The Daily Signal - Ep. 291: Pennsylvania Sneakily Changes Law on Gender

Episode Date: September 5, 2018

Pennsylvania is taking a page out of the Obama playbook. A state commission in Pennsylvania is attempting to impose gender ideology on residents of that state by going around the legislature. Heritage Foundation's Monica Burke explains. Plus: We discuss the now-infamous article written by a self-identified resistance person in the Trump administration. Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

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And I'm Daniel Davis. Pennsylvania is taking a page out of the Obama playbook. State Commission in Pennsylvania is attempting to impose gender ideology on residents of that state by going around the legislature. We'll sit down with Heritage Research Assistant Monica Burke to get the full breakdown. Plus, we'll discuss the now infamous article written by a resistance person in the Trump administration. But first, we'll cover a few of the top headlines. Well, the fireworks did not let up on day three of Brett Kavanaugh's confirmation hearing for the Supreme Court. Senator Cory Booker became the center of controversy when he openly and knowingly violated Senate rules by releasing confidential committee documents relating to Kavanaugh's time at the Bush White House.

What he didn't realize at the time was that those very documents, along with others, had just been cleared for release by the committee that very morning. But nonetheless, the senator from New Jersey made quite a scene in the hearing. He said the classified documents gave a window into Kavanaugh's views on things like abortion and torture, and he remained unapologetic for breaking the rules. I knowingly used so-called committee confidential documents yesterday, knowingly in violation of this rule, and I stand by that. The public has a right to know. Senator John Cornyn of Texas openly rebuked Booker for brushing aside Senate rules.

No senator deserves to sit on this committee. or serve in the Senate, in my view, if they decide to be a law into themselves and willingly flout the rules of the Senate and the determination of confidentiality and classification. That is irresponsible in conduct unbecoming a senator. President Donald Trump is reportedly furious about an anonymous op-ed published in the New York Times Wednesday, headlined, quote, I am part of the resistance inside the Trump administration. end quote, and reportedly by a senior official in the administration. When you tell me about some anonymous source within the administration, probably who's failing

and probably here for all the wrong reasons. If the failing New York Times has an anonymous editorial, can you believe it? Anonymous, meaning gutless, a gutless editorial, we're doing a great job. I got to say it is little gutless to be anonymous. But anyway, Sarah Huckabee Sanders called the author a, quote, coward and called on the author to resign. Meanwhile, several administration officials have denied they are the anonymous person, including Vice President Mike Pence, Sanders herself, and several members of the cabinet. Well, the Justice Department is taking action against a North Korean hacker accused of carrying

out belligerent cyber activities. The department announced on Thursday it was charging Park Jin Hyok, a North Korean national, that officials accuse of being part of a state-sponsored hacking operation, which is responsible for the 2014. hack of Sony and the 2017 ransomware attack that affected over 200,000 computers worldwide. Park is charged with one count of conspiracy to commit wire fraud and one count of conspiracy to commit computer-related fraud. He's considered a fugitive from justice as his last known whereabouts were in North Korea. It is no longer illegal to have gay sex in India. The New York Times reports that the top court in India struck down an old law.

De Pak Mistra, the top justice in India, told the courtroom, quote, we have to bid a due to the prejudices and empower all citizens, end quote. The law was originally from the 1860s. Well, the Trump administration is set to issue a new rule Friday that will extend the amount of time that migrant children can be held at the border. The new rule would allow border patrol to keep migrant children held together with their families for as long as their cases are pending. The current policy was set by a court decades ago and dictates exactly how long migrant children can be held and under what conditions. The new policy is expected to face legal challenges. Following a probe in Pennsylvania, New York is now set to examine Catholic diocese's behavior on sexual abuse. The state of New York is subpoenaing all eight diocese in the state and has established a phone number for people to call into report abuse.

