We Have a King Now I Guess. Cool. Cool.

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:00 Clip: You must never, ever give up or give in. You must keep the faith and keep your eyes on the prize. That is your calling. That is you mission. That is moral obligation. That is mandate. Get out there and do it. Get in the way. Change happens because people care. The people have the power to make this life free and beautiful. To make this live a wonderful adventure.

0:00:38 Clip: I still believe with all my heart, America can be a place where no child is left hungry, no community is left behind, and no one gets told they don't belong. Country is always worth it.

0:00:58 Thomas: And welcome to Opening Arguments. This is episode 1128. I'm Thomas Smith. That over there is Matt Cameron. How you doing?

0:01:05 Matt: Well, it's been a long month. Years worth of a month, I think. It's February 20th, 2025. Here we are.

0:01:08 Thomas: Tuesday, Lemon. It's Thursday, Lemon,

0:01:11 Matt: It's just Tuesday. That's right. We made it. We made it, and there's been so much to talk about, and there will be so much more.

0:01:17 Thomas: We have a really good show planned for you today. We're going to speak to somebody who tell you about that in a moment. Matt, I want to make sure Lydia will kill me if I don't announce that we have the Q and a, that is the 26th. In less than a week, next Wednesday, the 26 at that'll be a lot of fun. Look out for announcements on either socials or Patreon for that when we get closer to it. And we'll send out the link. But that's a lot fun. We love getting the chance to actually interact with you folks. Always a good time.

0:01:45 Matt: Yeah, I really loved it last time. Can't wait.

0:01:46 Thomas: Mark your calendars. Matt, I know the question on everybody's minds is, can Trump issue a wish for infinite wishes with a genie is essentially If he writes an executive order for infinite executive order power or something, I don't know. He's trying to seize some amount of power that it's not clear to me if he already had or if he didn't already have and what it would even mean or if you can do it. We're going to talk about that today, right?

0:02:11 Matt: And as we'll talk about, it's actually more power than the King of England had. It's what he's trying to take on. He wants to be more king than the king.

0:02:18 Thomas: That worked out great for that king. So-vis America. So yeah. Looking forward to getting some clarity on that and our interview with a really great guest, Professor Katie Iyer, we're going to learn a lot about the state of, know, you trans rights, the battle over. I mean, it's really everybody's rights at this point. I mean it's so many people's rights. There are very few that aren't on the chopping block. But, of course, obviously you folks are more vulnerable than others. And we're gonna talk about those executive orders, what they mean, what the don't mean, all that stuff. We'll take our break. Can avoid that break at patreon.com/law. And you can also find your invite to the very exclusive Q&A that I just announced a moment ago when you sign on to patreon.com/law and you so much to those the show. Hope you enjoy not hearing the ads and getting the extra stuff.

0:02:21 Matt: Happy

0:03:04 Thomas: Show is brought to you by Trade Coffee. You're like me, you've got a very specific routine. Routine. Got my routines because I can't remember anything. So I have to do everything the same way. Otherwise I'll forget to do it. Thing I never forget is coffee. That is one thing I don't actually need a routine. Now that I think about it, I do have a routine for it. I probably don't need it because I will always find a way to have my coffee because it's so important to me. I got to ask, if you are someone who is not making incredible coffee in your own home, I am about why, because, hey, things are expensive right now and getting that coffee at the local coffee shop is like, it's getting to be double digits, the amount of money that's costing. Aren't making your coffee at home, maybe I can help you. Trade Coffee is the number one US specialty coffee marketplace, you fresh coffee from over 50 of the country's top roasters. Take their quiz, and in under a minute, they'll match you with the perfect coffee. If that first bag isn't quite right, problem. They'll replace it for free until they get it right. Every bag is roasted to order. You'll taste and you'll smell, that's the most important part, you'll smell that difference from your very first cup. Took the trade coffee quiz. Nailed it. Like darker roast. Might Like something different? Well, that's what The Quiz is for, go try it. Tell you how. Now, right now, Trade is exclusively offering our 40% off your first order at drinktrade.com/OA. That's drinktrade.com for 40% off your first order. One more time, drinktrade.com.

0:04:30 Thomas: Matt, we wanted to answer this in the form of a patron question he

0:04:33 Matt: Right. We want to talk about the King. We want take on today's top suggestion from patrons about what we should talk about. And it's from Bunny with the Switchblade. And they ask or say Trump's greatest EO that says the president and the AG are the only ones who get to interpret the law. Those who didn't this, it's really hard to keep up with this flurry of executive orders right now. Was February 18th. The president signed an order which is ominously entitled, ensuring for all agencies. So,

0:04:55 Thomas: Signed one that said he can dunk a basketball on a regulation rim

0:04:59 Matt: That's right. And that he weighs 150 pounds. Yes. It is quite an order, and it is pushing the law forward in exactly the way that we expected, because this is sort of the natural culmination of what conservatives have been calling for a long time the unitary executive theory. It is a longstanding Federalist Society Antonin Scalia joint, it doesn't really come from anything except arguably the first sentence of Article 2 of the Constitution. Executive power shall be vested in a president of the United States of America. The argument here is that when the Constitution vests that power, it means all the way down the chain that Congress can't create anything that's the least bit independent, even with there's very good reasons to create things that are independent that we might talk about. So the unitary executive. And I'm very annoyed by this because in my reading, they keep calling them Unitarians. And I feel like we should leave the Unitararians out of this.

0:05:44 Matt: I like Unitarians. Good folks. That is what they're called legally, is Unitarians. And they make this argument that are no independent agencies. Those are the actual words of Russell Vaught, director even of management and budget.

0:05:55 Thomas: Is that what this is about because

0:05:57 Matt: Yep. This is what it's about.

0:05:59 Thomas: So now as I look at the whole order, that thing is long AF, Matt, and I, because I always wait to hear from Opening Arguments, my favorite law podcast, I had only really seen that one part reported on, which is the president and the attorney general subject to the president's supervision and control shall provide authoritative interpretations of law for the executive branch. Branch. On the to, president and the attorney general's opinions on of law are controlling on all employees in the conduct of their official duties. Okay. There's a little bit more, but yeah, it just struck me that like, is this anything? It's like, we know, we've talked about executive orders vary from that some of them can have the force of law to most of them are just written on a napkin and are stuff that the president wants to say to make himself happy.

0:06:34 Matt: And that right

0:06:45 Thomas: Strikes me that if this is a thing that he had the power to do, he already had it. So what does this change? Does this change anything?

