Lawyer's Deeply Personal Fight for Transgender Rights

level and at the university level. Texas Governor Greg Abbott ordered the state's Department of Family Service to investigate gender affirming care for minors as child abuse, and order that's been put on hold by a judge. Conservative lawmakers across the country have introduced measures that target trans and non binary youth, from their right to play sports to their right to get gender affirming care or even use the bathroom.

Here's transgender activists Eden Rose torres. The people that have never had to think about gender identity, that is such a privilege because those of us that have had to think about it. The reason is is because we don't fit into the two boxes that society has given us, male or female. The American Civil Liberties Union is taking the lead in many of these cases fighting for transgender rights, and one lawyer is leading the a c l USE fight.

J Stangio. Bloomberg Legal reporter Eric Larson did a profile on stan Gio. Eric to foodstan Gio's work in context, it seems like we're hearing a lot more about cases

where transgender rights are increasingly under attack. That's true. There are dozens of bills that have been proposed in state houses around the country just this year, at least a couple of dozen that seek to restrict essentially activities for trans use, whether it's related to playing in sports or various healthcare measures a gender affirming healthcare measures happening kind

of all across the country. You know, clearly it's an issue that the Conservatives and Republicans have jumped on right now. So it's similar to the way we've seen a lot of other similar bills back in the day against same sex marriage and things like that. So it just seems to be what they're focusing on right now. So tell us about Chase Strange, GEO and a c l U lawyer. Yeah, So I noticed that in a lot of these cases that the a c l U had been filing challenging

some of these laws that Chase Strangeeo's name was coming up. Um. He has been at the a c l U for several years. He oversees the a c l USED legal response to trans issues. That doesn't mean he's working on every single case or arguing in court in all of them, but he's overseeing broadly what is going on, and he is also personally working on several of those cases as well in court. And protecting trends rights is personal for him. Yeah.

He he came out as trends in law school. He told me about, um, you know, the long process that he went through before, you know, coming to this realization and decided that trends rights were something that he needed to focus on for his career. So he went to law school, eventually came out it, worked at a few organizations that focused on lgbt Q rights, and then found himself at the a c l U. And he lives

in New York in Queens. He's thirty nine. He is co parenting a nine year old and has been working from home during the pandemic and fighting this legal battle at the same time. Yeah, so he's been leading the charge against an order from the governor of Texas, which directed the state agency to investigate parents or doctors who provide gender affirming care for miners. And this has become a huge issue. And did he argue it there? How

much has he worked on that? He didn't do the arguments because they had the a c l U of Texas had a lawyer there in court and we were able to watch that that hearing over zoom on Friday when the decision was handed down granting the injunction against that rule that you just mentioned, blocking the state from enforcing that rule while this litigation proceeds. So while he was not there in court, he is broadly overseeing the

a c l use legal response to it. And as you said, this is a huge, sort of huge deal. There's been a lot of these anti trans bills that are being challenged. You know, Chase is working on one case in Idaho challenging that states law banning girls and women from school sports at their trans and another case in Arkansas that bands gender firming care from miners, so

he's working on that case. Well, but I think what really made this Texas rule it's not even a law, by the way, it's just um the governor Greg Abbott issued a directive ordering the state agencies to interpret existing law in such a way that the gender firm and care is child abuse. So it wasn't even a new law. It's just there was the directive, but it got a lot of attention across the country because it had a new element where it's basically telling the state to investigate

families for child abuse. So it's not just trying to ban gender firming care, it's saying investigate families for child abuse if they if they look into it or try it. He told you that besides the record number of bills being introduced in passing the breath of the cruelty keeps increasing.

I think that what he was getting at there is that when they started to target the children is when he really thought that it was getting so cruel because you know, obviously, the folks on the other side of the argument here are saying that they're the ones protecting children, that they're doing is to help children. But that's just

not how the a c l U sees it. They see that this gender firming care is something that a lot of people don't know about, and so it's easy to spread misinformation about it and make its sound scary, I think is the way that Chase describes the effort to undermine it. But this point is that there are just some some kids who have gender dysphoria. It's a you know, it's serious psychological issue that they can have. They really strongly identify with a different gender than what

they physically appear to be. So it's not like a decision that's made lightly whether or not to have this gender firming care like puberty blockers they're taking um testosterone or hormones. It's something that you know, is very carefully mapped out with psychologists and doctors and parents, and that

