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The High Court, the High Stakes, and the Future of Women’s Athletics · The Ben Ferguson Podcast

0:00
Speaker 1: As I promised you in yesterday's show, I was going
0:04
Speaker 1: to have a good friend of mine, my former roommate
0:05
Speaker 1: on who's now the Attorney General of West Virginia, and
0:08
Speaker 1: had an incredible moment at the Supreme Court fighting to
0:11
Speaker 1: keep boys acting like girls out of women's sports. This
0:16
Speaker 1: is a case that is going to have repercussions all
0:19
Speaker 1: over the country as the country's divided.
0:21
Speaker 2: Basically on this issue.
0:22
Speaker 1: About half the country states in the country allow boys
0:26
Speaker 1: to play in girls' sports. The other half said no.
0:28
Speaker 1: We're now at the Supreme Court over this.
0:31
Speaker 2: JB.
0:31
Speaker 1: It's always a pleasure to see you fighting for something
0:34
Speaker 1: that is such a big deal to you, and we
0:36
Speaker 1: have time to set the stage. This has been an
0:38
Speaker 1: exhausting twenty four hours. It's been exhausting court case in general.
0:41
Speaker 1: You have daughters, I've got sons. I try to put
0:45
Speaker 1: myself in your situation when you became the age and
0:49
Speaker 1: you're fighting to protect your daughters in sport, trying to
0:52
Speaker 1: make sure that boys.
0:53
Speaker 2: Are out of their locker rooms, out of their sports.
0:55
Speaker 1: The number of injuries to women and young girls when
0:58
Speaker 1: they have to play with boys skyrockets after the age
1:01
Speaker 1: of like two three four five. And we've seen major
1:05
Speaker 1: injuries to women in high school and college sports when
1:08
Speaker 1: they're forced to play, plus just the invasion of their
1:11
Speaker 1: privacy to the locker room. We've seen sexual assaults in
1:13
Speaker 1: those locker rooms. All of the things that now made
1:15
Speaker 1: this come to an issue. But you decided to lead
1:18
Speaker 1: on this issue, and you wanted this to get to
1:19
Speaker 1: the Supreme Court, and it did.
1:21
Speaker 2: Yeah, So interestingly enough, we got sued. And so the
1:25
Speaker 2: reason we were in the Supreme Court was because the
1:27
Speaker 2: ACLU sued West Virginia within hours of us passing a
1:31
Speaker 2: common sense law that simply says that biological men cannot
1:36
Speaker 2: play sports against biological females. And that makes sense because
1:39
Speaker 2: we have to create spaces where women have a safe
1:43
Speaker 2: and fair playing field in order for them to experience
1:46
Speaker 2: all the unbelievable things that competitive sports bring. And you
1:49
Speaker 2: and I were both NCAA athletes, right, We've both played
1:53
Speaker 2: competitive sports. And one of the sort of underlying themes
1:57
Speaker 2: that I've seen in this is that a lot of
1:59
Speaker 2: people on the other side with the ACOU talk about
2:02
Speaker 2: how I just want to have fun. These kids need
2:05
Speaker 2: to be able to just have fun, and I don't
2:07
Speaker 2: want kids to not have fun. But competitive sports matter.
2:10
Speaker 2: And the reason why I keep repeating the word competitive
2:14
Speaker 2: is because you can't learn the lessons about sports if
2:17
Speaker 2: you're just there to enjoy yourself, because you have to
2:20
Speaker 2: understand what it means to lose something that you really wanted.
2:23
Speaker 2: You have to be able to look at yourself and
2:25
Speaker 2: reflexively say, did I work hard enough? Yeah? Right? Did
2:28
Speaker 2: I hit enough range balls? Did I hit enough serves?
2:30
Speaker 2: Did I get enough shots up? Did I run enough laps?
2:33
Speaker 2: Did I do enough sprints? Did I lift enough weights?
2:35
Speaker 1: Right?
2:35
Speaker 2: And if you have lost the race before the gun
2:39
Speaker 2: even goes off, because your competitor has an extensive biological
2:43
Speaker 2: advantage over you, there's no way to learn that lesson.
2:46
Speaker 2: And so that's really the underpinning of all of this
2:49
Speaker 2: is that I don't know that a lot of people
2:52
Speaker 2: who are against us on this understand the value of
2:55
Speaker 2: the competition as opposed to the entertainment value of the exercise.
3:02
Speaker 2: You and I both know Riley Gaines. You've got to
3:04
Speaker 2: know her pretty well through all this. I've got to
3:06
Speaker 2: know her through all this as well.
3:07
Speaker 1: Riley is a perfect example of someone that dedicated her
3:10
Speaker 1: life to a sport to become the best at it,
3:13
Speaker 1: not just compete in it, compete for an NCAA championship.
3:17
Speaker 1: You only get, i argue, not four shots at it
3:20
Speaker 1: because usually a freshman you're not in the running because
3:22
Speaker 1: you're a freshman. You're getting better sophomore year usually or not.