New York Attorney General Barbara Underwood said in a statement, quote, the Pennsylvania Grand Jury Report shined a light on incredibly disturbing and depraved acts by Catholic clergy, assisted by a culture of secrecy and cover-ups in the diocese. And, quote, victims in New York deserve to be heard as well, and we are going to do everything in our power to bring them the justice they deserve, end quote. A spokesman for the diocese of Buffalo, New York, said, our diocese will cooperate with any investigative. initiated by the New York Attorney General or District Attorney. Well, Facebook has not done very well in the year 2018. A new Pew study shows that in the last year, one out of four Americans deleted their Facebook account.

And perhaps even more stunningly, 44% of millennials deleted their account during the same time. The sharp decline comes as Facebook finds itself under increased scrutiny for its use of private user data for advertisements and its algorithms, which some say can amount. to political censorship. Facebook shares took a heavy tumble this past July, dropping by 20% costing over $120 billion in market value. After releasing the Coal and Kaepernick ad, Nike's popularity has gone down nearly 20 points, while its unfavorability has risen by nearly 20 points as well.

That's according to a poll by morning consult. Meanwhile, the National Association of Police Organization says it wants people to boycott the brand. But the Intercept reports that the National Black Police Association has a different take. National Chair Sonia Pruitt says the organization, quote, believes that Mr. Kaepernick's stance is in direct alignment with what law enforcement stands for, the protection of a people, their human rights, their dignity, their safety, and their rights as American citizens.

Well, up next we'll talk to Monica Burke about Pennsylvania's effort to impose gender ideology. Did you know you can now listen to all of our events, through SoundCloud or just by visiting our events page on heritage.org. You now have access to hundreds of events and compelling discussions on policy issues from your car, on the train, or the comfort of your own home. Visit heritage.org slash events for more information or search for the Heritage Foundation on SoundCloud. Joining us today is Monica Burke, a research assistant at the Heritage Foundation.

Monica, in a recent op-ed for the Daily Signal, you wrote about a very sneaky move in the state of Pennsylvania that has real repercussions. Can you please share with us what Pennsylvania did that really empowered, let's say the liberal understanding of what gender is? Absolutely. So this is a pretty daring move by the Pennsylvania Human Relations Commission. They recently released new guidance re-interpreting the category of sex and anti-discrimination law to include, and I'm going to read the list because it's long. Sex assigned at birth, sexual orientation, transgender identity, gender transition and or gender expression. And so this is a pretty serious change in how we interpret the law.

It has some real implications for the safety of women and children in particular. And it also could have implications for the exercise of religious rights in the state of Pennsylvania. So we've got federal laws that protect people based on sex. And we saw the Obama administration kind of try to do a similar thing, reread into that word, sex, a whole bunch of categories that were not in the minds of people who wrote it, things like gender identity, very recent innovations. Is this basically a smaller version, Pennsylvania, trying to do the same thing? Yes, that's a great way of thinking about it. And, of course, the Obama administration's move was ultimately stopped in its tracks.

So I'll recap for your listeners what happened with the Obama administration. So in 2016, the Department of Justice and the Department of Education penned this dear colleague letter that was supposed to be. to reinterpret sex to mean gender identity. Since then, the Trump administration has formally rescinded that guidance. And back in 2016, HHS also stated that sex was going to equal gender identity in Obamacare. And that would have had huge implications for doctors being forced to perform sex chain surgeries and a whole host of implications. And ultimately, a judge stopped that move in the 11th hour. So now what's happening in Pennsylvania is like a microcosm of what happened with the Obama administration. So the Human Relations Commission essentially bypassed the debate ongoing in Congress about whether to add sexual orientation and gender identity to anti-discrimination laws.

There are two bills, House Bill 1410, and Senate Bill 613, that would have done precisely this in the state. They bypassed that discussion and did it by reinterpreting the guidance. Right. So to unpack this a little, essentially what happened was, I believe, in the 1970s, there were a lot of laws passed that said you can't discriminate based on sex. In other words, you have to treat men and women the same. Obviously, that was a very heated discussion at that time in American history. And my understanding is with these laws, as you just explain, what they're doing is instead of, as you said, having the state legislature or the federal legislature debate this, they're just saying, oh, these old laws, which were passed. in the 70s when transgenderism and gender identity were not nearly the political topic they are now, suddenly apply to this whole range of cases, which it's frankly ludicrous to believe that the original authors of the law intended them to apply to. Is that right? Absolutely. That's a great read

on the situation. And one of the interesting things about reinterpreting sex to include all of these categories is that women, for whom many of these anti-discrimination laws on the basis of sex were past who are supposed to be protected by those laws, they oftentimes lose out under these new sexual orientation and gender identity policies, particularly when it comes to safety and privacy and sex-specific spaces, which is one of the concerns that the commission attempted to respond to when it published its final guidance. And I would venture to say that they did not really answer to the public for all of their concerns. They sort of dismiss. a lot of the harms associated with these policies.

