((((My Fellow Americans))) #100: Courtney Cahill

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i’ll be buried in my grave before i become a slave yes that is [Music] but it seems like since that day we have solely changed [Music] that is [Music] [Music] but it seems like since that day [Music] we have sorely changed [Music] [Applause] [Music] south carolina you’re watching my fellow americans with your host spike collins yes yes it’s me it’s me i’m here i’m here it’s wednesday keep clapping clap for the spike is back on wednesday miracle how would we know that you were excited about the spike is back wednesday miracle if you didn’t keep clapping welcome to my fellow americans i am literally spike cohen thank you for taking this time out of your busy busy wednesday night to come join us here me a jew in his guest room and you a person of whatever faith ethnicity or lack thereof in wherever you are for this special time together to talk about all sorts of things this is my 100th episode yeah yep i didn’t even realize that as i’m putting everything together and i’m i’m looking it up today and i’m like episode number 100 yeah so thank you for being a part of this journey it’s fantastic and i’ve got a great guest tonight this is a muddied waters media production check us out everywhere on all social media platforms on all podcasting platforms check us out on anchor dot fm slash muddied waters where you can not only leave questions and messages for us that we will play and answer on the muddy waters of freedom on tuesday nights at eight but you can also make donations if you’d like to you don’t have to but if you’d like to and we’ll read your name right here on the show so thank you so much and also as always go to muddiedwatersmedia.com for this and every single episode of muddy waters media as well as the muddy water store and all sorts of other fun stuff be sure to like us follow us subscribe to us press the bell if you’re on youtube we want your phone to explode every time we go live don’t miss out on that and be sure to comment and share this right now share 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chai whatever the hell that is and mushrooms yum who doesn’t like mushrooms not those kind but mushrooms of course this episode is brought to you by personal injury attorney chris reynolds attorney at law if you drink this mud water and are so disgusted by it that you find yourself to be personally injured by it you can call him he’s not going to sue them that’s not actionable i don’t know he might sue them for you maybe that’s a good case i don’t know if you go to chrisrendleslaw.com he will represent you hopefully in something real hopefully you’re not calling him unless you have a serious personal injury and i’m not qualified to judge such a thing i’m not an attorney certainly not a personal injury attorney but chris reynolds is so if you go to chrisreynoldslaw.com he’ll be able to tell you if you’ve actually got a case and if so how much money he i don’t know if he can tell you how much money but he can he can sue them chrisreynoldslaw.com the intro and outro music to this and every single episode of my fellow americans comes from the amazing and talented mr joe davey that’s j-o-d-a-v-i check him out on facebook go to his soundcloud go to joedaveymusic.bandcamp.com buy his entire discography it’s like 25 some of the best music you’ll ever hear go do it right now go treat yourself to the amazing musings no that would be like if you’re a comedian the the mystical musical meanderings of joe davi joe davimusic.bandcamp.com thank you joe davi i’d like to thank lible for this molecularly perfect water that i drink on every episode of my fellow americans bulapanaka that tastes like the exact amount of i’m not going to do it i’m not going to do that i said i’m not going to do it i feel like i need to do it but i’m not going to do it it’s very good water thank you so much shout out to tara and turks as mom and him as always folks my guest tonight actually uh was a pre-recorded guest uh so i will be all lurking up in the comments while you watch this but we had an incredible incredible fascinating discussion about these trans bills or these anti-trans bills that are being debated and passed and signed across the country we’ve heard a lot of emotion-based debates both for and against these things but we haven’t really heard a lot of legal constitutional law debates on it we haven’t really talked much about how this affects people’s rights uh for both the people that are in favor of them and the people that are against them um there’s been a lot of you know the typical uh sensationalism that we’ve come to expect from you know media and government discourse unfortunately but we haven’t really gotten into the brass tax of this how can this be enforced is it enforceable is this protecting people or is it hurting people uh it was just a really incredible discussion i thought this would be about 40 minutes long since we’re talking about just one thing we ended up talking for almost an hour and a half it was an absolutely incredible thought-provoking discussion and so without any further ado i’m just going to start it because it was a great thing i will be here i’ll be up here in the comments uh making sure i don’t know what i’m making sure but i’m going to be here so be sure to come talk to me while we’re watching this together folks my oh wow that’s weird when i do the thing and then it goes to me wow what if i that’s weird someone listening to this on podcast is going to have no idea what’s happening here but that’s you know watch the video version then you get it that is folks wow i don’t know i’m so creeped out by that must be the mushrooms in the uh in the mud water that’s pretty cool anyway enjoy folks my guest tonight is the donald hinkle professor of law at the florida state university college of law i’m so proud of myself for saying that correctly she has published articles and essays in harvard law review north carolina law review the university of california davis law review northwestern university law review the georgetown law journal the michigan law review and the washington and lee law review among many others she is currently teaching at fsu and she writes at the about the intersection between constitutional law and sexuality in the law ladies and gentlemen my fellow americans please introduce my guest and your guest tonight professor courtney cahill courtney thank you so much for coming on thank you so much spike so glad to be here i’m i’m really happy to have you on uh and folks be sure to comment with your questions and thoughts this is pre-recorded but i am lurking in the comments and i will let you know if you are right or wrong now courtney before we get started um i i always ask my guests you know what what got them into the walk of life that they’re in you clearly are very specialized uh in law as it relates to family law constitutional law what is it that got you into that you know everyone has their genesis story what is the what is the professor courtney cahill genesis story so the professor courtney hale genesis story actually again i won’t go too far back but begins before i became a professor of law i went to graduate school got a phd in italian literature medieval italian literature and classics and then decided since you know that degree had very little market power i went to law school which is what a lot of i wasn’t gonna say it i wasn’t gonna say it but i was okay no i will fully admit fully completely take responsibility for that choice i loved it um my dissertation was on the sort of legal regulation of romantic relationships in 14th century italy um wow i’ve always been interested in you know what happens when the law tries to regulate things that are very personal right right i think that’s probably what sort of caught my interest when i went to law school and officially became a law professor and i started some of my earliest work i just kind of hit straight for the biggest taboos um was on the legal regulation of incest in the united states and whether or not incest regulations were constitutional or not and so i kind of looked at those for a while and you know sort of spun off from there right so you’re so it sounds like you like to avoid controversy since you’re talking no i remember my first job talk at a law school and it was on incest and i won’t name names but it didn’t go over that well i can’t imagine it would and i mean and if i hope please tell me that you were able to find some way to seamlessly work in 14th century italian family law into that was tough although i did manage to work in believe it or not so i did 14th century italian stuff uh but also classical literature so of it and there’s a lot of really amazing i feel like everything that i’ve worked on has already been told in poetic form and of its metamorphoses including several different incest tales so i i did work my audit you just basically so so basically most of your writing you just remove the pros and just you know take out the rhymes and stuff and and and add it as as as a legal legal opinion that is basically right it’s quite quite a niche you’ve dug for yourself so okay so let’s let’s get into into this you have been writing about um most recently uh uh having taken a hiatus from incest uh you are now uh writing about you have written most recently about some of these uh i guess we’ll call them anti-trans laws that have been passed mostly in the southeast uh by republican uh run state governments and they’re sort of a mixed bag of different things some are related to uh gender reassignment or gender affirmation surgery with the the gen the um um that for for people um that are underage also for uh sports programs and things like that um before we get into uh what those are can you kind of delve into what those laws are targeting and maybe give a few examples by state of of what the specific i guess stated purposes of the laws are what it is they’re targeting sure so i put the recent so there was kind of a first wave of anti-trans laws with the bathroom bills a few years ago and those have since sort of percolated through the courts most courts by now have come down sort of against those you know bathroom restrictions right so laws that that require somebody to use the bathroom um of the gender that’s seated on their birth certificate basically right it’s not like it’s not as if we carry our birth certificates i mean at least i don’t carry the first bathroom so so i would say those are kind of like the first i mean there’s like sort of anti-trans law has a history right