State of the Union, Kansas, and Beyond

Every news cycle lately brings yet another headline about transgender people and their families, whether it's the inflammatory remarks during the State of the Union or the recent invalidation of driver's licenses in Kansas, or any number of other recent court cases. These stories are showing up across the country and creating confusion and fear and a whole lot of questions for our families. So today In the Den, we're taking some time to pause, to break it all down, to breathe together, and to talk about what's happening in the news right now, what these developments mean, why they matter, and how we can all stay grounded and informed in the middle of it all. Joining Sara is special guest and policy strategist Sam Ames. 

Special Guest: Sam Ames

Sam Ames (they/he) is a legal and policy strategist with 15 years of leadership experience in the LGBTQI+ movement. Sam served in the Biden-Harris Administration as Chief of Staff in the Department of Education Office for Civil Rights and Senior Advisor in the Department of Health and Human Services Substance Abuse & Mental Health Services Administration. Sam began their legal career as a staff attorney at the National Center for Lesbian Rights, working on impact litigation cases involving marriage equality, employment discrimination, and family law, and in 2013 founded the Born Perfect Campaign, a national effort to end anti-LGBTQI+ conversion therapy.

Links from the Show:

• Find Sam’s Substack here
• Born Perfect
• Join Mama Dragons today

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Transcript

SARA: Hi everyone. Welcome to In the Den with Mama Dragons, a podcast and community to support, educate, and empower parents on the journey of raising happy and healthy LGBTQ+ humans. I’m your host, Sara LaWall. I’m a Mama Dragon myself and an advocate for our queer community. And I’m so glad to be part of this wild and wonderful parenting journey with all of you. Thanks for joining us. We’re so glad you’re here.

Hello, Mama Dragons. I am happy to be back behind the mic after a short break. And I really want to thank Shauna for doing an incredible job filling in. We still have a few more episodes with Shauna at the helm. I am excited to hear them. I really enjoyed being a listener these last few weeks. In today's episode, we're diving right into the headlines because lately it feels like every news cycle brings yet another headline about transgender people and their families, whether it's the inflammatory remarks during the State of the Union or the recent invalidation of driver's licenses in Kansas, or recent court cases. These stories are showing up across the country and creating confusion and fear and a whole lot of questions for our families. So today, we're taking some time to pause, to break it all down, to breathe together and talk about what's happening in the news right now, what these developments mean, why they matter, and how we can all stay grounded and informed in the middle of it all. I'm so excited that we've welcomed back today's guest, Sam Ames, back into the den. You might remember Sam from episode 131 last July when they helped us unpack the Supreme Court ruling that upheld a ban on gender-affirming care in states that had one for young people. That was the US versus Skirmetti case.

Sam has spent much of their career as a civil rights attorney and advocate, having spent some time in the Biden administration and the founder of the Born Perfect campaign, a national effort to end anti-LGBTQIA conversion therapy. There's a court case about that, so I'm sure we'll get into that. Today, Sam runs their own consulting firm, Threshold Strategies, providing legal and policy strategy on civil rights issues with emphasis on the LGBTQIA+ community. Sam, welcome back to In the Den. I'm so glad to have you with us again. 

SAM: It's so good to be here. I'm so grateful that you had me on.

SARA: You're becoming the podcast team's go-to for all things legal and policy analysis here. And so let's just get on into it and set the stage for our listeners. The State of the Union now feels like eons ago, but it was just a few weeks ago when the President really unleashed some inflammatory remarks and rhetoric and theatrics. And I'm imagining that many of our Mama Dragons families probably didn't watch it; it would have been far too triggering. But we've all been reading the headlines and hearing other people chit chat about it and socials and all that. And, you know, we watched the president trot out this story of a Virginia teen whose mother is suing their school board, accusing the school district of failing to disclose that this teen was identifying as male, and really just made this very awful theatrical moment. And I'm just really curious to hear what your policy take is on that, let alone the theatrics.

SAM: Yeah.

SARA: I mean, basically, you know, we heard the president say the words, “We must ban it,” referring to gender-affirming care, “Immediately.” which aligns very closely with Project 2025, and the Heritage Foundation's recent remarks as well, that all healthcare for trans folks, including adults, should be outlawed.

SAM: Yeah I'm going to get to the policy in a second. I want to start, actually, with the spectacle of it. And I want to tell the story a little bit, because there's just enough detail here that I think it matters. What the president did that night was use a lot of props, trot out a lot of people to make points on the backs of. And a lot of those people really deserved recognition, and making a spectacle of that recognition was hard to watch in some cases. But this was the hardest moment to watch. As he was talking about transgender people, and we all knew that he was going to, in my house waiting for the moment. To underscore the moment that he decided to bring up trans people, he pointed to this teenager in the audience and her mother, this teenager who had de-transitioned after really horrific sex-based harassment at school. And he then went into the details of that harassment with pretty significant artistic license in front of this teenager, who the camera was trained on, right? I'm going to say now that I'm going to use she-her pronouns, because that is how this young person is identifying, and we respect that, no matter who the person is. And I am going to share just a little bit from what we know, not from what the president said, but from the court decision. Actually, her mother is suing California, but is losing. This is the court decision of the court that ruled against her. What happened was when this young person was a freshman in high school, she told a school counselor that she identified as a boy. The counselor told her that she could use the boys' restroom, if that is what felt right to her. And the first day that she did, several of her classmates started harassing her so badly that within just a few weeks, the police had to be called. The harassment was horrific. Several of these students said that they would rape her into liking boys, that they would kill her, her family, with a knife or with a gun. They groped her and shoved her up against the wall in the hallways, absolutely horrific, inexcusable harassment at school. What isn't in the decision is whether or not those students were ever actually punished. It is clear that in the days following, she got a lot of the blame not just by sort of the students and adults around her, but actually by the police officer who came in who told her that she couldn't go around accusing boys of rape without getting sued for defamation. That was his first reaction to her.