And I think particularly parents and educators should be concerned about these kind of policies in schools. Because when children are at stake, the stakes are pretty high. Well, it's interesting that they just went straight around the legislature, which tends to show that they doubt it could get through the legislature. So they're just going to impose it from on high. Does this essentially stem back to the governor's office? Because the governor, I mean, I'm actually not quite familiar how the Pennsylvania government is structured,

but does the governor basically control what any commission does? Does this really stem back to him? That is an excellent question. I'm not sure what the explicit connection would be between Governor Wolf, Governor Tom Wolfe and Pennsylvania and this commission, but it is an interesting theory. given that these kinds of policies were a hot topic debate during the primaries for the governor's race and definitely proved very controversial. A lot of citizens were not happy about the idea of these policies being added in law.

So it definitely is suspicious and perhaps incongruous with public opinion that they would be imposed through a bureaucratic agency. So in terms of practical effects, what would have, what do you expect could happen in? Pennsylvania. I know you mentioned shared spaces. Should we assume that in Pennsylvania schools now, you know, if a boy starts identifying as a girl, he can right away use, you know, women's restrooms, et cetera. I think you'd mention there could be implications for religious people, for women and homeless shelters. Could you maybe unpack some of the possible impacts? Yes. So let me go and unpack all of the examples you brought up. So first of all, these are, these are all really important. We have to think about all of the implications. One of the concerns is sex specific spaces.

And so the Human Relations Commission did mention in response to public comments the question of transgender bathroom policies. And so what that will mean for the schools will have to play out. There was a case in Pennsylvania raising the question about transgender bathroom locker room policies. So whether children could potentially either be exposed to the genitaly of the opposite sex, which of course is it's horrible. for those who have undergone sexual trauma in the past, but also what these policies mean for making law enforcement less likely to get involved when sex offenders are taking advantage of the ambiguities in the law to gain access to victims. So that's one concern. And you alluded to women's shelters. Right now there's a case in Anchorage, Alaska, of a biological male who

wanted access to a women's shelter that specifically tries to take care of battered women who have been sexually assaulted. And when this person who's now suing wanted access to the women's shelter, they were inebriated, the people at the shelter attempted to help them. And now they're being sued. Their lawyer is being sued for gender discrimination. So this could very well happen in Pennsylvania. Another big implication that's already unfolding in Pennsylvania under a local policy is that the city of Philadelphia is shutting down a Catholic adoption agency, because they prefer to place kids with moms and dads because of their religious beliefs about marriage.

And so while the commission, you know, referred to state law protecting religious liberties saying that citizens will be covered under this law, what's unfolding in Philadelphia suggests otherwise. And so the commission should not be so confident. Yeah, we've, of course, had your article, several articles about that unfolding in Philadelphia, the Catholic Charities adoption agencies.

But on this transgender question, This is clearly a dispute over what the law says, what the law means. Do you expect there to be litigation coming from the other side to kind of push back on this? Yes, there is litigation on both sides of the question. That's part of why this is such a hot topic of debate. Different case law and different circuit courts are suggesting different interpretations of the law. But I would go back to the meaning of the words themselves, which is when many of these anti-discrimination laws were passed, as you mentioned in the 60s and 70s, sex very clearly was meant to indicate

biological sex. And the term gender etymologically speaking arose as a distinction from biological sex to connotate all of the social norms that we have associated with a given biological sex. And so if we're going to have a discussion about what transgender bathroom policies, what other sexual orientation and gender identity policies mean in a public context. We need to be able to have the vocabulary to express that distinction. And so I think the words have that distinction. The law ought to be interpreted in support of that distinction. It's contextual.

