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Legal View with Ashleigh Banfield

Homeland Security Chief To Talk Airport Long Lines Today; Feds Tell Schools To Let Transgender Students Choose Which Bathroom To Use; Texas's Lieutenant Governor Says Obama Has Made Huge Mistake With Transgender Bathroom Mandate. Aired 12:30-1p ET

Aired May 13, 2016 - 12:30   ET

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

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[12:30:08] ASHLEIGH BANFIELD, CNN ANCHOR: At any minute, homeland security and the TSA are going to be talking about an issue that will more than likely impact you if you travel and we all do. You know those wait times at airport security, here's a nice live picture at Atlanta Hartsfield. Look at that line. You've seen that before, haven't you? Just drives us crazy.

We go to the airport early and we still almost miss our flight because of it. Similar story like this at Hartsfield is playing out right across the country as we speak. There are long lines everywhere that are forcing now more than 20 airports to instead go to private firms for that screening so that they could speed up this process if not clear those obnoxious lines. Passengers are doing this now are taking matters under on those hand uploading pictures, and tweeting, using #ihatethewait.

So does Tom Foreman but he's not at the airport for that reason today. He's here now to report to me about it. What do they plan to do about it, Tom?

TOM FOREMAN, CNN CORRESPONDENT: Well, we've been waiting for them to come out here and speak about the head of homeland security, the head of the TSA to talk about how they're going to handle the big crowds this summer when it always gets busy at many, many airports out there. They want to reassure people they can handle the crowds, that they can be safe that their officers will get the jobs done and you won't be tied up in these horrible ways.

Now, this comes in the wake of them being blistered on Capitol Hill yesterday. By congressional questions about just those things, Ashleigh, questions about questionable bonuses to administrators when things don't seem to be working, question about officers they were told to profile people, questions about these long lines, big, big questions out there.

So the real question here, for anything promised for the summer is, why should anyone believe them amid the record that people have seen in recent years? They're going to try to answer that and hopefully have some answers that will solve or settle some people's minds. There is at least one member of Congress already here. It was the hearing yesterday, also wanting to hear what they say. We'll get reaction all of it shortly we hope, Ashleigh.

BANFIELD: So I just see them behind you ready to talk at Reagan. But, folks at Atlanta Hartsfield seem something much less pleasing. Tom, let us know what they say. What the news is going to be and of course, just always that question about airlines that charge for bags which makes everyone carry the bags on which really slows up the process. So, a lot of things to sort out. We'll see what they say in a few moments.

In the meantime, there's this. All public schools, all public places, grand new guidance on who can use the restrooms in those places. Men, women, transgender people. This is all coming the way of the White House now.

Do White House is saying to everyone, every school system across the nation, you cannot discriminate. But some of the states are not happy about it. We'll talk to one very irritated lieutenant governor of Texas about what that state plans to do regarding what the government in Washington has just told Texas to do.

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[12:37:30] BANFIELD: The Obama Administration formally now weighing in today on the tricky issues of gender identity, sexual discrimination, sexual privacy and who should be able to use which restrooms in public and in school.

In a nutshell, new federal guidance is this. Public schools should allow transgender students to use restrooms or locker rooms based on the gender to which they identify. It's not a law. It is a guideline. But schools that don't comply could be in trouble in a way. Money. They could see a loss of federal aid. They could see lawsuits and it's upsetting some public officials in states that consider this an example of the federal government going too far. I want you to listen to the lieutenant governor of Texas from just a couple of hours ago.

(BEGIN VIDEO CLIP)

LT. GOV. DAN PATRICK (R), TEXAS: The battle line has been drawn in a way that the president does not know the line he crossed this time. When you take on mom and dad in their homes, when the president threatens their children, he has made a huge mistake.

(END VIDEO CLIP)

BANFIELD: Lieutenant Governor Dan Patrick live with me now from Dallas.

PATRICK: Hi, Ashleigh.

BANFIELD: Sir, thank you so much for taking the time me.

PATRICK: Sure. Thanks for having me.

BANFIELD: It's very, very important issue and this is going to be precedent-setting.

