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Supreme Court Hears Case On Gender-Affirming Care For Minors; Trump's DOGE Push Finds Support From Some Hill Dems; Day Two Of Deliberations In Daniel Penny Manslaughter Trial. Aired 2:30-3p ET

Aired December 04, 2024 - 14:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[14:30:00]

STEVE VLADECK, CNN SUPREME COURT ANALYST: Yes. So, Phil, you know, the federal Constitution, which only applies to governmental actors, so the federal government, state governments, local governments, has this very ambiguous, very vague phrase that says that states are required to provide the equal protection of the laws.

And the Supreme Court has interpreted that historically to mean that when states, when the federal government is going to treat people differently based upon sex or race or other, you know, characteristics, that the government has to have an especially good reason for doing so.

And the question that the justices are resolving in this case is whether treating people differently because of transgender status is in line with those other characteristics, is deserving of that kind of heightened constitutional protection.

You know, as you say, I think the -- the biggest top-line takeaway from today's argument is it's hard to find five justices who seem inclined to rule that way.

PHIL MATTINGLY, CNN HOST: Is there a role for parental rights in these arguments, in the law, in what's being discussed right now inside the court?

VLADECK: You know, I would have thought so. I mean, I was -- it's interesting how little that was sort of a central focus of today's arguments.

You know, the -- the states like Tennessee that have restricted access to these kinds of medical treatments, so far have focused on children, on the idea that if you're an adolescent, you're not yet able to make your own decisions.

But of course, if the parents are doing it with you, it would seem like that ought to matter.

And, Phil, what's striking about this is that this is actually just about the same court that, four years ago, held in the context of federal statutes that is to say, you know, laws Congress has passed that where you cannot discriminate in the workplace on the basis of sex, that includes discrimination on the basis of transgender status. You know, it's going to be interesting to see how Justice Neil

Gorsuch, Chief Justice John Roberts, who are in the majority in that case in 2020, might split the difference between a federal statute like the Civil Rights Act and a constitutional guarantee like equal protection.

MATTINGLY: That was actually what I want to ask you about, in particular, our -- our in-house sherpa, who I know works closely with you as our outside sherpa when it comes to Supreme Court, Joan Biskupic, pointing out Neil Gorsuch did not say anything today.

That was striking to her. Everybody's trying to figure out what that means. Obviously, it's tough to read the tea leaves when there are no leaves.

What's your sense of kind of coming out of this where he may stand here?

VLADECK: I mean, it's a great point by Joan. And, Phil, it's exactly right. I mean, part of why folks are so fixated on Gorsuch is because his vote in that 2020 case was a bit of a surprise.

And I think some folks were surprised, pleasantly or otherwise, that you had someone like a Neil Gorsuch leading the way to interpret our workplace discrimination laws to include discrimination on the basis of transgender status.

You know, Gorsuch, I think, knows a little bit about playing to the audience and that, if he said anything today, it would have been taken wildly out of proportion.

But, Phil, keep in mind, even if Justice Gorsuch is inclined to come out the same way on the constitutional question that he came out on the statutory question, that only gets the federal government and the -- and the challengers in this case to four votes, right?

That, as opposed to 2020, when there was also Justice Ruth Bader Ginsburg, the, you know, the federal government's position, those challenging Tennessee's law would need to pick up at least one of the other Republican appointees.

And I'll just say, after the oral argument today, it's not obvious to me who that would be. I didn't hear a lot of sympathy from Chief Justice John Roberts or from Justice Amy Coney Barrett, or even from Justice Brett Kavanaugh.

So it's very possible, Phil, that when this decision comes down later -- you know, later next year, Justice Gorsuch is actually not going to be the decisive vote.

And maybe it's even going to be five-four in favor of Tennessee's law with Justice Gorsuch joining the Democratic appointees in dissent.

MATTINGLY: Yes, it's a really smart point.

Steve Vladeck, always appreciate your expertise. Thanks so much. Brianna?

BRIANNA KEILAR, CNN HOST: All right. For many parents of transgender children, it's not just about access to health care. It's also about protecting their children's mental health.

Many worry that these types of laws vilify transgender people, causing them to worry about their safety.

Here's one child who spoke to CNN's Lucy Kafanov about that scenario.

(BEGIN VIDEO CLIP)

LUCY KAFANOV, CNN CORRESPONDENT: What concerns have you had about speaking out?

UNIDENTIFIED GIRL: That I'm going to be, like, murdered. Like one day I'm going to be walking down the street and somebody's going to come up and like shoot me or something.