SARA: Whoa.

SAM: And then, by these adults who blamed the harassment on her gender identity, as though there was any gender identity that could justify that kind of harassment. That day that she met with that police officer was also the day that she told her parents that she was identifying as a boy. And that night was the night she ran away. And she ended up in a very, very dangerous situation that, thankfully, she emerged from months later. And when she did, sometime between then and now, she de-transitioned. She began identifying as her birth sex again. What happened to her was absolutely horrific. It was indefensible. The bullies who did this claimed they did it because she was transgender. And a handful of adults, including the president, have essentially accepted their excuse, and used it to advance their disapproval. I want to be so, so clear, the cause of this student's harassment was not her gender identity. The cause of her harassment was her harassers. Not for nothing, in the room at the State of the Union, these legislators who were applauding loudest as the president was using this as justification to attack trans people, are the same ones who consistently vote against policies designed to protect students from sex-based harassment. I think that what is really important – and I will get to the policy of this in just a second, I promise – but what feels so true to me is that every adult in this child's life failed her. I cannot fathom the series of decisions that led to her being on camera that night and the most painful memory she has being used as a tool by the most powerful man in the world to stoke fear. I cannot fathom a single one of the adults making those decisions doing it in the best interests of the child. I cannot – I try not to have an emotional reaction to this because it is hard for me to see a kid put in that position, right? What happened that night, and what happened to her, were unacceptable. And it's really, really clear that this wasn't about her, right? The policy side of this is that what this was really about is forced outing, which is a set of policies that are usually, right now, embedded in education discrimination laws in states sweeping the country. The president's argument that night was that if the school had just told this student's parents that the student was trans, none of this would have happened. That that is the remedy. He was sort of, he was sort of making the argument that he could eliminate violence against trans youth by eliminating trans youth, that if this young person just wasn't trans, if their parents had been able to make her not trans, the harassment wouldn't have happened, which is a focus on the wrong thing, right? But forced outing is a conversation that I think we're seeing more of and going to see more of. And the way that we are usually seeing it is in bills that are sort of larger discrimination bills against mostly trans youth. They are mostly in the context of schools, although some are in the context of healthcare offices and medical professionals. And what they do, and what the president is advocating for, isn't just restrictions on trans healthcare. It is these policies that take teachers, social workers, school personnel – the most trusted ones, the ones that students come to when they have a secret that they can't safely tell anyone else – It takes those teachers who students come out to and requires them to turn around and out them to their legal guardian which is a thing that can be very, very dangerous. What we often talk about when it comes to forced outing is that these teachers are required to do it whether or not the parents are supportive. And it seems pretty clear to me that the young person at the State of the Union had parents who would not have been supportive of this. I don't know that for sure, that is conjecture, I want to say that. But there are parents who are not supportive of their kids, and who their kids are scared to come out to because they know they won't be supportive. There are also, I want to say, mostly good parents. There are mostly parents who either their kid feels safe enough coming out to, or their kid just doesn't want to come out to because it's not time for them. They're not ready, and it could, the problem isn't necessarily because they're bad parents. It could just be that young people can talk to other people about things that they don't always feel comfortable starting with their parents, right? And I think that we know that of all kids and all parents. There are a million issues like that. This is one of them. And when we're talking about forced outing, we're not talking about those parents. There's a case we'll get into a little while later about a California law. But there are some laws about this that are actually good ones.

SARA: Yeah.

SAM: There are a couple of states that have passed laws prohibiting school districts from making policies forcing teachers to out their students. And the reason for those isn't kids with good parents and, frankly, it isn't even kids with not great parents. Some parents are never going to get there. Some parents are going to condition their love for their child on whether their child looks enough like the mold that they had for them when they were born, looks enough like them. That can be really difficult, and some kids and parents never get there. Some are estranged for life. Neither of those are actually the kids we're talking about when we talk about forced outing bills. The ones I'm worried about are not the ones with not great parents. The ones I'm worried about are the ones who are in actual danger and we either don't know about, or don't have enough evidence to prove. And the thing that is maybe most infuriating to me about forced outing bills writ large across the country, is that some of them have these exceptions. They have these exceptions for situations in which the teacher or school staff has reason to believe that outing that student to their legal guardian would put the student in danger, physical danger. And the truth is, those exclusions sort of belie the problem with these laws generally. If a teacher is a good teacher – and most teachers are good teachers – If a teacher has reason enough to suspect that a young person would be put in danger by outing them to their parents, that teacher has already filed a report with Social Services. If that is the thing, if telling the truth is what makes a home unsafe, the home was never safe to begin with. I think we know that. And when we're talking about forced outing laws, we're talking about the kind of danger that isn't about being estranged from your kid forever. It's about the kids we don't know about. We don't know what they are going home to, or we have just enough reason to suspect but not enough to call someone like Social Services. Those are the kids we're worried about, and there unfortunately is a long history – even in recent years, even in the recent decade – of situations where young people either were outed or came out to their parents, and the kind of violence that follows can turn very deadly. And in those situations, we really often see not just murder, but torture. There is something unique about this being an element of the child abuse that ratchets it up to really disturbing levels. And I'm not going to go into those here because I would want some consent before doing so, and we have a lot to talk about. But what does feel true is that the people writing these bills have to know that is a risk, or they wouldn't put the exclusion in. So when I think about somebody like the young person at the State of the Union, what I think is: “You deserve better adults. You deserve better legislators. You deserve a better president. You deserve trusted adults in your life who do not put you on camera as a teenager to be made an example of to stoke fear.” I can make all the policy arguments, but frankly, at the end of the day, I just hope that this young person is supported, has safe adults around her, or finds them, and is able to find a community that accepts her, no matter who she is, no matter how she identifies, including how she identifies right now. I don't care who this young person is. They are a child before anything, and it is our job as adults to support that child.

