This is Bloomberg Law with June grosseol from Bloomberg Radio.
The Supreme Court's conservative majority signal it's likely to deal
another blow to LGBTQ rights. During oral arguments today over state laws in Idaho and West Virginia that ban transgender girls and women from competing for their schools on female athletic teams, Conservative justices like Samuel Alito and Brett Cavanaugh directed skeptical questions at the lawyers for the transgender athletes who are challenging these bans as violating the Constitution's Equal Protection Clause and Title nine, which prohibit sex discrimination in education.
There are an awful lot of female athletes who are strongly opposed to participation by trans athletes and competitions with them. What do you say about them? They Are they bigots? Are they deluded in thinking that they are subjected to unfair competition?
You know, there's some states in the federal government, and the NCAA and the Olympic Committee. So these are a variety of groups who study this issue think that allowing transgender women and girls to participate will undermine or reverse that amazing success and will.
Create unfairness LGBTQ advocates haven't had a major Supreme Court win since twenty twenty, when the Court ruled six to three that the main federal job bias law known as Title seven Barr's Discrimination against Sexual Orientation and gender identity. Joining me is Suzanne Goldberg, a professor at Columbia Law
School and director of the Sexuality and Gender Law Clinic. Suzanne, based on the oral arguments, did it seem like the Supreme Court is likely to uphold the state laws that ban transgender girls and women from competing on female athletic teams.
I always hesitate to predict outcomes in the wake of an oral argument. I think what is fair to say and interesting about the argument is that most of the justices really appear to be grappling with the hard questions and the implications of a ruling either way, Meaning that while I think a couple of the justices on both sides, some of the justices on both sides were pretty clear about how they would come out, several of them seem to understand that ruling strongly in one direction or another
might pose great risks to constitutional law and to protections under Title nine against sex discrimination. The lawyers for both of the athletes in these cases made what I thought were quite strong arguments that there is not enough information in the record in front of the court for the court actually to decide that big questions about whether transgender athletes are sometimes or always sufficiently controlling any effects of testosterone to be able to compete on the same basis
as non transgender athletes. So I think there are a lot of fact questions in the mix, and the lawyers for both of the athletes, I think made strong arguments that the cases should actually go back to the lower courts for full development of a record or dismissal.
In the case of the college student.
So explain what the legal issue is.
The cases are centrally about whether states can ban transgender female students a girl in one case, and a college student and a young woman and another from participating on
the girls and women's sports teams. These state laws are categorical bands, meaning it doesn't matter how much a student has mitigated the effects of testosterone, or in the case of the West Virginia young student, she's not gone through male puberty, she's going through female puberty, and so the legal question in the case is can the state impose categorical bands on every transgender girl and woman from ever
participating on a girls or women's team. The legal questions come under the Equal Protection Clause of the US Constitution, which guarantees equal treatment and says the government must have a good enough reason if it is going to draw
lines based on sex. And there is also, in the case of the West Virginia student, a claim under Title nine, which is the federal law that prohibits sex discrimination, and that claim is that states, of course can have separate girls and boys teams, but it is unreasonable to keep this student who is going through female puberty and never gone through male puberty off of the girls team.
So there were a lot of sort of broad statements about transgender women. Samuel Alito asked, looking at the broader issue that a lot of people are interested in. There're an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them. Are
they bigots? And just as Kavanaugh said, the court can't look past what he characterized as the harm that transgender inclusive sports policies impose on cisgender women and girls' sports team For the individual girl who doesn't make the team, or doesn't get on the stand for the medal, or doesn't make all leagues, there's a harm, and I think we can sweep that aside. So do you think that a lot of the justices were looking at stereotypes of transgender athletes.
I think the lawyers responded very clearly to the concern expressed by the justices related to some girls and women objecting to transgender girls and women on their sports teams, and what they said was, no, nobody is accusing anybody of being a bigot, and you know, of course competition is important.
The question in.