but with respect to most recent anti-trans laws i put the bathroom bills kind of first generation what we’re seeing in the last couple months is what i would call the second generation anti-trans bills which are fall into two category categories the first category are the anti-trans medical laws or medical i should say laws and bills because most of them have have not yet become enacted law um so there’s the the medical bills and then there are the sports bills right and the anti-transport spills um break down into two subcategories on their own one group um of the the sports measures don’t allow anyone to compete on the sports team of their choice so they’re limited to competing on the sports team of the sex that’s consistent consistent with what’s on their birth certificate uh and then the second batch of anti-trans sports bills which is more common bash are laws that are bills and laws that single out trans girls specifically right so so individuals who were assigned male at birth are now presenting as female um even be taking hormone blockers right so testosterone blockers um those these bills this kind of second bachelor bills which again is the largest category of anti-transport spills prohibit those females from competing on female sports teams so the first state to pass an anti-sports bill was idaho which did so last year right when cobit hit so in march of 2020 idaho was the first to pass that bill that bill is now other states have since passed these measures so mississippi passed one recently um there’s one you know kind of working its way in florida um and there was on the the idaho bill was subject to legal challenge and was in the night being argued in the ninth circuit just a couple days ago so okay so this is sort of the background of what these are and i i guess we can we can sort of delve into the bathroom laws which even when those were first starting and i speaking personally i was still somewhat more conservative on social issues during this was a few years ago now even then i thought why are we talking about bathrooms like it it just seems so absurd to me at the time and the arguments that were being put that this is gonna allow perverts to go into bat and it’s like no if someone does something bad in a bathroom they’re gonna get in trouble for it but i remember thinking first of all who who who cares other than the person who wants to use that bathroom who else would have a stake or a reason in deciding whether or not that person could use a bathroom and then the other thing was how in the hell are you going to enforce this thing like how are you going to say everyone you gotta i mean in order to prevent perverts we’re gonna have to have people standing guard checking everyone’s genitals when they walk in to the that will definitely stop you know any kind of potential for sexual abuse is to have everyone have to show their stuff to uh you know someone that’s been appointed at every single public bathroom i was there just before we get into some of this i guess second generation stuff was there any proposed enforcement mechanism for that like how did they say they were even going to make people do this well i know north carolina right which is where this you know a lot of the controversy erupted right you know i think that they actually there was going to be i can’t remember the actual wording of the bill but i seem to recall it saying something to the effect that any person could challenge right it was kind of giving very broad authority to any citizen to challenge the sex of the person who’s in the bathroom but here’s how that language so what happens with these bills is that like they really don’t change all that much it’s just the language of the bills kind of stays the same it’s the context to which they are applied that’s that’s different right so a language of those bathroom bills has kind of migrated into the language of the sports bills so the idaho transports bill which again prohibits trans girls from competing on the team of their you know female sports teams in the state of idaho at any level allows anybody to challenge the sex designation of any girl right so so if a if a parent sees a girl on the soccer field and doesn’t believe she’s a girl that parent can challenge right the the eligibility of that girl to be on the soccer field with other girls and force the child to undergo a health test so in the idaho litigation you know given those sort of very broad enforcement measures yeah folks that are challenging the law is a trans female student as well as um a cisgender right a girl who’s not trans who says i look a little bit more masculine i have a little bit more muscle i don’t wear dresses i wear pants a lot i’m worried that somebody’s going to challenge my sex and subject me to a health exam right so so the bathroom bills have those kinds of similar enforcement measures and i think that’s probably why they were you know people just found them pretty distasteful well i mean and i would find it distasteful in this application as well i mean whatever you think about you know whether or not uh trans girls should be able to uh compete in women’s sports regardless of your opinion on that imagine the powerful bullying tool that you are giving to people to be able to challenge the sex of anyone that’s competing in sports you know you’ve got kids that already have image issues self-esteem issues and everything else and now they have adults saying i want you to have to go to a doctor to prove that you are what you say you are that i mean that that is insane to me you’ve actually talked about this how even putting aside the the moral or or ethical arguments uh for or against these these types of things uh and in us in a similar fashion with the jim crow laws with the with the discrimination laws that happen uh after the the reconstruction after slavery ended and even before when slavery was still happening that it was based on this sort of nebulous concept of race and that they wanted to pretend that it was something that had a very strict definition and yet we saw this massive difference from state to state and what even uh delineated race so long before we got into the moral argument of whether it was wrong or right to uh you know segregate or discriminate based on race it was actually being challenged in the courts on the basis of how do you even measure such a thing and judge whether it’s being uh um used correctly and enforced correctly can you talk a little bit about that and how it relates to uh what we’re talking about now yeah sure so i’ve i so one of my sort of ongoing interest in my scholarship is the way in which biology is often used by the state as a reason to regulate and as a reason to discriminate right so take the most obvious example sex discrimination right sex discrimination for the 14th amendment is um you know one of the reconstruction amendments to our constitution it was passed in 1868 it’s the amendment that is the source of what we think of today as unenumerated fundamental rights it’s a source it’s kind equality doctrine and for the first hundred years of the equal of the fourteenth amendment the supreme court made clear that it didn’t apply to women right nor to men by implication um because the argument went that men and women were not similarly situated they were because they were you know they were um they were biologically different and they were biologically different enough to make it okay for the state to discriminate against women in all sorts of ways right so so there was that right before um or i mean the supreme court case um that sort of solidified separate but equal um which it was a case called plessy v ferguson which was decided in 1896 and plus cp ferguson the court was considering whether or not louisiana’s separate but equal law on railway cars right where white people had to sit here and er everyone else had to sit over here it wasn’t a granular understanding of race right there were only two races white and everybody else right uh that law was plessy plessy um plessy homer plessy challenged the law on equal protection grounds and the court upheld it on the basis of biology and said look there are physical differences between between the races that are kind of biologically fixed all this law is doing is tracking those inherent essential biological differences so and then in the 20th century right biology was a reason to criminalize consensual sexual conduct between same-sex individuals until 2003. biology was the reason not to allow same-sex couples to marry until 2015. now we’re seeing biology in the context of the tr and trans rights right so i became interested you know in the in the context of jim crow there are there are a lot of similarities you know between what’s going on today with i mean other than the obvious difference right that one relates to discrimination on the basis of sex and transgender status and the other related discrimination on the basis of race right so there’s one difference right but other than that there are a lot of interesting similarities for instance right back when jim crow was kind of at the heyday of jim crow at the late 19th early 20th centuries there were no dna tests right there’s no kind of litmus test for race so your race was determined by public officials based on what you look like right so the shade of your skin which we know is not an indicator of race right but that became an indicator of race what your hair looked like your body type your body shape so uh sort of state officials say you know interracial marriage was a crime right if you go down to the clerk of court you apply for your marriage license that clerk has the discretion to determine whether you get the marriage license if that person thinks that you’re of different races depending on what you look like right right so what’s really fascinating to me is that the same thing now is happening in the context of trends right so let me just give you a kind of an example alabama a district court a federal district court in alabama a few months ago in a case called corbett v taylor sort of knocked me off my feet um you know maybe it’s my bias i thought alabama’s probably not going to be that sensitive to trans rights i was wrong so there um so alabama requires individuals to have gender reassignment surgery to change their driver’s license and to change their birth certificate but it never specifies what gender reassignment is right and actually i’m not even sure if it says surgery i think it’s a gender reassignment but gender reassignment exists on a very broad spectrum right right right so so what was happening