Queer Supremacy (A Pride Special) | Crooked Media
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June 16, 2022
Strict Scrutiny
Queer Supremacy (A Pride Special)

In This Episode

It’s a special Pride episode of Strict Scrutiny! Special guests Joshua Matz and Chase Strangio join Melissa, Kate, and Leah to highlight developments and ongoing litigation around LGBTQ rights.

This year, Crooked Media’s Pride fund is supporting three incredible organizations that provide community building, gender affirming, and life saving resources to the queer and transgender community. Visit crooked.com/pridefund to donate and learn more.

 

TRANSCRIPT

 

Kate Shaw: Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I’m Kate Shaw.

 

Melissa Murray: I’m Melissa Murray.

 

Leah Litman: And I’m Leah Litman.

 

Melissa Murray: And today we are delighted to bring you a very special pride episode. And we have with us two guests, not one, but two guests. So coming back to the pod for his second appearance because we did not scare him off the first time is Chase Strangio. So welcome back to the show, Chase.

 

Chase Strangio: Thank you. I’m so happy to be here.

 

Melissa Murray: And although Chase is a veteran strict scrutiny guest, we have managed to convince someone who is making his strict scrutiny debut today. So please welcome to the show for the first time. Joshua Matz. Welcome, Joshua.

 

Joshua Matz: Thank you. Melissa. Could not be more excited to be here with you all.

 

Melissa Murray: Not as excited as I am. No one is more excited than I am about this episode.

 

Leah Litman: I beg to differ. I have COVID and I insisted on recording anyways because I’m so excited about these guests.

 

Kate Shaw: We are totally thrilled to have both of you on the podcast. We are going to make you sit through some well-deserved fawning introductions for our listeners. So everybody buckle up. First guest we have with us today is Chase Strangio. Chase Strangio is the deputy director for Transgender Justice for the ACLU’s LGBTQ and HIV Project, a national leader in transgender rights litigation and advocacy. Chase has been counsel in some of the past decades most pivotal legal fights on behalf of transgender litigants, including the ACLU’s challenge to North Carolina’s notorious HB two, the ACLU challenge to Trump’s trans military ban, the case of Amy Stevens at the Supreme Court, and recent challenges to anti-trans laws and policies in Idaho, Texas and Arkansas. Chase was also counsel in Obergefell versus Hodges, the Supreme Court decision that struck down bans on marriages for same sex couples. In addition to his advocacy in the courtroom and in state legislatures, Chase appears regularly in media and has produced multiple short films, including the Emmy Award winning Short Texas Strong. In 2020, Chase was named to Time magazine’s list of the 100 Most Influential People of the Year. Chase is also a co-founder of the Lorena Bros. Community Fund, Trans Santa and the Trans Week of Visibility and Action. We weren’t doing this would be a long one, but all so well deserved.

 

Melissa Murray: So part two of the Chase Strangio Introduction to commence. Chase was previously on Strict Scrutiny to discuss his successful representation at the ACLU of Amy Stevens, who was one of the plaintiffs in Bostock versus Clayton County. The landmark Scotty’s case holding that firing an employee because of their sexual orientation or gender identity is a violation of Title seven. And Chase has appeared on the Emmys red carpet with none other than Laverne Cox. Amazing. He’s also represented Chelsea Manning during her final three years in prison for disclosing military intel to WikiLeaks, as well as representing transgender student turned activist Gavin Grimm. So, Laverne Cox, Chelsea Manning. Gavin Grimm. Chase, what don’t you do?

 

Chase Strangio: I mean, I don’t have a podcast.

 

Melissa Murray: Yet yet.

 

Chase Strangio: So I’m just happy to be here.

 

Leah Litman: This is part of our long game to get you on ours so well.

 

Chase Strangio: My other job is making sure that you can meet all of the RuPaul’s Drag Race stars in Syria.

 

Leah Litman: So Chase is alluding to what is my greatest personal and professional achievement to date, which he is responsible for. Namely, when I was able to appear on a live Instagram show with Miss Peppermint to discuss the then pending title seven cases about whether Title seven prohibited discrimination on the basis of sexual orientation and gender identity, for which I will be eternally in your debt. So do you think we could get you to come on the show, Chase?

 

Chase Strangio: I am not at the Ru levels yet. My first my goal is to be a judge on this show. Then if I achieve that goal, I will pivot to a Strict Scrutiny appearance. Naturally.

 

Leah Litman: Chase, I see this in your future.

 

Kate Shaw: You have to pull Leah with you. If you get if you get judges seat like she is also dying.

 

Melissa Murray: Court expansion on drag race.

 

Leah Litman: I’ll be the person that will be like put in quick drag by the contestants. I don’t even have to be a judge. I will just do whatever I can to be on the show. I would be a judge, to be clear. But anyways, so we have another series of fawning introductions to give. Bear with me. Our second guest, Joshua Matz, is a partner at Kaplan Hecker and Fink LLP and has written two books on constitutional law. That would be two more than I have written. And I’m the law professor with Harvard law professor Larry Tribe. His practice includes complex commercial just. Civil rights law and appellate litigation. In January 2021, Joshua was commissioned by Governor Andy Bashar as a Kentucky colonel for successfully defending the governor’s COVID 19 public health measures at the Supreme Court, which is no small feat. Given, you know, I’m gesturing at the world, everything.

 

Melissa Murray: What is your secret recipe, Colonel Matz?

 

Joshua Matz: I don’t know what my secret recipe is. I do know that at least a few of my associates have been prevailed upon to start referring to me as Colonel Joshua and I have done nothing to dissuade them.

 

Kate Shaw: Do you want us to call you that for the remainder of the pod?

 

Leah Litman: Commander Vladeck. Colonel Joshua. I mean, we will do this. In February 2021. Colonel Joshua served as impeachment counsel to the House for the second Senate trial of President Trump. More recently, Joshua has successfully defended Pennsylvania and Wisconsin’s congressional maps against attacks at the Supreme Court.

 

Kate Shaw: Okay, so part two of Joshua’s introduction. Joshua also represents Eugene Carroll in a defamation case against Donald Trump. He represents black members of the New York legislature who were attacked by the police while, you guessed it, protesting police brutality. And he recently won dismissal of defamation claims that former Representative Devin Nunes brought against Liz Mair for her political criticism. More broadly and most relevant here, Joshua has worked on many cases involving the loss of democracy, LGBTQ rights and the First Amendment.