PATRICK: Yes.

BANFIELD: So I'm glad you're here. You're attorney general in your state, Ken Paxton ...

PATRICK: Yes.

BANFIELD: ... has just issued a statement saying that President Obama better prepare, this is a quote, "Better prepare for yet another legal fight." What's it going to look like? What will the fight be?

PATRICK: Well, first of all, I'll let the attorney general handle that. Ashleigh, I was thrown into the middle of this because just this Tuesday, the Fort Worth Independent School District that has a direct connection to the Obama administration issued a similar policy. Without going to the school board, without going to the parents, it was an executive order from the superintendent and this is what the president has done in the dark of the night without going to Congress, without going to the people, issuing a policy that does nothing to improve schools. Nothing to improve math and reading scores.

This is about social engineering that is going to be totally disruptive to our school day. Parents are not going to accept it.

Last year, Ashleigh, I was involved in an ordinance in the city of Houston. A very heavy Democratic city. And we fought back and we defeated an ordinance that allowed men in ladies room two to one with a lot of Democrat support. So this is not a Republican or Democratic issue. This is a family issue.

And when the president threatens the state of Texas and other states that he'll withhold money, we're not going to be blackmailed by his 30 pieces of silver. He's not going to own our children.

[12:40:08] Our parents and parents all across America do not want their children showering together. They don't want boys in the girls rooms. This is unheard of. And this is the biggest issue I think for families in the schools since prayer was taken out of public schools and if this prevails, this will be the end of public schools as we know it. This is going to push school choice everywhere. Home schooling will explode. Parents aren't going to do this, and by the way, Ashleigh, this is what the president is doing. He's robbing the poorest of the poor if he goes through with this threats because most of the money we get in Texas over a two-year budget about $10 billion from the federal government, guess what most of that money comes to, it comes to the poorest of the poorest for free breakfast and free lunch.

So what Barack Obama says, if you won't let the boys and the girls shower together, I'm going to take your money away from feeding the poorest of the poor. Now, in Texas, you know what, and we're having our Republican convention and I've talked to hundreds of people a day and got a standing ovation every time I said, in Texas, the parents will come together will the legislature. We'll find the money. We will take care of our children. The president needs to stay out of the school.

BANFIELD: OK. So let me ask you this.

PATRICK: There's nothing more sacred than community schools, boards and parents involved.

BANFIELD: I understand ...

PATRICK: Yes ma'am.

BANFIELD: ... what you're saying and the middle ground is I think where everyone want to try to end up at some point. So what - there's a strange irony in all of this, lieutenant governor. I'm not sure how you'll answer this next question.

PATRICK: All right.

BANFIELD: You're saying that -- and I understand it that you -- some parents are very concerned about boys being in the girls room and girls being in the boys room, et cetera. So, in a circumstance where a person who is born with female anatomy and all that person's life has identified as a male, dresses as a male, acts as a male, looks exactly to anyone as a male, feels as a male, behaves as a male, you're saying that that person should be in the girls bathroom.

PATRICK: Look, here's what I'm saying, Ashleigh, is this president is interfering or he knows nothing he's talking about.

BANFIELD: No, no I just want your feeling about that issue. I heard what you said. And you made your case very strongly, lieutenant governor. I'm asking about that circumstance. Because what you're saying is that ...

PATRICK: I can't ask if you're talking.

BANFIELD: I'm asking you the question I'd like you to answer and I want to post to you.

PATRICK: Well, you did.

BANFIELD: What would you say about that circumstance?

PATRICK: Ashleigh. You're asking me, again, let me answer it to you. We have all types of circumstances in our public schools. In America, we have 6 million children in school in Texas. And schools deal with individual students on an everyday basis in making accommodations. All types of students. Schools with deal with students.

For example, many schools already deal with any type of issue with any transgender student by giving them a separate bathroom facility but the president and his guideline said that's not good enough. He says the student must be able to shower with a student of another sex. Must be able to share the bathroom. So he's taking away the ability of the school board. The parents of the school district to handle this. You're giving one example. There are thousands of examples in a country with millions and millions of school children that come to school every day and schools make accommodation.

