This is Bloomberg Law with June Brasso from Bloomberg Radio. At the heart of this case is Drew, who testified a trial that he knows with every fiber of his being that he is a boy. Drew Adams, a transgender high school student, suit his Florida school district in seventeen
because he wasn't allowed to use the boy's bathroom. His attorney, Terra Borrelly, argued that the school's mandate that Adams used the girl's bathroom or a gender neutral bathroom violated the Constitution's guarantee of equal protection as well as his rights under Title nine, the law barring sex discrimination by educational institutions. The line that we're challenging here is not the one that separates boys and girls under either claim. That's not
the line being challenged. The line being challenged is the one that the school board has drawn around every transgender student and only transgender students, and has said not you, you shall not pass. We will padlock the restroom doors to you. You're not fit to share that space with your peers, and your mere presence in that space is unacceptable.
But the full Eleventh Circuit Court of Appeals in a sharply divided opinion ruled that the school district's policy of separating school bathrooms based on biological sex is constitutional because it advances a governmental objective of protecting students privacy. Joining me is Noah van Asher, a professor at the Elizabeth Holps School of Law at Pace University. No, what's your reaction to this divided seven to four decision. I am
angry this boy. I mean, if you read this case, it's just heartbreaking because this is a case about a particular boy who comes out as a boy right before puberty and wants to use the bathroom. He's not bothering anyone. His friends accept him, his teachers accept him, they used
the correct gender pronouns. But for some reasons the school besides that he cannot use the bathroom, he and maybe four other students out of two thousands, cannot use the bathroom of their gender identity because someone, some anonymous person might be offended. That's how wrong this decision is. In all respect to the majority opinion rely heavily on privacy concerns.
So the decision legally is talking about the ego protection clause and specifically about the idea of having different bathrooms for boys and for girls, and for that purpose, the court relies heavily on a legitimate state interests of privacy. So in terms of the logic of the court, the court is talking about privacy. Now, the court said that the bathroom policy didn't violate the law because it's based
on biological sex, not gender identity. Quote. A policy can lawfully classify on the basis of biological sex without unlawfully discriminating on the basis of transgender their status. Will you explain that difference, I would say, if we were to summarize, the main problem with this decision is that particular definition of biological sex which it relies on and is just incorrect in terms of the medical science and expertise that
is out there. The way that the school policy defines biological sex is basically about chromosomal sexts and about the shape of the genitals as a doctor at birth assigned it.
That's the school's definition. Now, when we go to the actual evidence that the district court had in front of it, it talked to a lot of experts who testify that as of today, that is simply not the medical definition of facts, which today includes many factors some of which are chromosomal sects, shape of genitals at birth, or internal organs.
But most importantly, gender identity has been left out of the definition of biological sex as used by the county, and that is what this whole case really turns off. So the question is really what the definition of biological sex is. The question is even the term itself biological sext as is used, it no longer uses that way by most prevalent medical experts. So what the district did here is it took a definition of biological sex that
it is very narrow and also simply incorrect. And how we understand predictors of sexts today Because just to be clear, when a baby is born, nobody gives them chromosomal test. What happens at the hospital. This is what happened with this Clint Stiff as well. Is the doctor looks at the genitals and says, oh, this is a girl or this is a boy. In many cases, this is not going to be the development. And even if it is, there are other components that are just not part of
that initial definition. So the correct way to talk about it today, according to the medical experts, that has been followed by many courts is to talk about sex assigned at birth. So you see there's a difference between talking about biological sex versus talking about sex assigns at birth. This was a ruling down ideological lines, seven to four, with judges appointed by Republican presidents in the majority and judges appointed by Democratic presidents in the minority. Why is
this an ideological dividing line? This issue is, as I've written about and many others have noted, is one of the hottest topics right now in the divide that we sometimes called culture wars, and obviously one of them is abortion what happened in the Dob's decision, But transgender identities and rights have been an issue in the last least five years, released since Alburger, phil since the rights of same sex marriage, and so it is no surprise at
all that the divide here in the eleventh Circuit is along ideological line. And I just want to go back to the medical understanding of sex of biological sects. And I'm going to quote here from the dissenting opinion, quoting the medical expert testifying. So this ideological divide that you and I are just talking about, it's really about what
sex means what do we mean when we say sex. So, medical experts today and I'm quoting, recognize that a person's sex is comprised of a number of components, including chromosomal sects, go natal sex, fetal hormonal sex, internal morphologic sex, external morphologic sex, hypostalmic sext puretal hormonal sex, neurological sex, and gender identity. Enroll. That's the current medical definition of sex.
