and that they wanted her to be more stereotypically feminine. The defendants in the case made the argument that they have made in almost all the trans cases that, well, you know, that's not what the Title VII legislative history protects. That's just sex discrimination per se. It's just, they discriminate.
It's not sex stereotyping. It's not the way you dress, act, or behave. It's just discrimination against you because you're a man or a woman. And the court, the Supreme Court said, no, no, no, that's not gonna fly here. That form of discrimination is expecting someone to behave or dress in a way that's stereotypically male or female. And of course that opened the door to theories challenging employment decisions where trans folks are fired because they're not acting what consistent with what the employer feels they should be doing behaving in the workplace.
And we've also seen really positive decisions, for example, with regard to banking. There was a case under the Equal Credit Opportunity Act going back to the nineties where the court said that this is again, a form of, of sex stereotyping to deny someone opportunity for credit because the banker didn't feel like they were presenting themselves stereotypically enough.
There's been a metric ton of case law that was built upon that theory. And, and then it started to expand also to Title IX protections, which is the, if folks probably know this is the civil rights statute that prohibits discrimination on the basis of, of sex in, in education federally funded education.
And again, the same arguments were being made even fairly recently in a case involving a transgender boy in Wisconsin that worked its way up to the Seventh Circuit court that I actually got to work on involving a trans boy who was denied the access to a restroom, consistent this gender identity. And we made the argument that sex stereotype to expect a kid to use restrooms consistent with their original birth certificate. And the court agreed. And we got a really great ruling there supporting that as well. That it's just a, a, a sex stereotyping generally
Alison Gill:
Sasha when it comes to these employment and public accommodations. Non-discrimination. I think there's like three different theories under some of these bills. One is the Price Waterhouse sex stereotyping, but what are the other two that are worth discussing?
Sasha Buchert:
Yeah, I think there are a number, you know, another one is, is just per se, just across the board, discrimination to discriminate against a trans person is equivalent to sex discrimination. And then the last one is an argument that, or our theory that the Supreme Court picked up in the Bostock decision that was issued a couple of years ago, which is called, but for discrimination.
And it's simplest form is just that, you know, if you're fine with your employer having a picture of their husband on their desk, but you have a problem with having a picture of of their wife, assuming the employees a woman. The only thing that's changed in that equation is the sex. And I love that theory, the but for theory, but, but for the person's sex, the employer would've acted differently. And I love that theory because it, frankly, it kind of moves away.
You know, I still believe that the other theories hold water in are very powerful arguments that it's, it's sex discrimination to discriminating against LBGT people based on sex stereotyping. But I like this because it shifts the burden a little bit from looking at whether a person is actually falls within that umbrella, a sex discrimination concept to, you know, did the employer have sex on the brain when they were looking at the motive of the discriminator to discriminate? So I think that that's a helpful approach and it's been picked up by some of the courts following the Bostock decision. So I'm hopeful that that will be the theory that's picked up by other courts moving forward.
There's other theories as well. There's the so association theory that there's been some case law under race discrimination involving folks that have brought associational discrimination claims saying that they were discriminated because against, because of their partner. For example, if you were interracial couple and they, if a woman or if one of the couple was fired because of their partner, that could be an associational discrimination claim, for example. So there's a bunch of theories that have led to positive case law, but I think the most powerful one for me is the but for analysis.
Liz Cavell:
I like that too, because it, the but for analysis is because just for explaining these case outcomes to lay people, you know, it, it cuts right to the heart of the matter, which is just fairness in how people are being treated. Like you said, it puts the focus on the discriminator and how they're people differently and cuts to the reason why you're being treated differently is "X" Okay, then it's illegal and it's just simple.
Sasha Buchert:
Yeah. Chai Feldblum, who used to head up the EEOC, uh, called it having sex on the brain. That should be the analysis they make a sex based consideration.
Alison Gill:
Great. So we talked about some of the Title VII theories and Title IX theories. What are some of the other, I don't know, protections, avenues that some of these cases have looked at for proclaim?
Sasha Buchert:
Yeah. Well, there's other significant case law under the Affordable Care Acts non-discrimination law. And this is just a little nerdy, but it's just helpful for people to understand that that actually falls under the Title IX analysis because the enforcement statutes for the Affordable Care Act are pulled from Title IX for sex discrimination. So that's why there's been really positive developments in that realm, even before the regulations were issued clarifying that LGBTQ are protected under the Affordable Care Act.
So that was really, really great. We have seen some positive case lodges recently that was kind of interesting. There was a decision, this is an argument that advocates have been making for years under the Americans with Disabilities Act. There's a provision in the Americans with Disability Act that was written by Jesse Helms, if people remember Jesse Helms, probably, that is very nasty. And targets gender identity disorder, which was a condition that was preceded or superseded by gender dysphoria.