SARA: Listening to you, I appreciate the details of the story and the backstory. I think that paints a fuller picture of what was happening. And I know I just kept thinking, did this child consent to being on camera to being used as a prop in this way? It sure doesn't seem like it. And I'm aware there's a couple of layers of impact that are happening when something like this happens in a State of the Union address. And we've seen it happen in other ways and in other rhetoric, but this is kind of the highest level of political argument and speeches that we have in this country, and one of those is fueling the wild claim, the ridiculous and wild claim, that schools and these “liberal” teachers and school officials are turning kids trans. They're walking into school one day as one gender, and they're walking out another. And as you're unpacking that, we can see all of the problems, really, in that. But talk about that a little bit, that there's just part of it is to just kind of fan those flames.

SAM: I think fanning the flames is exactly right, right? There is fear around this right now. Fear is an incredibly powerful motivator, particularly when it comes to an election year, for example. And when we're talking about trusted adults in young kids' lives. I think it's important that we talk about a multiplicity of them, not just any one, right? Because I think that the story and the real co-optation of the word groomer, which is such a dangerous thing. I'm going to bring it up. I'm going to bring it up because I think it's worth naming.

SARA: Fair.

SAM: Also from the perspective of Advocates against child abuse, when we take words like groomer, really important words, that allow young people to name something scary happening to them and we dilute those words, we politicize them, we say this actually means something else. What we do is we take away language and clarity that allows young people who are genuinely in dangerous situations to name what's happening to them.

SARA: Oof.

SAM: The idea that we have co-opted the language of child abuse so much into a political discussion that is actually risking adding child abuse to this to this country and this population, is so difficult for me to wrap my head around. Maybe I'm not cynical enough for this work. But you mentioned the teacher who's “turning a kid trans.” And I think that's the real fear, right? There's some teacher out there that is turning a kid who wouldn't otherwise have been LGBTQ, LGBTQ. And to put this in a little bit of historical context, there has been some version of this argument forever. We look back into the 70s. This was an argument, Anita Baker. This has been an argument against queer people being teachers, over and over and over, even though there is absolutely no evidence to suggest that any of these things are connected. What there is evidence about is that for LGBTQ youth, having even one adult that is supportive in their life can reduce their suicide risk by 40%.

SARA: Yes.

SAM: That is massive.

SARA: Yes.

SAM: So when we're talking about teachers, what we're talking about is that one trusted adult sometimes. We're talking about a decrease in risk. And when people are – and I don't not understand it, right? -- When people are genuinely scared, people come to me and say, “Hey, but what if someone tried to.” What I actually ask them is, “I think that you're thinking about this as though somebody could turn somebody straight gay, or somebody queer, straight, right?” This is conversion therapy in reverse. And what we know is that conversion therapy does not work either way. There is nothing you can do that is going to change someone's sexual orientation or gender identity. If there were, there are thousands, millions of people who, for millennia of oppression might have made that choice. And it has never once worked. What is true, and what I do wonder, is as the presumably straight person asking me this “Is there anything I could do? Is there anything I could say that would turn you trans?” I don't think there is. Is there anything I could do that would turn you trans, Sarah?

SARA: Me?

SAM: I think folks wonder and can't quite wrap their heads around what it would be like to one day wake up and suddenly want to be the other gender. And I would maybe reframe that to what if one day you woke up, and you were the other gender. Your body looked different. And you are clear on who you are. What if you woke up one day in a different body than the one that you belonged in, or the gender you knew was right for you? It's not that one day you woke up wanting to be somebody different. It's that one day you woke up and weren't who you were. How would that be for you? Which is a different question, right? It's not, how can you turn somebody LGBTQ? It's who are we inherently? And how many barriers are there to being able to live that fully?

SARA: Oh, that's such a great turnaround and such a good frame. Thank you for that. Thank you for giving us that and reminding us of that language.

SAM: I'm not sure there was a single bit of policy analysis in there, I'm sorry, I promise we can get to the courts soon.

SARA: No, this is a really good conversation. It's really helpful. Well, the policy piece that I'm thinking about, and you know it's speculative, but we're watching it play out, right? Is the roadmap to Project 2025 with the end goal being no healthcare for any trans person, youth, adult at all. And I think every new, even speech piece of legislation in a conservative state, it all feels like it's adding up to all part of that path, that road to that end. And I am curious if you – the policy question here is, how do you see that? Do you see it lining up like the rest of us, since you're kind of in the thick of the policies? And where are the interventions? Where are the roadblocks coming from?

SAM: Yeah.

SARA: Maybe we're not paying attention to, because we're overwhelmed by all of this negative press right now.

SAM: Uh, yeah. We sure are. I think that your contextualizing this within Project 2025 is really, really accurate. And I actually would zoom out just a little bit more and contextualize it going back to 2016 -- a little bit for – but we'll start in 2016, because we only have a little bit of time here. 2016 was the year that the Supreme Court decided Obergefell v. Hodges, and said that The Constitution includes a right to, among other things, same-sex marriage. Prior to that, there had been a lot of fundraising, wedge issue-dividing people by a group of think tanks based on marriage equality, based on freaking people out about same-sex marriage. In 2016, they lost that battle. And they knew that they had lost it. There's not a lot of coming back from the Supreme Court's decision there. It was very, very clear. And so around 2016, 2017, we start seeing these think tanks come together. And I promise this is not just conspiracy theory. There are articles quoting people who are the heads of these think tanks, saying, yeah, this is what we did. They started meeting, and they started sort of throwing some noodles against the wall. around LGBTQ people who they knew were really salient issues for a lot of their voting bloc about what next would motivate them. The first thing we saw was bathroom bills. We saw a couple in a couple of different states that they use as laboratories, and one of them was North Carolina. And we actually saw the enormous economic pushback really killed those laws for a second. It was bands who stopped going to North Carolina to play. It was sports teams. All of a sudden, North Carolina was a little bit of an economic pariah. And those bathroom bills started being walked back. We started seeing them throw a couple of other things against the wall. And the things that started sticking were trans healthcare and trans sports. Those are the things, not coincidentally, that we're seeing more and more of now. And when it was early on it was much narrower. It was bans on surgery for youth under 18, which, let me be very clear, is a thing that is so exceedingly rare. And when it does happen, is almost entirely top surgery for transgender boys and after 16 years old. This is incredibly, incredibly rare. It does not include any of the scary stories that show up at legislative sessions.

