The Senate is expected to vote soon on a bill touted as targeting hate crimes against Asian Americans. The legislation, authored by Sen. Mazie Hirono, D-Hawaii, and Rep. Grace Meng, D-N.Y., has not received widespread conservative support.
Why would Republicans not support a bill to address hate crimes? Because the bill’s agenda extends far beyond its name, says Sarah Parshall Perry, a legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. (The Daily Signal is Heritage’s multimedia news organization.)
Perry joins the “Problematic Women” podcast to discuss the progressive aims in the bill and the similarities between the so-called COVID-19 Hate Crimes Act and Democrats’ hotly contested Equality Act. Perry also discusses an important federal court victory for free speech on college campuses.
Also on today’s show, Kelsey Bolar, senior policy analyst at Independent Women’s Forum and senior news producer at The Daily Signal, explains why she is concerned about United Airlines’ announcement that 50% of new pilots it trains either will be women or people of color.
And as always, we’ll crown our “Problematic Woman of the Week.”
Listen to the podcast below or read the lightly edited transcript.
Virginia Allen: I am so pleased to be joined by Sarah Parshall Perry, a legal fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. Sarah, welcome to the show.
Sarah Parshall Perry: Thanks for having me, Virginia.
Allen: Well, we have a great lineup today of really important issues to discuss. And I want to start with an article that you just recently published for the Washington Examiner titled “Senate Democrats Play Hide the Ball With New Hate Crime Bill.”
In the piece, you discuss how Hawaii Democrat Sen. Mazie Hirono’s new bill, the COVID-19 Hate Crime Act, really what is included in that bill and what that bill means. So just begin by telling us what exactly the goal of this legislation is.
Perry: Well, ostensibly, it’s directed at hate crimes against Asian Americans and Pacific Islanders. And understandably, Mazie Hirono, from Hawaii, someone who is from that descent herself, she’s sort of increasingly concerned with the reported incidents in hate crimes against this group of American citizens.
However, the problem is sort of twofold with this bill. First, it is entirely duplicative of what we have already on the books. There are at least four federal laws that prevent these kinds of hate crimes from taking place. There is a reporting system at the federal level that is specifically designed to address hate crimes based on race and nationality.
And also, all but three states in the country have their own local and state-level hate crimes laws, particularly in California and New York, which, if you go to the Department of Justice website, you’ll see that the incidents correlate with sort of increasing hate crime statistics against Asian Americans in those two states, in the coastal states of New York and California, and their states actually have some of the most robust anti-hate crime legislation on the books.
So the first problem is that it ultimately just does more than we need government to do by duplicating and appointing another government bureaucrat to handle a situation that’s already being handled by the government machinery.
Allen: So then what is the motivation that Mazie Hirono seems to have in presenting this bill, if we already have legislation in place that prevents these types of hate crimes?
Perry: Well, I titled the op-ed “Hiding the Ball,” and ultimately sort of the M.O., the political M.O. for the left these days, seems to be the issue of SOGI protection, sexual orientation and gender identity. And not surprisingly, the bill itself contains language with these explicit protections and their interrelationship to COVID-19.
Now, laughably, that’s a connection that I don’t think anyone in their right mind would make, the connection between COVID-19 and, for example, gender identity. I do think it’s another way for the Democrats in the Senate to be able to shoehorn through an interpretation and an adaptation of federal law that includes gender identity as a protected class.
Bostock, the decision that everyone remembers from 2020, had a lot of fallout. This was a decision in which Justice [Neil] Gorsuch made clear specifically that biological sex was still the determining factor in federal law, but because biological sex naturally implicated sexual orientation and gender identity, you couldn’t take those into account without taking into account biological sex.
I think Senate Democrats and House Democrats have really sort of jumped the ball on this, and they’ve tried to fast forward to the end by instituting SOGI protections in just about every piece of legislation that’s up for grabs.
Allen: So then, what are the implications? If the COVID-19 Hate Crimes Act passes through the Senate, through the House, and is signed into law, and like you say, kind of has these other aspects that extend into gender identity, and goes beyond really just discrimination on things around COVID-19, what are those broader implications?
