A Shifting Landscape for Transgender Rights (ep. 24)

November 29, 2018
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The state of transgender equality is in rapid flux in state legislatures, in federal law, in the courts and at the ballot box. Progress is consistently met with backlash. In the past midterm election, Massachusetts voters staved off an effort to dismantle legal protection for trans individuals in public spaces. Yet the Supreme Court is poised to reconsider legal victories won by trans plaintiffs in the federal courts, and Trump's White House seeks to exclude trans people from the military and from federal anti-discrimination law. Chase Strangio, staff attorney with the ACLU’s LGBT and HIV Project, discusses the current legal landscape.

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LEE ROWLAND
[00:04] I'm Lee Rowland. From the ACLU, welcome to At Liberty. The podcast where we grapple with today's biggest civil rights and civil liberties topics. Today, the fight for transgender rights.

The civil rights of transgender Americans are in rapid flux, in state legislatures, in federal law, in the courts and at the ballot box. Progress is consistently met with backlash. In the past midterm election, Massachusetts voters staved off an effort to dismantle legal protection for trans individuals in public spaces but the Supreme Court is poised to reconsider legal victories won by trans plaintiffs in the federal courts and Trump's White House has all sorts of plans to exclude trans people from the military and from federal anti-discrimination laws. Here with us today to help us understand the current landscape of transgender rights is Chase Strangio, staff attorney with the ACLU’s LGBT and HIV Project.

Chase is a dogged advocate for transgender and gender nonconforming people, and there’s probably nobody better to help us understand the state of transgender rights. Chase, thanks for being here.

CHASE STRANGIO
Thanks, Lee.

LEE
Can we start with simple legal basics? At the federal level, what laws protect transgender people from discrimination?

CHASE
So there are a wide array of laws that that protect transgender people and they do so in different ways. So first, we have the Constitution — and I think that's an important place to start, because that protects transgender people from discrimination by the government. And many courts have recognized this and have applied the exact same type of review that is applied when anyone is discriminated against because of their sex.

LEE
Where is it in the Constitution that trans people, like anyone else, is protected from discrimination?

CHASE
[01:59] Well the Constitution, like many of our our federal civil rights laws as well, was written broadly, and so it protects people from discrimination and guarantees equality. And so even though it doesn't have enumerated categories — like, it doesn't say women, it doesn't say people of color, what it does say is that there equality guarantees in the Constitution, there are due process guarantees in the Constitution, and trans people are protected under those broader guarantees. And the courts have interpreted those broad guarantees in ways to protect individual groups of people in particular ways, trans people included.

And sometimes that protection is understood as discrimination based on sex. And so we have protections based on sex under the Constitution, and trans people are included within that. And that's also true for many federal civil rights laws. So we have Title IX that prohibits discrimination based on sex in education. And that covers trans people. We have Title VII, which prohibits discrimination based on sex in employment. And then there's other guarantees under other federal civil rights protections in the context of health care, the context of housing, and in the context of hate crimes. So there are different places where trans people are protected and the language used is different. But what the courts have done over many years is to say, it may say sex, it may say equality, it may say gender identity, but in all of those contexts, what we understand is that trans people are not excluded from those protections and are actually within them.

LEE
I went to law school in the early 2000s and I don't remember learning that anti-discrimination statutes that protected sex also protected transgender people and gender identity or gender nonconforming folks. Is this a fairly recent development?

CHASE
It is not as recent as many people think, and I think the reason why we're hearing about it more now is because we're hearing about transgender people more now, and so the conversation is being conducted in a different way. But the protections have actually been there for a long time. And the way that the courts have understood those protections has been in the context of a theory of sex stereotyping. And what I mean by that is that the courts read the law, which says that you cannot discriminate on the basis of sex, and said well what does that mean. And in the context of some cases brought by transgender people and some brought by non-transgender people, what the courts have said is that, well for a sex discrimination protection to really mean anything, it has to encompass stereotypes about sex.