SARA: Correct, and I think I want to also add to that, like, requires an inordinate amount of parental consent.

SAM: So much parental consent.

SARA: There is no bypassing a parent in that situation.

SAM: No, no fathomable way that a parent's consent could be bypassed in getting somebody healthcare if they are under 18 and transgender. Even if the parents are the most supportive parents in the world, often it takes years before they can even get in a doctor's office, much less get any of the healthcare they need. This is scary stories designed to bring people out during electoral fights which I am now, maybe, back to the cynical version of me. The less cynical version of me, at least can hold onto, this really isn't about us. This is about a political strategy that uses us and has for many decades, as a wedge issue. This is the most recent incarnation of this. And it is in many ways, one of the more horrific, because it is striking at the most vulnerable members of our community. Right? We know that the most vulnerable are young people, transgender people, particularly transgender FEMs, who are the ones most targeted by these sports bills and transgender youth of color, who are the ones who are targeted by things like the Medicaid and Medicare bans that we are seeing attempted right now by the Department of Health and Human Services which take Medicare, Medicaid funds, CHIP funds, the kind of healthcare support that goes to the folks with the fewest resources in this country, the ones who are living below the poverty line, and in other ways need state-sponsored healthcare. It takes them, disproportionately people of color, and it says, “You are not able to have access to the kind of healthcare you need.” 

So, going back to Project 2025, which is all deeply entrenched in all of those issues I just named. Project 2025 wasn't really a policy document. It was an election document. I think we know that, right? It was about the election. We've been enacting it – we as a country, the people currently in power – have been enacting it pretty effectively. At the end of the day, there's a reason it's so rooted in social issues and both the optimistic and the cynical part of me really thinks this isn't about us. I don't actually even think it's about them hating us, although I think probably many of them do. It's about them wanting to win elections. What I hope is that that means the majority of people in this country are not politicians. The majority of these people in this country share values of wanting to take care of youth, of I dare say loving thy neighbor, taking care of the poor, the immigrant. I actually think that we share many of those values, and that when we disconnect it from the electoral processes that are so easily swayed by fear, that more people than we think are on the side of these kids, of trans people generally. And that if we are looking for interventions, we can remember that, A, we are not the only group facing this right now, nor have we been for much of history. We have an enormous amount to learn from movements for racial justice, movements for reproductive justice. At the end of the day, so much of this is bodily autonomy. And there are people who've been doing this a very long time and are very, very good at fighting this fight. And the second thing is that, we are very good at fighting this fight and that I hope that right now can, if nothing else, even if we lose every single case, lose every single policy battle, remember that we, trans people, have been around a very long time. We have been around as long as human beings have been around. Some of that time, we have had healthcare interventions that have been incredible and life-saving, and really, that is just in the last 100 years or so, that some of them looked like the modern medical apparatus. But we've been around a lot longer than those things existed. And we're going to be around a lot longer than they can be banned.

SARA: Yeah. Good reminder. But I want to grab on to the election piece that you just mentioned. Because it's a really interesting framework to think about that document, and then what is all of the policies that are being enacted across the country as a result of this election document and this kind of platform. Also, as a way to – and sometimes I don't know that we see it – a way to consolidate power and disenfranchise voters.

SAM: Yes.

SARA: And I'm thinking particularly about what happened in Kansas.

SAM: Yes, absolutely.

SARA: About Kansas withdrawing, immediately invalidating thousands of driver's licenses of trans folks because of a law that was passed and needed to be enacted in a very particular way. Can you talk us through exactly what happened? And then can we talk about the bigger picture of the impact?

SAM: Yeah, absolutely. So what happened in Kansas is that a bill was passed that so far has gone farther than many others have. And it did two things. It set up a bathroom ban that was a little bit roundabout. It's in government buildings. And it essentially requires government buildings to start instituting policies around transgender people in bathrooms. I want to say, it is only government buildings. So there's a lot of fear around this right now about going into public spaces in Kansas. That ban only exists in government buildings. And even then, what the law does is actually call on government buildings to create their own policies, which probably they haven't had time to do. So that is the first piece. The second piece is about identification documents, particularly driver's licenses and birth certificates. And what it did is say that, essentially, birth certificates and driver's licenses that have had changes to a gender marker are no longer valid. And the sort of rare thing that it did here was make it go into effect immediately. It went a little farther than other laws have, but it also went into effect overnight. And so there was a lot of real understandable fear overnight. It wasn't, it actually, importantly, wasn't quite overnight, because the governor vetoed it. The governor vetoed it, and it had to go back to the legislature to override that veto. And that is a thing that they did. And it was in fact published and enacted. And overnight people's drivers' licenses were invalid. And that meant that driving with them was no longer legal. Now, people had sort of been getting letters for a while, for a couple of weeks there, that maybe they were – their driver's license was being revoked, and they were going to need to go surrender it in a DMV. Which is another piece of this bill that's particularly damaging, is that there was this element of what I would actually call intentional humiliation. It is not enough to invalidate your identification document. You have to go into the DMV and surrender it. You have to hand it over to a person and say, “Because of who I am, this is no longer valid.” This is a punishment. There is something very punitive about this. And I also want to say there was something that you said about tying this to elections. And I am going to say this isn't my thought here, this is actually from a great opinion piece in the Kansas Reflector that Logan Casey did from the Movement Advancement Project, where he talked about how this bill in Kansas isn't just impacting driver's licenses and bathrooms. It is also absolutely a form of voter disenfranchisement.

SARA: Yeah.