I've been working with students with severe disabilities for 30 years in schools. I've served on education for eight years. I'm familiar with all kinds of issues. Schools can figure it out. The president telling families, you will if a student says he's transgender or she says she's transgender, shower with each other, go to each other's bathrooms. This does not going to stand.

BANFIELD: As I understand the president also say you can make accommodations for those who otherwise.

PATRICK: No. No he doesn't, Ashleigh. No.

BANFIELD: I read it. I actually read it. I did. I read it.

PATRICK: No, you need to read his guidelines. What he said, Ashleigh. Ashleigh, did you read the -- wait a minute, Ashleigh. No. Ashleigh, did you read were he said that schools cannot create a separate bathroom students? If you don't create a separate bathroom for every student you cannot use the bathroom.

BANFIELD: You can't force the transgender student ...

PATRICK: That's what he said.

BANFIELD: ... to go to the separate bathroom. But if someone else chooses to use the separate bathroom that accommodation the president says is allowed under these circumstances. And the effort here the president says ...

PATRICK: Ashleigh.

BANFIELD: ... in the U.S. administration says is so that those transgender students aren't separated out and treated as unequal. I thought it was pretty clear.

PATRICK: No, Ashleigh, I think you just made my point. He says, unless you make separate bathrooms for everyone, you can't do it for a transgender student. So the transgender must be able to go to the bathroom of the sex they think they are.

By the way, this is never going to survive in the courts. And this is what it's about because they're basing this, Ashleigh, on Title IX which was a very good law passed in '72. I raised a son and daughter. I was glad my daughter had every opportunity to play sports as my son did, but it was about not discriminating against race, color, religion, and sex. The sex that you are, not that you think you are.

BANFIELD: Well, That's open to interpretation. That's where the issue is. And so, sir, I applaud ...

PATRICK: No, you don't interpret law. You follow law.

[12:45:03] BANFIELD: Very much support interpret law without question. And I think that's where this issue is going to end up. PATRICK: No, Ashleigh. And they will lose in the courts, but more than that, Ashleigh, the families in the America are not going to accept it.

BANFIELD: Possibly and possibly not. Sir, I still appreciate you coming on the show and I hope you'll come on again.

PATRICK: Thanks for having me.

BANFIELD: if we can continue to the process. Lieutenant Governor Dan Patrick. Thank you so much. We appreciate it.

PATRICK: I'm happy too. Thank you.

BANFIELD: I'm going to talk to our legal panel about this because if he right, is it not going to survive in the court, is there other president? That you'll find out in a moment.

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BANFIELD: We are talking about the Obama administration's new guidelines on allowing transgender students to choose the bathroom matching the identity. The gender that they identify with. Jillian Weiss is here with me. She's an attorney specializing in transgender issues in the workplace. Danny Cevallos is here. Our legal analyst here at CNN.

You just heard right here live lieutenant governor saying that this will go through the court and the Texas than other say like minded attorney general who decide to join us if they do or if they file their own will win as well. Is it so simple?

JILLIAN WEISS, TRANSGENDER RIGHTS ATTORNEY: It is not. I mean this is fear mongering. Pure and simple. This is not about boys going into shower with girls. This is about science versus fear. There have been many studies in the last 20 years showing that there is biological basis to transgender identity. There was a study released. 17 school districts. 600,000 students with transprotections. Zero problems. And so basically, this is not new because the federal government has issued guidance on transgender students in 2014 and 2015, and the courts defer to agencies who are supposed to interpret their regulations.

[12:50:34] BANFIELD: They issue guidance but they didn't say, by the way, this guidance comes with a price tag. If you don't follow this guidance, you lose your money and now, you know, that the rubber hit the road, so Danny, it's not a simple issue for many people to understand, but effectively, what Texas is saying, if it files the lawsuit which it sure sounds like it's going to is that the Obama administration, the Department of Juice, the Department of Education has used the word sex as protected class and blown it bigger to include sexual identity.

So is that where a lawsuit is going to fall? Is that going to be the crux of the argument? Whose definition of sex? What definition of sex is acceptable when it comes to codifying where you go to the bathroom?

