Transgender Student Wins Civil Rights Battle

avoid being bullied and stigmatized and discriminated against. And then to have a school board set this precedent for your school saying the student should not be treated the same way as other students, It's very difficult. It's very frustrating. His legal case against the school board wound its way through the courts, and finally, last August, the Fourth Circuit Court of Appeals said the school board had discriminated against Grim on the basis of sex by prohibiting him from

using the bathroom that aligned with his gender identity. This week, the Supreme Court refused to take the school board's appeal, sealing the legal victory for now twenty two year old Grimm. Joining me as Catherine Frankie, a professor at Columbia Law School. How much of a victory is this for transgender students

in this country? Well, even though the courts decided not to decide this case, what it is is a huge victory for trans PIDs, but for trans people more generally and for the idea of federal laws prohibiting gender identity based discrimination. Because with the Supreme Court essentially said by refusing to take this case, is that we decided this case already in Bostok last year. The Court ruled there that federal laws prohibiting sex discrimination include protections against gender

identity and sexual orientation based discrimination. And that case, the Bostok case resolves the Gavin Grim case as well in Gavin's favor. Didn't Justice Corsett say that the decision didn't apply to bathrooms? He did, He said, we don't have to decide that today. He didn't say didn't apply, but that that issue was not before us. But I think the rule that the Court established in that case applies to the bathroom issue equally as it says to employment

and educational opportunity on the basis of sex equality. And so the Court but for two members who dissented from the denial of granting sert in this case agreed that the Bostock case applies to educational equality just as much as employment based equality. Tell us a little bit about

Gavin Graham and his seven year legal battle. Well, Gavin, you know, was a high school student who, as he says in his legal papers and he said in the media many times, is a boy like any other boy, and wanted to be able to use the boy's bathroom like all the other boys did. And what the school wanted to do was permit him to use the women's room or to use a gender neutral bathroom that was

one that was basically designated only for him. And you know, if we did that to students of color and said, well, you can use the colored bathroom, not the white bathroom, or we'll make a special bathroom just for you, but you can't use the white bathroom, I think we would all understand that to be discrimination. And what the courts

now saying is that discrimination. Also when we create either segregated or separate facilities for trans kids, they should be treated like all the other kids with the same gender identity. The Supreme Court had agreed to hear an earlier appeal in the case four years ago, but then dismissed it. Explain what happened there, well, I think what the court wanted to do was have the issue right then, if

you will. In the lower courts, there was a lot of litigation around trans kids equality claims when it came to bathrooms and other aspects of their education, and I think the courts saw themselves as perhaps reaching the issue a little too soon a few years ago, so they wanted to issue to percolate a little bit more in the lower court, and with the boss Doc decision last terms, they now recognize that this issue has already been decided and there's nothing more for them to say about it

other than what they said in Bostoc. Let's take a step back for a moment. Will you explain the Fourth Circuit's decision and how they came to that decision. They based it on sex discrimination. There's several different ways to think about why gender identity based discrimination is a form of sex discrimination. And Gavin argued all of these different ways of thinking about the issues that it's a kind

of sex stereotyping. If we assume that only real women are those were also women identified biologically by a doctor at birth, or only real men are those whose birth certificates also say mail. And what Gavin was arguing is that there are lots of different ways of being male, his gender identity is one of them, and to choose as real males who can use male bathrooms only those who were identified at male at birth as a form

of sex discrimination. And the Fourth Circuit embraced that argument as well as the kind of argument that we saw in the box Star case, that any kind of discrimination against a person on the basis of their gender identity is necessarily a form of sex discrimination. Really reading and updating our sex discrimination laws to conform to where we're now thinking about sex based identity. I think this is the third time that the Supreme Court has left in

place lower court rulings supporting transgender rights for students. So the issue is now settled on the Fourth Circuit and I believe the Seventh and eleven Circuits as well. But there's no national precedence set by the Court refusing to take the appeal. If the Justice has really wanted to settle the issue, wouldn't they have taken the case and decided it that's right, and so the fact that the Court did not take the case and did not issue even a unsigned opinion does mean that we have different

rules coming out of different circuits. But it does also send a pretty strong message that the Court didn't think there was a significant legal claim in the appeal raised in the appeal in this case. But they could have done what they've been doing in the religious liberty cases.