3:24
Speaker 1: It's usually your junior senior year that you might have
3:26
Speaker 1: a shot at national individual title. Most of the time
3:29
Speaker 1: it's a senior that wins, and she did everything right,
3:32
Speaker 1: and then it was stolen from her because of a
3:35
Speaker 1: guy that a year before, let's say a year before,
3:38
Speaker 1: was competing with men, couldn't hack it and decide I'll
3:41
Speaker 1: just ack like I'm a woman. And then not only
3:44
Speaker 1: did he succeed, but the statistics also show that when
3:47
Speaker 1: men choose to compete with women at the highest level
3:50
Speaker 1: of sports in college is what I'm going to describe
3:53
Speaker 1: it as. Now are the Olympics, they immediately take the
3:56
Speaker 1: majority of the awards because there is such a difference
3:59
Speaker 1: between men and women.
4:00
Speaker 2: We witness this the other day.
4:02
Speaker 1: Nick Kirios, who's ranked I think six hundred something in
4:04
Speaker 1: the world right now, at the end of his career
4:06
Speaker 1: after injuries, not playing played the.
4:08
Speaker 2: Number one woman in the world.
4:09
Speaker 1: They even made the court smaller for where he was
4:12
Speaker 1: hitting into and demastor on a level that was almost entertainment.
4:17
Speaker 1: It was like not even trying his hardest, and he's
4:20
Speaker 1: still beat her easily. There is a difference between men
4:23
Speaker 1: and women, saying people understand this, but the acou and
4:26
Speaker 1: the people fighting you at the Supreme Court do not
4:27
Speaker 1: acknowledge that well.
4:28
Speaker 2: And I think one of the other things that's really
4:30
Speaker 2: sort of lost in all this is that women's sports
4:34
Speaker 2: are great for sometimes a very different reason, right, Like,
4:38
Speaker 2: if I'm turning around on if I'm tuning around on
4:40
Speaker 2: the TV, I love watching women's tennis. Yeah, I prefer
4:43
Speaker 2: women's tenants to men's tennis because I think it's a
4:45
Speaker 2: prettier game, if I'm being honest. Being an American soccer
4:48
Speaker 2: fan in soccer was sort of my game. I like
4:51
Speaker 2: watching the women's team for a couple of reasons. Number One,
4:54
Speaker 2: I have female soccer players that live in my house,
4:56
Speaker 2: my daughters. Two they place, they don't dive, yeah, and
4:59
Speaker 2: they don't waller around on the ground and pretend like
5:02
Speaker 2: they're hurt all the time. And three, they play the
5:04
Speaker 2: game the way that it was supposed to be played.
5:07
Speaker 2: There's a beauty in women's soccer that has sort of
5:10
Speaker 2: been lost in men's soccer.
5:11
Speaker 1: Well, but you know, my kids are golfers. Look at
5:14
Speaker 1: women's golf. The women's golf swing is better than the
5:16
Speaker 1: men's golf.
5:17
Speaker 2: Right.
5:17
Speaker 1: The men beat up courses by it swing speed and
5:20
Speaker 1: power and overpowering golf course.
5:22
Speaker 2: The women's swing is like poetry. In my opinion, women's
5:25
Speaker 2: golf is amazing, amazing to watch because again, they're playing
5:29
Speaker 2: the game the way that it was intended to be played, right,
5:32
Speaker 2: and so they're playing the game in a thoughtful way
5:34
Speaker 2: where they're they're working their way around the course because
5:36
Speaker 2: they can't overpower it except for a couple of them. Yeah,
5:40
Speaker 2: you know, but women's golf is awesome. And for any
5:42
Speaker 2: of the guy golfers out there, you don't play like
5:44
Speaker 2: PGA Tour players, right, watch women's golf. If you want
5:47
Speaker 2: to get better at golf. They will show you how
5:49
Speaker 2: to be elite at golf in a way that the
5:51
Speaker 2: men's game cannot show you.
5:53
Speaker 1: Right now, somewhere in the world, a kid you've never
5:56
Speaker 1: met is writing you a letter. They're telling you about
5:59
Speaker 1: their dreams. The goal, they scored, the test they passed,
6:05
Speaker 1: the new friend they made at school. Maybe they're drawing
6:08
Speaker 1: you even a picture. Maybe they've asked you about your family,
6:11
Speaker 1: your favorite color, what makes you laugh. They're wondering who
6:15
Speaker 1: you are, this person who cares enough to be part
6:18
Speaker 1: of their story. And you you're not just sending money.
6:22
Speaker 1: You're writing back. You're showing up month after month, letter
6:26
Speaker 1: after letter. You're celebrating their victories, encouraging them through challenges,
6:31
Speaker 1: and reminding them that they truly matter. Now this isn't
6:35
Speaker 1: a transaction, It's an incredible relationship that spans continence and
6:40
Speaker 1: changes everything for both of you. That is where Compassion
6:44
Speaker 1: International connects you directly with one child, real letters, real relationships,
6:50
Speaker 1: and real change, because poverty isn't solved with donations alone.
6:54
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6:58
Speaker 1: at a time and learn how at Compassion dot Com.
7:03
Speaker 1: That's Compassion dot Com. You look at this case and
7:09
Speaker 1: the ACAU immediately says they were looking for this fight
7:11
Speaker 1: as you described it. They come in, they sue, tell
7:15
Speaker 1: us the circumstances around this case and what happened. Because
7:19
Speaker 1: there's also a very interesting caveat with this case, and
7:22
Speaker 1: that is how fast it moved all the way.
