Gender and U.S. Law with Candice Jackson
Candace Jackson is here, Candis. Welcome to the program. Thank you. Adam. Glad to be with you. Thank you. So, a couple things here for the listeners. As everybody knows a listen to this podcast. I love to bring people on from all sides of the aisle of varying, it illogical Stripes because democracy depends upon our disagreement. That's what makes us Americans. That's what makes us committed to this experiment called America Candace's. The first person who has served in the Trump Administration to join us in dirty moderate. That's the that's a first First. And I also want to welcome her because I think she has a really interesting story. And I think it's important with all of the cultural issues swirling around us that we get perspective and this fight where I may stand or think. I stand. It's good to have people that stand their ground elsewhere. So Candace again, welcome. I want to just quickly tell her Bae Candice was the acting assistant secretary for civil rights from 2017. The 2018.
She also was the deputy general counsel of the Department of Education from 2018 to 2021. Those are both Trump Administration positions in Kansas. Currently practices law in California. You in l.a. by the way, Northern California. Oh Northern. Okay, cuz I'm in La. I know you are Stanford educated and a graduate of the Pepperdine law school. So you're certainly credential. Now, I want to jump in here with a couple things or few things. Okay, because I love this. Let me let me and I'm going to course. Give you a lot of the floor. But if you'll allow me, you are the mom of twins. Is that right? Eight-year-old boy. And a girl twins. Yep. Wonderful. You are a feminist. Would you evaluate yourself? As a feminist? I didn't used to, when I was, when I was younger, but I think I think now I do, I do call myself a feminist because I think it was getting mixed up with what sort of liberal feminism and third-wave feminism was, and I didn't really care for that but I see a lot differently now. Okay,
you're a conservative. Would you identify as that this small C conservative party, conserve? Great. Would you consider yourself to be a supporter of Donald Trump? I supported Donald Trump in 2016. I thought that the two party system needed to be exploded from the ground up. I think that's exactly what we got. Yep. So I am happy and proud to have been part of. Out of, you know, an Administration that tried to kind of hit reset on a lot of things. Okay. And another thing that's great, is, you're gay, right? And I am to how love you, are you married. Have you been married for a while? And yes, my wife. And I have been married since 2004. Congrats. That's wonderful. Yeah. Well, I love this and I guess the first thing I want to talk about is I find it very fascinating and I don't think it should be partisan, but it's tender. To be that way, for a lot of reasons. I don't think they're all wrong to sort of square being gay with being a for lack of better word. Typical Conservative. Republican.
Obviously, there's been a tension there. I believe there's been a Justified tension. I don't think that tension is created by anybody. Other than the fact that, I think it's very difficult to square having certain political views, which I hold, which might be about being I love of government, right? Believing that, you know, there might be a more market-based solution to doing things than what might be considered this sort of down the line liberal agenda. But at the same time, this sort of underpinning of kind of Phyllis, Schlafly need Falwell, Moral Majority stuff, the sort of discriminatory policies that were Central to the reactionary anti-gay movement. So I, and I'm interested, because I know this Log Cabin, Republicans, and I don't think anybody's being a group. Did you tell us about like your upbringing and how do you in a way? How did you end up in this sort of, for lack of a better word, conservative movement, if you are in, yeah, I grew up in a politically, conservative, fairly
religiously moderate, Christian household, went to parochial schools K through 12 Christian not Catholic Protestant and not Protestant. Yeah. Yeah group Seventh-day Adventist if anybody's well, I know. Exactly. So you're at church at this Saturday, right? Exactly. Small-town life. Where was that in? Southwest Washington State? Okay. Yeah and the concept of being homosexual was not focused on one way or the other. I didn't go to a church or live in a community where there was a lot of fire and brimstone. Don't, you know, calling it out there. Certainly was not the opposite of highlighting, or embracing or acknowledging, what it meant to be gay or lesbian. So, in that sense, it was a little bit neutral, you know, so I guess in today's parlance you would say, you know, I just grew up against a background of heteronormativity. Right? Well, I think we all did I'm a gay man. We all did and I think that's a fair statement. By the way. I don't think I'm that can be sort of, you know satirically
academic. Language, but it's true. The world largely had a reward. Right? Right, when when I came to terms in my very late teens early 20s with, with not being a heterosexual person, that caused a lot of drama in my micro world within my nuclear family and, you know, Social Circles from, you know, kind of high school friends and groups. It was not an easy process, and it took many years, many years. To come to terms and have relationships and perspectives in real life, people that that actually mean something to me to try to reconcile accepting that or being okay with that. And most of all, what I look back now and realize is that there? It's one thing for people to take a religious dogma and just have a concept that, you know, being gay or lesbian is bad. And it's another thing to try to really get through to people. Conservatives, in particular, that happening to have a homosexual, sexual orientation does not necessarily dictate your values, your your mores, your course lifestyle, if
you will. In other words, you know, my wife and I have been married for a long time now. You might call us unconventional in the sense that, you know, same-sex marriage is statistically, you know, in the minority. So in that sense, unconventional, but actually pretty traditional very much. So, I mean, I think, I think that the and member 1000 Theodore Olson, you know, was fighting for this, you know, back in the Prop 8 days and the gay marriage days in the conservative view, which is my sort of. My next question is that, you know, marriage equality was was arguing for a A very fundamental commitment to traditional institutions and values, you know, which always seemed could be part and parcel of the conservative cause and the other thing that I think has always been frustrating and I think I speak for. I shouldn't say speak for gay men everywhere, but I speak for myself and say that as someone who's an independent who, you know, knows that the government can't solve all of your problems