[04:26] In one of the seminal Supreme Court cases, what they said is that a prohibition on sex discrimination protects people who don't fit neatly into the definitions of who a woman is and how a woman should act, or who a man is and how a man should act. So that has been the basis of the legal doctrine that has protected all people on the basis of sex and within that we've understood, well trans people are people who inherently depart from sex stereotypes — the very notion that we all have a gender, that we live and embody that aligns with who we were at the time of our birth, that the sex we were assigned at that time, that's a stereotype about sex. And so the courts have really understood that our broad guarantees prohibiting discrimination on the basis of sex include trans people and everyone who departs from from sex stereotypes. That may be the masculine woman, that may be the feminine man, that may be the non-binary person. But the guarantee is broad and encompasses all of those people.

LEE
How does sexual orientation fit in to what you've just described, if at all?

CHASE
So the question about well is, is discrimination based on sexual orientation a form of sex discrimination. And that's also been a question that the courts have been grappling with. And interestingly, in the context of the fight for marriage equality, one of the first decisions in the 90s, in Hawaii, to strike down a ban on marriage between same-sex couples did so through a framework of sex discrimination, essentially saying well, but for the sex of the person you're attracted to, you would be able to get married. That sounds like sex discrimination. Some courts also adopted that framing, although less so than we have seen in the context of trans discrimination. Anti-trans discrimination has been more commonly understood as a form of sex discrimination than sexual orientation-based discrimination. Though we did make the argument in all of our cases that bans on marriage equality was sex discrimination, it wasn't the theory that the courts ultimately adopted by and large, and the Supreme Court didn't, as we know in Obergefell. But now, what we're seeing is courts grappling with this question in the context of employment discrimination, in the context of discrimination in schools and it's a stereotype about sex to assume that people are exclusively attracted to different-sex partners.

LEE
[06:38] Do you think people realize how much women's equality rights are entwined with the rights of transgender and gender nonconforming people?

CHASE
Yeah, I think this is what is so alarming about what our opponents are arguing in court, because what they're saying is that trans people can't be protected under the law, because the law is only designed to protect quote-unquote biological women in, you know, as compared to quote-unquote biological men. And in order to advance that argument they're essentially seeking to roll back decades of protections that really have been instrumental in protecting non-trans women in the workplace and in schools. And those protections are premised on the idea that to meaningfully prohibit sex discrimination, you must get at sex-related stereotypes. That may be stereotypes around caretaking responsibilities, stereotypes around gender presentation, stereotypes around demeanor.

Price Waterhouse, which was the seminal case about sex stereotyping, was about a non-trans woman in the workplace who was not promoted because she was seen as too masculine and aggressive. And so these are the bedrock principles that the other side is trying to roll back in their attacks on transgender people in court. And so what that means is if we don't all stick together in the fight for gender justice and really see that our rights are implicated — everyone else's rights are implicated in our struggle and our struggle implicates everyone else's rights — we are going to lose significant ground in the fight for gender equality and the fight for gender justice and the fight for racial justice. I mean these are intertwined struggles and the other side is attacking these important seminal cases that we've all been relying on, in the service of attacking trans people.

LEE
[08:24] Particularly with trans rights so in flux in the courts, it's unsurprising the Supreme Court is likely to play a huge role. What do you make of this Supreme Court on issues of trans and LGBTQ equality, now that we are post-Anthony Kennedy and now that we have Kavanaugh on the court?

CHASE
Well, I think first and foremost what's important is that even though the Trump administration would like to sort of situate things as being in flux, the lower courts have been unanimous and very clear about the protections for trans people. So all of the federal appeals courts who have considered the question of whether sex discrimination encompasses discrimination against trans people that have considered this question in the recent term have ruled for trans people — have essentially said it's very clear that sex stereotyping is covered and trans people are covered. All of the courts who have considered the question about the legality of Trump's ban on service by trans individuals have ruled for trans service members. And the only courts to have considered this sort of extreme position taken in one of the cases, which is a case brought by non-trans students claiming a constitutional privacy right to not share space with trans people — so that's a case where the school district did the right thing, protected trans students, and it was the non-trans students who went to court saying our rights are being violated — no court has ever found that there is a constitutional privacy right to not share space with trans people. So while the Trump administration would like to throw things in flux, they're actually currently not in flux there, there is essentially agreement in the courts that trans people are covered, that protecting trans people from discrimination doesn't harm anyone else, and that there there is no constitutional basis to support Trump's trans military ban.

LEE
Have the rights of transgender people explicitly been before the Supreme Court?

