Legal landscape of trans-related issues in schools and society: Liberty Justice Center talks to a full house at Mallinckrodt
Did you miss the April 30th event? Scroll below for the transcript.
Does an Executive Order trump local law?
What are parent’s rights when a school hides a child’s gender transition at school from parents?
Can you be fired for advocating for a position on an issue?
With varying opinions in the room and civil discourse on full display, New Trier Neighbors tackled these questions and more on April 30th at the Wilmette Park District’s Meskill Senior Center at Mallinckrodt. Through an enriching discussion (detailed below), it turns out the answers to the questions above are complicated. But one main point is clear — given the varying positions on transgender-related issues regarding sports and bathroom access —the Supreme Court will need to weigh in.
Below is a transcript of our April 30th event with nonprofit, nonpartisan law firm Liberty Justice Center.
[The transcript has been lightly edited for length and clarity; relevant links have been added where appropriate to help the reader easily access more information.]
New Trier Neighbors board member Dr. Carrie Mendoza started the April 30th event off with context on transgender issues from a medical perspective:
Dr. Carrie Mendoza: By raising your hands: who has ever been a confused or unhappy teenager or dealt with a confused or unhappy teenager? Most of you are raising your hands. Yes, so this has come to the medical space really from wanting to help people and that's what we physicians do – cases of gender dysphoria have really risen in the past 10-15 years and this has developed into a very complex topic.
There is a new cohort of people coming into the health system, mostly adolescents, and that was very different from what had been seen in the past. I got involved over concerns from a patient's safety issue.
When I started learning about what was happening, one area I saw that there was a misdiagnosis of patients with gender dysphoria in terms of hardwiring them into a process where they would transition.
The reason I learned about that is because I interacted with what's called “de-transitioners,” people who have transitioned, but then later regretted it.
When I came to learn what that was all about, I was very concerned as a physician to hear stories that they weren't properly diagnosed. They were rushed through the system and struggling with other issues like depression or past sexual assault or a myriad of issues or being glossed over and they were being fast-tracked into medicalization of their depression, which led to surgeries and hormones and things that were irreversible.
So that was really concerning to me, that there was a misdiagnosis and from a physician perspective I felt that that needed to be dealt with.
The second thing I've seen is a lack of proper discussion and free debate around adverse effects of these procedures and hormones, even for folks who have transitioned. Some of my work dealing with what's called the WPATH Files, which were internal communications for the main transgender organization. They themselves raised concerns about cancer, early cancers and adverse effects.
Through my advocacy, I was concerned that we couldn't even just talk about this. It got so politicized. I thought that as a physician we should all be able to talk about what is best for patients, even if it's not something that is politically correct.
And then I'll close with, how did this all get into the legal sphere? Certainly some of it is malpractice issues because of these patients who feel that they were harmed.
But in 2012, the Obama administration wrote civil rights language into healthcare laws, putting [the term] “gender” in along with “sex.” So a lot of healthcare systems and doctors' practices shied away from any type of debate or discussion out of fear of civil rights violations. That conflation of gender with sex has led to a big problem in terms of discussing patient safety and adverse effects.
This is really fundamentally a medical issue, and I just care about patients not being harmed or those who do choose to transition our getting quality care.
Next up was Ted Dabrowski from Wirepoints (and a New Trier Neighbors board member) and Bridget Conlan, staff attorney with Liberty Justice Center:
Ted Dabrowski: “Well, thank you all for coming tonight. Tough topic, and I'm not a legal guy, so I always appreciate when I hear the legal people speak about things like this - this is clearly one where things are still being defined.
You’ve seen a big move in the DEI movement and the transgenderism movement for quite a few years and then, like him or not, Trump got reelected and he is pushing back. One of the first executive orders he did was defending women from gender ideology, extremism, and restoring biological truth to the federal government. Then he did one keeping men out of women's sports, so immediately now things are coming to a head.