0:06:45 Matt: But he doesn't so what he's trying to do is exert authority over over independent agencies. That's what this is all about. So he's trying to bring them into line along with the rest of them. And he's saying that they're all just his employees, essentially, that they are all just under his power. Federal Reserve Governors, the FTC, the FCC, FDIC, Federal federal housing, just as a whole bunch of them that are supposed to be somewhat independent, including the National Labor Relations Board, which as we talked about, Trump fired a member of the NLRB for the first time. There is 90 years of precedent saying that the president can't do this. Now, in 2020, the Supreme Court upheld the idea that this president could fire the head of the CFPB, which of course may or may not exist as of now, Finance Protection Bureau. They decided that when it's an independent agency that's run by one person, that the president still might have the authority. And as long as this isn't an inferior officer in senses, if it's one person that has this kind of power that's not similar to that 90 -year -old president I was telling you about, some cases, the president can actually fire that independent agency head. Now, that is something they want to push forward. And John Roberts in the immunity decision on Trump v. U .S. specifically referenced the president's removal power, which interestingly enough does not exist. There is no constitutional removal power in Article 2. And reason for that, after I was digging into this a little bit, is that the King of England didn't have removal power. It's strange to think of now, but the King Of England couldn't actually just fire anybody he wanted to. Did actually have officials that were not subject to his rule, that had to be overseen by local magnates, basically, local officers. And there were little pockets of administration that were actually outside of the King's control. Control. And there's a little originalist thinking here that would point in the direction of the king not being able to do this and the removal power. There is no removal power, and John Roberts seems to have read it in in 2020. now they want to move forward to have the president to be able to control multi -member executive regulatory agencies. Would be quite a lot more power. And there's two things that are really significant about that. The first would be that OMB can actually control their budgets completely, can decide, even if Congress has said that there are certain programs that money has to go into, that it was not consistent with the president's agenda, that OMV can just withhold that money, which they're already doing. As we know, they're trying to do that. And the other thing that's super dramatic, that's a big departure from precedent here, is that independent agencies are going to have to submit all of their draft regulations, anything they want to do, and they interpret and enforce the law through the White House. Huge. That hasn't been done before. That's much more important, I think. So that overarching thing you just read about how they have to interpret everything the way the president says is important. And that wouldn't be as big a deal if you're just talking about regular executive agencies. But he's saying every single part of the executive branch now is going to be subject to that. Is a big thing. And honestly, reading through the 2020 decision, Seila Law, that allowed the firing of the CFPB head, it does seem like John Roberts and others, I mean, Neil Gorsuch and Clarence Thomas have both said that they're willing to overturn that 90 -year -old precedent. And Humphrey's executor, it was called 1935, in which FDR fired a member of his FTC, and they found in 1935 that he didn't have the power to do that because it was for cause only. And the whole question is whether or not Congress can say the president has limitations on who he can fire and why. And there are very good reasons when you think about it that something like the FCC or the FTC, or for that matter, the FBI, which isn't necessarily included here, but it's very concerning to think about the possibility that the FBI might be sort of included in this package of things that you might have. Of... Because the president already... We haven't talked about this at all, but the president fired the director of the FBI,

0:10:11 Matt: Christopher Wray, without explaining why, really. Hasn't... I mean, that's just one of the many things.

0:10:16 Thomas: The first time that he's done that. Actually, to be fair, last time he fired the director of the FBI, he did say why. It was for corruption stuff. It was so that he just said it, everybody. He just said so that they wouldn't do the Russia thing.

0:10:20 Matt: Comey. Right? Right. Right. Exactly. Right." As I know, with Christopher Wrey, there wasn't really much of a reason at all. This is just one the many many things they've been doing. Well, they've flooding the zone in the past month, so we haven't even talked about it. But But that's clearly the opinion that he has. And now, of course, we're just seeing Kash Patel being confirmed just now. I think he's squeaking through. And we'll see what happens when we have an FBI, DOJ. And we've talked in the last couple of episodes about the Thursday Night Massacre, about DOJ's new position under Pam Bondi, that they have ultimate authority to tell their prosecutors all the way up and down the line in all of the jurisdictions what they're going to do directly from D .C., which has not been the understanding. There has been this traditional independence throughout DOJ in the FBI and the U .S. attorney's offices. So every part of it.

0:10:43 Thomas: He's in. And I'm not the lawyer, but we've talked a lot about this. And I also have heard people talk about something that I found interesting that I hadn't really thought about, that the president is, we call it the administration. They administer the law. Congress writes the laws. The president administers the laws, does other stuff. And the Supreme Court does whatever the F it wants, apparently. But it pleases everybody. But anyway, ideally, left wondering, how is Congress supposed to do anything under this paradigm? So let's say Congress wants to write a bill. And I feel like everyone in theory agrees that Congress still has the to write laws. I Right. And they want to regulate something or do something that requires a bunch of administration, some amount of administration of that law. They're not going to Congress isn't going to, you an agency. And like the senators are going to be working, you Know, these jobs, these bureaucratic jobs. That's not how it works. They appoint. That law, they use their power that's given to them in the Constitution to say, we want this to be regulated. Here's this agency. We've created the EPA. You administer that. If they're now saying the president has the right to just have complete control over that, his say goes, it's his way or the highway, I don't really even understand how Congress is supposed to write laws effectively in that way. They supposed to have their way in any way? They have a role and they're one of the three quote unquote co -equal branches.

0:11:44 Matt: Still there. Yeah, yeah. Right. That's a very good point and that's why the impoundment power that they're claiming was roundly overturned by the Supreme Court when Nixon tried to do it when he tried to say I just don't want to spend that money. I think it might be helpful to go to Project 2025, which I think we need to talk about more and more because so much more of it seems to be happening as we go forward here. Russell Vought, the current director of the Office of Management and Budget, wrote a chapter on OMB in Project 2025. He already had already run OMB, and now he's running it again. And he wrote something pretty shocking. I went back and read this to think about today. The OMB director must view his job as the best, most comprehensive approximation of the president's mind as it pertains to the policy agenda, while always being ready with actual options to affect that agenda within existing legal authorities and resources. Then skipping ahead, once its reputation as the commander of quote -unquote commander's intent is established, commander's intent, then and only then does OMB have the ability to shape the most efficient way to pursue an objective. So this is the position he's taken since he's taking over OMB. And seeing all the way through Doge, of course, and everything else is that if the president's agenda requires it, we'll do it. If the president doesn't want to do it, We're not going to do It. So there to be some lines here. And there are originalists already even sounding the alarm and saying, this is a little much. This isn't quite what we wanted or what we signed up for when we were talking about a unitary executive.

0:13:38 Thomas: Matt, if the Supreme Court case involves arguments over whether or not the King of England at the time could do a thing, I'm going gonna to jump off a cliff there.

0:13:47 Matt: I think it will.

0:13:48 Thomas: Can't imagine anything less relevant than that. And yet there, there we will be arguing about what the King could have done.

0:13:48 Matt: It will. Well, it's going to have to. There's an entire Stanford Law Review article about it, which is actually pretty helpful because it refutes the originalist idea.

