This is Bloomberg Law with June Grossel from Bloomberg Radio.
In a landmark decision, the Supreme Court divided down ideological lines upheld Tennessee's ban on gender affirming care for transgender miners,
a stunning setback to transgender rights. Chief Justice John Roberts wrote the majority opinion for the six conservative justices, finding that the law does not violate the Constitution's equal Protection clause, which requires the government to treat similarly situated people the same Roberts wrote that there are fierce scientific and policy debates about the medical treatments, but quote, we leave questions regarding its policy to the people, their elected representatives, and
the democratic process, Echoing what the Chief and Justice Brett kavanaughh pointed to during the oral arguments.
You know, we might think that we're, you know, we can do just as good a job with respect to the evidence here as Tennessee or anybody else. But my understanding is that the Constitution leaves that question to the people's representatives rather than to nine people, none of whom is a doctor.
If the Constitution doesn't take sides, if they're strong, forceful scientific policy arguments on both sides In a situation like this, why isn't it best to leave it to the democratic process?
Justice Sonya Soto Mayor wrote a blistering descent for the courts three liberals, accusing the Conservatives of abandoning transgender children and their families to political whims by retreating from meaningful judicial review exactly where it matters most. During the oral arguments so to, Mayor had said that the democratic process does not protect transgender people against bad laws.
There one percent of the population or less. Very hard to see how the democratic process is going to protect you. Well, you are Blacks were a much larger part of the population, and it didn't protect them. It didn't protect women for whole centuries.
Twenty three states have bands similar to Tennessees. Joining me is Kate Redburn, a professor at Columbia Law School whose expertise centers on the law of gender, sexuality, and religion. How much of a setback is this decision for transgender rights.
It's a significant setback for transgender rights, especially regarding the availability and access to medically necessary treatments for gender dysphoria. So the opinion refers to SB one's Tennessee law, which essentially prohibits transgender youth from accessing gender froming care while allowing all other youth to access the same treatments. He says, that's not a sex classification. What it doesn't do, however, is it doesn't hold that trans people are not a
suspect class in general. So it looks like at least three justices were willing to go that far, and the opinion didn't go that far. So it's very bad for trans kids and potentially trans adults who are seeking medical care, but it doesn't necessarily reach as far as all transiscrimination.
What was the central legal question here regarding the equal protection clause?
So the question before the court was whether or not this law violated equal protection, and the United States really directed under the prior administration, really directed the court's attention to the question of whether or not this law constituted a sex classification. So does the law turn on sex? And the reason for that is because when laws do turn on sex, then the court it looks more closely at the law. They call that heightened scrutiny for sex discrimination.
So the court I said that certain kinds of classifications, race classifications paradigmatically more into strict scrutiny. So the Court's going to look very hard. Sex classification the Court has previously said sometimes are permissible, it's sometimes okay for governments to distinguish between people on the basis of sex or make sex classifications. But because it sounds a little bit potentially suspicious, they're going to look more closely. And so
the question here was is it a sex classification? And then the danger was what had happened in the Sixth Circuit where in this case that court had said that this law was not a sex classification and sort of combined the analysis in a way that made people concern that the court was going to find that even certain
kinds of sex classifications don't Warrant tightened scrutiny. So here what happened was the Robert's majority opinion says that this law is not a sex classification and therefore only warrant's rational basis review.
Chief Justice Roberts, in his majority opinions talked about the fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field. Quote, we leave questions regarding its policy to the people. They're elected representatives and the democratic process. Is that just the court looking for an out, I mean, they do make policy decisions.
Yeah, So it sounds not dissimilar to what the Court said about Dobbs when it overturned roversus Wade, which was under the guise of changing doctrine, and that case quite significantly, it described itself as kicking the question back to the states.
What is suspicious about that language in this context is that the heightened scrutiny is actually designed to make it possible for course to spend some time really looking at the justifications that the governments are using for regulating and classifying on sex, and then it also asks whether or not the means justify the ed. So it might be that there's a close relationship between the purpose of the law and its classification, but it's nevertheless not an acceptable
purpose anyway. All of that's just to say that the existing doctrine is meant to give the court the opportunity to really weigh evidence. And what this decision does is it seems to open up the possibility of authorizing governments to regulate around medical procedures that touch on sex without
courts even looking to weigh the evidence. So it might be the case that the Court could have applied heightened scrutiny and still found that this particular law had, on its view of sufficient evidentiary support, you know, in light of the purported medical controversy, But it might not have, and it really denied itself and potentially future courts from even looking into that.