KAFANOV: That's a really scary thing to be worrying about at 10 years old.

UNIDENTIFIED GIRL: Yes, that should not be a worry.

(END VIDEO CLIP)

KEILAR: And with us now is Kristen Waggoner. She is the president of Alliance Defending Freedom, which filed an amicus brief in support of Tennessee's law.

Thank you for coming in to talk with us about it.

You were in court during these arguments. And I should also note that in the issue of the Bostock case, ADF represented a party, the party in that case. That case did not prevail.

[14:35:01]

And I'm wondering how you felt walking out of court today, from what you heard compared to how that day felt.

KRISTEN WAGGONER, PRESIDENT, ALLIANCE DEFENDING FREEDOM: I would say we felt good about it. And we also have the privilege of representing two other states.

Nearly half of -- actually over half of all states have passed laws similar to Tennessee's. We represent a couple of states alongside their attorneys general as well.

And the principle or the question before the court is whether the Constitution permits states to keep kids safe from dangerous and experimental drugs and surgeries.

KEILAR: Did you have a sense today that this was going one way or the other? What did you think leaving? WAGGONER: Well, we've had a number of constitutional cases before the

court, and you never want to speculate about what it will do.

But in listening to the questions, I think what was very clear was that the U.S., the Department of Justice, was quickly walking back any allegation or suggestion that there's overwhelming scientific support for this because there's not.

And in that -- in the course of that, the justices were hearing again and again about the studies and how Europe led out on this issue in pushing this gender ideology and now they're in quick retreat because they're seeing the tangible physical harms to kids.

KEILAR: It's not -- it's not completely settled. Right? I mean, that is the truth, though. And one person's needed medical care is another person's child abuse.

This is an issue that a lot of Americans look at, and they're divided on this, right?

So statistics are clear, though, what it can mean for trans youths who don't receive the treatment when they're seeking it. That there can be an increase in suicide, even an increase in suicide among some of these laws being emphasized in states.

How do you balance that?

WAGGONER: Well, I'd respond in two ways. First of all, that's the role of the legislature to balance benefits and risks.

But I would disagree with most of what was even in the question. And that what we heard before the court today is that the overwhelming science is -- is saying again and again that the benefits of these drugs, there's little or no evidence to support them.

And the risks are off the charts. And in terms of those risks, they're very tangible. Where a woman like Patricia Moseley, who, at 14, was sexually assaulted, 15,16, diagnosed with serious mental illness.

By 18, she has testosterone in her breasts removed and her shoulders are too wide to support her hips. She has to she -- she didn't lose her fertility, but many do in this process.

No child is equipped to make those decisions when they're a child, as to whether they want sexual dysfunction that comes, whether they want to lose the chance to have a baby, to feel their baby on their chest.

And so ultimately today, in terms of this suicide and suicidality, it came up in court as well. And the evidence suggests that, also, if you have these puberty blockers and cross-sex hormones your chances of suicide actually increase rather than decrease.

So even if this is unsettled, we shouldn't constitutionalize a right.

KEILAR: Folks on the other side, as you well know, and you've heard them, they'll disagree with you on that. And some of them will say, these are the kinds of treatments that have saved their lives and that can save lives.

So this argument, you hear this on the other side. I wonder, you tweeted, "It's insidious to tell vulnerable kids they are born in the wrong body and lead them down a path full of irreversible consequences."

But what do you do about this when a lot of times we do hear stories, it's not the adults telling the kids, it's actually many times the kids telling the adults, some of whom are reticent to fully embrace what that may mean. Parents talk about this. They're not the ones putting this in their -- in their child's head. So what do you say to those parents?

WAGGONER: It's heartbreaking -- heartbreaking to see a child that is in need and is expressing confusion.

And it's interesting that this explosion of children who are experiencing this aligns with what they're seeing in social media, and an explosion in social media.

This is not typical for this to happen. While the number of adults who want to identify as the opposite sex has remained constant, our --e our kids are experiencing all kinds of crisis. And it's not just in this issue.

So I think it suggests there's a deeper need and a deeper approach that we need to take.

But I want to take it back to what was before the court today, which is that the evidence-based medicine would suggest we shouldn't constitutionalize a right to experiment on our kids.

And this right now is an experiment. And so far, what we see is far more evidence suggesting it brings real tangible, long term and irreversible harm to them.

KEILAR: I want to ask you, because you -- you're talking about, of course, what is before the court today.