Gender identity disorder was a specific condition is permanent diagnosis and gender dysphoria is different. And that's a temporary, there's a lot, there's a few different things that are different with it, but advocates have been arguing for years that the, the exclusion doesn't apply to folks experiencing gender dysphoria rather than gender identity disorder. And there's a few other novel legal arguments that come with that. There was a 4th Circuit decision to make a long story short, that was just issued recently that clarified that the ADA in fact covers trans prisoners in particular with regard to the ADA.
So that was, that was really cool. And of course there's constitutional protections. We've brought claims, especially at going after these really awful anti-trans laws that have, they're being passed that have, you know, proven fairly successful.
Whether it's equal protection claims, there's also First Amendment claims that it's infringes on, for example, a person's free speech to force them to hide who they are and not be able to live freely and express who they are. Similarly, the due process Clause, there's, I don't know how this is gonna shape up, you know, post Dobbs, but there is positive case law pointing out, for example, that it's violates someone's autonomy to prevent them from being able to access identity documents that are consistent with their gender identity.
So those are just a few, I mean, there's like a, you know, a, a whole bunch more that I'm not, not going different kinds of claims. A lot of interest in state courts now, especially after the damage that was done, the federal judiciary after the Trump administration. And there's been some action in that front.
You know, we planned an ACLU joined together to challenge a move by the governor in Texas to seek, to redefine child abuse, to include providing gender affirming care for your kid. And there were state claims brought in that case. There were mostly standing issues and APAs challenges to the way in which that was rolled out that have led to some helpful injunctions prohibiting that from going into effect for different families.
Alison Gill:
Just for jargon, APAs Administrative Procedures Act. And if you wanna learn a lot more about that, you should listen to our podcast episode on regulations where we dive into that sort of thing.
Sasha Buchert:
Go do it nerds
Liz Cavell:
It's called Regulations Rule! That's the episode title, because I know you're all rushing to listen to it right now.
Alison Gill:
Great. That's a really great overview of the sorts of claims that we've been seeing.
Liz Cavell:
Can I just ask, I'm less familiar with just this body of jurisprudence that has been building up, but you started at Price Waterhouse, Sasha and that's like 1989, right?
Sasha Buchert:
Yep.
Liz Cavell:
So is it as positive of a timeline of cases as it seems for–
Sasha Buchert:
Yes.
Liz Cavell:
In favor of protecting trans rights or including trans discrimination in sex discrimination? I mean, there seems like there's a lot to lose in the courts.
Sasha Buchert:
This this drove me absolutely up the wall, you know, and during the last administration because, you know, we would go to these different agencies like the Health and Human Services Agency and say, look, you can't do this because this undermines the rule of law that you, so, you know, love. This is very, there are very few cases that have gone the other way. The vast majority and Alison can testify to this, I'm sure is very, very few cases.
I can count 'em on one hand that have ruled the other way. And there's dozens and dozens and dozens that have held the other way leading up to the Bostock decision clarifying that federal law encompasses protections for LGBTQ folks. There's no balancing here.
Liz Cavell:
So it almost feels like maybe that's part of the answer too, to like, why now we see this spate of, right, it's the Venn diagram overlap between like, okay, we've captured the courts to be conservative activist and there's actually this really like deep body of law protecting trans people that we need to get busy to undo kind of things. Like there's a lot for discriminators and anti-trans people to gain in terms of rolling back some of this case law. It's almost like Dobbs in that way where there's actually a strong jurisprudence and there's like a lot to lose.
Alison Gill:
Yeah. I think there's some of the more cutting edge stuff is around healthcare and unfortunately it has not been going as well there in some ways which we can talk about in a bit. In some ways it has. Why don't we turn to some of the other background cases on trans issues. Sasha, you talked about the Price Waterhouse line and Bostock. Um, I'm, uh, the other one I wanted to flag there was the Lusardi decision by EEOC. Because I thought that was really important.
Sasha Buchert:
I worked on that case.
Alison Gill:
I know!
Sasha Buchert:
Oh, you do. That's right. Sorry! That was so arrogant.
Liz Cavell:
The most important thing you need to know about that case is me
Sasha Buchert:
Can we just cut all of that?
Liz Cavell:
No, that's awesome. That's fantastic. Tell us about it.
Sasha Buchert:
Anyway. Tamara Lusardi worked for the Army at a base in Alabama and was told by her employer that she couldn't use a restroom consistent with her gender identity and the employer in the case repeatedly misgendered and harassed her during meetings and just a whole string of pervasive acts that were just reprehensible. So she decided she was gonna challenge that and we worked with her to bring an EEOC complaint that eventually led to a commission decision clarifying that it's discrimination.
Because prior to that decision, which I think was in 2015 there had only been really decisions saying that it's discrimination to, it's kind of where we are with the federal court in some ways with the, you know, sex specific spaces issue. You know, before then there would only been a commission decision and the Macy decision saying that it was discrimination to not hire somebody because of their gender identity, it was sex discrimination. And so it was just a really helpful, powerful, a really strongly written commission decision that has led to policy change across the board. So just really, really grateful to see that move forward.