and sees the sort of error, and those ways. And I think the government can ameliorate Your condition but I don't believe you can perfect human nature and I think that it sort of commitment to an overweening state is not good. I guess those are my libertarian, Bona fides, but the less government idea and laws that many concern, not all but many in the Republican party, or conservative committed, two, don't go together. You know what I mean? I mean, this idea of the government shouldn't be regulating government. Shouldn't be discriminating against people on the basis of who they love. That feels too. Me like an expansion of state power, right? Which is always been an integral and deeply against the grain of what the conservative movement stood for, except the conservative movement propagates. It, you know, and I know that must have been a big tension for you, and I know not just in coming out, but once you started getting political, can you tell us a little bit about that journey and how
you square that Circle if at all? Yeah, it has made for constantly feeling like, you know, the square peg in a round hole. Don't feel entirely at home and comfortable and immediately open in any political grouper or side. You don't feel that way. Even or even in a more liberal group of gay women. No, I mean, yes, because be because of that tension between, when you go to an all liberal side of things, there's there's certain assumptions that that I don't embrace, you know, it's assumptions. Like you're saying, No, the traditional ones of the, you know, the conservative liberal breakdown of, right, you know, government can fix everything and anybody religious is sort of evil, you know, they're just so there's there's I like the thing. You don't have to be be being gay. Has nothing to do with supporting or not supporting the bill better bill, but you get put into those right? Exactly. And that's kind of where something, like, log cabin republican seems to come from from what I can tell, right?
Is that they're trying to they're trying to point out that Gay. Americans are just Americans and might very well hold you know conservative views or support Republican platform items, you know, that that being gay does not necessarily come with your your entire worldview and political platform is preset. Right, right. What do you think you're in life's it? You know, say may not always feel welcome. You know, it can be a challenge and of course, he'd situations into itself. You can't make one blanket statement, but Do you think that your commitment to?
I sort of right-leaning politics is informed by what drives that then I mean and obviously, I understand when people feel that way. I have always had a hard time. I would love to find a republican to vote for. I mean, I really would, I just every time they run somebody in the type of Republican I would vote for it doesn't exist very much. I mean, I've great respect for John McCain and Mitt Romney, but I don't see people on the horizon. I mean, with all due respect. I'm never voting for Marjorie Taylor green and Matt gaetz. Ted Cruz, Josh haul, ever, ever, ever, ever. Because I think they're, I think they're full of shit, but apart from that and and bad people actually, because I think they're, they certainly hauling Crews, know what they're doing. I don't know about the others, but I think that that's an incredibly unamerican narrow view of the world. But apart from that. I'm sorry for that rent. What what what keeps you in that conservative game? And I don't mean to over least. I mean
to be honest, that's that's why I went all-in for Trump from From the day he, you know, ran down the escalator, right? It was because I was so disaffected with both sides, almost the flip of you. My leaning, is I just can't pull the lever for for a liberal Democrat because of the just growth of intrusion and the kind of economic control the, the notion that underlying notion that, yeah, we have this constitution over here. It's such a living document that, you know, we're going to just sort of roll with every social wave. It just, I can't, I can't go there but the Republicans were no more sincere. We're not making any kind of effective push back along those economic and government, limitation receive. You know, right roads. Neither party cares about the dead, by the way. I'm sorry. So just the fact that that, you know, I was I was already at the verge of You know, feeling pretty politically homeless at that point, right? And so Trump comes down the escalator decides. He's going to run kind
of rattles. The not just the GOP establishment, but the world seeks out this victory over Hillary. What was attractive about him to you? I loved the populism. I thought that at that point, both political parties were overtaken by such elitism and such cronyism that, Who is willing to speak in Blunt language, and try to capitalize on issues that resonated with working America, basically and a willingness to call out. You know what he called the swamp. I like that. I like that a lot if that had come from, if he had run as a Democrat, you know, I would have been right there, too. I mean, it was that approach not him personally, but it Was that approach that he took in 2015 and 2016, that that was attractive to me. Did if you voted for Democrats before? I mean, if you ever pull the lever for one or is that know, now, that would be That's Hemlock or something. Right? I mean, it's like, I've been really different,
but I lived in New York, I voted for
means nothing right now. Well, I'm with you on that. Yeah, the typical divided between left and right that were used to is, I think, on temporary suspension, that's how I look at it, it for me. It is on temporary suspension and I am prioritizing. Getting the, the, the sanity, and the foundational premise of what are we even all talking about? Because it's one thing for example, just talking about, you know, do women, you know, deserve, you know, this legal protection to, you know, break into the military. Do you know, gays deserve workplace protections so that they can't be fired for being gay? You can have that argument sure, but you can't have, you can't even have arguments like If we're at a stage now, where anybody can be anything, and the law is going to reflect everybody's subjective Concepts, it just to me. That's the bigger picture of what what's on the table. Now is the shift from from sort of, let's start from Material reality and then argue about what to do about it. And now