it's not something that every transmnor does anyway. It's just in some cases it's a very rare occurrence and that these kids really need this help Strangers says, and for the state to try to stop it and demonize their parents were trying to help their kids. I think that's what he was getting at and saying it was just so cruel. And there seemed to be a lot of bills lately or laws that try to ban transgender girls or women from playing on female sports teams. Have any

of those cases gotten past the initial stages? Yeah, the state of Idaho was the first to pass the law like this, and Chase went to port there on behalf of a few trans email plaintiffs and the A C L You did win at a preliminary junction blocking that law from taking effects during the case right now, that um, you know, COVID has kind of slowed down a lot of these lawsuits, but it's now on appeal of the because the state is arguing that the plaintiff no longer

has standing in the case because she took a year off from Boise State University after she failed to make the cross country team, so she's back at the university, but the state is trying to scrap the case on on those grounds. So that's kind of import on appeal. And there's another case in Connecticut where to non trans female athletes assist gender athletes sued to challenge the state's inclusive policy for transit girls and women, saying that they

have an unfair advantage over non trans athletes. So that case was thrown out and they appealed and for the Second Circuit will eventually hold arguments on that. This struck

me in your story. You spoke to Mason Donne, a non binary trans right activists in Massachusetts, and he said about Strangio, he marveled at his elegant ability to maintain decorum in the courtroom even when his opponent is actively dehumanizing him to his face with their arguments, and that struck me as quite the lawyer, I guess, yeah, yeah, you know, that's uh, it's certainly something that I'm sure a lot of lawyers have been in similar positions in

different ways, whether or not. You know, it's a female lawyer arguing a case about, you know, something like abortion rights or equal pay or things like that, or a black lawyer arguing a case related to racial discrimination. So certainly, I'm sure a lot of lawyers have been in similar positions.

But I think because you know, trans community doesn't have quite as much visibility to be a trans lawyer up in court fighting over and discussing very personal aspects of their existence when there's a you know, a well paid taxpayer finance lawyer perhaps on the other side, saying that

you're a threat to children. The fact that Chase Stranger is able to sort of let that roll off back and just keep arguing, as people have noticed his ability to do that, because I spoke a few plaintiffs in some of these cases we've been on that are who are trans and sort of felt the same way, but sort of marveled at his ability to keep his cool

in court during argument. And he was involved in what was probably the greatest victory for trans rights so far, and that is the landmark Supreme Court ruling that made it illegal to discriminate against trans employees. That's right, that was a big ruling. You know, it interpreted existing federal law against sex discrimination to apply to transgender employees and making a discrimination against trans employees the illegal nationwide. That

was a huge victory. There are lots of plaintifts involved, lots of lawyers involved in that case. He was one of them. And he told me he was in the Supreme Court building that data and there's those arguments and basically said, you know that that was one of the greatest days of his life. He said that there were a lot of trans well in the Supreme Court building that day, people watching. So yeah, clearly a big landmark

victory for trans rights. But also, he pointed out in my interview, a lot of the backlash started after that as well, such sad ramifications for a great legal victory. Mark Zuckerberg will not have to testify in Washington d c's data privacy lawsuit against Facebook. In fact, the judge overseeing the case called the attempt to get Zuckerberg to testify frankly annoying. Joining me is Bloomberg Legal reporter Eric Larson, who covered this interesting hearing. Tell us what this data

privacy lawsuit against Facebook is about. So, the Attorney General of the District of Columbia suit Facebook in two thousand eighteen. It's a consumer protection lawsuit over what they describe as a data breach involving Facebook's data that was used by Cambridge Analytica. You may remember that was that firm in the UK that was used by Homer President Donald Trump

two thousand sixteen campaigns. They were able to sort of flice and dice a lot of user data for millions of Facebook users and use it to try to improve Trump's campaign outreach, could say it. And because of the way that that data was used, it was friends of friends data basically, and so no one had really agreed to this use of their data, and the d c a g says this was a violation of the district's consumer protection laws and file the lawsuit in two thousand eighteen.