Perry: Well, right now what it does is it appoints a separate individual, the Department of Justice, to track these types of specific hate crimes, again, ostensibly geared toward Asian Americans, but inclusive of all of these other classes. So it includes sort of a separate piece of working in the federal government to track these specific hate crimes.
But what’s currently at issue right now is the fact that Senate Majority Leader Chuck Schumer has just announced that the bill is going to move forward this week. And within this movement, there is a proposed legislative amendment to take away the connection to COVID-19.
Which makes you ask the question: “Well, then why in the first place are we even introducing the legislation, if COVID-19 was the alleged hook to be able to institute this type of a hate crime bill and its relationship to Asian Americans, if you eliminate COVID-19 and we’re already protected by federal hate crimes laws for issues of race and national origin?”
It sort of is a duplicative bill itself, but what we know would take place is that there would be federal hate crime protections for gender identity or perceived gender identity within federal law. That’s a very big deal, and we’d have somebody to track these types of hate crimes at the Department of Justice going forward.
Allen: Correct me if I’m wrong, but it sounds like this bill contains a lot of elements of the highly controversial Equality Act.
Perry: Absolutely. I think what the Senate Dems are doing right now is they are trying to pad their win on what they perceive to be the Equality Act’s chances.
And again, still waiting on a vote for the Equality Act. We’ve got some maybes, some GOP senators who are more moderate, who haven’t indicated one way or another what they think about the religious protections in the Equality Act or the lack thereof.
So I think Mazie Hirono sees this as an opportunity to cut to the chase on some of these SOGI protections, when in fact we’ve already got all of the federal laws and all the state laws that issue these types of protections already.
But I 100% agree, Virginia. I think this is an attempt to sort of make sure that if the Equality Act doesn’t pass, we have at least some kind of a mechanism to be able to prevent hate crimes on the basis of or purported basis of gender identity.
Allen: As you mentioned, Senate Majority Leader Chuck Schumer has said he’s going to bring this bill forward for a vote on the Senate floor. So what do we expect to happen next? This is a partisan bill. No Republicans have come out in support of the COVID-19 Hate Crimes Act. What do you think this debate is going to look like?
Perry: Well, it’s hard to say. I do know that Republicans have offered amendments. Of course, we don’t hear anything about those amendments because if you believe other media outlets, they’re only covering the Democratic amendments which have been introduced.
And ultimately, one of those amendments would remove the COVID-19 language hook in the first place. Might actually portend a renaming of the bill because, of course, COVID-19, again, was the ostensible reason for the bill in the first place.
But along with other Republicans, [Sen.] Susan Collins, for example, has some concerns she’s expressed about the bill’s original language and that link between hate crimes and coronavirus. But we know that there also is an amendment on tap from Sens. Richard Blumenthal and Jerry Moran that would establish grants to aid state and local governments with their own hate crime reporting on this front.
So there are two pending Democratic amendments that we know of, one Republican amendment, and we’re anticipating a vote on this bill by the end of the week.
Allen: Wow. OK. Well, we’ll keep a close eye on it. It’s going to be fascinating to see how this unfolds. Really appreciate you breaking that down for us, Sarah.
Allen: I do want to take some time to get into another topic that you’ve been covering very, very closely for The Daily Signal and The Heritage Foundation, and that’s the subject of religious liberty and free speech.
Recently we’ve seen quite a few victories on college campuses around free speech and religious liberty. Let’s talk about one specific case that happened at Shawnee State University in Portsmouth, Ohio, which is a public university.
Back in 2018, the Ohio University charged philosophy professor Nicholas Meriwether with a violation of Title IX because he refused to use a student’s preferred pronoun. He said he could only use the student’s biological pronoun. So could you just explain this case a little bit for us? What was the situation here?
Perry: This is a fascinating case and an encouraging outcome from the 6th Circuit federal court. And of course, there have been lots of judicial opinions, lots of jurists and legal scholars have come out with their own interpretations of why the 6th Circuit was wrong at reaching the conclusions that it did when it issued a victory for Nicholas Meriwether.
