Transgender Youth Care Targeted

of legislative interference with physicians and parents. And the bill did become law after the State House and Senate voted to override his veto, and Arkansas became the first state to ban physicians from administering hormone therapy to transgender youth

younger than eighteen. Other states followed with similar bands enacted in Alabama, Arizona, South Dakota, Tennessee, in Utah, and now lawmakers in more than two dozen other states are weighing legislation restrict or band access to gender affirming medical care for transgender youth, prompting legal challenges from LGBTQ groups that argue the bills or discriminatory. Joining me is Sasha Booker,

senior attorney with LAMB Illegal. I would like you to start by explaining what exactly is meant by gender affirming care what it encompasses. One thing to unpack immediately when talking about gender affirming care is that it's not, you know, some kind of care that isn't already regularly provided to

almost anyone, you know, whether you're talking about hormones. You know, we all know someone who is kicking testosterone because maybe you know, you're an older guy and you want to boost here, or you need it for other medical reasons. There's just a whole range of reasons why, you know, people undergo hormonal treatment. You know, one of the treatments is puberty blockers, you know, which is something that's used

for a number of conditions, like precocious puberty. But really, you know, what it boils down to is that this care, you know, it's not just automat addically granted to anyone that asks for it. It's a pison that's made between a patient and a physician and their family looking at the best options on how to treat gender dysphoria, which is a serious medically recognized condition. You know that if denied that care, you know that patient's going to experience.

According to the American Medical Association, and you know, other healthcare organizations really serious consequences, including suicidal ideation and debilitating depression if they're denied that treatment. That's just something that's been found by courts and by medicine across the board

for decades now. So it's hard to give you a concrete definition because it's the same care that everybody gets, just that it's the care that's provided to treat gender disapoint Can you tell us generally about these laws or bills that restrict or ban access to gender affirming medical care for transgender youth? How do they differentiate them from the treatment given to other youth, for example, let's say for precocious puberty. Well, I mean they're not in the

sense that they're not, you know, making a distinction. They're just picking on trans kids and saying, look, you can't have this care, and they even clarifying some of the bill language that you know, sher will continue to provide it for other conditions, but for you and your family,

we're going to absolutely deny it. So it's there's these bills that you know, for all of the lift service that's given to parental rights, their bills that drip those rights from parents and say that you know, we the

government without an ounce of medical training. In most cases, you know, feel like we know better than decades of research and best practice medical care, and are going to decide that we're going to create this categorical rule that says that anyone seeking a specific kind of care, say puberty blockers, we're going to categorically deny that to trans kids,

you know, because we think we know better. And you know, oftentimes you have sat through a lot of these different hearings and when when pressed on these questions, you know, they will concede that they don't have the medical background or training, or you know, wave off the fact that every preeminent healthcare organization in the country that looked at the question of whether this healthcare is politically effective, as

you know, resoundedly clarified that it does. Whether it's the American Medical Association and the American Psychiatric Associations, American Academy for Pediatrics. You know, the list is endless. And as opposed to that state legislators that is deciding to put theirselves in the shoes of parents and families in the medical community and decide what's best. And it's just absolutely

infuriating that they were able to do this. Of course, it's one thing to you know, provide those kinds of arguments in a state legislative hearing where you feel like you've got the advantage there by not being rebutted, you know, with the science and instead of stigma. But you know, when the rubber hits the road, and in these cases moved to litigation, the courts have, even in very conservative parts of the country like Arkansas and Alabama, has said

that just doesn't wash here. You're not turning to best practice medicine, you're not turning to science. You're don't have a basis for these arguments. And you know, have thankfully enjoined those really dangerous attempts to strip parents and kids of the best care that they can get. These bills and laws, do they target the parents, the children, the doctors with civil or criminal penalties even yeah, oh yes,

all three. There's you know, and well, you know, mostly it's the doctors, you know, because the aim is to chill the availability of care altogether, to scare people, you know, and that's I think that bears repeating too. And there was a hearing that I watched a while back, and you know, one of the medical professionals that was providing testimonies basically told the letstate legislative hearing to stop scaring people,