The ADF has been involved in so many different cases. This one, yes, but also when it comes to workplace discrimination, the Bostock case, I mentioned trans athletes in sports, parental consent for lessons about gender identity, treatment restriction for trans minors.

That's some of the kid stuff and some of the adult stuff with the sports.

[14:40:02]

But there's also stuff having to do with adults, having to do with trans adults. It's not just the kids that ADF is focused on.

I wonder, as you know, and there are people who agree with you, but do you ever consider that these anti-trans laws and stances may not age well? WAGGONER: I don't consider the fact that not standing up in this

moment and not standing for children, and for biological reality, that is so critical in this moment.

We're seeing this ideology that's being used to disempower parents. As you say, it causes such concern with the parent when a medical professional that's misguided is saying your -- your child needs to choose between suicide or you -- you pump their body with drugs that is not going to allow them to naturally develop.

What kind of choice is that for a parent when the science actually says it will bring harm to the child?

So I know we're on the right side of this. But all children deserve compassion. And this isn't it. It might look like it, but it's deeply misguided.

KEILAR: Not just kids. That was the point I wanted to get at with you. You're talking about kids. And this case is about kids. But ADF is involved in a number of cases, aside from this one, and efforts that have to do as well, with adults with trans adults.

WAGGONER: No, that's not true.

KEILAR: Bostock, you --

(CROSSTALK)

WAGGONER: You just said a number of cases and that's not true that we're involved in a number of cases.

What we are involved in is ensuring that when the law is interpreted, it --

(CROSSTALK)

KEILAR: ADF represented -- represented a party in the Bostock case.

WAGGONER: We represented a party in the Bostock case involving whether Title VII, an employment law, discriminates on the basis of sex.

KEILAR: Not children being discriminated in employment. Just to be clear.

WAGGONER: It's apples and oranges what you're comparing. And you're only mentioning one case.

What we are about is ensuring that --

(CROSSTALK)

KEILAR: Trans athletes in sports.

WAGGONER: First of all, you just said trans adults, and that's just not true. We're not involved in a lot of those cases. But I'm glad that you brought up the sports cases because they we're brought up today, too. When there are biological differences and the law doesn't recognize relevant biological differences, it's largely women and girls like us who are going to face harm.

And the women's sports issue, Americans are waking up to see this extreme danger, the loss of women's rights and equal opportunities, the loss of their privacy in dorm rooms and locker rooms, as well as their safety.

Girls are being harmed from having to compete against men who have a 10 to 15 percent physical advantage over them that no amount of puberty blockers and cross-sex hormones stop.

KEILAR: Yes, and the point being, it's not just about kids. ADF's interests are not only about children in this realm.

KEILAR: I think that you're -- you're creating this box to try to put everything in it and to suggest that we aren't about all people.

(CROSSTALK)

KEILAR: I'm just talking about the body of work of your organization.

WAGGONER: I think that the gender ideology movement and the transgender ideology that's being pushed on Americans right now has gone so far that it's threatening to silence people. It's bullying them. And it's telling them --

(CROSSTALK)

KEILAR: But I think --

WAGGONER: -- I think that they should ignore reality.

KEILAR: I think a lot of people are confused about this issue. They don't know where they stand on it. But where is the room for a conversation about this?

WAGGONER: I feel like that we're having one right now in terms of a conversation. And that's what was at issue today. Because the ACLU and the Biden administration has taken this issue to the U.S. Supreme Court and said there is no room for this debate. It is a matter of constitutional right.

And the left consistently tries to constitutionalize all of American life. It is not a constitutional right to engage in experimental surgeries that cause a child to lose their -- their fertility.

What kid, what girl is -- knows whether she's going to want to have a baby long term or what testosterone will do to her uterus, or that she will increase her risk of heart attack by taking some drugs.

KEILAR: Some-- some of them do.

WAGGONER: No, no. KEILAR: None of them?

WAGGONER: No, I don't --

KEILAR: None of them, none of them do.

WAGGONER: 85 percent -- what we know from the science. And again, it's about not putting ideology over evidence. And that's what's happening here.

And 85 percent of all kids that are able to grow through puberty, who say their gender confused, over 85 percent of those kids live at peace with their bodies and consistent with their sex.

In those children that are put on puberty blockers, the science tells us that you're putting them on a one-way treadmill to live as the opposite sex for the rest of their life, and they will still experience being a lifelong patient.

KEILAR: And I think that is a great question, certainly, to be discussed. And for someone on the other side of this equation to answer for.

There's also people who do not do that. And so that's something that I wanted to discuss with you. And I appreciate you being on today.