But this is somebody who had a spotless record at the university, that had taught philosophy as a Christian for over 25 years, had led tours overseas discussing Christian thought, among other things. And he was a recipient of an email that went out to all faculty in 2017, indicating that it was now the faculty policy, per administration, to refer to students by their preferred pronouns.
Well, Nicholas Meriwether actually wanted to get ahead on the issue. He went to his department chair and he said, “Listen, as a Christian, I’m going to have a hard time adhering to this policy. Let me tell you why.”
And his department chair actually exhibited patent hostility to Dr. Meriwether. She said that Christianity had no point, it had no place in academia, and that it was primarily motivated out of fear, his desire just to use biological pronouns or just use the student’s last name.
So these were things that while he may have had objections to, she informed him that he was going to have to adhere to anyway, but it was not tested until 2018 when he was actually in a class and saw a student, obvious male biology, no indication of this student’s preferred pronouns in any record, in any academic record.
So I can start by saying that. This was a student who, to me, sort of raises the specter of whether or not this individual was attempting to make a political statement. There was no record whatsoever of a preferred pronoun.
And when Dr. Meriwether referred to that individual as “sir,” as opposed to “ma’am,” the individual came up and said, “Listen, I’m transgender, and I want you to refer to me by a female pronoun.”
Long story short, after back and forth, and the threat of further disciplinary action, again, for a teacher who had a spotless record, who had had two and a half decades of stellar exemplary work at the university, he decided he was going to be proactive, and he brought suit in federal court.
And ultimately, the 6th Circuit decided absolutely, you cannot compel a professor to say something with which he does not agree. And professors, as much as anyone else, do not relinquish their constitutional rights when they walk in the schoolhouse door.
Allen: So essentially, the 6th Circuit has said, “Yes, this case can move forward. Proceed.” So after the 6th Circuit’s decision, what happens now?
Perry: The case will be remanded in part. The case granted summary judgment for Mr. Meriwether himself, which is wonderfully dispositive on certain questions. He brought a number of claims, but as concerns the First Amendment claim, which is really sort of the biggest issue here, the 6th Circuit decided, “Listen, we’re going to close the book on this. This is what we’re making a decision, a determination, on right now.”
But it will be remanded for the other claims that he brought up because the court requested supplemental briefing by both parties to make sure that all of the facts had been displayed, that they had been investigated. So we’ll be curious to see what the outcome is there, but this is a groundbreaking decision out of the 6th Circuit.
And I do think that Judge [Amul] Thapar, he is American Indian. He is somebody whose family is immigrant and they have really worked their way up. He is a judge of stellar credentials, who was the second of President [Donald] Trump’s judicial nominees.
He really had no patience whatsoever for this new catalog of wokeness that we’re seeing come out of universities and said, “These need to be paragons of intellectual diversity. We cannot compel the speech of our professors any more than we could compel it of our students.” And this is ultimately a slam dunk win for the First Amendment on college campuses.
Allen: And sadly, this is a situation that we’ve seen played out before. The Daily Signal did a documentary about a teacher that had a very similar situation happen and lost their job because they essentially called a student by the wrong pronoun, quote-unquote, “wrong pronoun.” So what does this ruling mean for freedom of speech and religious liberty moving forward?
Perry: Well, there’s this excellent precedent if there are suits in the future. What we’ve done now is, based on the case that you were referring to, the case of Peter Vlaming in the 4th Circuit, it sets up a circuit split between the 4th Circuit and now the 6th Circuit, both of which reached opposite outcomes on the use of preferred pronouns within an academic setting.
Setting up the circuit split actually tees up a Supreme Court consideration. Now, whether or not we’ll actually see that remains to be seen, but there is now sufficient jurisdiction, because there’s a difference of two federal circuits, for the Supreme Court to grant cert and make, ultimately, a determination on which of the two impressions and analysis is correct. So it will be something definitely for future consideration.
Allen: So could one of these cases rise to the level of the Supreme Court or do you think that would be a separate instance that would bring this issue to the Supreme Court potentially?
