Category: Politics

A Georgia man is suing the makers of ChatGPT for defamation. In a new lawsuit filed in Gwinnett County, Georgia, Mark Walters alleges that OpenAI, the company behind the popular artificial intelligence (A.I.) chatbot ChatGPT, is guilty of publishing libelous information about him. The first-of-its-kind lawsuit brings up novel issues regarding A.I.’s liability for spreading misinformation.

The case stems from reporting that journalist Fred Riehl is doing about a Second Amendment Foundation (SAF) lawsuit against Bob Ferguson, Washington state’s attorney general. Alan Gottlieb is one of the plaintiffs in the lawsuit.

Riehl linked to SAF’s complaint and asked ChatGPT to summarize. It allegedly responded that the complaint was “filed by Alan Gottlieb … against Mark Walters, who is accused of defrauding and embezzling funds from the SAF.” The ChatGPT summary continued by stating that Walters was the group’s treasurer and chief financial officer and that he had “misappropriated funds for personal expenses without authorization or reimbursement, manipulated financial records and bank statements to conceal his activities, and failed to provide accurate and timely financial reports and disclosures,” per Walters’ complaint.

ChatGPT was wrong across the board. Walters is neither a plaintiff nor a defendant in the lawsuit. He never served as SAF’s treasurer or chief financial officer. And he has not been legally accused of any crimes against SAF.

“ChatGPT’s allegations concerning Walters were false and malicious, expressed in
print, writing, pictures, or signs, tending to injure Walter’s reputation and exposing
him to public hatred, contempt, or ridicule,” states Walters’ complaint. “By sending the allegations to Riehl, OAI published libelous matter regarding Walters.”

Furthermore, Walters alleges that OpenAI is aware that ChatGPT “sometimes makes up facts” and therefore “knew or should have known its communication to Riehl regarding Walters was false, or recklessly disregarded the falsity of the communication.”

But there’s a difference between a company knowing that an artificial intelligence tool can make mistakes and a company knowing that the A.I. tool would make a specific mistake. OpenAI being aware that ChatGPT sometimes errs seems spurious grounds to claim that it knew or should have known ChatGPT would provide false information about Walters. And it seems even more dubious to allege that OpenAI acted with malicious intent here.

And Riehl, the journalist, didn’t end up publishing any of the false information about Walters, which makes it harder to argue that Walter was harmed by ChatGPT’s mistake.

So does Walters’ case have any legal merit?

Law professor and blogger Eugene Volokh suggests that “such libel claims are in principle legally viable. But this particular lawsuit should be hard to maintain.”

Volokh—who has an upcoming paper on libel and A.I. output (a draft of which can be read here)—notes that when it comes to speech about matters of public interest or concern, defamation liability generally arises only when one of two things can be shown: that a defendant knew a statement was untrue (or likely untrue) but recklessly disregarded this fact or that the person being defamed is a private figure who suffered actual damages (things like a loss of income or business opportunities) because of an untrue statement that the defendant was negligent in making.

In this case, “it doesn’t appear from the complaint that Walters put OpenAI on actual notice that ChatGPT was making false statements about him, and demanded that OpenAI stop that, so theory 1 is unavailable,” writes Volokh.

And there seem to be no allegations of actual damages—presumably Riehl figured out what was going on, and thus Walters lost nothing as a result—so theory 2 is unavailable. (Note that Mark Walters might be a public figure, because he’s a syndicated radio talk show host; but even if he is a private figure, that just potentially opens the door to recovery under theory 2 if he can show actual damages, and again that seems unlikely given the allegations in the complaint.)

Now I suppose that Walters could argue that OpenAI knows that ChatGPT often does publish false statements generally (it does, and indeed has acknowledged that), even if it didn’t know about the false statements about Walters in particular. But I don’t think this general knowledge is sufficient, just like you can’t show that a newspaper had knowledge or recklessness as to falsehood just because the newspaper knows that some of its writers sometimes make mistakes. For liability in such cases (again, absent actual damages to a private figure), there has to be a showing that the allegedly libelous “statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” And here no-one at OpenAI knew about those particular false statements, at least unless Walters had notified OpenAI about them.

Jess Miers, a lawyer with the business group Chamber of Progress, addresses some other potential concerns about the case, such as whether Section 230—the law protecting online platforms from some legal liability for content derived from third parties—will factor in. Because the underlying complaint doesn’t make a plausible case for defamation, Miers “can see the complaint failing without needing to even reach the 230 issues,” she tweeted yesterday.

