In this episode, Lisa and guest Roger Severino, part of The Heritage Foundation, delve into the Supreme Court's oral arguments on Tennessee's ban on transgender medical procedures for minors. Severino provides legal insights, critiquing arguments from the Biden administration and ACLU, and emphasizing the potential harm of such medical procedures on minors. The conversation explores broader implications, including the definition of sex and gender, fairness in sports, and the cultural shifts influencing public opinion and legal decisions. The Truth with Lisa Boothe is part of the Clay Travis & Buck Sexton Podcast Network - new episodes debut every Monday & Thursday.
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Speaker 1 (00:02):
The Supreme Court over the past.
Speaker 2 (00:04):
Week held oral arguments over Tennessee's ban on transgender medical
procedures for minors. Now, the Biden administration has joined the ACLU,
who sued on behalf of parents of three transgender adolescents
and a Memphis doctor. They're challenging Tennessee's law and it's
made its way to the Supreme Court. Now we should
have a ruling expected by July of two thousand and
(00:26):
twenty five. But there are broader implications for what the
Supreme Court decides, bathroom access, participation in school sports, a
lot of the conversations we've been having as a country
right now, So where is this heading, what does it mean,
and what arguments were made before the Supreme Court. We're
going to have someone on who's been following all of this,
(00:48):
who's going to give his legal expertise about the argument
that the Biden administration is making and where this might
be heading in front of the Supreme Court. We're going
to have Roger Severino on the show to break down
all of this for US Vice president at Heritage Foundation.
He's also a former director of HHS Office for Civil Rights. Also,
I didn't realize this, but He's also married to Carrie Severino,
(01:09):
the president of the Judicial Network. We've had her on
the show as well, so really brilliant couple. But that's
besides the point. That's an aside. But anyways, we're gonna
have Roger on the show. He's going to break all
this complicated legal matters down for us and everything you
need to know about what was argued in front of
the Supreme Court.
Speaker 1 (01:26):
Stay tuned.
Speaker 2 (01:31):
First of all, what we were talking about, I didn't
realize we're married to Carrie, and I was saying, you
guys are like a brilliant legal duo. So I'd love
to hear your conversations. But I'm looking forward to you
bringing some of that brilliance to the show to talk
about what's being argued right now in front of the
Supreme Court. So appreciate you taking the time to join
the show.
Speaker 1 (01:50):
My pleasure, it's an honor.
Speaker 2 (01:52):
So obviously, this center is around Tennessee's ban on transgender
medical procedures for miners. There's other states that I think
over two dozen states that have enacted similar bands.
Speaker 1 (02:03):
So walk us through.
Speaker 2 (02:04):
It was sort of big picture, you know, how did
this case make its way to the Supreme Court.
Speaker 1 (02:10):
It's a long, sad story and it's paved with a
lot of destroyed lives of miners. Gender ideology has been
on the march for you know, fifteen sixteen years in
earnest and a lot of people. It really the two
things people didn't believe it was happening. The idea that
people were born in the wrong body seems so outlandish
(02:32):
that people didn't believe it was a thing, but oh
yes it was, and it was pushed through bathroom mandates
and then pronoun mandates. And they always focus the LGBT
left on kids, seeing that these gender confused kids and
all we're doing is quote unquote affirming them so that
they'll feel better about themselves. And the worst part about
it is then they added, and if you don't do
(02:53):
this quote affirming model, they will commit suicide. They will
commit suicide. And that lie was at the oral arguments,
and Tennessee and other states have moved and said, you
know what, that's not true. Kids' lives are not at risk.
And what you're doing by pushing this is putting kids
on a one way conveyor belt. You put them on
(03:13):
puberty blockers, you put them on hormones, and you put
them on a one way track to quote unquote transitioning
where they will reject their bodies and ingrain it. And
none of those treatments actually reduce suicide. What it does
do is lead to higher rates of depression, increase suicidality
according to the label of some of these drugs, and
(03:36):
it leads to sterilization, and in some cases they actually
remove the reproductive organs, hysterectomies, penectomies, mastectomies. This is what
they're doing on kids over sixteen thousand. So it went
from this can't be possibly happening to what's happening everywhere,
and doctors are making millions off of this, and the
(03:57):
State of Tennessee and other states have said, this is insanity.
We cannot be doing this to our children. We have
to put a stop to this when the evidence is
not there that it does any good and that it's
actually causing these permanent harms. State of Tennessee acted. Then
you have LGBT activists and the Biden administration fighting back
and saying, oh no, there is a constitutional right for
(04:18):
these kids to be put on these puberty blockers and
cross sex hormones. And the state should not have the
ability to protect kids. I'm hopeful given the tenor earlier
argument I was there in the court, you're going to
have a strong majorities of restoring common sense on this
and allowing states to protect children.
Speaker 2 (04:36):
You know, we've had people like Chloe Cole on the show.
I think it was toob Or thirteen when she started transitioning,
fifteen when she got a double mesectomy, and then she
regretted it by seventeen years old. So to your point,
we're allowing these children to make life altering decisions and
a lot of the parents are bullied into thinking, oh,
you know, your kid's going to commit suicide if you
(04:56):
don't go along with it. I think some parents are
bad act in this, and I think some are you know,
just think that they're convinced and bullied into thinking that
they're doing the best for their child. So basically so
the Tennessee law, it's this case has been pursued by
the ACLU and also with the Biden administration. They're suing
on behalf of parents of three transgender adolescents and a
(05:19):
Memphis doctor. The Biden administration is essentially arguing that this
ban on transgender medical procedures for minors violates the equal
protection clause of the fourteenth Amendment. What do you make
of that argument.
Speaker 1 (05:33):
Well, I think it's outlandish that they want to constitutionalize
the practice of medicine that protects kids. Kids can't get
tattoos in some states, kids cannot buy alcohol until they're
twenty one, can't buy cigarettes. Yet here they're trying to
say there's a constitutional right to cut off your reproductive organs. Literally,
(05:58):
that is literally what the implications of this case are.
And the argument they're saying is that this is somehow
sex discrimination because there are legitimate treatments for what's called
precocious puberty. If a child enters puberty really early, say
eight or nine, then that might cause some long term
(06:19):
harms because their bodies will not be able to take
that change. Something's off, something's wrong. We know what normal
puberty looks like, So you could have some puberty blockers
so that they get on the proper age track. On
the other side, you could have some people with real
severe deficiencies in testosterone or esrogen, which would impact their puberty.
