Republicans turn judicial nominee’s hearing into anti-trans circus


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The narrative

Republicans made a spectacle of a judicial nominee hearing on Wednesday by pushing their anti-transgender agenda using an unverified, months-old story. Current Los Angeles County Superior Court Judge Holly Thomas, nominated to serve on the 9th Circuit Court of Appeals, has a strong civil rights background and support of prominent organizations like the NAACP Legal Defense Fund (LDF) and the Alliance for Justice. She worked as an assistant counsel at the LDF for five years, spent another five years as an appellate attorney in the DOJ’s Civil Rights Division, a year as special counsel to the Solicitor General of New York, and two years at the California Department of Fair Employment and Housing. If confirmed, she’d be the second black woman to ever serve on the Ninth Circuit.

Despite her extensive expertise, GOP lawmakers focused on the unfounded threat of transgender individuals using bathrooms that are consistent with their gender identity. Their evidence for this threat is a months-old, misreported incident in Loudoun County, Virginia, that rightwing media hopes to use to energize the Republican base in the state’s governor’s race.

The narrative, as originally told by the Daily Wire (archived version), goes like this: A male in a skirt entered a girls’ bathroom in a trans-inclusive high school on May 28 and sexually assaulted a female student. The right-wing media sphere quickly spread the story, warning that “Assaults like these are the natural result of transgender bathroom policies” (archived version).

As anyone with basic media literacy can tell, however, the outlets in question spun the story to fit their own agenda. There is no evidence the male student identified as transgender; the father of the victim—oft-quoted by rightwing media—even admits this fact in the Daily Wire article. Furthermore, the transgender-inclusive policy was not in effect at the school at the time and the incident wasn’t covered up by the school, as the Daily Wire claimed.

In the article, Smith seemed to acknowledge that the suspect might not have been affected by the district’s trans-inclusive policy, which allows students to use facilities that align with their gender identity. He said, “The person that attacked our daughter is apparently bisexual and occasionally wears dresses because he likes them. So this kid is technically not what the school board was fighting about.” However, he then seemed to blame the policy, saying, “The point is kids are using it as an advantage to get into the bathrooms.”

So why make this five-month-old incident the focus of the GOP’s questioning time during a judicial hearing? Because of the tight governor’s race in Virginia. Republican candidate Glenn Youngkin has employed anti-trans positions to energize his base, calling trans female students “biological males” and launching “Parents Matter” to defend parents being “attacked” by LGBTQ and Black Lives Matter advocates.

“He not only wants to stand between you and your children. He wants to make government a tool to silence us,” said Youngkin of McAuliffe to a crowd of about one hundred Virginians in Winchester Wednesday evening, mischaracterizing an effort by Attorney General Merrick Garland to address the increasing threat of violence faced by educators and school board members.

Youngkin’s campaign, in response to McAuliffe, also launched an initiative called “Parents Matter,” circulating petitions and distributing fliers at community events to grow the anger at McAuliffe.

Many of the parents in attendance at Youngkin’s event on Wednesday expressed similar views to Davey. They said their children weren’t being taught what they thought mattered and that too many kids were getting participation trophies. Tammy Yoder, whose kids are also private school educated, didn’t like books she saw when she said she researched what was offered in the local school district, defining “what marriage is” and “what families look like.”

  • Further reading: “The Fight For Transgender Rights In Loudoun County Schools,” Northern Virginia Mag. “The Unlikely Issue Shaping the Virginia Governor’s Race: Schools,” NYT. “Fox is still passing off GOP activists as concerned parents,” Media Matters.

The hearing

Ranking Member Chuck Grassley (R-IA) opened by reading a summary of the Daily Wire’s article (clip):

Grassley: Last week we learned that the Loudoun County School Board in Virginia covered up the fact that a male wearing a skirt had sexually assaulted a 14-year-old girl in the girl’s bathroom at the school. The same boy allegedly later assaulted another girl at a different school. In 2016, you argued in multiple briefs that concern the safety of young girls in school bathrooms were unfounded. In one brief you argued “no data or tangible evidence in support of that claim that allowing people to use bathrooms corresponding with their gender identity will lead to increased violence or crime.” In light of the troubling news about Loudoun County, do you still believe that concerns about safety and privacy—especially for young girls in school bathrooms—are valid?

Thomas: Thank you for the question, Senator Grassley. When I was an advocate and at the New York Solicitor General’s office in that case, I advocated the views of my clients. So we filed a brief taking a certain position. I’m not familiar with the case that you just mentioned but what I will say is that as a judge, I know that my role is to set aside whatever it is that I did as an advocate and be guided only by the law. And that I promise you is what I do now and what I will continue to do if confirmed.

Senator Josh Hawley (R-MO) brought up past filings Thomas made as a lawyer (clip):

Hawley: Let me ask you about the North Carolina case first. You argued there that Title VII prohibits disadvantaging someone because of gender non-conformity regardless of the birth-assigned gender or current gender identity. The brief also suggested that privacy and safety concerns underlying North Carolina’s proposed bathroom separation of boys and girls are unfounded and that the state had not demonstrated any public safety risk… Do you stand by your comments in these briefs that there is no evidence of violence or crime in restrooms by allowing biological males to use biological females’ restrooms?

Thomas: Thank you for the question, Senator Hawley. As I explained to Senator Grassley, in every case that I had as an advocate, it was my duty to represent the views of my clients and that’s what I did in those briefs… I understand well being a judge now the difference between being an advocate advocating for your clients and being a judge who is duty-bound, who takes an oath—and one that I take very seriously—to apply the law to the facts and the record. And to review each matter individually as it comes before you. And that’s what I would do were that issue to come before me if [I’m] confirmed.