0:13:58 Thomas: It's interesting history.

0:13:59 Matt: But it is. It is.

0:14:00 Thomas: But it's just like, what are we doing?

0:14:01 Matt: Because essentially, Scalia, in his very famous dissent in Morrison v. Olson, where saying that the president should have the power to fire independent counsel at the time under the independent counsel statute. Rehnquist has said there have to be limits and that there's no constitutional reason that the President should be able to fire an independent counsel. Scalia fires back, well, it says in Article 2 that it shall be vested in the president. This means not some of the executive power, but all of the Executive Power, that he has to completely run everything. And that includes being able to fire an independent counsel who's investigating him. And then John Roberts in Trump VOS goes on to say that the president is the only person who alone composes a branch of government. That's where their heads are at. President is The Executive Branch. And no matter, even if Congress is trying to designate independent agencies that should be independent, you can that, imagine it's a disaster to have the president running the SEC, right? You right? Can imagine the corruption with somebody like Trump, obviously. The president regulating the airwaves with the FCC,

0:14:52 Thomas: Go further to say the next fight would be, are they going to declare executive agencies unconstitutional? Like, why would Congress even have the right to do that if this power is absolute? Congress can't say, president, under this theory, they can't correct any executive anything because only the president can do any of that. So why can Congress even write a law that makes an agency that becomes a federal agency.

0:15:13 Matt: Independent, right? And that's what Ross Fudd and others are saying, is that you can't have something that's actually an independent agency, that everything has to come under the purview of the president. And that's the line they're taking.

0:15:21 Thomas: I'm going to go further. I don't even think the independent qualifier matters. Why can they even create an executive agency of any kind? don'T even understand. Like, and there's this weird bizarro law where only Trump does anything involving executive anything. Maybe I'm missing something. Just, this just seems silly to me.

0:15:36 Matt: They can create these agencies, but they have to be employees of the President, basically. And that'S the position he's taking. Thinking.

0:15:42 Thomas: Guess the, I know you're trying to answer from a place of sanity, Matt. And I'm, telling I'm you, this is so insane. It doesn't make sense. Cause like, if your theory is, well, they can write if, you know, know, if their unitary executive is, they can write a law that creates an agency, but they cannot tell, they don't have authority to tell anyone in that agency what to do. Only the president has all of that authority. Then they, not really doing anything like that. That bill that creates An Agency is doing nothing.

0:15:45 Matt: That's my mistake. Sure. Right. Yeah. Well, especially after Chevron. I mean, this is all part of that too. Chevron was removing Chevron, right? Which is what they did last year. And the idea that we had to defer in some way to executive agencies because they knew their stuff better than others, that's all gone. So at the point at which you're saying we don't have to defer to executive entities, at the part at which we're saying that there are no independent agencies, at the point at what you're not only agencies led by one person, but agencies led led by multiple people, which is the next step in this and what they're directly targeting in this order. If all of those things are completely under the president's orders, then yeah, I think you're not too far off there.

0:16:37 Thomas: I think they're trying to come for the very concept of executive agencies, really.

0:16:41 Matt: Yeah. You Yeah, read John Roberts literally, that's what he's saying, that the president is this one person and anything else that happens is up to him.

0:16:46 Thomas: And so you think about the things that executive agencies do, they tend to be all the things Things that, you know, the billionaires wouldn't want happening, regulating, you know, making our air safe, all that stuff. I mean, there's a, there'S a lot of them and they do really good things. And so, uh, yeah, it makes sense that this group of people would want to completely gut that ability.

0:17:05 Matt: Surprise. It's been coming a long time and the unitary executive theory has been brewing pretty much our entire lives. And this is sort of the ultimate expression of it.

0:17:12 Thomas: I guess the question though, is, is this worth the paper it's written on? I mean. Implication here that because of this, uh. Supreme court history you're talking about that they, they might like them a pass on this one. They might like validate this idea.

0:17:23 Matt: We just need five people to say it. And I think we already have them. From what I understand, just reading through Seila Law from 2020, it seems like Gorsuch and Thomas are already on board with the idea of getting rid of the prior precedent that said that in Myers 90 years ago, that said the president can't do this, that the president cannot remove somebody for anything but for cause. That seems to be where it's heading. I wouldn't be surprised at all if the Supreme Court finds this to be fine.

0:17:47 Thomas: So is his goal here just to fire some at first? Is that like kind of the first application of this?

0:17:51 Matt: Yeah. Well, it's also to slow regulatory changes to a halt because if you have to run all draft regulations by the White House and you have to running all funding through OMB, going to happen. You're not going to have any regulation unless

0:18:01 Thomas: Ghosts that work in those buildings won't be able to get their, you know, regulations passed.

0:18:06 Matt: Yeah pretty much. That's where we're at. We will have to keep watching this and we'll see. I'm not optimistic about this one.

0:18:13 Thomas: Okay. I was thinking this was more worthless than it was. So this is genuinely scary to me. Okay. OK, but I imagine the first thing there's going to be a legal fight picked immediately, I'm sure. Right. Like whenever this effectively does something and we'll just have to see how the courts deal with it.

0:18:26 Matt: Won't be long. Just based on that 2020 precedent, Seila Law, I think that we're on our way, but we'll find out.

0:18:32 Thomas: Well, that sucks. But we're going to speak with someone who I can't help but feel after talking to Matt. Who's our guest today?

0:18:39 Matt: Got Professor Katie Eyre from Rutgers Law. Just We going just to give us a good overview of what we're looking at in the wake of these executive orders, obviously signed on the 20th, one month ago. Anti -trans orders, some things that are real causes for concern, but also some cause for hope, and kind of what the legal landscape is looking like right now.

0:18:53 Thomas: If anyone knows how to fight this it's got to be her I I can't wait to to get some good direction you know get some good on on where our focus should be and where the battles are going to be here all right well let's hop on over to that okay show is brought to you by NPR's Up First. News is broken. Constantly doom scrolling on Facebook, on Twitter, or X, TikTok, and heard from a lot of people who are saying they're over the news. That's rough because, like, it's always true, but it's more important than ever right now that we keep up with everything. Throwing so much at us. If you have ever felt like you're over the news, it's too much. I recommend the Up first podcast from NPR? First frees you from that all day scroll obsession by telling you everything you need to know in an easy 15 minutes. It's no BS, just the facts. First is the cure you need for your news fatigue. What they do. They provide the top three news stories to start your day. With digestible 10 to 15 minute episodes, it's all the news you need so you can get back to your life feeling informed while preserving your sanity. For example, I just listened to one the other day about the future of Ukraine and a favorite topic of mine, the Consumer Financial Protection Bureau, something I'm very interested in preserving and something we will be covering very soon. With NPR, you know, you're going to get no no nonsense. You're getting the facts, you're getting them in reported on, and it'S not in a way that'S going to give you that news fatigue. Whether it's the Trump administration to business, to the economy, to immigration, Up First is the go -to daily habit for the news consumer who wants to stay informed, but is really strapped for time these days. That's me. They're really getting the balance on this one. It's short, but thorough, national, international. It's fact -based, but also personable. So out Up First and start your day a little more than a little. A little bit more in -the -know than when you went to sleep. Now to the Up First podcast from NPR.