because that's what this really boils down to. These are really scared tactics, and that's what a lot of these

bills do. They seek to criminalize providers. You know, they're following the hippocratic oaths, and they're following you know, best practice medicine, and they're looking to the science, you know, and that again is clearly shown that these this care is clinically effective, and the states that are passing these laws are speaking to drip that right of them and then to actually punish them not just with civil penalties,

but with criminal penalties as well, you know. And a lot of them have a county hunter provisions that verify that if a clinician, you know, seeks to refer someone to another state for care, that they could also be on the hook for liability. So it's clearly a you know, ideologically driven efforts to be If you look at the landscape here, it's it's not just healthcare, it's sports bands,

it's bathroom bands. It's absolute shameless targeting of the most vulnerable kids that we have in our school transgender kids, and npinary kids. You know, it's just absolutely reprehensible. Eleven states have bills or laws with criminal penalties, and I was surprised that the blue states of New Jersey and Hawaii are included in that. Those are bills that are

going to move forward. But you know, I think that this has been a concerted effort by you know, th folks you know on the you know far right that are speaking to you know, influence you know, state legislators wherever they can, and you know in any and even in the most conservative parts of the country like in Texas and Oklahoma or wherever you have there. I mean, there's there's you know, progressive folks that you know trying

to move forward, you know, legislation protecting folks. So, you know, I think that you know, the language in those bills is it just demonstrates, you know, the rabid, you know approach that a lot of these folks have taken. They're not even attempting to moderate their views to you know, make a piece of legislation viable in those places. To me, it just demonstrates, you know the viciousness of these attacks.

At least three of the states, Oklahoma, Virginia, and South Carolina are targeting people up to the ages of twenty one and twenty six. Do you know how they justify that leap. I don't know how they justify any of this tork Dune. It's unbelievable. I mean to me, that just again underscores that this isn't about healthcare, this isn't about sports. This is about a view of the world

that would erase transgender people altogether. And it doesn't end with healthcare, and it won't end at twenty six to one, end a thirty six. It's just an ongoing effort. You know. It's just so important, you know that people recognize that this is the partisan attack and it's it's about targeting a specific vulnerable population in our country has seen this before, you know, with different vulnerable populations, and we will prevail. But it's just a really dark moment, especially even when

these bills don't move forward, they have an impact. They have a mental health impact on again some of the most vulnerable kids out there, and it's just, you know, really sad to see stay legislator get swept up in this, you know, almost trans panic and introduce these bills that target and seek to cause great harm to these kids, and you know, unfortunately that rhetoric does get to trans kids and impacts their mental health. We know that because

we've seen spikes. There's a you know, a great resource available for folks called the trans Lifeline, and they track the number of calls they get, and whenever these kinds of bills are introduced, whether they're viable or not, they

see a spike. I think it's just an obvious inclusion that this is because of the way in which this rhetoric is really ramped up in the last few years, that it's become you know, any divisive cultural or I guess these folks that are engaging in this war seem to forget that there are victims and there are real people on the other side of this, and there's a lot of harm and damage being done. You mentioned Arkansaw. What argument did the acl you use there to challenge

the law. One of the primary arguments is the constitutional protection against providing an equal protection you know, the equal protection clause. The bills in a lot of cases clarify that again that the care that they're seeking to trip from trans kids they will freely provide to other kids, So they're not making any pretense that this is about targeting trans kids in particular, you know, a politically unpopular, vulnerable population, and the failure successfully made legal arguments to

that effect, you know, into equal protection clause. But I think really what it boils down to is, but I've just been going over earlier and that the courts are thankfully rigorate and are paying attention to detail and things that you can get away within a legislative hearing don't wash there. And I think the courts in Arkansas in Alabama and that will probably see, you know, as a result of this legislative session as well, they have seen

through that, you know, the charade. You know, they know that decisions that are being made here aren't being made in the best entry of the state or of people in Arkansas, and they're being made based on animals. Otherwise you would be able to provide the scientific evidence that would support your view that this carrey danger. And the courts have looked at the arguments that are being put forward showing that no, you know, this carrey is medically necessary.