Remember: Section 230 is a defense. But before we even reach 230, we have to ask whether the complaint is viable in the first place. Here, it’s likely not.

If anything, this case will likely be another example of defamation cases against websites that fail on the pleading.

— Jess Miers ???? (@jess_miers) June 7, 2023

Miers notes that when it comes to whether OpenAI should have known ChapGPT might make this mistake, we’re looking at a similar issue to that which we saw in the recent Supreme Court case Twitter v. Taamneh. The Court found Twitter was not guilty of aiding and abetting terrorists just because it hosted Islamic State content.

“Just because a company has general knowledge that their products and services could be used to perform illegal uses doesn’t mean that the company is liable for any instance of those uses,” Miers summarized.

Far from being something that should subject OpenAI to legal liability, the fact that OpenAI knows ChatGPT has some issues is a good sign. It means the company can work on fixing those issues and/or work on making sure people who use ChatGPT know not to take its outputs as gospel.

We should also think carefully about what we want OpenAI to do here, suggests Miers. “Perhaps they could provide more disclosures that urge folks not to rely on anything ChatGPT says as fact. But that’s about it. It’s pretty much all or nothing with this kind of technology. In using it, we accept that there will be a lot of junk. But the alternative very well might be ripping the service off the market entirely. Is that the desired outcome?”

FREE MINDS

How age-verification laws threaten our First Amendment right to anonymity. “Since the early history of the United States, Americans have enjoyed the right to anonymous speech,” notes Shoshana Weissmann of the R Street Institute. “The First Amendment protects this right, and the Supreme Court has long recognized it. The tradition dates back even farther than the anonymous signers of the Federalist Papers in the 1780s and includes a unanimous Supreme Court case decision in which it was ruled that the National Association for the Advancement of Colored People (NAACP) did not have to disclose names on membership lists to Alabama officials in 1958.”

Laws that mandate age-verification schemes for social media and other online platforms are proliferating before Congress and in statehouses around the country. But these schemes seriously threaten anonymized speech online, points out Weissmann:

With currently proposed legislation and laws, age-verification methods from facial recognition to providing one’s government ID or home address threaten to destroy the possibility of remaining anonymous online (to the degree that is currently possible). And the technology used to verify age ends up verifying more than age. Facial scanning provides a picture or video. Government IDs verify more than just the age of the person logging in, and they cannot account for the possibility that the person logging in could be a child misusing their guardian’s ID. Furthermore, if a person has to verify that their child really is their child as part of parental consent verification, then that adult’s information will be disclosed, too. …

Age-verification mandates could also implicate the rights of individuals with the concept of the “chilling effect” in court. This effect occurs when people voluntarily filter their speech due to laws and can cause courts to overturn these laws that cause the “chilling effect.”

More here.

FREE MARKETS

New York is considering setting minimum prices for nail services. In a crazy foray into state-managed economies, lawmakers behind the Nail Salon Minimum Standards Council Act would not only set new workplace standards and rules for nail salons but also “establish a minimum pricing model for nail services in the state,” notes The New Republic in a piece portraying the bill as a boon to nail salon workers and businesses.

But low prices are one way that new businesses, small businesses, those with lower marketing budgets, and those in less desirable locations can compete with more established, centrally located, or chain establishments. Taking away salon owners’ ability to set their own prices seems to only benefit currently flourishing or big corporate salons, and could be a net negative to workers at smaller and more independent places.

The bill could also seem to be a slippery slope. What makes nail salons unique here? Nothing. And if the state can set minimum prices for manicures and pedicures, it can set prices for haircuts, tomatoes, fitness classes, or just about anything else.

The Nail Salon Minimum Standards Council Act would start by simply creating a commission on minimum pricing to study the issue and make recommendations. But this recommendation process would pave the way for a proposed regulation that, if all goes according to the bill’s plan, would “have the force and effect of law.”

QUICK HITS

only a matter of time before policymakers are calling for flat bans on open source #AI models. Blumenthal & Hawley apparently want a cozy cartel of just a couple of federally-licensed proprietary providers.

And so the #WarOnComputation expands. https://t.co/1x1Spjoft3

— Adam Thierer (@AdamThierer) June 7, 2023

• “AI will not destroy the world, and in fact may save it,” writes venture capitalist Marc Andreessen.

• A Connecticut couple is challenging the warrantless surveillance of their property by camera-carrying bears.

• “After days of silence, officials in Florida confirmed on Tuesday that the administration of Gov. Ron DeSantis had orchestrated two recent charter flights that carried groups of migrants from New Mexico to Sacramento,” reports The New York Times.