These cases is whether it is reasonable or discriminatory to say every single transgender girl and woman, no matter to what extent she's mitigated the effects of testosterone or not even experienced them, that it is unreasonable to keep those students off of girls and women's teams. You know, it's tough always to not make the team or not win
the competition, but that is part of sports. And part of the point the lawyers were making was even when somebody is upset about losing, it doesn't necessarily mean their loss violates the law or violates the constitution. Always right, one athlete wins right, one athlete is better than another. And in these cases the point was, it's not because this other student is transgender.
It's because the other student either has.
You know, practices harder or having a better day of competition, or may have more natural ability. But none of that in these cases is keyed to a student being transgender.
Right.
Athletes vary in many ways, and that is the point of the lawyers and the plaintiffs in these cases.
Aren't these laws, though, based on a belief that transgender women or girls have a better chance at women's athletics because they're transgender.
Yeah, the laws are based on a view that transgender girls and women are always and automatically going to be stronger and faster in ways that matter for athletics because they're transgender. The facts in these cases about the two athletes show that that is not always true, and the science shows that's not always true. One of the questions that came up quite a bit during the argument is, well, how much should the court get involved in the science,
especially as the science is under development. The response from the athletes lawyers was the records in these cases, which is what the court has to look at to examine the facts are incomplete and if anything, if this, if the court wants to get into the science, then the cases should be sent back to the lower courts for a trial and development of a full record and the
trial court's consideration of the compete. Experts and the experts in science for the athletes say students can mitigate their testosterone levels, and again BPJ the West Virginia student's case, she has not never experienced male puberty, has only experienced female hormonal puberty, and so to suggest that she is somehow advantaged by male puberty is incorrect and is belied
by the record. A lawyer for the college student athlete made the point that there is some scientific evidence that transgender women are at a disadvantage because they may, if they've gone through mail puberty, have a larger body frame, but because they've dropped their testosterone to typical levels for women may not have the muscle mass and the strength
that is needed to propel that larger body frame. So there is some scientific evidence showing a disadvantage rather than the kind of advantage to the state claims.
Will you explain? West Virginia is arguing that the laws about sex, not gender.
You know, one of the questions in this case is do the state laws impose discrimination based on gender identity or do they impose discrimination based on sex. Title nine cover sex discrimination, and in constitutional law, the Court has long applied heightened scrutiny to sex discrimination. So the states in these cases and the government in these cases are arguing that these laws don't actually discriminate against transgender people. They do draw lines based on biology, and that kind
of line drawing is permissible. The lawyers for the athletes in these cases are arguing, yes, in general, line drawing based on biology when it comes to sports might be permissible, but categoric banning all transgender girls and women from playing girls and women's sports is not reasonable. It defies the science, and most importantly, it defies the fact about the athlete.
Teams cases coming up next on the Bloomberg Law Show, could a ruling favoring the bands in Idaho and West Virginia affects states that permit transgender girls and women to participate on female teams. Remember, you can always get the latest legal news by listening to our Bloomberg Law podcasts. You can find them on Apple Podcasts. Spotify and at Bloomberg dot com, slash podcast Slash Law. I'm June Grasso,
and you're listening to Bloomberg. Idaho and West Virginia are among twenty seven states with laws restricting transgender student athletes,
all enacted since twenty twenty. During three hours of oral arguments today, the Supreme Court's conservatives suggested their law likely to uphol those state bands, but Justice Brett Kavanaugh raised the question of whether a ruling favoring those state bans would affect laws in states that allowed transgender girls and women to participate on female teams.
And those states who do allow it, are they is your position that they are violating the Constitution the Equal Protection claus rights of biological girls and women by allowing that, or do you say that's up to each state to decide, and that the Constitution gives discretion to the state whether to allow it or not to allow it. I have not yet been persuaded by a constitutional theory that would let us use the egal protection clause to impose our policy on other states in this matter.