 

Melissa Murray: Welcome to the show, boys. And I have to say, boys, because I don’t think we’ve ever been able to see that other than that one episode we did with Nick and Julian last summer about the non delegation doctrine. We’ve never had two men on the show. So this is this is a milestone for us, too. Congratulations. Strict scrutiny. Way to go. Way to diversify. All right. We are a podcast focused on the Supreme Court and the culture that surrounds it. And given everything that is happening at the court, we really haven’t had much of a chance to reflect on developments in the lower federal courts, the federal trial and appellate courts. Nor have we had a chance to think about what’s been going on in state legislatures with regard to many of the issues or rights that we always talk about on the show. So we are going to have some summer episodes about these topics after the court releases its final opinions in the argued cases. So sometime in the next couple of weeks. But because this is Pride Month, we wanted to highlight some developments in ongoing litigation specifically related to LGBTQ rights. So this is our Pride episode and I’m proud of it.

 

Kate Shaw: Yes. And because it’s our Pride episode, we thought we would start with a very quick bit of history of pride. The first pride march was held in New York City in June of 1970. A year earlier, in June of 1969, patrons at a gay bar in the village, the Stonewall Inn, fought back against a violent police raid on the bar. Those sorts of raids were really routine at the time, but the response made clear that the LGBT community was going to actively resist that sort of violence and intimidation. Stonewall is, you know, viewed as a really important moment and galvanizing an LGBT rights movement. And the march, held a year later, was meant to commemorate it. So in its inception, pride was about active resistance to injustice. So our take on pride is going to be focused on the ongoing struggle for LGBTQ rights. And we’ll keep our conversation today largely, though not exclusively focused on the courts and the law, both because that’s what we know and because those are important, critical sites of ongoing struggle. Okay. So maybe, Joshua, we will start with some questions for you. One of the many cases you were involved with is a challenge to Florida’s notorious don’t say gay law. Can you just tell us, Joshua, what does the law do?

 

Joshua Matz: Happy to do it. So I’m actually going to start with what the law doesn’t do just because this is a very common misconception. This is not a law about human sexuality education. HB 1557, which has been rightly described as the don’t say gay law, is a statute that was passed in Florida earlier this year that seems to strike a blow at the very existence and integrity of LGBTQ people and their families. And it does so in a few ways. So I’ll start with the text, because as the Supreme Court tells us, we always start with the texts you query whether they end there, but at least they like to say they start there. And so here’s the key provision that we have focused on in the lawsuit. Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade three or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards. And so that’s the text, you know, and the text invites a few questions, and I’ll just maybe identify a few of the key ones to give you a sense of what gave rise to this lawsuit. Right. The first question is what counts as classroom instruction, because the law forbids from ages K through three and then imposes limitations thereafter. On classroom instruction of some kind. And there have been debates and disputes about whether classroom instruction is formal curricular instruction, whether it’s anything that a teacher happens to do while in class. You know, you might ask, like if a teacher has a picture of their significant other on their desk while they’re teaching, or if the teacher refers to having gone on a summer vacation with their significant other, or what if a teacher is helping a student that was just bullied by another student? Or what happens if they’re intervening in some kind of conflict at recess? Right. So big question. One is, what is classroom instruction? Big question two is who are school personnel or third parties? Right. If it only applies to classroom instruction, presumably that’s teachers. But on its face, the law seems to apply to anyone in this school. Which takes the hypothetical. So I just gave you it makes them even more concerned. Right. What about a school psychologist? What about a guidance counselor? What about a school nurse or a parent of an LGBTQ student or maybe same sex marriage? Parents who have a child at the school who are coming in, are they governed by the law? The third big question is, you know, you can’t have classroom instruction by those people, quote, on sexual orientation or gender identity. And this is the provision of the law that I think like everyone’s heads explode when they actually try to figure out exactly what it means is a gay teacher by their very presence in the classroom instructing on sexual orientation, or if teachers assign a book in which, you know, a girl goes home to her mom and dad, is that instruction on gender identity or sexual orientation? What if she goes home to her two mommies? Or what if a teacher asks a student to draw a picture of their family in class and then puts them up on the bulletin board? And some students draw pictures of their families and they don’t look like the families that Governor DeSantis may have had in mind here. Right. Those are just some of the big questions this law has raised. And so when you say what is the law do, one of the big concerns is that the law has this very broad language that creates a risk of just chilling, an enormous amount of speech and conduct and basic welfare and education in schools. It gives very little guidance about how that works, and it gives to every parent of a child in the state the ability to bring a money damages action against the school if they believe the law has been violated. So it has this massive chilling effect because every school district in Florida now has to worry that one parent or another, no matter how idiosyncratic their beliefs, will sue them for money damages, which itself can be hugely burdensome. If anyone in the school does something that violates this law. And the result has been a huge wave of fear for LGBTQ students and families, for their allies, for teachers, all of whom are in the dark about whether they can literally say the word gay. And I think in many ways that’s what the law was meant to do, and that’s what it’s done, which is why we brought this case.

 

Kate Shaw: And Joshua, correct me if I’m wrong, but the law, I think, doesn’t go into effect technically until July 1st. And yet, you know, as all of the examples that you just walked through illustrate and as reporting, including in The Washington Post, has made crystal clear people are living in fear and a lot of people are making decisions right now, but they cannot continue to function in educational environments because of the fear of what this law will bring once it’s in effect. So you have teachers, a teacher in Orlando, a science teacher who decided to resign after parents wrote a letter complaining that he had acknowledged his same sex marriage. This Miami teacher, Nicolette Solomon, who is the subject of this amazing profile in The Washington Post, who was an amazingly gifted teacher, who loved teaching and eventually felt like she had no choice but to quit because things like her students had Googled her and seen pictures of her wedding to her wife. And she just thought she was going to be teaching an intolerable conditions if she stayed. And so she left. And so, you know, it’s a climate of fear clearly and quite deliberately so, and also real material consequences on the ground already for many families and teachers.

 

Joshua Matz: Totally. I mean, it’s so easy to get lost in the abstractions, you know, in talking about issues like this. And there are abstractions aplenty. You know, there’s questions about what it means for a lot to be vague, how you conceptualize an equal protection issue, what it means to have instruction on gender identity. Right. In some ways, everything that happens at K through three has the potential to have some form of constructive effect on that. So there’s plenty of big questions here. But, you know, my experience is that at the bottom of a lot of this is just some really heartbreaking experiences of people who’ve been made to think they can’t do their job or that they and their families and their children can’t live in the state and, you know, without being treated as second class citizens.

 

Melissa Murray: Can I ask a question here maybe to clarify for some of our listeners who may be law students? And, you know, one of the sort of salient points in the first year criminal law course is this idea that a law that is vague is unconstitutional, but that vague for vagueness doctrine only applies as to criminal laws. It doesn’t apply to civil laws or laws that impose civil penalties or it hasn’t, and not as robustly as it has for criminal laws. So can you talk a little bit a. About the fact that this is a civil law with civil penalties as opposed to something with criminal liability attached to it and and why, you know, it, we often think that criminal liability is the more important issue, which is why we have these constitutional protections. But in fact, these civil penalties can be as damaging as pernicious. And you can sort of avoid the kind of, you know, deterrence and chilling effects that the vague void for vagueness doctrine was intended to obviate.