The Republican nominees and many conservatives just do not agree with this definition of sex, so they come up with policies that narrow it substantially, such that a transgender boy such as this plaintiff is excluded from using the boys back Circuit decisions creates a split with the Fourth and Seventh Circuits, which both rule that transgender students can use
bathrooms that match their gender identities. So the Fourth Circuit, in a famous case that almost was heard by the Supreme Court, but the Supreme Court ended up de nying hearing went the opposite direction and definitely held that gender identity and again this is the key. Is gender identity part of our understanding of the human being? And if so,
how important it is? And the Fourth Circuit went with the plaintiff they're another transgender boy, and said that his gender identity is critical and the school must allow access to the bathroom that follows his gender identity. So that happened at the Fourth Circuit. We also have a decision like that in the Seventh Circuits where similar challenge on
a coal protection and ninth Title nine grounds. And I want to say that these decisions all turn on the definition of what we mean by sex and how we're going to cabin the idea of of sex biological sex versus gender identity. Do we include gender identity in the definition of sex or do we exclude it and say there is biological sex and then their gender identity. So might the Supreme Court intervened to resolve that split. It's hard to predict here. It is a question of whether
this Court has an appetite for this particular case. Given its record from the last sitting, it seems that this Court is willing to go all in and make this very politically oriented decisions. So I wouldn't be surprised if the Court takes this circuit split and goes with the Eleventh Circuits. But I just wanted to emphasize that in
the Title nine domain. This particular case in the Eleventh Circuit is an outlier and does not reflect for district courts are in most of the country and circuit courts are. Is the Supreme Court's ruling in the boss Dot case that Title nine protects l g B T workers is that persuasive here? Although that was when Justice Ruth Bader Ginsburg was still on the Court, and it's a very
different court now. Bostock was decided on Title seven grounds, which is an employment context and not in the school context, so it's it's a different statutory grounding. And Justice Gore such writing the decision for the majority specifically never talks about gender identity, so he rules in favor of the transgender plaintiff without talking about gender identity, but relying again folding back on the idea of biological sex. And so Bostock did not help put the plaintiff make his claim
regarding Title mind and the equal protection clause. It's going to be hard to predict based on boss Stock, especially the equal protection case regarding Title nine. I would say that, you know, we could lead to a similar kind of textual reading of what the congressmant in nineties seven to two guarding Title nine what's sex needs. But even there, you know, just the score such ended up in favor
of the transgender plaintiff. So I would say that we cannot predict how the Supreme Court will decide this case. In line of this decision, one Florida school district, Pasco County, has already changed its rules to require students to use restrooms based on their sex assigned at birth. So can we expect some far ranging consequences of this decision? Absolutely definitely from now on in Florida, Alabama, and Georgia school boards.
School districts can just decide to use this incorrect category of biological sex that doesn't rely on any medical line, and use it to deny access to transgender students to bathrooms. And that, according to this particular decision, which is why it's so harmful, is not in violation of the protection clause and not in violation of Title mine. So these three states will now be able to do that. Will they all do that in all districts? Probably not so,
even in the eleventh circuits. Some school districts have other policies that are more inclusive towards transgender students. The divide right now. I don't think is necessarily by state, but we have states like in Texas and Florida where we have other legislation that is very anti trans specifically around preventing care for trans youth, and Texas to course, the more conservative leaning states have other policies in place to
discriminate against transgender students. There's so much to talk about here. Do you have any closing thoughts for us? Well, I just want to clarify that the main things that I think went wrong in this decision are too right. The first is that it really turns on this kind of public debate that is happening now in the courts and in Congress in a different levels around what transgender means and if transgender is real, right, it's gender identity is
real or not? So in many ways, this decision, when we read the descent, when we read the majority, is really that debate about what gender means, the gender mean what we are at birth, or does gender mean other things but sex and gender? So I feel like we we must understand that this is what's at stake, and as you said earlier, it is an ideological question. Right, we can turn to science and we can have medical experts testify, and they have been, and they have been
testifying in favor of the transgender plaintiffs. So this is this is number one in the debate. And another important thing that I really want to clarify is that turning this decision, as the majority did, into a debate about whether sex segregated bathrooms are legitimate or not is not the question. So the court averts the questions of excluding transgender students in favor of a different question that whatether raised by the clienttiffs, which is is it okay to
have boys rooms and girls rooms? Right? And so those two misconcepts shows, I think lead to this decision that seems highly ideological because it is that's Noah ben Asher, a professor at the Elizabeth Hope School of Law at Pace University. Republican attorneys general jointly challenging the Biden administration
have found their preferred venue. Nine of the forty five multi state Republican lawsuits against the Biden administration have been heard in the U. S. District Court for the Western District of Louisiana, which stretches from the Arkansas state line down to the Gulf of Mexico, and within that district, they found an ideal judge in a rural farming parish of less than fifty thousand people, best known for its proximity to the Duck Dynasty reality TV show family Joining
me as Madison Alder Bloomberg Law reporter mass and we've seen that Texas has been a preferred venue for Republican attorney generals to sue in. But tell us what this b Law and Now list has found. So we looked at the data set by a Marquette University political science Profesptor Paul Nolt, and we dove into this data and found that the Western District of Louisiana has kind of emerged as a preferred venue for Republican attorneys general when
they're filing a lawsuit together against the Bide administration. There's a district judge in the Western District of Louisiana, and Republican attorneys general have been trying to get him to hear their suits. So within those the lawsuits that we found that are going to the Western District of Louisiana, there is one judge who has heard more of those cases than any other judge in the district than any other judge in the country, and that's Judge Terry Doughty.