Why didn't they sue Zuckerberg as well? Well, I can't tell you exactly why they didn't at first, although they had tried to add him to the suits. I think that as far as the defendant goes, it was the company itself that had engaged in this alleged behavior. So I don't think it's uncommon to file a suit against the company like that without naming individual executives. That being said that they did try to add Zuckerberg to the suits just recently. They said that they wanted to get

his deposition. They said that he had a decision making role at the time period when the decisions were made to allow third party app to start collecting the data in this way, so they wanted to hear from him directly on that. What did the judge decide about deposing Zuckerberg, Well, he wasn't going to have it. He shot down the Attorney General's proposal pretty harshly. I would say, I listened in on the on this hearing and Superior Court in DC.

The judge denied the Attorney General's motion to add Zuckerberg is a defendant and granted Facebook's motion for a protective order to block the Attorney General from trying to depose Zuckerberg. So the judge said, look, this is a consumer protection lawsuits. This is about financial damages basically for consumers. The judge said, based on what he had heard, the Attorney General already had plenty of information to go ahead with his case and bring the current claims that he had to trial.

He was pretty critical at some point, I would say he was shouting at the district lawyer is saying that they basically were trying to turn this case into a case about Mark Zuckerberg int of a case about Facebook, and it was really critical of their attempt to add saying that they did not need to depose Mark Zuckerberg in order to potentially get damages from this data breach for the district consumer. But it seems like Zuckerberg is a hands on CEO and it would perhaps prove something

or ramp up money damages. The d C Attorney General tweeted that allowing third party apps like Cambridge Analytica to access user data was Mark Zuckerberg's brain child. So to me, it seems odd that the judge wouldn't allow them to depose him. Well, I mean, I think then you would have to get into the details of the District of Columbia's consumer protection laws and how just might interpret them.

You know, as you said, a lot of this decision making has been exposed, and we're aware now of a lot of the failures that happened at Facebook through Cambridge Analytica and the decision making behind that, and also of course recently whistle blower activity and testimony in Congress. So there's clearly a lot of problems that have been exposed

over there as Facebook. But I think the judges point that he was trying to make is just that to prove a data breach and to prove that it occurred, and to prove that residents of the district had their data misused. The judges implying or arguing because that the district can already prove that at trial and that they need to go ahead to trial with the claims that

they already have. So at one point the judge did say, look, if you find that Mark Zuckerberg did something wrong with the evidence, you have final a criminal complaining against them. She was being a little flippant, but he's the point. He was making is if Mark Zuckerberg did something wrong, maybe that's a different case. Maybe that's something that you can handle all at different time or another authority. But for the purposes of this lawsuit, he wanted to narrow

it and he wanted to speed it up. That the case had been going on too long, and that as far as he could tell, the claims that had already been spelled out in the complaints, they seem to already have enough evidence to take it to trial based on that. Whether or not Mark Zuckerberg personally said do this or don't do this, I think the judge is saying it's irrelevant to the claims in the complaint, and we can't

leave out that. The judge quoted from the movie Jerry McGuire in his opinion, like I said, he had said that for the purposes of a consumer protection complaint, it's about getting money back to our consumers at the end of the day, not proving, you know, some sweeping wrong

doing by Mark Zuckerberg. So he's saying, if this is about money damages, which consumer protection is he said, you know, it's like Jerry mcguires, he's like Huber getting Junior, show me the money Uh so, he did mention that he likes to reference pop culture and and his hearing its on occasion, and I love those pop culture references. Thanks

so much, Eric, that's Bloomberg Little reporter Eric Larson. Steve Bannon, once former President Donald Trump's chief White House strategist, is facing a rare criminal charge of contempt of Congress for refusing to testify before the House Committee investigating the January six riots. In a two hour hearing, Bannon won access to Department of Justice documents reflecting its official position on prosecuting current or former US officials claiming immunity from congressional

subpoenas on the grounds of executive privilege. But Bannon may not be able to raise an advice of council defense at his trial. Joining me as former federal prosecutor Robert Mints, a partner at McCarter and English, Bob, what is the

House Committee looking for from Steve Bannon? The House Committee start information from Bannon related to his activities as an outside Trump advisor after presidential election, and they're particularly interested in conversation that Bannon allegedly had at the Willard Hotel the day before the attack, when hundreds of Trump supporters protested the elections outcome and ultimately stormed the Capitol building.