CHASE
[10:09] The rights of transgender people have explicitly been before the Supreme Court in the case of Gavin Grimm. Gavin is a young man who the ACLU represented, who brought a lawsuit against his school for excluding him from the boys restroom because he is transgender and that case went up to the Supreme Court right around the time of the 2016 presidential election. They sent it back down because of the change in agency position. A small footnote, there also have been prison cases at the Supreme Court and in the seminal 8th Amendment case. On the question of the scope of protections under federal nondiscrimination law, Gavin's case was was the closest case to take on that question in the context of a trans plaintiff. So this new batch of cases that the court is being asked to consider will be absolutely central to the legal understanding of sex under federal statutory law.

LEE
Can you explain briefly what this memo is that came out from the Trump administration recently purporting I think, to exclude transgender people from basically all federal legal protection?

CHASE
Yes. So this is a memo that was that was leaked to The New York Times and reported on towards the end of October about the Trump administration's position on what federal law means with respect to trans people. So this really just was an internal document that reflected what we know to be the Trump administration's position that trans people aren't covered by federal law and strategy to ensure that trans people are essentially cut out of federal legal protections of a variety of sorts. What we're also seeing in the aftermath of this memo is just the even sort of seemingly banal erasure of transgender people from websites, and the removal of the word transgender and the substitution of the term biological sex. So, it reflects the strategy of this administration to everywhere possible, sort of excise transgender people from federal law.

LEE
[12:04] And so that leaked memo then results in a New York Times Sunday piece, effectively asking if transgender people exist.

CHASE
Yeah. So the headline is you know “under this administration transgender people could be written out of existence.” I think it was an incendiary headline. It served its purpose. People were were organized around a question that we've been trying to get a lot of attention to for a long time. The reality of course is that transgender people exist, whether the Trump administration wants to protect trans people from from from discrimination or not, we exist, that's not a debate. But I think that it was a very upsetting headline to read, and one that did spark a lot of mobilization in support of trans people, which is great.

LEE
And how freaked out should we be? I mean, just in the last couple weeks we've heard the people who have asked the Supreme Court to take up these cases include Trump himself and his administration and, you know, are they assuming that they're putting a bet on the right horse by asking the Supreme Court to overturn the lower court's protection of transgender individuals?

CHASE
You know, I am confident that there is such a consensus in the lower courts, and the law is so clear that discrimination on the basis of sex means discrimination on the basis of sex-related characteristics, sex stereotypes and that any ruling that attempts to cabin that, or roll it back, would have such drastic consequences on so many people, not just transgender people, that I am optimistic that the court may come out the right way on this question.

Now does that mean I'm not freaked out? No, that doesn't. Because I'm always freaked out. I think there's lots of reasons to be concerned. I do think that many pieces of the federal government are being run by the very architects of anti-trans discrimination at the state level. So there's lots of reason to be concerned.

You know, Anthony Kennedy was on our side in some very specific sexual orientation-related cases, but there was no indication that we even had five justices on our side in that court on a trans question. There is so much misunderstanding about who trans people are, what it means to protect trans people from discrimination. But the reason why I remain optimistic is because the lower courts, when presented with these questions, when actually reading about the trans plaintiffs, and looking at the legal arguments closely, continue to rule for trans plaintiffs. And that's because really, doctrinally, under the existing law, it's a no-brainer.

LEE
[14:34] You mentioned that in ruling for trans individuals, courts have found that there is no right not to share space with a transgender person. Why did you phrase it that way? Is that effectively the right that people opposed to transgender anti-discrimination laws are claiming — a right to basically live in a world without transgender people around?

CHASE
Yeah that is essentially what folks are claiming. In some cases what we have are groups of people who have gone to court arguing that they have a right not to share space with with transgender people. So that means that they're saying that merely entering a bathroom where a transgender person might be violates, you know, some privacy right or other right that these individuals are claiming. The courts have summarily rejected these arguments and found that there is no constitutional privacy interest or any other legally protected interest in not sharing a space with a trans person, which is unsurprising because the consequences of such a ruling would essentially be to banish trans people out of public space altogether.

And that is really what what our opponents are seeking in many contexts. For example, in their petition to the Supreme Court and the case brought by the non transgender students,they have argued comparing trans-ness to anorexia, and saying that if you indulge the quote-unquote delusion of transness, it would be like feeding a low-calorie diet to an anorexic student, essentially saying that it is a delusion to be trans, they repeatedly and systematically mis-gender our clients — saying that basically schools are entertaining a delusion by protecting transgender people from discrimination, which is like feeding an anorexic person a low calorie diet and thereby feeding their delusion about their their body image and their weight.