 

Joshua Matz: Sure. I don’t mean to take question with your premise too much there, but I’m going to do it a little bit, which is there are prohibitions on how vague a scheme of civil enforcement can be. And one of the claims in our case is a due process claim that highlights the vagueness of the law, which invites arbitrary enforcement and all sorts of disparate impacts in how the law is actually operationalized. But more broadly, when you think about a law like this and you think about what the enforcement scheme looks like, it’s really concerning. In some ways, it has echoes of the SBA law in Texas. It’s not quite the same, but the way that the law works here is that, like I said, parents of children in these schools are able to bring claims against the schools. So the claims are not brought directly against the teachers or the students. The claims are brought against the school districts. So the school districts are in some ways key intermediate players in thinking about how the law actually gets operationalized and the combination of potential administrative enforcement, which is addressed elsewhere in the law and the scheme of sort of vigilante like civil enforcement backed by the threat of money damages and all that that might actually do to any individual school district creates this kind of regime of terror where school districts that are put in this impossible position of trying to interpret a law that is really not amenable to any kind of clear or reasoned interpretation, and it has this discriminatory effect and purpose faced. On the one hand, the risk of lawsuits from parents, on the other side, the risk of lawsuits from students and teachers and other personnel. We’ve brought one suit. They’re going to be many others. Right. You can imagine that if a school fires a teacher for identifying as gay, you know, that might be required by HB 1557. But it is fairly forbidden by Title seven under the bus stop case, which says you can’t take regions in discrimination based on sexual orientation. So this is a this is a law whose enforcement scheme creates a lot of difficult questions for a lot of actors in the system at the state level, at the sort of school teacher parent level, but especially at the school board level. We brought this case as a facial challenge to the law, although we included a number of as applied challenges, because what we want to highlight is that the system as a whole works in a way that creates this vague, arbitrary, discriminatory regime throughout the state, whose purpose, in effect, is to censor a set of ideas, to censor certain kinds of speech, and to write an entire population from within the state out of existence within the education system. You know, and as as as important as it is to ensure that the criminal law does not have overly vague prohibitions, it seems to me equally important that a state not be allowed to deny to an entire generation the existence of a group of people whose integrity is protected by the Constitution. And in many ways, that’s exactly what this law is aiming to do.

 

Leah Litman: I’m so glad you brought in SBA, because I think that there are several parallels between this law and what Texas tried to do with SBA, basically leveraging the power of the state in order to isolate individuals who are disfavored by the state and make their existence so perilous and difficult that, you know, the state is basically like forcing them out, as you’re suggesting. Now, you’ve mentioned the vagueness due process challenge to the law. Could you describe some of the other challenges that are being brought before you do that? I just want to make a quick note just for our listeners, a facial challenge versus an as applied, challenged. As Joshua mentioned, a facial challenge means this law couldn’t be applied against anyone. So Florida couldn’t enforce this law against anyone. And as applied challenge would mean, the law couldn’t be enforced against either the particular plaintiffs that Joshua is representing or a group that is similar to them but is less than everyone in the state of Florida.

 

Joshua Matz: We’ve brought a wide range of challenges to the law. The one of the challenges like we’ve talked about is this vagueness argument under the due process clause. As Melissa pointed out, a lot of that law’s in the criminal sphere, but there is some precedent for it in the civil space. We’ve also brought an equal protection challenge, the premise of which is that the purpose and effect of this law is to discriminate against LGBTQ people. And in that respect, it violates the core prohibition of the 14th Amendment against that kind of discriminatory undertaking. Related to that, as a federal Title nine claim, which is a claim that this violates federal sex discrimination law. And then finally, we have a free speech claim that this law violates free speech rights by seeking on sort of narrowly. Partizan and ideological grounds to rid the schools of of speech on subject matter, the teaching of which is protected by the Constitution. And where there’s really no legitimate educational or pedagogical purpose for the prohibition. And so we’ve brought this wide range of challenges. We recently filed an amended complaint. And so we expect that pretty soon we’ll be engaged in motion practice with the state where they’ll try to dismiss the case. And we’ll explain why we should be allowed to reach a jury.

 

Leah Litman: So in addition to the parallels with SD eight, this set of challenges raises other themes that we’ve talked about on the podcast. You know, one, you’ve already mentioned how this law seemingly could lead to results that run counter to the Supreme Court’s decision in Bostock. And specifically, you know how precedents are. Rights can be nullified without being formally overruled. Federal law, as the Supreme Court said in Bostock, prohibits an employer from firing an employee because they are, you know, gay or lesbian or transgender. But here, you know, Florida has made it prohibitively difficult for employees to discuss their families or gender identity without being fired. And you can imagine, like some outlandish judge somewhere saying, well, I’m not overruling Bostock, I’m just saying the employee can’t acknowledge being gay. Yes, the employer can’t fire them for being gay, just acknowledging that they are gay. And this is a troubling trend we have noted on the podcast with judges basically like denying the force of prior cases and their natural conclusions. And it also underscores how quickly things change. I mean, five years ago, six years ago, in the wake of marriage equality, I’m not sure many people would have believed a state would pass a law just prohibiting discussions of sexuality.

 

Joshua Matz: And I think if Justice Kennedy were still the swing justice at the Supreme Court, states would be a lot more reticent to do that, and they would be a lot more likely to see the law stricken down. You know, an obviously, as this podcast points out, so effectively, you know, we live in a different world in which the Supreme Court is changing a lot of the rules of the game in real time. And, you know, I mean, you said it so well, which is there are times where you work on these issues and it feels like you’re just Alice tumbling down the rabbit hole. And language takes on all these weird new meanings and people come forward with these distinctions that they insist upon with a straight face and like you barely even know how to respond or how to engage with it because it’s just so obviously, you know, at odds with common sense and what’s really going on. You know, and this is one of those cases where one of the defenses that we expect from the state is, oh, this is actually neutral. This doesn’t discriminate against LGBTQ people because it refers to any gender identity or any sexual orientation. But then you look at like literally every single example that was given in the legislative record and you look at how it’s being applied, right? They’re not pulling books from libraries in which a student goes home to a mommy and daddy. They’re pulling books from libraries in which a student goes home to their two mommies, or in which a student, you know, comes to realize that they identify as a different gender than they were assigned at birth. And, you know, like everybody gets the message. It’s it’s a version of the travel ban case. It’s a version of the case about the citizenship question on the census, right. Where there’s a certain like the emperor has no clothes quality to it, where like can the court essentially acknowledge what everyone else on earth is perfectly aware of? And you know what everyone else on Earth is organizing their conduct around? We think the law supports us and that the court really can and should do that here. But you’re totally right to point out that in this area of the law, you have these distinctions drawn that like you have to struggle, just not to burst out laughing, except also they’re kind of heartbreaking.