0:18:56 Matt: she'S great. Very fortunate today to be joined by Katie Ayer, who's one of the leading scholars in anti -discrimination law and leading expert on LGBTQ employment rights especially. Actually was responsible, as I understand it, for the argument that Justice Gorsuch adopted in Bostock. So we'll be talking about that for sure. But yeah, so We Want to Get Into sort of the global look at trans rights and trans lives right now and the threats to freedoms and rights that we're looking at. So, Professor Ehr, I guess before we get started, I just wanted to ask you how you got into anti -discrimination law.

0:21:11 Katie: Great question. I went to law school knowing it was what I wanted to do. I knew I specifically wanted to focus on disability and LGBTQ rights. Then I was really fortunate, you know, right after I graduated to have the opportunity to found a project specifically focused on LGBT employment rights. And the time, of course, we didn't have Bostock. It was a much different time. Really just trying to find any way to get clients legal recourse.

0:21:39 Matt: Year was that?

0:21:39 Katie: Was back in 2005 that I founded that project yeah so many ago and been very lucky as an academic to get to continue that work right to be able to think about it as a scholar and as a teacher and as a mentor to future folks who are working in the field so I feel very lucky for the career that I've had

0:21:43 Thomas: Wow hey

0:21:59 Matt: So has really grown along with LGBTQ rights as we know them today, it sounds like then.

0:22:03 Katie: No it's been I mean there were certainly people who came before me but it's I've been in the in the work for a long time now.

0:22:10 Matt: I live in Boston and Massachusetts. We had, obviously, as you know, Goodridge v. Department of Public Health in 2004. 2004. So you were just on the cusp there of it just, I mean, it's such an incredible civil rights journey, such a change in the last couple of decades. I know that our listeners have had a lot of questions about the state of things right now. Obviously we've had a series of pretty bad executive orders signed just a few weeks ago. And I just wanted to start, I guess, with kind of a global look at how how things are feeling right now in this

0:22:35 Katie: Mean, I think for anybody who works in transgender rights or knows anybody who's transgender, you know, has loved ones. This is this is a really difficult time. Was already before the election, a in which we were seeing states all across the country really targeting transgender rights in a wide variety of ways. And now that's moved to the federal government and the president. As I'm sure we'll get into, it is not at all clear that, you the president wishes to accomplish with these executive orders is actually lawful. But that doesn't necessarily dissipate the harms that take place for real people in the meantime.

0:23:14 Matt: Sure. And we're right now, of course, in the shadow of Scrametti. We're waiting on that decision.

0:23:20 Thomas: Us uh non -lawyers what what that one is oh

0:23:22 Katie: So the Scrimetti case currently pending before the Supreme Court is actually the court's first opportunity to address the equality rights of transgender people under the Constitution. So there have been some prior cases, but not addressing what's called the Equal Protection Clause. And the specific law being challenged is Tennessee's ban on gender affirming care for transgender minors. But it is almost assured to have much broader implications, most obviously for how other laws addressing or attacking transgender people are reviewed by the courts, but also potentially for lots of other folks and how their equality claims might be decided. I

0:24:04 Matt: There were two arguments raised in Scrameti, one of them on the, you know, more along the lines of on the basis of sex, like in Bostock, which we'll get to. And then the other being that trans people are inherently a suspect or quasi -suspect class. And you've argued before that we're sort of on the way, or potentially the courts have been recognizing trans people as a quasi -subject class. It didn't seem to me, just from my observation, this isn't my field, but it didn't seems to me that that argument was going very far with the court this time. What do you think the state of that is?

0:24:33 Katie: Mean, it's interesting. That was an argument that for many years, we saw courts sort of reject out of hand without really taking it seriously. But then we saw a real turnaround around, you know, sort of the most, say, maybe 15 years ago, started to see the lower courts really take the argument seriously. And it's the type of argument where if you do take the agreement seriously, all of the things the Supreme Court has told us that should make the courts more suspicious of actions targeting a particular group, they all exist in the context of transgender rights, right? Like the history of discrimination, that it's something that people typically can't change about themselves, you know. All of the types of things that have traditionally caused them to apply heightened scrutiny. Whether the Supreme Court will take that up is question. It's been been many years since the Supreme Court itself has found a group to be deserving of a higher level of scrutiny. But I did note that Amy Coney Barrett at Oral Argument was asking serious questions about the issue. To the extent she might be a fifth vote for applying some level of heightened scrutiny, that could cause the

0:25:41 Katie: Court to address...

0:25:40 Thomas: Fifth vote who's the fourth oh

0:25:43 Katie: I'm counting on Justice Gorsuch. We'll see.

0:25:45 Thomas: Man you sound like an optimist which can I just say I love and appreciate can't get with you on that one can't do it

0:25:54 Katie: No, I will say you and the rest of the world thinks I am way overly optimistic. And I should be clear that I'm not, I wouldn't put betting odds on that we'll get to five. I it's possible. Other thing I've been thinking about, I have to imagine, I have to hope that the justices are aware of and paying attention to what's happened over the last few weeks and recognize that now may not be the moment to say government can do whatever they want to transgender people, that that comes with real risks at this moment.

0:26:27 Thomas: I'm remembering now this was the oral arguments where gorsuch didn't even say anything right he just was like silent that was weird okay

0:26:32 Katie: Is correct. Yeah. No, and I've heard speculation that looking back at past cases, that tends to be his practice when he has his mind made up. But which way does he have his mind mad up is what we all want to know. No, he

0:26:47 Matt: Several years ahead of Bostock, right, you wrote that essentially no honest textualist could possibly find that Title VII for employment discrimination wouldn't cover lgbtq people and that is exactly how justice came down on bostock um I mean he is he can be an honest textualist he's possibly certainly capable of it and

0:27:04 Katie: Is capable of it. And, you know, if you if you look at his academic writings, which I know most of your listeners probably have no occasion to do, but really does take seriously or does believe in the idea that the same legal standards should apply to everyone, that everybody should get the equal benefit of the law. Law. I think if you take that seriously here, it's very hard to make the argument that some type of higher level of scrutiny shouldn't be applied. I could be wrong, but I'm holding out faith.

0:27:36 Matt: We listened in on the scrimmety arguments and talked about them and our analysis at the time was that this case is dead simple like it's about as easy as an equal protection case gets is that your read to right

0:27:46 Katie: No, I mean, this is a case where if the court rules against heightened scrutiny, they would be getting an F on their law school final, right? It's just like the basic black letter law is all you have to apply to say heightened scrutiny applies here.