in alabama is i’d go and apply so let’s say i’m trans and i don’t apply for my uh my driver’s license the official and i get a doctor’s letter that says i am under i am seeing a physician and undergoing mental medical treatment for gender reassignment whatever that means that might just be psychological treatment right right right affirmation yeah yeah it could be intrusive medical interventions right but what was happening there is that the the you know the person in charge of giving you a dm a change of your on your driver’s license was kind of making that assessment for him or herself right right like do i think you went tell me what you had done and all my decision is whether or not i think you went far enough right so did you did you have a mastectomy or did you get breast augmentation or whatever the dmv worker is asking you this yeah yes so ultimately right your sex whether you like it or not is being decided by the dmv clerk right so it goes to a judge and the judge he throws up his hands and he says look and i quote there’s no rhyme or reason at all on this because what he did was he looked at all of the records throughout alabama and what one officials said by the way i forgot to mention earlier this uh episode is also brought to you by jack casey’s books uh which are the thing just came no i’ll find them hold on i’ll be right back that was enough to be a woman or enough to be a man another official said it wasn’t enough right so he sees no right or reason at all in alabama with respect to the question of what makes a woman what makes him mad right it’s just it’s it’s it’s too arbitrary it’s too subjective right so that reminded me a lot of the jim pro stuff right where all of this race was in the eye of the boulder and that’s yeah no it’s a serious problem putting aside again the moral and ethical implications just the enforcement and and the fact that you know if if i were a let’s say i was a trans woman and i go in and i say uh i am a i identify as a woman uh but i look like this like i literally just walk in and i legitimately i’m not pranking i legitimately uh uh feel like a woman and and am going through gender reassignment in affirmation and and you know through you know uh consultation about uh future uh treatments and things like that but as of right now i’m still presenting this way um and uh i go in and and one dmv worker says no you’re you’re a man uh you have more facial hair than me you’re a man and then the the next day i go back and i just walk out and the next day i go back and the person who is much more understanding and accepting says okay well if you say that you’re a woman and and and you’ve shown me the documentation that you’re you know getting this treatment then you’re now a woman this is a major problem of enforcement um and and even before we get into those types of things so i before we get into i want to do a little bit of kind of devil’s advocate stuff and also talk about some of the concerns i have um what does this look like um so for example we’ve talked a lot about um the sports stuff and the um and and then things like the you know being able to even change your your sex in your gender in your in your documentation let’s talk a little bit about some of these bills that are targeting uh gender and i keep forgetting what would because i know i forget if it was reassignment or affirmation whatever the the term is that is as more seems more acceptable now but the gender therapies that are going for uh people that are under the age of 18. can you delve a little bit into what those are um yeah of course yes so there are so the bills are targeting i’ll tell you what so what the bills make criminal right they make okay i’m back this episode is also brought to you by the amazing books of jack casey including the royal green silver throne and coming this summer crowned by gold which if we sell if a thousand of you buy a copy of these books he will rename it crowned by mud and changed the storyline so that that title makes sense jack casey crowned by gold if you want to purchase these books you’re probably thinking well how do i purchase them go to the royal green and let him know that you bought it because of watching this on my fellow americans or the muddy waters of freedom or the writer’s block and again he will change the title to crowned by mud and that will be a victory for all of us thank you is it criminal for a health care professional or in the case of texas which you know its bill is moving forward it hasn’t yet become a law texas makes it criminal for a parent to provide these medical interventions so it goes the or a health care professional it goes even you know much farther but in terms of what they’re preventing right so these medical bills are preventing either healthcare professionals or parents from um changing what they call endogenous hormone profiles and so in your endogenous hormone profiles are the hormones hormones that you would have absent any kind of medical intervention so you’re naturally naturally producing testosterone naturally producing estrogen right so the bills one of the things the bills make a crime is to give um hormone give hormones right to trans youth however that is defined in the field right usually 18 years old right so giving a child testosterone or giving a child estrogen right so that’s one of the things they do the second thing that they prevent are what’s known as puberty blockers so these are hormones or drugs that are eating they’re given much earlier right they’re usually given right when a child is about to enter puberty so let’s say age nine maybe ten and what puberty blockers do is block the production of testosterone and or or estrogen right so that child let’s say it’s a trans boy who doesn’t want to get breasts right or it’s a trans boy who wants to delay having a period uh because you know having you know metroid would be very traumatic as it would be for anybody um so the puberty blocker would prevent the formation of breasts it would prevent the onset of a period until the blockers were no longer taken right so you can’t be on hormone blockers forever you can be on them safely for you know up to i don’t know exactly how many years but four or five years right right so what the hormone blockers are doing they’re just kind of pausing right they’re giving a pause so the child doesn’t you know um sort of undergo changing sex characteristics that come with peter right they’re not given hormones they’re not given testosterone they’re not given estrogen that’s something that comes later in a child’s life usually maybe 17 or 18 years old right so the puberty blockers are one thing the actual hormones are a different thing and then the bills also make it a crime to um change the sex organs of a minor right they never define what a sex organ is but then they go on to list what medical procedures are prohibited including um among other things a mastectomy okay right so so by preventing you know um someone who is assigned uh female at birth from getting a mastectomy when she’s 17 right the bill is implicitly defining breasts as a sex organ or the absence of breasts i guess as a sex organ right so they don’t they don’t really you know define with any clarity what a sex organ is but they do bite implication by prohibiting certain procedures on certain organs like breasts among other things now just and maybe i’m misunderstanding what you’re saying i mean there are times when outside of you know gender affirmation reassignment whatever that uh that hormone therapy would be needed for minors is this explicitly banning those things as well like situations where there are kids that have uh or hormone blockers where there are kids who have like a hormone deficiency or a hormone uh overactive uh thyroid or an overactive you know hormone situation is it also no no no they’re they’re not even included in the scope of the bill at all so they’re just right so okay that’s so one of the arguments then is that this bill if they really want to if the concern is that it’s harmful to give kids hormones right or if it’s harmful to block the production of hormones either one or both right if that’s the argument then clearly the bill is woefully unconclusive because it’s not capturing a whole host of other situations where hormones are either given affirmatively or blocked in children who are who are not characterized as trans miners right so that’s an under inclusivity problem which means that they’re not arguing that these things are inherently dangerous per se they’re arguing that they don’t think that they should be used for this specific thing which is a medical decision to be made by doctors and parents not by lawmakers right and one more thing that’s really interesting about the bills is that they also have an exception for children who qualify as intersex right so so so so individuals who have sex care who are born with the sex characteristics of both sexes right so the xy but exhibits you know male male sex characteristics or or xx sorry or female sex characteristics it may be xx that exhibit male sex characteristics in those situations folks are exempted right so though if a parent is making the decision on behalf of the intersex child to bring their sex in conformity to bring their hormones to bring their sex characteristics into conformity with with the desired sex of the parent that the parent and the doctor want for that child then medical interventions on that child is okay right because in that case right it’s like you know the law doesn’t like ambiguity right specifically says in this set of children we’re talking about children with ambiguous sex characteristics well if the whole point of the law is to make things clear not ambiguous then it makes sense right but it doesn’t make sense because it’s an under inclusive problem if it’s harmful if it’s harmful for kids who you know are expressing gender identity questions then it’s harmful for everybody yeah which is a form of ambiguity if you uh in here believe that you’re a girl and are you know presenting as a man or a biological male or a signed male at birth or whatever that’s an ambiguity there and you one would think that that would fall i mean i would think a major challenge would be what are we calling intersex and what are we calling a sexual characteristic like that this just sounds like if if even if you think this is a good idea or that you think this is necessary just the ability to enforce it seems like it’s empire am i missing something here it seems like this is just going to be litigated into the ground no it’s fascinating i mean so as far