That's just the practice of medicine. So the LGBT left
(06:43):
and the Biden administration said, well, if you could use
puberty blockers and cross sex hormones for a boy that
wants to develop into a boy naturally and normally, then
you have to provide those same those same testosterone to
a girl that wants to develop into a girl A boy,
I'm sorry, a girl that wants to develop into a boy,
(07:05):
and that is therefore sex discrimination if you don't provide
a girl and a boy the same amount of testosterone,
or even more so they could look like boys. Nowhere
in the Constitution is to say anything of the sort
that that's how you should interpret sex discrimination. What's interesting is,
I'll call it the dog that didn't bark. Justice Gorsuch.
(07:28):
He was the author of the boss Talk decision that
kind of opened the door to some of these arguments
in a different context, which is Title nine sex discrimination
in schools, sorry, Title seven in employment. He was silent,
the entire argument silent, so that I think I was
very telling that he's keeping his powder dry because I
(07:49):
think hard to interpret. I think he doesn't want his
own decision to be used to constitutionalize this new theory
that sex discrimination is equivalent to gender identity. And if
you get something to one sex, biology doesn't matter. You
got to give it to both in the name of
this gender ideology. So that's one of the big lurking questions.
Speaker 2 (08:07):
If there arguing under sex discrimination, we're sort of like
redefining sex then, right, because that was sort of redefining
what a biological man and a woman would be.
Speaker 1 (08:16):
Is that right? Or am I reading that correctly? Well,
they want to have it both ways. Yeah, So Justice
Solito asked an incredible question, said, well, you're looking for
protected status correct, yes, Okay, Usually it's based on immutable characteristics, sex, race,
national origin. You can't change those things. And he asked Strangio,
(08:39):
the ACOU lawyer, well what about this whole gender fluid thing?
Can you be male at some point, then female and
then back to male And the ACOU attorney had to
say yes, And then leader said, well that means it's
not immutable, correct, And we don't give protected status generally
to a mutable characteristics. So it's own ideology. It's eating itself.
(09:03):
I wish somebody had asked the question what is a woman?
Because they were thrown around these terms. You had the
Solicitor General pre Lgar saying well, there's birth, sex, and
then there's sex assigned that birth. And if you're discriminating
on a basis of sex because males get one and
females another, well, hold on a second here, what are
you talking about? What do you mean sex? What do
(09:23):
you mean a woman? Because under gender ideology, biology doesn't matter.
Sex is entirely in somebody's head and it can't be falsified.
It's purely subjective. So you have this really curious thing
where they are arguing in one breath, okay, and they
say that I'm using the pronouns a use he was
denied male hormones because he had a female birth sex. Okay,
(09:50):
If it's he being denied hormones that are available to
other keys, how is that sex discrimination? Right? Like the
mind just re to think you need to have different
treatment between males and females. But when they're saying he
was denied something that other he's got, that's not sex discrimination.
So you run into all these contradictions whenever you go
(10:11):
down the gender ideology rabbit hole. And I was exposed
by the court by some really tough questioning.
Speaker 2 (10:18):
We've got more with Roger, But first, the Christmas in
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(11:13):
That's eight eight eight or eight eight or three two five.
If sex is fluid and it's meaningless, then that would
sort of like negate and render any law protecting like
discrimination discrimination against certain sexes, and you know, gender issues
would be like completely irrelevant, right, Like what would be
(11:34):
the point of any event?
Speaker 1 (11:35):
Yeah, and you saw this with the questions about sports
from Justice Kavanaugh, who actually teaches girls basketball, he asked
multiple times, and just as Barrett followed up, Okay, what
are the implications with girls and women's sports under gender ideology?
They will say a quote trans girl is a girl.
That means a boy who identifies as a girl is
(11:58):
a girl, which means they have to be accepted into
all female spaces, including sports, overnight accommodations, showers, and locker rooms.
If there is no biological relevance, then you're a girl
and you get to go to all the girl spaces
regardless of your reproductive organs. Now that has serious implications
(12:21):
for girls privacy. Again, of course, safety and sports and
fairness in sports. Both the ACLU and the Solicitor General
kind of threw the LGBT left under the bus on
this one. They said, oh, no, if you decide on
this case, you have plenty of good arguments to say
that there are people being hurt if we allow boys
(12:41):
that identify as girls in girl sports. I was a
little surprised they went that far, and I think they
realized that the tides have changed dramatically. What people thought
was unthinkable and ridiculous is now upon us, and boys
are taking girl spots in the podiums and getting the
replaced metals. We see it with our own eyes in college.
(13:03):
Hulking men are the ones that are winning and defeating girls,
and they're the ones breaking the records and shattering them
and who's losing the women. So I think you're seeing
that the tide has turned a bit that even the
ACLU and the Biden folks said, yeah, you know, maybe
we don't want to push it that far now. Now
I don't believe them. When it gets before the court,
they will push it that far. But at least now
(13:26):
they didn't want to push it because they're afraid of
the implications for this case.
Speaker 2 (13:31):
Now, we heard a lot about the dangers of these
surgeries and the oil arguments. I mean a lot of
these surgery surgeries are not without complications. It's sort of
like the Wild West as they sort of like develop
some of these surgeries. So like, has that been a
point of conversation, Oh?
Speaker 1 (13:48):
Absolutely, out of the gate, Justice Slido asked about the
cast report. Now, this came out of England, a few
months ago. Europe was the pioneer of these sorts of
cross sex interventions, the surgery as a hormones et cetera,
and then the United States, as has often happened, just
went nuts with it and just took it to the extreme. Meanwhile,
(14:09):
they were studying the actual effects and they realized that
there was no evidence that they actually reduced suicides, and
Alito asked this of Strangio, and Strangio responded and admitted, yes,
it does not actually reduce suicides. So their number one
talking point that they've pushed on the American people on parents,
you either have a live boy or a dead girl.
(14:33):
That's the emotional blackmail they've been pushing on people, to
the point where parents have lost custody of their children
in California in particular, custody of their children because they
didn't go down this route, and in some cases those
kids did commit suicide. Look at the case of Abby
Martinez and her daughter Yale Martinez, who committed suicide after
(14:54):
she lost a custody of her child and they put
her down the whole trends sex surgery, I'm sorry, a
drug route with the testosterone and ended up taking her life.