0:28:04 Matt: Yeah you're denying treatment to uh minors of certain genders uh that you would give to others just because you don't think they should get it, right? And that's what it comes down to, yeah.

0:28:13 Katie: Right, and this court has already said that sex discrimination gets heightened scrutiny, so this should be a simple question.

0:28:19 Matt: Yet somehow oral arguments were, what, 90 minutes? It just took forever. Know, as you noted, though, this is sort of, it's new that we're federalizing this and that we'RE going to get more federal rules on it. This has been a state battle for many, many years and something, obviously, you've been tracking closely. And I was really encouraged by an article you wrote a couple of years ago in UPenn Law Review, which we'll link to, about the many wins that have come throughout the course of your career and the time you've been tracking this. Guess I'd like to hear more about, maybe give us a general analysis of that.

0:28:46 Katie: So, you as I alluded to earlier, we saw a real shift about 15 years ago where the lower courts, which decide to be clear most of these cases, or certainly were up until this point, really started to take the claims of transgender litigants much more seriously. And we were seeing lots and lots of opinions across the country constitutionally invalidating anti -trans practices of various kinds, both those set out and state law and those that were just sort of de facto practices. Of the things that was most striking to me about that trend was that it wasn't just, you know, Democrat appointed judges. You also were seeing lots of Republican appointed judges that could see the constitutional problems with these laws. The trial judge in Scrimeti is actually a great example of that. You know, he was appointed by President Trump, and yet he took a look at this law and said there is just no justification for what the state has done here. Know, I will say that that piece gives a very rosy account. It sort of barely predates a hard turn in a couple of the circuits.

0:29:51 Katie: So things have gotten less optimistic since then. But it is still true that there are many courts across the country for whom, as we alluded to earlier, this just is is not a hard question. They're able to see why these laws need a higher level of scrutiny and why they are problematic. Yeah,

0:30:07 Matt: You did a comprehensive review more recently in the Vanderbilt Law Review with about the sort of recent anti -trans constitutional law issues. I was struck by the you're that arguing you're that this could go far beyond. And a lot of unintended consequences. I'd want to hear more about that.

0:30:23 Katie: So just to give a little bit of backdrop for your listeners here, this is a type of litigation. This is litigation by conservative litigators who are claiming that the Constitution bars governments from taking trans -inclusive or trans -egalitarian positions. The types of arguments we're talking about here are like First Amendment claims that people have a right to discriminate, claims under the Religious Freedom Restoration Act that they have a religious right to discriminate, or claims by parents that their parental rights under the Constitution mean that schools can't affirm children's trans identity.

0:30:59 Thomas: It doesn't mean that they can't get trans health care for their children if they want if they happen to be the other persuasion

0:31:05 Katie: That's right. I mean, that is one of the things that is so interesting about the parental rights arguments is that they cut both ways, right? Parental rights arguments that are dear to the right and parental rights agreements that are near to the left. And I actually suspect that's why the Supreme Court didn't want to touch the issue in Scrametti. It was an issue in the case and they refused to take it. So, you at these cases, the ones that were really the most troubling to me, there was sort of settlement a many years ago in the courts that resolved that anti -discrimination law, even though it does to some extent regulate what you could think of as expressive conduct, right? Discrimination is expressive, that it nonetheless wasn't the type of expressive conduct or expression that the First Amendment protects. That was all litigated back when, you know, we got our first race discrimination laws and the Civil Rights Act of 1964. It was subsequently, you know, the court refused to take that issue up in the context of sexual harassment. So it's a well vetted issue, but that we're now in the transgender rights context, seeing the lower courts start to chip away at in ways that are really troubling, both obviously for the folks and transgender legal protections, but in ways that would have implications for all of anti -discrimination law. So race, sex, disability, and the like. The premise that people might have a constitutional right to discriminate really undermines the foundations of anti discrimination law.

0:32:32 Thomas: Don't think it would undermine yeah a whole lot of things like you mentioned I mean what stops that where does that logic end sorry

0:32:38 Katie: Mean, for anti discrimination law, it ends with anti discrimination laws being unenforceable and unconstitutional, right? Because anybody who discriminates can claim it was expressive. For anti discrimination law, it ends poorly. Also, it's actually actually emblematic of a broader trend we've seen of sort of speech absolutists going after things like the idea that securities law can prohibit false statements, right? You know? So, just all sorts of really off -the -wall arguments that even a decade ago, the courts really would not have taken seriously. Ah,

0:33:13 Thomas: This is very dire I don'T know if it's a feature or a bug I mean it's the kind of thing that you want to use as a gotcha like oh yeah this lot by this logic we ain't even have like the civil rights act but I DON'T know know if they're gonna be like, yeah, or if they, you know, I don't know, uh,

0:33:27 Katie: I mean, no. And I think there's no doubt. And in fact, if you look at some of these cases, some of the cases do involve race. So some of them involved both transgender rights and other protected classes. And they do want to stop people from being able to address race discrimination as well. Right. Right. That's not the first most obvious frontier because they know it's it's the one where they'll get the most pushback. Many of those advocates are opposed to anti -discrimination law in general, and they view it as a violation of free expression in general.

0:33:58 Matt: You were just mentioning the people bringing these claims. I wanted to ask about who these advocates are, because, you know, you mentioned in your writing that these very speculative claims. As we know, of course, we had to have a plaintiff that pretended that they wanted to make a website to get to the Supreme Court. You're talking about sort of these religious foundations that have these very speculative plans. Like, how do you even have standing to get in front of the court on something like this? And

0:34:10 Thomas: My favorite make it up

0:34:17 Katie: Sometimes sometimes make it up. And course, you're referring to the 303 Creative case where there really wasn't a live controversy there. Will say many of these cases actually do involve live controversies. They involve things like, you teachers who want to be able to misgender their students or parents who are worried that their kid might go to school and express a trans identity and that the school might be supportive of that. Know, so the organizations litigating these cases, often they do have plaintiffs who they can select and bring into court. If But you look sort of behind the face of who the parties are in the caption, what you see is again and again, the same organizations litdigating these these cases. So it's organizations like the Alliance Defending Freedom, like the Beckett Fund. What, as far as I can tell, is kind of a made-up organization called Students and Parents for Privacy, that the only thing they do is go around bringing lawsuits against transgender inclusion in schools. There are often sort of repeat players that are bringing these cases? Is?

0:35:20 Matt: Who's paying for this?

0:35:21 Katie: A good question. I know that the of these organizations have a lot of funding. I can't claim I've done a deep dive into where it comes from.

0:35:28 Matt: Just curious.