Is even in a paragraph or a couple of sentences said this case was already decided in Bostok and that the lower court should apply the Bostok decision, or lower courts generally should, so they could have gone that extra mile, but for whatever reason they chose not to this time. Are there any circuits still considering the transgender bathroom issue or other issues related to transgender students. Well, I think

the bathroom issue is pretty resolved at this point. We have the federal government having issue regulations that interpret sexty quality protections under Title nine to transgender claims like Gavin's. But the next wave of cases that we will see may make their way to the Supreme Court deal with the issues of transgender athletes and particularly male the female

trans kids who are competing in girls sports. And this issue has been pushed rather aggressively by conservative Christian legal organizations like Alliance Defending Freedom and others, and they are making the claim that allowing trans girls to compete in

girls sports amounts to discrimination against fifth gendered girls. And we're seeing a split in the circuits on those cases as they move their way through the federal courts, and that issue may come before the Supreme Court in the next couple of years, so I would keep an eye on that. Let me ask you this, more than half the states have introduced bills that restrict the rights of

transgender people. So which way is the trend going here? Well, the states are the sort of training ground, if you will, for bills to be introduced every two years in the new legislative sessions in order to motivate a conservative base. So a few years ago with bathrooms, this year it's

about trans students wanting to compete in athletics. Every two years, members of the LGBT community are used as a way to motivate a conservative base to get out the vote, either in the mid term or the national presidential elections. And unfortunately it's those trans students today. But it was also trans kids who wanted to use bathrooms that it conformed to their gender identity, like Gavin a couple of

years ago. And I think the Supreme Court, in not taking the Grim case, has sent a message to those legislatures that those bills amount to a form of educational

based discrimination on the basis of sex. So, just to clarify, you think that the trend is courts recognizing the rights of transgender people, Absolutely, the trend is towards the courts recognizing trans right and that the fact that we've had conservative members of the Supreme Court doing so and taking the lead, I think send a very important signal that

we've reached the tipping point on this issue. That doesn't mean that bills prohibiting trans rights won't continue to get introduced in state legislatures, because, as I've said, it does motivate a conservative base, But those bills will be found to be either unconstitutional or discriminatory under a federal and state laws that prom him its sex discrimination. Where do you see the next area of litigation outside of student rights, Well, I think there's one remaining question that will have to

wait to see how the Supreme Court resolves it. That maybe an area where there are limits on trans rights, and that has to do with people who have religious objections to recognizing transgender identity or to using the pronouns

that trans people prefer. And there are a few cases moving through the lower courts now where, for instance, teachers have religious objections to using the pronoun that trans kids to ask them to use, and some or courts are saying, well, yeah, there are religious exemptions from compliance with laws that prohibit transgender based discrimination. And we'll have to see how the court balances religious liberty rights against the rights to equality

for trans people. The Supreme Court has just chosen religious rights over gay rights in the Philadelphia Foster Care case. So if this issue gets to the Supreme Court, how

do you think it would turn out. Well, I am the director of the Law Rights and Religion Projects at Columbia Law School, and we just issued a report on Monday called We the People of Faith, and in that report we noted how the Supreme Court this year has completely reorganized our religious liberty law in such a way that religious liberty rights are supreme over all other rights, whether it's rights to equality, rights to reproductive liberty, and really any other rights, and so I worry with this

new doctrine when religious liberty claims are used as a way to not have to respect the equality rights of trans people. The Supreme Court may respect religious liberty over sex equality in those cases, but they haven't had that case yet, so we'll see. Thanks Catherine. That's Katherine Frankie