7:24
Speaker 2: To the Supreme Court. Yeah, so a couple things. First,
7:30
Speaker 2: I get asked this question all the time. You know,
7:32
Speaker 2: why are you wasting the state's time and money doing
7:34
Speaker 2: this case over one person or whatever it is? The
7:38
Speaker 2: argument that this only affects the athlete involved is so
7:42
Speaker 2: offensive to the thousands of women who are displaced by
7:46
Speaker 2: any athletes involved, right, and we're talking about literally thousands
7:50
Speaker 2: of metals worldwide that have been displaced. And so number one,
7:54
Speaker 2: this was a fight that was worth fighting, right, And
7:57
Speaker 2: when the ACLU is losing on the facts and they're
7:59
Speaker 2: losing on the argument, they attacked the messenger. And so
8:01
Speaker 2: that's really where they've gone with us at this point
8:04
Speaker 2: is you know, why are you singling out this person? Well,
8:06
Speaker 2: that person actually singled out us. But at the end
8:10
Speaker 2: of the day, the court, I think wants to give
8:14
Speaker 2: some clarity here because the noise around this issue has
8:18
Speaker 2: gotten louder and the drumbeat has gotten quicker on our side. Right,
8:23
Speaker 2: the American public has changed their mind on this issue
8:26
Speaker 2: in a way that is really pretty interesting. Over the
8:28
Speaker 2: last five years, I don't know that I've seen a
8:30
Speaker 2: social issue, go from taboo to talk about to professional
8:37
Speaker 2: female athletes who you might even see on ESPN speaking
8:40
Speaker 2: out on behalf of these women.
8:42
Speaker 1: Martina Navatilova, for example. I mean, this is a woman
8:44
Speaker 1: who was the face of the LGBT community in sports.
8:49
Speaker 1: She was one of the first women to ever come
8:50
Speaker 1: out in sports. It legitimately cost her millions of dollars
8:54
Speaker 1: coming out and being ostracized when she did it. She
8:57
Speaker 1: has been the biggest advocate for protecting women's sports and
9:02
Speaker 1: has been ostracized by the now LGBTQ plus ia community.
9:07
Speaker 1: They've tried to destroy her for saying this is a
9:10
Speaker 1: line too far protect women's sports, and I'm shocked having
9:14
Speaker 1: feminists have disappeared from this well.
9:16
Speaker 2: And what was really great was watching the young women
9:19
Speaker 2: who I met from Bridgeport, West Virginia, who stood up
9:24
Speaker 2: in this instance three years ago. To watch them have
9:27
Speaker 2: their day in court, to watch their opinions and their
9:30
Speaker 2: lives and their athletic abilities be vindicated, hopefully at the
9:35
Speaker 2: highest court in the country. And the bravery that these
9:37
Speaker 2: young women have shown in the face of what we
9:39
Speaker 2: know can be really vitriolic responses was nothing short of inspiring.
9:45
Speaker 2: To me. One thing I do have to say is
9:48
Speaker 2: a personal note here. You and I were roommates.
9:51
Speaker 1: One of our other roommates who others work the American
9:54
Speaker 1: Center for Injustice the ACLJ. They've been described as the
9:57
Speaker 1: opposite of the ACLU, which is who's the state of
10:00
Speaker 1: West Virginia. And we are sitting here at the ACLJ
10:02
Speaker 1: now having this conversation seeing twenty plus years later, all
10:06
Speaker 1: of us still coming to bedther there fighting the good
10:08
Speaker 1: fight and doing what we love, which is this fighting
10:12
Speaker 1: for a country, fighting for what we believe in. It
10:14
Speaker 1: is a really sweet moment. I think that many in
10:16
Speaker 1: the media don't understand the backstory on this.
10:18
Speaker 2: Yeah, who would have thought that the Ford Dingleberrys that
10:21
Speaker 2: three hundred masks have would have ended up doing what
10:23
Speaker 2: we're doing today. But yeah, it's number one. It's great
10:27
Speaker 2: to see you. It was awesome to see Don and
10:29
Speaker 2: you know, we're all just super proud to have been
10:31
Speaker 2: ACLJ alumni, right, and this is an organization that does
10:34
Speaker 2: it the right way. They're humble, they're honest, and they
10:36
Speaker 2: fight the good fight, not just for the people of America,
10:39
Speaker 2: but for the people of Israel and for Christians and
10:41
Speaker 2: Jews and religious people all across this country who are
10:44
Speaker 2: being persecuted. Yeah.
10:45
Speaker 1: No, if you don't know about the American Servi Injustice
10:48
Speaker 1: as you're listening right now, you should check them out.
10:49
Speaker 2: The work they do is amazing.
10:50
Speaker 1: They fight for Christians, they fight for people they are
10:53
Speaker 1: being persecuted in front of abortion clinics for example, that
10:55
Speaker 1: are just out there praying, that have been arrested and
10:57
Speaker 1: abused by the past administration. And like you said, the
10:59
Speaker 1: Jewish issue as well is so important to them. So
11:01
Speaker 1: check them out. We say thank you to them for
11:03
Speaker 1: hosting us this week and helping us fight this good fight.
11:07
Speaker 1: Let's go into the court. I found there was two
11:10
Speaker 1: court cases. The first court case came up before the
11:13
Speaker 1: one from Virginia, and it was very clear to me
11:16
Speaker 1: that the three liberal justices that women were ready to go.
11:20
Speaker 1: They almost ran out of steam by the time they
11:22
Speaker 1: got to your case. They were obsessed with Title nine.