That's where this thing could lead. There is no evidence
that backs up that this is better for mental health
when you do these interventions. When we know, we know
(15:15):
that if you let nature take its course, over ninety
percent of the time kids grow out of it. They
accept their bodies. Remember, there used to be a thing
called tomboys, right, That was a common cultural understanding that, Okay,
there's a lot of girls that do things that are
associated with boys, or might be more sporty or not
(15:35):
want to wear skirts. They were just called tomboys, perfectly accepted.
And only very recently has this ideology come and said, wait, wait, wait, no,
we think you're actually a boy. You should actually start
identifying as a boy, and we'll put you on drugs
so you can become a boy more fully. And that
ideology has spread like wildfire. When we know that if
(15:59):
you just let me takes the course, people accept their
bodies overwhelmingly. No drugs are needed, no sterilization, no lifetime
of being a patient. And these interventions are iatrogenic, meaning
they lock people in. Right, if you get a young
kid testosterone, they'll start feeling more confident, more aggressive, and
a little bit more better about themselves. But think about
(16:21):
the long term implications. You want to tell a twelve
year old girl, Hey, by the way, you will never
have a normal sexual experience in your entire life and
you will never be a mother. Are you okay with that,
Susie twelve year old? Oh? Okay, good, let's do it. No,
that is horrendous medicine. And we're going to look back
on this era with shame.
Speaker 2 (16:41):
I mean, you know, to your point, when I was younger,
you know, when I was a kid and I was
in gym class, they made me play soccer with the
boys because they said I was too aggressive. Look at
me now, you know, But you know, I mean, this
sort of underscores just how important the Supreme Court is
and how well, you know, thankful we are to have
(17:02):
a more conservative court given the implications of the severity
of what is being presented right now in front of
the Supreme Court.
Speaker 1 (17:14):
Absolutely, and the medicine is crucially important here right there's
a fundamental question we have to answer, first legally, what
is a woman? What is male or female? Because if
the Eco Protection Clause protects against discrimination by sex, we
have to know what that is, which means we have
to pin down the LGBT left on their definition. They
(17:36):
cannot have it both ways. They cannot say that a
person who identifies as a woman is a woman, yet
there's this thing called sex discrimination that is related to biology.
You cannot have it both ways. That they do want
to have it both ways. They want to say it's
a mental condition that is required to have coverage by
insurers and doctors must be required to perform these Yet
(17:56):
it's not a mental condition, So you can't treat it
as such because that would be bigoted and discriminatory. Right again,
you cannot have it both ways. And where the law
comes in is states have the ability to protect children.
They do it all the time. Let's take testosterone itself.
What Solicitor General Prelagar said was essentially that people are
(18:18):
like Plato. Human beings are these things that are assigned
a sex at birth, almost coincidentally. And if you add
testosterone to this thing called a human being, it will
become a male. If you add estrogen to this thing
called a human being, it will become female. And that's
the way she was speaking about these concepts, absolutely ignoring
(18:41):
that there are radical differences in the baseline. If you
are a female genetically you're going to be a female
biologically and vice versa. And if you add testosterone one,
it's radically different than the other, which is why if
you have a even a mild deficiency in testopa thrown,
you're likely not going to get a prescription for it
(19:02):
as a kid because of the side effects. You certainly
won't get it. If you want to look more masculine,
to bulk up, that's called steroid abuse, and that's illegal.
It's a controlled substance. It's a category Schedule three drug.
But if you are a girl who wants to bulk
up and gain five pounds of muscle mass, oh, you
have a constitutional right to it. No, that's what the
(19:26):
LGBT left is saying that, but not taking into account
that these drugs have serious side effects, greater side effects
in the opposite sex than your own in fact, and
the state has absolutely right to say you cannot do
these things. That is not proper medical treatment. They banned lobotomies,
the many states have banned shock therapy treatments, They banned eugenics,
(19:50):
all of these things because there were there were these
contagions of ideology replacing science, and we're going through that
right now.
Speaker 2 (19:59):
What's also just a anti God because they're denying God's creation.
But you know, I know that's not what's being argued
in front of the court. You've got more on all
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So I was reading that Justice Kintaji Brown Jackson was
trying to draw parallels in comparison between laws banning transgender
care for minors and laws banning and racial marriages. I guess,
(21:28):
what are what are some of the more I guess
ridiculous arguments you've heard argued in these arguments.
Speaker 1 (21:34):
The most ridiculous was Justice Sodomire saying, well, aspirin has
side effects too, to try to downplay the severity of that,
and comparing it with sterilizing children. I mean, it was
so absurd that she would make that comparison. Now, it's
(21:55):
just like aspiring, you know a side effects too, and
so does testosterone, and it's realizes young girls who will
never have it. And she absolutely dismissed people who have transitioned,
These folks who lives have been ruined, who are put
on this one way conveyor belt and told that you're
(22:16):
going to commit suicide if you don't do this, And
now they cannot have kids, they can have normal sexual functioning.
They don't get insurance coverage to restore the mutilations that
have happened to their bodies. They can't date, They feel
socially isolated. Their suicide risk has gone up, by the way,
because of the depression that comes from not being able
(22:38):
to go back to your body. She absolutely dismissed it.
Maybe it's like one percent, but what about all these
other kids? It was so sad, And of course Kaichanji
Brown Jackson using the race analogy. You know, it has
a bit of surf. I'll give her some credit, right,
(22:59):
it has some surface appeal, But she was using it
more to try to say, well, this is equivalent to racism.
Transgender status is equivalent to race. No, it's not. It
is not a protected class. It doesn't it has not
been recognized as such. They went down the line of
(23:19):
she don't we just treat this as a quasi protected
class as a politically powerless group. The LGBT left is
not politically powerless. That is certainly not the case, and
that doesn't normally fit the criteria to get protected class status.
But she really wanted to make that equation of race
that this is the new frontier of anti discrimination law.
(23:41):
But that's certainly not the case when it's the parents
being targeted and the kids are the ones that are
being hurt by this.
Speaker 2 (23:47):
Well, regarding the comment regarding Asper and I mean I
just took etc.
Speaker 1 (23:51):
Before the show.
Speaker 2 (23:52):
That's a little different than chopping my bodybuards off, Like
a little bit slightly.