SAM: And we're coming up on elections. It's a great piece. I really, really recommend checking it out.

SARA: Yeah, so what happens when some of those people can't, because all manner of circumstances, get a new ID in time to go to the polls.

SAM: So the answer is, we don't know right now.

SARA: Okay.

SAM: I realize that's a really unhelpful answer.

SARA: Fair.

SAM: The reason that we don't know right now is that, very quickly, the ACLU of Kansas sued to stop this. And they asked for an injunction that the court actually didn't grant, which I don't actually want you to see as a doomsday sign. Kansas courts are really, really reluctant to grant injunctions. It's just a specific thing about Kansas, that is true. However, the state actually recognizing that taking a law like that into effect instantly is really likely to sow chaos and difficult to do. The state actually agreed to a 30-day pause on this law. So, while normally an injunction will pause a law while a case is proceeding, this one is sort of a voluntary pause for 30 days, during which the case is proceeding. And also, it's sort of an admission that this is really difficult to enforce right now. It is also worth noting that for the moment, if there are trans people in Kansas who have decided to sort of wait this out and not surrender their license immediately, but also not drive, so they are not breaking the law, but they are also not having to take their license in if they are able to do that. Lyft, actually, is offering really, really, really discounted rides for trans people in Kansas who can no longer drive right now. If they are waiting it out, that is a thing that is available.

SARA: Amazing! All right, Lyft.

SAM: I know, I'm not here to advertise any company, let me be clear. And I also want to say there's extraordinary mutual aid going on. And some of it's coming from churches and houses of worship, people coming together to get each other rides.

SARA: Amazing.

SAM: That said, this bill has done, I think, what it intended to do in many ways, which is have a chilling effect on people. Whether or not the law is deemed legal in the end it has scared people, and many, many people have turned in their licenses. And likely we'll be getting reissued new ones with different gender markers. Oddly, some people have reported taking them in, surrendering them, and then being sent an ID with the same gender marker. So it seems like the state system is not quite there on – they don't have it together enough to enforce this yet. Which is, I'm going to take moments of comedy when they arise, because I think that is how we survive this. They may be evil, but at least they're inept, right? There is a moment where we get to say,

SARA: Does that mean they're still valid?

SAM: Unclear. We don't know. The answer is we don't know.

SARA: Okay.

SAM: Probably not, but not for lack of trying. And what I would encourage is you to keep an eye on our legal litigation organizations, which is first and foremost the ACLU of Kansas, as well as Lambda Legal, the National Center for LGBTQ Rights, GLAAD Law, and the advocates for Transgender Equality, who are all putting out really, really excellent resources in real time about what is legal right now.

SARA: Yeah.

SAM: And what we know about the state of the law, which is changing day to day.

SARA: Yeah, I know that in my state, I'm sure states everywhere, particularly conservative red states like mine, are really both looking to what's happening in Kansas and nervous that it's going to become like a virus and spread to other conservative states.

SAM: Yeah. And we see that this is a playbook, right? They use a couple of states as laboratories pretty consistently. They often include Texas, Florida, and Missouri. Sometimes your estate is included in that as well, I will say.

SARA: Sometimes.

SAM: And if and when those laws are upheld, we see a little avalanche of them. It's a little domino effect. And that isn't unique to this side, right? Our side uses states as laboratories as well, trying to figure out what language works best, what is most likely to have the best positive impact, and what is most likely to be upheld by courts. That's a policy strategy. What we see less of is this sort of really weak view of American voters and politics that aligns that so specifically with electoral cycles. You know, I think that in September, October, that might be the time that we see these HHS rules drop, on Medicare and Medicaid bans for transgender youth, and potentially also Section 504 of the Rehabilitation Act, which takes trans people, essentially, out of disability discrimination protections. I think that we might see all of those drop in September, October of this year, because it's right before an election. So while states and agencies are used as these laboratories, sometimes for good reasons, what does feel different is this cynical approach that aligns it so closely with election cycles and makes it a messaging strategy rather than a strategy for genuinely finding the best policy that protects the most people. And that, frankly, is what all lawmakers should be figuring out right now. It shouldn't be about messaging. It should be about good policy. And what we are seeing right now is so clearly about messaging.

SARA: There's zero good policy that's happening in my state. I'm just laughing because I listen to the rhetoric that they use when they're debating bills. And they don't care about whether or not it could potentially come up for a lawsuit. That is just not an equation for them.

SAM: Yeah, yeah, because it's not about the law, right? If it were about the law, I mean, we trust, we elect people to be representatives, literally represent us to pass the kinds of policies that keep people safe and fed. That is, at its core, what our system of government is designed for. And we seem pretty far from it right now.

SARA: Truly. So I know that there are a couple of cases circulating in, particularly in some of the circuit, the appellate courts. Can you talk us through, kind of give us the highlights of some of the big ones, and how we might understand them? How they might make an impact? And particularly, you said earlier, there's a good one. There's a good law.

SAM: Well, sort of.

SARA: Can you, can we start with the good law?

SAM: Yes, we can, although the ending won't be as happy as one might have hoped. Well, let me, let me rephrase that. The middle might not be as happy as one might have hoped. This is not an ending.

SARA: Okay.

SAM: Yes, the case that you're talking about is Mirabelli. And it's not actually technically a Supreme Court case, sort of. It is on, or was on, what's called a Shadow Docket, also called the Emergency Docket, which is a thing that, up until recently, wasn't used very often and currently is being used dozens of times a year. It is designed to be a sort of fast track to the Supreme Court for discrete questions that are really, really time sensitive. That's why it's originally called the Emergency Docket, right? It's not things that are on the Supreme Court's regular calendar. It is quicker interventions, usually really short opinions, if any opinion at all.

SARA: And so are these opinions precedent setting?

SAM: Yes and.

SARA: Okay.