He's based in Monroe. He has heard five of these cases so far, and Republicans seemed to kind of find him by accidents, but then returned to him time and time again after he gave them a favorable ruling. And you know, he has definitely become frequent target for for this tex logation. He's given nationwide injunctions in some pretty big cases. Tell us about some of the bigger cases
that he's been involved in. So the first case was a case involving um oil and gas weeping on federal lands, and that one was in the summer of that one was initially filed in Lake Child's division, where he only gets ten percent of the cases, So it was a little bit by chance that they got him, but he gave the Attorney General that filed that lawsuit is favorable ruling. And then they returned to him again for a case fighting Biden COVID nineteen vaccine mandates for healthcare workers and
had start teachers. And they've filed in the Monroe division, where he's gotten anywhere between eighty percent of the cases to a percent of the case, says several times after that. How do the district courts decide who gets what case? How do they divvy them up? Is it the same for all are different, So it's different, and courts have a lot of ability to how they assigned cases. Sometimes
it's more transparent than others. In these courts that happens to be pretty transparent, they post their case assignment orders online. Oftentimes you know they'll they'll break it down by division or judge, and they'll be percentages assigned to those judges in those divisions, which are based on geography, and that's kind of what determines what cases go to which judges.
So in a small division Monroe, for example, um is one of these small divisions, there might only be two judges hearing the majority of the cases, and the percentages could could vary between, you know, one judge and for another judge, or for one judge for another judge, So people filing lawsuits and the divisions can have a degree of certainty about who the judge they're going to get.
This one of the important things in getting a judge in Louisiana or Texas is that it goes to the Fifth Circuit Court of Appeals which is one of the most is not the most conservative circuits in the country, right, and that that definitely adds to the appeal of um pardon my pun, the musual of any court in the Fifth Circuit. Um. If you file at a district court that is in the Fifth Circuit, that would be appealed
to the Fifth Circuit. And the Fifth Circuit, as you said, is um is known as one of the most conservative circuit courts in the country. Um. And that, combined with the fact that there is a conservative majority on the Supreme Court right now, gives Republicans um the best shot that they've had in a long time at at getting a favorable ruling all the way up the ladder. Have any of Judge Doty's decisions gone to the Fifth Circuit
and then been reviewed by the Supreme Court. In the highest profile of those cases, which was the vaccine mandate for healthcare workers, uh Dodi's ruling was limited by the Fifth Circuit. Um he enjoined he had an injunction. They limited it to the fourteen states that filed the litigation. Um, but then they tossed it out or staff out in light of the Supreme Court decision to allow the mandate to take effect in a different case. And he doesn't
think that he's political. No, he said that he's making determinations about you know, what he thinks the law is. He's got to follow what he thinks the law is. And he he told you Lydia that he he doesn't believe that he's political, and he doesn't rule a particular way because he was appointed by a certain president. And he's not the only judge is he that Republican attorneys
general go to? As you mentioned, there is already kind of this focus on Texas and UM Professor Stephen Laddick has looked at some of the litigation in Texas, you know, by the Texas a G by the Texas Governor UM, and when litigation is filed in Texas UM, they can similarly look for these divisions that have a majority of the Republican appointees or have a very small number of judges where they can be pretty sure about who they're
going to get. The Texas is already a an area where this this happens and is well known that this happens. Then I just want to point out there's nothing on ethical in forum shopping. So forum shopping is something that all litigants pans and and in a lot of scenarios do as as a part of uh, you know, good lawyering.
And this is pointed out by a former judge UM the Fifth Circuit, Um, Greg Costa, who recently left to return to private practice, and he noted that, you know, forum shopping is something that UM lawyers do to make sure that they're they're going to have the best chance uh you know, getting there, um getting a favorable ruling. But um, you know, critics of forum shopping and judge shopping also um point out that this is a way that just because you can do it doesn't necessarily mean
that it's a good thing. And uh, you know, maybe instances where you can really pinpoint who your judge is going to be, there needs to be a change. And the only change that could really happen there would be a systematic change too, uh prevent people from targeting a judge in in a particular area. So Judge Costa has
advocated for changes, and he's made a suggestion. Right there is uh a proposal that that he has talked about in the past, which is to have three judge panels here cases that are seeking nationwide injunctions instead of a single judge. There could still be forum shopping under that system. You could still you know, choose a court in the Fifth Circuit to have an appealed to the Fifth Circuits tents. But it would prevent judge shopping, and it would it
would limit forum shopping some at least. This is what got that says, you know, instead of being able to target one judge, there's less certainty if two other judges that you can't choose are added to that panel. Democratic a g s also do forum shopping. Where do they do their form shopping? So when Democratic Attorneys general forum shop, they target the northern districts of California and the southern
districts of New York. Those are venues that saw quite a few lawsuits during the Trump administration, and Democrats sued the Trump administration a lot. There were more multi state suits against the Trump administration than they're wordering a bomb administration. Thanks so much, Madison. That's Madison Alder of Bloomberg Law. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on
our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com slash podcast, Slash Law, and remember to two to The Bloomberg Law Show every week night at ten p m. Wall Street Time. I'm June Grosso and you're listening to Bloomberg m