Speaker 1 (24:00):
Different, you know.
Speaker 2 (24:02):
So talk about the implications of this fight in this
case and what it means for other things moving forward,
whether it be you know, bathroom access or a participation
in sports, you.
Speaker 1 (24:15):
Know, kind of you know, what.
Speaker 2 (24:17):
Does this decision that is expected by July twenty twenty five,
what are the broader implications here?
Speaker 1 (24:24):
Well, the first big one is will there be elevation
of gender identity as a new protected class equivalent to
race as Katanji Brown Jackson would want it to be.
I think the answer to that question is going to
be no. I didn't count the vost watching during the
argument to see that there would be enough to go
down that route. Just as Barret said, well, isn't that
(24:46):
the better route than sex discrimination elevated protected class? But
I think that's just sort of exposed that this would
be one of the most unusual protected classes to be added.
We haven't added one in fifty years, and there wouldn't
be a telling reason to add one here. Second is, okay,
what is a woman? What is sex? Is the Supreme
Court going to give us some clarity on that or not?
(25:11):
I think they're not going to come down hard, I
don't think, but they will say by implication, by implication,
there is such a thing as male and female. And
one route they could go is say, well, things that
differentially impact males and female in medicine are not discrimination.
That's just the practice of medicine. If you don't take
(25:34):
biology into account, you'd be committing malpractice. In fact, so
if there's different treatment for men and women and how
they're administered testosterone or estrogen, then that's not discrimination because
men and women are different. The broader implications of this
will spill over into sports and pronouns, etc. So the
real tension is going to be, Okay, what do you
(25:55):
do with the boss Talk decision? The Boss Talk decision
did say transgender status gets protection in Title seven employment
for hiring and firing. Will that be limited, will that
be narrowed? Will that be acknowledged at all because here
we're talking about the ecal Protection Clause and the Constitution.
So I am really interested to see Justice Gore Such's
(26:16):
view on this, if his decision in boss Tech has
any application in the eco protection context or not, because
that's a big outlining question, because there's some tension there.
Speaker 2 (26:27):
You know, I'd like to hope and believe that the
Supreme Court of all bodies is immune to public opinion,
but you know, they're human at the end of the day.
Does this past election give them some cover in the
sense of, you know, a lot of this stuff was
sort of rejected by you know, Americans. I mean, you
look at Donald Trump's ad that you know, Kamala Harris
(26:48):
is for the them, I'm for you, Or you know,
you look at in a lot of these states, or
a lot of these senate races in various states, men
and women's sports played out and was rejected, or you know,
you look at the fact that the vast majority of
Americans do not believe that men should be in women's sports.
That you know that there is a growing number of
Americans who are sort of more broadly and more boldly
(27:09):
stating that they don't agree with this, that they're not
on board. Does that give some of these Supreme Court justices,
I guess a little bit more cover or you know,
I know it shouldn't, but you know they're human.
Speaker 1 (27:22):
You're right, it shouldn't. It should not matter one way legally.
What does matter is that these cultural shifts have exposed
the truth about the science that this does not help kids.
It hurt kids. It hurts kids, It does not decrease suicides,
and in fact, there's evidence that it increases suicides because
(27:42):
you'd lock people in to a position where they do
not accept and actually reject their own bodies, because it's
a terrible position to be in. Whereas your body develops,
you start saying I don't want this body, okay, and
you have a lot of sympathy for that. The solution,
as the science has now proven, is not the problem
(28:04):
is with the body, and you cut healthy organs off
like we don't do that with any other mental condition.
You don't say, if somebody has anorexia who thinks they
are overweight when they're actually not, you don't put them
on diet pills. You don't recommend a liposuction for a
(28:24):
kid that says I see myself as being overweight, yet
identify thins there's something wrong with my body. That's not
what you do. There is therapy, there's treatments. You deal
with anxiety, you deal with depression. This is the only
one where they say, no, the body's wrong. A perfectly
healthy body is somehow diseased. The notion that you were
born in the wrong body is fundamentally what's behind all
(28:46):
of this ideology, and that is an absolutely unscientific concept.
So as the culture has shifted on that, right, and
it's very common sense. The culture has shifted on that.
You're seeing it reflected in the laws where the state
after state you got over but over half the cut.
I believe now have these protections for children. And Europe
has moved back and you see, you know the bud
light moment where people saying, this is way too far
(29:10):
and you're hurting our kids, you're going after our kids,
And that is what has woken up people finally to
this problem.
Speaker 2 (29:17):
Yeah, I mean, I think, of all things, you know,
we need to protect children from the mutilation maiming of
their bodies. You even think that would be sort of baseline,
But yet we're here, you know, Roger, is there anything
else you'd like to leave us with before we go.
Speaker 1 (29:31):
I think the next battle is going to be on
pronouns and sports. I think it's it's going to look
really good on the sports side of things. I think
the American people see the injustice of mediocre boys and
men suddenly being gold medal winners and shattering the records
(29:52):
for girls. It's depriving girls of their accomplishments. I asked
this to your next LGBT or woke friend, why do
we have girls sports at all? Why they don't have
to stop and think about it for a second. It's
ultimately rooted in bio biological differences. If they don't go there,
(30:13):
then I don't know what the answer is. And then
on pronouns, right, because a lot of folks remember Twitter
ban people for quote misgendering, right, And now we're in
a position where you could speak freely on Twitter on
those things. But it's that level where you coerce people
to say something against their conscience. Is that highest level
(30:34):
of coercion. And that's going to be another big fight
over these things. Can people disagree and not get fired
for it, or be denied a government contract, et cetera,
or not get promoted. I mean, these are the next
frontier on these questions that will probably be litigated at
the Supreme Court. Roger really smart stuff.
Speaker 2 (30:57):
I've learned a lot from the conversation and always appreciate
the work that they are foundation does. So we really
appreciate you making the time for us today.
Speaker 1 (31:04):
Thank you very much. Appreciate you it was Roger Severino.
Speaker 2 (31:07):
Appreciate him for taking the time and breaking down this complicated,
well should be complicated, but legal matter, so appreciate him
for making the time. I appreciate you guys at home
for listing every Monday and Thursday, but you can listen
throughout the week. I ont to thank John Cassio and
my producer for putting the show together.
Speaker 1 (31:22):
Until next time.