And so what the House Committee is looking for is they want to know what was said that day, and they were particularly noting the fact that Ban instead that hell is going to break loose the following day. So they want to know what did he know, what did he say, who did he talk to and the day before the insurrection occurred. He made an argument based on

Office of Legal Council opinions. Bannon had suggested that that he was relying on the Justice Department's own past advice to White House aids as he fights these criminal charges, and he was particularly citing these Office of Legal Council opinions which are out there. Prosecutors argued that the Justice Department's legal guidance reflected in opinions issued by the Office of Real Council, we're not relevant to whether Banton actually

committed the contempt of Congress crimes. But the judge was not persuaded and ordered the Department of Justice to turn over any writings reflecting its official positions on prosecuting current or former U S officials claiming immunity from Congressional subpoena on grounds of executive privilege. At one point, the judge

even asked federal prosecutors, isn't there something anomalous. Isn't there something unusual for the Department of Justice to stay, on the one hand, as someone that's absolute immunity and that the Justice Department will not prosecute them, and then to say that those statements, those official statements of d o

J policy are not relevant to this case. So he ordered prosecutors to turn over those official statements to Bannon's defense team, and we'll see how the judge handles this issue after Bannon's lawyers get a chance to review these

offers of Legal Council opinions. What I don't understand, Bob, is that Bannon had been fired as a presidential advisor years before January six, So what do those Office of Legal Council opinions have to do with him now as a non presidential advisor but an ally of the former president on January six? I mean, it just seems like even if those opinions say senior presidential advisors are absolutely immune from compelled congressional testimony, it wouldn't apply to him anyway,

you know, that's exactly right. And Bannon is among a number of Trump allies to excited executive or attorney client privilege when refusing to cooperate with the House Committee. But the other individuals were actually employed by the executive Branch at the time of these communications. Banning is in a different situation raising legitimate executive privilege claims because he was forced to resign from the Trump Whitehouse in two seventeen,

more than three years before the insurrection. So his argument that this executive privilege would apply to him when the conversations that he's trying to shield from the House Committee, we're not done while he was employed by the executive branch. It's not a strong an argument and ultimately I think

will likely fail. But the judge nevertheless or the Justice Department to turn over statements or writings, whether public or not, reflecting official do o J policy on prosecuting current or former government officials who claim immunity from congressional subpoenas on the grounds of executive privilege. Yeah, no, that's exactly right. The judge did say though, that the ratings have to reflect the d o j's official position, So I think there's some documents that would not be turned over here.

But prosecutors did fight vigorously to oppose turning over this information on the ground that it will allow demanding defense team to probe its investigative and prosecutorial decision making. In the eyes of prosecutors, this is something that was simply not relevant. This case boils down to simply the fact that and refused to appear, and that's the issue that

they posed to the judge. But the judge did give some leeway to the banned defense team and did order these internal documents, as you say, whether public or not, to be turned over as long as they reflect the official position of the Department of Justice on this issue.

And Trump has repeatedly tried to shield from this House Committee information from his time in the White House, and he has been unsuccessful each time in court, right, And the basis for that is that the courts have ruled that the decision over whether executive a privilege would apply is won me by the current president, not the former president.

So ultimately it was President Biden's decision as to whether or not to exert executive privilege over these communications, and he decided not to do it, stated that it was in the public at this provided to the House Committee and declined to extend executive privilege, and the courts have upheld that and have denied former presidents from claim to executive privilege when he is no longer a sitting president.

The Justice Department is trying to stop Banning from arguing at his trial that he was following the advice of his attorney when he didn't comply with the subpoena. First of all, explain the import of an attorney's advice. Well. The attorney client privilege is one of the bedrocks of the legal system in that it is important for clients to be able to communicate freely and openly with their lawyers, to provide them candid information so that the lawyer can

give sound advice to the clients. So that is an area that courts have historically been very careful not to tread upon to invade those conversations, and that is conversations between a client who's providing information to the attorney and then the attorney providing legal advice back to the client. So, of course have historically been very reluctant to pierce the

privilege in areas that considered attorney client communications. Is it a defense that he was following his attorney's advice when his attorney told him he didn't have to comply with the subpoena, Well, that's a complicated question. Bannon invoked executive privilege that advised the committee that he would not comply with this with the subpoena until a court rules on