as the intersex right so like surgeries mandatory surgeries on intersex usually it’s done when the when the child’s an infant right so like 15 months two years of age right right to sort of to kind of you know sort of get rid of the ambiguity right or surgical interventions well what happens a lot is those kids grow up and right so maybe the child is born with a phallus but is you know it otherwise is chromosomally xx right so they grow up feeling right um sorry they might let me try to think i’m trying to think they they might be xy right but but have like a you know a phallus that isn’t robust enough to do a kind of genetic surgical intervention and then the child right so i mean those have not been i mean they’re controversial within the intersex community yeah well you know do they say that those things have been subject to a legal challenge they’ve been unsuccessful i am trying to picture a dmv worker deciding whether or not someone’s penis is robust enough like this is i mean this is where we are like courtney this is what we’re talking about here because at some point this actually asked if rubber has to meet the road and this has to be enforced in some tangible way or else it’s just words on a sheet of paper so it i’d just like to say how uncomfortable i was talking to a law professor about robust penises thank you you literally are looking at people with zero medical qualification whatsoever police officers uh uh uh dmv workers cps where people that really don’t have any of this background who are now saying i’ve seen i’ve seen more more robust one i’ve seen better ones than that so you’re you’re a woman like i mean this is what we’re doing right well that’s why i said in the op-ed piece that i did for slate like you know so like florida has one of these bills these anti-trans medical bills right that’s kind of percolating through the legislature right now right and it includes breasts as a definition of sex right well breasts are not a definition of sex for anybody else in florida right so you walked in you walk on the beach in florida you might see individual men with what might look like right a female breast and no one’s gonna hold that guy off right but you gotta go to office of vital statistics and change your birth certificate right now right so like breasts are not a marker of sex for anybody else but transition right right i mean part of i think what’s going on with these bills honestly is is like i think i think there’s this i think they signal a larger anxiety about eroding the difference between men and women yes that’s 100 what it is yeah yeah you know i think trans youth are the unfortunate target of that larger much larger anxiety yeah and i think you know last year in a kind of landmark supreme court decision um boss stuck in clayton county the supreme court had to determine whether or not an employer could fire you if you were gay or could an employer fire you if you were trans right a federal employment law prohibits sex discrimination but it doesn’t prohibit sexual orientation discrimination nor does it prohibit trans discrimination right but the supreme court in a surprising ruling for a lot of people myself included said look trans identity and sexual orientation identity are a subset of sex and what you saw right so when you discriminate against somebody because they’re trans that is sex discrimination and when you just discriminate against somebody because they’re gay or lesbian or whatever that is sex discrimination right so like sex is an integral part of that discrimination i think what you saw after that was like whoa what’s gonna happen now right what are are all sex-segregated spaces gonna be opened up yeah i i think that was kind of that’s you know i’m very interested in slippery slopes that’s kind of what got me into incest because justice scalia justice scalia and the decision was called lawrenceville texas and in lawrenceview texas the court said look you can’t criminalize two men for engaging in consensual sexual conduct in the privacy of their home otherwise known as son right and justice scalia you know the late justice scalia fuming in his descent says what about incest right you allow sodomy between same-sex partners you’re gonna have to allow incest right that’s the bottom of the slippery slope right so so i think right you know i think in this context trans youth is like the thing at the top desegregation of sex-segregated spaces in american life is at the bottom i think that’s what’s really driving the anxiety right like our entire world is organized according to male and female right right it just is and you know what the supreme court has said that’s okay you know so i think well i mean you have entire languages that are gendered where there are things that you know i’m in the process of learning spanish very slowly and uh and you know i’m doing this and i’m like man it’s a fork a man or a woman i forget and it’s like but it’s everything is gendered in especially in the latin languages and it is very much a structure that you know you are either a man or woman you know i grew up boys have penises girls have vaginas and now there’s this this gray area in between and it’s causing a lot of anxiety with people um and but here’s the thing like you said if that’s the case then inherently your trans identity is tied to sex if it wasn’t people wouldn’t care or at least they wouldn’t care in that respect they wouldn’t care in that context it wouldn’t mean anything to them right right no i agree and you know so like i’ve been also doing a lot of work forks are men by the way el tenedor el tenedor the fork forks are men work on of course i go to my taboos i’ve been doing a lot of work on breast regulation in in criminal breast regulation by which i mean right laws that criminalize the public exposure of a female breast right not the public exposure of a male breast so here’s an interesting story there was a woman in utah last year okay i think in salt lake city and she’s out in her garage putting up drywall with her husband i think it was a summer right so it’s obviously very hot yeah i’m inside he had three kids from a prior marriage or a prior relationship her three stepkins okay they come in they’re hot they’re sweaty they’re inside their home he takes his sweatshirt off she takes her sweatshirt off and they jump in the show while the step kids see her they’re older i think they were they were all i don’t know i can’t remember how they were some age range whatever they see her and they tell their mom when they go back to the mom and it’s like hey you know dad’s our stepmom just roll before you anyway please come knocking at her door right she’s charged with indecent exposure she’s charged with public nudity despite the fact wow they’re home right so they’re defining public to mean you know any any third-party viewing regardless of whether or not it’s in the home or outside right so she’s charged she’s charged in with with you know this public nudity offense it carries with it i can’t remember what the penalty was but i maybe like a couple years in jail but ten years happened to be on a sex offender registry wow yeah so she gets the aclu and is like i’m going to challenge this this is sex discrimination right because like and it’s a perfect example right because her husband takes off his shirt he was in charge no one care but it’s like the female nipple is like oh anyway she was gonna take it but she got scared she she plead i think they they dropped the you know they said if you plea will get rid of the sex offender registration in the jail time or whatever so she fled so i’m really i’m doing a lot of work on those laws right and those are really interesting because they are alive and well in every single state in the united states that’s yeah and it’s it so and i’ve i’ve heard of different like protests where uh women will march and men will march too and they will all be topless but they’ll wear pasties with famous men’s nipples printed on them and then that way they can say they can say this isn’t my nipples these are morgan freeman’s nipples it’s perfectly fine and then and then it’s it’s okay officer and meanwhile you’re looking from afar and it looks like you know you just looks like a nipple it looks like this woman’s breaking the law but they also document that it’s if anyone gets in trouble it’s the women and not the men so it’s you know and then now they’ve and now they’ve got trans women who are are still often very masculine looking who are wearing them as well so they’re you know bringing in all these different factors and they’re like who gets arrested who who is being arbitrarily uh discriminated against in all of this um i’m gonna have to change where my my uh my um headsets headphones just died so i’m gonna have to change it okay that should be good all right cool so uh you see how seamlessly i did that i didn’t i didn’t let that phase me i’m proud of myself so can i just say something about that yeah go ahead yeah that’s that’s that’s great thank you i didn’t know that that they were were in the pcs of famous male nipples that’s great but so what’s really interesting is that so the the chicago has one of these laws right and a woman was prosecuted under it i don’t know she was a maybe the lake or whatever and it she challenged it right as sex discrimination this is sex discrimination right seventh circuit right which is the she made me talk about robust penises i made her say famous male nipples i still feel like i got the worst out of federal court of appeals that covers illinois right so this is like a big federal court and this is in 2017 a case called tagami and they uphold it and they say it’s not sex discrimination because male breasts and female breasts are inherently biologically different right and they’re different in all cases well interestingly that same year the state of illinois changed its requirement that trans people changed their bodies including their breasts to change their sex right so there was a lot of trans activism around that issue right because you want something i mean it’s really intrusive to say look if you want to be a member of if you want to be change your legal sex you either have to take your breasts off or get them i mean that’s like you know and that’s the least of it right there are other much more intrusive medical interventions right there was a lot of trans activism around that issue and they managed to get the illinois legislature to repeal its requirement that you change your body including your breasts change your legal sex so do you see the tension between those two things right