The Supreme Court over the past.
Speaker 2 (00:04):
Week held oral arguments over Tennessee's ban on transgender medical
procedures for minors. Now, the Biden administration has joined the ACLU,
who sued on behalf of parents of three transgender adolescents
and a Memphis doctor. They're challenging Tennessee's law and it's
made its way to the Supreme Court. Now we should
have a ruling expected by July of two thousand and
(00:26):
twenty five. But there are broader implications for what the
Supreme Court decides, bathroom access, participation in school sports, a
lot of the conversations we've been having as a country
right now, So where is this heading, what does it mean,
and what arguments were made before the Supreme Court. We're
going to have someone on who's been following all of this,
(00:48):
who's going to give his legal expertise about the argument
that the Biden administration is making and where this might
be heading in front of the Supreme Court. We're going
to have Roger Severino on the show to break down
all of this for US Vice president at Heritage Foundation.
He's also a former director of HHS Office for Civil Rights. Also,
I didn't realize this, but He's also married to Carrie Severino,
(01:09):
the president of the Judicial Network. We've had her on
the show as well, so really brilliant couple. But that's
besides the point. That's an aside. But anyways, we're gonna
have Roger on the show. He's going to break all
this complicated legal matters down for us and everything you
need to know about what was argued in front of
the Supreme Court.
Speaker 1 (01:26):
Stay tuned.
Speaker 2 (01:31):
First of all, what we were talking about, I didn't
realize we're married to Carrie, and I was saying, you
guys are like a brilliant legal duo. So I'd love
to hear your conversations. But I'm looking forward to you
bringing some of that brilliance to the show to talk
about what's being argued right now in front of the
Supreme Court. So appreciate you taking the time to join
the show.
Speaker 1 (01:50):
My pleasure, it's an honor.
Speaker 2 (01:52):
So obviously, this center is around Tennessee's ban on transgender
medical procedures for miners. There's other states that I think
over two dozen states that have enacted similar bands.
Speaker 1 (02:03):
So walk us through.
Speaker 2 (02:04):
It was sort of big picture, you know, how did
this case make its way to the Supreme Court.
Speaker 1 (02:10):
It's a long, sad story and it's paved with a
lot of destroyed lives of miners. Gender ideology has been
on the march for you know, fifteen sixteen years in
earnest and a lot of people. It really the two
things people didn't believe it was happening. The idea that
people were born in the wrong body seems so outlandish
(02:32):
that people didn't believe it was a thing, but oh
yes it was, and it was pushed through bathroom mandates
and then pronoun mandates. And they always focus the LGBT
left on kids, seeing that these gender confused kids and
all we're doing is quote unquote affirming them so that
they'll feel better about themselves. And the worst part about
it is then they added, and if you don't do
(02:53):
this quote affirming model, they will commit suicide. They will
commit suicide. And that lie was at the oral arguments,
and Tennessee and other states have moved and said, you
know what, that's not true. Kids' lives are not at risk.
And what you're doing by pushing this is putting kids
on a one way conveyor belt. You put them on
(03:13):
puberty blockers, you put them on hormones, and you put
them on a one way track to quote unquote transitioning
where they will reject their bodies and ingrain it. And
none of those treatments actually reduce suicide. What it does
do is lead to higher rates of depression, increase suicidality
according to the label of some of these drugs, and
(03:36):
it leads to sterilization, and in some cases they actually
remove the reproductive organs, hysterectomies, penectomies, mastectomies. This is what
they're doing on kids over sixteen thousand. So it went
from this can't be possibly happening to what's happening everywhere,
and doctors are making millions off of this, and the
(03:57):
State of Tennessee and other states have said, this is insanity.
We cannot be doing this to our children. We have
to put a stop to this when the evidence is
not there that it does any good and that it's
actually causing these permanent harms. State of Tennessee acted. Then
you have LGBT activists and the Biden administration fighting back
and saying, oh no, there is a constitutional right for
(04:18):
these kids to be put on these puberty blockers and
cross sex hormones. And the state should not have the
ability to protect kids. I'm hopeful given the tenor earlier
argument I was there in the court, you're going to
have a strong majorities of restoring common sense on this
and allowing states to protect children.
Speaker 2 (04:36):
You know, we've had people like Chloe Cole on the show.
I think it was toob Or thirteen when she started transitioning,
fifteen when she got a double mesectomy, and then she
regretted it by seventeen years old. So to your point,
we're allowing these children to make life altering decisions and
a lot of the parents are bullied into thinking, oh,
you know, your kid's going to commit suicide if you
(04:56):
don't go along with it. I think some parents are
bad act in this, and I think some are you know,
just think that they're convinced and bullied into thinking that
they're doing the best for their child. So basically so
the Tennessee law, it's this case has been pursued by
the ACLU and also with the Biden administration. They're suing
on behalf of parents of three transgender adolescents and a
(05:19):
Memphis doctor. The Biden administration is essentially arguing that this
ban on transgender medical procedures for minors violates the equal
protection clause of the fourteenth Amendment. What do you make
of that argument.
Speaker 1 (05:33):
Well, I think it's outlandish that they want to constitutionalize
the practice of medicine that protects kids. Kids can't get
tattoos in some states, kids cannot buy alcohol until they're
twenty one, can't buy cigarettes. Yet here they're trying to
say there's a constitutional right to cut off your reproductive organs. Literally,
(05:58):
that is literally what the implications of this case are.
And the argument they're saying is that this is somehow
sex discrimination because there are legitimate treatments for what's called
precocious puberty. If a child enters puberty really early, say
eight or nine, then that might cause some long term
(06:19):
harms because their bodies will not be able to take
that change. Something's off, something's wrong. We know what normal
puberty looks like, So you could have some puberty blockers
so that they get on the proper age track. On
the other side, you could have some people with real
severe deficiencies in testosterone or esrogen, which would impact their puberty.
That's just the practice of medicine. So the LGBT left
(06:43):
and the Biden administration said, well, if you could use
puberty blockers and cross sex hormones for a boy that
wants to develop into a boy naturally and normally, then
you have to provide those same those same testosterone to
a girl that wants to develop into a girl A boy,
I'm sorry, a girl that wants to develop into a boy,
(07:05):
and that is therefore sex discrimination if you don't provide
a girl and a boy the same amount of testosterone,
or even more so they could look like boys. Nowhere
in the Constitution is to say anything of the sort
that that's how you should interpret sex discrimination. What's interesting is,
I'll call it the dog that didn't bark. Justice Gorsuch.