11:24
Speaker 1: They were obsessed with equal protection under law. And one
11:28
Speaker 1: of the parts that I thought was really interesting was
11:32
Speaker 1: sawto my oar very early on was clearly angry that
11:36
Speaker 1: there are not enough young children that you can count
11:39
Speaker 1: in the trans community.
11:40
Speaker 2: A majority of people that described.
11:42
Speaker 1: Themselves being trans under our adults, and she was almost
11:46
Speaker 1: advocating for parents to hurry up and make more trans
11:49
Speaker 1: kids so that we can get a larger number, so
11:51
Speaker 1: they become one percent, so then we can change laws
11:53
Speaker 1: to protect the one percent, because right now the numbers
11:56
Speaker 1: are so low that we're not at a point where
11:58
Speaker 1: we can just start changing laws. Did you read that
12:01
Speaker 1: the same way I did, because I was sitting there going,
12:02
Speaker 1: oh my gosh, she's literally from the bench Supreme Court
12:05
Speaker 1: advocating for parents to mutilate their children to put to
12:09
Speaker 1: stop their growth and puberty, barkers, hurry into it when
12:12
Speaker 1: they're two, three, four, five, because we need more of
12:14
Speaker 1: them right now.
12:15
Speaker 2: Yeah. I mean it was unsettling at the very least.
12:18
Speaker 2: That line of questioning and the answers that came from
12:20
Speaker 2: the ACOU I found unsettling at the very least. And
12:25
Speaker 2: I think everyone needs to be really really concerned with
12:29
Speaker 2: the progress that that argument has made on the left right.
12:33
Speaker 2: It has gone from all biological males should be able
12:36
Speaker 2: to play in female sports to well know, we understand
12:41
Speaker 2: that adult transgender folks do have an extreme athletic advantage,
12:47
Speaker 2: but if you're able to change your child's puberty prior
12:53
Speaker 2: to its starting. Then we have a whole nother subcategory.
12:57
Speaker 2: And so you know, I'm the father of a ten
12:59
Speaker 2: year old old girl and an eight year old girl. Yeah,
13:02
Speaker 2: and the idea that you would do anything to change
13:06
Speaker 2: their gender prior to them even knowing what excuse me
13:10
Speaker 2: to change their gender and their sex prior to them
13:13
Speaker 2: knowing what any of this means? Right, Like I was
13:15
Speaker 2: on I was on a zoom call with my ten
13:17
Speaker 2: year old last night because she's at home and she
13:19
Speaker 2: couldn't find an eighteen pack of toilet paper that was
13:22
Speaker 2: sitting outside of the front door. Yeah. Right, And we're
13:24
Speaker 2: talking about taking kids that age, right, Kids are kids, right,
13:29
Speaker 2: They don't know anything that they would eat sugar all
13:31
Speaker 2: day long.
13:32
Speaker 1: Let them right, They would literally be diabetic, all of
13:34
Speaker 1: them if we allowed them to do it and permanently
13:37
Speaker 1: changing their gender based on some The only justification could
13:41
Speaker 1: be is the parents are like, well, my child told.
13:43
Speaker 2: Me that, Well, your child doesn't know their.
13:45
Speaker 1: Children child also telling me you're Superman doesn't mean I
13:47
Speaker 1: let him jump off the roof, correct, although your kid
13:49
Speaker 1: would probably make it.
13:50
Speaker 2: He's putting uplea it. No it's true. I mean you
13:53
Speaker 2: sit there and you're like the insanity of cutting.
13:55
Speaker 1: A child and mutilating their body. When I mean kids,
14:00
Speaker 1: they've believed a lot of things, right, You're talking about
14:03
Speaker 1: all the things that kids believe in. And if you've
14:05
Speaker 1: got kids in the car, tarre down for a second.
14:07
Speaker 1: Three to two one, Okay, Santa Claus the tooth Fairy.
14:10
Speaker 1: You're letting the same kid that believes in those things,
14:12
Speaker 1: which is magical. That's what being a child is best.
14:15
Speaker 1: They believe that Mickey Mouse is real. Those are the
14:18
Speaker 1: great years. They're the magical years before they've learned the
14:22
Speaker 1: realities and the tough part of life. To then let
14:24
Speaker 1: them decide their sex and to mutilate their body to
14:28
Speaker 1: accomplish that. We've saw this at Vanderbilt. Vanderbilt tapes that
14:31
Speaker 1: came out a couple of years ago. They're like, Hey,
14:32
Speaker 1: find as many of these kids you can. What they
14:34
Speaker 1: really were saying is find as many of these parents
14:36
Speaker 1: you can.
14:37
Speaker 2: These are more they're really saying, is find as many
14:39
Speaker 2: of these check books as you can.
14:40
Speaker 1: Find, these multi million dollar checks that never stop correct.
14:44
Speaker 1: They had done the math. They publicly talked about it.
14:46
Speaker 1: If you can get a kid young, and you can
14:48
Speaker 1: do this. There were seven figures to us because your
14:51
Speaker 1: body is constantly rejecting what we're telling it to do,
14:54
Speaker 1: because it's not real. There is a difference between men
14:56
Speaker 1: and women.
14:57
Speaker 2: Find me a dude that's ever had a child.
15:00
Speaker 1: It doesn't exist, okay, And they want to make you
15:02
Speaker 1: believe that there's some guy have it that said pregnant.