we're being forced to, to even try to acknowledge again. What that starting point even is. Okay. And I think this is, this is key in this system, in obviously can is one of the reasons I met wasn't big reasons. I brought you one. Obviously, you know, there are as usual heated up culture wars going on. Now, with the growth of the trans Rights Movement, you know, as part of the Well, how should we say the expansion? You might say of Rights for something that was, you know, maybe even a decade ago or even even five years ago, wouldn't have been Central to the discourse now is let's go to the beginning. Okay, there are people okay. I'm gay. Okay, your guy, I've never questioned my gender identity ever. I never wanted to be a woman, never thought I was I just retracted the guys, you know, and I'm not attracted to women, but I'm more attracted to The guys, there are people, right? Who don't feel at home in their body, or don't know who they are or think they are, or would be more comfortable
in changing their gender and, and transitioning and finding themselves re-evaluating who they are. But most basic level. Do you have a problem with that? Is that is that what you have a problem with a? Forget the law for a second? I mean, is it? Is it just does it go against your grain? You I think that that's real. I'm just trying to find out without respectfully. I'm just trying to stand. Is it like you just think there's no validity to what it means to be transgender, correct? And that's why why it is. It is that fundamental and it's not it's not about it's not about respect for the people struggling with feelings around anything, but it's interesting. I don't, you couldn't even have set up that conversation. Ation, five years ago, right? Because look how many Buzz words were. Now expected to use and think have some kind of meaning and significance. What is gender? What is gender identity? What is transgender when you when you try to pull those apart that there's there's no there. There
it is. So inner, it is so subjective that it is hard to, it is hard to make a parallel between, okay, we have identified this group of people and now we need to talk about Right, so it's just I don't even get to that. Step conceptually. Okay, so that would mean that in the realm of government policy or law. You would not be any for any kind of law that protects the trans Community from discrimination under the law. Is that fair to say, I don't think there is a trans community that it is possible for Allah to protect without. Turning law Inside Out La has to revolve around some objectivity. We all have to know who is in a class who is excluded from that class and that's not possible when it comes to something as nebulous and subjective as a gender identity. I don't, I don't think there is a thing called gender identity. So I don't think it's protectable, right? Okay. Now, do you So, do you, for example, the Trump administration had a transgender military van? Okay? Your view sport that.
I mean, you think that was the right thing to do, but if somebody's transgender having just they want to serve the United States military, they want to risk their life or be a part of whatever they can do in the Air, Force, Navy, Marines. Whatever it is, you think that was the right thing to do to ban people who want to serve their country because they've chosen a different gender. I don't have you seen this as an example. It get to me. No, it's, and it's an absolutely fair question. What I think needs to be the way to frame issues like that, is that we're talking about men or women and then you look at what they're actually doing, not what they think inside their heads. Nobody should be punished for what they think inside their heads. But look at what they're doing. And if that would fall under a general rule. All for example, is it difficult to be on certain types of continuous medication? Is that a, is that a general rule that applies to certain things in the military? And I'm not in
on the ins and outs of this? But for example, right? But if there's a general rule, then I don't think we should be singling out and trying to describe a class of people called transgender people, right? And saying we're going to treat them one way or another. Because they're transgender. No, it's not. There's no being transgender. You look at here are some men in here? Some women. What are they doing? What are they asking? Permission of society to do and what are general rules? That would apply to that? And that's it. So, all the twelve or thirteen states, for example, that have passed laws, relating to transgender issues, transgender and sports, where the end of the sports thing in the bed. They are acknowledging that there are trans people. They just don't want them. Under the law. See what I mean. So they're not ignoring the material reality of transgenderism. You can put it that way. But I mean if you look at the sports laws, it's just as easy to see that, you know, it really is framed
in terms of if you have a female sports category, reserve it for females. It's not a trans ban. It's saying everybody is welcome in sports, but sports are going to be classified via sacks into the realm of this argument. Okay, and this is where I, where I take. Take it. I very different view from you but part of the reason and I because I don't know you, I think I'd say you're probably not making a bad faith argument. But the problem in this realm is that the people who are literally frothing at the mouth about this, and this is hardly a national crisis, in my opinion. I mean, is Matt. If anything it is not. This is a And I think this is yet another right-wing bogeyman that they, you know, we've gone from women Farmers communist. It was gays. It was blacks. It was all baby. The rut is to come. Anyway, my point being is that in this realm, there are people who have traditionally made bad, faith, arguments about gay, people and lesbian people, right? And I've made sure that, you know, there
was an ostracism there was a stigmatization, you know, said, oh, there, you know, it was the psychological disorder when pouring it was, how it was. Illegal and many went places, you know, I feel like this anti-trans movement is just an outgrowth of that. You know, it's yet again, another way to sort of frame, right? A particular version of their, their morality and I my problem is it whether I like transferred, I have no problem with it. Is that I do think that. And as the governor of Utah recently that he vetoed anti-trans build, and when he was asked why and he was in Spencer Cox. I'm not sure. But governor of Utah in deep red, Utah. He said I want them to live, you know, a lot of people committing suicide over these bills and you know, and their existence is hard enough and there's so much hatred and bullying and then you know what? I mean? So I mean, I think some of this stuff has real-world implications, which is really, really dangerous when you say this done and you are doing that
I'm saying there is an Anti Trans movement is again, the end game becomes something violent and devastating. I do think this is a national Hi, so this I think this is an international crisis. I think that we have never quite seen before an attack on society's, ability to discuss and Implement Things based on a foundation of what is materially real. We have never seen an attack on that quite like this.