Alison Gill:
Yeah. And so the key point here is that, you know, and this is defined by the courts, we don't actually know what non-discrimination means under federal law, right? And so this case is so important because it says basically that when it comes to using restrooms and pronouns, et cetera, those things are included under what non-discrimination means for trans people, right?
So that's really key. That's what a lot of the fighting is about sometimes in these cases. Like, well, is this really covered? Or what does non-discrimination mean? Does mean hiring or does it mean, as you were talking about before, sex stereotyping? So what was the scope of what these laws actually cover?
Sasha Buchert:
And I mean, I can't blame them, but I mean, if the Bostock decision had come out the other way, we would be needing to make really difficult arguments in the way that I'm, I feel like we're seeing them from the far right trying to attack that decision itself.
That, you know, for example, that Braidwood case, I think we're gonna talk about, I haven't read it closely, but my understanding is that at some point they made an argument that, well, the Bostock decision just talks about transgender people and gay people. So it doesn't encompass other protected classes, you know, it's just absurd the way in which they're seeking to carve out everything they can and entirely if they can, the Bostock decision. And, and like you said, Liz, the lower court case law that supports it.
Alison Gill:
Well, let's move on and talk about education. There's a couple background cases there wanted to highlight. Do you wanna go through some of those and the key issues?
Sasha Buchert:
Yeah, I think it's, again, the big, questions that are being litigated right now involve access to restrooms consistent with their gender identity and athletics following the Bosak decision. There was a really powerful decision issued in the Fourth Circuit Court of Appeals on behalf of Gavin Grimm. Folks probably know him by now. Hopefully he is a, you know, a trans guy who provided a ton of leadership and has just been an amazing advocate for the community who stood up and said, no, I'm not gonna tolerate discrimination. And that led to a really powerful decision following Bostock, clarifying that.
And it does the same reasoning, and Bostock applies to whatever kind of discrimination you have. You would've treated somebody differently, but for their gender identity, their sex assigned at birth, that's sex discrimination. It's a very clear, clear analysis. There's no waters to be muddied here.
And that's what the court found. And that was really helpful. Unfortunately, there was a similar decision that Lambda had in a case that we worked on in Florida called the Adams decision involving a trans man Drew Adams. It led to a successful decision there around the same time, but because of the damage that had been done to the 11th circuit through the last administration, they reheard the case en banc meaning hopefully that, that the entire court heard the case and overturned it based on the six Trump judges that were appointed in addition to the Chief justice as opposed to the other judges. So, you know, that's why courts matter.
Alison Gill:
Yeah. And that's really dangerous because it sets up a circuit split right. On these issues, which, who knows, that could mean the Supreme Court, which is of course their target, right. To get back to the Supreme Court and see if they can overturn some of these protections like Bostock.
Sasha Buchert:
Yeah, exactly. That's, you know, we've already talked about that, but that's certainly, yeah, exactly as you said, that's exactly what we talked about earlier in their attempt to rush something up there because they don't know how long the Supreme Court's gonna be in their pocket apparently. So that's definitely a rush job in my opinion. For sure.
Liz Cavell:
So are all these education cases that you just listed, Sasha, they're all basically Title IX sex discrimination?
Sasha Buchert:
That's right.
Liz Cavell:
So this is like a true circuit split on like I mean obviously the, the details matter and the facts are different, but are, is the 11th circuit truly just coming out a different way on whether or not this sort of thing amounts to discrimination under Title ix?
Sasha Buchert:
Yeah. They are. And the equal protection Clause that was made in the case, you know? Yeah. And I think that's especially dangerous to bring up a constitutional claim to the Supreme Court that we have now. But I think with regard to the split that we're seeing we have now, it's yes, definitely the fourth and the 11th and the seventh that has held that discrimination on the basis of sex to prevent someone a trans kid from using a restroom. So there is a slide for sure.
Rebecca Markert:
I think it's probably important to note for our listeners here the difference between the Bostock decision and these decisions cuz bus stock involved Title VII and these decisions are involving Title ix. So while we all agree that the reasoning behind the Bostok decision goes to these other federal statutes, there's no case that says that reasoning in that rationale applies to Title IX. Is that correct?
Sasha Buchert:
Well, the Grimm decision did that in the Fourth Circuit.
Rebecca Markert:
Right, but not a Supreme Court case?
Sasha Buchert:
No, no, definitely
Alison Gill:
Not yet.
Rebecca Markert:
Not yet.
Alison Gill:
There has been lots of reasoning over the years that that basically when you analyze Title IX you should, you know, take into consideration or or view in the same way you do Title VII. But that's not the same thing as a Supreme Court case struck, appointed subject.
Sasha Buchert:
Absolutely. Yeah. That's a really important distinction though. And it is worth noting that there is some troubling language in the Bostock decision clarifying. I think that the far right has taken it way too far. But there is some language that says that this doesn't go any further than employment decision hiring and firing decisions. This isn't applying to RFRA or to it's exact specific spaces. All those decisions might need to work their way through this court. But, you know, all, you know, that doesn't concede that it doesn't apply. But, you know, I think that's a real dangerous signal. I think
Alison Gill:
That, yeah, and I think that's the phrase, the part that where they call the RFRA a super statute that underlies everything I recall.