0:35:29 Katie: But, you certainly know that they are often much better funded than, for example, the ACLU, which is trying to do the work on the other side.

0:35:37 Matt: Sure. You wrote in that Vanderbilt piece that some of these recent rulings, the anti -trans constitutional law context here, that they're canary in the coal mine for those who care about anti -discrimination law at all. And you said it suggests a potential very dark future. And I think this was published before the election. Is that right?

0:35:54 Katie: Is correct.

0:35:54 Matt: So how are we feeling about that after these executive orders and sort of the change in Congress?

0:35:59 Katie: Well, so I mean, we're not feeling great. I'll start aren't there.

0:35:59 Thomas: Softball for you there well

0:36:05 Katie: Although I will say that the issue I was writing about there was a little bit different and more of a risk from the courts than from the executive or the legislature. Really about whether the constitutional foundations for anti -discrimination law will exist at all.

0:36:21 Matt: Right. Well, that's my concern is that the courts are the only thing that are going to hold if we're continuing on this path.

0:36:27 Katie: No. And I think the news is thus far, they do appear to be mostly doing their job and calling out these executive orders for what they are an array of different areas, right? It's not just transgender rights. But that will continue as we move up into the circuits and ultimately to the Supreme Court is the dollar question.

0:36:48 Matt: Sure. Sure. And we know, of course, because they've told us directly that on all of these issues, including immigration, immigration, which is my particular issue, that they're trying to overwhelm us. Like they've, they've taught us that pretty directly. And, you know, I could get that sense that first week after all those orders came down that people thought they really meant something. Thing. And I'm just wondering, of the ones that we have so far on these issues, what should we be concerned about? What might actually survive a challenge?

0:37:11 Katie: Well, let me break that question into two and and actually answer a slightly different question than the one you asked. So what should we be concerned about? The biggest thing, honestly, that I'm concerned about is not that the orders will ultimately survive a challenge, but the harm they're going to do in the meantime. We've already seen preemptive compliance from a number of different healthcare institutions. We've seen the NCAA changing their policy preemptively in response. I think we're going see a lot more Because the reality is that the Trump administration is basically threatening all these organizations with the equivalent of a nuclear bomb, which is a federal funding cutoff. And people believe that they're crazy enough to do it. Right. Even if it's unlawful, even if het doesn't have authority behind it, we're going to see some number of entities that aren't going to take that risk. You have to say of the orders that I've looked at, there's none of them that I think are ultimately likely to be affirmed in the courts, right? It's a little a hard to tell because many of them are poorly written and ambiguous, sort of like you have to construct your opponent's argument before you can really actually respond to it. But I'll say that's my biggest concern, really, is that mere threat may cause real harm until we get past this to the other side.

0:38:31 Thomas: I think we can't discount how much um might also be that these folks have wanted to do this it's not like they're being threatened like they actually want to be discriminatory and we're just being held back by I don't know I guess the the idea that we had made progress in society yeah

0:38:46 Katie: No, I think that's absolutely right. I mean, for example, the NCAA is a great example. I think they were just looking for an excuse.

0:38:52 Thomas: Because I think the lpga also uh trans competitors before um executive orders I think it might have been I can't remember the exact timing but it was definitely before executive orders might have Been even before the election but it might have been after just giving that license to like oh okay well I guess our side has more support now in their mind yeah

0:39:09 Katie: Think that'S absolutely right, right? Right. Some of the compliance is going to be people who are afraid and some of the compliance is gonna be people who wanted to do this all along. I think that's absolutely right. That, And again, is to me sort of the most troubling aspect is both, you know the compliance aspect, whether or not they're lawful, but also how this enables, quite frankly, hatred against transgender people. I mean, the language and a lot of these executive orders is quite explicitly animus based. And I do think that that really sort of enables folks who were feeling that way anyway to feel like their views are valid.

0:39:42 Matt: It's shockingly transphobic, even for what we expected, I think. So do you have any favorites? I guess you mentioned the, been commenting on this too, about how poorly written these orders are. Is there anything you want to call out in particular for bad writing?

0:39:54 Katie: Well, there's a place in the initial executive order where I think they're trying to reference Title IX, but they actually talk about the Civil Rights Act of 1964. So that's just kind of like a legal joke for those of us who know that Title IX was not in the Civil rights Act of 64. 1964. all filled with lots of vague language. And again, I think it's purposeful. I think it is the sort of like, make it so people don't even really fully understand what you're saying as cover for doing a wide array of possible things. I think that's, may it be strategic.

0:40:28 Matt: Mean, at some point they're gonna have to stand in front of a federal judge and tell them what they're saying. I guess they're ready for that too, maybe, but

0:40:33 Katie: Although it's interesting, one of the strategies we saw from the first Trump administration was exactly this type of poorly written, you when they got before the courts. So they could say it doesn't mean something this extreme when they're before a court, but then they'd be saying in the media, it does mean this. Know, we saw that with the sanctuary cities order. I wouldn't be surprised if we see a similar dynamic with some of these orders as well.

0:40:58 Matt: Of course, famously in one of these orders, they are essentially telling the federal government to ignore Bostock, which I don't think we really need to debate the legality of that. But what's going on there? What is the point of that?

0:41:09 Thomas: You tell us how, explain how, what that's doing or what?

0:41:11 Katie: The order, right, talking here about the, I can't even say the title because it's horrible, right? But you're taking about the initial order that came out. Obviously that's not lawful. They don't have the authority to overturn the Supreme Court. I think what what they're doing is, you simply putting out there what they wish was the law.

0:41:17 Matt: It's horrible. Yeah, of course.

0:41:35 Katie: And, Know, the distressing part is that, presumably, that will have some impacts, even though can't they reverse a Supreme Court opinion. Other things, they are actively taking down all of the Bostock -based guidance from all of The Civil Rights Agencies. So, you that can have an impact, even if you don't have the legal authority to do it. Does mean that, for example, employers aren't going to find guidance when they go to the EUC on what they should be doing to be non -discriminatory employers. The same is true for the Department of Education and Title IX. The reality is that that of thing can make a difference, even though they don't actually have the illegal authority to overturn the decision.

0:42:16 Matt: As you said, a lot of it is just the damage that's going to be done in the meantime. This is going to end up back in front of the Supreme Court, inevitably, right? We're going to have fallout from this pretty quickly. What's the plan here? What do you think they are trying to re -litigate, or what do you Think they might think they can do differently this time?

0:42:30 Katie: A good question, right? Because in terms of Bostock, you know, the, assuming that the three liberals on the court were to side with the original outcome, which seems likely, we still have Justice Roberts and Justice Gorsuch on the Court. So the court composition hasn't changed enough for them to believe that there's a new, you composition. Don't know if they have some insider information that one of the justices may be willing to peel off and reconsider this. I don't know if they're setting the stage for trying to limit Bostock just to Title VII. That's another thing that they could be. Certainly a project they've been working on and that they did get some traction on in the lower courts.