[16:15] They've argued this for many years in court, essentially saying that it’s not only unethical to believe in trans existence, but it is somehow unconstitutional to protect trans people. And considering substantial evidence by experts looking at all of the records, hearing testimony the court in this one case now before the Supreme Court, Boyertown, the court rejected it. You know, a trans person is a person who is living their truth, not harming anyone and nobody is being harmed by this.

LEE
I think from a very young age, the concept of privacy is so linked to single-sex spaces. And growing up, bathrooms always meant there's only one sex here.

Do you have any sympathy for these kids, who have said, look we're told that privacy involves knowing only girls are going to be here, or knowing only boys are going to be here and now you're throwing that for a loop. How do we how do we culturally grapple with this even if the legal answer is pretty clear?

CHASE
I think that first and foremost, we're talking in these cases about girls and boys, you know, none of these cases are presenting people who don't identify within the gender binary. So this is a case involving, in the context of the Boyertown case at the Supreme Court, a boy. He's trans and he's going into the boy's room. But this is not disrupting the notion of who is in in your private space. Boys are in the boys room and girls are in the girls room. Now those are the facts of these cases.

I did not like high school myself. I hated being in the locker room, and I wanted more privacy, I think many of us do. The desire for more privacy is something that many of us can relate to. But it doesn't require us to banish other people.

You know, I think there was a time when people went into a locker room and it was like showers — first of all. I think in most places, you don't shower for gym anymore. We don't exercise period. You don't shower.

LEE
Yeah. That’s a bigger problem but not the trans communities fault

CHASE
[18:00] This one's not our fault. I think we recognize that many of us have bodies that are different, whether that's because of our transness, our disabilities, whether it's because of our faith whether it's because of our trauma. There's lots of reasons people need and want privacy but the solution doesn't require us actually to banish anyone else from the spaces that we share.

You know in most parts of the world, actually, when it comes to restrooms, they just have floor to ceiling stalls and shared sinks. This is a distinctly United States phenomenon to have this sort of crack at the bottom, crack at the top, like sort of half-door thing. Actually outside the U.S., people share restrooms all the time, they just share the sink part of the restroom, and then have a more private space to actually go to the bathroom, which frankly I think would benefit everyone. So we can up privacy we can increase comfort, but we don't need to do it in discriminatory ways and the courts have recognized that. And I think, increasingly individuals recognize that.

LEE
[18:56] Can you tell us a little bit about what happened at the midterms?

CHASE
Yes. So in Massachusetts, my home state, where all of the professional sports teams supported the trans community, I will note —

LEE
That's awesome, especially for an avid Pats fan, as I know you to be, I’m sure that meant a lot.

CHASE
Now everyone….we're gonna lose all our listeners.

LEE
Oh that’s ok.

CHASE
So Massachusetts, it was the first state to rule for marriage equality in the courts back in 2003. So it's really sort of seen as this pioneer of LGBTQ equality. But when it came to trans protections, it took a long time to get trans people explicitly covered under state law. So you had a series of incremental changes and finally in 2016 with a bipartisan majority in the state legislature, Republican governor, we got protections and public accommodations added explicitly for trans people.

Of course, undeterred, our opponents were like, “Oh no, this is horrible. We have to take this away, we must be able to discriminate.” And so they they were able to put on the ballot a repeal of the protection. So after you know, decades of work, trans people get protections through the legislative process, there’s a repeal on the ballot for this 2018 election in November. And, you know, ballot questions are complicated and convoluted, but the real question was, you know, should the protections for trans people in public combination stay in place. So the “Yes” side was the pro trans side the “No” side was the anti-trans...

LEE
Which is tough right, because any ballot question, No’s already got a built in….

CHASE
Yeah right. Yes. Which I think is an interesting psychological thing, which is politically it's it's easier to win a “No.” I think people like to say no.

[20:28] We had to overcome that challenge. We were the “Yes.” And we had to overcome this incredibly effective fear-based campaign that our opponents waged, which is essentially this campaign that says through imagery and rhetoric, if you protect trans people, shadowy, nondescript male sexual predators will assault your daughters in restrooms. That is their entire frame, which they interestingly, in a postmortem of the election, publicly admitted that it's totally contrived and not real.