Sasha Buchert:
What is that?
Alison Gill:
I don't know. I didn't know Congress could pass super statutes. Is that different? They basically amending the constitution because they can I don't know what that means. Yeah. But
Liz Cavell:
It's half law, half constitution.
Alison Gill:
Apparently
Liz Cavell:
It's the demi God half laws
Alison Gill:
Well let's talk about healthcare. We started to do this a little bit, but there's been some, there's been some initial really good laws in healthcare and then more recently there's been some kind of negative ones. But maybe you could go through some of those Sasha.
Sasha Buchert:
Sure. I think that this is a lot like the Title VII case law history in my opinion. There are certainly decisions that have gone the other way, but there's two different flavors here. There's the challenges that are brought, affirmative challenges that are brought by LBGT groups. Going after often state exclusions in their state employee plans for example, or Medicaid plans for example. There was a Medicaid exclusion in Wisconsin and a group challenged that the Medicaid exclusion and was successful in overturning that we had a case in Alaska that overcame–
Alison Gill:
Just to clarify this is Medicaid exclusion for coverage of trans healthcare. So basically they passed a law saying the Medicaid, which normally covers, you know, healthcare expenses for people that are low income or children would not be able to cover trans healthcare even if it was medically needed. Is that accurate?
Sasha Buchert:
That's exactly right. There's been challenges like that that have been successful across the country. We had one recently in North Carolina regarding a state employee plan that's being appealed to the 4th Circuit. And we also had one in West Virginia striking down their Medicaid exclusion. And I think that the TLEDF which is the Transgender Legal Education and Defense Fund, had a successful challenge to an exclusion in Georgia to their state employee plan as well.
So there's just been a lot of really positive developments on that front. And again, the medical evidence is what supports those wins in those places as well as the law. And it's a little different than the litigation attacking the anti-trans legislation, but, you know, there's just been a lot of positive, it's not all, you know, hearts and flowers. There was a troubling decision in Arizona involving a challenge to one of their bans. But, for the most part, without getting way deep into the weeds, I think it's been a really positive direction.
Alison Gill:
Well, let's talk about fighting back against some of the anti-trans legislation. We could start with healthcare. There's bathrooms or sports. Which one do you think we should start with?
Sasha Buchert:
I'd like to start with the healthcare, just cause I feel like that is such a pressing issue right now. I mean, they're all really important, but I mean the healthcare bans are really scary in my opinion. And I mean, I certainly believe that the impact and harms, I mean it's, I don't want to try to rank them, but it's just a, it's just deeply disturbing and I think it under, but it tells the, it tells the story, you know, the litigation that's about the science over the stigma, which a positive uplifting story, which I love.
And of course these state houses are passing, or these state legislatures are passing these laws now and then we're gonna have to challenge them. But what we have seen to date is that the Arkansas law that was passed in 2021 was challenged almost immediately by the folks at the ACLU.
And this is the bill that was vetoed by the governor and then overridden by the state legislature. And, and the ACLU challenged it. And if folks are ever familiar with John Stewart, he interviewed the Attorney General there. And the statistics and the junk science is just an absolute joke. Attorney General started to spout off some of that. And, and you know, John Stewart responded by saying, that's incredibly made up number and that's just what we've seen in the courts. You know, again, it's a different context than the state legislative hearing where you've got all your buddies with you.
So the court in that case issued a really powerful preliminary injunction preventing the law from going to into effect while the case proceeds. And then the state appealed it to the, 8th Circuit Court of Appeals, which is not a liberal bastion. And the a circuit affirmed the lower court decision and they recently had a trial. So were expecting a decision fairly soon from the district court, but I think that that speaks well to hopefully the way this is gonna move forward. And then similarly in Alabama, well–
Alison Gill:
Before you go off on that, what, what were the claims, what were the claims made?
Sasha Buchert:
Predominantly The equal protection Clause was the primary cause of action. I'd have to go back and look through the, and I'm sure they had others, but that was the, that I think that was the–
Alison Gill:
So this law especially singled out trans people for maltreatment.
Sasha Buchert:
Yeah. And they don't hide the fact that this is just applying to trans folks cuz they're all, they're very concerned about this applying to intersex kids so they can have inappropriate surgeries. They wanna continue that. So they always have some language in these bills that clarifies that this same healthcare that we're gonna deny to trans people, it can be provided in any number of certain circumstances, which is just like teeing up the equal protection claim to clarify that this is targeting a vulnerable protected class characteristic. And so similarly in Alabama, I think it's the same situation. I think there are other claims with the central as the equal protection claim.
And they had a hearing in that case too down there and invited the defendants to bring in experts. And they brought in 2, 1 person who had never treated a trans person before and one other person apparently. And the court said and I don't know if it's relevant, but the presiding judge in the case apparently got a lot of heat cuz this is somebody who was viewed as very conservative. There was a lot of expectation they would issue a difficult decision, but they didn't, they turned to the science over the stigma and the junk science and the rhetoric and concluded that this would be very harmful to strip this care from kids and their parents.