(07:28):
He was the author of the boss Talk decision that
kind of opened the door to some of these arguments
in a different context, which is Title nine sex discrimination
in schools, sorry, Title seven in employment. He was silent,
the entire argument silent, so that I think I was
very telling that he's keeping his powder dry because I
(07:49):
think hard to interpret. I think he doesn't want his
own decision to be used to constitutionalize this new theory
that sex discrimination is equivalent to gender identity. And if
you get something to one sex, biology doesn't matter. You
got to give it to both in the name of
this gender ideology. So that's one of the big lurking questions.
Speaker 2 (08:07):
If there arguing under sex discrimination, we're sort of like
redefining sex then, right, because that was sort of redefining
what a biological man and a woman would be.
Speaker 1 (08:16):
Is that right? Or am I reading that correctly? Well,
they want to have it both ways. Yeah, So Justice
Solito asked an incredible question, said, well, you're looking for
protected status correct, yes, Okay, Usually it's based on immutable characteristics, sex, race,
national origin. You can't change those things. And he asked Strangio,
(08:39):
the ACOU lawyer, well what about this whole gender fluid thing?
Can you be male at some point, then female and
then back to male And the ACOU attorney had to
say yes, And then leader said, well that means it's
not immutable, correct, And we don't give protected status generally
to a mutable characteristics. So it's own ideology. It's eating itself.
(09:03):
I wish somebody had asked the question what is a woman?
Because they were thrown around these terms. You had the
Solicitor General pre Lgar saying well, there's birth, sex, and
then there's sex assigned that birth. And if you're discriminating
on a basis of sex because males get one and
females another, well, hold on a second here, what are
you talking about? What do you mean sex? What do
(09:23):
you mean a woman? Because under gender ideology, biology doesn't matter.
Sex is entirely in somebody's head and it can't be falsified.
It's purely subjective. So you have this really curious thing
where they are arguing in one breath, okay, and they
say that I'm using the pronouns a use he was
denied male hormones because he had a female birth sex. Okay,
(09:50):
If it's he being denied hormones that are available to
other keys, how is that sex discrimination? Right? Like the
mind just re to think you need to have different
treatment between males and females. But when they're saying he
was denied something that other he's got, that's not sex discrimination.
So you run into all these contradictions whenever you go
(10:11):
down the gender ideology rabbit hole. And I was exposed
by the court by some really tough questioning.
Speaker 2 (10:18):
We've got more with Roger, But first, the Christmas in
Hankkah season is a time of hope and peace for
many of us, but for those in Israel facing the
ongoing war, it is a time of fear and uncertainty.
The hardships are felt by everyone, with many people struggling
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Many living through the war in the Holy Land are
(10:39):
grieving the loss of loved ones while also enduring isolation
and hunger. We must not let them feel forgotten by
the rest of the world.
Speaker 1 (10:47):
That's why I'm.
Speaker 2 (10:47):
Partnering with the International Fellowship of Christians and Jews your.
Speaker 1 (10:51):
Special holiday gift.
Speaker 2 (10:52):
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(11:13):
That's eight eight eight or eight eight or three two five.
If sex is fluid and it's meaningless, then that would
sort of like negate and render any law protecting like
discrimination discrimination against certain sexes, and you know, gender issues
would be like completely irrelevant, right, Like what would be
(11:34):
the point of any event?
Speaker 1 (11:35):
Yeah, and you saw this with the questions about sports
from Justice Kavanaugh, who actually teaches girls basketball, he asked
multiple times, and just as Barrett followed up, Okay, what
are the implications with girls and women's sports under gender ideology?
They will say a quote trans girl is a girl.
That means a boy who identifies as a girl is
(11:58):
a girl, which means they have to be accepted into
all female spaces, including sports, overnight accommodations, showers, and locker rooms.
If there is no biological relevance, then you're a girl
and you get to go to all the girl spaces
regardless of your reproductive organs. Now that has serious implications
(12:21):
for girls privacy. Again, of course, safety and sports and
fairness in sports. Both the ACLU and the Solicitor General
kind of threw the LGBT left under the bus on
this one. They said, oh, no, if you decide on
this case, you have plenty of good arguments to say
that there are people being hurt if we allow boys
(12:41):
that identify as girls in girl sports. I was a
little surprised they went that far, and I think they
realized that the tides have changed dramatically. What people thought
was unthinkable and ridiculous is now upon us, and boys
are taking girl spots in the podiums and getting the
replaced metals. We see it with our own eyes in college.
(13:03):
Hulking men are the ones that are winning and defeating girls,
and they're the ones breaking the records and shattering them
and who's losing the women. So I think you're seeing
that the tide has turned a bit that even the
ACLU and the Biden folks said, yeah, you know, maybe
we don't want to push it that far now. Now
I don't believe them. When it gets before the court,
they will push it that far. But at least now
(13:26):
they didn't want to push it because they're afraid of
the implications for this case.
Speaker 2 (13:31):
Now, we heard a lot about the dangers of these
surgeries and the oil arguments. I mean a lot of
these surgery surgeries are not without complications. It's sort of
like the Wild West as they sort of like develop
some of these surgeries. So like, has that been a
point of conversation, Oh?
Speaker 1 (13:48):
Absolutely, out of the gate, Justice Slido asked about the
cast report. Now, this came out of England, a few
months ago. Europe was the pioneer of these sorts of
cross sex interventions, the surgery as a hormones et cetera,
and then the United States, as has often happened, just
went nuts with it and just took it to the extreme. Meanwhile,
(14:09):
they were studying the actual effects and they realized that
there was no evidence that they actually reduced suicides, and
Alito asked this of Strangio, and Strangio responded and admitted, yes,
it does not actually reduce suicides. So their number one
talking point that they've pushed on the American people on parents,
you either have a live boy or a dead girl.
(14:33):
That's the emotional blackmail they've been pushing on people, to
the point where parents have lost custody of their children
in California in particular, custody of their children because they
didn't go down this route, and in some cases those
kids did commit suicide. Look at the case of Abby
Martinez and her daughter Yale Martinez, who committed suicide after
(14:54):
she lost a custody of her child and they put
her down the whole trends sex surgery, I'm sorry, a
drug route with the testosterone and ended up taking her life.