LEE
Just for a second. Talk about the psychological profile of this felon, right who is willing to sexually assault a child right, to engage in that criminal behavior but is stopped by some atmospheric concept direct gender identity? It doesn't really make a lot of sense...

CHASE
No it doesn't. And also it doesn't, in any way, have any concern with like young boys who may be assaulted in the restroom.

I think people do worry...people are fearful for their safety and women and children are fearful for their safety for good reason, people experience violence. We are just going after the wrong targets. Violence against women and children is not the result of trans existence. Trans people going to the bathroom. The data knows this. We know this, but we play on fear and then people end up voting not based on actual knowledge, but based on fear of what could happen.

LEE
As long as you're talking about it, it is probably important for us to point out that it's quite the opposite right. Trans individuals are statistically far more likely to be victimized in violent crime, than a perpetrator.

CHASE
Absolutely. We have, we have absolutely no data to suggest that protecting trans people from discrimination increases any violence against anyone. But we do know that discriminating against trans people increases the likelihood that trans people — you know, having laws that allow discrimination, increases the likelihood that trans people will be subject to to violence and discrimination, particularly trans people of color, particularly trans women of color who are subject to incredibly high rates of violence.

So that we know to be true, and the reality is that these campaigns that are waged against trans people, that are waged against protections for trans people have increasingly failed. So in Alaska — in Anchorage — a similar campaign was launched earlier in the year at the ballot during a special election to try to repeal non-discrimination protections under Anchorage local law. Anchorage — much less progressive place than Massachusetts — and that effort was unsuccessful. We were able to to stave off that attack at the ballot, which was huge. And before that also, in Montana, they couldn't even get enough signatures to qualify for the ballot. So that was another place where a campaign was launched and unsuccessful. And then Massachusetts was the first statewide ballot vote on trans rights. And we were able to prevail there, by a pretty significant majority.

LEE
[23:00] It really stands out to me all the major sports teams supported question three in Massachusetts, and there seems such a stark parallel with North Carolina, which passed this hateful HB2, and I think they're still reaping the kind of fiscal consequences for the state in tourism dollars — they actually took a big hit when they passed HB2. Is that kind of a sign that maybe transgender rights are going mainstream?

CHASE
I don't think that the professional sports world is known for its LGBTQ progressive, orientation overall. I do think that having nondiscrimination protections in place, in a state, and not targeting people for discrimination is actually really beneficial for the state's economy for a lot of reasons. The more people you welcome, the more people you can attract for employment, the more people you can attract for tourism, the more people you can attract through educational institutions. You know this was huge in North Carolina, the research triangle, elsewhere. They were not able to recruit candidates because people didn’t want to move with their families to a state that was going to be discriminatory in this way. So I think the principles matter.

I think that that large corporations, are sort of getting on the side of sort of equality in some context but the bottom line is what they care about, and I do think that there was a real profit motive for for all of these big corporations to say, we're going to stand on the side of non-discrimination, and in the context of North Carolina, no, this isn't going to work for us which ultimately did lead to sort of a fake repeal of HB2. Unfortunately, it was replaced with a law that was discriminatory in effect, if not in, facially so. But, you know, it was close to a billion dollars that they were expected to lose as a result of a passing HB2. And I think that what we've seen in the context of places, even like South Dakota, places like Texas, places like Tennessee that have considered anti-trans laws over the past few years in their state legislatures -- in all cases, they've essentially said, you know what? This is not going to be good for our state's economy. This serves no purpose and have ultimately rejected all those proposals.

LEE
[24:53] Before I let you go, I want to ask a question about language, if I can. When you were describing some messaging around issues earlier, you said “quote-unquote biological men” and “quote-unquote biological women.” Can you explain to me what the problem is in talking about people as, kind of, biological women or biological men?

CHASE
I mean, I think the first thing I would say is, that the term really didn't appear in the law at all until recently. And so what we're seeing is the emergence of this rhetoric that is not grounded in any legal principle, and is not grounded in science, but is grounded in a desire to exclude certain people from legal protection. So the emergence of quote-unquote “biological sex” in our conversations about the law and policy really came in the context of bills like HB2 in North Carolina. That's where we really saw this language emerging most significantly in our sort of political legal conversation. And it was for the purposes of saying that, oh our laws protect everyone but not trans people.