of Columbia Law School. Facebook CEO Mark Zuckerberg was grilled by Democratic Congresswoman Fromila Jaya Paul about the company's acquisition of Instagram during the Big Tech Antitrust hearings last July. Facebook cloned a popular product, approached the company you identified as a competitive threat, and told them that if they didn't let you buy them up, there would be consequences. Were there any other companies that you use the same

tactic with while attempting to buy them? Congressman, I want to respectfully disagree with the characterization. I think it was it was clear that this was a space that we were going to compete in one way or another. This week, Facebook scored a victory when a federal judge dismissed antitrust cases filed by the Federal Trade Commission and a coalition of states that sought to unwind the social media giant,

forcing it to sell off Instagram and WhatsApp. But Facebook's victory maybe short lived because the judge has given the FTC thirty days to fix its complaint. Joining me is Jennifer Rey, Bloomberg Intelligence Senior litigation analyst. So Jen tell

us about the judge's decision. Well, the ruling in the case of the FTCs lawsuit against Facebook was really somewhat narrow because what the judge decided here was that the FTC had failed to reach their very first element that they have to prove to prove a violation of Section two of the Sherman Necks, and that first element is

that they have to show that a company has monopoly power. Now, there a couple ways to do that, but one of the ways to do it, which the FTC chose to use is to say they have a certain market share that shows dominance, and usually six six is enough to establish that the company has monopoly power, and that's what they claimed Facebook had in the market for personal social working services. So the problem that the judge had with

it was that the market definition was difficult. He accepted the market definition but then said it wasn't really very clear where the contours of that market are. But he also had a big problem with this sixty percent allegation because he said, I don't even fully understand what the relevant market is. And the FTC has said Facebook has sixty percent, But they need to do better than just

make an allegation. They have to somehow supply for me how they got to that sixt or how they're measuring that sixty And they didn't do that, So they didn't do enough. What they've given me is too speculative and too conclusory to go forward with this case. So, yes, this is a blow to the FTCs case. But the judge also said, but what I'm doing is dismissing this without prejudice. Well, who else is in the market with Facebook? Well,

you know, this is part of the problem. The FTC said, Really, there isn't anybody that once upon a time Instagram was in that market, but then Facebook acquired Instagram. But then, on the other hand, that contradicts the assertion that Facebook has a sixty share because that suggests that somebody else is out there that has a share, And the FTC didn't talk about any other competitors. So the judge had an issue with that as well and wanted more clarity

on that, And you're right. When we think about social media, we think about Facebook, and the FTC did argue that entities like linked In don't apply, or very interest driven social networking like a site like straba don't apply because they're different from Facebook, but they didn't really talk about who else is in that market. As an average person looking at it, I would say Facebook has a monopoly on social media because who else is doing that? Right?

And you know what soon? I think that's why the next time the FTC files is complaint, it will stick, it will surpass emotion to dismiss, and the case will go forward. And the reason is because it is fairly undisputed that Facebook probably has a monopoly in personal social networking services, and really all the judge wants from them is a little bit more to explain how they get to that six share, and maybe when FTC dives in a little bit more to file a new complaint, maybe

they do go up. Maybe they actually flesh this out a little bit more and conclude that there's higher than a sixty shared here. But because it is fairly undisputed and you can't really think of any real true competitors that are like Facebook or other places consumers could go that want an experience like Facebook. I think the next time the FTC files this complaint will manage to survive emotion to dismiss. So they have to file within thirty days.

Is that enough time for them to get all this together? You know? I think it should be, because they really don't have to do very much to get over the standards for emotion to dismiss. You know, they just have to say something that suggests that a claim for relief is plausible, So they don't have to do much. They just have to do a little bit more than what

they did. You know, I'm assuming that if they think they need more time, they'll ask the court for more time, and I believe the court would give them more time. Facebook share sword after this decision, pushing the company's market value to more than one trillion dollars. But how much of a victory is this if the FTC can refile, You see, I don't see it nearly as as big a victory as some of the headlines are suggesting. And I'll tell you it's not just because they can refile.