yeah right so you can’t in the same breath say that breasts are an inherent biological difference between men and women and then stay in the trans context but you know what breasts are irrelevant yeah right keep your breasts you can still change your sex you’re no less a man if you have breasts right right so i mean i think again the trans stuff is really i mean i think you’re you know they’re always going to be some people who find that really deeply unnatural or whatever but i think it’s really anxiety producing in a world that likes to just have like male female yin yeah you know like just have it be clear well and the thing is yes if everyone fit within that very easy box then it would make the most sense you just got men and women and we always knew that there was this very very small percentage of people who were intersex that were born uh either with hermaphroditism or who were uh you know had these different uh ambiguities that were built in but now we’ve got this you know not you know it’s a minority but not a much larger minority than we originally thought of people that are gender non-binary people that are uh you know transgender and all of this and it’s for especially you know i try to picture someone who is in their 50s 60s 70s something like that their whole life they’ve been told you know uh boys have penises girls have vaginas that’s it that’s all that it is and and then they’re now being told there’s these other things and just there is i can imagine there being an anxiety related to that so i do i will say i empathize no i’m not empathizing with the people who are you know you know uh you know being outright bigoted towards people whatever you think about someone if you find yourself you know wishing violence against someone for expressing who they are then even if you may or may not have a valid disagreement with them there’s a better way to do that so i’m certainly not defending that i do want to give a couple of and i guess i’ll call it devil’s advocate although at least for a couple of them i have some concern about it and and i want to make sure i’m fully understanding it we’ll start with the um well we’ve been talking most recently about the uh about some of this uh gender um gender reassignment gender affirmation stuff so i guess we can start there um i’m not gonna talk about every concern that’s been expressed because some of them i don’t think are terribly valid and are just downright just an expression of bigotry or just an expression of well where does it stop how do we stop defining boy and girl and that’s just a that’s a that’s a a societal anxiety there that’s not really so much related to that person um if there is a law that is saying outright that you know even with parental approval that now the parent is a criminal too if they’re trying to do this i think that’s absurd i as a libertarian i think it’s none of the government’s business what is being decided by patients and their their guardians and doctors there’s no reason for that whatsoever the doctor is far more qualified than the dmv worker or the politician than you know what should be done in that situation now i know that at least some of these bills are explicitly stating that uh and it may not be these ones but i know that there are ones that are stating that uh it can only be done or have been proposed that it can only be done with parental approval and now i know the argument against that that you know there are some parents who are bigoted or are anti-trans who don’t get it and who are reflexively saying uh no i don’t want my child to have these puberty blockers or this um or this hormone therapy and let’s be clear uh especially for young children um pre-pubescent children um uh intrusive surgical stuff is pretty much never on the table this is stuff that’s post puberty that that even really gets into it we’re talking gender blockers and hormone therapy for the most part as well as um uh you know uh psychological therapy and things like that affirmation and that kind of care um in the situation where the parent is not giving approval here is my concern with requiring that uh with not having something that protects the parents rights here i understand the reason why someone would say that a child should be able to get this uh gender assignment therapy even if the parent doesn’t consent my concern is when we were talking about slippery slopes if we set a precedent that a parent cannot does not have to be consulted when it comes to uh medical concerns health concerns and this is a serious medical concern then that sets the stage for saying that if the state and a doctor believe that something is okay then the parent should have no say in that and that we’re basically saying that the parent as the guardian of the child that their concerns are lesser than that of the of the state and and the doctor since the at that point the child isn’t in a legal situation to be able to represent themselves or to be able to make decisions for themselves it is basically the doctor uh deciding on behalf obviously the child has to consent but i mean again slippery slopes we talk a lot about children can’t consent that’s why we say pedophilia is wrong that’s why we say that uh you know children shouldn’t be able to enter into contracts so what we’re basically saying is that this is a decision being made by the doctor and affirmed by the state and that the person who in any other situation including in typically in medical situations the parent isn’t able to um isn’t able to be be able to give their their input and be able to say whether or not they approve of it putting aside all of the potential slippery slopes even in just medical what that could lead to with potential abuse of children by you know predatory doctors who are just trying to you know jack up how much their child how much money they’re making from possibly unnecessary things that have nothing to do with gender reassignment what is your take on that concern that not allowing the parent to be the final arbiter in this situation uh could lead to those slippery slopes and if so what protections could there be against that right i mean so i guess right this issue has come up you know the other context that has come up are usually right medical contact context where urgent medical care is needed usually right to save a child’s life right whether it’s a blood transfusion or it’s chemotherapy in the case of cancer right there have been cases where parents don’t believe in chemotherapy either for moral reasons or for religious reasons right and then testify that the kid needs it in order to save his or her life and then those right so it’s a balance as you say it’s a balancing statement right right like parents constitutional rights whether they’re under the 14th amendment or under the you know the first amendment free exercise you know religious liberty freedoms are really really robust and they’ve only really become more robust not less robust over time right so you know there was a kind of landmark case in 2000 called troxel where the court like really definitively said that parents have these really fundamental liberty interests to make decisions with respect to their children even independent of any other interest so in previous parental autonomy cases the court said well parents have a fundamental right but they also have religious rights right so they kind of bundled parental autonomy and religious autonomy together right our parents have fundamental rights and they also have free speech rights so they bundle these together but in this case the one of the troxel case that i’m thinking of is the first time that a parent asserted a fundamental liberty interest independent of any other constitutionally branded right right right and the court was like yeah you got it that’s a really right so parent so that’s the first thing to keep in mind parents really have robust liberty rights to make decisions right on the other side of the scale right so then the question becomes when can those decisions be trumped right well hard right like harm is right clearly if a parent’s decision is going to harm the child physically right the state’s going to be able to intervene right so there are those cases dealing with chemotherapy where the court is you know courts have like temporarily placed a child a minor under a guardian of litem so that the child could receive chemotherapy right because that was necessary in order to save the child’s life right right so plus in these cases with these trans kids i’d have to like i really do think they are very case-by-case specific i think it’s very hard to make broad generalizations i mean here’s a thing too every trans kid is different right so some are going to be experiencing extreme gender dysphoria right such that if they don’t get the interventions that they need or that they want right um suicidal ideation or you know attempted suicide could result right so like and then there are trans kids who don’t fall on that extreme side so i do think that they were just like i just think that in this particular area making a broad generalization with respect to whether or not a state can ever trump a parental autonomy in this area is hard to do i mean i do think i agree with you i agree with you that you know the slippery slope i see it right yeah i do i do think right a possible guard you know some guard rails would be you know having a lot of process right like i would think and or and i’d have to get i’d have to see some of these laws to see what exactly you know on a more granular level right right right like i would think that you know you know there would have to be multiple doctors involved there would have to be social workers involved right like there would have to be lots of assessments involved before you know making the determination as to whether or not the parental autonomy this is a case where parental autonomy can be overcome and i would think there need to be a level of urgency as well because if it’s not we need to do this to save someone’s life in the immediate you know now or in the immediate future then even with all of those protections it ultimately just becomes does the doctor think this is medically necessary which essentially yes it would take a whole process but essentially you’ve uh you know they call it medical kidnapping in the in the parental rights world that you’ve created this system whereby if they go through the legal process of doing so at any level of urgency or lack thereof if the doctors say your kid needs this and you say well i think you know i’d like to get a second opinion or i’d like to