That's where this thing could lead. There is no evidence
that backs up that this is better for mental health
when you do these interventions. When we know, we know
(15:15):
that if you let nature take its course, over ninety
percent of the time kids grow out of it. They
accept their bodies. Remember, there used to be a thing
called tomboys, right, That was a common cultural understanding that, Okay,
there's a lot of girls that do things that are
associated with boys, or might be more sporty or not
(15:35):
want to wear skirts. They were just called tomboys, perfectly accepted.
And only very recently has this ideology come and said, wait, wait, wait, no,
we think you're actually a boy. You should actually start
identifying as a boy, and we'll put you on drugs
so you can become a boy more fully. And that
ideology has spread like wildfire. When we know that if
(15:59):
you just let me takes the course, people accept their
bodies overwhelmingly. No drugs are needed, no sterilization, no lifetime
of being a patient. And these interventions are iatrogenic, meaning
they lock people in. Right, if you get a young
kid testosterone, they'll start feeling more confident, more aggressive, and
a little bit more better about themselves. But think about
(16:21):
the long term implications. You want to tell a twelve
year old girl, Hey, by the way, you will never
have a normal sexual experience in your entire life and
you will never be a mother. Are you okay with that,
Susie twelve year old? Oh? Okay, good, let's do it. No,
that is horrendous medicine. And we're going to look back
on this era with shame.
Speaker 2 (16:41):
I mean, you know, to your point, when I was younger,
you know, when I was a kid and I was
in gym class, they made me play soccer with the
boys because they said I was too aggressive. Look at
me now, you know, But you know, I mean, this
sort of underscores just how important the Supreme Court is
and how well, you know, thankful we are to have
(17:02):
a more conservative court given the implications of the severity
of what is being presented right now in front of
the Supreme Court.
Speaker 1 (17:14):
Absolutely, and the medicine is crucially important here right there's
a fundamental question we have to answer, first legally, what
is a woman? What is male or female? Because if
the Eco Protection Clause protects against discrimination by sex, we
have to know what that is, which means we have
to pin down the LGBT left on their definition. They
(17:36):
cannot have it both ways. They cannot say that a
person who identifies as a woman is a woman, yet
there's this thing called sex discrimination that is related to biology.
You cannot have it both ways. That they do want
to have it both ways. They want to say it's
a mental condition that is required to have coverage by
insurers and doctors must be required to perform these Yet
(17:56):
it's not a mental condition, So you can't treat it
as such because that would be bigoted and discriminatory. Right again,
you cannot have it both ways. And where the law
comes in is states have the ability to protect children.
They do it all the time. Let's take testosterone itself.
What Solicitor General Prelagar said was essentially that people are
(18:18):
like Plato. Human beings are these things that are assigned
a sex at birth, almost coincidentally. And if you add
testosterone to this thing called a human being, it will
become a male. If you add estrogen to this thing
called a human being, it will become female. And that's
the way she was speaking about these concepts, absolutely ignoring
(18:41):
that there are radical differences in the baseline. If you
are a female genetically you're going to be a female
biologically and vice versa. And if you add testosterone one,
it's radically different than the other, which is why if
you have a even a mild deficiency in testopa thrown,
you're likely not going to get a prescription for it
(19:02):
as a kid because of the side effects. You certainly
won't get it. If you want to look more masculine,
to bulk up, that's called steroid abuse, and that's illegal.
It's a controlled substance. It's a category Schedule three drug.
But if you are a girl who wants to bulk
up and gain five pounds of muscle mass, oh, you
have a constitutional right to it. No, that's what the
(19:26):
LGBT left is saying that, but not taking into account
that these drugs have serious side effects, greater side effects
in the opposite sex than your own in fact, and
the state has absolutely right to say you cannot do
these things. That is not proper medical treatment. They banned lobotomies,
the many states have banned shock therapy treatments, They banned eugenics,
(19:50):
all of these things because there were there were these
contagions of ideology replacing science, and we're going through that
right now.
Speaker 2 (19:59):
What's also just a anti God because they're denying God's creation.
But you know, I know that's not what's being argued
in front of the court. You've got more on all
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So I was reading that Justice Kintaji Brown Jackson was
trying to draw parallels in comparison between laws banning transgender
care for minors and laws banning and racial marriages. I guess,
(21:28):
what are what are some of the more I guess
ridiculous arguments you've heard argued in these arguments.
Speaker 1 (21:34):
The most ridiculous was Justice Sodomire saying, well, aspirin has
side effects too, to try to downplay the severity of that,
and comparing it with sterilizing children. I mean, it was
so absurd that she would make that comparison. Now, it's
(21:55):
just like aspiring, you know a side effects too, and
so does testosterone, and it's realizes young girls who will
never have it. And she absolutely dismissed people who have transitioned,
These folks who lives have been ruined, who are put
on this one way conveyor belt and told that you're
(22:16):
going to commit suicide if you don't do this, And
now they cannot have kids, they can have normal sexual functioning.
They don't get insurance coverage to restore the mutilations that
have happened to their bodies. They can't date, They feel
socially isolated. Their suicide risk has gone up, by the way,
because of the depression that comes from not being able
(22:38):
to go back to your body. She absolutely dismissed it.
Maybe it's like one percent, but what about all these
other kids? It was so sad, And of course Kaichanji
Brown Jackson using the race analogy. You know, it has
a bit of surf. I'll give her some credit, right,
(22:59):
it has some surface appeal, But she was using it
more to try to say, well, this is equivalent to racism.
Transgender status is equivalent to race. No, it's not. It
is not a protected class. It doesn't it has not
been recognized as such. They went down the line of
(23:19):
she don't we just treat this as a quasi protected
class as a politically powerless group. The LGBT left is
not politically powerless. That is certainly not the case, and
that doesn't normally fit the criteria to get protected class status.
But she really wanted to make that equation of race
that this is the new frontier of anti discrimination law.
(23:41):
But that's certainly not the case when it's the parents
being targeted and the kids are the ones that are
being hurt by this.
Speaker 2 (23:47):
Well, regarding the comment regarding Asper and I mean I
just took etc.
Speaker 1 (23:51):
Before the show.
Speaker 2 (23:52):
That's a little different than chopping my bodybuards off, Like
a little bit slightly.