After asking her again if she stood by her past comments, and Thomas again explaining that she was an advocate at the time, Hawley also brought up the Daily Wire piece:

Hawley: Now we have reports in various parts of the country, but Loudoun County most immediately and most publicly, about [an] assault by a biological male of a ninth-grade girl and then a second assault happening. It’s exactly what you said in these briefs wouldn’t happen. I just wonder, what would you say to the parents of this girl who was assaulted in a restroom at school? She’s in ninth grade. I mean would you maintain to them that their concerns are unfounded and that they shouldn’t be concerned about what happened? I mean is that the message?

Thomas: Thank you, Senator Hawley. I’m sitting here as a judge. My duty is to review the cases that come before me on the evidence that comes before me. I can’t comment on a case that’s pending, on a case that might come into—

Hawley: Well, this case isn’t pending before you.

Thomas: I can’t comment on a case that’s pending anywhere per the California Code of Judicial Ethics.

Sen. Marsha Blackburn (R-TN) told Thomas that Tennessee voters are very concerned about her nomination to the West coast 9th Circuit (clip):

Blackburn: Judge Thomas, returning to Senator Hawley’s question, I think that it should not be lost on you how unsettled that Tennesseans that I represent are by your nomination because of what you have said about the transgender rights and the assault that happened in Loudoun County…people want to know that their children are going to be safe and they want to make certain that you are not going to be an activist judge. So I want you to talk to me for just a minute about your judicial philosophy and about activism on the bench and how you will set that aside

Thomas: Thank you, Senator Blackburn. The oath that you take when you become a judge, the promise that you make to the litigants who come before you is that your personal views have no role in your decisions.

Sen. Mike Lee (R-UT) criticized Thomas’ inability to see the future (clip):

I want to get back briefly to what Senator Hawley was talking to you about the brief that you submitted in Texas versus [the] US… One of the things that I found concerning in the brief that you submitted was that you said that “in states where nondiscrimination protections are already law, Texas’s predicted safety harm has never materialized.” It then went on to classify Texas’s concerns as “anxiety about possible future bathroom crime as nothing more than unsupported speculation.” I totally understand you were writing that on behalf of a client in that case and you had an argument to make, but how did you know or how would anyone know in that circumstance that you knew that no harm could ever materialize? And do you dispute today the fact that harm could materialize by someone manipulating a policy perhaps crafted with the best of intentions in order to subject people to harm?

Thomas: Thank you for that question, Senator Lee. So stepping outside of that case and that context, I don’t dispute the proposition that you mentioned but when you’re you’re working on a case, as you know, you’re working on that case on behalf of your clients, on the facts that you have. And similarly, as a judge, you’re ruling on cases one by one as they come before you based upon the facts, based upon the record. That is what I do now and what I would continue to do.

Finally, Sen. Ted Cruz (R-TX) claimed that “women and girls never have any rights” in an angry diatribe (clip):

Cruz: As I look at your record, it continues a pattern of the Biden administration of nominating individuals to the bench who have long careers as activists. Throughout the course of this hearing, you have explained some of your prior positions as simply representing a client, but when I look at your career I don’t see that. I see that you are passionately committed to a particular vision of the law. it has ranged from filing briefs in litigation in the state of Texas defending race-based discrimination in university admissions to, most consistently, transgender activism—and I would submit extremism… You have been involved in litigation on the extremes of transgender issues and in particular, you’ve carved out an expertise for yourself using litigation to force institutions to allow biological males to use restroom facilities and locker facilities that are also used by girls—young girls—that are used by women… The thing I find troubling about these arguments is it seems the women and girls never have any rights.

He finished his time with criticism of “activist judges”:

Cruz: You made a bold aggressive factual statement by the way in North Carolina. You said safety concerns were “unfounded.” You were an aggressive advocate. An activist advocate. And I believe the statements that you represented to the court—and those are statements that you’re making as an officer of the court—I believe they were false and they are extreme. You testified to this committee that you were not aware of what happened in Loudoun County until this morning. I find that remarkable for someone who has spent years as one of the leading activists for allowing transgender biological men to use girl’s restrooms and women’s restrooms… Why did you represent to the court that concerns about violent sexual predators committing violent crimes against young girls are unfounded and speculative? Why did you represent that to the court?

Thomas: Thank you for the question. I advocated on behalf of my clients based upon the data that we had at the time and I zealously did so in those cases and in every other case that I handled. Senator Cruz, it would not be appropriate for me to comment on the merits of my personal views regarding litigation that I handled on behalf of my clients.

Sen. Alex Padilla (D-CA), chairing the Senate committee in Durbin’s absence, cut in between questioning to push back on Republican attacks (clip):

Padilla: For the record, I’d just like to acknowledge that assaults from Loudoun County that our Republican colleagues are pointing to happened earlier this year. And of course, we share sympathies with the victims but let me note that as a matter of chronology, Judge Thomas worked in the New York Solicitor General’s office in the year 2015. Six years ago. And asking her repeatedly to comment six years later as a sitting judge about new facts and matters that continue to come before the courts is unfair.

Fact check

NBC News:

There is no evidence that letting transgender people use public facilities that align with their gender identity increases safety risks, according to a [2018] study from the Williams Institute at UCLA School of Law. The study is the first of its kind to rigorously test the relationship between nondiscrimination laws in public accommodations and reports of crime in public restrooms and other gender-segregated facilities.

“Opponents of public accommodations laws that include gender identity protections often claim that the laws leave women and children vulnerable to attack in public restrooms,” said lead author Amira Hasenbush. “But this study provides evidence that these incidents are rare and unrelated to the laws.”

Lambda Legal’s “FAQ: Answers to Some Common Questions about Equal Access to Public Restrooms.”

“Trans Women and Public Restrooms: The Legal Discourse and Its Violence,” Frontiers in Sociology, 2021.