This is what makes a discussion like this so important because, I think most of us love our individual freedom and individual rights. But this is one where people are still trying to define how far can my fist extend before I hit your nose and vice versa. So it's good to have this discussion and it's good for these legal cases to be coming along because they will want to clear things up, and they will set a precedent.
I have had the fortune of working with the Liberty Justice Center and with Bridget. My colleague Mark Glennon, not in his Wirepoints role but as himself, sued Bally's, who is building the big casino in Chicago. They came up with some something very interesting that the city of Chicago forced them to do, and that was if you're going to raise money for your casino in Chicago, 25% of the ownership must come from minority people.
That was the first time we've seen something where it's defined only for minorities. Well, guess what? My mom's from Ecuador, so I quickly went in and wanted to go buy a share and I didn't get kicked out. They let me buy it just because I said I was a minority.
My colleague Mark Glennon, who doesn't have an Ecuadorian mother, tried to buy it [a share] and he said, well, I'm not a minority, and it rejected him. So Mark sued and Liberty Justice Center took on the case pro bono and today Bally's announced that they would give up its race-based policy.
So with that, we appreciate the kind of work that Liberty Justice Center does, and I'll let you, Bridget, describe Liberty Justice Center and of course a little bit of your background.
Bridget Conlan: Right, so Liberty Justice Center is a nonprofit public interest impact litigation firm, so we are completely donor supported. We do not charge our clients anything, and that really allows us to represent them to the fullest extent to the Supreme Court and through the circuit courts of appeals. It sometimes takes years. Most people, if they had to pay a lawyer to represent them for four or five years, would have to settle before there was a court ruling on their issue. So this is really the best way to fight back against government overreach and make sure that you're defending people's constitutional rights.
And then a little bit about me. I'm from the Chicago suburbs. I went to Northwestern for my undergrad. I have a bachelor's in economics. And then I went to the University of Chicago Law School for my JD.
Ted: And you were an entrepreneur for a few years before that.
Bridget: From 2015 to 2020 I ran a commercial shared kitchen, so I became very accustomed to dealing with the red tape of local government that way. If anybody's familiar with the cottage food laws in Illinois, I think they called it Nicole's Law, because little girls weren’t even allowed to have a bake sale with homemade items. So having seen that, that really made me want to go to law school and help fight back against those kinds of injustices. That's how I ended up at Liberty Justice Center. We're a nonpartisan 501(c)(3), so we take cases really across the board as long as it's about government overreach. So the short of it is we sue the government for free.
Ted: So tell us about these executive orders. Once Trump took office he created a lot of noise, a lot of chaos, some people would say. How would you define how things changed when he came in and then how does that open the door for lawsuits and all that?
Bridget: President Trump has indeed signed a few executive orders. Remember, these are not federal laws. Executive orders are just directing the government to make sure that the federal laws are executed faithfully. They may interpret federal law, and that may or may not align with what the Supreme Court decides, if they have decided on it yet or in the future are going to decide on it. And so, this has led to a ping pong-ing effect, as I would call it. Obama in 2016 issued the Dear Colleague letter, which required gender affirming facility access for trans-identifying students; and then states sued and they got an injunction. Then Trump took office [in 2017] and said he was not going to implement this.
Then we had Biden towards the end of his term, as many of you probably remember, reinterpreted Title IX [to expand “sex” to also mean “gender identity” and thus extend related protections]. Red states said we're not doing this. Now we have Trump and he has issued his own executive orders with his return to the pre-Biden interpretation of the Title IX and I assume certain states are going to rebel again.
Really under the Supremacy Clause, federal law trumps state and local laws, but executive orders are not actually federal laws. So it is important to understand the distinction. And until the Supreme Court rules on the correct interpretation of Title IX, we really don't know what the executive orders will do.
So we've got a bit of a mess between a president who's trying to execute things through [executive] orders versus local governments which may like it or which may not like it, and of course in Illinois there are a lot of governments that don't like it.