I don't think that there is a general anti-trans movement. I think there's a I think there is a pro reality movement and an insistence that we we cannot start changing systems and structures and laws and policies based on each individual's feelings. We just can't operate that way and maintain a stable free Society. So asking asking athletes to play on teams based on objective. Active sex instead of based on subjective feelings about their sex, is absolutely something fair to do. And you reach out to the people who feel distress about that and you help them in other ways, but you don't ask Society to play along with a An incredibly bold. Pretense of Truth. Okay. So on the sports issue, okay, and I'm going to, I'm going to dive in here. It's okay.
Obviously this is, this is an area where I think there are I really do valid arguments to be discussed at are getting shut down because it gets labeled as transphobic. When I think there is a valid conversation to be had take Leah Williams, the pain swimmer, right? Most famously went n-c-double-a recently. I think or whatever competition that was, you know, when she was a he they were 30th to place or 29th Place and now they came in first and I think that that really Is this questions about how much testosterone is still in the body? And what does it mean to have that person in the same realm only insofar as if you are a girl? We've been training athletically for your whole life and you identify as a female, you are not going to be able to compete with that person who is transition. Just because biologically, they're going to have more testosterone, even if they transition, right? Even if they've had the hormones is, this is this sort of central? This whole thing Central to your, basically.
A grave concern that there's a kind of a societal collapse. I mean, this kind of issue this kind of transgender thing in sport. Spirits is one manifestation. I think the valid questions about. Yeah. Sports is 11 context where a manifestation that subjectivity like, this is more important than objectivity becomes extremely destructive. It is by far, not the only area of concern it. Up highlights certain realities in a way that other context might not just because it calls into question to be honest. We instituted a lot of female only things Without Really setting the proper groundwork for why we were doing it. And this this debate right now is specific about that what female you talk about is in terms of protection for women historically, right? Yeah. We're feet. Female-only Services. Beam out, any spaces? We Went that direction without being explicit enough about why? Because there is there is a there is a legitimate question to, you know, to ask and have to answer both sides should have
to answer. Why do we have women only spaces to begin with? Is it necessary? Are, you know, and if it is but that's the thing, if it is necessary. And a good thing to divide people up based on sex, then we need to keep Doing that and not make everything, you know, all of a sudden mixed-sex because of subjective feelings of some people. If it's if it, if there is no good grounds to have women's sports versus men's sports, then then that's the the conversation that should be had. But I think 50 years of, you know, Title 9 and and trying to build up women's sports shows that, of course, we need women's sports. Otherwise women are never going to have opportunities. In athletics, even comparable to what men have, of course, I mean, women are met, you know, make what 70 cents on the dollar to men. There's a lot of things that women, though. They've been great. Gain still are disadvantaged by in society. Which by the way, could be disadvantaged seems interesting to talk to. You is conservative.