 

Chase Strangio: I think, honestly, just if I could jump in, it’s that the Florida law, too, is such a continuation of the full landscape of anti LGBTQ legislation that we’ve seen over the last six, seven years. And if you look at the origins of the anti-trans bathroom bill, it was the exact same thing. And states were defending those in court saying, no, these apply to everyone. Everyone is sorted into bathrooms in these ways. And they had the same vagueness problems, which was to say that, you know, they had civil enforcement penalties, but they intersected with criminal laws. And so far as, you know, criminal trespass laws would be at the intersection of the civil enforcement, of the the anti-trans bathroom bills. And so there were all of these ways in which the states were very strategically trying to limit access to relief in court and then also gaslighting us in court by saying, what are you talking about? We’re not targeting you, that these laws are simply just equally applied to everyone, as if all of a sudden the country was really concerned about who went to the bathroom outside the context of trans people, and yet that they actually did defend that in court that way. And that’s not unlike how, you know, in the early 2000s, marriage bans were defended in some way, which was to say states came in and said, look, everyone can marry someone of a different sex, that these are laws aren’t targeting you. And that type of defense by the states is so classic in this area. And so we’re just seeing the new manifestations of.

 

Joshua Matz: It actually calls to mind this quote from Anatole France. The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal their bread. Right. There’s that aspect to these sorts of arguments, and we’re encountering the same sophistry here and hopefully we’ll be able to overcome it.

 

Leah Litman: [AD].

 

Melissa Murray: So this is a podcast about the Supreme Court. So maybe we can shift to how some of these issues are playing out at 1 First street. So a really important issue that has emerged in the wake of both Obergefell and Bostock is whether the rules of those cases and the rights that they announce can be enforced against those who hold religious objections to LGBTQ equality. So, for example, you know, this is about Kim Davis, the clerk who doesn’t want to issue a marriage license to a same sex couple because she has religious objections, although there is a separate issue because that might be a government employee. Although, to be clear, some justices have not always acknowledged the difference between a private individual and a government employee on that scope. There’s also the question of employers who want to discriminate on the basis of sexual orientation because of their religious views. Again, and the question is, can the government forbid them from doing so? So I remember when Chase was last on the show and we talked about Bostock. We suggested that Bostock was a victory to be celebrated, but we also noted that Justice Gorsuch had sort of put a little poison pill in the back of that opinion in the last couple of pages where he talked about the prospect of RFRA being a super statute or the prospect of the ministerial exception being used to limit the force of Title seven in these cases. And, you know, we’re seeing some of that now. So can you explain some of these questions about the intersection of the First Amendment and free exercise of religion with these questions of LGBTQ equality?

 

Joshua Matz: Of course. I mean, so there’s there’s been this recent series of cases at the Supreme Court starting in many ways with Masterpiece Cakeshop, which was a case that came after Obergefell, which I’m happy to talk about, to continuing now with a case called 303 Creative, which is set for argument this fall, and that the common theme of these cases in many ways is this entirely new argument, not really well supported by precedent, that the First Amendment creates something like a right to discriminate against LGBTQ people and potentially many other people as well, either because the person who wants to discriminate describes their commercial activity as expression or art and insists that it would violate the free speech clause to apply nondiscrimination requirements to their business. Or because the person who wants to discriminate says that they are doing so based on a religious objection and claims that applying civil rights law violates their religious freedom.

 

Melissa Murray: So so let me interject. So in masterpiece, for example, the baker because the cakes were masterpieces, that was a form of expression. And therefore he was not compelled to provide this expressive message on behalf of something he didn’t believe in, namely same sex relationships. By contrast, in the case called Fulton versus City of Philadelphia, which we’ve also talked about, the issue is whether Catholic social services, because of their religious mission, is required to comply with the city of Philadelphia’s rules that all of their city subcontractors comply with these anti-discrimination norms. So that’s the big set of differences in the two cases, like that’s one cakes are expression. Catholic Social Services is a religious exercise.

 

Joshua Matz: Totally. I mean, there was a religious free exercise claim in Masterpiece Cakeshop, too, but it was really presented as a speech case. And, you know, part of what’s interesting is that in both Masterpiece and Fulton, a similar dynamic unfolds, which is the entity claiming a religious objection to the enforcement of anti-discrimination law wins at the Supreme Court and they win on religious freedom grounds. So Masterpiece was ultimately decided as a religious freedom case. In both cases, however, they win on these extremely narrow grounds that nobody had really seen coming with a large majority of the court trying these kind of cross ideological coalitions led by Justice Kennedy, a masterpiece and led by Chief Justice Roberts and Fulton, to move the law a little bit more in the direction of authorizing religious exemptions from civil rights law, but avoiding like the big questions with all capital letters. Right. They avoided the big questions, but they they sort of further entrench the idea of exemptions from anti-discrimination law. They further normalize that idea. And in both cases, they move the law in directions that sort of open the door a bit more for the possibility of a much broader framework for giving people the right to just discriminate in ways that would otherwise be illegal now that have been understood to be illegal for quite some time, and that suddenly might be unconstitutional in the way that the super majority on the Supreme Court now seems to want to rewrite constitutional doctrine.

 

Kate Shaw: And we’ll talk more about this case this fall for sure. But can you just for a minute say something about the likelihood that 303 creative will be the case in which the Supreme Court, you know, does issue a big, broad ruling rather than these kind of narrow, certainly needle moving, but not kind of reconciling these ultimate clashes of equality and either speech or religious freedom that, you know, it seemed in the run up to both Fulton and Masterpiece Cakeshop like. The Court might do, but in both cases, it in fact did not.

 