SAM: They usually are on issues for which precedent isn't going to be at play. And this actually is a really good example of that. So, Mirabelli is not a case about the merits. It's a case about a little procedural issue of an injunction. Mirabelli is about a California case. It is a California case about a California law, that is the opposite of a forced outing law. It is a California law that prohibits school districts from creating policies that force teachers to out their students – force teachers to forcibly out their students. So it's a good law. It's a law that is trying to prevent forced outing policies. A parent sued – and by a parent, I mean a think tank that got a parent plaintiff – sued to prevent this law from being enforced. The question was whether or not there should be an injunction on that while the courts sorted this out. And the district court said no. No, I'm sorry. The district court said yes there should be an injunction. The Ninth Circuit overruled the District Court and lifted that injunction, which meant the law went back into effect. The Supreme Court, then, answering just this procedural question about the injunction, overruled the Ninth Circuit, overruling the District Court, which put the injunction back into place. I realized that that is, in many ways, very, very confusing. What it actually means is that the California law prohibiting forced outing policies is currently on pause.

SARA: Okay.

SAM: Really, really importantly, California school staff, teachers, counselors, are not required to disclose a student's sexual orientation or gender identity because of this case. They just, for the moment, can't be prohibited from doing so.

SARA: Got it.

SAM: Which is an important difference. It is very important to know that if you are a California teacher, you are not, because of this case, required to out your student.

SARA: The school just can't make a policy. . .

SAM: Exactly. Exactly.

SARA: . . . mandating that you have to out them.

SAM: Exactly! You got it. Ding, ding, ding. That is exactly it. So the reason that this was concerning is that the court in Mirabelli did issue a longer decision than they usually do in cases like this. It wasn't a super long decision, it was maybe two or three pages. But in the decision, they said that they suspect that the plaintiffs will win on the merits, or they think that there is a good enough chance that it warrants the injunction being put in place. So, a lot of stuff hasn't been briefed yet. The Supreme Court is not a fact-finding body. They do not decide what is right or wrong. They decide questions of, mostly constitutional questions in this case. The facts, the things like statistics on LGBTQ youth, on education, how this impacts individual students and parents, all of that stuff is going back to the district court to be put on the record there. Someday, that record might make its way back to the Supreme Court. We don't know. The only thing we know right now is that that injunction is no longer – I’m sorry, that injunction is currently at play. So the law itself is currently on pause. That is all we know right now.

SARA: Okay.

SAM: I'm sorry, even I got a little confused going through those double negatives.

SARA: Understandable, yeah. I mean, so I interpret that as not the worst thing.

SAM: It is not the worst thing. It's not a great thing. It doesn't, like, bode awesome for us. But it is not the worst thing. We have not lost this case. And it's possible at some point that this case, or a case like it, makes its way to the Supreme Court, and we lose. It's possible that a case of a law like the one in North Carolina that forces teachers to out their students goes to the Supreme Court, and we lose. It is possible. All of that is possible. I have been doing a lot of thinking about this in the last few weeks, and what feels true to me is that we, as a culture, for a really, really long time, have put a whole lot of responsibility on teachers. And then turned around and paid them as little as we can possibly get away with. But I think that any – most queer people will tell you that Drama and English teachers are the patron saints of queer kids. They are so often that one person, that one safe adult that we were able to come out to so often was a teacher. And it feels like a moment to maybe learn another lesson from our teachers, which is that it can't just all be on them. Their hands, not even just in this respect – but in so many areas of the jobs that they did not sign up for looking like this – their hands are increasingly tied. And it feels very true that it is more and more incumbent upon us to be the safe adults in kids' lives. And when we're talking about safe adults, I think that there is, to go back to your question about this myth that teachers can turn kids queer, I think that when we're talking about the kind of fear on the other side, that this is in any way tied in with the kinds of horror stories that we think of when we think of child abuse of adults who are abusing their power. I think the hallmark of those adults who are so violently irresponsible with their power is that they try to isolate the kid who they are grooming. And I think the hallmark of a safe adult is encouraging young people to find as many safe adults as possible, encouraging people to talk about who they are openly and honestly with as many people as possible, that they can find who they know will protect them. And that is what I hope we can do, is as we are seeing teachers who are more and more criminalized and intimidated, and who, frankly, are being really successfully baited and switched and turned around in circles by a strategy that is as much about confusing the law as it is passing it, what I hope is that we can have their backs for a while, right? They have had our kids' backs, our most vulnerable kids' backs, for so long. I hope that we can start to be some safe adults in a louder way and support those teachers who are doing impossible jobs right now. I think we can, too. I've got faith in us.

SARA: I think we can. Thank you for that. Thank you for that reminder. I mean, it's also what you're giving us are good ways that we can refocus our energy, right? Instead of in this reactive space, then how can we turn it and put it into our kids and those who are supporting our kids, and kind of shore it up that way. I know there's one other case that you had mentioned that I want you to just chat through, going through the Fourth Circuit.

SAM: Right. Okay, so there was this Fourth Circuit decision that came out, I'm not sure when this will be airing, but earlier this week – so around March 10th, I want to say. There was this case that came out of the Fourth Circuit, that is essentially about a state ban on Medicaid funds going to gender-affirming care, regardless of many of the details that we have seen be sort of narrower slivers of that care in many of the states. There's some real fear around this, because it uses some scary language like “encouraging minors to appreciate their sex.” I want to say, right off the bat, that scary language isn't not scary, but it is old. It's already been around. That language is actually quoting from the Skrmetti case that you and I talked about a year ago, when it happened. This case isn't totally unexpected. It's essentially a little extension of Skrmetti with some worse language thrown in there that I think actually sort of helps our case that there is animus present in this. I'm also seeing some suggestion that the court in this is endorsing the logic that those healthcare restrictions are necessary to encourage people to appreciate their birth sex. That isn't quite what's happening. And this ties back to a conversation that we had about Skrmetti a year ago when it happened. And it's really nerdy and in the weeds, and tell me if I get too nerdy and in the weeds here.