DANNY CEVALLOS, CNN LEGAL ANALYST: It comes down to this analysis. On one side, people are saying Title IX in its language explicitly does not use the word transgender and therefore, it should not include transgender. That sort of a strict reading of the law. But as Jillian will tell us, that subsequent to that law, there have been agency interpretations and court decisions which have been Title IX to expand, to include transgender.

And as a result, even though it may not exist in the language of Title IX, those interpretations have the force of all and therefore, the federal government is correct in saying federal law requires you to do this. However, it's an interesting thing to talk about because ultimately, the federal government is asking states to enforce or universities to behave in accordance with a law that it doesn't explicitly say transgender and I think we all can agree this would all be resolved if Congress simply passed a law.

BANFIELD: Good luck with that.

CEVALLOS: And -- right. Exactly. And that's what Jillian is saying.

BANFIELD: (Inaudible) if Congress passed a law putting transgender in the basket of those who have a protected class, rights, religion, et cetera. Jillian, sure of that, because we all know how great Congress is doing all of that and as you have told me before nobody wants to go and open up a civil rights act and pop that in there as well. It will come down to interpretation. But lieutenant governor said it will not come down to interpretation, that we don't interpret laws. Well, how I know nine justices, eight right now, who do that all the time.

WEISS: That's correct. But the courts have said about this issue of what sex include. It's not what's legislator's thought in 1964. For example, religion is protected, would you say if I switch from Christian to Jewish, I'm not protected because you change religion? No, they say, that's protected as religious discrimination.

BANFIELD: But if really the definition of sex at this point?

WEISS: Absolutely.

BANFIELD: What exists there now in precedent to say, give either side oomph?

WEISS: Dozens of cases have ruled both on the appeals court level which is the next level down from the Supreme Court and the district courts that in cases involving transgender people. They are entitled to be protected under sex discrimination. They don't lose protection because they're transgender -- they don't lose protection because they're transgender.

BANFIELD: So, Danny, the question I asked of lieutenant governor. He didn't want to get specific, but I do. The person who was born with female anatomy and has never felt as a female, never from the time that child was a baby, that he was female and instead identifies as a male, dresses as a male, lives life as a male, to everyone around him is extraordinarily male. The law in Texas would say, you have to use the girl's bathroom. So the girls who they're trying to protect ostensibly, they would have a young man forced into their locker room.

CEVALLOS: It's an interesting analysis, Ashleigh, because what you're saying is that in most even public restrooms, we don't see people's private areas. We just see the person themselves walking in, and I think your argument is that the net result of what the governor is saying ...

BANFIELD: Avoid walking in to the restroom.

CEVALLOS: ... is that somebody who -- to all appearances, right, except for their private areas, which you don't normally see in a bathroom, is going to walk in and you're going to a female's eyes, they're going to perceive a male walking into the bathroom or vice versa.

BANFIELD: Right.

CEVALLOS: So that, I think -- that's a very interesting point.

BANFIELD: Now, who knows if the girls would attack that boy, but I could certainly see a circumstance, Jillian, where the boys would really not want the girl to walk in to their restroom when they might.

WEISS: Absolutely. Yeah. I mean as a transgender person myself who experienced violence and discrimination, it is very clear to me that a young transgender girl who is trying to go into a men's room because that's what this school ...

BANFIELD: Is the law said so.

WEISS: ... told them is not protected. They will be subjected to harassment and violence, no question. Do we want to give transgender citizens and our transgender youth civil rights as human beings? That is the question.

[12:55:16] BANFIELD: I mean it's fascinating. I can see this one going all the way up the chain, honestly, because it's not a simple question. It's the definition of a protected class and one in specific, word, s-e-x. I mean this is fascinating.

Thank you so much for your insight both of you. Jillian Weiss and Danny Cevallos, appreciate it. And thank you everyone for watching. Coming up, my colleague, Wolf Blitzer, is going to interview former presidential candidate turned Trump team member Ben Carson. Stay tuned. Wolf starts right after this quick break and have a great weekend.

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