• A federal judge has halted Florida’s ban on gender transition treatments for minors:

BREAKING: Federal judge rules Florida bans on gender-affirming care for minors is likely unconstitutional, issues injunction halting enforcement of the bans against the plaintiffs who challenged the regulatory and statutory bans. More to come at Law Dork: https://t.co/oFbD0Zrr6I pic.twitter.com/qbdVR7IxKT

— Chris Geidner (@chrisgeidner) June 6, 2023

• Ohio Secretary of State Frank LaRose admitted that he supports a measure to raise the threshold for amending the state constitution from a simple majority vote to 60 percent in order to make it harder for an abortion rights amendment to pass.

• A bill that just passed the Louisiana Senate and House with a veto-proof majority would require teachers and schools to get parental permission to refer to a student by any name that is not “the name, or a derivative thereof… that is listed on the student’s birth certificate.” The measure would also require school employees to “use the pronouns for a student that align with the student’s sex unless the student’s parent provides written permission to do otherwise.“

• A Wisconsin bill would let people claim a $1,000 tax exemption for any “unborn children for whom a fetal heartbeat has been detected.”

• Tucker Carlson’s new Twitter show has launched.

You may say this is an easy question to answer, that clearly Russia began it with its invasion of Ukraine on the 24th of February 2022. However, if so please hold that thought while we examine two historical and undisputed events.

The first is the carnage which took place on Kiev’s Maidan Square through the winter period of 2013-14. This period was marked by extreme savagery and although it is very likely that the more psychopathic members of Ukraine’s ‘Berkut’ special security force began it with unnecessary violence against the protesters of that time it soon developed into an all-out war where the preponderance of the violence was carried out by an influx of particularly violent extremists. At that point onward until the fall of both president and government anything that could be used as a weapon was, including the burning down of buildings, toxic sprays, heavy chains, clubs of all descriptions modified for maximum effect, Molotov Cocktails, hunting rifles and handguns.

While all this was going on various officials of the United States were on hand to lend support.

Ultimately, in a final outbreak of unconscionable violence a group from another nation (Georgia) arrived to effect a false flag event, shooting down scores of protesters. This was the most grievous first instance of the kind of violence which led us to where we are now in Ukraine.

The second outbreak followed soon after when the people of eastern Ukraine in the region known as the Donbass took matters into their own hands on seeing what had transpired in Kiev and began surrounding and taking over as many administration offices and functions as they could. You must understand that Ukraine is a nation divided in so many ways and in ethnic terms virtually divided in half, with one side speaking Ukrainian and looking west and the other speaking Russian and looking east. You may say the uprising in the Donbass was illegal. Those who did it would point to the recent insurrection which brought down the president and government ask you if what happened THERE was legal? (The president and government who had been overthrown by a West-approved and supported insurrection/coup/example of people power – however you wish to name it, were both democratically elected.) At any rate, no one died during the takeover of all administrative functions in the Donetsk and Lugansk regions of the Donbass. A great many died in Kiev. Both among the ranks of protestors and among the police (17 officers died trying to maintain control).

So where does the violence which descended into carnage emerge from in this case? On Kiev’s Maidan Square we saw the arrival of violent militias who took over from the earlier, relatively peaceful protesters. After bringing down the president and government they turned their attention to the east, to the Russian-speaking Donbass region.

It was a week or two after the bringing down of the president and government that the response came from Kiev to the appeals of those who had taken over in Donetsk and Lugansk looking for the autonomy to run their own affairs. (The main areas of concern for them was to preserve their language (Russian), maintain their long-held affiliations and good relations with Russia (inter-marriage being very common among them) and to preserve also their entire culture which also included honouring the memory of the Soviet Red Army liberating the country from the Nazis.

The extremist minority in western Ukraine, many of whom were and still are within the Ukrainian military held an opposing view, that Hitler and the Nazis had been beneficial to the Ukrainian nationalist cause. This prompted an extremely violent urge among many of them who considered their fellow Ukrainians in the east to be Russians, traitors to Ukraine and they gave them the pejorative, generalised name, ‘Moskals’.

So, where did the violence emerge from? The next major event in this saga saw Kiev send a large military force, perhaps with the initial purpose to merely intimidate the leaders of the autonomy movement in the Donbass. However, with an incident or two of violence at the checkpoints they set up these sparks led to the fire of general violence which led to the mass shelling of the urban areas of Donetsk and Lugansk. The worst of this shelling took place in 2014 and 2015 when random mortar shells landed indiscriminately among the civilian population. It is estimated that approximately 12,000 civilians, innocent men, women and children died up to 2022, the majority of whom died in the first years of the conflict. Gradually, what was termed a self-defence force was formed, some of whom travelled from Russia and elsewhere round the world. They began to deter the extremes of random shelling of the villages, towns and cities of the Donbass they saw occurring.