I've been talking to Columbia Law School professor Suzanne Goldberg. Suzanne in the Bosta case the twenty twenty case where the Court ruled six to three Title seven protects transgender workers from discrimination based on sexual orientation and gender identity. But did it appear that both the Chief Justice, who was in the majority in Bosstok, and Justice Neil Gorsich, who wrote the opinion in Bosstok, were backing away from it in this case.
I think it's fair to say that Justice Gorsic and Chief Justice Roberts did not heartily endorse.
The application of Bostok to Title nine.
At one point, Justice Gorsich even said, I wonder how straightforward this all is, and this was after several hours of oral argument. Bosstok does not have to be applied for the individual athletes to prevail in these cases.
But I think it is.
Fair to say that they don't see an easy connection or a direct connection between prohibiting sex discrimination under Title seven in employment against gay or transgender employees to carry over to Title nine, which prohibits sex discrimination in education. I mean, obviously we'll see what they have to say in their opinions, but they did not say anything in the argument to indicate that they see an easy carryover of boss Stock from one setting to the other.
Were lawyers for the transgender athletes, hoping that there would be a carryover from Boss Stoc.
The lawyers for the athletes made the argument that, of course there's a connection both in terms of the specifics of the language of Title nine and Title seven. In interpreting Title nine, the Supreme Court often looks to its rulings under Title seven to keep the two statutes and their understandings of discrimination in sync, and so the normal course would be that a case like Boss Stock, which is an important interpretation of Title seven, would carry over
to Title nine. The athletes lawyers also make the point, which I think is very fair, that whether the decision carries over formally or not, it's logic certainly should carry over, which is that when a government draws a line, or when there's line drawing that says all transgender people are on one side of the line, that necessarily is a kind of sex discrimination. It says we will treat you differently and worse because we don't conform to your expectations
of what a man or woman should be. And that's exactly the kind of discrimination that Title seven is understood to prohibit.
Were the three liberal justices on the same page.
I would say that the three liberal justices seem troubled by the state's laws. Their questions reinforced one another. They were troubled, especially by an argument made by the state and the federal government that, you know, if the group that's discriminated against is really small, and the group of transgender people are really small, then the Constitution isn't so
concerned about that. I think that is that argument is wildly incorrect and misstates the law, and it seemed that that was a key point of concern for those justices.
Justice Brett Kavanaugh several times asked about the roughly two dozen states that allow transgender athletes to compete and whether they'd be forced to change course if the Justice is uphold state ban so he said, are those states violating the constitutional rights of biological girls and women by allowing that? And Justice Kagan also asked that question.
I think this is one important takeaway from this argument is that the governments trying to defend these laws did not argue that it would violate the rights of cisgender girls to allow transgender girls to compete against them on girls or women's teams. And so, you know, a key takeaway here is no one seemed to be embracing an argument that it would be unconstitutional for nearly half of the states in the country to allow transgender girls and
women to compete on girls and women's teams. The lawyer for the United States specifically argued that they were not asking the court to address this. The United States has taken the position that it violates Title nine for states to allow transgender girls and women to participate on girls
and women's teams. But the lawyer for the government in this case try to strongly make the point that that is not what this case is about, and it would be surprising, I think if the court were to reach that question here.
So, I mean, we've talked about this before, about how there have been setbacks to transgender rights from this court allowing Donald Trump to ban transgender people from the military, blocking transgender and non binary people from choosing passport sex markers, as well as the ruling that upheld Tennessee's ban on
gender affirming care for transgender youth. And when you listen to the oral arguments, you know you have the three liberals, and then it seems hard for me to find two more justices who would side with the transgender athletes in these cases. And also it would just be a continuation of what the Supreme Court has been doing in recent years, which is cutting back on transgender rights.