Justice Sonia Sotomayo wrote a blistering dissent, and she read a summary of it from the bench, which the justices sometimes do when they feel strongly about a descent. Then she ended with in sadness I dissent, she talked about the majority abandoning transgender children and their families to political whims.
I think that, you know, her sadness stems from the fact that this is going to force potentially trans kids and their families in half of the states where similar laws are on the books to relocate in order to simply live their lives. The state of the medical controversy about these issues, and the majority of and is vastly overstated. Much of the history that it relies on, and some of the other concurring opinians rely on, it's just the untrue.
And so you know what I think, Justice Sodomayor was trying to say is that the consequences for trans youth in particular are just really, really egregious.
In her courtroom statement, she said that similar arguments were made to defend the Virginia law that prohibited interracial marriage that the Supreme Court struck down in nineteen sixty seven.
Yeah, so we call those equal application laws, and they basically say that because so in Loving versus Virginia, the argument was well for the law prohibited interracial marriage, and the justification for it that the state gave was this is not racial discrimination because white people are not allowed to marry people of color and people of color are not allowed to marry white people. In other words, everyone
is equally prohibited. But the court said no, this is still rooted in racial stereotypes that suggest that interracial marriage is bad, and also animus towards racial minorities and trying to reinforce the racial hierarchy.
In the country.
So the fact that you can find in that case white people and black people on both sides of the line that the regulation draws does not mean that it's not subject to heighten scrutiny. And so there's a reading of the majority's opinion here, which that it does exactly the same thing. That's what she's saying that just because there are transgender miners on both sides of the line. In other words, transgender miners, according to the Court, can still obtain sort of treatments if they're not for the
purposes of addressing gender dysphoria. That doesn't mean that this is not motivated by animus towards transgender people and trying to reinforce as sex and gender hierarchy. That suggests that there's something normatively preferable about not being transgender.
How have transgender rights in particular, How have transgender rights in particular suffered or been affected by Donald Trump's presidency?
Basically says it's a little bit after twenty sixteen, it's been a major priority among Republicans legislators in particular to attack trans rights. There's a lot of reasons why that
could be the case. You know, one reason that having lost the gay marriage fight, there's an effort to find a different issue that touches on questions of traditional and non traditional gender and sexual role to search for another issue became even stronger after Dobs, after the Supreme Court overturned row versus ways in part because abortion is actually quite popular nationally, and so in order to create some kind of coalition that could win national elections, needed to
find an issue which would connect to traditional gender and sexual values without touching on something popular like gay marriage or abortion. So a way to understand the effect of the Trump administration is really that it has accelerated a pre existing tendency, and it's turned what were state level efforts to make transgender life extremely difficult, if not impossible,
into national policy. So the redefinition of sex, attempts to regulate medical treatments, access to bathrooms, access to sports teams, all of those those efforts that we saw in the executive orders, and of course, you know, very important restrictions and attempted restrictions now in Congress on access to healthcare through various kinds of federal aid are reflecting the nationalization of what had been state level attacks.
Does the decision today help legal challenges by President Trump and Republican administrations to roll back protections for transgender people.
It might that it might not. As I said, there is not a majority on the court apparently to hold that anti transiscrimination, you know, is not visible to the Constitution. In other words, there are other kinds of anti transcrimination that the Court seems to have held open the possibility for recognizing, and so it's going to really depend on
what is characterized as a medical condition. In other words, this opinion says that SB one is discriminating on the basis of gender dysphoria and not transgender identity, and so other laws do not have that character of being ostensibly
justified as medical regulations. Instead, I think the normative stakes of just trying to force people not to be transgender or even clearer in those other situation, And the Court hasn't totally eliminated the possibility of reading those arguments in the future.
So the justices still have to rule in another case about whether a Maryland school district is violating the Constitution by using LGBTQ friendly books in the classroom without giving parents the right to opt out. After hearing the oral arguments in that case, and I know everyone says, you can't tell what the justices are going to do, but it seemed pretty clear that there were enough justices to support the position of the religious parents. There is that case important.