15:04
Speaker 1: That's millions of dollars in this industry, which I think
15:07
Speaker 1: is sick and perverted. It's also not healthcare. I think
15:10
Speaker 1: this is on a level that we haven't seen since
15:13
Speaker 1: the Nazis. And I will say that publicly multiple times
15:16
Speaker 1: to let you understand how just demonic this is.
15:19
Speaker 2: But you look at this, it's a money game. It
15:21
Speaker 2: really is a money game for them, it is. And
15:23
Speaker 2: the sexualization of children is just abhorrent in general, right,
15:27
Speaker 2: I mean just that kids don't know about sex, they
15:30
Speaker 2: don't think about it, and it has to be being
15:33
Speaker 2: introduced to them by an adult who wants to do that, right,
15:36
Speaker 2: And that's monstrous. And I think one of the things
15:39
Speaker 2: that's really interesting about this is in fifty years, I'll
15:41
Speaker 2: bet you people look back at this period in American
15:44
Speaker 2: history and this issue right that, what we're talking about
15:47
Speaker 2: right now will be seen as one of the craziest
15:51
Speaker 2: and most dangerous things that we've ever done to the
15:55
Speaker 2: children of this country, if not the most dangerous maybe
15:58
Speaker 2: in the history of the world.
15:59
Speaker 1: I agree with you there talk about preparing for this
16:02
Speaker 1: case the Supreme Court, your attorneys, they did an amazing job.
16:06
Speaker 2: It also helps you.
16:07
Speaker 1: Have a really easy argument that you're making, a sane
16:09
Speaker 1: argument that you're making.
16:10
Speaker 2: Sometimes those are the hardest ones to make. They are,
16:12
Speaker 2: and it's almost like, wait, this is our whole argument.
16:14
Speaker 2: It's fascinating. Yeah, it's pretty simple. But how do you
16:18
Speaker 2: prepare for that?
16:19
Speaker 1: And how concerned were you guys that, Like, you're not
16:22
Speaker 1: just fighting for West Virginia in that moment, you're fighting
16:24
Speaker 1: for every child in America.
16:25
Speaker 2: Yeah, So you start preparing for that by hiring incredible lawyers.
16:29
Speaker 2: And I was able to do that to begin my
16:31
Speaker 2: term here as Attorney General, was to assemble a team
16:34
Speaker 2: of lawyers that is as good, if not better, than
16:36
Speaker 2: any other group in the entire country. West Virginia is
16:38
Speaker 2: once again punching way above its weight class. So it
16:41
Speaker 2: starts with talent and then the thing that's interesting about
16:45
Speaker 2: AG's offices is that, you know, most people that have
16:47
Speaker 2: a big Supreme Court case have one thing to do right,
16:50
Speaker 2: and our lawyers have five hundred other things that they
16:53
Speaker 2: have to be doing at the same time. Protecting the
16:55
Speaker 2: energy industry right, making sure we're protecting the Second Amendment,
16:58
Speaker 2: protecting the First Amendment, making sure we're protecting our consumers
17:01
Speaker 2: against giant healthcare conglomerates, etc. And big tech and all
17:05
Speaker 2: this other stuff. So we have five hundred other cases
17:08
Speaker 2: that we're working on. But to watch my team do
17:12
Speaker 2: the moots, do the research, get themselves ready, and then
17:15
Speaker 2: to see it culminate yesterday, I don't know if I've
17:18
Speaker 2: ever been prouder of any team of people I've ever
17:20
Speaker 2: been a part of. I mean, it was truly remarkable.
17:23
Speaker 2: It showed skill, it showed empathy, and it showed a
17:26
Speaker 2: real commitment to the Constitution and the law.
17:29
Speaker 1: Yeah, I got to say something that is a compliment.
17:33
Speaker 1: A lot of ags want to fight a case in
17:35
Speaker 1: front of the Supreme Court.
17:36
Speaker 2: You didn't take the mic. I think that was a very.
17:42
Speaker 1: Smart move, and not because you're not a great attorney,
17:46
Speaker 1: but you wanted to win and you didn't want to
17:48
Speaker 1: be like, Okay, I got to put the plaque up
17:50
Speaker 1: on the wall.
17:51
Speaker 2: When did you make that decision? Hi early on? Yeah,
17:53
Speaker 2: this isn't about me, right, this is about the women
17:56
Speaker 2: and girls of this country and making sure that they
17:58
Speaker 2: have a safe place to play. And so when you
18:02
Speaker 2: can remove that from your lexicon and say, look, this
18:05
Speaker 2: isn't my thing, you find the best person to do it.
18:08
Speaker 2: Mike Tomlin doesn't go play quarterback, right, Mike Tomlin, make
18:11
Speaker 2: sure that somebody who can throw the ball does that.
18:13
Speaker 2: It's not that I can't throw it. Mike can probably
18:14
Speaker 2: throw a football, but lord knows Aaron Rodgers a lot
18:17
Speaker 2: better at it than he is. And there's a humbleness
18:19
Speaker 2: to leadership that I think frequently gets lost in American
18:22
Speaker 2: politics these days. And I'm really proud to be able
18:26
Speaker 2: to say that these people work with me, not for me,
18:29
Speaker 2: and all of us work for the people of West
18:30
Speaker 2: Virginia and the American public. Let's talk about the case.