Alison Gill:
I love stories about judges actually doing a good job. Like, you know what I mean, given this age of horrible judicial bias and that sort of thing. That's really great to hear.
Sasha Buchert:
Yes, agree.
Alison Gill:
Let's go through some of these four cases. I know there was just a, um, injunction granted in BPJ, the West Virginia State Board of Education. Maybe you could talk about that case a bit.
Sasha Buchert:
Yeah, Lambda and ACLU are both teamed up on a couple of cases that are working their way through the courts. One is involving a transgender girl in West Virginia who just wants to run cross country with her teammates and is being told that she can't because of the law that was passed in West Virginia last year prohibiting trans girls from playing on girls teams.
And the team won a really powerful Lee written preliminary injunction from the court in that case saying that she can continue to participate while the law is in place. There's some really moving language by the judge, but I don't know what happened. But when they filed their motions for summary judgment, it was like a different Judge, we got a really troubling decision, basically dismissing the plaintiff's claims and allowing the law to go into effect.
And it was completely out of the blue. It was just so inconsistent with the prior ruling and a lot of people were confused and the team decided that it was really important to appeal to the Fourth Circuit to stay the injunction while they consider an appeal so that she could try out for the track team. The cross country track team was just a held breath moment because this means so much to these kids to be able to bond with their peers and run and play in the Fourth Circuit. As you said, Alison just issued a stay. They allowed Becky to go ahead and participate with their cross-country team.
Alison Gill:
That one's kinda confusing cause I think it's like a stay of an injunction of an injunction of a stay. It's like one of those really ridiculous factors.
Sasha Buchert:
I figure that. I was like, I dunno how to say that.
Rebecca Markert:
I think you explained it well.
Sasha Buchert:
And then we've got another case that's working its way through the courts in Tennessee involving a transgender boy who just wants to play on his golf team. And that's a case I'm working on actually in, and the plaintiff in the case is just the most amazing. They're all, the plantiffs are amazing, it's the best part of this work by far is to, is getting to know these folks and their families and just so wonderful and we're confident he'll prevail and be able to try out for the boys golf team soon. But we filed a motion for summary judgment earlier, a few months ago and we're expecting a decision sometimes soon.
Alison Gill:
Terrific. Terrific. Tell me, tell us about the, is it Soule or Soul case? I mean I think that's a really interesting one.
Sasha Buchert:
Yeah, I'm not an issue expert completely on this one, but the Soule case involves the group of cis girls and this is a flavor of case that we've seen that is important. Sometimes it gets forgotten, but I think it's important to remember them because they have created a really powerful case law and these cases, they're ginned up by some of the far right folks across the country that are trying to go to progressive parts of the country and challenge their non-discrimination laws and say that it actually violates Title IX to force me to have to participate with the trans kid. You know, that violates my protections. And the courts have resoundingly rejected that argument.
You know, whether it's in the 9th Circuit Court of Appeals is rejected, the 7th Circuit Court of Appeals is rejected and the3rd Circuit Court of Appeals is rejected that argument in this case, similar to those, involves a group of cis girls in Connecticut who challenged the commission there who had an inclusive policy allowing trans kids to play.
And not to message everyone to death here, but I think it's important when talking about sports is to remember a lot of times these issues are framed as this has never happened before. You know, trans kids and sports, what, but the fact is that hearing them progressive policies, allowing trans kids to participate for like 20 years, like Washington State has had a policy since 2008 and California similarly and you know, what has happened in those places where kids are participating nothing. They're, you know, they're losing every day. Oh in fact,
Alison Gill:
And in fact a lot of these places where they're, they're putting these laws into place, there's actually no trans athletes they can point to. I remember in Utah the governor wrote a whole message about when he first vetoed the law last year that there were like four potential trans students that could apply to an entire state. It was something crazy like that, which is just amazing to me. Like they can't actually show any harm. It's entirely about stigmatizing this community.
Sasha Buchert:
Which just drives me, you know, nuts cuz I'm like, well I remembered, you know, whenever I do state policy work, it's always like the first question out of any legislators, why do we need this? Give me some evidence. You know, and, and yet these folks are just like, well hypothetically, speculatively, versus the actuality. You've got 20 years here. You know, it's the same with the bathroom.
I was on the phone the other day and folks were talking about, I unfortunately didn't witness it, but I would love to witness it during one of these hearings. You know, a medical professional was providing testimony and they just got to a point where they're so exasperated they just stopped and said, look, just stop scaring people. Just stop it. Stop scaring people. That's what you're doing. You're scaring people and that's what this is.
Rebecca Markert:
Well, and I think the two cases that you referenced in West Virginia and in Tennessee, what stuck out in my mind is you kept saying hopefully these kids will be able to try out, like they're not even playing. They're trying to, they're trying to play. They're being prohibited from even trying out.