Yeah, that case is enormously important for another front in the ongoing attacks on really any kind of non normative families or gender or sexual identities. The issue is actually
not at all new to the country. It has never reached the Supreme Court before, but in the nineteen eighties there were a series of lower court cases on identical issues where conservatives, in that case, people who self identified as fundamentalist Christians, objected to content in public school curricula that they characterized as secular humanism, and courts universally said that mere exposure to ideas which parents dislike, or even
ideas which are sensitive to the religious beliefs of parents, does not constitute coersion, and so it's not constitutionally suspect that court does seem poised to equate contact with coersion in ways that are potentially quite quite sweet thing. During oral argument, the Actings Lister General who made the arguments, suggested that the presence of a transgender student, for example, could be considered a kind of content to which a
religious objection might be relevant. In other words, it was possible not only that a parent could object to a book being on the shelf or a book being read in class that includes, for example, gay characters, but also that the existence of a person whose self is disliked or reported to be against the religious beliefs of the
parent could prompt an opt out. So it really has the potential to destroy the ability of public school teachers to make inclusive choices about what kind of content and what kind of classrooms they have that reflect the diversity of our society.
Thanks so much for joining me today. That's professor Kate Redburn of Columbia Law School. Crowds outside the courthouse in Dedham, Massachusetts, cheered this afternoon after a jury found Karen Reid not guilty of second degree murder and manslaughter charges in the death of her Boston police officer boyfriend in twenty twenty two. The jury did find Read guilty of the lesser charge of drunk and driving, handing down its decision after deliberating
for at least twenty two hours over four days. The verdict comes nearly a year after another jury had deadlocked over Reid's guilt. It's a huge victory for her lawyers, who've asserted that she was framed by police after dropping O'Keefe off at a party at the home of a fellow officer. Prosecutors argued the forty five year old read hit O'Keefe with her SUV before driving away, but the defense maintained that O'Keefe was killed inside the home and
later dragged outside. Joining me is former Palm Beach County State Attorney Dave Arenberg. Were you surprised at the not guilty verdicts here?
I was very surprised by it because I thought the prosecution this time did an excellent job and focusing the jury on the evidence, the data, the cell phone data, the evidence of the battery of the cell phone and when it started to weaken, and when the phone started to freeze, the timing. I mean, this was not speculation. Data doesn't have any ax to grind. Data is data, and as a result, I thought the jury would listen
to that. Instead, they got distracted by all the things and apparently found reasonable doubt.
Obviously there were no eyewitness accounts, no direct evidence of the hit, but there were a series of experts to fill in the evidentiary picture. Do you think that testimony was too sophisticated for the jury.
Whenever you get into a battle of experts, it's a problem for prosecution because jurors these days, they want eyewitnesses, they want the DNA, they want the conclusive smoking guns because they're used to seeing that on TV shows which are wrapped up in an hour at CSI and other shows. And if you don't have that, jurors will quickly find some reasonable doubt, especially if it becomes a battle of experts.
But I thought that it was a defense that came up with a cockamamie alternative theory and thus raised the bar for the defense by saying that John O'Keefe entered the home. There's no evidence he entered the home. There's no evidence that anything happened, but he was hit by the car by a drunk, enraged woman who left dozens of angry voicemails on the victim's phone while he lay dying in the snow.
And how did the defense explain Read's own words to paramedics afterwards, repeatedly saying I hit him.
Yeah, her own words, I mean, she admitted it. But they were able to somehow frame it as maybe she was unsure, maybe she thought she did, but the witnesses said no, she said I hit him. I hit him. I mean. Her own lawyer when this case started said that she did hit him, that this was an accident, but then they changed their view to try to get away with it entirely, and she did.
Would we call it a mixed verdict because they did convict her of operating under the influence of alcohol. Of course, the judge just gave her probation for that.
Well, yeah, but they didn't find or guilty of leaving the seam of an accident, so they didn't even feel that it was conclusive that she caused an accident. So how did he die? It's a binary choice. Either she hit him or he went into the house and was murdered by law enforcement officers and soccer moms who got together in a conspiracy of silence the murder their friend and then dump his body on the front lawn. I don't even understand how anyone can think that makes sense.
I mean, if you're a law enforcement officer and you're in cahoots with soccer moms, wouldn't you think you would just claim self defense if you wanted to kill another law enforcement officer, or wouldn't you try to hide the body? Why would you throw the body onto the front of your house unless it didn't happen, which it didn't happen.