And I do believe they can fix this complaint sufficiently to get this case going. But also because the judge made the determination in this that he was willing to think of the acquisitions of Instagram and WhatsApp as potentially violating the law, that he's going to let them go forward if they can fix this monopoly power issue, he

would let them go forward to challenge those acquisitions. They had also challenged some conduct by Facebook relating to not allowing some interoperability, and that he said they couldn't go forward and challenge. But the bigger part of it, the more important part of it to Facebook, they can go forward and challenge. So the risk isn't gone. And I think it's not quite as big a victory for Facebook

as some may think. Now. In the litigation by the Coalition of States, the judge criticized the States for waiting years after the Instagram and What's App deals to challenge the acquisition. But I mean, didn't the FTC do the same thing. Yes, So it's really a weird little procedural law that doesn't apply to the FTC but does apply to the States, And it's called the doctrine of latches, And really what that means is that it's generally unfair to a company to go after them for something that

happened many years ago, and that the States knew. It wasn't like it was something they recently learned, but it was very highly publicized at the time that Facebook acquired Instagram and acquired What's Happen that Face, and the States actually alleged that at the time of those acquisitions they were anti competitive um and that they've had many years to go after these deals and they haven't done that, and that the doctor and the latches would then apply

UM and it's just been too many years and they can't bring their suit. But that particular law doesn't apply to federal suits, so it doesn't fly to the FEC suit that could also just appeal this. The States can appeal. The FTC won't appeal. They'll refile, but the States can appeal. Can the States refile, No, because the whole case was dismissed, so it's a little complicated. They can refile an entirely new suit, but this suit is dead. Their concurrent suit

is dead. They can't refile the complaints. The suit of the FTC versus Facebook is still alive. Cord isn't the only thing that Facebook has to worry about. There is also Congress. Tell us what Congress has been doing, absolutely, and I think it's been a long run. That's the bigger risk because Congress can actually act more quickly, I believe, than the time it will take for all of these

lawsuits to play out. Because even if the FTC ultimately wins, Facebook would probably appeal, This could be dragged on for years and years. But there really seems to be pretty strong by partisan interest in some kind of legislation that will ultimately tame or contain all of the four big

tech platforms, including Facebook. So you have from the House builds that have been proposed that are very targeted to big tech um and you have built in the Senate some that are targeted to big tech, but others that

are just generally targeted to reforming antitrust laws. And most importantly, making these kinds of lawsuits like the FTCs brought against Facebook much easier to win in court for plaintiffs, not just for government plaintiffs, but for private parties that might want to bring a suit, because the hurdle right now is that it is as we see from this current decision against the SEC. It can be really hard to

win these monopolization suits. So you know, there are proposals to change the law, and I do think they have traction, and I do think they can They can get somewhere and possibly get enacted UM. The House build you know, really would impose um new structures, new business models on these companies, new ways of doing business. I mean, they're quite intrusive in what they're looking for. I don't believe the most drastic measure ers in those bills can ultimately

be enacted in the law. I mean, there will be a long process of amending and changing and revising the current bills has written. There's been a lot of compromise will be needed, I think, just to get them past the House, and then of course they have to go to the Senate, where there might even be a big or hurdle to some of the more drastic measures actually

getting enough votes to pass UM. And the Senate process and the House process also have to get reconciled because they have competing bills that are similar but different, and they'll all have to get reconciled. So you know, we're a long way from legislation as well. But I do think that process will play out. I think something will come of it, some new anti trust reforms and anti trust laws that may impact Facebook and other big tech companies UM, and I do think that can probably happen

before these lawsuits can play out. And so let's turn to Google for a moment. So it's the Department of Justice that's investigating Google. Where does that stand? Right? So the Department of Justice has an ongoing investigation. Now it's been ongoing for quite a long time, longer than a year, and one lawsuit has already been brought. It's a fairly

traditional and standard antitrust lawsuits. And that's through the alleges. Uh, it's still in the beginning stages, but it alleges that Google entered various unlawful exclusionary agreement that blocked out other