0:43:09 Thomas: You Explain what that would look like? I don't totally know what that means.

0:43:13 Katie: So Bostock's logic basically said, that you discrimination because of sex necessarily includes discrimination because of sexual orientation and gender identity, because you can't discriminate on the basis of sexual orientation or gender identity without also discriminating on the bases of sex, right? It's just not possible. You're always treating the person differently based on their sex assigned at birth, right? The simple, basic, baseline sex assigned at birth.

0:43:40 Thomas: You would need to know what gender they are in order to be a bigot. Like, they'd have to tell you.

0:43:45 Katie: Exactly right. Right. You can't be a bigot on these grounds without treating somebody differently based on their sex, right. It's, you know, you wouldn't care if the trans woman was wearing a skirt if she was assigned female at birth right that simple.

0:43:49 Thomas: Wait, did that cover trans people, though? Or are you saying, because that was, I thought that was. Oh, oh, okay.

0:44:02 Katie: Bostock covered trans people. Absolutely.

0:44:04 Thomas: I gotcha.

0:44:04 Katie: It covered as both sexual orientation and gender identity. So it was a a major decision for both groups. What we've seen is even though laws like Title IX have almost identical wording, so it says on the basis of sex, which means exactly the same thing as because of sex. We've seen, you on right who oppose Bostock trying to argue that Bostoc is limited to its context. But that's not usually the way the law works, right? Usually if a phrase means one thing under one statute, unless there's a reason for thinking it means something different under a different statute, we treat it as meaning the same thing.

0:44:42 Matt: That was only five or six years ago that Neil Gorsuch that said this is what it means. I can't imagine him changing his mind, I guess.

0:44:42 Thomas: You would think, yeah. I

0:44:48 Matt: It doesn't seem like the type, but

0:44:48 Thomas: Don't know. I think we're going to get a, Bostock was wrongly decided from the start. I feel like we're gonna get that from somebody.

0:44:53 Katie: Yeah. Well, I'm sure there's justices on the court who believe that. I have to be honest, I don't think it would be Gorsuch who would peel off if anybody would. I'm more worried about the a chief.

0:45:04 Matt: That's my thinking. Sure, sure.

0:45:06 Thomas: They're really trying to make that split. Okay, all so right. So which things like in but if you don't mind in everyday life terms, like which things are protected by what the title seven versus what was The Other Thing? Sorry,

0:45:15 Katie: IX, yes, sure. So Title is employment. So it's a big deal. I mean, it really is a big detail. And I can say this as somebody who represented LGBT people in the dark years. Sorts of abuse, all sorts of really serious problems with pervasive employment discrimination, especially against transgender people. Even if Bostock is limited to the context of employment, it is still a very big deal. As was discussing, there are lots of other laws that this same logic should apply to. So Title IX is education, and it matters a lot there too, right? Kids have, they experience a lot of harassment, a lot of discrimination in the schools. And even before Bostock, a lot of the lower courts had said Title IX applies to that. If if they are successful in getting, you know, ultimately the Supreme Court to say something different, that would matter to a lot of kids across the country.

0:46:08 Matt: About the fights continuing at the state level, is there anything we should be watching there?

0:46:12 Katie: Much going on at the state level that it's hard to keep track of it all. I am certainly focused on, you things like continuing expansion of bans on transgender people presenting in their gender gender identity appropriate way, whether that's kids in schools or teachers in the classroom. You know, those laws have been enacted in various places across the country. Of the most bananas laws I've seen in this area have involved state laws that say they won't contract with companies that advocate for transgender rights. Know so sort of trying to bully civil society into backing off of these issues.

0:46:51 Matt: That's just a clear First Amendment problem. How could that be anything else?

0:46:53 Katie: You would think that is a clear First Amendment problem, yes. In that bucket are the book bans, right? There have been a lot of books banned across the United from public school libraries.

0:47:05 Thomas: Know. Sorry. A lot of how the civil rights stuff happen, isn't it by threatening to withhold like federal funding if people discriminate? Discriminate is that just the same thing in the reverse or is there a different mechanism you're talking about there when the one you just mentioned with the refusing to contract with people thing

0:47:20 Katie: So correct. Right. It's not quite the same framework because it's not like going to give you a grant, but you have to agree to this condition, which is usually the form that federal anti -discrimination laws take. Is instead just saying for the purposes of our as an entity that, has you lots of contracts, which all governments do, we're not going to contract with private entities that advocate for this.

0:47:43 Thomas: Does make sense there's a difference they

0:47:45 Matt: How is that any different from refusing to contract with companies that have made a point of saying that Black Black Lives Matter, anything else? How could they possibly get there?

0:47:53 Thomas: Will though they like they want to do that matt sorry

0:47:54 Katie: I don't think it is. Right?

0:47:56 Matt: Just checking. Yeah, sure. No, it's just, I hadn't heard about this. Wow.

0:47:59 Katie: No. And it seem to me like it's to going be assessed as pretty clear viewpoint discrimination, are some exceptions for under the First Amendment, where the government is, say, for example, giving out grants where they necessarily need to pick So like the NEA, right, they have more leeway to set those types of criteria. Just for general government contract making, this seems like just very clear viewpoint discrimination of a kind that any court should find invalid.

0:48:28 Matt: No doubt. There any particular cases that you're watching right now that could make a difference somewhere?

0:48:32 Katie: So in terms of cases I'm watching, Skirmettia is obviously at the top of the list, right? It really will, at a minimum, set the tone for how the lower courts are approaching all of these other issues that they're going to be addressing. In addition to that, I'm curious to see what will happen. We've got a bunch of cases that are actually pending review the Supreme Court, both from advocates of transgender rights and from opponents of transgender rates. You how, whether any of those cases is picked up, how they're addressed on Mermand, if they're held for Scarametti. Then finally, obviously, all of the litigation that's coming out of the executive orders, still you very much in the early stages, but the that's other area that I'm really watching.

0:49:12 Matt: You think there's anything that the media is not catching or covering right now in all of this? There's so much to look at.

0:49:17 Katie: I'll say definitely there's parts of this that aren't getting widely reported in the media. Are a few sort of niche journalists that have been really doing doing their best to cover the whole scope. But there's a lot going on and not all of it is making its way into the mainstream media. Main thing that I know if it's that the media isn't covering it well or if it is just that people aren't paying attention, but that I often find is that it seems as if there is a lot of misinformation about what the alternatives are to these really draconian laws in ways that cause even some liberals to mistakenly think that that they are more sympathetic to them than they should be. To me, athletics is really the best example of this. Seem to think that the alternative to things like the executive order that we just saw is just wide open participation. Of course, that's not the case at all, nuanced, right? Careful consideration, sport by sport, which is actually write what most actually want to see. That's the piece that I feel like is somehow getting lost in translation. I the same is true for healthcare for minors, that people don't understand that is not simply people walking into clinics and getting free hormones.