Sasha Buchert:
You know, and it's not just, you know, and it definitely is, you know, there are so many benefits that come with sports, you know, and participating and playing, but it's just they're robbing these kids of their, the ability to bond with their peers and those just once in a lifetime opportunity, it's irreparable.
Rebecca Markert:
Right, right.
Alison Gill:
Yeah. Well there's a couple bathroom cases we should talk about two. Could you go through those?
Sasha Buchert:
Yeah. There's a case moving forward in Oklahoma that was, you know, again, the ACLU and Lambda are bringing challenging Oklahoma's law last year that was passed prohibiting kids from using restrooms. And there was also an appeal that was made to a bathroom ban bill that passed in Indiana that worked its way up to the 7th Circuit. And there was an oral argument a few weeks ago, so we could get a decision there fairly soon. It was a fairly good panel in my opinion.
So I hopefully it'll be a decent, it'll be a positive decision. I don't know how it was square with, again, we talked about the Whitaker case earlier, and this is the 7th Circuit, so I'm not sure you know, what that might look like. We'll have to respond to that in some way. But those two, those two cases are definitely moving through the process at this point.
Alison Gill:
Got it. And those would these are laws that prohibit basically a trans youth from using appropriate bathrooms and locker rooms based on their gender identity, the way that they live their lives basically. So that's what these laws do.
Sasha Buchert:
Yeah, exactly. Exactly. Okay.
Alison Gill:
I think this is showing all the really great progress as we made in stopping these bills, but I think it's important to point out that these take years to stop. And depending on where we are in the courts, there's no guarantee all these negative laws can be stopped. So this really has to be a multi-pronged effort to stop this legislation. We have to stop it from being passed in the first place. And then litigation is there, catch ones that fall through the cracks. We can't use litigation as like our first strategy because I mean, Lambda Legal is an amazing organization and so is the ACLU, but you only have so many resources and attorneys, right?
And he is also take years and years to stop and we could get a really bad judge draw, especially in a place like Texas, which I'm sure we'll talk about more in a moment. But I think it's important to understand we have to try like multiple different approaches. Like we have to stop as many of these bills as possible. That's why advocates on the ground and people telling their lawmakers that they oppose these ridiculous stigmatization target in the communities is so important.
Liz Cavell:
I have to say as the non subject matter expert lawyer, what I've learned a lot in preparing for this episode is how flagrantly unlawful these laws that are being proposed are under the current case law. It really is just like similar to the teeing up of Dobbs. It's like this is just a massive spate of legislation being proposed that clearly violates well established federal court precedent pretty much across the board. I mean, it is wild though.
I didn't realize that the case law was really so strong on some of these protections. The legislative efforts are that much more insidious because these are all just laws that lawmakers know or should know, violate federal case law, but don't care because they're just gonna keep pushing and pushing until they overturn all of these precedents. It's wild.
Alison Gill:
In some ways it's kind of fascinating because before the Bostock case, you know, back in 2015, 2016, I remember there was actually a lot more precedent for trans people being covered under Title VII then for gay and lesbian people being covered under title seven of the Civil Rights Act. So basically there was more protections for trans, more courts that recognize protections for trans people than for gay and lesbian people. And so the question was, are they going to be covered in some of these broader laws or the courts going to sort of leave them behind. And then the Bostock decision came out and it's fantastic. So it helped sort of equalize protections a little bit.
Anyway, so let's talk about some of the bad things happening when it comes to litigation. And I feel like it's really important to, to sort of focus on regulations and not just because of my deep love of regulations, but also because I think it really ties the hands of the administration in some ways that are really important. So there's been numerous suits filed to undermine federal rule making, both under the Obama administration and more recently.
And some of these are just such a tangled mess of litigation. They're hard to decipher what the heck's happening. I read a few of these in prep for today and I was just reading through the court describing what all the different court rulings and how they fit together and it's just a mess, especially when it comes to non-discrimination provisions under the Affordable Care Act. So let's start with that.
Under the Obama administration, they passed non-discrimination protections as part of the rules under the Affordable Care Act. It's called the regulations under Section 1557. And so it covers things like sexual orientation, gender identity through in incorporation of Title IX as Sasha was saying. But immediately there were some court cases that sort of undermined that and those are still going forward today.
There's two cases worth noting. One is Religious Sisters of Mercy, and the other is Christian employers Alliance v. EEOC, that basically are trying to undermine these protections, the guidance put out under by the EEOC and also under Title VII and also the Section 1557 of Affordable Care Acts saying that trans people are protected by these non-discrimination protections in healthcare. Basically these cases are seeking some of them seeking to import Title IX religious exemptions. So we've talked about this in previous cases.
Title IX has a very broad religious exemption that basically carves out any organization that says that it conflicts with their religious beliefs, tenants to follow Title IX and have non-discrimination protections. They want to import that into healthcare. Some of them basically are undermining these non-discrimination protections based on religious Freedom Restoration Act or based on free exercise and free speech. Both of these cases are the 8th Circuit, which makes it really interesting. Sasha that you mentioned that there was an 8th Circuit case that turned out good when it came to healthcare and these are both negative. I'm just, it seems to be inconsistent to me.