It's certainly true that in recent years, and especially this past year, the Supreme Court has cut back in profound ways on the rights of transgender people by upholding an executive order excluding transgender people from military service on an emergency basis, or allowing that order to stay in place, by allowing an order to stay in place that blocks transgender people from getting accurate gender identity documents through the passport service, by upholding a ban on access to gender
firming healthcare for transgender youth. This case presents a different type of question because it squarely asks on the merits of the case, at least in this early stage. Is it a violation of the rights of transgender people directly to be excluded from athletics participation? Right, this is not a national security issue like with passports or like with the military service. It's not a medical care issue that states often regulated, like with the gender affirming care case.
So the question really is, you know, can kids and young people be kept out of part of their educational program because they're transgender. It's a different kind of ca case. We will see where the court comes out. I do think the lawyers for the athletes presented the facts in a way that was so clearly showing that there isn't on the facts.
In these cases.
These two students were not at some sort of special advantage because they were transgender. And so the question is, can states override the right of these two students to participate in girls and women's teams even when the facts show that these students are similarly situated to their female peers.
There was also a discussion about the small percentage of athletes made up by transgender athletes.
You know, one of the interesting legal questions the court may need to address here is what happens when a small group of people challenge a law saying this law is not a reasonable fit when applied to us, and the law discriminates against us based on sex. The governments in these cases we're arguing, well, you know, the law doesn't have to be a perfect fit, it just has to be reasonable, and well, you know, it's too bad if some people are left out, but the constitution allows that.
I do think that even some of the justices in the middle would be troubled to reach that kind of conclusion because it is fairly damning, I think to suggest that the equal protection guarantee in the Constitution does not guarantee minority groups, however, defined the ability to challenge discriminatory laws as applied to those groups.
That's the whole point of the equal Protection clause.
It's to say, yes, of course governments can engage in line drawing, but they cannot engage in line drawing that is unreasonable with respect and certainly illegitimate with respect to any group. And in these cases, as applied to students who are transgender girls and women who have mitigated the effects of testosterone and are able to compete against other
girls and women, those are unreasonable rules, right. They categorically exclude those students from those teams, and I think the court will have to take that up, and some of the justices will be troubled by that.
Also. I found it odd that the girl in the Idaho case wanted to drop the case, but Idaho officials, who are the defendants, don't want the case to be dropped.
So the college student went back to the trial court and said, I'm not going to participate in school athletics anymore. Right, I'm going to focus on finishing college, and you know it will be harmful to me. I've already come under a lot of scrutiny, you know, having.
This case decided.
My case decided by the Supreme Court will not be in my interest.
I don't want to play anymore.
And so there's a question whether the court actually can address her case or should address her cases. The government tried to argue that there are other similar cases in the past when the court has gone ahead and said, yes, we're going to address your case anyway, but none of
those situations really apply here. And at the end of the day, I think if the court were to go ahead and say, you know what, you were a plaintiff before, so we're making you stick on through this whole case, even though you want to drop it, that would have implications far beyond this case and would actually be quite dangerous, I think for the court to pursue on a separate Another question that came up was, well, what about laws
that treat boys and girls differently for other purposes? Right, what about restrictions on a chess club or restrictions on participation of girls in calculus classes or other things. How far can discrimination extend? And this was connected to this question about well, what a science show? And if science somehow showed that men or boys were better at math or better at chess, would that mean that the state
could then exclude girls and women? That also, the court seemed troubled by pretty much everybody, And so I suspect that whatever the justices do, at least most of them are going to want to stay away from those questions.
Thanks so much, Suzanne. That's Professor Suzanne Goldberg of Columbia Law School coming up next. Former Supreme Court advocate on trial. This is Bloomberg. Tom Goldstein was a top Supreme Court advocate who shocked the legal community when he was charged with tax evasion and his double life was revealed. The allegations and the indictment painted a picture of a wild lifestyle that included ultra high stakes poker games, million in
gambling debts, extramarital affairs, and more. Goldstein faces charges of tax evasion and making a false statement. The tax charges revolve primarily around Goldstein's alleged mischaracterization of business and personal expenses and failure to report certain income the willful failure to pay taxes. Charges are based on the theory that Goldstein opted to pay off other expenses, including gambling debts.