0:50:26 Thomas: It's so hard to get the, I'm so sorry. This is hobby, two exact hobby horses of mine. It's so frustrating. I try to get word out on this, but you know, it's bad when people are like, no, this is so bad. We need it to be this way instead. And you're like, that'S the way it already was. That's a sign that something is wrong.

0:50:45 Thomas: New York Times, who's enabled so much of this, had the gall the other day to be like, whoa, whoa guys, time out. We need to talk about the transphobia of the Trump administration. You're like, come on, it's the hotdog suit. You are in the hotdog suite.

0:50:53 Katie: I know. Know, although I will say I am glad that at least belatedly they are getting on board, right?

0:51:03 Thomas: Fair. Sure.

0:51:06 Katie: I think they actually recently let go the person who had done the worst reporting on that, agree. But I mean, I there definitely some blame to be laid at feet of organizations like the New York Times, which have, essentially given credibility to conspiracy theories about how all of this is operating.

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0:53:01 Matt: Haven't talked about the legislative branch yet. I wanted to ask because it does seem like these things are, It's just my impression, just as somebody watching these issues from a distance, it seems like these things are being federalized a lot more than they were just a year or two ago. And now, of course, we have a Republican Congress, and they're taking up something like 12 to 18 new anti -trans bills, potentially, just so far. There anything we should be watching there? Anything that's particularly concerning?

0:53:23 Katie: I mean, I that it is absolutely right that this actually is the biggest legal concern, right? President Trump can issue executive orders all day long, but they don't necessarily have the force of law. He does, right, and he does, Without a statute behind it, there's a lot of this stuff he simply can't do. He doesn't have the authority to do, but Congress does have the authority, to change the law, to federalize what has until recently been a regional set of attacks on transgender rights. That And is deeply concerning. And we can we look at, the you House was trying to do even before this election to see where they are likely to go. And it really is moving a lot of these state initiatives, the very same things we've seen pass at the state level up into federal law. No,

0:53:33 Thomas: And he does.

0:54:09 Matt: Know that we have a lot of allies listening to this show and we have a lot trans listeners and LGBTQ listeners. And I've been wondering, you Scrimmity comes down the way that we think it does, how could it be limited and how could we get some hope out of whatever's coming next?

0:54:24 Katie: A really excellent question. And it's honestly one I've been thinking a lot about. And for me, because I study history, the moment that comes to mind is Bowers versus Hardwick in 1986. 1886. So for those listeners who don't know what this case is, was it the Supreme Court's sort of first statement major on gay rights. And not only did they say gay people don't have rights under the Constitution, but they said it in a really offensive term. So at one point, they remarked that the idea that gays and lesbians might have families and intimacy is at best facetious, Right. So just really demeaning language. Is also at the height of the AIDS crisis. So people are dying. It was a really very dark time. Yet less than 20 years later, that case was overturned in And then less than 10 years after that, we got or 10 years years after that, we got marriage equality. The lesson there, right, is that even this is the worst, even ifthis is really dark, that there are going to continue to be opportunities to persuade people to move the law. I do have faith that although we are in dark times right now, evenif we get the worst decision from the Supreme Court, that the ultimate trajectory on on this will be towards equality and inclusion and people seeing that, the basic humanity of their transgender friends, neighbors, children, and so on.

0:55:47 Matt: I really appreciate that. That actually, the long view there of seeing Scrimeti as the future Bowers v. Hardwick, that I hadn't really thought about that, but Hoping hoping someday that in the Very Near Future that we'll have that be as reviled as Bowers v. Hardwick now is. And with that kind of antiquated language and everything else, that's a really good thought. Mean, we need progress faster than that, obviously, but it is, it's really important to remember the long few here. Here. I guess I just, I want to try to keep it as positive as we can here. And I'm just wondering, and maybe this is a little beyond what we're talking about today, but you if have thoughts about what we can all do as allies, as I know that so many listening are, to protect the legal rights, and then the dignity of the people around us, of our queer and trans friends and neighbors, just every day, because this is the time I think that it seems like we need to do that more than ever.

0:56:27 Katie: Absolutely. And I'll say as somebody who not only teaches and works on these issues, but also has a bunch of young people that I'm in contact with, right, as a professor, this has very much been on my mind. And do think that just, you things like reaching out to the trans people in your life, if you're somebody who is fortunate enough to have contact with trans young people, making space for them to express their concerns and feel supported and heard, making sure that, you people are saying bigoted things or misgendering people, that it's not the trans person in the room who has to call it out. Like all of those are small things, but I do think they make a difference. I think it really does make a different if people see they have allies, if they see that they are not alone in, you of this terrible legislation, but really have people who are fighting for them and who support them. I

0:57:18 Thomas: To know where, do you get your optimism? I don't know. Cause I just, even in speaking with you for the first like two minutes, I already just felt happier and more positive and I don't, where, do you bottle and sell that somehow?

0:57:33 Katie: Would like to. I mean, I have to say it's hard for me to imagine doing what I do without it. You know, it is what allows me to, you something goes wrong, when there's a bad decision, I just pick myself back up and I think, but there's a better argument, we can throw back at them and we'll get there. Me, that's the privilege of being a lawyer is getting to dream up those arguments and hope for a better future.

0:57:58 Matt: I love that. That's, felt the same way my entire career too. And it's really good to hear. And your perspective today has been so helpful.

0:58:03 Katie: You. I It's been a real pleasure chatting with both of you.

0:58:07 Thomas: There any place you want to send our listeners?

0:58:09 Katie: Yes. So will suggest for reporting, Erin in the Mourn is a wonderful source for tracking tracking, all of the developments on this issue. Excellent trans reporter who has been covering all these issues in depth. I'm supposed to give my own stuff.

0:58:23 Thomas: That is such a nice use of your, you are like shouting out someone else to go follow. Yeah.

0:58:30 Thomas: I mean, you could, you, you can, you You can do whatever you want.

0:58:33 Katie: Me too. I mean, Blue Sky. Is my name. So easy to find. And I do try to do sort accessible explainers on, you know, major legal decisions and things like that. So that's people if want to follow me there. Of my academic work is available on a public website called SSRN. Write about a lot about trans issues, but also about other things like disability law. And yeah, I that this conversation has been useful to some of your listeners.

0:58:56 Thomas: Fantastic. Absolutely. I'm going to follow you on Blue Sky right now. I'm glad we're all getting on that. That's nice. Thank you so much for your time today. We really appreciate it.

0:59:01 Matt: Me, for sure. Yeah, is great.

0:59:09 Katie: It's really been my pleasure.

0:59:10 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.