18:35
Speaker 1: I felt like as I was sitting in the Supreme
18:38
Speaker 1: Court watching these or arguments in Case number one, that
18:42
Speaker 1: they were hearing that there was a very good chance
18:44
Speaker 1: we're going to get a victory. You can read the court.
18:47
Speaker 1: It's not on TV. That's why it's really cool to
18:49
Speaker 1: be in the court. You can watch the faces of
18:53
Speaker 1: the justices. You could also, I think see from the
18:56
Speaker 1: frustration the anger from the liberal justices they felt like
19:00
Speaker 1: they were losing.
19:01
Speaker 2: Did you see it and read the room the same
19:02
Speaker 2: way I did?
19:03
Speaker 1: That this is there's a very good chance that we're
19:05
Speaker 1: going to have some pausitive outcomes for women and protecting
19:07
Speaker 1: women's sports after this.
19:08
Speaker 2: Yeah, we feel really really good about the argument, We
19:11
Speaker 2: feel good about the question. And I'll tell you, I
19:13
Speaker 2: really felt like Justice Kagan took a very very thoughtful
19:17
Speaker 2: and a different tact than her two fellow liberal justices.
19:21
Speaker 2: And it wouldn't surprise me at all.
19:24
Speaker 1: Explain that, by the way, explain so when you said
19:26
Speaker 1: thoughtful and different tact, explain that for you.
19:28
Speaker 2: They didn't get to hear or listener read the transcript.
19:31
Speaker 2: It felt like she was asking questions to get an answer,
19:34
Speaker 2: as opposed to make a point. And so I think
19:36
Speaker 2: that she really walked into that room undecided on where
19:41
Speaker 2: she was going to go on this, and I thought
19:43
Speaker 2: that the majority of the argument and the answers that
19:46
Speaker 2: she was given, I feel like we might have a
19:50
Speaker 2: pretty good chance here to maybe get Kagan on our side.
19:53
Speaker 2: I think definitely on Title nine. Yeah, but I think
19:56
Speaker 2: the even maybe on the equal protection clause grounds too one.
20:00
Speaker 1: But it break down Title nine real quick for people.
20:02
Speaker 1: They didn't understand that part of the argument.
20:03
Speaker 2: Yeah, so let me just break down the argument's actually
20:06
Speaker 2: very simple, right, and I'll just use the West Virginia example,
20:08
Speaker 2: because ours had Title nine and equal protection. The Idaho
20:11
Speaker 2: case only dealt with equal protection. So West Virginia passes
20:14
Speaker 2: the law. It says boys can't play in girls sports,
20:16
Speaker 2: simple right, doesn't use the word transgender, doesn't talk about
20:19
Speaker 2: gender identity, nothing, It mirrors the language from Title nine.
20:24
Speaker 2: Hours later, the ACOU says we was sues. West Virginia
20:27
Speaker 2: says this is unfair, this is unconstitutional, it's illegal. So
20:30
Speaker 2: what we end up with is a case that involves
20:32
Speaker 2: two important issues. Does West Virginia's law comply with equal protection?
20:37
Speaker 2: And two does it comply with Title nine. Let's start
20:40
Speaker 2: with Title nine. Fifty years ago, Congress created Title nine
20:42
Speaker 2: to make sure that all women had access to athletic
20:45
Speaker 2: and academic opportunities that were often shut to them because
20:49
Speaker 2: it was all male Yep. In fifty years, this Title
20:53
Speaker 2: nine has done more to advance women's sports and women's
20:56
Speaker 2: academia and the powerful women throughout this country and maybe
21:00
Speaker 2: any other law in the history of this country. No doubt,
21:02
Speaker 2: it says sex in the law. It says you can
21:06
Speaker 2: delineate based on sex to accomplish this goal. The aco
21:10
Speaker 2: use is explicitly correct. The aco you says there is
21:12
Speaker 2: no definition of sex. Yeah.
21:13
Speaker 1: In fact, they were even asked by one of the
21:15
Speaker 1: justice to define what a woman was and they said,
21:18
Speaker 1: we don't have a definition.
21:19
Speaker 2: For the course. Somehow or another, the ACOU thinks that
21:22
Speaker 2: adding boys to girls' sports is compliant with Title nine.
21:25
Speaker 2: Right right. Our argument is that this law actually supports
21:29
Speaker 2: Title nine. This law actually bolsters Title nine, and this
21:32
Speaker 2: law actually makes the idea of Title nine more powerful
21:35
Speaker 2: and more important. Two. Equal protection. The idea is is
21:38
Speaker 2: that and I'll try to be as unlawyerly nerdy about
21:42
Speaker 2: this as I can, but under the equal protection clause,
21:44
Speaker 2: unless you're a suspect class, the law that's involved undergoes
21:47
Speaker 2: what's called intermediate scrutiny, which means that the state has
21:50
Speaker 2: to have a rational basis to solve a normal problem. Right,
21:53
Speaker 2: we have a normal problem, and there's a very rational
21:56
Speaker 2: basis for doing it right, just delineate it by sex.
21:58
Speaker 2: It's simple believes that there is a tiny subset of people,
22:04
Speaker 2: we're talking hundreds who are displaced by this law because
22:08
Speaker 2: their parents gave them puberty blockers at such a young
22:10
Speaker 2: age that they don't present as mail at all. So,
22:13
Speaker 2: when we get back to what we were talking about, their
22:15
Speaker 2: entire argument hinges.