that issue. The committee said that and has to comply with the portions of the subpoena not covered by any privilege, and it expected him to appear for his deposition and to produce documents and to raise any privileged issues in

response to specific questions. Instead, Bannon simply refused to appear at all, refused to provide any documents at all, and ultimately he was charged with two counts of contempt of Congress, one based on his failure to appear for the deposition and the other based on his failure to produced documents. The contempt actually punishes any person who was summoned as they witnessed by Congress and willfully makes default, meaning they failed to appear, or they appear and refused to answer

all of the questions. But it's the burdens on the government to prove that Bannon willfully failed to comply with the subpoena. And this is where the advice of council defense comes in, because he's arguing that he did not willfully fail to comply, that he was relying on the advice his council gave him, essentially that he did not need to appear because he was immune from testimony based

upon the Office of Legal Council opinion. But there is a federal appellate court precedent that says defendants cannot invoke their lawyer's advice as a reason to ignore a lawful congressional subpoena. Yes, that's exactly right. There's a nineteen fifty one decision by the d C. Circuit that held that under the Contempt of Congress statute, So it's very limited only to this statute. The advice of council defense cannot immunize a deliberate and intentional failure to appear pursuant to

a lawful subpoena issued by Congress. And the reason for that is that if a witness who was summoned to appear before a Congressional committee could simply rely on the advice of counsel that the information being thought by the committee was not relevant to some legislative inquiry. They could basically stone wall all congressional peerings and refused with impunity to answer any questions based on the counciled advice that the area of questioning is not pertinent to the legislative inquiry.

So there is the urt ruling that says that the advice of council defense cannot be raised in connection was refusing to appear before a congressional committee. And this decision forces a person to essentially choose between either complying with the court's order to provide evidence or refusing to comply, thereby risking a contempt conviction if those claims are ultimately rejected on appeal. The judge appeared ready to give prosecutors a victory on this particular point and deny Bannon the

ability to use the advice of council during trial. But what happened to stop the judge from going far with that. Batman's lawyer tried to distinguish the nineteen one decision by saying it was factually different. He argued that witnesses might have to appear before Congress to invoke claims such as the right against self incrimination that that executive privilege is different because it's the privilege that is held by the

executive branch and not by the witness. The argument that seemed to resonate with the judge and at least pause the decision and and resulted in the judge ordering both sides to further brief. The issue was when Batman's lawyer argued that in ruling that advice of counsel was not a defense that could be raised at this time, would essentially give Congress of veto power over what executive privilege is. That would shift the balance of powers between the president

and lawmakers. It would essentially say that you have to choose between raising the choose between raise being the privilege and ultimately being found to be held in contempt or rolling over essentially and providing the information. And in this case, because executive privilege was implicated, it would a sense of rescript the executive branch of the power to assert that privilege and shift the balance of power too far over to the congressional side. Is what happens in this case.

In Bannon's case, important would it's set a precedent for others who are refusing to appear before the January six committee. Well, each of the individuals Hoop had something before the committee are in a slightly different factual situation. Some were existing employees at the time. Bannon obviously was not. But it is very important here because from the Department of Justice is standpoint. You get a subpoena from a congressional committee

and you simply have to appear. The only thing prosecutors believe they have to prove here is that you willfully failed to appear before the committee. Once you're in front of the committee, whether you raise certain privileges or not is a separate issue here. Bannon flatly refused to appear, flatly refused to produce documents, and that's ultimately why prosecutors decided to take the very unusual step and indict him for contempt of Congress. Bob Sum up for us the

prosecution's case. The government here has to prove that the defendant acted with knowledge such as conduct was unlawful. The advice of defense seeks to negate that conclusion by showing that the defendant relied in good faith on Council's advice and that the course of conduct that you took was therefore legal The government's position is that the summoned witness

doesn't get to decide if Congress can make them show up. Basically, the government argues that the contempt charge changes simply unquestioned of whether or not you showed up, if the defendant makes a deliberate and intentional decision not to appear. Prosecutors believe that that will satisfy the requisite intense for contempt. Thanks Bob. That's Robert Mints of McCarter and English, and that's it for this edition of The Bloomberg Law Show.

Remember you can always get the latest legal news honor 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 tune in to The Bloomberg Law Show every week night at ten p m. Wall Street Time. I'm June Grossow, and you're listening to Bloomberg