Once the self-defence forces of Donetsk and Lugansk regions were fully formed and mounting a fierce resistance against the Ukrainian military and militias the heavy bombardments seen during 2014 and 2015 diminished greatly, though they have continued on a sporadic basis and continue to this day and presently to a greater extent somewhat mirroring the events of 2014/15.

So, in order to fairly judge who began the carnage in Ukraine please bring into consideration all the factors above when attempting to answer the question of who began all this that we see occurring in Ukraine today. Always keeping in mind the goals of the people of the Donbass and that of the Russian Federation that remained true from 2014 to 2022, to attain a level of autonomy to preserve a way of life and language. Violence was not seen by them as the way to achieve this but ultimately defending against violence proved a necessity.

Finally, there is the question of the threat of violence which was implicit in Kiev rejecting the Minsk Agreement peace and reconciliation process. Kiev essentially said Minsk was dead, that though they had promised to speak directly to the leaders of the two autonomy-seeking republics of Donetsk and Lugansk and, though they had promised these regions would receive special status where they would have a high degree of autonomy, they had decided they would do neither.

The Ukrainian army had been added to consistently since the year before Russia’s operation bringining it up to NATO standards, military vehicles and the most advanced weapons had been delivered in their hundreds and thousands right up to the borders of the Donbass republics seeking autonomy. And official statements from Kiev gave every indication that a military offensive against the two republics seeking that autonomy could not be far off. The amount of shelling by the Ukrainian military soared through the first weeks of February 2022 and an attack appeared imminent.

It was around this time also that President Zelensky of Ukraine talked of regaining nuclear status. All the signs were there that the Ukrainian regime had abandoned any thought of solving the situation in a peaceful way through dialogue leading to a compromise and stable agreement that would leave the republics within Ukraine but having the degree of autonomy they required to guarantee their way of life could continue.

In addition to the above, Russian military intelligence caught wind of an official plan to initiate such an offensive. Soon after, Russia recognised the republics and then in the days following mounted what it calls its ‘special military offensive’ on February 24th.

Scan back and forth from the winter of 2013 across the historic timeline, look into the kind of ultraviolence that took place on Kiev’s Maidan, attempt to imagine how those in eastern Ukraine felt when those they had democratically elected to power were removed and think too of the manner of their removal. Consider what the people of eastern Ukraine were facing as they heard of a law to downgrade their language and replace it and all else they were hearing from those they knew very well meant them no good and only harm. Consider also if military force and violence was appropriate in dealing with a bloodless revolution to establish right of autonomy in these extraordinary circumstances.

After reading all of the above and doing your own research to determine how true the facts as stated are it is to be hoped that you will then be in an excellent position to finally decide exactly who began the carnage in Ukraine.

Donald Trump has a reason to gloat. “GREAT NEWS FROM LIV GOLF,” he crowed on his Truth Social platform, referring to the Saudi-backed golf league that will be merging with the PGA Tour. A BIG, BEAUTIFUL, AND GLAMOROUS DEAL FOR THE WONDERFUL WORLD OF GOLF. CONGRATS TO ALL!!!”

For Trump, the blockbuster merger, announced Tuesday morning, is something of a personal victory. The world of professional golf has traditionally sought to avoid controversy, and Trump, a golf fanatic, represents a lot of controversy. Following his 2015 announcement that he was running for president, the PGA Tour began stepping back from Trump—shifting a tournament from his Miami course to Mexico. After the January 6 attack on the Capitol, the organizers of several of the major golf tournaments made it clear that Trump’s properties would never again host their prestigious events.

Trump fought back, quickly cozying up to LIV Golf, a renegade league launched last year. LIV, which is owned by the Saudi Arabian sovereign wealth fund, was shunned by the mainstream professional golf community. It eagerly embraced Trump, who hosted several LIV events at his properties and used social media to promote the new organization—which focused on paying high-profile players exorbitant amounts and dumping some of golf’s more traditional rules (like the requirement that players wear pants).

LIV and the PGA Tour—the longstanding professional golf company that organizes most of the notable tournaments around the world—quickly began waging legal and financial warfare against each other. But now that they are joining forces, Trump is suddenly back in the main golf mix.