Joshua Matz: I think the odds are pretty good that they’re looking to make some waves here. I mean, just and just to step back quickly, like you look at Masterpiece, it’s a case that comes with these big claims about a baker who refused to serve same sex couples. To be clear, that was an actual baker and actual same sex couples, unlike in three or three creative, where it is a business that would hypothetically like to create marriage websites, although it has not previously done so, and is worried that some hypothetical future same sex couple might request their service. So they have preemptively signed a declaration that the Constitution would prohibit Colorado from saying that they couldn’t discriminate. If that were to someday happen, maybe. Right. But when masterpiece where you have an actual conflict, the court says we’re not going to discuss these big questions, but it does lay down some markers. Right. It says on the one hand, religious and philosophical objections are, in some cases, protected speech. And it says on the other side, quote, Gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. So masterpiece in some ways is very much about like etiquette and rhetoric. Right. It’s a case that says, like, we just have to find a way to live together respectfully. And we realize there might be a clash here. But, you know, Justice Kennedy is just like bending over backwards to avoid getting there and to say, you know, there’s something to the position on both sides, but we’re not giving anybody the whole thing. Then comes Fulton. Fulton seems to present another version of this, like big question about whether Catholic Social Services has a constitutional right to exempt itself from rules that apply to all foster services in Philadelphia. And I was one of the lawyers that represented Philadelphia in that case, just by way of a disclaimer. And Chief Justice Roberts. He pulls a rabbit out of the house. It’s not even a rabbit. It’s like a zebra. He pulls a zebra out of the hat where he’s like, actually, this contract between the city and the foster agency has this provision in it that, like nobody has previously understood, to give the city discretion to essentially ignore the anti-discrimination requirements. But as it turns out, it does give them that discretion. And because there’s this discretion to just ignore the anti-discrimination requirement, the city loses because it doesn’t have a good enough reason. So in these prior two cases, the court events in many ways these off ramps that allow it to avoid the big questions, and it does so with concurrences and dissents that are raising a lot of noise about the big questions. But don’t go there. This is a case where the science suggests that they’re not inclined to do that, both because there’s now an emboldened conservative majority that has not hesitated to just jump on one landmine and the jump on another, but also because the court itself rephrase the question that had been presented to State as follows Whether applying a public accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment, and where the Supreme Court rewrites a question and tells the parties that they want them to answer it. It’s a pretty strong indication that that’s where they see themselves going. And the combination of, you know, years of experience, very angry concurrences and dissents, the overall direction of where the court is at and the way that they’ve posed the question to the parties just screams that they’re willing to make some big law here. And that will itself invite a lot of follow on cases, because it’s extremely hard to describe these principles in ways that don’t create a lot of uncertainty about where the anti-discrimination law can apply in this country. So if they do it, there’s going to be a lot of cases that come behind it. But I have to tell you, I’m pretty scared because I do think that’s the direction majority of the court wants to take this case.

 

Leah Litman: So, I mean, from Lawrence to Obergefell to Masterpiece to Fulton, and now looking ahead to three or three creative, it seems like we are on this path again, as we were discussing earlier, to a kind of like undermining or erosion or possibly like nullification of legal rights, you know, again, without necessarily formally overruling cases. This is a podcast about hysterical lady parts, and we have all been accused by some very prominent legal folks of being hysterical about the growing threat to LGBTQ rights that overruling Roe versus Wade presents. And I think we’re all of the view that Roe versus Wade is going to be overruled by the court this term. I guess I just want to put a pin under it like what you’re describing, Joshua, is a kind of steady and slow incremental erosion, but that’s not unlike what happened with abortion. It wasn’t like all of a sudden we turned around and Roe was in danger. It was this sort of steady, steady, chipping away over the course of 40 years that kind of normalized the idea that abortion access should be quite limited. Indeed, it should be inaccessible entirely. And, you know, I don’t know if the court is going to overrule Obergefell right away. I don’t think that it will. But I do think that when you allow for religious exemptions of this scope, you are beginning the process of normalizing the idea that you can treat gay people differently in public. And that begins the process of normalizing the prospect of withdrawing rights eventually.

 

Joshua Matz: I. Lately agree with you. And look, I mean, the overruling of Roe is a tragedy of immense proportion, and that is independently a tragedy, whatever its consequence or lack thereof, for LGBTQ rights. What we see in the draft majority opinion obviously does not portend well for LGBTQ rights or many other rights.

 

Melissa Murray: But Justice Alito said it was just about abortion.

 

Joshua Matz: I know, I know. And I struggle to not take him at his word.

 

Melissa Murray: But just can I not trust him? Is he not a good friend to me? Is can I not trust him?.

 

Leah Litman: He promised me earlier this year that the court doesn’t treat their shadow docket cases as precedential.

 

Melissa Murray: He says he loved us. He said we’d be together forever.

 

Joshua Matz: I mean, you know, even spotting Justice Alito, all that and more besides. Right. We can just go nuts with how much good goodwill we will will impute to Justice Alito here. You know, in many ways, one of the great accomplishments of the late 20th century was the welcoming into American society and commerce of people who had historically been excluded women, racial minorities, immigrants, people of different ideological backgrounds, of different, you know, of sexual orientations and gender identities. And these types of cases that talk about a right to discriminate, that reframe ordinary commercial activity as protected art, or that conceptualize providing routine goods and services as a form of religious practice from which the Constitution requires an exemption, pose an extraordinarily broad threat, not just to Obergefell, although they do, and not just to LGBTQ rights, which they also do, but I think in many ways to the model of living together in a diverse and pluralistic society that I think a lot of us aspire to. Because when you entrench the idea that an acceptable way to live your life is to just refuse to have any dealings with people that you find apparent in any way. You sow a form of division and discord that takes root at a very deep level and infects, I think, what people understand it means to live in our country together. And so what I worry about in these cases is everything that you’ve talked about. But also just more fundamentally, what I worry about is that the Supreme Court is creating rules calculated to tear us apart. And that’s why I hope that as they come to these cases, they have some modicum of modesty and caution, although that’s been lacking at the Supreme Court lately, because the project they’re engaged in is one of just unbelievable social and cultural importance to every single American who cares about living together successfully under the Constitution.

 

Leah Litman: So most I’m glad you set the stage about how the kind of path that we are seeing on the ground where we are seeing and undermining LGBTQ rights is very similar to what we observed in Roe, because that is very much true in the litigation and laws that I’m hoping. Chase We’ll be able to talk to us about now because let me just try to set the stage a little for this. So in full ten and three or three, creative, as we were just saying, you know, the issue in those cases was whether the First Amendment prevents the government from enforcing anti-discrimination rules that protect LGBTQ individuals. Now, a related but slightly different trend is some states enacting statutes that purport to contain anti-discrimination requirements, but that then offer exemptions, you know, to people essentially a right to opt out of the requirement if they have religious objections or other objections. Note that’s means they’re not very much of a requirement at all. But this is like what the Trump administration did with the contraception mandate, for example. But a related trend takes that even a step further, which is states enacting prohibitions on providing care like health care services or opportunities for transgender individuals. So instead of states saying you can’t discriminate against transgender individuals, you know, unless you want to. These are states saying you must discriminate against transgender individuals. One of the examples that we haven’t had the opportunity to yet discuss at any length on the show concerns, limitations on health care. And one of the examples of this happened by executive directive in Texas. So Jace, could you explain what happened in Texas with respect to the withdrawal or threat of withdrawal of health care to transgender individuals?