Speaker 1 (24:00):
Different, you know.
Speaker 2 (24:02):
So talk about the implications of this fight in this
case and what it means for other things moving forward,
whether it be you know, bathroom access or a participation
in sports, you.
Speaker 1 (24:15):
Know, kind of you know, what.
Speaker 2 (24:17):
Does this decision that is expected by July twenty twenty five,
what are the broader implications here?
Speaker 1 (24:24):
Well, the first big one is will there be elevation
of gender identity as a new protected class equivalent to
race as Katanji Brown Jackson would want it to be.
I think the answer to that question is going to
be no. I didn't count the vost watching during the
argument to see that there would be enough to go
down that route. Just as Barret said, well, isn't that
(24:46):
the better route than sex discrimination elevated protected class? But
I think that's just sort of exposed that this would
be one of the most unusual protected classes to be added.
We haven't added one in fifty years, and there wouldn't
be a telling reason to add one here. Second is, okay,
what is a woman? What is sex? Is the Supreme
Court going to give us some clarity on that or not?
(25:11):
I think they're not going to come down hard, I
don't think, but they will say by implication, by implication,
there is such a thing as male and female. And
one route they could go is say, well, things that
differentially impact males and female in medicine are not discrimination.
That's just the practice of medicine. If you don't take
(25:34):
biology into account, you'd be committing malpractice. In fact, so
if there's different treatment for men and women and how
they're administered testosterone or estrogen, then that's not discrimination because
men and women are different. The broader implications of this
will spill over into sports and pronouns, etc. So the
real tension is going to be, Okay, what do you
(25:55):
do with the boss Talk decision? The Boss Talk decision
did say transgender status gets protection in Title seven employment
for hiring and firing. Will that be limited, will that
be narrowed? Will that be acknowledged at all because here
we're talking about the ecal Protection Clause and the Constitution.
So I am really interested to see Justice Gore Such's
(26:16):
view on this, if his decision in boss Tech has
any application in the eco protection context or not, because
that's a big outlining question, because there's some tension there.
Speaker 2 (26:27):
You know, I'd like to hope and believe that the
Supreme Court of all bodies is immune to public opinion,
but you know, they're human at the end of the day.
Does this past election give them some cover in the
sense of, you know, a lot of this stuff was
sort of rejected by you know, Americans. I mean, you
look at Donald Trump's ad that you know, Kamala Harris
(26:48):
is for the them, I'm for you, Or you know,
you look at in a lot of these states, or
a lot of these senate races in various states, men
and women's sports played out and was rejected, or you know,
you look at the fact that the vast majority of
Americans do not believe that men should be in women's sports.
That you know that there is a growing number of
Americans who are sort of more broadly and more boldly
(27:09):
stating that they don't agree with this, that they're not
on board. Does that give some of these Supreme Court justices,
I guess a little bit more cover or you know,
I know it shouldn't, but you know they're human.
Speaker 1 (27:22):
You're right, it shouldn't. It should not matter one way legally.
What does matter is that these cultural shifts have exposed
the truth about the science that this does not help kids.
It hurt kids. It hurts kids, It does not decrease suicides,
and in fact, there's evidence that it increases suicides because
(27:42):
you'd lock people in to a position where they do
not accept and actually reject their own bodies, because it's
a terrible position to be in. Whereas your body develops,
you start saying I don't want this body, okay, and
you have a lot of sympathy for that. The solution,
as the science has now proven, is not the problem
(28:04):
is with the body, and you cut healthy organs off
like we don't do that with any other mental condition.
You don't say, if somebody has anorexia who thinks they
are overweight when they're actually not, you don't put them
on diet pills. You don't recommend a liposuction for a
(28:24):
kid that says I see myself as being overweight, yet
identify thins there's something wrong with my body. That's not
what you do. There is therapy, there's treatments. You deal
with anxiety, you deal with depression. This is the only
one where they say, no, the body's wrong. A perfectly
healthy body is somehow diseased. The notion that you were
born in the wrong body is fundamentally what's behind all
(28:46):
of this ideology, and that is an absolutely unscientific concept.
So as the culture has shifted on that, right, and
it's very common sense. The culture has shifted on that.
You're seeing it reflected in the laws where the state
after state you got over but over half the cut.
I believe now have these protections for children. And Europe
has moved back and you see, you know the bud
light moment where people saying, this is way too far
(29:10):
and you're hurting our kids, you're going after our kids,
And that is what has woken up people finally to
this problem.
Speaker 2 (29:17):
Yeah, I mean, I think, of all things, you know,
we need to protect children from the mutilation maiming of
their bodies. You even think that would be sort of baseline,
But yet we're here, you know, Roger, is there anything
else you'd like to leave us with before we go.
Speaker 1 (29:31):
I think the next battle is going to be on
pronouns and sports. I think it's it's going to look
really good on the sports side of things. I think
the American people see the injustice of mediocre boys and
men suddenly being gold medal winners and shattering the records
(29:52):
for girls. It's depriving girls of their accomplishments. I asked
this to your next LGBT or woke friend, why do
we have girls sports at all? Why they don't have
to stop and think about it for a second. It's
ultimately rooted in bio biological differences. If they don't go there,
(30:13):
then I don't know what the answer is. And then
on pronouns, right, because a lot of folks remember Twitter
ban people for quote misgendering, right, And now we're in
a position where you could speak freely on Twitter on
those things. But it's that level where you coerce people
to say something against their conscience. Is that highest level
(30:34):
of coercion. And that's going to be another big fight
over these things. Can people disagree and not get fired
for it, or be denied a government contract, et cetera,
or not get promoted. I mean, these are the next
frontier on these questions that will probably be litigated at
the Supreme Court. Roger really smart stuff.
Speaker 2 (30:57):
I've learned a lot from the conversation and always appreciate
the work that they are foundation does. So we really
appreciate you making the time for us today.
Speaker 1 (31:04):
Thank you very much. Appreciate you it was Roger Severino.
Speaker 2 (31:07):
Appreciate him for taking the time and breaking down this complicated,
well should be complicated, but legal matter, so appreciate him
for making the time. I appreciate you guys at home
for listing every Monday and Thursday, but you can listen
throughout the week. I ont to thank John Cassio and
my producer for putting the show together.
Speaker 1 (31:22):
Until next time.
Host
Lisa Boothe
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