Perry: It’s not beyond the pale for Shawnee State and its board of governors to continue litigation until they receive the outcome that they want in this case.
While, ultimately, the Supreme Court has not ruled on an issue as specific as this since the case of Pickering, which was a few decades ago, in which the court said, “We’re not getting to the question of how much freedom within a scholastic context a professor has. That’s for a later date.”
And that was a case on which the 6th Circuit ruled ultimately using what’s called sort of the Pickering analysis, the Pickering balancing test, whether or not preferred pronouns are a matter of public concern.
The Supreme Court will want to revisit that rationale from Pickering to make a determination about whether or not this is an appropriate interpretation. So it’s wholly possible that Shawnee State could say, “There is a circuit split. We are unhappy with the outcome, and we’re going to appeal this to the Supreme Court.”
Allen: Well, Sarah, before we let you go today, I want to take a little bit of time just to find out about yourself, to share a little bit of your own story with our audience. This is your first time on “Problematic Women,” but we hope to have you on many, many more times in the future. So, how did you first get interested in the field of law?
Perry: Actually, I am the daughter of a lawyer and swore I would never do public interest law. Never say never because that’s precisely what I ended up doing. I took sort of a circuitous route. I got my start in complex civil litigation.
Ultimately, I wanted to help people and I do think I was one of those people for whom the rose-colored glasses were still on when I graduated from law school, and I was once told “Law school teaches you to think about the law, but actually practicing the law makes you a lawyer.”
And I found that I didn’t like complex litigation as much as I thought. There wasn’t sort of that connection to the element of helping people that I had really hoped for the first time around.
So I went in-house at an advertising agency, did corporate and transactional law and development for them for a number of years. And then, as fate and divine intervention would have it, had three kids in short order. Got involved in public policy work—another never say never moment—and that’s precisely where I ended up reentering the workforce.
Found myself drawn specifically to the notion of academic freedom, and my work in building coalitions dedicated to religious liberty and defending against incidents of anti-Semitism on campus was sort of the perfect match. Ultimately, that set me up for my tenure at the Department of Education’s Office for Civil Rights as senior counsel There.
And then here I am now, at The Heritage Foundation, doing and writing about precisely the types of things that I went to law school to do.
Allen: Yeah. Well, we are certainly honored to have you at Heritage.
Perry: Thank you.
Allen: It’s a true blessing and treat. For anyone listening who is may be weighing, “Do I go to law school? Should I pursue a career in law?”, what would you say to them? What would be your advice to them?
Perry: I think I would start by saying you need to ask yourself the question of why it is you want to be a lawyer. For me, that was sort of the continual refrain, that was sort of the violin E string that continued to play. I really wanted to help people who were discriminated against. And one of the areas of law in which I practiced was employment discrimination law. My father himself, civil rights attorney, who also practiced in employment discrimination law.
But if you start with the why, the how, what and when always falls into place. I think also you need to ask yourself if you were thinking the public interest law firm route or the public interest nonprofit route, or you’re interested in going the partner fast-track route. Because for individuals like me, who knew I wanted to have children, that was certainly out of range for a while. So the why is definitely the first and most important question.
Allen: Yeah. Well, we want to ask, before we let you go, one final question that we love to ask all of our first-time guests on the show. And that is, do you consider yourself a feminist? Yes or no? Why or why not?
Perry: Well, to say that feminism is strictly the purview of liberals is sort of a “duh” response, but I am going to give you that duh response.
I think feminists and liberals have claimed the term feminism, but I think as we find ourselves modulating in our political stances and our allies with other women and other individuals who may not share our political perspectives or our social or cultural perspectives on everything, but with whom we can agree, I find myself working with more and more feminists.
And I will say, Virginia, that I don’t consider myself a feminist, but I do consider myself a problematic woman. And that, I do think, is the purview of conservatives.
Allen: I love it. Yes, absolutely. You, 100%, are a problematic woman, Sarah. There’s no doubt about that. Well, thank you so much for your time today. We really appreciate you coming on.
Perry: I was happy to do it. Thanks, Virginia.