When I say that disadvantage, that does not mean people are victims. That does not mean they can't get ahead. That doesn't mean that they're America doesn't have great opportunity, but it doesn't mean that there are certain structural disadvantages that people will face. That is a reality that When analyzed and looked at through the lens of fairness has to have to be addressed. I believe you know, and they're very well. I don't know why anybody is a great against that right. I mean, that's right. I mean, but but we're losing sight of now in the wave of an ideology building up gender and discounting sex. What we're losing is the reality check that those types of disadvantages. Has our are traceable only to being part of the female sex Class A material reality. It is not a matter of, well, you know, a lot of women are very feminine and that's why, you know, they suffer disadvantage, or they have a, an internal sense of themselves as women, that's poetic. But that is not why there is still
pervasive disadvantage applied to women. It's because of membership in the female sex class. Right, right, right. Right, right. Well, I didn't I'm and I yeah, I wasn't, I wasn't sure that people are discriminated. Somebody's too feminine or women. So I don't know that, I don't know examples of but, but I was going to say that, you know, along with JK Rowling, who I'm sure you're familiar with and many women who, you know, have it. I hadn't thought about this really until women came out. Feminist women come out and said, well, you know, if you, if you,
if you equate, you know, all women as women, if you say transgendered, Women or women, you know what? I mean? You're certainly who eventually represents something different than. Let's say, what historically, feminism has been, you're undermining the sort of woman's right? Cause the women's lib costs. You know what I mean? There's people who say, I love my, I love being a woman, you know, I don't want the idea of a genderless society, for lack of a better word to exist, and that's the one place I push back to him. You know, if somebody says there are, there are people. And I don't know, I wouldn't say this is a I wouldn't say it's a crisis but I do think there is a craziness to people who say when we either gender doesn't exist because of gender doesn't exist. And I'm not gay. I'm not a man. You're not a woman. It makes no sense. I mean, you know what? I mean? My I am a man and you you have a right to identify the way you want. I believe, in a free Society, they do. And I believe they should
no one should be. Discriminating that basis but I don't think anyone should tell me that. I'm not a man, right? Or you're not a woman that did that to me feels like like all social movements and over each. Do you know what I mean? Yeah. Yeah. Yeah, I mean, you hit on something that, you know, the feminist pushback is coming from the left to move. This, it is not coming from conservative religious women and I mean they're hopping on you too. But what is the capital Berlin? Just women aren't exactly avatars of great feminism historically without and you know, you just you step back and you think well what what is more likely that a lot of lifelong dedicated left wing? Feminists, suddenly have become bigots toward the next new minority that needs attention. Or is it more likely that there aren't that? These feminists are onto something and realizing that. Wait a minute. This is not the next Frontier of civil rights. This is an ideologies that is tearing away. Our are very ability to recognize
women and continue pressing for advancement of equality and liberation. Ian for women, right? I mean, I would say in this is sort of the inspiration to this podcast, you'll appreciate this. So, you're pointless this point, I'd say both things are true. In other words. What I, what I don't like about our discourse in this country right now, is that everything every side labels? The other side is both sides ISM. And what about is? It's ridiculous. Meaning you can both like myself be a supporter of trans rights. You may not be, you know, and believe that. You know, there is great harm and passing laws specifically targeting that group but you can also believe that if a group is advocating the elimination of gender completely, then you are limiting your infringing upon my choice my rights, you know, and that is that's a real tension that I think has to be resolved. And I think both of those things can be trading. Feminists cannot necessarily be bigots. I think they can say we've worked toward
a particular movement and we don't know yet if this is another You have civil rights, but at the same time, we are open to discussing it or we may hold a less than salutary view of it. I think in the last couple of minutes of discussion. I think you're using gender as a synonym for sex. When you say, you know, the abolition of, you know, people who are trying to abolish gender all together, meaning, abolished even, you know, try to ignore the concept that humans come in one of two Sexes. Even that that language makes it hard, right? Because Gender were told and feminists have done this to the word. Also. They use gender differently from sex. Right? Look like 80 Days. Gender is a social construct, you know, to say that's a, you know, gender is about the, the imposition of stereotypes and expectations based on sex and now the
The movement that is pushing for adoption of gender. Identity uses it in yet a different way, this internal sense of gender. So the the language around it is makes it very difficult to keep track of what we're talking about. But you know, feminists and pro-gay rights Advocates are are not looking at this and saying, oh, well, we got our rights and we're doing pretty well for our groups. And so we just want to stomp on the next group to come along. We're looking at it and going, what is the group and how in the world, can it be framed as a civil? Right to literally redefine us right that there can't be? Okay, right. I mean what well one thing I've said I came out in 1995, you know, when I have had a few I was a What you undergrad that and I was blessed to have a great family. I was in theater. I was, you know, it was, it was this was hardly a, you know, a fire and brimstone environment, you know, even an idea of the 90s and I've had, you know, interchanges online and whatever with the young
I call them the young, you know, the woke stirs, the woke left which are so out of control and so many ways sort of coming at me. Give me lectures and I said, listen bitch. All right. I was out Paving the way for this for you and people before me I'm standing on the shoulders of giants. And so are you cut the crap? App to the point being or the point I'm trying to make is that when the gay rights movement of that, I was part of and I wouldn't say I was an activist at all, but I want to dignity. I want equality under the law. I want to love who I love, which I think Society has come to embrace. I never wanted the entire world to be homosexual or the entire world to be bisexual. That wasn't the thing. I cared about. Yeah. I mean, you know, I wanted, I think to use our earlier word, heteronormativity still is a problem just because at every image, every cultural thing, you know, so much of it is just me. Woman man, woman and man woman, but I don't ask everybody to necessarily have same-sex
attraction or what I think, too, you know, so people say, you know, well, you don't even have a gender. You're not even a man or a sex whenever you want to call it. You know, that get that, that seems out a way out of bounds to me. And I've had those conversations where I've just had to say to people, you know, I get your activism and I do support you in principle, but you know, you have to make sure that your aims are Inclusionary also, you know, I mean there are excesses to social movements as we know there are excess is revolutions. I mean, you know, the revolution came from Robespierre. So that happens, right? I mean is, yeah, I'm seeing a lot of that, these days that the the clashes around arguments involving gender activism is just about the extreme tactics and and the the really far extreme. Mm goals of the activists on the gender side of the debate. Again. I while those tactics are extreme. No doubt that, that's not my central problem with what's going on. It really comes down to
the, the core aims the, in my view. There is no ability of the so-called trans movement to take a moderate position, the way that there was an ability. Leti of the gay rights movement to take a moderate position. We could legitimately take moderate position and to some, you know, to the extent that we prevailed. It's because we did. It was a, leave us alone. Were actually pretty normal. People were not scary. We're just here to live within Civil Society. Don't fire us. Don't beat us up. We can take a pretty moderate position. It was not you must call us this. We are now exactly the same as you and You must pretend that we are, I mean, there was none of this Distortion of reality and it's hard to, it's hard to conceptualize a moderate gender identity position throughout Society. Is it fair to say that? I'm getting rid of it is radical, the need evidence. So radical I the only one, only push back on one thing, gay and lesbian and bisexual people are the same street people. I do believe that,
I don't care. I'm going, I meant we weren't gay people weren't trying to convince. Vince straight people. We are straight. We are right, right, right. Right, right. Of course.