 

Chase Strangio: Before even getting to sort of the specifics of each state. Since we’ve been talking about the Supreme Court, none of this is, you know, can be extricated from what’s happening at the Supreme Court. And if you look at the progression of sort of what we’re seeing in the States, you can there’s a straight line from Shelby County versus Holder, because what happens is they they got the Voting Rights Act. You have a rightward shift in state legislatures and then a series of backlashes to other Supreme Court precedents that then lead to the type of proliferation of various forms of anti LGBTQ legislation. And of course, other legislation allows for the proliferation of anti-abortion bills of the anti so-called CRT bills. So this is all happening over the course of a decade where you have this massive amount of voter suppression. And then also the political realities where in 2020, for example, the Texas House was in a position to possibly flip. That would have then changed the entire. Landscape where, you know, you wouldn’t get SBA potentially. You wouldn’t have a lot of these anti-trans laws coming out of Texas because you could have had an entirely different paradigm. But we don’t pay attention to state elections in the ways that we should, and we haven’t really captured the extent to which the voter suppression has intensified since 2013. And so that’s the context in which all of this is happening. And in Texas, the Texas legislature convenes every other year. So I actually was going into 2022 thinking, oh, good. You know, we had 70 anti-trans bills in 2021, like maybe at least one for one state. We can have a moment. And in Texas, they had introduced the most terrifying version of an anti-trans bill in 2021, which was this bill that essentially defined child abuse and allowed for Child Protective Services to investigate families for affirming their minor children gender dysphoria. The bill was terrifying. People were terrified across the state. Thankfully, it failed. But of course, you know, never to be outdone, Governor Abbott and Attorney General Paxton decide to continue to try to implement this failed legislative action. First, Paxton issues an attorney general opinion, essentially saying that it is his view as attorney general that child abuse encompasses that provision of gender affirming care to adolescent, minor children. Now, again, this is completely counter to the every aspect of the legal paradigm in the United States and completely counter to pediatric medicine, where in this care it is considered to be standard of care medicine supported by every major medical association in the United States. But nonetheless, you know, he issues his distorted, factual and legal opinion. Governor Abbott takes it a step further, making it a directive to the agency to start investigating families for provision of or suspected provision of care. And then because Texas has an incredibly broad mandatory reporting statute that essentially deputize as the general public, not just counselors, not just social workers, to act as mandatory reporters under threat of criminal prosecution. Governor Abbott then directs the general public to report individuals suspected of affirming their trans children to DPS, which is a protective services agency. Even I have to say I am incredibly pessimistic person. For whatever reason, I still thought these were just primary week political posturing moves by these two individuals who are known to do that. I thought they had no effects by virtue of their respective authorities as attorney general and governor, but the agency took it upon themselves to start investigations within a matter of days. And so within five days of the governor’s directive to the agency, we were hearing from families who had Child Protective Services workers showing up at their door for no other reason than the fact that they had a trans kid. And so we immediately had to file a lawsuit. This was terrifying. People were calling me in the middle of the night saying, Do I have to leave the state? And honestly, I couldn’t say no. I mean, this was me and it was my kid. I would leave the state because I’m not about to live under these conditions. And the reality was that individuals who were the most politically active were the ones getting targeted. And so there’s this huge chilling effect. There’s this huge impact on any expressive conduct, because if you’re all of a sudden out there advocating for your kid, you’re known to have a trans kid. The state’s going to show up at your door. And not only were people living in fear in this way, hospitals started stopping, filling prescriptions. Individuals were afraid to send their kids to school for good reason, for fear that they would be reported. And so that was the terrifying escalation. And it happened so quickly. You know, it’s like we’re talking about bathrooms, you know, in 2016, we’re talking about sports in 2020. And by 2022, they’re taking kids out of their parents homes. And I think that that escalation is a real terrifying temperature check of how quickly things can devolve and how quickly they are devolving. And so that’s the context. And I can talk about sort of what happened in the litigation space, but that’s what they are attempting to do and continuing to do.

 

Leah Litman: Yeah, I mean, like the specter of this cruelty was appalling and something to watch. I mean, this is basically like a genocide or like ethnic cleansing for sexual minorities. Like it underscores some of the same themes we were talking about leveraging the power of the state to like turn people against one another and like terrify individuals out of state and just unspeakable cruelty. You know, since you mentioned it, you know, this was challenged and it made its way up to the Texas Supreme Court, I believe. So he wouldn’t mind just sharing what happened in that case. That would be great.

 

Chase Strangio: Yeah. I mean, and so the reality is, is this is happening. And, you know, as a national civil rights litigator, I usually practice in federal court. There’s lots of reasons why we’re very scared about federal courts in Texas. There’s lots of anti-trans. It’s very just central to their whole existence, anti-trans judges that sit on the Fifth Circuit. So we decided to file suit in state court because that felt like the best and safest thing to do and. We had procedural arguments because they acted outside the scope of their authority. And so we filed for a temporary injunction in the district court, the trial court in Travis County, Texas, seeking to enjoin statewide the implementation of Governor Abbott’s order and the implementation of it by the agency. We were able to get a statewide injunction of the directive. There are all sorts of very confusing procedural things that happen in under Texas State procedure, which I did not know, which is that, for example, an appeal automatically stays an injunction and all trial court proceedings, which, you know, then we had to seek equitable relief from the appellate court to reissue an injunction which we were able to get. But then that was ultimately narrowed by the Texas Supreme Court after about two months. And so we’re now back in a situation where we have an injunction as to our individually named plaintiffs. But what has happened, unfortunately, is the agency has taken it upon themselves. Even though the Texas Supreme Court said Governor Abbott never had the authority in the first instance to issue the order that he did. The agency has now taken it upon their authority to start reinstituting investigations into families. And so we will be filing a subsequent lawsuit trying to get broader relief to ensure that these investigations don’t continue. And the stories coming out of Texas, I have to tell you, and I’ve been doing this for 20 years, are just truly the most harrowing things I’ve ever heard, like kids facing anxiety and feeling suicidal because of the fear of being taken from their parents going to the hospital and then being reported at the hospitals, then prompting an investigation. And that is sort of the set of conditions that people are living under. And yet somehow in the public discourse, we’re still having this conversation about like, are people getting puberty blockers too quickly? It’s like, oh, my God, that’s not the conversation. That’s not the conversation. You know, we’re talking about a population of people that’s under very serious assault. And the reality is that, particularly in the hypocrisy of it, in the moment where there’s such an emphasis on parental rights discourse from the right, that we’re in a situation where you have parents who are struggling to love and care for their kids, who are working with doctors, who are working with their young adolescent children, trying to do right by them and the state coming in and either criminalizing it like in Alabama or criminalizing the parents as in Texas. And it truly is dystopian and terrifying to witness. So we will have a new lawsuit forthcoming. I think we’re also getting exhausted by this and that’s part of it. You know, I think about the ACLU and I think about looking at my colleagues going back to 2017 and like the relentlessness of the immigration fights, the relentlessness of the abortion fights, the relentlessness of these anti-trans fights. We’re all tired. You know, we’re really tired. And that’s scary because if you have to keep filing new lawsuits every week and these lawsuits are going to trial, I’d never even been to an evidentiary hearing. And now all of a sudden, we’re having these massive trials over our existence. It’s it’s intense.