That was, you know, essentially the bottom line, and the definitions of biological sex that our opponents keep using keep changing. And that to me shows how much this is really an ideological phenomenon, not a scientific one. What they're saying is, well we want to protect people on the basis of sex but only based on biological sex. What we mean by that is based on the sex listed on your birth certificate. And then when trans people are able to meet the standard, that they sit up and say oh, okay, well look my birth certificate, like let's just use me for example, my birth certificate says “M” so are you going to consider me male for purposes of your legal framework? And then they're like, oh no no sorry, that's not what we meant, what we actually meant was your genitals, we actually mean people's genitals. That's biological sex. And then when trans people come in are like, well okay, I had genital surgery will you see me as a as a biological whatever, man or woman? and they're like, oh sorry. No, what we actually mean are chromosomes. And so we mean people who are XX and are XY. And most people don't know their chromosomes. Some people do.

The reality is we do not organize society based on chromosomes. We don't organize bathrooms that way. We really don't organize anything except some genetic testing. And what it shows me is that the very idea of biological sex is just a changing target that is about excluding people from protections, and that actually when it comes down to our bodies and our biological characteristics, we all have a lot of characteristics that they would put in the men's side and a lot of characteristics that they would put in the women's side, whether it's height, hand size, hair length, facial hair, lots of different things that are not as neatly binary as our opponents are trying to suggest in these laws. And that's because they're not looking for any definition, what they're looking for is an exclusionary one. And so, I think we just have to be really careful with the language and see what's really behind it. We want to suggest that there's some sort of simple scientific truth that divides us into men and women but that's not the case. And it's certainly not how we organize society or the law.

LEE
[27:48] Chase, you're talking about something that affects your very existence. Is there anything you can say about what it's like to be an advocate for a policy that affects you and people in your community on such a deep and personal way?

CHASE
I mean, I think it's so painful and exhausting and that's something that people have to really sort of grapple with. Like, on the Sunday that the New York Times released the article about trans existence, I was wanting to have a Sunday. I was wanting to shut off. And it felt impossible. And the reason why is because I was hearing from so many people in the community who were so scared, to their core, like am I gonna be fired, am I going to survive this? Can I make it through the weekend, let alone the week, let alone the month, let alone this administration. And so I think that —and this is true for so many communities of people right now — this sort of deep fear of a sort of life or death magnitude, is I am I going to make it? Is the fact that my government is attacking me gonna be my downfall, or gonna be the thing that pushes me to end my life by suicide? Is it gonna be the thing that pushes me out of my workplace, out of my school?

And so people are living with these sort of really untenable amounts of fear and anxiety. I think on the flip side of that, and where I draw strength is that, people are also so resilient and finding so much connection in community, across community. And so on that same Sunday where I was like, Oh my god how are we gonna get through this? And wanting to shut off, I was so inspired by how much organizing and mobilization happened: how many trans people showed up, how many parents of trans kids were writing on behalf of their their children, themselves, their families. And so, as painful and exhausting as it is, it is such an unbelievable privilege to be a part of the mobilization and response, and that I do think is something that so many communities are also drawing strength from right now, is that sense of connection, that sense of resistance, and we're seeing it every day.

LEE
[29:43] Well thank you, Chase, for bringing your voice to this fight. Last question — Is there one issue that is near and dear to you, that may not be traditionally considered a trans rights issue that you think we should all be paying more attention to?

CHASE
Oh there's so many. And I come out of the criminal legal advocacy world, and sort of ending mass incarceration. So to me, looking at the trans community with such disparate rates of arrest and incarceration, particularly among trans women of color, I would say, you know, first and foremost ending the criminalization of sex work, is one of the biggest things for the community. Trans people of color, trans women of color especially, are constantly profiled as sex workers and funneled into the criminal legal system because of it. So that's a huge issue and just all of the issues pertaining to immigration, to mass incarceration, those are trans issues. You know, nobody has a single identity characteristic, people are living intersectional lives, which means these are intersectional struggles. So there's a lot of work that needs to be done to protect the entire community.

LEE
Well thanks for doing your piece of it.

CHASE
Thank you for having me.

LEE
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