SARA: Okay. Okay.

SAM: What the court did in the Fourth Circuit was not actually endorse this argument that restrictions are necessary to encourage people to appreciate their birth sex. What they're saying is that that justification, among others, that the state used when enacting that law, passes a really specific constitutional test applied to 14th Amendment Equal Protection Laws cases. The short version of this is sort of that laws that differentiate between people are generally a little suspect to us for very good reason, and to the courts. And if they are challenged, the courts look at them with different levels of scrutiny based on how nervous we are as a society for the basis of that differentiation. So, we are most nervous about laws that differentiate based on race. So those laws get strict scrutiny, the highest form of scrutiny. We're sort of less nervous, but still pretty nervous, about differentiations based on something like sex. So those laws get intermediate scrutiny. Sort of, we're skeptical, but there are some reasons we could see for laws differentiating based on sex being valid. And everything else gets a sort of grab bag called Rational Basis Review, which basically just means that if the state had even the tiniest modicum of rationale, for the thing that they did that isn't discrimination, that law will stand. So what the Fourth Circuit essentially did was what Skrmetti told them to do, which was consider this law differentiating based on medical treatment rather than differentiating based on sex, which means that they applied Rational Basis Review. So what they're saying isn't that they endorse the justification of encouraging people to appreciate their birth sex, or any of the other garbage that the state cited as the reason for this. All they're saying is that it passes Rational Basis Review. And our main argument in these cases, our main argument, isn't that these laws don't pass Rational Basis Review. It's that they should be getting intermediate scrutiny instead. It's that Rational Basis Review is the wrong standard.

SARA: That was a really great and succinct explanation. And I have heard these words so much in this past year and a half, since. And I think that was the clearest I've ever heard it.

SAM: Oh, that is music to my ears, I am so glad.

SARA: I think I get it now.

SAM: I want everyone to know their rights – and I a little bit want everybody to be as nerdy as I am – but mostly I want everyone to know their rights, and I am glad that that is understandable, because it is kind of complicated, and we are going to see more of it, right, as Skirmetti turns into BPJ, which is the sports case that is currently before the Supreme Court, and that has been argued – and they are currently considering – it is, in some ways, the opportunity for the court, if they would like to, to extend the logic of Skrmetti by saying, once and for all, where LGBTQ people land in that scrutiny analysis. And the thing is, we don't actually want them to do that right now.

SARA: Right.

SAM: The court has been, for decades, sidestepping the question of where exactly we belong in that analysis. And there are courts that maybe I would have been curious to hear what they thought, where they thought we belonged in that analysis. This court is not a court I am curious about.

SARA: No.

SAM: I would love them to not rule on that. The good news is that given the opportunity in Skrmetti, they did what they have always done, and they sidestepped the question. Would love to see them continue to do that in BPJ. I suspect that we won't win BPJ. I suspect that we're going to lose the sports case. And my hope is that we lose narrowly, and that they don't address that scrutiny question. This case in the Fourth Circuit, it did not address the scrutiny question. It just did what the court did in Skrmetti, which was take this healthcare restriction and treat it as based on a medical practice rather than sex. That is exactly what they did in Skrmetti. They were following that.

SARA: Yeah.

SAM: They didn't really make new law. There is one little nuance of it which is that we don't know what this is going to mean for a challenge to the Medicaid and Medicare rules whenever the Department of Health and Human Services does issue them. Whenever they do that, there will be a challenge in court immediately. There is no earthly reason to think that that case will be in the Fourth Circuit. So wherever that case does end up being, probably in DC, this case here will not be precedential for it, so it will not be controlling. This is just the Fourth Circuit, which is Virginia, North Carolina, the sort of surrounding states right there.

SARA: Okay.

SAM: Doubtful that this will be the circuit that takes place in.

SARA: Okay. Thank you. That's helpful. This is all good to know. I have two more questions for you before I let you go.

SAM: Alright, hit me.

SARA: And this next one, it's a little bit of a left turn.

SAM: Okay.

SARA: But I think we're all -- it's becoming part of where our minds are at, because it is an election year. And all of the firestorm and rhetoric around anti-trans and LGBTQ+ stuff, I think is fueling this election year in all kinds of really interesting and concerning ways. And one of those ways, and this keeps popping up, I think over – you know, I've had conversations with other guests about this, which is, we've seen some real Democratic victories, in the last couple years, small ones. . .

SAM: Sure have.

SARA: But really powerful ones. But the worry is that the progressives, particularly the kind of mainstream Dems, are going to start to say things like – I'm sorry, you're fabulous, less than fabulous, Governor, Governor Newsom – which is, “Can we just not focus on this right now? Can we all just be a little bit more culturally normal,” I think is what he said. “We're spending too much time on identity politics. If we just put those trans issues aside, then we'll get more votes.” And I'm curious, both you're a voter in that state, but also given all of the work you do in this policy and election world, what's your take on that? Not just Newsom, but that this is, we're likely to hear more of this.

SAM: So, for a little context, I just moved back home to my home state of California two weeks ago. So I will indeed be a voter in that election, but a new one. I don't know how much I want to speak to Newsom specifically, except to say that I remember when he was doing the right thing because it was the right thing. And I think for many, many years since, he has been running for president instead.

SARA: Well, I think it’s also important then, I will say, we don’t have to just talk about Newsom.

SAM: Yeah.

SARA: Like the flip side being Mamdani, who really did come out front on a whole bunch of what we would might consider, what the centrist might consider, taboo issues. And won!