wait and see then you know they’re going to immediately move to the process of going through that if for no other reason then that’s what’s going to protect them from malpractice insurance right because if they go through that whole process right and they go through the whole process and it’s ev and it turns out that it wasn’t the right thing to do their malpractice insurance is almost surely going to protect them because they went through the whole process to do so whereas if they side with the parent and and hold off uh even though there is this process in place for them to challenge the parents rights they’re almost surely going to be uh sued if it goes wrong by by waiting and seeing so it is i mean it is a mess and i do think at the very least even outside of the the specific application when it comes to gender reassignment or gender affirmation that that it would have to um it would have there would have to be a level of making sure that the uh the parents ability to provide input and that there has to be some level of urgency before you’re pulling this you know take it out of the parent’s hands trigger um one just one quick thing sure sure i’ll say this like even for kids who are who are you know at the more dysphoric end of the scale right so like kids for whom you know these kinds of medical interventions are going to be you know seen as more necessary whether life threatening or not you know whatever but just like extremely urgent right even then no doctor immediately goes to that right so like there are lots of different steps and hoops that you have to jump through before it even gets to that point right so i would think you know and that’s not that that’s a case where the child is very sure but you know i get what you’re saying right children can’t make decisions you know if they can’t really make decisions they can’t make those kinds of decisions for themselves so yeah dude there does need to be you know um you know a number of like i said guard rails in place yeah i i have seen people who are advocates in in favor of of allowing this who have said things like well as long as we’re getting the child’s consent i’m like you would never use that in so many different applications right especially especially stuff related to sex typically there is no way you would say it’s okay if the child consents i mean the one of the most unifying things in in worldwide political discourse is that it’s hard to find a punishment harsh enough for someone who rapes a child right so uh you know and the well what if the child can that is not uh any in any kind of uh you know uh mainstream i mean there are certainly fringes that say that most of them are people that are attracted to children there’s very few people outside of those who are actually dealing with pedophilia that are that are arguing that so we wouldn’t we wouldn’t use that so um and and there’s obviously the fact that for example uh when it comes to some of these puberty blockers they are technically being used off label um for these types of things and and you know the potential for side effects and things like that but at the end of the day that’s a medical question that’s not a legal question that needs to be decided in my opinion at least the vast majority of the time not just by doctors but also by with the parental input possibly barring uh the most um extreme of cases so um let’s do this when it comes to the uh when it comes to the the sports bills the argument the broad argument is that um because men typically are or biological men as they would call it uh are are typically have greater bone density greater um you know muscle density uh even putting aside the hormonal stuff that i mean we look that you know if you took the uh these all-stars of the nba and the all-stars of the wnba or if you took the all-stars of the the male soccer the the male world cup soccer team and the female world cup soccer team it it wouldn’t be close right so that that’s the argument is that even if you are using and i do know that even with a a trans woman that has or a trans girl that is using uh hormone replacement therapy oddly enough this is an argument for puberty blockers uh but but putting but putting that aside um uh putting that aside um if there is a damned if you do damned if you don’t aspect to a lot of this we definitely have to acknowledge that but um assuming that there wasn’t that assuming you’re not talking about let’s say a 15 16 year old trans girl who up until then has been going through puberty even with either puberty blockers or hormone therapy in there and even if they regulate the blood levels of the hormones to be the same as a as a a cisgender girl of that age there is still the the changes to muscle density and and bone density that have happened up until that point uh that would potentially give an unfair advantage putting aside all of those arguments um and you can you can get into those arguments if you’d like to as a libertarian it looks to me like is it possible that maybe this is something that should be decided at the as you would put at the granular level being decided by individual leagues and teams and and and and groups to be able to decide what their standards are and then the parents can decide whether they want to be a part of that the parents and the kids can decide whether they want to be a part of that or whether they want to create their own that goes whatever the opposite of of what this consensus was whether it’s you know for allowing trans girls and trans youth to play in the in their gender of choice or against it um which would it’s that because and the reason i ask this is right now i’m seeing a lot of people giving hot takes both for and against the these transports bills despite the fact that they have absolutely no stake in it whatsoever they don’t have kids in sports they themselves aren’t in the sports they may not even know someone who is in these kids sports and yet because this is kind of being democratized because it’s a public debate it’s being decided largely by people who don’t really know anything about it and at best they watch you know an episode like this or they watch a youtube video that really is they’re just watching to confirm whatever bias they have and then they go and give their very uneducated top of the peak of the dunning-kruger scale uh take on this on this subject is it possible that the best way to handle this um is through just allowing the actual stakeholders in this to decide it and and if you want to also address you know the argument about why they should have it in the first place you’re welcome to as well yeah so i mean i guess you know my most the most my first impression to that is that that’s i don’t think that’s going to work right letting the individual stakeholders stakeholders make that decision because all of those individual stakeholders depending on the context are bound by anti-discrimination laws right so there are state anti-discrimination laws right so like the case where this first came up was in connecticut um which is where i am right now it’s called it was a case called s-o-u-l-e this was the first trans girl sports case and it kind of gave rise to these anti-trans sports bills that were seen today and the case was just dismissed by a federal district court last week on the grounds he he said it was moot because the trans athlete female athlete in that case had graduated from high school and she was in college and there wasn’t any other trans i think the court was probably just kind of kicking the can down the road a little bit right right right no immediate legal issue because there is no trans athlete who wants inclusion on the sports teams of girls now so i can just kind of say the issues moving until it comes it’s a standing issue right right right it’s a standing issue right like i’m not gonna decide so but you know the thing is right so like connecticut has an anti-discrimination law that says you know places of public accommodation including sports teams like little league teams can’t discriminate on the basis of sex right then of course you have that under title nine right so that’s a federal law that says any educational institution that receives federal funding which is basically all public schools right um they can’t discriminate on the basis of sex either okay now now that after the supreme court trans decision that i talked about earlier the employment discrimination decision the court the court has you know made clear that trans discrimination is sex discrimination right so i don’t think you can leave it to the stakeholders because all of these stakeholders are bound by anti-discrimination laws that now either on their face or through judicial interpretation apply to trans kids right like that’s a form excluding them as a form of sex discrimination so i don’t think that that’s going to be i don’t think that’s going to be possible i mean i do think it’s going to kind of emerge for darkness right because what’s going to happen if you have you know some tennis teams in one town permitting trans girls to compete but other tennis teams not allowing it right you’re just gonna have kind of i guess my concern is that there’s gonna be so much differential you know so many different approaches you know it kind of you know gets us back to you know before same-sex marriage was nationally recognized you know you had some states recognizing other states not like you know you just get too many i mean i guess you know like that i guess one of the arguments for that is you know you know we you know sometimes we like that you know let let it develop on the ground right we allow courts to intervene but i don’t think courts have any troops but to intervene now now that it’s pretty clear trans discrimination and sex discrimination it’s sex discrimination right so they’re going to have to they’re going to be individual lawsuits either way they’re going to be in the law oh there’s going to be law i don’t i don’t foresee any scenario in which there won’t be large numbers of lawsuits whichever way this goes or even if in my libertarian utopia where they just let individual stakeholders make these kinds of decisions together um and at least for right now i mean the vast majority of these sports leagues are with publicly funded dollars so this is not a question of private interest deciding what they want to do with stakeholders we all become stakeholders by virtue of of the fact that you know we’re being as we put it robbed to pay for it um and uh and so this is where the whole libertarian argument about why we should maybe not be democratizing these types