Sasha Buchert:
I mean, I think that bringing religious exemptions, exception cases is I think a different kettle of fish in some of these circuits than bringing challenges to trans healthcare bans.
Alison Gill:
One thing that really stuck out to me is that the guidance under Section 1557 has allowances for case by case determinations under the Religious Freedom Restoration Act. So basically with the government has, if it has Religious Freedom and Restoration Act, if if a group says, well, our religious exemptions should make us immune to this government provision, this non-discrimination protection, then a case by case exception means that there's, the government's supposed to consider that and decide whether they are exempt and that's the way RFRA is supposed to work according to the Supreme Court and like other cases,
Sasha Buchert:
Compelling interest
Alison Gill:
Exactly, but now apparently the court in this case, and both of them actually said that a case by case consideration is not the least restrictive means cuz you could just exempt them and therefore this case by case consideration, which the Supreme Court said that you needed to have under RFRA is itself to burdensome. Basically to have a case, you have to like exempt them a case by case consideration is not sufficient, which I found amazing and that's just rereading this, it was really striking to me.
Sasha Buchert:
Yeah, I mean that completely goes against everything that we've ever known or been taught about RFRA as far as I'm concerned and, and completely eviscerates it, which just creates an exemption, a blanket exemption. I think one of the more troubling aspects of this discussion for me is the, the case that was just heard in the Fifth Circuit pretty recently, the Braidwood case, which is being litigated by this person, Jonathan Mitchell, which I think folks are familiar with, is making the argument that even non religiously affiliated organizations should just receive blanket exemptions from having to hire, you know, LGBTQ people without having to demonstrate any of those factors.
They can just, we completely eviscerate Bostock. Even a conservative judge on the fifth circuit was like, well, what kind of limits do we have? Are we talking about here? Or, so I think that that's definitely part of the work here, the dark work to try to, you know, find a way, just any way to discriminate against LGBTQ folks.
Alison Gill:
Well, what we're seeing over and over again in these cases, and I think this is a good example, is these rules or guidances come out and the other side goes to these select judges in these few places, especially in Texas and a couple places in the eighth circuit, Texas isn't a Fifth Circuit, and they've had these judges who are already made to give these ridiculous opinions, and I can actually name them. There's like three of them, and then the Fifth Circuit of course isn't gonna stop them.
And they get these really broad rulings and really just outside the scope of the law, as Liz was talking about earlier, the law is pretty well defined and these just go, they take extreme strides to avoid it, and because of that, the, the government now can't regulate, they're unable to bring forward more things. So it's just sort of blocking them from doing what they wanna do.
It's thwarting their agenda. And already this year and, and last year they proposed changing the rules around section 1557. They're talking about changing the rules around faith-based social services around the conscience exemptions under federal law. And those are all sort of things that are gonna be blocked. And they think this is a good example of how the other side is using the courts to control the administration and slow down their progress and in really significant ways because this is just so complex that the administration is really hamstrung in, in major ways for moving forward your protections that they believe and that the case law supports.
Sasha Buchert:
I mean I don't want to name names here, but at least one of them is issued for all the lip service to dangers of nationwide preliminary junctions under the last administration. The same folks seem to have no problem issuing them now, including with the HHS rule. So, or even guidance, it's not even a rule, it's just guidance that the Biden administration issued. So, and we've been saying the same thing and that was why courts matter. It was so dangerous, we flagged for all of the Senate offices during the last administration that the folks that were being put on the bench were gonna clearly not be able to set aside their personal beliefs about these things.
They've said they had said those things their entire lives, but they suddenly, you know, go through their confirmation conversion and are adamant that they'll be able to follow the law, you know, and and wherever it leads them supposedly. But, you know, it's clear to me that that's not what's happening here.
Rebecca Markert:
I'd be interested in hearing Sasha's thoughts about the intersection between our main issue state church separation and trans rights. Why do we think that these trans rights issues are also separation of church and state issues?
Sasha Buchert:
I'm happy to start and refer to you all actually a lot of this, this, the nuances here, but I think that the cases that Alison just flagged in empowering religiously affiliated actors to weaponize their ability to turn away vulnerable trans people from key social services will just cause enormous harm. And I think any embrace of religious doctrine in our state continues to, in my view, I think there is still this thing called the Establishment Clause.
I haven't seen a lot of it recently, but I think that that is just such an important issue to separate those out, you know, separate church and state, because inevitably it leads to posing ideological driven policies on vulnerable populations. You know, it's not just LGBTQ people, it's religious minorities, it's women, it's weather protected characteristics. We know from experience that wherever there are religious exemptions that LGBTQ people and trans folks in particular experience the brunt of that discrimination. So I think that that's why it's so important to separate those out in my opinion.