First joining me is former federal prosecutor Marissa Darden. She's chair of the White Collar Government Investigations and Regulatory Practice Group at Benisch. Marissa tell us a little about Tom Goldstein.
I think everybody revered him as one of the scions of the Supreme Court. He has argued some of the most important cases of our time. He has had some really successful wins for Google and for other huge companies in you know, sort of bet the stakes, you know, sort of anti trust and other sort of complicated, really sophisticated First Amendment issues, trying to persuade the Court in
this favor, which he's done really well. I think, you know, I remember learning more about him in the bushby core Era because I think he was part of that original team with David Boyce. But he's you know, got a stellar reputation or at least had a stellar reputation in front of the Supreme Court, very successful Washington lawyer, and I think these allegations have all kind of come as a surprise and raise a lot of questions about the double lives that all of us might be leading.
And what was the reaction in the legal community when he was charged.
As a general rule, you know, Supreme Court clerks and people who work in the Supreme Court, people who work
around the Supreme Court, the Solicitor General's office. You know, it is technically the most and realistically the most elite form of lawyering that one can do, right, and so most of the time people you meet are kind of nerdy to be honest, Like, you meet a lot of lawyers, or go to school with these lawyers who seem like they study all the time, They prioritize academic and personal excellence, They hold themselves to a high standard of integrity, and
so you wouldn't really expect people like that to be also having, you know, a side hustle that involves online poker and gambling at a high level and high stakes of poker games, or you know, using call girls or other types of websites to find female companionships. I think, as a general rule, like lawyers, just like everybody else, are kind of snotty, and they think of themselves in an elitist category of people, and so the idea that anybody that you know, revere or think of at the
highest echelon of your profession could be doing that. It's pretty shocking.
Tell us about the charges he's facing.
The United States District Court for the District of Maryland has charged him in a multi count indictment with several different violations of federal law, the most serious of which being tax evasion, aiding and assisting in the preparation of false and fraudulent tax returns, and making false statements to the government. So it's a fairly long indictment, it's about
fifty pages. They go to great lengths in the indictment to lay out his gambling activities, the way he funded his poker games, and then some of the other employment arrangements and quote unquote employees he used or hired to do a range of activities according to the government that would not have been considered legitimate employment arrangements, some of which were, you know, women that he met online and whatnot.
So the maximum term of imprisonment under tax evasion is up to five years, but the more serious penalties involved the fine. Typically in an indictment for tax evasion, there's going to be a settlement that's required in any results of the case, whether he goes to trial and loses or whether he pleads guilty, he will be subject to restitution and fines, which are usually sometimes double or triple
the amount that you actually owe the irs. So he's in addition to jail time, he's looking at some pretty significant fines and penalties.
Are you surprised that apparently he was offered plea deals twice and turn them down.
Everybody's motivated by something different, So I can't say that I'm surprised given some of the allegations here, he seems to be really doubling down on the hubrious of what he did. I mean, he spoke to the New York Times magazine and Jeffrey Tuban and gave a really long interview that now the government is trying to use against him in their case in chief. And so the fact that he's willing to kind of go down swinging doesn't surprise me.
Is the prosecution going to have a difficult time proving wilfulness here?