It's held the same carrits provided to other kids, you know, on a daily basis, and they're not going after precocious puberty, and I'm trying to strip puberty blockers from those kids. They're just going after trans kid And I think that the courts and really seen through that, and I'm confidence that that will continue to get the case. So in Arkansas, that law, the so called Safe Act, was enacted over

the veto of its Republican governor. Yet the Arkansas Attorney General said his office will continue to defend the acts constitutionality.

What stage are they at? Was it just a preliminary injunction and now they're going for a permanent rule, you know, And I just you know, I can't let this go without pointing out that folks are probably familiar with the news clip of John Stewart formally from The Daily Show interviewing the Attorney General's office and you know, really call them out on the junk science they were putting out with regard to the care and he responded to, you know,

the junk science points that that's an incredibly made upsistic, you know, and that's what the courts are saying as well. But to answer your question, what happened in Arkansas that the court you know, yes, you're right, and it just shows to me of all the priorities that the state legislature could be focused on, you know, whether it's improving

schools or fixing postles in the roads. I don't know, there's like seems like there's a million things to do other than you know, really focus in on this vulnerable lessons too percent of the population and pass these really vicious laws. But it just shows you the panic apparently that that you know, involved with these these moves to

try to strip these protections. You know that they would override Governor Hutchinson's veto and uh and and thankfully you know, the court you know it did issue a preliminary and juncts and saying like the state back or whatever you want to call it, you know, we call it the

attack trans Kids Built. Um was enjoined and it was appealed by the Attorney Generals US to the a Circuit Court of Appeals, and the Circuit Court of Appeals, you know, again looked at the science and said, you know, frankly, no, this is that doesn't watch here, you know um and you know the shows science over stigma and upheld them the injunctions, so it's still in place. There was a trial um last fall and we were expecting a decision I believe sometimes soon, but I would check in with Afia,

you folks who have litigated this case masterfully. Also, it's not just Arkansas. There was another healthcare band past in Alabama last year and similarly, the court you know it needs are very as folks know, conservative parts in the country. We're not talking about Hawaii here, and the court looked at the evidence and said, no, we're gonna I'm not gonna let this dangerous piece of legislation that's not grounded in science and clearly ideologically driven go into effect and

target and harm real human beings, real people. So thankfully that case was enjoined as well. Of course, these you know, are going to continue to move through the process, but I'm grateful that they won't go into effect, you know, while litigation proceeds, so these folks can obtain the care at these parents and family and providers can give the best care that they can for these folks and these

really difficult parts of the country. So does the ACLU or LAMB illegal intend to fight each of these laws if they're passed. We're going to defend trans kids and you know, every day of the week. Three sixty five days a week. You know, we have to make smart, strategic decisions, you know, and that's just something that's developing. And we certainly will fight until every trans kid is able to access the care that they need and deserve. And that's going to be what we're gonna do, you know,

till the end, and I know we will prevail. This is again the mirrors you know, the civil rights battles that we've had in this country unfortunately, over and over and over again, you know, when they're talking about marriage equality or non discrimination protections. It's just the same story over and over again. And you know, I am confident

that we will prevail. And again, you know, I'm really excited about the fact that the courts have seen through, you know, the charade and understand that this is care that is medically necessary. They're turning the science, you know, rather than stigma in reviewing these challenges. There are also bills that band transgender girls from playing on sports teams that match their gender identity. Have there been legal fights against those bills as well if they progressed to any

reportable point? Um, yeah, And again in response to that is I'm going to make the larger point, you know, once more, that this really demonstrates the fact that, you know, whether it's healthcare or sports, or bathrooms or names and pronouns,

these attacks are across the board. It's just absurd to me that, you know, that day legislatures would invest so much time and money and effort on such a vulnerable population, you know, which is less than two percent of the population and target these kids when there are so many other important priorities, you know, making sure that people are able to get the healthcare they need, and making sure that the schools are meeting their kids needs and can

sure people have food on the table. It's just unbelievable that they've chosen this is the thing that they feel is the most important for them to get done. But yeah, so there are a number of challenges that are working there through the courts to make sure that kids can participate. You know. One of them is the case that you know, we're working on involving a transgender girl in the state of West Virginia who is seeking to play on our girls cross country team, and that case is working its