What some people say is the most powerful defense testimony was a snowplow driver who passed the home several times in the hours after the alleged collision and said he didn't see a two hundred and sixteen six foot one man lying in the yard.
Yeah, and no one did. The snow was coming down and no one did. The only person who found this person, who is then the next morning buried under the snow. The only person who found John O'Keefe was the person who hit him, because she knew where his body was. Because she hit him, She knew what happened. No one else could find him. They were driving around looking for him, but she boughted them from a while away because she's
the one who hit him. So in this case, I feel the same way as I did after the O. J. Simpson verdict or the Casey Anthony verdict that he had a guilty person go free.
The jury deliberated about twenty two hours over four days. Does that sound to you like there was a holdout.
Yes, it does sound like there was a Vibman discussion and this was their compromise verdict. But the compromise isn't really much of a compromise because the only buster on the lowest count, which gave her probation, so he gets the walk free. It's not over yet, though, because there'll be civil lawsuits than there are, and there also will be a trial of Turtle Boy, one of the bloggers who was on her side.
Usually on a retrial, it's the prosecution that has the advantage. Why do you think it was different here?
I thought the prosecution did a really good job. I don't have any issues with him. I think the defense was able to capitalize on discontent with police. You had jurors. All it takes his few jurors who would have issues with police. And here the accusation was that there was a police cover up and that the police officers were too close to the family inside the house, and the police officers were not only incompetent in collecting the evidence.
That's the defense talking, not me, but also that the lead investigator, who was not even called to the stand, but that the lead investigator was much discussing individual with his comments about Karen Reid, and he did make defensive comments that the whole thing was tainted, and I think that did have some residents with the jury. I think they press want to know why the lead investigator did not testify. Maybe they were hiding something, which they weren't.
They just thought that this guy was aside show a distraction because of his comments.
Yeah, and the defense seemed to emphasize that in the closing arguments. Did the defense improve over the first trial where it just presented a day and a half of defense witnesses.
I thought the defense did a really good job as they did in the first trial. I mean, anytime you are able to get a guilty client acquitted, it's a real feat for the defense, and they deserve credit. They're great lawyers, and it is my belief that she was guilty, and I think the evidence conclusively establishes that. But when you're a defense learning able to create a s I show a distraction and it works with the jury, then
you're doing your job, I guess. And that's a shame for the victims' families, but that's what it is.
So explain how in a civil case the standard is lower, so there might be a verdict in the family's favor for damages in the civil case, even though she was found not guilty in the criminal case.
Right in a civil case. The standard is just proponents of the evidence. It's much easier to prove and either have proved negligence, which is a lower burden, So all around, it's easier to prove that case of the evidence just means is it more likely than not that Karen Reid did something wrong here, committed a tort. You don't have to prove anything beyond a reasonable doubt.
So is the logical conclusion after this verdict that the murderer is still out there?
Yeah? I guess she and Simpson will go search for the real killers. That's really what this is, right, This was a binary choice. Either she hit him with the car or he went inside the house and was murdered by law enforcement officers and soccer moms, and then they threw their friend's body onto their front lawns. Doesn't make any sense.
So, Dave, what do you make of her supporters? I mean, there were crowds of people outside the courthouse waiting for the verdict.
I mean why she became a cult of personality. I think that the narrative that was fed by bloggers was that here's this sweet, innocent woman who's being framed for a crime she didn't commit by by corrupt law enforcement officers. And I just feel for those law enforcement officers and the families for having their names dragged through the mud when they didn't deserve that. They lost a loved one. And John o' keith was a good man, and now, in my mind, a guilty defendant walks free.
And when Reid came out of the courthouse, she made this statement, no one has fought harder for justice for John O'Keefe than I have.
That's her oj Simpson, I'm gonna find the real killers moment, and just tells you all you need to know about her. I mean to make a statement like that, what an insult to the family, Now, what an insult. It rubs salt in the wounds to say something like that. You know, at least just go on with your life, and this family is suffered enough. But she continues to rub salt in that one.
And following the verdict, several witnesses in the case said in a statement that their hearts are with John and the entire O'Keefe family and that the result is a devastating miscarriage of justice. Thanks so much, Dave. That's former Palm Beach County State Attorney Dave Ehrenberg, 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