WAGGONER: Oh, thank you.

KEILAR: Thank you so much, Kristen Waggoner.

[14:44:47]

We'll have more news when we come back.

(COMMERCIAL BREAK)

MATTINGLY: Donald Trump, as a candidate, railed against federal bureaucracy and it's wasteful spending. Now, as president-elect, he's finding some unlikely allies in his push to cut that spending and increase government efficiency.

Democrats, at least some, are supporting, even joining the effort known as DOGE that's headed by Elon Musk and Vivek Ramaswamy.

CNN Capitol Hill reporter, Annie Grayer, is with us.

Annie, from your reporting, it was fascinating to see it start to play out. Your story on this was really great on CNN.com. Where's this coming from? Why is this happening?

ANNIE GRAYER, CNN CAPITOL HILL REPORTER: Well, Phil, Democrats want a seat at the table. They want to be a part of the conversation.

There is broad support on Capitol Hill to cut government spending and excess waste. There's just different ideas among Democrats and Republicans on how to do that. And so the Democrats that I spoke to for this story, their calculus is

it's better to be a part of this conversation and work with this Republican-led effort on issues that they agree with and serve as the guardrails on issues where they don't.

[14:50:06]

So that's why we saw Democratic Congressman Jared Moskowitz join this caucus that's going to be supporting Musk and Ramaswamy's efforts. And I'm told from sources that other Democrats are expected to get involved in this effort as well.

We've also seen, publicly, Senator Bernie Sanders and Ro Khanna talk about that Musk has some good points to make about cuts that need to be made to the Pentagon budget, specifically. because there is a lot of excess spending there. They continue to fail audits at the Pentagon.

And all of this jockeying is happening because Democrats want to work with Republicans on certain issues. They certainly don't want Republicans to use this effort to cut Social Security and Medicare.

And that's why we're seeing more Democrats get involved, especially ahead of Musk and Ramaswamy expecting to be on the Hill to meet with Republicans tomorrow.

MATTINGLY: Yes, it will be an important meeting. I'm sure you'll tell us everything that happens behind closed doors, as you always do.

Annie Grayer, thanks so much, from Capitol Hill.

Well, did a former Marine go too far when he restrained a man in a New York subway with what turned out to be a deadly chokehold? A Manhattan jury is facing that question right now as they continue deliberations into Daniel Penny manslaughter trial.

(COMMERCIAL BREAK)

KEILAR: Day two of jury deliberations in the manslaughter trial of Daniel Penny. He is the former Marine accused of choking a homeless man to death inside a New York City subway car.

[14:55:05]

His defense says he was protecting frightened passengers from a man acting erratically, but prosecutors argue he took his form of vigilante justice too far.

CNN's Gloria Pazmino is outside of court, where jurors just returned from a lunch break.

And, Gloria, we understand the jury asked to review some videos. Tell us about that.

GLORIA PAZMINO, CNN NATIONAL CORRESPONDENT: That's right, Brianna. They've been at it for a little bit about for about seven hours or so since yesterday.

And they've asked for three key pieces of evidence, the Vasquez video, that is the video that went viral shortly after the incident that's been seen by most of the public, a compilation of body worn camera video, which was captured by responding police officers.

But also the detective video, which was captured during an interview between detectives and Daniel Penny shortly after the incident.

At that moment, Daniel Penny did not know that Jordan Neely was dead. He was not under arrest. And he did the interview voluntarily.

Now this is a critical piece of evidence because the prosecution focused on it during their closing arguments. They said that the video showed that Daniel Penny did not show any concern for Neely's life.

He never asked how he was doing. He never asked if anything happened to him, which they say shows that there was recklessness and a lack of care.

But remember, the defense has said that Penny was responding to an apparent threat embodied by Neely. And in that same video, Daniel Penny says, "It's not like I was trying to hurt the guy."

So it is impossible for us to know exactly what piece of detail this jury is looking at within those videos, but it is certainly interesting that they are asking to rewatch it as they deliberate.

We could be here for many more days, or perhaps a few more hours. It's just really hard to tell at this point. But we do expect a verdict at any moment. If convicted on the top charge, he is facing a maximum of 15 years in prison -- Brianna?

KEILAR: Gloria Pazmino, live for us in New York, thank you.

And still ahead, a consequential day for President-Elect Trump's pick to head the Pentagon. Pete Hegseth vowing to keep -- to fight to keep his nomination hopes alive, while one Senator says that nomination is, quote, "doomed."

(COMMERCIAL BREAK)