So moving forward, we need to continue to have this discussion. So last question. Are there other states besides Pennsylvania where essentially the administrative state has redefined sex this way? Is this a maneuver that we can expect to see elsewhere in the country or have already seen or how is it playing out nationally? That is an excellent question. And while I don't have at the ready a list of states where these policies have been imposed on that way, we expect you to know everything. I know the all-knowing guru. We do know that a lot of states, a lot of localities as well, either they've done this through administrative reinterpretation or they have

past laws or past local ordinances that have the same effect. And so cases like the one in Alaska should make us take pause, should make us be very real and honest about the implications of these policies. And I think we can have that discussion in a very empathetic and compassionate way that maintains the dignity of all human beings, regardless of their sexual orientation and gender identity. But everyone who's listening to this podcast ought to read up on state and local laws and ordinances and see whether their rights are implicated. Yeah, and we'll certainly continue to be covering that issue. And, of course, as you mentioned, you know, I think something that often gets lost in the biased media coverage is there are solutions such as single-use bathrooms that allow transgender people to have their dignity respected while maybe avoiding some of these more controversial moves. But thank you very much for joining us, Monica. Thanks again for having me.

Do you like podcasts like New York Times The Daily or anything from NPR that breaks down important policy issues? But are you tired of the liberal spin? Then you need to check out Heritage Explains. Each week, we dive into timely policy issues at a 101 level from a conservative perspective. Find us on iTunes or wherever you get your podcasts. Washington, D.C. is a buzz this week over a now infamous op-ed in the New York Times, purportedly written by a senior official in the Trump administration who remains anonymous. The op-ed is titled,

I'm part of the resistance inside the Trump. Trump administration and goes on to detail ways that the top White House and administration officials have boxed in the president to check what the author considers are his worst inclinations. The anonymous author says he or she is part of a multi-person effort within the administration, yet the author sets these people apart from the typical resistance. He or she writes, quote, "'Ours is not the popular resistance of the left. We want the administration to succeed and think that many of its policies have already made America safer and more prosperous.

But we believe our first duty is to this country, and the president continues to act in a manner that is detrimental to the health of our republic. That is why many Trump appointees have vowed to do what we can to preserve our democratic institutions while thwarting Mr. Trump's more misguided impulses until he is out of office. Well, at one point, the author also says, quote, Americans should know that there are adults in the room. We fully recognize what is happening, and we are trying to do what's right, even when Donald Trump won't, end quote. So this was an absolute bombshell this week.

Kate, I was stunned to see it. You know, you don't typically see this from other administrations. What did you make of it? Oh, I had a lot of thoughts. First off, I'm sort of vaguely curious how the New York Times is sure whoever submitted it is who they say. they are presumably you wouldn't just trust an email address so I have a lot of questions about that but unfortunately they did at the top of their articles say that they welcome any questions

about their vetting process I know but I don't see how they would answer that without giving it away like how would you get that confirmed did the person come in person and deliver it like how just like from being editor myself and vetting sources I mean they have had New York Times teams here in D.C. They could have met with the person to come through. Totally but I would just that would be so interesting if that's how they were sure that it was the person and are there photos anywhere. Did someone get? Anyway, one of the things that I saw on Twitter is that there are up to you, I believe, 1,200 people who could arguably call a senior administration official.

I believe a former New York Times reporter was tweeting that there could be even more than 1,200 people that the New York Times would consider calling a senior administration official. So I guess what I'm saying is I don't know who this person. is, obviously. But I'm also not necessarily convinced that they are as close to Trump as this op-ed presumes. They made a lot of claims, which if they are true or certainly very concerning. At the same time, obviously Trump isn't hanging out with 1,200 people on the reg. So is this something they actually know from firsthand experience or from talking to those with firsthand experience of working with the president? Or are they just like reading his tweets