of things and and making them uh taxpayer funded in the first place but without going down that whole uh uh slippery slope um just sticking to this here’s sort of a and i didn’t really think of this until we were we were talking if we are saying that you can’t allow sex discrimination um then what is the divider what is the the block that stops for example cisgen men from saying you know what i think i’d rather participate in the in the female league or for uh eventually to be potentially decided that even segregating bisex is something we shouldn’t even be doing or allowing even private uh uh leagues and private sports and private groups to do meaning that you wouldn’t have an nba or a wnba and if that did happen how do you end up in a situation where you don’t just have uh men uh and or trans potentially trans women uh just dominating uh all forms of sports even including adult you know private entertainment sports like baseball and football and and the nba and things like that right i mean i guess like my first answer would be i like that’s a slippery slope concern that i just don’t see happening like i just don’t see cisgender men kind of right like the fear of sort of overtaking female sports teams that is that’s a that’s a hard you know scenario for me to envision right but but but you’re right that sex discrimination in those in another context even though sex is a protected characteristic under the constitution and even though hundreds of thousands of laws state federal whatever say that you can’t discriminate on the face of sex it turns out you can discriminate on the basis of sex when it relates to biology right so that’s what distinguishes at least in our country right race discrimination from sex discrimination right right it used to be that biology was a reason to discriminate on the basis of race no longer right so like you could never say like you know the races are biologically distinguishable therefore it’s okay for the state to treat them differently that’ll never cut it but it is okay in the context of sex right so you know sex so title nine right the federal website yeah this is regional institutions received from funding can’t discriminate on the basis of sex but it turns out you can right you can in locker rooms you can’t on sports teams living spaces and all of this stuff right so it’s kind of like that that mandate not requires not mandated segregation but that that sort of permitted segregation has been largely uncontroversial people don’t challenge it i’ve never seen okay i i can think of before the whole trans stuff i can think one case was in a clark case in 1982 and it was in the ninth circuit where you’re right and i can’t remember the facts i should have looked at them but like a boy a cisgender boy wanted to be i think on the sister the girls volleyball team and i don’t know why i can’t remember why maybe it was there was no male volleyball team i can’t remember right and in that context you know the court said look sex segregation in sports is permissible because of biological difference other than that i can’t think of a case right like no one challenges this stuff right there there’s not one cisgender boy nor one cisgender girl who said i want to use the male or female locker room like it just hasn’t come up right yeah it’s been so uncontroversial ever since these laws were put into place so i don’t know it’s hard for me to imagine that trans stuff is going to open the floodgates to something that’s never been an issue yeah i i certainly so i i i guess i’m i i agree with you that i i don’t necessarily see a bunch of frat boys saying yeah we want to go be on the the girls uh lacrosse team or whatever but i i could potentially and and yes it’s not being argued now but the stuff we’re talking about now wasn’t being argued let’s say 20 30 years ago either so things can change over time uh and especially as there is increasingly uh uh uh i don’t wanna say ambiguity but an increasingly uh blurring of the concept of gender uh and as it relates to sex i could see you know a generation from now where people are saying well why do we even have uh separation of uh of the of the of the the sexes for sports why are we allowing that not just why are we having it but why are we allowing that and not considering it discrimination as uh proposed and if the argument becomes well we need to protect women and they go okay but which women and they go well the women that biologically need to be protected it could be i could see it becoming a difficult uh thing to challenge and this is where it gets sticky and again where i as a libertarian always fall back on allow the stakeholders to make this decision and it may mean it may mean looking at and reforming uh discrimination laws that if that this isn’t unless there’s a someone can be shown that they’re being systemically uh um disenfranchised and discriminated against by someone in power that maybe we should allow a certain level of quote-unquote discrimination or discernment from stakeholders but again we i you promised an hour we don’t have 17 hours to talk about that but um one more sure sure absolutely yeah okay so there was a supreme court case that was written the majority opinion was written by justice ginsburg the year she became an associate justice in 1996 it’s a case called the united states versus virginia and it concerned the admissions policy of vmi virginia military institute which is virginia it’s a public institution it was discriminating on the basis of sex only men could go to vmi right and not a whole lot of women wanted to go there but some did right um vmi had a lot of reasons why it wanted to maintain its mail only admissions policy but one of them was that they claimed that women were physically unable to satisfy the admissions criteria right like whether it meant dropping down and giving 30 push-ups i don’t know what it was right but it was kind of some physical test right and they were like look women can’t satisfy the physical tests well it turned out the woman who brought the case could right like so she would drop down and give 50 or whatever it was whatever it was right right right so it goes to supreme court and justice ginsburg says look because so they were trying to say it’s biology right like they’re are fundamental biological differences between men and women that make vmi inherently unsuitable for women and ginsberg was like in a majority of the court right bare majority i think was a 5-4 decision predictably scalia’s in descent like no it’s awful right but she says look biological difference basically she says look we can’t deny that there are physical differences between the sexes she says like we don’t there are physical differences between the races but they’re physical differences between the sexes but they should be a cause for celebration not denigration right and basically the holding of that case as i tell my students is that look biology discrimination on the basis of biology is a sex stereotype which is always illegal sex stereotypes in american law are always illegal there’s no amount of justification for them right but if it’s biology it’s not a sex stereotype but this case said biology can be a sex stereotype if there’s at least one woman out there who can who buffs the biological more right do you see what you’re saying so i always tell my students it’s about the law of the exceptional case so try to find one biological difference up i mean maybe like i talk about this with my students all the time can we think of a biological difference right that only women have or that only men have if we can think of one then that’s a valid basis for discriminating right right right but there’s not one then it becomes less permissible it you know it it goes over from the biology side which is okay to the stereotype side which is not okay right you know like for me that’s the fascinating thing about sex discrimination right when is it biology when is it stereotype well under this rule of one idea i don’t know there are lots of things that you know that we might think are biological that violate that norm yeah i mean i mean scalia knew this scalia knew this because he drops a footnote it’s almost like he didn’t want to make it too obvious but he drops a footnote and he says on this logic i’m not sure any sex segregation can persist the one exception now imagine it’s the other way around and in order for a uh cisgender boys to be allowed in girls sports they just have to have an exception of a cisgender boy who doesn’t exceed a certain level of performance they just have to pick some schmuck kid like me who got picked last for volleyball every single league and i go yeah i can’t yeah how many pull-ups can you do maybe four and they go see that there you go i know a guy just made that your argument i mean it quite not your volleyball argument but this guy wanted to work in the fbi right and in the fbi they had different physical standards for men and women right yeah i think men do have to drop down and do 30 push-ups women have to drop down and do 20. right or whatever yeah yeah yeah yeah this guy but it was like he wanted a job in more an administrative capacity right in order to even get that job in the fbi you still have to go through the physical fitness strength you can’t avoid that right this poor guy cannot do 30 push-ups in a minute or whatever it was like he just couldn’t do it like he he got so close like you know he did it one last time he got 29 but he didn’t make it he argued that that was sex discrimination basically on your logic right he’s like look that’s wrong like if you’re allowing women in who can only do 12 push-ups or 20 push-ups why aren’t you allowing me and for doing 29. it makes no sense he lost he lost yeah he lost right so but that didn’t go to the supreme court it was a fourth circuit decision and they were like yeah but biological difference but plessy lost too it can always change this is this is where and again i’m i’m gonna do the can i’m gonna do my my libertarian uh agit prop moment here i this is where i think you’ve got some murky situations where there’s not going to be a good standard that a one-size-fits-all standard here that isn’t going to end up resulting in something potentially disastrous even if it takes a few generations to do it and why i think we may need to be looking at how much quote unquote discrimination we’re allowing so that we could have more of a hodgepodge of of standards by the individual stakeholders in that not as a not as an arbitrary like you mentioned same-sex marriage not the government stepping in and saying this is what