22:16
Speaker 1: On recruiting young, mutilating and manipulating a child at extremely
22:22
Speaker 1: young age.
22:23
Speaker 2: And to that point, they were even willing to forego
22:26
Speaker 2: the arguments on both Title nine and the Equal Protection
22:29
Speaker 2: Clause at the expense of this tiny little subset. But
22:32
Speaker 2: what the law says under equal protection is that it
22:36
Speaker 2: doesn't have to be perfect. The law doesn't have to
22:38
Speaker 2: be perfect for everyone. It has to be the best
22:40
Speaker 2: possible solution for a problem. We know that that's true,
22:44
Speaker 2: and I saw that from the justices yesterday that they
22:46
Speaker 2: were really starting to understand that what they're asking for
22:50
Speaker 2: is an as applied challenge to a rational basis test,
22:53
Speaker 2: which is a nearly impossible that their solution would be
22:57
Speaker 2: to do blood testing, bone density scans had scans, et
23:00
Speaker 2: cetera on every child that's undergone puberty blockers for the
23:03
Speaker 2: rest of their life so that they're allowed to play
23:05
Speaker 2: in women's sports, instead of just saying we're going to
23:07
Speaker 2: delineate the sports by the sexes, and if you're a
23:10
Speaker 2: transgendered boy, you're allowed to play on the boys team.
23:12
Speaker 2: Ye're not going to deny the ability to play.
23:15
Speaker 1: That's one of the parts I think that conservancy to
23:17
Speaker 1: understand is no one is being denied the ability to
23:20
Speaker 1: play sports. What we are being denied is the ability
23:23
Speaker 1: to play with the opposite sex.
23:25
Speaker 2: Correct. We are not stopping any child from playing sports.
23:28
Speaker 2: We're stopping a child from playing sports against people that
23:31
Speaker 2: have a disadvantage against them physically.
23:33
Speaker 1: When you look at this case with the ACOU immediately
23:36
Speaker 1: suing you was part of this, you think just the
23:38
Speaker 1: radical left saying, Okay, we see an opportunity to fight
23:41
Speaker 1: in goet the Supreme Court and fundraise off this. I'm
23:43
Speaker 1: sure the ASOU made a crap ton of money off
23:46
Speaker 1: this case.
23:46
Speaker 2: Yeah, I'm sure they did too. But I think more
23:48
Speaker 2: than anything is that there is a part of the
23:53
Speaker 2: Democratic Party and the liberal wing of this country that
23:56
Speaker 2: believes the insanity that you and I are talking about.
23:59
Speaker 2: I mean, I think they were fighting for what they believe,
24:03
Speaker 2: and I think what they believe is that children can
24:06
Speaker 2: choose their gender when they're four years old.
24:08
Speaker 1: You follow the money on this. You look at the
24:12
Speaker 1: hospitals they are doing it, You look at the cash,
24:14
Speaker 1: you look at the mutilation. If we lose this battle,
24:17
Speaker 1: I think in many ways.
24:17
Speaker 2: Who lose the country. Do you agree? I think this
24:19
Speaker 2: is such a core moral issue.
24:21
Speaker 1: If we cannot defend little girls and protect them, then
24:26
Speaker 1: who are we as a nation.
24:27
Speaker 2: It's not just little girls, We're defending every child who
24:31
Speaker 2: may potentially have to undergo gender transition, surgery or medication
24:36
Speaker 2: at the age of four. Right, sports really takes a
24:39
Speaker 2: back seat to child safety in general. And the idea
24:43
Speaker 2: that this is going to happen to children and that
24:45
Speaker 2: doctors and parents are allowing it and promoting it is
24:50
Speaker 2: something that this country is. It goes against every single
24:53
Speaker 2: thing that this country has ever been about. This is
24:56
Speaker 2: this is an American family country. Let's go to what happens.
25:00
Speaker 1: And that's part of this that I think is really
25:03
Speaker 1: so people understand my son, for example, he knew he
25:05
Speaker 1: was the spring cordiass this morning and did we win?
25:08
Speaker 1: And I'm like, I think we won, but we don't
25:11
Speaker 1: get to find out till probably what June July. Is
25:13
Speaker 1: that right to talk about the timeline and then if
25:16
Speaker 1: you guys win in West Virginia, what does that mean
25:18
Speaker 1: for the rest of the country.
25:19
Speaker 2: Yeah, So it takes the justices a while to write
25:22
Speaker 2: these opinions right, and because they have to be thoughtful
25:25
Speaker 2: and because this is such a landmark decision, they know
25:27
Speaker 2: they need to get it right and they will. So
25:30
Speaker 2: sometime in June or sometime in July, we expect that
25:32
Speaker 2: we will get a ruling from the Court that will
25:35
Speaker 2: essentially say West Virginia's law is constitutional. And once that happens,
25:39
Speaker 2: the big step here is that it will give all
25:42
Speaker 2: of the other states that have passed similar laws the
25:44
Speaker 2: confidence to enforce them, and it will allow the twenty
25:47
Speaker 2: seven other states that have passed laws just like West
25:49
Speaker 2: Virginia's to say, we're good to go, and we can
25:53
Speaker 2: make sure that these sports in our state are delinear
25:55
Speaker 2: by sex. The next step, and the Justice has actually
25:58
Speaker 2: touched on this a little bit yesterday, is so if
26:01
Speaker 2: we say to you that West Virginia's law is valid.