and assuming that's the same as what he says, you know, in the West Wing? and going with it. I don't know. I don't know how seriously to take this. Well, the thing that gives me pause is that the New York Times knows who it is, and they know that it'll probably eventually come out, and when it does, they'll have to answer for it. So they are, in a sense, putting their name on the line. And I think the fact that it was New York Times is, you know, if someone ran this with another small outlet that didn't have their reputation, that the article would have less credibility. No matter what you think about the New York Times, they are considered the paper of record,

and so they take that seriously. So I would tend to expect that, you know, it is the person. Well, I'm sure that they have figured out a case that they can make for why this person is arguably a senior administration official. I'm just saying, you know, I'm not even sure how much one-on-one time. Trump's cabinet members have had with him. So just because someone, yeah, let's say it's one of the 1,200 who wrote this, do they actually know the president?

I don't really know and I don't know that the New York Times knows. But, you know, all that being said, I think one of the most confusing things to me, and this was a point that others had made already. But like, if, you know, if you really thought the president was this dangerous and you thought that the country needed to be saved from his leadership through his own employees, you know, thwarting what he wants to do, essentially, and manipulating him. Why would you write that down? Exactly.

Why would you publish it now and not six years from now when you can write a book about it? And, I mean, yeah, writing it now. What are you hoping to achieve with this? Right. You're putting a big, you know, target over your face, basically saying, come and find out who I am. Well, no, but even more so, it's almost like you're saying, don't listen to your staffers because they're secretly manipulating you.

So if you actually think his staffers are helpfully secretly manipulating him, the last thing you would want to do was set President Trump off by like with an anonymous op-ed and his hated New York Times saying, beware of this. So I don't know if this person is just like an idiot. I don't know what they were trying to achieve. I really have a hard time seeing how this does. anything productive except make President Trump extremely angry. And I mean, I think what they're saying is what, you know,

certainly a lot of people on the left and I think some on the right already thought was the case. So I don't know. Well, going just by the words of the article, it seemed to me that they wanted to send a message to the country about, you know, you know, it's not just craziness in the White House that were, you know, there are people there. I have no idea. There's no way to know what the author wants to do.

But maybe he was trying, he or she was trying to preempt maybe a impeachment proceeding or something saying, you know, hey, you don't need to impeach because we got things under control. But who knows? I agree with you. I think ultimately it doesn't make sense to do this because the goals that you're talking about in the op-bed are actually undermined by it being public. Yeah. And I forgot who said this. It might have been Michael Brennan-Darty, but someone on Twitter,

was like pointing out that like it just seemed to be very unaware of sort of what Trump was bringing to the table that was new that might have appealed to, you know, the millions of Americans who voted for him. Obviously his personal style is unusual in politics. But just sort of like the policy stuff it talked about was very much like your typical Republican stuff without considering that, you know, Trump has done stuff that seems to speak to something among blue-collar Americans that a lot of other people in the GOP haven't done. So anyway, I...

Well, that's why he won the election. Right, and I didn't think the op-ed sort of wrestled with that. I don't know. It felt very much to me like someone who lives in a bit of the DC bubble and didn't... I don't know. I guess there are ways this op-ed could have been written that I think would have been a lot more compelling. But as it is, I think we're going to speculate and probably we're going to find out you know, there is no way we're not going to find out after Trump is no longer in office.

Oh, yeah. But I don't know if they're going to be able to come out with it before that. I mean, if they're like searching computers and phones and stuff. I mean, my first thought when I saw this was, man, this is going to make a political thriller one day. This is definitely going to be a movie. It's just a matter of when. It definitely will. And I wonder if the person will end up being as, like, annoying as James Comey.

Yeah. But we'll see. Yeah. Well, we're going to leave it there for today. Thanks so much for listening to The Daily Signal podcast, brought to you from the Robert H. Bruce Radio Studio at the Heritage Foundation. Please be sure to subscribe on iTunes, Google, Play, or SoundCloud, and please view us a review or a rating on iTunes to give us any feedback.

Rob and Jenny will be with you on Monday. You've been listening to the Daily Signal podcast, executive produced by Kate Trinko and Daniel Davis, sound design by Michael Gooden, Lauren Evans, and Thalia Rampersad. For more information, visitdailysignal.com.