Let me ask you this though. Let me try to steal your position because I want it to be represented for people listening to this and I want you to have your voice heard without any, you know, we're not doing MSNBC and Fox News bullshit here, okay. Is, are you basically saying that the discussion and language? When it relates to gender is really just a discussion about biological sex and, and that language obscures the idea that there are two Sexes, male and female, that is a fundamental problem. Yes, that we have that we've allowed the discussion to, to be earned sex. And gender, two are becoming two interchangeable and it's turning the idea biological sex and is something not real. Is that your nobody knows? What what anybody means by gender nobody. Because there's a certain segment of society that for, you know, decades has used gender as a synonym for sex. Just, we have finally hit long before the trans movement. Do you put your gender down a passport when out of college? I mean, no one's
ever. Those are the context where people are you were using gender as a literal synonym for, what is your sex male or female? Okay, feminists have been using gender in a different way for also, for decades. Right, right. Stereotypes and expectations that are imposed and you know, based on sex, now, gender identity activists are using gender in at least a third way plus alongside the other two, whenever it's convenient to make arguments. So it's all very difficult to to even get on the same page when the language is kind of Shifting out from under us like that. So I think the answer to that question is yes. That's a huge problem and we would be better off if we could clearly. Talk about what we're talking about, which is, you know, human sexual dimorphism, humans come into two varieties, male and female and and that matters in tons of different contexts in life, right? I wanted a to in relation to this, get into the Title Nine stuff because I know. Well, first of all, I know your sexual
assault Survivor, and I only bring it up because I think At your work in the Trump Administration in this area. I mean think that's relevant for people to know I'll just as relevant as it for know, you're a gay woman. I mean, you're not, you know, you're not Phyllis Schlafly 3.0 or whatever, you know in a you know in some Dowdy outfit, you know, advocating for more church. I mean, to be fair, you know, I apologize by that analogy. But still so in a recent last year you and something in Justin Dylan. Is that Anna to see an attorney? Yes. Yes, you wrote for National Review. Why? Does Joe Biden hate due process? Okay, and if I can, can I read from it a little bit just so I can let people know,
hold on earlier this month. He Joe Biden signed an executive order, directing the education department to review the groundbreaking changes that the Trump Administration made to how schools Nationwide handles sexual misconduct under Title 9. It's signals a potentially major blow to due process for students even as Biden advocates for due process for The Quantum of the beginning of the article, you talk about how you think, Cuomo sort of being railroaded and Biden is part of that. But anyway, hypocrisy aside, let me continue. What's written here? Buying stance on Title. Nine comes as no surprise. This is not his first foray into the tight into Title 9 reform. He headed the Obama administration's task force on sexual assault on campus, which pushed unreliable statistics to justify showing zero concern for the due process rights of respondents. Okay? Before I want you to talk about this and take us, Us through it, but I will say this, one of the things I think that it's happened. I despise
cancel culture. And the reason I despise cancel culture is that, you know, legally, your lawyer. Everyone's innocent til proven guilty that's been effects. Foundational, not just a foundational, the common law, right? And our democracy, and the idea that in the cultural court, if you're accused of something, now, you're automatically a villain, a rapist, a liar, a thief, or, you know, and I think that a it's incredibly Totalitarian way of looking at things but it's also a denial of redemption. You know, that, that, that people have a second shot. It's also it also can be a reputation tarnished, sure, based on in truths. So I wanted to preface that. Now that being said, sexual assaults, real, I don't have to explain that to you. I didn't endure it you've written article about the difference between what the Obama Administration and the Trump administration of the vitamin station have done on Title 9. Fine. Tell us what Title Nine is. Tell us what Obama did and tell us what you tried to do
in the Trump years. And what you believe? Our roadmap for justice and fairness. Yeah. Yeah. Yeah. It is. So Title. Nine says that any education program or activity, across the country, whether it's K12 or higher ed. If you receive a dollar of federal financial assistance, you're subject to Title Nine, it was passed in 1972. And it covers sex discrimination in every area of school life that you can think of Michigan public school to be clear to fit funds. This does not apply to private schools. If they don't, they're free to make the rules. And that's very few colleges, by the way, because astute, your student accepting Federal loans counts, and so almost every single College in the country does does qualify under find under Title 9. So Title Nine says schools are under obligations not to exclude. People deny people benefits or subject them to discrimination on the basis of sex. Very very broad, powerful sex. Equality sex non-discrimination mandate their Title 9 does list out. Some exceptions.