 

Kate Shaw: So these laws, there are a number of them that target trans kids, their families, their parents, particularly around the provision of appropriate health care. There have also been attacks, which you alluded to a couple of minutes ago, on transgender students in schools and in sports and things like that. I think there is a pending challenge to an Idaho law that restricts trans athletes ability to participate in sports. Can you talk a little bit about what that law does and what the status of the litigation challenging that law is?

 

Chase Strangio: Yeah. So what’s interesting about the Idaho lawsuit is Idaho in 2020 passes this ban on trans girls and women participating in women and girls sports and at the time is the only state to pass such a law, and we immediately sue over it. You know, as of now, in 2022, 18 states now ban trans girls and women’s from sports. And so it had been you know, when I was prepping for argument at the Ninth Circuit, the district court, we said this is the only state at the Ninth Circuit. It’s like actually there’s seven states. If when we get back up to the Ninth Circuit because it was remanded on procedural issues, we’re going to have to say, okay, well, actually, it’s like half the country. And I think just that in and of itself is is quite staggering over the course of this litigation, which is still at the preliminary injunction phase. But but Idaho’s law, like many of the others that have passed, bans trans women and girls from sports. And and this is interesting because there most recent outcry over this Ohio bill that passed through the Ohio House that has the sex verification procedure in the bill. Idaho has that same language, but nobody clocked it. And so that’s been love on Idaho since 2020. And essentially, if you think about it, that, you know, we have sex separation in sports and trans people have participated in sports consistent with their gender identity. But these laws create this overlay that allows individuals to object to trans participation. And the only way the state is suggesting that they can enforce it is through the sex verification regime, which then allows the state to come in and say you have to produce proof of your genitals and proof of your internal reproductive organs and proof of your hormone levels, which are not things that happen. And the defense from the state is, well, you can just submit your physical. And I’m like, has anyone ever been to a pediatrician? Like, our kids are not getting pelvic exams and nor are you doing like sort of run of the mill chromosomal testing. And so I think that that is part of the reality here, is that these laws have these incredibly intrusive regimes of enforcement that people aren’t clocking and ultimately have been in effect for two years in the case of Idaho. And the harm is ultimately going to come mostly to cis women and girls and mostly black and brown cis women and girls, because those are the young people who have their sex challenged most significantly. So we have a situation where these sex verification regimes are being, you know, codified. And I think nobody really knows how these laws are ever going to be enforced. But the reality is and going back to what Joshua was talking about, at the end of the day, a lot of this is to create a chilling effect where, you know, people are going to be scared to participate in sports at the outset. Schools are going to be less inclined to include trans people because like all of these other things we’ve been talking about, there’s private rights of action in the enforcement mechanism of all of these new pieces of legislation. And the SB eight style enforcement is something that we saw in a lot of proposed anti-trans bills early in that sort of wave of legislation, some of which had similar bounty provisions where individuals were empowered under the law to sue the trans student themselves if they were seen in the bathroom. And so there’s all of these different ways that enforcement is coming up to obviously limit judicial review, but then also to create this widespread chilling effect of people’s otherwise protected activities. And so the Idaho lies thankfully enjoined, and we’re currently continuing to litigate some procedural questions. But the reality is, is now there’s 18 states, and none of the states that introduced those bills stopped with the sports bills. You know, DeSantis last June signed the anti-trans sports bill in Florida, you know, and then Florida moves on to the don’t say gay bill. And then now they’re banning health care for transgender adolescents and also for Medicaid recipients of all ages. So the escalation is is very clear.

 

Melissa Murray: [AD].

 

Melissa Murray: Maybe this is a good moment where we can sort of step back and think about all of the developments that both of you have outlined and think about how they’re connected to what we’ve seen over the last couple of years with the court. So, you know, the Trump administration was perhaps most successful if they had any part of their domestic agenda. That was really successful. It was in the appointment of federal judges. So they have appointed scads of judges to the lower federal courts. And many of these judges are actively working against LGBTQ rights in the decisions that they’re issuing. And that’s both a product of social movement lawyering against LGBTQ equality. But it also has the ultimate, in effect, of further emboldening that movement and enabling not only these laws, but more laws to come. So can we talk about that? Can we talk about where do we go if the federal courts are inhospitable? Are state courts places where we should be litigating? Should we be focused not on courts at all, but on state legislatures and maybe thinking about how to turn some of these legislatures more blue or purple or indigo or whatever your favorite blue hue, cool hued color is for this. But the federal courts seem to be a big part of this engine, and we need to sort of think about how to work around that. Yeah, I mean, I.

 

Chase Strangio: Think it’s like all of the above. I don’t think we stop federal court litigation, although some days I do wonder and we’ll see how we feel like after June and then after next June. And, you know, we may feel differently. I’ve always been someone who really cautions against the overreliance on litigation as justice, as a strategy for liberation, certainly. But even for reform, I think we can see the limitations. We can see how backlash works. And I think state court is hard, too. I mean, there’s there’s lots of ways where state courts aren’t great in a lot of the places where we’re also concerned about the federal courts. But that isn’t to say we don’t use them. And I think in Texas it was there, it was the right and most strategic decision to file in state court and use state constitutional theories to try to enjoy in the extra legal action taken by Governor Abbott and the agency there. But I continue to think it’s it’s an all hands on deck, all strategies at once need right now, which includes, I think, paying a lot of attention to state legislative work. I’m really dismayed by our failure to do so over the last decade. I mean, the right did it. They took over school boards. They they took over county, they took over state legislatures. And then we are not meeting them there. And I think losing the Texas House fight was really frustrating because that would have been transformative. If you think about how state legislative politics work and then ultimately what the impact is on the courts. So there’s that piece of it. And then, yeah, I mean, I think we’re going to have to be asking ourselves, like in a post real world, in a world where trans health care is criminalized, like what are we going to do to take care of each other? And since it’s pride, you know, I’ll say, like, queer people have long created those systems of care that, you know, we know how to get each other health care. We know how to get each other housed. We know how to fight back in those ways. And that building on that legacy feels incredibly important. And then if we look at the ways in which that was sanitized over the course of the civil rights movement, turning to the state and saying, we want marriage equality, we want inclusion in the military, that that had a cost. But we do have as a blueprint all of the origins of our caretaking outside the law, because people were criminalized for so long and many in our community still are. And so looking at that as one of the ways that we fight back and this time when we look at things disappearing that that many have relied on in the past.

 

Leah Litman: So I did want to offer maybe on a somewhat concluding note, a question or some versions of questions that I’ll pose to both of you, which is and you can take any of the following How do you stay sane? How do you cope? Like, what do you tell yourself to kind of like keep going, you know, after we just recorded an episode on incredibly difficult topics, you know, on cases that have immense consequences for people’s lives, where there is no clear, like, happy ending, just like around the corner, you know, that the next day.