our state’s going to do but individual leagues individual parents individual organizations and so forth coming up with these types of standards but i mean it’s going to like you said one thing that we can all agree on there’s gonna be a lot of lawsuits like just a lot of them so as someone in the legal field congratulations on the boon to your industry that this is going to provide before i let you go courtney you’ve been a fantastic guest it’s really been a fascinating conversation before i let you go i just want to give you a chance to give uh your final take any any anything that you didn’t think we had a chance to talk about anything you want to promote that’s upcoming uh courtney cahill professor courtney cahill the floor is yours oh thank you i mean not really i think we covered like a good a wide field you know i did like what you said i just kind of want to bring it to the surface because i think it’s important about this kind of damned if you do damned if you don’t with respect to these the anti-trans medical bills that don’t allow puberty blockers or creating a situation where if what we’re worried about in the sports context is an unfair like exactly what you’re saying right like if we’re worried about an unfair advantage because of testosterone but if that’s suppressed starting young ages right before muscle development and all this right then you wouldn’t have it right so it’s almost like one is kind of as you as you nicely put out they’re kind of reinforcing together they’re creating the impossible situation well and and they’re often they want to i know i said i’d give you the last word but i’m i’m going to agree with you which is kind of like a last word for you which is yeah it’s me mansplaining what you just said no i so i i will say this um and you’re in you’re 100 correct it’s also in the bathroom situation okay so you can’t use the bathroom of your uh uh your your your uh preferred or your your uh stated gender but then if you go into the other bathroom that’s gonna be a problem too because you’re present you’re a trans woman you’re presenting as a woman but you’re walking into a men’s room yeah and when i would ask people uh well who are who were in favor of these trans bills and this again back when i was more conservative leaning on a lot of this stuff i’d say which one are you okay with them using and they’d say i wouldn’t want them to go anywhere in other words you just don’t want them to be accommodated in any way and that’s not everyone that was in favor of these bills but a lot of them or i would say possibly most of them the underlying statement here was we don’t want you around us we don’t want you in the store we don’t want you in any sports we don’t want you participating in anything we don’t like you we want you to stop doing this and if you end up dead that makes it more convenient for our concept of what sex and and gender is and that is the problem it’s fine for us to have these disagreements on the on you know whether uh if we’re protecting women’s sports with these things or whether we’re discriminating against people or whether that’s right or whether that’s wrong but when you’re creating a situation of impossibility and where the underlying subtext there and your belief is i don’t give a crap what happens to these people i just don’t want to even have to look at them you’re dehumanizing people in the most strict and explicit way and that that is wrong in all situations i completely agree with you so the reason why back to incest the reason why i was so fast obsessed was not necessarily because of incest per se but because of the emotion of disgust so back when i first began walk around so i did a lot of work on disgust i look at sort of anthropologists who have written about discussion with a cognitive scientist who wrote about disgust you know and it was fascinating right like this emotion is truly the tail wagging the dog yeah and that’s what’s going on here right like and and mary douglas who was kind of you know very well-known english anthropologist who wrote a book a fabulous book called purity in danger it was all about like society’s purity rituals right and her theory of disgust was my favorite of all the theories i read which was she said disgust is our reaction to matter out of place so she said nothing is inherently disgusting right like so dirt on the ground that’s not disgusting but dirt on my bed well now it’s a little bit more right yeah yeah but stuff that crosses its category it’s stuff that crosses the line right so like that for me explains that’s my kind of cahill’s meta theory of law right we want things just to color in the line you guys stay in the line and once you go out of the line you’re making me nervous so anyway so i i know you’re right i think that’s what it is right cahill say that again cahill’s great like meta theory of law cahill’s meta theory of law yeah it’s disgust management i like this no you’re right incest perfect example do i want two consenting adults to go to prison for engaging in sexual no but am i disgusted by incest yeah no absolutely it’s a yeah right you know and and it turns out there’s a psychologist whose work is amazing he’s now at nyu this at stern business school say jonathan hype and he is in some he did some great also in his early work and discussed and he was really interested in incest and that’s where like he would interview students he was at the university of virginia and he would interview students and say like what do you think about you know a brother and a sister you know having sex right that’s disgusting and he would say why and they would say because of genetic harm and then he would say oh well they’re both infertile why because there’s a power differential or whatever they grew up in the same house oh but they didn’t they were like a long-lost brother and sister that grew up in different households well that’s just disgusting right like and so it was he you know kind of push people into a corner in order to kind of bring out the fact that it’s disgust that’s doing the work right that’s driving driving the discuss is really doing most of the work in kind of our moral foundations no you’re right and we have succeeded in that we have ended on incest so so no hey listen no it’s it’s a it’s a perfect example of how this works so courtney professor cahill thank you so much for coming on uh hopefully we can hopefully we can have you on again in the future this was a fascinating conversation thank you so much thank you that was a really really cool discussion uh the interesting thing there is that uh also she did say uh afterwards uh right before i had to go um she said i took the jacket off by the way now i’m doing the after hours thing here um i asked her if she’d like to come on again and she said yes and i promised that next time we would find a way to seamlessly integrate 14th century italian law um and literature into it and probably incest because that seems to be her bag which is folks thanks so much for tuning in to this episode of my fellow americans uh join uh tomorrow thursday night matt wright may or may not be doing an episode of the muddy waters of the writer’s block not the money waters writer’s block who is guest bee i don’t know if we’ll even be having a show but if he is tune in tomorrow 8pm eastern same writer’s time same writer’s place and then join me this weekend at the libertarian party of california’s convention in beautiful vesselia california i don’t know if i’m saying that correctly i assume visalia it’s near fresno if you go to lpcalifornia.org you can find out more about their convention come on hang out with me i’m going to be there i’m going to be speaking i’m going to be attending workshops uh yes my wife will be there i already know you’re going to ask that yes she’ll be there yes and so come out and see me uh and then come right back here next tuesday for the muddy waters of freedom where matt wright and i parse through the week’s events like the sweet little 20 20 wonder cherubs that we are and also of course uh tune in right back here same spike place same spike time actually no different spike time apm usual time same spike place usual spike time uh for the next episode the hundred and first i almost said one the hundred and first episode of my fellow americans with my special guest i don’t know um oh actually no i do know who our guest is gonna be it’s uh the uh for all tennessee is coming back they successfully passed uh a bill that ends no knock raids and a bunch of other harmful police practices in tennessee and they’re gonna come on to talk about they’re gonna do a little dunkin on uh they’re gonna dunk on their haters uh and talk about some of the the hard work they’ve been doing at the tennessee legislature can’t wait to have them on um folks as i said before uh you can always go to anchor dot fm slash muddied waters you can leave questions for us leave messages for us and we will listen to them and answer them uh during the muddy waters of freedom you can also make donations and you can become a monthly supporter of the muddy waters of freedom and so i’m going to read off the names of our monthly supporters who we greatly greatly appreciate those are justin mickelson zachary martin tim pollin josh mccos selena stewart kenneth ebel sean sparkman jim lee uh or james e lee i’m sorry it’s jimmy uh daniel faust dan faust jennifer morrison jack casey jeff depoy andrea o’donnell chris reynolds personal injury attorney chris reynolds attorney in law kenneth ebel again meg jones and billy pierce for texas thank you guys so much for being a part of this and thank you for watching this uh we will see you right back here maybe on thursday i will hopefully see you in california uh and then we will see you for the muddy waters of freedom next week and my fellow americans have a great rest of your evening i will see you very soon i’m spike cohen and you are the power god bless guys [Music] [Music] away [Music] [Music] [Applause] [Music] [Music] [Music] at the least slightly like-minded indeed the life i’ve lived brings light to kindness all you need is a sign put a cease to the crimes put in east of the minds like mine sometimes darkness is all i find you know what they say about an eye for a night in a time when the blood is the blood who am i to deny would grow when a loved one dies i recognize that body outside with a hoes in the body that was alive now find out how but you never know why it ain’t even make all the time [Music] when you watch the mother losing five don’t tell me how tell me what [Music] make a change [Music] we will make [Music] you