Ted: So what does the mess look like in Illinois right now?
Bridget: Because of the 7th Circuit precedent on some of these issues the laws that the state and local governments are subjected to if they were to be sued, are the opposite of the Trump administration's interpretation of these laws.
They really are stuck between a rock and a hard place. I think everyone has the best intentions, but I wouldn't want to be a school administrator right now or ever, but definitely not right now - it's not an easy job. You're not going to please everyone and especially when you have federal funding on the line. It’s a catch-22.
Ted: You guys are working on some really interesting cases that make it real. Like you said, we could go back and forth of what's happening and how people are feeling, but the cases are what bring it to life, especially what's happening within the courts. You've got a particular case you're working on in California - tell us about that one.
Bridget: Right, so the background on this is most school districts in California have implemented what most people call “parental secrecy policies,” which means they will keep a social transition private from the parents of the student. It is unclear whether that aligns with FERPA, which is a federal law, but this was a kind of a school policy that most districts had.
A few districts have gone the opposite direction, and they've implemented parental notification policies which require that the parent is notified. One of the districts who did this is Chino Valley.
They were then sued by the state of California. We represented Chino Valley and ultimately they were allowed to keep a policy that was neutral to the students gender, but said the parents have to be notified of any official or unofficial record change. So that's in accordance with FERPA. We have another school district that has a similar issue.
We also have a case where we're again representing Chino Valley, but this time they are suing the state because California did pass AB 1955 which said schools cannot have parental notification policies. It’s unclear whether that conflicts. We are currently in the timeframe to amend or appeal, so that's ongoing.
Ted: So, so what does it look if they're saying you can't notify parents, what does that language look like?
Bridget: Typically in practice, what happens when you have a secrecy policy, is everyone knows except the parent, which is really unfortunate in most cases. Hopefully parents would be supportive and want to know what's going on with their kids, and that's also why we have FERPA, which requires parents to have access to their child's school records at any at any age [until they turn 18 or are no longer a dependent for tax purposes].
Usually parents would be notified of almost any change in their child's records, if they are being bullied or anything related to them being vulnerable at school. This [gender transition] is the only thing that schools are going out of their way to hide in some of these cases, so it is unfortunate. I think some school districts are deciding that they really want to collaborate with parents, and I think that's great.
Ted: Is there a typical language of this - that we will not notify parents? How precise are they?
Bridget: They usually are actually quite broad and it's strange because they usually will not use language that's specific to one situation so it’s broad in how it applies. It's not clear usually what the student would have to do for the parent to be notified.
I do understand some of the concerns that they [schools] have, of course, there are always going to be situations where there will be unsupportive, but that should be the exception, hopefully, not the rule.
I think students and teachers have a good gauge of when something needs to be kept under wraps. It [secrecy policies] assumes that the school knows better than the parent, and that's not the default assumption under our parental rights case precedent.
Ted: Talk a little bit more just about how they defend it. Obviously, they'd defend it if the parents were being be violent to the kids. Are there other major arguments or just privacy, which when you're dealing with the privacy of minors against their own?
Bridget: Privacy from parents is not the same as privacy against a stranger knowing what's going on in your life. It's also something where it’s not really private if everyone knows except for the parent.
Ted: You're also working on a case for a doctor in Wyoming. Tell us about that one.
Bridget: Yes, so Doctor Cubin is a radiologist in Wyoming, and he actually practices medicine in the hospital where he was born in Wyoming, and he was on the Wyoming Medical Board, which is their licensing for doctors and nurses. He, in his personal capacity, wrote an email to the Wyoming legislature to advocate for a law that they were considering called Chloe's Law. And that law passed by a lot. And the governor signed it into law. And then the governor removed Doctor Cubin from the board and he said it was because of his advocacy for this law.
So that's First Amendment retaliation. There is a little bit of a different standard when you're dealing with someone who's essentially a government employee, but we think we have a good case. We are on appeal in the 10th Circuit.