Liz Cavell:
Sasha struck on this a little bit earlier when we started on some of these cases that are going a different way that involve some of the administrative action, which is injecting the free exercise or the religious freedom claims into some of these cases is sort of the vehicle by which these groups that are in the legislative, the state legislative house is proposing these bills.
They're the same groups that are in the courts using religious freedom and First Amendment claims and RFRA as a vehicle for undermining what we just celebrated as this decades long robust tradition in our federal courts of protecting people from this type of discrimination under the law, these conservative courts and especially the US Supreme Court love to seize on free exercise rights and religious liberty claims to subordinate the rights, all other possible rights that anyone might be claiming in any given case, right?
This is why all of our cases are shrinking the meaning and the breath of the Establishment Clause. It's because there's this weighing going on in all of our cases against free exercise concerns, and they see the power of that and the courts are, don't hesitate to do it. You see Gorsuch getting to play the equality hero in Bostock, but leaving open for another day whether and how religious exemptions might be claimed in a later case.
And what we all know, the writing on that wall is this will be completely hollow in any case where an employer is raising a religious basis for taking an adverse employment action against a trans person. And the other thing I wanna say is it still remains the case that these laws are motivated by religious ideology if they're not rooted in, in good medical and they're not rooted in preventing actual harms to actual children or people.
What are they rooted in? They're rooted in this sense of rigid sexual and gender norms that come from a one particular religious point of view. And it's not, again, this is not just me like mining for conspiracies. This is usually an active part of the legislative history or the legislators public messaging on these bills. These are good Christian bills to restore good Christian sexual and gender norms to our good Christian towns and cities and countries.
And I mean, it's important to say that like it's, we don't want other people's religious norms being the basis for our laws, and we all agree that we don't want legislators religious views dictating what we do with our doctors and with our kids and, and our families. And that's as like Establishment Clause as it gets,
Alison Gill:
Just to underscore that point, A lot of the laws, the names of them, they're being proposed around like young people are, they're called the Millstone Act based on the phrase from the Bible where it's better to have someone tied a millstone around your, your neck and thrown into the river or whatever, rather than bring a young person away from God or something like that. I'm paraphrasing quite heavily there, but you get the idea. So, it obviously directly has a religious connotation in context.
Liz Cavell:
Right? These aren't like hidden backstories. This is the direct messaging and legislative history on these bills.
Rebecca Markert:
Well, I was just gonna also add that the organizations who are pushing these laws and who are litigating these cases are groups that are very familiar to the state church activists, Alliance Defending Freedom, and Family Research Council, Liberty Council, First Liberty, these are all organizations that 10, 20 years ago were very focused on a lot of the traditional state church issues, like Ten Commandments, monuments, prayer at legislative meetings.
And now they are focused on passing these laws that affect civil liberties of trans people and young children. And they don't want a secular democracy. They want to impose their religion, God's law on everyone, and it's just their God. They are pushing a particular worldview and they want that to be in every aspect of public life.
Alison Gill:
What can our listeners do to support trans people, trans issues.
Sasha Buchert:
Number of things. One would be to support organizations that are doing work on behalf of trans youth in particular, not trying to raise money from a particular organization, but just any organization.
Alison Gill:
Which is Lambda Legal. And they do tons of, and you should definitely support them if you can. They're fantastic.
Rebecca Markert:
And we have their website in the show notes.
Sasha Buchert:
Yes. That's, that's one way, as one direct way. Another is, I think that it's just really important that people stand up for trans people and trans kids in particular right now. And that means making public statements. That means going to provide testimony wherever possible. I think one thing that I always call upon people to do as an action item is to ask yourself whether you sincerely know who your state legislator is or your state senator. A lot of times people don't know we're all busy, we have busy lives, but if you're not talking to them, someone else is, I can guarantee that.
And it's just really important that take the time outta your day. I think we can put in the notes the way in which you can contact your state representative or your state senator and just give them a call and just tell them, you know, look, I'm your constituent and it's really important to me that you stand up for trans kids right now in this moment, in whatever way you can.
And I think that that's really important because they count your, your call will be counted by them. They will hear you, you know the first lesson you learn in DC is to not go into any office without one of their constituents. They do listen and it's really important and it's just really important that folks, you know, know who their state legislator is and, and, and are talking to them.
Liz Cavell:
Thank you so much for joining us Sasha. This has been such a great conversation and you are amazing.
Sasha Buchert:
Thank you. Thanks for having me on the program.
Rebecca Markert:
Well, that's it for today's episode. Thank you so much for listening. I'm Rebecca Markert.
Alison Gill:
I'm Alison Gill.
Liz Cavell:
And I'm Liz Cavell. Thanks for listening.
Rebecca Markert:
We Dissent is a Joint production of the Freedom From, Religion, Foundation and American Atheists. It is hosted by attorneys Liz Cavell, Alison Gill, and me, Rebecca Markert. Other production support comes from Greta Martens. Audio engineering provided by Audio for the Arts based in Madison, Wisconsin.
Thanks for listening.
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