Some people think that the tax evasion statutes there has to be willful, intentional misrepresentation of your taxes, right, But there's really only three elements that the government is required to prove. For the top count in tax evasion, you have to show a substantial tax was owed beyond what was reported, that the individual did some deliberate or intentional
action to avoid paying the tax. And it can't just be that you omitted something, right, You have to actually intend to evade or obvious gate the income that was taxable that you owed, and then you have to do so with the intent, with the specific intent to evade the taxes. So in some ways it's complicated because the government has to do enough digging and create enough factual basis to prove that he intended to evade taxes beyond
a reasonable doubt. But as a matter of fact, that's not that hard to do to a jury, right, I mean, you can consider or think about a host of factual situations and circumstances where you and I, as regular taxpayers, would owe x amount of dollars. Then if we just didn't do it but knew we had the responsibility and duty, that might be enough to convince a jury beyond a reasonable doubt that you intended to evade payton lawful taxes. So, yes,
there's a high threshold in every criminal case. Of proving beyond a reasonable doubt the allegations that the government posits. But there are a whole host of facts here that suggests that he knew he was making income from illegal poker games and from gambling, and if he was not reporting that as taxable income, that could be a really
serious problem for him. The other issue is I think the IRS agents and the US Attorney's office will generally sort of actually impute a higher level of responsibility to a person like an attorney, who basically should know better, right. I mean, this is not an average person off the streets who may or may not understand the full scope of the tax code. This is a very sophisticated, smart individual with a legal degree who's operated at the highest
echelon of our career. It's just not going to be as plausible of an argument to say that he didn't know he was supposed to report this income.
So I guess you tell the Times that the case may turn on whether the jury thinks he's a good guy or a bad guy.
I don't disagree with that. Juries are fickle, sickle folks, and you don't know what they're going to focus on, and you hope as a prosecutor that you can make your case and lay it out. But studies after study has shown that the vast majority of jurors make up their mind an opening statement. Sometimes they lose attention or focus on very specific details and the things that the lawyers are focused on, who have lived this case and breathed this case for months or years in many cases
don't always resonate with the common duror. So, yeah, credibility is everything. Evaluation of credibility is a very normal human response, and jurors are going to be looking to see, you know, whether they have then enough facts to deduce whether this is a good guy. I think he's very right on about that in many respects.
Of course, no defendant has to take the stand, But in order to get that point across to the jury, would he realistically, not legally, but realistically almost have to take the stand.
No, But it's a lot harder to make that argument if you don't, because I think the average duror again is thinking, Okay, well, now you have an opportunity to tell your side of the story and tell us who you are, and if you elect not to do that, the judge gives an instruction to jurors. That says, specifically, just because the defendant did not take the stand in their own defense, you are not to interpret that as evidence of guilt. But factually and colloquially jurors do that
all the time. And so I think if he's wanting to put his credibility into the factual analysis here, then he's got to show the jury who he is, and the best way to do that is to take the stand. I wouldn't be surprised given these allegations if that's what he intends to do well.
He's obviously been successful at convincing people of legal arguments through his career. The government has listed more than sixty potential witnesses and more than a thousand exhibits. So the trial is expected to last about a month. Is that long for a tax case?
Maybe a little long, But given the amounts of money that mister Goldstein is alleged to have won and lost in these poker games and some of the other allegations, particularly if they feel as though Goldstein is a formidable opponent given his legal expertise in his legal mind, then the US Attorney's Office has to go the links to really demonstrate to the jury beyond a reasonable doubt as much as they can, as often as they can, and
they don't want to leave anything on the floor. So it doesn't surprise me that they're willing to kind of go the extra distance here and try to go guns blazing to get a.
Conviction, even though it's a tax case and normally I would say not too interesting, but this seems like it's going to be an interesting case with a lot of different facets.
I think it's an interesting story. I'm excited to kind of see how things go. I'll be watching this child closely, just like I think a lot of lawyers are. The other thing that will be interesting to see is how the defense puts forward a case at all. Right, there's no constitutional mandate that the defense do anything. So are they going to bring character witnesses into defensive Goldstein? Is he going to try to enter his own record? What is he? Is he going to be calling the shots
versus his own attorneys? So there's a lot to sort of watch outside of just how the evidence is put in to see how this all goes. I'm looking forward to it.
Too bad there are no cameras in federal court though, thanks so much, Marissa. That's Marissa Darden of Benish, 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 tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg