I will say, just for myself, and I am very hesitant to announce things as transphobic without having an opportunity to try to have conversations. And that’s where I am right now. That’s why you’re here right now. I’m here with you. I want to understand where people’s anxieties are. I want to find places where we might agree. What actually defines transgender identity? Our transgender rights still the next frontier of civil rights? “Effective immediately, transgender Americans may serve openly.” “The New Zealand weightlifter Laurel Hubbard is set to become the first transgender athlete to compete at the Olympics.” “Kataluna Enriquez made history as the first openly transgender woman to win the competition.” Or are they the place where social liberalism has finally hit a limit? And his peace available in this culture war? Or is the chasm just too wide? My guest today is a lawyer for the A.C.L.U., a trans rights activist and the first transgender person to argue a case before the Supreme Court. Chase Strangio, welcome to Interesting Times. Thank you for having me, Ross. It’s a pleasure. So we’re going to talk about where the fight over transgender rights is going. We’re going to try and get into some deeper philosophical waters. We’ll see how that goes. But I want to start with your own legal work, because you are a lawyer on two of the biggest Supreme Court cases on transgender rights, one in 2020 and one in 2024. Right? Correct. Yes. And so in the first case, you were on the winning side. In the second one, you lost. Both were 6-to-3 decisions. And so I thought we’d start by just having you talk through both of those cases as a way of grounding our conversation. So the first one is Bostock v. Clayton County. What did that case ask the Supreme Court to decide? So Bostock v. Clayton County, Georgia was actually three cases that came up to the Supreme Court together. And the facts in those cases were simply that two gay men were fired from their jobs when their employer learned that they were gay. And one transgender woman was fired from her job when her employer learned that she was trans. And by the time the cases got to the Supreme Court, the only question was whether or not Title VII’s prohibition on sex discrimination — Title VII of the Civil Rights Act — included prohibitions on discrimination in employment because someone is gay or transgender. When it reached the Supreme Court, it was a question of pure law, of whether Title VII covers discrimination against LGBT people. And our argument was that it is sex discrimination to fire someone for being gay, or to fire someone for being transgender. And the argument went, if a man comes to work and says that he married Mary over the weekend, and that’s totally fine. But if a woman comes to work and said she married Mary over the weekend and is fired, but for their sex that the firing took place, that is a form of sex discrimination prohibited by the statute. Similarly with transgender status, if an employer says, “Everyone named Mary, come to my office.” And there’s four Marys at the office, and then they say, “Mary, who had a birth-assigned sex of male, you’re fired because you can’t come to work as Mary.” And the argument it was because of sex, that is prohibited under the plain language of Title VII. And in a 6-to-3 ruling written by Justice Gorsuch, the court ruled in favor of the employees who had been fired. And so, Gorsuch and John Roberts, both joined the decision. So it was the four liberal justices who you would expect to be sympathetic to those arguments. And then the two conservative or right-leaning justices. Why do you think they both joined, and Gorsuch, obviously wrote the decision. So we litigated that case using a straightforward textualist theory that we thought would appeal to Justice Gorsuch, who is an avowed textualist. And that went basically: it does not matter what Congress intended in 1964. In terms of the applications of the law, what matters is the words that they used. And they said, no employment discrimination because of sex. And as commentators have often talked about with respect to this case, the shadow justice, In the case — who was obviously not in the case because he had died — was Justice Scalia, because both the majority and the dissent were trying to channel who was approaching this case most like Justice Scalia. And Justice Scalia had written a famous opinion called Oncale, in which he had said that same-sex sexual harassment is prohibited by Title VII, even if that was not one of the intended consequences when Congress passed Title VII in 1964. And so our argument was, look, look at the words of the statute. No discrimination because of sex. You don’t have to decide what sex means. That was not what the case was about. We said, whatever definition you want of sex, the answer still holds that these individual employees were fired because of their sex. And I think that appealed to a textualist approach to legal interpretation. Justice Gorsuch went through methodically. The Supreme Court’s cases interpreting Title VII. And this fit, I think, squarely within it just to stay with the details of the would be textualist decision in the case of the transgender person. It’s the idea in that argument that the court accepted is that someone who is born biologically male and goes to work and presents as female is being discriminated against because someone who was born as a biological female could present as female with no issue what essentially like manifestations of transgender identity are covered. Well, I mean, in a sense, it’s not even necessarily hinged to transgender identity. What it’s hinged to is, can you do something that someone of a different sex could not do. And so it could be, if I wanted to go to the A.C.L.U. and say, I’m Chase and the A.C.L.U. says no, because you were assigned female at birth, but someone assigned male at birth could come to the A.C.L.U. as Chase. That would also be an example of sex discrimination prohibited by Title VII. I don’t have to declare a transgender identity to for this logic to apply in Amy’s case, the case that was at the Supreme Court. She, in essence, had worked for this funeral home for many years and had written a letter saying, this is who I am. I have struggled with it. I have thought about it for a long time, and after a vacation, I’m going to come to work as Amy, following the dress code for women and using the name of Amy. And that was the manifestation she articulated. But if she didn’t say she was transgender and she had said, I want to come to work looking less like a traditional man. And they said, well, you can’t do that because of X. I think that also articulates a theory of sex discrimination that Title VII recognizes. So it wasn’t actually hinged to sexual orientation, or transgender status as such. It was just recognizing that in the circumstances before the court, the individuals were fired because of their sex. All right. Now let’s go forward and talk about United States versus Skrmetti, which was argued last year and decided just this year. This was presented to a slightly different but similarly divided Supreme Court. It was a challenge to Tennessee’s ban on certain forms of care, what gets called gender affirming care for transgender adolescents. What was the argument before the court there Yeah, so as you note, there’s a Tennessee law at issue here. And the law prohibits puberty blockers and hormone therapies only when they’re prescribed to treat gender dysphoria and transgender adolescents. And if I could just take a brief moment to say what gender dysphoria is, just because I think that can be helpful for understanding the case, since we have both the legal doctrine and then the science that’s underpinning a lot of it. So gender dysphoria is a condition that is characterized by clinically significant distress that flows from the discordance between a person’s gender identity. So the core of their understanding of their gender and their sex assigned at birth. And one of the ways that this condition is treated is through medical interventions that aim to minimize that very serious distress. And when minors are treated with these medications, it is done with the consent of their parents and the recommendation of their doctors. And so in Tennessee, these were medications that were available to treat gender dysphoria