26:03
Speaker 2: Does that mean that California's law is unconstitutional? And so
26:08
Speaker 2: I think what you'll see in the coming years is
26:10
Speaker 2: athletes from place female athletes from places where it where
26:13
Speaker 2: transgender boys are allowed to play in girls sports will
26:17
Speaker 2: start suing their states and saying you have to protect us,
26:20
Speaker 2: and they'll use this case is as potentially the way
26:23
Speaker 2: to go forward there, and that'll be actually a much
26:26
Speaker 2: harder question.
26:27
Speaker 1: Right if you win this, is this what I would
26:30
Speaker 1: describe as settled law at this point?
26:31
Speaker 2: Is this?
26:32
Speaker 1: Is this just accepted or is there going to still
26:34
Speaker 1: be some challenges? What do you believe the next next?
26:37
Speaker 1: The left will do next?
26:39
Speaker 2: This is a really really big case, and after we
26:42
Speaker 2: win it, I think a lot of the consternation in
26:45
Speaker 2: this country will get settled. I think the volume will
26:47
Speaker 2: get turned down because even almost everybody, even on the left,
26:52
Speaker 2: and they've been saying this for the last six years,
26:54
Speaker 2: is you know, the judicial system matters to You have
26:57
Speaker 2: to you know, you have to go with what the
26:58
Speaker 2: court says, which I agree with one hundred percent, even
27:01
Speaker 2: when I disagree with them. The law is the law.
27:03
Speaker 2: The law is law. Yeah, And so I think that
27:04
Speaker 2: we'll turn the volume down on the whole country and
27:07
Speaker 2: hopefully we can move past this insane issue and start
27:12
Speaker 2: making sure that all of the other things that are
27:14
Speaker 2: important to Americans are being defended as well well.
27:17
Speaker 1: Final question for you on this, when you look at
27:20
Speaker 1: when you decide to run for the AGD.
27:23
Speaker 2: You is this what you dream of?
27:25
Speaker 1: I mean, I look back at my career and I
27:27
Speaker 1: think of a few different moments where I feel like
27:29
Speaker 1: I was able to use the airwaves to significantly change
27:33
Speaker 1: or do good. I got to think that this is
27:35
Speaker 1: something you look at and you go, this is my legacy.
27:37
Speaker 1: It was totally worth all the sacrifice, the time on
27:41
Speaker 1: the road, the time has spent away from kids, because
27:44
Speaker 1: this is something we did. Is that I mean I
27:46
Speaker 1: almost say it was a blessing disguise that they so
27:48
Speaker 1: you decided immediately to sue you.
27:50
Speaker 2: I think that whenever you're a public servant and you're
27:54
Speaker 2: given the opportunity to make the lives of a lot
27:57
Speaker 2: of people better, that service worth it, right, And you're right.
28:02
Speaker 2: I mean, it's not the easiest life in the world
28:04
Speaker 2: to be a public figure. It's not the easiest life
28:05
Speaker 2: in the world to be an elected official. But there's
28:08
Speaker 2: a calling to that that I've always felt, and the
28:13
Speaker 2: idea that I can play a small part in making
28:16
Speaker 2: a big change, and a big positive change for an
28:20
Speaker 2: enormous amount of women in this country and children in general.
28:25
Speaker 2: It's hard to really put into words. It's the kind
28:27
Speaker 2: of thing you pray about.
28:28
Speaker 1: I also think this is a point just where we're
28:31
Speaker 1: the silent majority on so many issues. I'm assuming that
28:34
Speaker 1: a lot of people have come out of the woodworks
28:35
Speaker 1: tell you, thank you for doing this. I'm just guessing
28:37
Speaker 1: in West Virginia, i think so many times we think
28:39
Speaker 1: we're in the minority when we're overwhelming the majority on
28:42
Speaker 1: issues like this. I don't think there's a ton of
28:43
Speaker 1: people in West Virginia running around and going, yes, I
28:46
Speaker 1: want transgendered people playing and beating my daughter up.
28:49
Speaker 2: Yeah, and again, we're talking about kids here, Yeah, right.
28:53
Speaker 2: I'm enormously empathetic to the kids on both sides of
28:57
Speaker 2: this issue. Every child is good. Every child is a
29:00
Speaker 2: gift from God. And only parents and only the government
29:05
Speaker 2: can take innocent, amazing children and make and and turn
29:09
Speaker 2: them and turn them into political fodder in a way
29:12
Speaker 2: that is really kind of.
29:13
Speaker 1: Sex It's sick, it's demented. Uh, it's an incredible case.
29:17
Speaker 1: I think you're like you said, you guys are going
29:19
Speaker 1: to get a big victory out of this. It's going
29:20
Speaker 1: to change the country. Uh, it's been fun to watch
29:22
Speaker 1: you do it. Congratulations as well. You can find JB.
29:25
Speaker 1: McCuskey on social media as well. Uh, the Attorney General
29:28
Speaker 1: West Virginia do an amazing job, so make sure you
29:30
Speaker 1: follow him there.
29:30
Speaker 2: He puts out great stuff, so do that.
29:32
Speaker 1: Make sure you share this podcast please wherever you can
29:35
Speaker 1: on social media so others will hear it. Hit that
29:39
Speaker 1: subscriber auto download button and I'll see you back here tomorrow.