Religious schools can apply for an exemption single-sex activities, you know, Are permitted to a large extent but that's the broad Strokes of Title. Nine passed in 1972, sexual harassment back. Then was not taken seriously anywhere. So Title 9, neither the statute that Congress passed nor any of the initial slew of regulations that the Department of Education implemented under the statute, never mentioned sexual harassment. It used discrimination in the broadest term. It was it was really an addendum to the original Civil Rights Act of 64, right? Basically. Oh, yeah, you could, you could you have not formally, but it was kind of an extension of the yeah. Yeah. Yeah. Yes, exactly. So kourt started recognizing sexual harassment by the mid 90s. It was very clear that sexual harassment, in schools can violate Title Nine. The Supreme Court came out with, you know, series of decisions under Title, Nine that help that, you know, kind of describe the parameters of when schools can be held liable
even Money damages for ignoring or turning their backs on the the, the existence of sexual harassment, including sexual assault going on in their schools. The Department of Education didn't bother to regulate on it. It issued a series starting in the mid 90s issued a series of guidance documents and so schools, for a couple of decades were in the position of being told by the department of Ed, you need to do certain things when it comes to preventing and addressing sexual. Harassment, but none of those rules are actually, none of those suggestions were actually legally binding. By the time we got into office in 2017. We looked at the landscape under Title 9, with regard to what schools were being told to do about sexual harassment and assault. And we were seeing dozens, even hundreds of lawsuits filed because schools were trying so hard to do the right thing and be proactive. Active about sexual harassment, but they had never been given guidance from Ed or anybody else. Yeah, about how
to do that in a way that is fair to both people involved. You can't rush to judgment and expel somebody based solely on an accusation, right? You need to provide something of a process, and of course, you need to, you need to reach out and be proactive about trying to support a victim whether or not there's ever anything proved. So that was the balance of in. Interests that we were interested in coming up with and solidifying. And we work for three years. We met with hundreds and hundreds of groups and individuals that represented schools, represented complainants, and survivors of sexual assault represented. People who had been accused and expelled and felt that they were not given opportunity to be, you know, explain their side of the story and after all that process ended up in 2020, issuing extensive regulations that Been upheld in federal court challenge after challenge at, you know, striking a balance between this and the Biden executive order overturns that idea completely, is that
what it does? The by the Administration has plans, even this month to release imposed regulations, that would amend the 2020 regulations. They have said that part of their intent is to loosen up some of the due process. Protections that are built in there. They think that it isn't fair enough to, to complainants. They also have a problem with the way that we Define sexual harassment, which we chose to Define it in a way that we felt captures physical, sexual, harassment and assault rape domestic, violence, Dating Violence. Stalking are all included. Anything quid pro quo by a School employee is covered. The the broader category when it comes to did you verbally, harass someone in a way that might get you kicked out of school. We adopted the Supreme Court's standard which says that, you know, in order for that to be actionable. You have to give some breathing room to free speech even offensive and low quality speech. So, you know, for for that kind of verbal harassment, it's got to reach
a high. It's got to reach a higher standard. Now, for the objectively offensive. It has to be pervasive. That's to be serious. Yeah, well, I'm a future Free Speech guy say, I completely agree with that. I guess I'm always fascinated by by this debate because on one hand. It seems like you have a rush to judgment on one side and then people argue on your side. It's sort of like, obviously, I don't think this is true, but that, you know, we don't believe accusers because there's a lot of people looking to cause trouble. Why is the debate on this? Not, this is what drives me crazy is during my why is this stocking? The foxholes. I mean, there can't be processed for people that are accused. I Don't Care What They're accused of and then there should be appropriate measures taken and appropriate recourse for people who have legitimately suffered from sexual assault. I mean, I don't know why we're having such a hard time reconciling these things. Well, I mean, I think to be generous to the the
other political side that that really came down on sacrificing due process and Free Speech. Out to be generous to that Viewpoint. It's because historically, it's been swept under the rug. It's been ignored. It's been covered up only true, of course and it's totally true. And so at that of course would motivate, you know, trying to give voice and give support but you know, the the believe all women or believe all victims has a place in societal discourse, but it in my view does not have as much a place. In actual Justice systems that are set up to make a determination and render Justice in an individual situation, right? And so I like your take on that cuz I agree with you again as so much of this has been swept under the rug. Just as much as we've been done this conversation marginalized groups, that's always suffered historically until Society catches up and the Law changes great amounts of ostracism discrimination. And in many ways, outright rejection of them as people. But Given that
your are being generous. I appreciate that to the other side. How did that inform then? That generosity though? Inform the work you did. When you were a deputy, you were Deputy counsel, right? Is yeah. I took very seriously. The responsibility of being in a position being in a position to have to weigh competing interests, and truly. Get to know understand here, even feel where everybody is coming from on something, this sensitive and then I got to step back and try to measure up. All right, how do we come up with a principled and practically workable set of procedures for how we are going to move forward and and deal with this, in a way that honors, the best arguments, the best intentions, the best, the most needed. Interest that have to be served by all of this and I think we did a pretty good job. Actually, I think it's very balanced and and reasoned on this and to me, you know, the way that this right now ties ties back around to the gender debate. Is that like you're saying there's
no area there's no Accusation. That is so heinous that it should be exempt from our ordinary rules of free speech and due process. Right? Similarly. A lot of what's happening with with gender issues is we have allowed ourselves to believe that there's something so unique about anything that anybody labels gender-related that, that anything gender-related gets to be exempt from ordinary rules. That's a huge parallel. Yeah. I mean, I think that's right. I mean, I think, I mean, one of the Things that used to be a liberal precept, not classical liberal but liberal is its uses liberal Democrat was people get Second Chances, people can be redeemed, you know, in other words this idea that, you know, if a person was accused wrongfully of a crime and court, right? One of the liberal priests have said is that they should be given entirely due process. I agree with that. I mean, that everybody should agree with that. That used to be the foundation and now somehow in the cultural Court as with everything.