 

Joshua Matz: What I like to recall is that the first pride was literally a riot. In New York, right? It was it was a it was an actual, honest to goodness riot against a campaign of police and public terror that sought to subordinate and crush the LGBTQ community. We’ve come a long way since then. When I married my husband beneath a harbor, surrounded by, you know, our friends and family with a federal judge and a rabbi presiding, I honestly thought to myself that this is nothing short of a miracle. And I continue to feel that way now that, you know, we’re expecting our first child to live at a time. And in a society where we can go about our lives safely and flourish. It’s it’s remarkable, you know, and that’s worth observing that, you know, there is there has been a lot of progress. But and this is important, that progress has been uneven and it remains so right. In some parts of the country. It’s better now than it ever has been before. And many people will celebrate pride this month in the most fabulous and righteous and awesome ways. Right. As the younger folks like to say, it will be fire, you know. But in other parts of the country, it’s a truly grim and terrifying time. And people will fear for their families, for their children, for their education, in some cases, for their very safety and lives. And it’s important and it’s hard to hold all that together in our minds simultaneously as we think about what it means to celebrate pride and to think about the path ahead and why we’re doing what we’re doing. And frankly, as a lawyer, what makes it all the more unnerving is that the age of the Kennedy court is over. Right. The idea that there was some ultimate safety net for at least some of these issues just isn’t there anymore. The federal courts writ large, cannot be trusted to protect, in some cases, even the most fundamental of rights, including rights specific to the LGBT community and also beyond it. And living without that that safety net. I mean, Justice Kennedy could be hard to predict, but you had some sense that there was there was a degree to which he would not let things get out of balance, or at least that you could hope. And we don’t have that anymore. And so, look, sometimes the court will protect rights like in the Bostock case. Sometimes they’ll reject LGBTQ rights claims in cruel and callous terms, as we’ve seen, especially from the Fifth Circuit lately. And sometimes, maybe most alarmingly, they will affirmatively prohibit anybody else from protecting LGBTQ rights. Right. And Masterpiece and Fulton 303 Creative. That line of cases is about preventing states or the federal government or localities or anybody else from erecting protections designed to allow LGBTQ people to go about their lives in ways that just protect their basic dignity and their ability to participate in society and education and in employment and in the marketplace. And so while it’s obviously important to fight in other fora and to think about what we’re doing in those terms, you know, part of what makes it so difficult now is the risk that the Supreme Court is an ultra bully set against the possibility of achieving some of that progress and some of that equality, which is all to say. And I think Jay said this earlier and he said it well, that this is a precarious moment. You know, things can turn dark quickly for some people. They already have. For others, it’s happening even as we talk right now. For others, it may never come or it may not come any time soon. And obviously there are geographic, racial, socioeconomic and many other disparities shot through all that. And so this is more of a personal philosophy than it is some kind of big point about the law. But, you know, for me, in living through a time like this, you know, we need to find joy and celebration and love and happiness where we can we should not feel guilty about it when we have it. We need to treasure what we’ve got and live our lives and flourish. But at the same time, we need to maintain the sense of empathy and community and fight that allows us to be there for each other and to see how our stories and our destinies are connected, and to keep trying to make lives better for ourselves and each other, even when it sometimes feels like things are stacked against us, and even when it sometimes feels like the Supreme Court is stacked against us, because at the end of the day, that’s all there really is to do. And you know that that’s at least my philosophy when I wake up in the morning and I feel very lucky to practice in the company of such extraordinary colleagues and to think of there being such tremendous allies out there is Jason, Leo, Melissa and Kate and all three of you and maybe many of the folks listening to this. You know, like I said, you know, all we could do is do our best. And if the Supreme Court wants to do the wrong thing, we have to absorb that and roll with it and keep trying to make life better for as many people as we can.

 

Chase Strangio: I sort of start and end in the same place as Joshua, which is that we need to find our love, our joy, and that there’s so much beauty in that. And when I litigate these cases and these trends and these in the context of these anti-trans bills, so much of what the state is arguing is that your community is inherently. Unhappy and and that there is something bad about being who you are. And at the end of the day, like I’m a queer supremacist, like I’m just like, I love being who I am. I love my community. I love being trans. And so, you know, part of what we’re building is this reminder of the beauty of sort of art, self-determination. So it is so beautiful to me that there are five year olds and ten year olds who are so sure of who they are that they’re willing to stand up against. Not just that, you know, their immediate communities, but their their governments and say, I know you don’t believe me, but I believe me. And I did not I couldn’t do that when I was that age. Like I could barely figure out how to get myself out the door. And these are kids that are going to testify in state legislatures and proclaim their truth over and over. And I mean, that is incredibly beautiful. And I think about, you know, in Texas, we have we have politicians trying to ban kids being near drag queens. And that’s coming alongside all these images of drag queens reading to young people and being joyful. And if people are so terrified of our joy, of our freedom that they want to hurt us, then we will just keep being joyful and free. And that, I think, is, is the counterpoint. And and the other thing I want to echo from a Joshua set is it is a privilege to do this work, and it’s a privilege to do it with so many people in solidarity. And I think about like both Joshua and Leah have been instrumental in helping us litigate different Supreme Court cases. Being in conversation is part of my resistance, you know, changing the discourse and naming the power dynamics. And so to be able to be in these spaces and learn and grow in my intellectual capacity, in my capacity as an advocate and then as a capacity as a community member, feels like a way that we move forward. And to me, it’s like that’s how I celebrate pride with my queer supremacy, but then also with my joy and love and continued self-growth, which so many young people are modeling every day. And that’s just incredible to see.

 

Melissa Murray: Queer supremacy seems like a perfect way to end Pride episode. Right?

 

Leah Litman: I agree. I agree

 

Kate Shaw: I just also want to say though, the two of you are inspirations like as people, as lawyers, it is such a privilege to have you on our podcast. Please come back soon.

 

Leah Litman: Thank you so much for all of the wonderful work you do. Listeners, when you like hear this episode, please share the love and the joy of make you know all the work that Joshua and Chase are doing. Elevated because it is so important and so wonderful to see. Thanks so much to Joshua Matz and Chase Strangio for joining us on this special pride episode of Strict Scrutiny. More of your favorite Crooked Media shows are making Pride episodes. You can check them all out at Crooked Media dot com slash pride. This year, Crooked Media’s Pride Fund is supporting three incredible organizations that provide community-building, gender-affirming, and lifesaving resources to the queer and transgender community. Visit Crooked Rt.com Slash Pride Fund to donate and learn more. Strict Scrutiny is a Crooked Media production. Hosted and executive produced by me Leah Litman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production Support from Michael Martinez, Sandy Girard, and Ari Schwartz. Digital support from Amelia Montooth and Summer Intern support from Anoushka Chander.