way up to the four circuit. You know, we're working on a case in Tennessee for on behalf of the transgender boy who just wants to play golf on the boys team and is being told by the state of Tennessee that he can't. And there's also a couple of other cases that have been filed, you know, challenging those as well. But again, it's not about sports, So this

is about targeting trans kids. Thanks Sasha. That's Sasha Bookert, Senior attorney was Lambda llegal companies in Illinois that collect fingerprints, face scans, and voice prints without proper consent face the

risk of millions of dollars in penalties. After the state High courts ruling in a case against Whitecastle, a former Whitecastle manager alleged that the Hamburger chain violated her biometric privacy rights by collecting fingerprints without her written consent every time she clocked in and out of the timekeeping system.

The Illinois Supreme Court found four to three that a separate claim for damages can arise each time a business fails to seek permission to gather biometric data from workers or consumers, or fails to disclose retention plans for that information. Since the state's enactment of the Biometric Information Privacy Act in two thousand and eight, It's been viewed by defense lawyers as a boon to the plaintiff's class action bar which has filed litigation against big tech and social media

companies airlines, railroads, retailers, grocery stores, restaurants, and more. Joining me as privacy specialist, James, a partner at Thompson Coburn start by, you know, explaining what the issue was before the Illinois Supreme Court. There's been several ambiguous issues that have been litigated under the Biometric Information Privacy Act, and one of the early ones that was addressed in a case called Rosenbach was who can bring an action under

BIPPA to utilize the liquidated damagist provisions? Is an aggrieved person as the law defines it. And then the issue that came up in Whitecastle was whether or not each collection of a biometric can result in its own claim

as far as those liquidated damagist provisions that are concerned. So, if let's say an employer uses as a biometric time clock and they're they're sued by the employee for violations of PIPPA, they you say that the same thumb print, is it a claim for just that first collection of the thumb print, or is it for every collection from the first to the last, Because each violation it can be a thousand dollars liquid data damages or if it's

a knowing or reckless violation, five thousand dollars. So obviously this makes the potential liability several times greater in magnitude. I've never done anything about on the what is the purpose of Illinois Act? I mean, do the employees at Whitecastle know? Don't they know that they're getting their fingerprints scanned?

What's the point of the act. The idea was that biometrics are considered just a somewhat different type of sensitive information than others, largely in part because they can't be changed. Whereas you can you can change a password, you can change an account number, you can't change a thumbprint. You can't change in Irish scant and so the onner like lature wanted to make sure that people were notified and

give their consent for those those collections. And so actually many years ago it was enacted, I think in two

thousand and eight. Technically it was the second state biometrics law after Texas, and actually one of my colleagues here at the firm John Cullerton was in the only Senate and was president, and the one I sent it soon after the law was enacted, and so he could tell you that they just wanted people to be notified that this was happening and into some way to give their consent, so to scourage the surreptitious collection of this kind of information,

and to have some incentive for employers or others to get that kind of consent in place. But the intention wasn't what we have in place now, which is that this has become just a hot bit of litigation with absolutely enormous potential damages for a company, when the plant don't have to show any actual damages at all. Why did the majority decide that you need consent I guess for each and every finger swipe or face scan. Here

they were really focusing on the damage issue. Theoretically, you could certainly do one consent that would cover all collection. But if you don't get that appropriate consent, whether it's once or each time, could you have a claim for each one of those? And so here the Millinary Supreme Court, the majority is saying, and I would notice it it's

a four three majority. So it was contentious that although they're sympathetic that this could result in extremely large damages, that the way of the law is written, that this is the conclusion they had to come to the dissent or for Democratic appointed justices in the majority, one Democrat that chie judge and two Republicans in the descent, that the legislature could not have intended this kind of result,

to have this kind of enormous damage potential. The damages are discretionary, so you could have a case without any damages at all. Yeah, And for strategic reasons, a lot of plaintiffs don't plead any actual damages from it to

avoid having cases removed to federal court. It's sometimes more advantageous to not played any So, yeah, you can have a case where someone's pleasing that they were not actually damaged at all based on the violation of PIPPA, but they want to utilize that thousand dollars per violation statutory Are there some huge awards out there that have already been put in place. There was a case against a

railroad freight railroad company a few months ago. It was a very large verdict and we're in somebody just at the start of this because we're working through several of the issues. A lot of cases right now have been settled, and we've seen certainly settlements many in the millions of dollars, tens of millions of dollars. Those are willing to go

up considerably after the ruling and Whitecastle. As we move forward to cases that are currently pending are going to be filed, I think we can expect that they're going to be a settlements in those cases because this certainly provides a lot more leverage to Plainiffs Council in those settlements. And so I think we're going to see settlements that are going up considerably from what we've seen in the past.

And is it mostly employees who are suing under this law, Yes, Andswer That's one of the things that the law is not written specific to employees. But the vast majority of the cases have been filed to this point have been involving employees and in disproportionately involving biometric time clocks. So is it likely that in light of this, employers will just find another way to track when their employees come in and leave or go back to the old time stamps.

I don't know, it is quite possible. I mean I think obviously from my perspective, I'm a compliance attorney, so I help clients get into compliance and get the contents they need, and so it makes it all the more important to do that. I mean, I think everybody has to do a risk analysis. Is using that biometric time clock worth it for me? You know? Or can I

address the risk appropriately with getting a good consent? I mean, I'd also know the focus to this point has all been on failure to obtain proper consent, the prior written consent that DEPPER requires. There are several other requirements ENDPA about the use of biometric information, about how how it can be stored, how protected. At this point, I think the focus has been on noticing content just because that's

in some ways the easiest to prove. But if if we you get better consent in place, we may see some of those other issues get litigated down the road. By doing the scan, the fingerprint scan or the face scan, isn't there an implied consent because you're doing it and you know you're doing it. The issue is that the language of PIPPA as you need to have prior express

written consent, and so that makes it difficult. Even if the average person would realize that that is being collected about them, and they've repeatedly provide the biometric It still says you have to get consent. So do you think as a compliance officer that an employee signing a written consent form, you know, a lawyered written consent form, once can state that anytime I scan my fingerprint, I give consent. Would that work or would you think that each and

every time they you have to have a consent. You can never give that iron cloud guarantee. But I think if you worried the consent properly, you make it clear that the biometric identifier will be collected repeatedly over time. You make it it's conspicuous, so the person knows clearly what they're consenting to. I think you could do it with a single consent. It'd be pretty impractical to do

it each time. I certainly hope that courts would be would recognize that, and we have a lot of other contexts where a single consent can cover multiple actions, So I would certainly hope that would take care of it here. A Whitecastle spokesman said, we're reviewing our options to seek further judicial review given the strong dissenting opinion. What were

their judicial review were they thinking about? This is the highest court in Illinois, right sure, and I'm guessing they probably need There are other legal points to be addressed.

I mean, I think that there's an argument to be made that there are constitutional guarantees on excessive fine, and you could certainly make the argument that this portion of them, in light of the finding at Whitecastle, is unconstitutional because it violates those constitutional guarantees against successive fine, giving what we've seen them from the court. Now and more states are considering these kind of laws. There are sort of two models of state laws out there. There are three

biometric privacy laws existing. You have the Illinois law, which has this statutory damage's provision from its a private right of action. You have somewhat similar laws that were enacted in Washington State in Texas that have similar substantive provisions but don't have a private right of action and don't have the statutory damage this revision. And so some states are looking to the Texas or Washington model. Some states are looking at Illinois as they consider biometric privacy law.

I know that in New York State they're considering a law that's very very similar to when Illinois has done. Missouri and I think Massachusetts all considering laws that look a lot like Illinois. So if you adopt very similar laws this, the Whitecastle decision could have similar effects well beyond Illinois borders. Thanks so much for joining us on the show. James. That's James Shreeve, a partner at Thompson Coburn. 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 week night at ten pm Wall Street Time. I'm June Grossow, and you're listening to Bloomberg