I think there's a pendulum swing that needs a Adjustment, both things are. We need to believe victims, but we also need to give due process to things. We can't take every, you know, we can't be a society where if I say, Candace, you know, you raped me in a barn. My life is over just being face because I said it. I mean, that's not okay. But but at the same time, you know, when people come out, who have been survivors as you, well, know, and haven't talked about a long time, just because they come out about it later on, doesn't mean it's let it should be heard or it is invalid and should be taken very, very, very seriously. So I think, you know, I think that's right. By the way when you were reading earlier from that. Op-ed that that I did. I do not think that. Cuomo was railroaded. We were only pointing out the hypocrisy in saying that he was due process as much as college kids. Do, I think he got due process? I think he got all the process that that situation would have would have needed
a very thorough factual investigation before conclusions were reached and that's what we're talking about. In the in the school context to write, very interesting. Okay. Goodbye. Appreciate you clarifying. That. All right. I got it. Before we go. I got to ask you this, you know, we spoke in a lot and mainly about the whole issue of of trans which is a fantasy in your world. But let's just lets us use the the way we are low. Let's just reflect on how its use currently in society. I have to ask you, this is very important and I asked him without judgment with your activism as it relates to gender sex, trance, stuff. Whatever. Going to call. What's your endgame? I want a, A Renewed and maybe better than we've done in the past foundation in law and social understanding of The MU immutability of Sex and the difference between when being male or female matters and when it doesn't both of those, both of those situations are around us. Every day. We have not done a great job at always distinguishing,
when does sex matter and when does it not matter, I would like to see us come to a better than we ever have a consensus about. This is the this is the reality, some humans are female and some humans are male and That doesn't change. But what does that mean? And in what areas is it important to to keep a line up and divide up and treat men and women? Maybe comparably but separately and when should that not matter and then I and then specifically to those who are swept up in or haven't, haven't? Let me put have a very sincere belief in And identification internally that may or may not match up with their factual sex. Then I would like to see society and law move toward acknowledging that Viewpoint as a sincerely held religious belief. We are not too shabby actually at dealing with that kind of tension between, well, I believe this and I shouldn't be For believing it and yet we're going to draw a line and say I'm not allowed to compel you to believe it. So would be a First Amendment Establishment
Clause issue. Is that right? Establishment Clause and free exercise, right? Yes. Yeah. Okay. So because I because I said that the follow-up question was going to ask you and your mom. Okay. I'm not trying to put your heartstrings. What do you say to the mom and dad? Whose kid says the transgender. They want to love them. And what do you say to them and say their kid is not, that was you're saying that those of you Be held in a proverbially religious sense as it relates to the law free exercise stablishment cause right that. So then there is government protection for that then. Yeah, exactly. Well, that's the thing. If you have a, if you have you and your child have a a religious belief, right? There's a lot. There's a lot of protection for that. There are also points in society where your religious belief isn't going to exempt you from generally applicable rules, and that's has to be okay too, but you Going to get respect dignity and protection for not only believing but expressing your
belief right this way, you square it with so you don't change the notion of sex gender. However, use it. But you find a protective Safe Haven if you will for these beliefs and under a First Amendment guideline. Okay. I have not heard that before. That is the first time I've ever heard that. That's a lot to think about it. I mean, certainly a lot to consider and I think a more productive way because what we do here with me, Each of these arguments is, that's it. They should be allowed to exist. And the state is going to have a coercive power, right? And expand to prevent them from living out their best life. And that's my issue, which I think, by the way, is on America's, also, not conservative, not small. So you can, there's nothing concerned about that. But anyway, Candice, thank you for joining me. I love this reason. I believe healthy debate. You leave me with a lot to think about with this this.
Religious belief idea for those who are transgendered. I don't know that we agree on everything but in a democracy, that's what's great. It's healthy. We need more of this. We're still are all Americans despite this toxic partisanship of seems to be swallowing all of us. So anyway, I really thank you for coming. I hope, I hope you'll come back again and and join us. Thanks so much. Thanks Adam. Really? Appreciate it.