Ted: So what are the big issues there?
Bridget: I mean, obviously the [violation of his] First Amendment rights, but one thing they look at is, was this a matter of public concern that they were discussing in the speech that got them fired. They look at if it affected the efficient functioning of whatever government entity that they're working for.
And they look at whether it was part of their official duties in their employment.
Ted: So where does that stand now then?
Bridget: We're on appeal.
Ted: You're also working on DEI cases, right? And I know there are quite a few and, of course, they may be similar to the Deerfield case - who should be in which bathrooms and locker rooms and all that. So you're working on a separate case, not the Deerfield case, but don't have Title IX litigation?
Bridget: We tend to focus more on parental choice and making sure parents are given options – really the free market can solve a lot of issues.
What we did do related to Title IX was file a complaint with the Department of Education, so it's not a legal case, but that prompted an investigation by the Department of Education into Deerfield, I believe. The reason we didn't file a case there was that while we do bring cases in the Northern District of Illinois, they take a long time. They are one of the slower courts, whereas Wyoming, they call the “rocket docket.”
I think we were in and out of Wyoming in just a matter of months, whereas Northern District of Illinois – I don't know if we've ever had a case where the government didn't ask for an extension at least once, and they always get it.
Because you have a [presidential] administration who's interested in this, they're going to move a lot faster than the Northern District of Illinois. If you did file and if you managed to get through the Northern District of Illinois to an appeal, you would end up in the 7th Circuit, which has already decided this issue - that it is a violation of Title IX to deny access to the trans student.
It's interesting because there was recently a concurrence from Judge Easterbrook on the issue, and he said he actually doesn't agree with his own Circuit’s precedent, that he prefers the 11th Circuit's precedent, but he said that the Supreme Court needs to rule on this because there's a circuit split.
And so because of that, nothing will be changing anytime soon in the 7th Circuit; the only way to change it is to get the Supreme Court to make a decision on it.
Ted: So now in this one where you have your complaint against Chicago Public Schools — I see here that it's based solely on their self-declared gender identity, so talk about that because that's also confusing, right? There's somebody who may have gone through all the steps to change their gender, if you agree that they can change your gender. There's others who just can self-declare - maybe they'll change their mind tomorrow. So how does this all play out?
Bridget: Even under the 7th Circuit precedent there is some language that says schools should be making sure these are good faith requests. In past cases, they've decided they've talked about things like medical diagnosis, seeking treatment, things like that. And so that's kind of the standard that schools should be following in Illinois right now.
And if they have to answer to the federal government with an investigation and that's kind of a separate issue because they are beholden to Title IX as it's interpreted by the court that's reviewing the issue, which right now, it's unclear.
Ted: If you’d like to tie any of these things together, then we can open up for Q&A if you'd like.
Bridget: The tough thing with these policies is there's no one size fits all. There's always a fringe case, and so that's why sometimes you don't really want to have a hard and fast rule. One of the legal concepts [to understand] is the difference between a rule and a standard. A rule gives you a clear-cut answer, but you're missing a lot of context and nuance, whereas a standard is going to be more flexible, but you might not be able to predict the outcome as easily in advance, but that is going to allow for more nuance.
So I think all these issues are difficult. They're all different areas of the law, even though I think they all get lumped together as Title IX. The courts could decide bathrooms and locker rooms and not deal with sports and leave everybody hanging. There are circuit splits on many of these issues right now. They don't all go in the same direction. The 9th Circuit says you cannot keep trans girls out of girls sports, but you don't have to give them bathroom access. So it's like they have very different ideas in the 9th Circuit and the 11th Circuit and the 4th Circuit and 7th Circuit, and so on.
Until the Supreme Court decides to rule on all these things, everybody's kind of doing different things. That's the issue with the circuit split – the law is not being applied in a uniform way and it's just inherently unfair because your outcome is going to be based on where you live instead of the fact that you all live in the United States.
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