SAM: Yeah. He sure did. I actually think that that is – I'll get to the policy in a second, but I think that that is less about any one given policy, and more about people being able to sense the authenticity of character. I would rather vote for somebody who has character than somebody whose policies I agree with 100%. There's probably never going to be somebody running for office, whose policies I agree with 100%. And I think this goes back to the first – not the first – the presidential election in 2008. I, in the primaries, I was young, and I voted for the person whose policies most aligned with mine. And that person was John Edwards. And boy, oh boy, did I learn a lesson about voting policy or voting character. I think that what is connecting with people about Mamdani is some policy, is some talking about what is genuinely good for this for this country, and figuring out how best to serve the constituents who voted for him and the ones who didn't vote for him. And some of that is getting creative with policy. But I think more so, people trusted him. And there is something about character in there that I think really matters. And I think that that actually does relate to the question you asked about some Democrats who not just forward speculation, but definitely, particularly in the last year, immediately after the election, boy, did their support suddenly dry up. Boy, did they suddenly stop wanting to talk about us in any way except blaming trans people for the election. And I'll say, I genuinely – and I realize that I am maybe not the person that everyone would listen to on this – But I don't think trans people are the reason we lost the election. If trans issues are the reason we lost the election, I think it's because the people who were talking about them, were talking about them at a really surface level, and weren't equipped to actually engage the issue when they were asked legitimate questions about it.

SARA: Yeah.

SAM: I think that when we have conversations with people that acknowledge that they have questions that are legitimate and that have good answers, that is a really different conversation than just somebody standing up and screaming “Trans rights. Trans rights.” And listen, I am often the person standing up and screaming, “Trans rights. Trans rights!” I say that as sometimes that person. But I also know that that is not the thing that engages authentic conversation. And what I think is that if trans issues had any impact on this election – and I actually don't think so – the polls tell us that that is not something at the top of people's minds. Right now, when they go to the polls. I think this is an outdated theory. But . . .

SARA: When we're at war right now.

SAM: When we're at war in a really legally questionable way, when people are dying, when gas prices are going to keep rising exponentially because of the things that we are doing in the Middle East and the fact that we have not thought through what mass murder means on an economic scale, much less an ethical one. I think people are going to have some other things on their minds.

SARA: Yeah.

SAM: I also think that when suddenly support evaporates, and it wasn't just Democrats, it was  funders. It was foundations. It was donations. After the elections, almost every LGBTQ organization I know in the months following had to do layoffs because so much support evaporated instantly. And we saw that to an extent with law firms as well complying in advance with the President's intimidation tactics.

SARA: Yeah.

SAM: There was some of that, um, in a number of sectors. Education, certainly one of them. And I think a couple of things. First of all,I think we find out who our real friends are in those moments and the ones who trotted us out when it was something that they thought was useful for messaging, and then put us back in the closet when it wasn't. But I also think, and this isn't a policy argument, but I'm going to make it anyway. I think that it is a testament to our roots. We, as a community, historically, have very, very rarely relied on the state to legitimize our existence and who we are. Very rarely have we trusted that, in part because there is such a long history of violence associated with it. I think that this is a reminder that that is not where we put our trust, ever. Even when it's coming out on our side. We put our trust in community care and the people who have always shown up for us, in each other, in the networks that we have spent thousands of years building, surviving. We put our faith in each other, and we put our votes behind strategy. Those are different things. And what I hope is that right now is not cause for despair and betrayal, but a reminder of our roots and who we are to one another.

SARA: Oh, that's so beautiful. Thank you. Yes. Yes. That's a really great reminder, particularly for our community. Another reminder that this is a community that people can turn to.

SAM: Sure is. Sure is.

SARA: In these times. So we spoke not quite a year ago. And, you know, I think we all know it was going to get worse. But I think we're all still a little bit overwhelmed every time it gets even worse than we could have possibly imagined.

SAM: Yeah.

SARA: What are you doing to stay grounded and centered in this time to take care of yourself? And I'm asking you personally, because you give really great answers that other people might hear, might hear a little bit of advice in.

SAM: I think more and more, I am – maybe not remembering, sometimes remembering and sometimes learning for the first time – the important revolutionary act that is surviving. And I just spent the last week with an incredible group of translators with the Rockwood Leadership Institute . . .

SARA: Wow.

SAM: . . . who gave me such immense hope for our future. Not because of any one specific strategy or policy, but because having members of a community who see the worst of what society has to deal us and still are so committed to lifting each other up, is transformative. There is something so beautiful about this community. And sometimes we are really up against it. Sometimes they have us turn on each other. But at the end of the day, the way that we have always survived has been taking care of each other. There is something about our community that actually is defined by how we love one another in a way that is kind of unique. And the thing that I am doing is trying to lean into what defines my community, which is love. I'm spending a lot more time with my people, especially in the moments that I really don't want to. I just want to go lie in bed and turn on something dumb. Those are the moments that, annoyingly for an introvert like me, for somebody who actually finds quite a bit of centering in nature and hiking, in the ocean that I just moved back to, that is very much my spiritual home. Unfortunately, we cannot get through this in isolation, and we have to turn to one another. I'm annoyed about it a lot of the time. But it is true, and it really takes the edge off that we are such an extraordinary group of people.

SARA: Amen to all of that. Yes, I wholeheartedly agree with you on all fronts. I just yesterday was in a community care space for trans folks that we’re hosting with some partner organizations. And I was so tired. I didn't want to go. But every time I go, I walk out of that door just feeling so lifted and so connected, and it does make a difference. Thank you for that reminder. Thank you, Sam, for being so generous with your time and your brain, and your mind, and your expertise, and your political analysis. You are one of the go-to voices that I know I turn to for that kind of analysis. And I will want to make sure that we put your Substack link in our show notes so folks can go and read your reflections and analysis as well.

SAM: Ah, well, thank you. You will hear me say the same things over and over in different court case contexts. But y'all are always the most lovely to hang out with. Thank you so much for having me. Thank you for the work that you are doing.

SARA: Thank you. Thanks so much for joining us here in the Den. Did you know that Mama Dragons offers an eLearning program called Parachute? This is an interactive learning platform where you can learn more about how to affirm, support, and celebrate the LGBTQ+ people in your life. Learn more at Mamadragons.org/parachute or find the link in the episode show notes under links.

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