UM rivals for search. So, in other words, it would pay Apple to be the default search engine on Apple iPhones UM and it makes its own phones, it makes Android zones, and so it would install its own search engine UM and Chrome as the default on those phones, and that it had all sorts of agreements with o e MS that they can't have the Android operating system

unless you install Google Search as the default. In that case I think has some legs because exclusionary agreements under the antitrust law have long been certain kinds have long been held to be unlawful. If you block up through those exclusionary agreements, a certain of a market off to your rivals, usually something over So I think that it's not a novel claim like the NTC Facebook cases. It's

a fairly traditional claim. I think there's some precedent that will stand behind it that could allow a court to rule in favor of the d o J. But at the end of the day, the remedy which would likely fit that kind of anti competitive conduct would be just

to simply eliminate these clauses and these exclusive agreements. I don't think it would be as drastic as to break the company up or make a divide out, you know, take out take a search engine away from its Android business and separate those out, because that would be overkill

to fix that problem of that anti competitive conduct. But the d o J may also go after a whole different business that Google engages in, and this is called ad tex and it's really the software services that are used to connect up advertisers and publishers digital advertisers and publishers online. So advertisers want to get their ads online, publishers want to get those ads, and they want to target them appropriately, and there's an auction process and it

all goes through this chain of software. And once upon a time there were a lot of different rivals competing within that chain in different pieces of it, and fally, over time, Google acquired all of these different businesses so that they could really control it, allegedly from start to finish, and that allows them to favor their own products, to extract fees at every single level um theoretically increasing prices for advertisers, increasing prices for publishers, and then increasing prices

for consumers. And the European Commission is looking into this. They've just opened an investigation into this kind of conduct. There is a private action already against Google in this space, and there's also an action by lad by Texas UM and with several other states aligned with it in the same space. But now it looks like from the reports that the dj may also decide to file a suit alleging anti competitive monopolistic practices in that ad tech space

as well. Let me ask you this Jen what's the point of the state attorneys general filing these suits and the federal government. It seems like there's a lot of overlap, and perhaps it's unnecessary or is there a good reason. You know, there is a lot of overlap, and and really I think the state attorneys general have have had for a very long time the authority on behalf of the consumers in their states to enforce the any trust laws,

and they often have done so. And they may have different interests or a different approacher or strategy than the FCC or d o J. They generally will work with them on the investigation and ultimately often the suits all get consolidated UM. But they want to have their own

suit June. Because let's say they have a consolidated suit with the FCC or d o J and there's a settlement drawn um and the states don't agree, as happened in Microsoft, they don't like that littlement uh and and they want to continue to pursue the case or they want to pursue a different settlement. Well, then it behooves them to have their own independent case ongoing so that they can either continue to litigate and not accept the settlement.

That's been agreed to by the FCC or d o J or try to get their own settlement that they think is better for them. Final question, do you have any reaction to Lena Khan becoming the Chair of the Federal Trade Commission. I do. I was very surprised by that. I did expect her to be appointed as an SEC commissioner.

The surprise was that she was appointed chair. I mean, there is no doubt she is, you know, incredibly intelligent and competent and really is one of the pioneers of what they called the you know, the new brandis movement in anti trust, pushing for changes in reform in the anti trust law um in our economy, which has been deemed to be the insufficient to deal with today's sort of digital markets. But she is young. Um, she's thirty two, and I don't believe has a lot of management experience

under her belt. And the SEC is a large agency and the chair position does entail quite a bit of management,

So I was surprised by that. I do think it means we're going to see a pretty aggressive FTC UM and we know that they have an investigation right now on going of Amazon, so I think it likely with Lena Con installed as chair who will drive policy for the Commission, that there's a good chance we'll see this year or maybe even in one queue f twenty two a lawsuit filed against Amazon because because y'all we already know that Lena Con, you know it has been widely

critical of Amazon. Thanks for being on the show as always, Jim. That's Bloomberg Intelligence Senior Litigation analyst Jennifer Ree. For more of Jen's analysis, you can go to b I go on the Bloomberg terminal. And that's it for the 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. I'm June Grasso, and you're listening to Bloomberg