in both adults and adolescents. Tennessee passes a law that categorically bans these medications, and that leaves families like our ultimate clients in the case, without access to medical care in their home state for their minor children. And we sued Tennessee and we made two legal arguments. The first was that these bans on medical treatment, because they hinged the prohibition on the medication on an individual’s sex violated the Equal Protection rights of transgender adolescents. So a similar argument to the one that we were talking about with respect to Bostock. And then we made an argument on behalf of the parents that these laws infringed upon the fundamental rights of parents to direct the medical care of their minor children. And this would be a right that is found in the substantive component of the Due Process Clause of the 14th Amendment. And those were the two claims that were raised in that case, by the time it got to the Supreme Court and what would become United States, versus only the equal Protection claim was before the court. Just to be clear, when we’re talking about care in this case for gender dysphoria, we are specifically talking about drugs that delay or halt puberty. So the pubertal suppressants, so the medications that halt puberty right after the onset of puberty and then hormone therapy. So after some whether it’s a 16 or a 17-year-old who is then receiving hormone therapy to undergo either a typical male or typical female hormonal puberty, and those were the two sets of medications that were at issue in the case. And the way the Tennessee statute drafted the prohibition was to say that medications like these can be prescribed only when they are consistent with sex. And so when we were at the Supreme Court, our argument was focusing on that language as a sex classification under the Equal Protection Clause. And you lost. We did so. And you lost the two justices specifically who had written and joined the decision in Bostock. I guess, can you gloss in a completely fair and even handed way why they ruled the way they did Yeah I mean, so I guess I want to say first that it was a really hard decision to decide what to do here. When we lost at the appeals court, the reality for our clients was devastating. These were parents who had watched their kids suffer, who then had found a medication that was helping them. And I think everyone in the case agreed that this was a context in which there are kids suffering. And so then the disagreement is, well, what do you do about it. And the parents, in this case, our clients found something to do about it. They worked with their doctors. They learned a lot about the condition. They waited years in many cases before doing any interventions, and so we were watching health be taken away from families across the country. And at the same time, we were looking at options in which you accept a series of losses and care remains banned and percent of the country. Or you go to the court and say, even if you think there’s a justification for this ban, you should agree with us that it’s based on sex. Because unlike in Title VII, there’s a two part inquiry. So this was under the Equal Protection Clause because it was the government. The first part is what is the basis by which the government is making a distinction. Is it based on sex, or is it based on something else. And if it’s based on sex, then it just means the government has to carry their burden to show that use of sex is justified. And this is what’s called the levels of scrutiny under the Equal Protection Clause. So our main argument to the court was you don’t have to decide if Tennessee’s law is constitutional or unconstitutional, but we want you to reverse the lower court’s decision that it wasn’t based on sex. So that was ultimately what we did and what we tried, and they didn’t agree with us. And the reason that they held that the law was not based on sex was that they thought that it was a classification based on medical use, which we wouldn’t dispute that it is also a classification based on medical use. If you are prescribing puberty blockers for early onset puberty, you’re treating something different than if you are providing it for gender dysphoria. And you are just in these cases, you are prescribing it to both male and female children. It didn’t say you can only prescribe it to male children, or you could only prescribe it to female children. That’s right. But I think that I would say that’s not the reason we lost, although that was part of. Why did you lose. But I think it’s important to explain why that’s not the reason. Why is because the equal Protection Clause does protect individuals. So there are examples where the court has said, peremptory strikes when you’re striking jurors, you can strike as many men or as many women. But if you’re doing it based on sex, it’s impermissible. So it’s not a group based protection, it’s an individual one. And we thought and I think we were right. The court obviously disagreed that the medical use imposed a sex classification, that John DOE, our client, couldn’t get testosterone because his sex assigned at birth was female, and he could get testosterone if his sex assigned at birth was male, even if there are different medical purposes, in some instances, there are often the same medical purpose, which is to prompt a male puberty. And you look skeptical. Well, I don’t want to go too far down the rabbit hole. But it is a treatment for a different condition. But what makes the prohibition operative is whether the treatment is inconsistent with a person’s sex or consistent with a person’s sex. If two people named John go to the doctor’s office and they say, I am a boy and I’m not developing my puberty in accordance with my peers. I need testosterone. If you go in and you say, I’m developing my puberty to reflect a sex that I do not believe myself to be don’t get it. But those seem different things. Well, and so. And the court thought that if you changed the sex, you changed the condition. And that was dispositive. Our view was that if you hold constant the purpose, then you change the sex and the outcome is different. So yeah, we’ll save we’ll save the rabbit holes for a moment. Why just whether as a legal matter or a political matter. Why do you think this kind of argument persuaded two conservative justices in the first case and not in the second. Well, I mean, I think there are several reasons. I think the first reason, just in terms of the legal paradigms, the first case was a statutory case. This was a constitutional case. The interpretive frameworks for the Constitution are different. Usually the court recognizes that something that is sex discrimination under Title VII would be sex discrimination under the Constitution. And in this context, the court disagreed with our analysis of the logic of why it was but for an individual sex, and they agreed with us in the Title VII context. I do think, as often happens, some of the atmospherics and some of the anxieties that animated this litigation that animates these conversations made their way into the framework Yeah I mean, that’s part of what I wanted to ask you about those. Do you feel just generally the political context of these decisions changed in the first case in Bostock, you’re talking about issues related to transgender adults, and in the second case, you’re talking about issues related to minors. It seems like to me that a lot of the shift in the politics of this issue over the last four or five years is connected to that shift and how Americans feel about adult decision making versus children and teenage decision making Yeah I mean, I want to disentangle the political from the legal. Obviously they are connected as a doctrinal matter. The fact that it would be a minor versus an adult wouldn’t change whether it was based on sex. And that was one of the things that we raised for the court, which is by this logic, if Tennessee’s law had banned this care for adults, that would also be O.K. And so that was something that analytically was important. I also think something that was lost in this is yes, these are minors. And we want to be able to have conversations about how to best protect and care for minors. But two important things that are true in this context. One is it was their parents who were making decisions. And we as parents have to weigh all sorts of questions when we’re making medical decisions for our minor children, which we do, of course, in conversation with them and their doctors. And then the second thing that I also think is important that was lost here is that these bands, these categorical bands, they did not leave room for conversations. They did not leave room for more research. Last question on this legal environment, because you mentioned already that the decision to go to the court with this case, knowing you might well lose, was a difficult one. After the ruling was handed down, there was a lot of argument and discussion, including an essay by one of my colleagues, Nicholas confessore, about whether this had been a huge mistake for the transgender rights movement. You yourself were criticized by a number of people for these decisions. I’m just curious if you can say a little more about whether in hindsight, you think knowing what you know now, would you have made the same decision to take this case all the way to the court. Well, so I guess the first thing I want to say is it certainly wasn’t my decision alone. And I think it’s really important because there are clients and there are many, many people who are involved in assessing what we do in any given moment. And I simply can’t wield the power to make such a decision as this. And at the same time, I will say that in November 2023, when we made the decision to collectively go to the Supreme Court with this, that I think that there were more people who were with us at that time. It was by the time it got to the court, I do think things had changed in the public. But when we were litigating these cases in the lower courts in 2022 and 2023, seven district court judges, including three appointed by Donald Trump, had struck down these laws. And that was the context. And then when that shifted and these bands started to go into effect, families that had never left Arkansas or Alabama or Tennessee uprooted their entire lives to care for their children, to try to find medical care. That felt like a dire set of conditions. And I think it was the right decision then, because the reality as well was there was already a circuit split. It was going to the court. And even more so, questions about sports and questions about bathrooms were also about to get to the court. And so it was a hard calculus and a chessboard of harm and moving pieces. And I just I don’t think in any of these contexts are there easy decisions. And I wish that we had more tools now to fight back against the kind of attacks that we’re seeing from the Trump administration that were very much blunted by this decision. And also, I think it was important to fight back from the lower court decision, which, importantly, was much broader than the Supreme Court’s decision. Because the Sixth Circuit decision that we appealed from had also cut off a lot of avenues of advocacy that the Supreme Court did not like. Give me an example. So one example is that the Sixth Circuit had said that discrimination against trans people by the government does not warrant any special scrutiny that you can just defer to the legislature in those contexts. And the Supreme Court said, we’re not going to reach that question. And the lower court also said that Bostock, the Title VII case, this only applies to Title VII. And the Supreme Court said, we’re not answering that question about the scope of Bostock’s logic. What would a larger scope mean. A larger scope would mean and we’re going to be at the Supreme Court again. So they may answer some of these questions. So a larger scope would mean that if a trans kid is kicked out of school for being trans, there is no constitutional claim potentially and no Title IX claim. So Bostock applies to employers. And so the open question is issues of housing, the military housing, education, and so on. Those are still those are still in play. O.K O.K. That’s useful Yeah, we’ve talked a couple times about the idea of a changing political climate, but I wanted to just pause for a minute and talk about definitions for listeners who may not have deep experience with some of these debates. Just a basic question from your perspective, what does it mean to be transgender. A transgender person is someone with a gender identity, so their core understanding of their gender that differs from the sex that they were designated at birth. What does it mean to have a male or female sex assigned at birth, as distinct from being male or female in biological terms. What does that distinction mean. I guess to me, what that distinction means is at birth, when our children are born. By and large, a doctor looks at their genitals and says, you have a penis. We’re going to put em. You have a vagina, we’re going to put f. And that is one. The external genitalia are one facet of the biological components of sex. And there are others chromosomes, hormones, secondary sex characteristics. And I would include within my understanding of Sex How we see ourselves. So these are different aspects of our biological sex. And then what differs from the sex we are given based on our genitals at birth. And whether we are a boy or a girl or a man or a woman, I think is most of the time we see ourselves exactly as the genital check confirmed most people do. And then that there are some of us who. There’s something just fundamental and deep about the fact that wasn’t the right way of seeing us. And so I would say a man or a woman is someone who understands in their core that they are a man or a woman. Is there a distinction, though, between is there a distinction between gender identity and biological sex, or is this just a continuum. I would say there’s a distinction. Distinction so I do think the way I understand it that our gender identity does. I mean, it’s in our bodies. It’s in our minds has a biological component. I think research suggests that there may be some fetal hormonal exposures that may get a biological phenomenon. But I’m not saying it is biological sex. As such, I do think that oftentimes the most salient biological components of our sex diverge from our gender identity. And those things are the disconnect that makes someone trans. But when they do, you wouldn’t say this person has a person who the doctor looks at them and says they have a vagina. They’re a girl. You wouldn’t say that person is biologically female but has a male gender identity. You would say they are just male, full out. And there may be some tension between that and certain elements of their biology, but it’s not. There’s no split. I would say that. I mean, look, I actually am fine saying that I’m honestly, I’m not trying to entrap you in something. I’m very interested Yeah no, no, I don’t feel entrapped. I don’t feel entrapped. Understanding the kind of categorization. Because I think. And we’ll get to this in a second. I think it’s relevant to first of all, legal arguments in terms of what I mean, let me put it to you this way. So a core claim of the transgender rights movement, is that transgender identity deserves legal and constitutional protection. It deserves legal protection in the same way that one sex does and one’s race does deserves constitutional protection the same way that one’s religion does. But these are all different kinds of things. Like race and sex are seen as more about biology, ancestry, and so on than religion is. I want to understand where you think transgender identity or gender identity, however you want to phrase it, fits into that landscape. Well, so I guess I think it’s important to separate what we’re talking about as a matter of law and what we’re talking about as a matter of medicine, because I do think that legal prohibitions on sex discrimination include transgender people. Full stop. And that what we have seen in the last 10 years is the emergence of a legal notion of biological sex that has come into the law that was New, and the displacement of sex as a legal category with biological sex as a legal category is a New phenomenon. It comes in 2016, at the beginning of conversations of about whether trans people should be able to use the bathroom that matches with our identity. So there’s the question of how do we understand sex in the law. And where does transgender status, where do transgender people fit in with that. Then there’s a medical scientific question. Can I pause before 2016? Do you what. How did people think about sex as a category that was distinct from biological differences between men and women. What do you mean by that change in 2016? I think what we saw, what we thought of as sex as a category was, in essence, and this is in the context of civil rights and constitutional law that it is just impermissible to discriminate against someone because of their actual their perceived, their sex, sex, or their sex stereotypes. So it didn’t necessitate defining sex. The Constitution, our civil rights statutes also don’t define race. You can be discriminated against based on your actual or perceived race. You could be discriminated against because of your actual perceived sex. And so in that sense, if we’re talking about the paradigm that prohibits discrimination, it didn’t necessitate defining sex. And so we start to see this impulse to define sex for purposes of sorting and excluding trans people, that comes in 2016. In that context, I think that the definitions we see in the statutes that emerge then say biological sex. And I will say it changes first in 2016, it says biological sex is what’s on your birth certificate. Then I think we start to see definitions that are more about genitals. And then we start to see definitions that are more about chromosomes and reproductive anatomy. And that changes over time over the last 10 years. So that’s the law. And I think that’s obviously where I’m most focused on how these terms take on meaning. So earlier, we were talking about gender dysphoria as a medical psychological term for the experience of feeling like you are in the wrong body. Does that imply, then, that transgenderism should be perceived primarily as a medical psychological condition in search of treatment. I think that transgender identity and transgender people should be understood based on the definition of having a gender identity that’s different from sex at birth. I think that there are for many transgender people, particularly when you cannot live in accordance with that gender identity, a medical and psychological set of needs that emerge to bring your body, to bring your outward expression into alignment with who you know yourself to be. But presumably, if tomorrow the state of Tennessee presented medical and scientific evidence, this is just hypothetical, right. But presented medical or scientific evidence that there was a treatment, an alternative treatment for the experience of gender dysphoria that reconciled the person’s psychology to their natal sex, the sex on their birth certificate, their genitalia, or whatever else. Well, I’m curious what you would say, but I’m very skeptical that you or any other transgender activist group would say, O.K, that’s great. We’re going to prescribe this treatment to teenagers expressing gender dysphoria. You would say, well, that treatment works by suppressing who they actually are. So I. So the treatment is aimed at the distress. And I would say for me that if there was a treatment tomorrow that said, you could take this medication and you could change your gender identity or I guess it depends on the premise. If it could change how I understood myself, then it would be a question do I like being a transgender person and having this discordance, or do I want to go and have a different experience. I think the premise suggests that you could change that gender identity, and then you’d make a decision about how it is you want to live in the world without distress. I wouldn’t say nobody should have access to that. If the premise is that you can make a decision about how to live most safely and comfortably in your body right now, what we know is that forcing people to live in a way that doesn’t align with their gender identity does cause significant distress. And one medical incentive medical interventions, that has shown to significantly reduce those symptoms of distress, anxiety, depression, and suicidality are these hormone interventions that Tennessee has banned. When getting back to the question of what is the nature of transgender. I guess I feel like we can’t one reason that this issue is so fraught is that it’s very hard to escape that question. Because you move back and forth, we’re both moving back and forth between language that seems appropriate to something that would be characterized as of psychological disturbance in search of a cure and language that would be appropriate to the description of a persecuted religious minority or women or men discriminated against unjustly. And I think you want to reconcile that tension by saying that there are these symptoms of distress, and there is this medical treatment for those symptoms that works by effectively confirming biologically the psychological experience. Well, I wouldn’t say it’s confirming, because that suggests it has a role in reinforcing what the experience of one’s gender is. I think it is more aligning one’s outward appearance with their understanding of themselves. But it’s more than appearance, surely. It is your hormonal experience. Your biochemical experience, I think we can both agree, is very hard to separate from your psychological experience. So, I mean, I don’t want to be too personal here, but can you talk about your own experience a little bit or Yeah no, no. Maybe that’ll help make it more concrete Yeah and then I also I do think it’s important to talk about, how we’re conceptualizing it in law and how we’re conceptualizing it in medicine. But my experience is that I had no idea what it meant to be transgender. Growing up, my first encounter with a transgender person was boys don’t cry. The film about Brandon Teena, who is murdered, Hilary Swank with Hilary Swank playing but Brandon Teena and that however. How old were you. How old were you. Oh, gosh. I was born in 1982, so this is around 17 Yeah and my experience growing up is one of alienation, self alienation from my body. But I did not have words for it. I didn’t have language for it. And in my recollection of my childhood, I do not recall ever thinking, oh, I am not a girl. I just knew I was unhappy, I was in therapy. I did all of the things that you’re supposed to do and had parents who loved me and tried to support me. And I then continued continue to have this sense of distress and begin to look for more help as a young adult. So go to therapy, talk to people. And what ends up happening is I get diagnosed with gender dysphoria. I have a therapist who’s helping me work through those feelings in my early, early 20s. And I’m graduated from college. I work at a law firm. I am trying to pursue my life, but I’m being held back by the sense that I can’t look in the mirror. I don’t want to shower. I don’t want to go outside. And throughout this time, I should say there’s no real access to the internet, there’s no social media, and I am so you are as a teenager like, yeah. So just gender nonconforming teenager and young adult who then comes out as gay and is in and still just feels this sense that it’s not a oh, I’m uncomfortable with my body as such, but my body is the wrong right body for me. But I don’t have the language for it. I think that ultimately what ends up happening is I have a realization through lots of therapy that there is something called transgender that fits my experience, and that I start to then think about how to align my body with my sense of myself as male. And my experience is not representative of a lot of people, I’ll say, because I do, as maybe is noticeable. I don’t identify, I don’t express myself in a very masculine fashion. I try in little ways, but I recognize that I’m going to have a androgynous appearance. That is part of how I see myself. But then I did spend time in my early 20s having access to surgery, taking hormones and starting to feel like everything in my life that I had tried to hide away, that I had tried to get rid of what made sense. And I was able, I was able to go to law school. I was able to become a lawyer that went into court, things that seemed absolutely unimaginable to me before. And recently, when my mother was selling the House that I grew up in, and I went back and was packing things up, I found some old journals, and every single one of those journals had these just painful memories that I just kept saying, I don’t understand why I’m not a girl. I don’t understand why I’m not a girl, and I can’t explain it in words. These visceral, core feelings, just like many things that people don’t understand until they feel them inherent to who we are. I’ve talked to members of my family who have ADHD, who are trying to explain to me what it’s like to be in their brain. And it is. I cannot imagine it. And the best I can do is recognize that I don’t understand it, and also try to support them in how they navigate in the world. And so that’s a little bit how I think about it or any other aspect of our lives that we can’t articulate so well, but feel so core to who we are. And when we look back there, there’s all this evidence of where it was in things that we didn’t have language for. Can you just say something about just on the point about medical interventions, how you felt the connection between that sense of psychological change and acceptance and making hormonal and biological changes to your body Yeah I mean, and again, I’m saying this from my experience, everyone’s is different and I. I can. The best I can say is it felt like coming home. It felt like resolving a long standing period of homesickness and then finally getting into your own bed. And that enabled me to feel like there was a place for me in the world that I didn’t feel before. And I had a very vibrant, full life, but I could not occupy my body. And so that experience then allows me to go to law school, have a family, become a father, do all of these things that I think I always wanted. But if you’re alienated from yourself, it’s a lot harder. And I’ve seen that story with many people in my life. And then I’ve heard it from my clients about their they’re kids. And I understand why people feel nervous when it comes to kids. I have a kid. I get very anxious about bringing my kid to the doctor and not understanding what information I’m getting back. And I also think that we as parents, do a lot of work to help our children grow and thrive. And I think my clients who made these decisions for their children also did that. So let’s talk about that difference for a minute, because I think that the story that you just told or what you just described is something the acceptance of narratives like that, I think, has been, in certain ways, at least partially accepted in American life. The language has changed. People would say sex change operation, not gender affirming care and so on. But the idea of some form of male to female or female to male transition in adulthood as a form of psychological reconciliation goes back decades in American life in some ways. And certainly by the time you get to the late 2010s, 2020 and so on, I think there’s just widespread acceptance in American life that this is a free country. People have these kind of personal experiences. They make these kind of choices. You might be skeptical of those choices, but they are things that we make space for in American life. From my perspective, what changes in a big way, again, starting in the late 2010s and then continuing into the present is that the argument from activists becomes that these kind of treatments and experiences should be available not just to 20 somethings and 30 somethings and 50 somethings and everyone else. But to children and teenagers, minors. And over that same period you get an absolute explosion in transgender, non-binary, gender non-conforming self-identification among kids and then offering treatments that are let’s say, debatable in their reversibility and that have pretty profound effects on your literal body fertility, all of these things that just introduces incredible levels of danger of making the wrong decision. I mean, and I know that is the view of many people and let me offer a little bit of a different perspective on how this emerges and some of the things that you’re pointing to. Because I would not say that the beginnings of using these medications to treat adolescents comes from activists. I think what we see is that endocrinologists who are treating adults are starting to see young people coming into their clinics and trying to figure out whether or not as often happens with medicine, and you have a treatment that works for adults and you wonder if you can start to use it in an adolescent population. And it emerges through the medical community trying to provide treatment for young people that are coming into their offices suffering. And this happens in Europe first and then in the United States in the late 90s and early 2000. So it’s not that you have this all of a sudden happen in 2010. And many of those clinics start to see very significant improvements in the populations that they’re working with and they continue to want to study them. And we start to see the rise of gender clinics in the United States that are treating young people, it should be said, a fairly deregulated medical atmosphere relative to Europe. The US generally, I mean, yes, I think there’s a lot of differences between the US and Europe. Absolutely And one of the ways that medical care in the US is much worse than in many parts of Europe is that we don’t have good access to mental health care. And I submit that’s a very serious problem across the board, especially in rural communities and poor communities. And these gender clinics are trying to account for that. They’re trying to rather than have people go into either more underground spaces, more dangerous spaces, combine these multidisciplinary teams that are aimed at treating young people in a way that is supporting their mental health, that is, understanding any co-occurring conditions and ensuring that their parents understand all of the risks and benefits of any potential intervention. And that is my experience in learning about these clinics, which I did not really interface with until care was started to be shut down in 2021. But studying them, I see them as very highly sophisticated, well-funded research clinics at institutions like Boston Children’s Hospital UCLA. And so you have that model that is emerging. And I agree that it is a model that you did not have a lot of. And now we have a lot more of in the United States. And they are meeting patients’ needs. I don’t see the causal connection being we’re providing this care. So there’s more trans kids I think that. Oh Yeah I wouldn’t say it’s necessarily a connection of the clinics themselves. Providing the care. I think that there is a broader cultural shift that it would take a different argument or conversation to unpack. But that there is a certain kind of social cascade that follows from honestly follows from debates about same sex marriage and so on, where gender identity, questioning your gender identity thinking about your gender identity as a distinctive thing in the context of adolescence and puberty and so on, just becomes a broad cultural phenomenon. And then it’s the combination of that cultural shift intersecting with the existence of these clinics and these kind of again, very concrete medical interventions. That creates a lot of anxiety. So if you’re a parent, right obviously you’ve represented parents who are deeply committed to the idea that they are doing the absolute best thing for their gender nonconforming or dysphoric child, right. I have known parents, liberal parents, progressive parents in the context of the last five or six years, who have a child who is gender non-conforming or self-identifies as trans over some period of time, who are also trying to do the best thing for their kid, but are living in a state of deep fear and anxiety that if they say the wrong thing, this child will be persuaded by the cultural atmosphere to do something, to undertake a set of medical interventions that are potentially irreversible and have lifelong consequences. And I’m curious what you think about those fears. Well, let me so I think a few important points. One is that a very small percentage of people who are transgender ever go to a gender clinic. Then the number of people who then have access to treatment is even much smaller. So we have a significant amount of gatekeeping here at many levels. Some people don’t recognize that they have a dysphoria they may identify as transgender. Never go to the clinic. Then within that you get smaller and smaller into the actual number of people who then are diagnosed with gender dysphoria and assessment and then assessed to have a need for medical intervention. And then I also want to be clear that many of these young people are not experiencing dysphoria. For the first time at puberty. There are many young people who have a consistent and persistent in presentation and insistence of themselves as girls who are assigned male at birth from very young ages, including in families where the parents have no idea what it means to be transgender and they are learning about it over time, after many years of confusion about what is going on with their child, I think that I will say as a parent, I understand having all sorts of fears about what my kid is going to see on social media, what is going to happen at school. And I think we’re primed to have a lot of anxiety about our children, and I personally feel that a lot of the anxiety I have about my child is very reasonable. I also don’t think that there is an incentive for people to become trans in the world. This idea that if the parent says the wrong thing, the child will then go become transgender. It’s not something I’ve seen borne out. I wouldn’t say that. I think that’s a slight oversimplification of what I mean. It’s more parents who have children who are already identifying as transgender. The parent has strong doubts about the permanence and durability of that identification, but is afraid that if they resist it too strongly, they will get a reaction from the child that pushes them further towards the funnel of medical and surgical interventions. That’s what I mean Yeah I understand. So I would. I would say what I want is space for parents and children and doctors to have these conversations. Not for that child to express a transgender identity and then go get hormones the next day Not at all. But I do think it’s really damaging when you have the government coming in and saying, we’re cutting off this intervention. We’re not studying it. We’re not putting in safeguards. West Virginia took a very different approach at first. So we had a law in West Virginia that said we’re going to provide more oversight. That’s one of the ways that we as legislatures regulate medicine is to identify a problem. Overprescription of opioids, lack of informed consent for gastric bypass, all of this for minors as well. We’re not going to ban those procedures, but we are going to require stringent informed consent requirements, additional doctors notes, assessments. And that’s what West Virginia said. They said you need two independent assessments as a minor before you can have access to these medication and then put in place a very particular informed consent requirement. And nobody challenged that law. People followed that law. Do you think that law addressed a real problem with clinics moving too quickly. Do you think there were clinics that moved too quickly from diagnosis to prescription. Well, so I don’t necessarily think that the existing safeguards that we have for medical malpractice and other oversights weren’t enough. But I think as in all of medicine, that absolutely there are probably examples where things were prescribed without the oversight needed, that things were moving too fast in some places. I will say I’ve seen that in aspects of my child’s medical care outside this context. And we can assess that there are differing views about how serious it is here as opposed to other contexts. But I certainly don’t think that the problems with medicine in this country that gender affirming care, that medical care for gender dysphoria was immune from those problems. And if a legislature had concerns and documented evidence of that, I think that is an appropriate solution to those set of concerns. Not saying we’re going to ban the care. We’re going to cut off your treatment, because I think that’s really, really different than what legislatures usually do when they have a concern about overprescription lack of assessments. There are other mechanisms that the law has short of a categorical ban. But in part, I think you have to see some of these legislative responses. One, they’re in a certain kind of continuity with shifts in Western Europe, which is not of religious, particularly religious or Republican territory, let’s say. But you have a number of European countries that have taken steps to impose much stricter regulations on the use of some of these practices and protocols. But then the other background here. And American politics is always operating in this space of backlash, overreach, backlash, overreach. The narrative that I heard from transgender activists in, again 2019 to 2023 and so on, was often, not just there is some discrete number of children who need this kind of care, and we want to make sure they get it. The narrative was often people who say that most children who express some kind of gender dysphoria ultimately desist and become reconciled to their natal sex. That’s transphobia. That was a pretty clear line of argument that was used in specific cases to attack specific practices. And doctors who are themselves arguing that lots of teenagers who experience dysphoria are better off with some kind of treatment that tries to reconcile them, rather than a treatment that interrupts puberty and so on. Would you agree that argument existed and had still has real potency. Well, so I will say just for myself, and I am very hesitant to announce things as transphobic without having an opportunity to try to have conversations. And that’s where I am right now that you’re here right now. I’m here with you, I want. I do because I want to understand where people’s anxieties are. I want to find places where we might agree. And I do think that there is a lot of confusion about some of the science related to gender nonconforming young kids. What happens at puberty. So I agree that there are a lot of young people who express gender non-conforming expressions behaviors who are not trans, who will never be trans. I mean, so I’m not a doctor, and I do think that’s O.K, that neither am that we have to. I have some strong medical opinions notwithstanding, yes, as do I But I am trying to limit my expertise to where it’s warranted. But I do trust child and adolescent psychiatrist to assess based on existing diagnostic criteria. And so a child who is persistently and consistently for years saying they are a girl versus a child who paints their nails and wears dresses and in other ways is gender nonconforming. Assuming both these children are assigned male at birth, I think there is a difference. I think that child and adolescent psychiatrists assess these differences, talk to the parents. And then the question is, after the onset of puberty, is there a distress that is prompted for those children with those consistent and persistent identifications that are different from their sex assigned at birth. I do not want a parent to feel like they can’t have a conversation with members of their community, or trans adults or Doctors Without being afraid of being called transphobic, and that is something I feel really strongly about. I want us to be in a space, and I’ve maybe I’ve grown in this area, especially as a parent, to say the last thing I want is for people to feel like they can’t ask questions. So at least in my life, am very committed to the asking of questions, the safe spaces for asking questions. Maybe it doesn’t have to just be to you. Maybe some of us can open our ways of engaging. And at the same time, when I think about the law, which is what I am focused on every day in my life, for a lot of these questions, there are just basic legal principles that I still think should apply. I still think that we should have a check on the government’s intrusion into our family decision making. I still think that the equal Protection Clause should apply to everyone. And I’m not someone who is out there making policy. I’m someone who’s looking at the laws that are being proposed that do exist and assessing whether or not they are violating our Constitution and civil rights statutes. All right. I have to ask you about the specific case of sports, and then we can go back to the bigger picture to finish up, because sports are a slightly different case where it’s not so much parents worrying about of social contagion effect around gender identity. It’s parents worrying about basic unfairness in competition. And it again, comes back a bit to these initial philosophical questions that we were trying to wrestle with about the nature of sex and biological sex and so on. But in the United States, we have in high schools and in colleges. Sports that are sex segregated. Is that a good idea. Yes I am in favor of sex separated sports in most circumstances. And part of it is part of the reason is and I’m going to land the plane. But I want to bring us on a little detour. Which is that. So I’ve been doing a lot of research about the origins of Title IX. And so Title IX is the Civil Rights statute that bans sex discrimination in education. It’s largely associated with sports, although when it was first passed by Congress in 1972, there was a real set of questions about whether it would apply to sports at all. And so there is a Congress passes another law a few years later that tells the agency at the time have to come up with regulations about sports, and there’s a huge uproar in the sports community, in the men’s sports community, because the idea of sharing resources with women is intolerable. And so there ends up being a lot of effort put into in critically important ways the investment in women’s sports. And I think that the context of sports in which we continue to have sex separation is an important part of continuing that promise of Title IX. Now, do I think that we need to have sex separated sports because of some concern about women not being able to have access to sports teams if they’re not sex separated for the reasons that you identify. Yes, I accept that premise that in the aggregate, men have athletic advantages in a majority, though not all sports, and that one of the ways that sex separation has worked is to ensure those opportunities for women. However, I do not think that’s the only reason. I also don’t think that’s the relevant question when we talk about trans inclusion in sports, but I do. I do accept that sex separated sports is an important part of preserving women’s opportunity in sports right now. I mean, I will tell you a story, which is that a school. I won’t say which school, but a school in my general vicinity during the peak of what we call wokeness nowadays had a field day that had traditionally had separate sports for men and women, and they decided they needed to put the girls and boys together. And the reports from the girls the next day was that they were absolutely miserable because of course, the boys won. I don’t want to say all, but won most of the games. So what is wrong based on that reality with saying that whatever else, whatever, the absolute truth about the nature of transgender identity is. If you have the advantages of a biological male, you should compete in male sports. What’s wrong with that. Well, I think there’s two things that I want to say that I think are wrong with it. When we’re talking about categorical exclusions, I am not disputing that there are conversations to be had about how we manage the inclusion of trans people in sports. So if you have a rule, as half the states in the country do that from sometimes kindergarten through college, sometimes sixth grade through college, no trans girl can ever compete on a girls’ team. I think that poses a problem for two reasons. One, I think that complete exclusion from athletic opportunities that align with gender identity, even practices, even intramurals, even club teams, I think violates the promise of equality under Title IX and the equal Protection Clause. Because if the question is if you have an athletic advantage, then you can’t participate. Then why not in the non-competitive spaces. That’s the first piece of it. And then the second is we do have a group of young people who have never gone through a male puberty. They transitioned before they did. They received puberty blockers. And all of the evidence in those cases is that they do not have that athletic advantage, because in the aggregate, the driver of athletic advantage is circulating testosterone. They have never had that. They’ve never gone through an endogenous puberty. And too, are categorically barred from all women’s teams. So I think in those two circumstances, I would say highlights that the breadth is the problem. So in the last case, I want to stipulate that I think that argument about the nature of the advantage is contested. So let’s say that it were true would then the solution be to have a system of basically effectively strength testing or hormonal analysis or something like what you’re objecting to. Categorical bans. But what is the case by case approach that you’re imagining. Well, I mean, I think it depends on the context. But if we’re talking about competitive high school athletics, my view is that it should be less to the athletic associations to come up with a rule that balances inclusion. It’s a cop out. You’re in charge of the Athletic Association. What’s your rule. Well, my rule is not a rule that you probably agree with. And then I’ll give you a rule that I think would be the appropriate compromise, because I’m in favor of talking about compromise. So my rule would be that you have to undergo hormone therapy for a period of time that is studied for the age group and then at that point, you can participate. We don’t test individual athletic anything in order to participate on a team in boys and girls, I think that we come up with a rule, it’s applied. Once you meet the threshold, then you can participate. And I think that balances equity, inclusion and concerns about athletic advantage. That would be my proposal. What I don’t understand is why when we propose things that are compromises were met only with bans, because another option would be to say, if you are on puberty blockers, if you went through only a female hormonal puberty. And that you submit evidence to that effect. Then what is the basis under the argument about athletic advantage of excluding that an individual. Because there were examples of associations that were starting to impose more stringent rules that looked like that. And then this administration forced those to go back to a categorical ban. So I think there’s just questions about why are we categorically excluding people and why are we going so young in age. So let me make a suggestion then, for why you have that resistance to compromise right now. In part, it’s rooted in a sense that your side is interested in compromise now that it is facing cultural setbacks. But just a few years ago was taking a much more maximalist position. And so it is a normal feature of cultural contest and Democratic politics that if you overreach, then your protestations that you only want compromise might fall sometimes on deaf ears, right. And again, in the case of women’s sports, I don’t know exactly what the ideal medical testing regime that you would have that would enable certain transgender athletes to play. I’m open to an argument about that, but I just lived through a period where regardless of what a medical test said, I could look at a photograph of someone like Lia Thomas, who was extremely successful as a female swimmer. And you could just look at the photographs of Lia Thomas with female teammates. And from my own point of view, it looked absurd. It looked like absurd overreach on the part of the transgender rights movement that was undermining the basic fairness of women’s sports. And that is that’s also my larger my larger perspective here. I think you said earlier that maybe you’ve learned something about the importance of dialogue and safe spaces and compromise and so on. I feel like if you have learned that it is as the result of overreaching. Well, so I don’t. So what I’ll say is that just to respond to the example of Lia Thomas is one thing I’m worried about is that if we accept the premise that what we’re doing is looking at people and deciding who is trans, that we as bystanders are going to be policing the bodies of women athletes. What’s happening now is that the people who are being pulled aside for quote unquote, sex testing are cisgender girls with short hair with big muscles. Serena Williams spent a very significant part of her career being accused of being a man. Tall, fast women’s athletes are often accused of being men. And so we’re imposing this type of regime. And my experience and when I say that, I’m open to dialogue. I’ve always been open to dialogue. I just think that right now there is this false narrative that we were never in a position to want to compromise. When my experience, my very first experience talking about women’s sports was in the context of the government proposing a ban on it. That conversation was introduced in order to try to undermine the ability for LGBT advocates to move basic non-discrimination protections. So we didn’t introduce a conversation about sports or about restrooms. And I think that that’s an important part of this history. Following Obergefell. Following the Supreme Court’s decision striking down bans on marriage equality and the efforts in Charlotte, North Carolina and Houston, Texas, to pass non-discrimination ordinances, which people continue to say are largely popular. That’s where we started to hear about trans people using the bathroom and then subsequent to that, about trans people in sports. And we did not introduce those as activists. You’re saying you didn’t introduce those debates as activists. And we weren’t asking for inclusion in those spaces. We were asking to not be fired from our jobs, to not be kicked out of hotels. And that was the step that started in 2016 and was met with a campaign about predators in bathrooms. I want to ask then about, yeah, about coexistence, I guess. Because to me, part of the framing of this debate from your side in the last few years has been a narrative of threat. And again, not only the kind of policy steps that the state of Tennessee has undertaken or that the Trump administration has undertaken. But just a straightforward claim as a parent of girls, would not want them to compete against someone like Lia Thomas, right. Like that those kind of arguments were often met, in my experience, by a claim that just the arguments themselves did a kind of profound psychological harm to trans youth, to kids dealing with extremely difficult physical, psychological, political circumstances. That essentially, interventions for trans youth were essential to prevent suicide. But it wasn’t just about suicide. It was a general narrative. I felt like that to be skeptical of the claims of the movement. There was a sense that Yeah, that this was an act of almost violence against transgender people. And, we’ve had an extended conversation we have here. We’re trying to land the plane. But I’m just curious, do you feel threatened by skepticism and critique in this area. Like, if this is the last thing I’ll say, then you can answer. If I say to you, that I believe this is a free country. And I think that people who have deep and profound dysphoric experiences of their own body should be free to identify as the opposite sex as adults. But I also think that a lot of the interventions offered to trans identifying teenagers are going to be remembered as dangerous pseudoscience that did damage. If I say if that’s my position and it is my position. Do you feel like that position can coexist with basic American liberties for transgender Americans. Or do you need to win. Like, do you need to have my position ruled out of bounds to feel like you’ve made America safe for trans identifying youth. Well, I certainly don’t think your position should be ruled out of bounds. I don’t want you to not have the position that you have. That’s core to what you see and experience in the world. Well, no, but you’d like you’d like to talk me out of it at least. I would but I also don’t think it’s. I mean, I guess, what does it mean to be out of bounds. I would like to persuade you. I think that and I’m. I’m here. I’m an adult. My job is to talk to people who disagree with me. So I don’t feel profoundly threatened by it. I think it’s a matter of scale, too, because when you have hundreds of millions of dollars going in to telling a story to the American people, that 1 percent of the population is a threat, that does have an impact, that does make people feel unwelcome in the American promise to feel like that this every time there’s an election, the entirety of political ad spending will be spent on saying that we are a threat, that we need to not be part of the fabric of society. That is how it’s interpreted for a lot of people. And I understand that because we don’t have the capital to respond in any meaningful way to that type of ad spending. So I think part of what I experienced that people say is upsetting and dangerous at times and alienating to young people is the magnitude. And I think a lot of us wish we could just be ignored, and that the amount of resources that have gone in to putting a spotlight on us is something that I think is greatly disproportionate and very harmful. And so that’s one thing. And then as to what are you saying what you ask about your position and it being out of bounds. I do think that banning health for minors, when it’s recommended by their doctors and consented to by their parents, and preventing us from getting more scientific information about it, I think that violates the Constitution, and I do think it’s harmful. But that just yeah, I’m really going to end. But that is premised right on a very specific argument about what you think medical evidence shows. Because you would agree that states have the right to ban medical procedures that turn out not to work as advertised. So yes, yes, I agree that my view of the evidence, the clinical evidence and the research evidence is that these are safe and effective and that the proposals to provide only therapeutic interventions or do nothing are not supported by evidence at all. That is my position. I would also say that it sounds like most of the time where we are is that people are debating the quality of the evidence, and I don’t think it is very common for the government to ban a medical treatment when it is being debated. And I think a lot of these states have right to try laws that are not limited even to context. And when someone is terminally ill, that allow individuals and parents to try interventions that they want. There is a long history of that. There is a history in these Southern states of allowing people to take ivermectin to treat COVID after it was proven not to be effective. So I think there when we’re talking about disagreement about the science, I think it is very unusual for the government to come in and impose a blanket ban, but it’s just very hard to escape the philosophical question, I feel like. So I have a lot of personal experience with wanting to use medications that not every doctor would prescribe. I had chronic medical condition that was not widely scientifically recognized. And I’ve actually had I wrote a book about that subject and had a couple people write me notes saying, did this change how you think about the trans issue. And I guess it depends on what you think. In the end, the reality of the final category is. Is there a category A a real category of people who are fundamentally born in the wrong body. I know that’s not the politically favorable way of describing it. In which case you are treating you are treating them by changing the physical reality of their body. But if it is just a kind of psychological severe, sincere, profound psychological condition that doesn’t have this kind of almost metaphysical reality. That’s why people react to it. You’re telling teenagers to essentially go to war with their own bodies. I feel like it’s hard to get around that debate of what is health. What is health for the transgender person. I guess, for me, it feels profound. It feels metaphysically, holistically, physiologically, biologically, who I am that I couldn’t there was no choice to be made. And that is how most of the people that I talk about it Yeah and experience it. And it also means that I can’t always put it into words that are going to make sense to another person. And I believe that health for the transgender community is continuing to make space for us to learn about how to best interact with and treat our bodies. Now, what I think we’re seeing is the cutting off of a lot of information. And I do appreciate you saying that you think as an adult that I can make that decision or others do. I think there are many people who are starting to encroach on the ability of adults to make these decisions, even as all sorts of things are widely available to adults in the United States. And that, to me, signals how much there is a desire to stamp out aspects of who we are in a broad way. All right. Chase Strangio, thank you so much for joining me. Thanks, Ross. Thanks for having me.