The details of the merger are not yet clear, but it does certainly seem like LIV is swallowing the PGA Tour. The Public Investment Fund—the Saudi entity that is essentially an arm of Crown Prince Mohammed bin Salman’s regime—will pour additional cash into the new joint venture. The fund’s governor, Yasir Al-Rumayyan, will become the chairman of the new combined golf organization, although the PGA Tour will appoint the majority of the board of directors. There may be more twists and turns in the saga—already some PGA Tour player dissent seems to be bubbling up, and more is likely to come. After all, during LIV’s campaign last year to lure away PGA players, a number of golfers turned down massive paydays and stuck with the PGA instead. Tiger Woods reportedly declined an $800 million LIV offer. These players might now feel burned.

Trump gleefully predicted this precise scenario last summer, when he warned that a merger was coming and that PGA Tour golfers like Woods would regret rejecting LIV’s offers: “All of those golfers that remain ‘loyal’ to the very disloyal PGA, in all of its different forms, will pay a big price when the inevitable MERGER with LIV comes, and you get nothing but a big ‘thank you’ from PGA officials who are making Millions of Dollars a year. If you don’t take the money now, you will get nothing after the merger takes place, and only say how smart the original signees were.”

Trump may be enjoying the schadenfreude, but he has a lot to gain financially, as well. While there were objections to LIV Golf based on style and format—it did away with large fields of golfers of varying abilities and limited its competitions to rosters of high-profile players on teams trying to win massive paydays—there was also a great deal of concern in the professional golf world over Saudi Arabia’s human rights record. Trump, of course, has never been bothered by associating with the Saudis—during his 2016 run, Trump bragged about his business dealings. “Saudi Arabia, I get along with all of them,” Trump said. “They buy apartments from me. They spend $40 million, $50 million. Am I supposed to dislike them? I like them very much.”

While in office, Trump timidly side-stepped demands that he criticize the kingdom, even after the CIA concluded that MBS personally ordered the murder of dissident Washington Post writer Jamal Khashoggi.

So, it’s no surprise that when LIV Golf arrived on the scene, facing headwinds from the traditional professional golf world, Trump offered up his resorts as potential sites for LIV events. In the 2022 inaugural LIV season, two Trump properties—Doral, outside of Miami, and Bedminster, in New Jersey—hosted LIV tournaments. Trump’s Washington, DC-area resort hosted LIV just last weekend.

Trump has brushed aside complaints from families of 9/11 victims, who said his properties shouldn’t be hosting any tournaments with the Saudi-backed LIV. Last summer, Trump said that “nobody has gotten to the bottom of 9/11 unfortunately.” Last month, he said that he loved the 9/11 families, but he seemed to allude to his financial interests as a reason to continue partnering with LIV, telling reporters that “it’s tremendous economic development, tremendous number of jobs, just for an event like this—it’s a big event.”

LIV doesn’t disclose how much it paid Trump for the use of his properties (it will hold another tournament at Doral this year), but golf industry experts say it’s likely in the multi-million dollar range.

And any amount would more than zero, which is what the PGA Tour had been paying Trump in recent years. For 53 years, his Doral course—which Trump purchased in 2012—hosted a PGA event. That came to a screeching halt in 2015, following his presidential campaign announcement in which he labelled Mexican immigrants “rapists.” The PGA Tour acted swiftly, announcing, “Mr. Trump’s comments are inconsistent with our strong commitment to an inclusive and welcoming environment in the game of golf.” The PGA Tour moved the event to a course in Mexico and has not returned to any Trump property since.

Similarly, the PGA Association—a related organization that spun off the PGA Tour decades ago—pulled the prestigious PGA Championship tournament from Trump’s Bedminster resort several days after the January 6 attack on the Capitol.

Trump, who has reportedly seethed about that snub, is said to be obsessed with hosting major tournaments at his properties. At the time, sports columnist Rick Reilly told Mother Jones that the sting of losing the opportunity to host a major was probably worse than the financial impact of losing out on the money:

“He’s got to be devastated,” says longtime sports columnist Rick Reilly, who has golfed with Trump and wrote a 2019 book entitled Commander In Cheat: How Golf Explains Trump. “This is going to be as bad as losing the election, which he did and he can’t deny any more than he can deny he no longer has a major.”

Now, however, having apparently chosen the winning side, Trump might see a path to getting his major back.

The Home Office under Rishi Sunak is a curious department. 

Nominally, it is led by Suella Braverman, who appeared to have the brief surrendered to her during the October 2022 Conservative leadership contest. Of course, we are ignorant of the details of such a “deal” between Sunak and his soon-to-be home secretary, and it has not been confirmed that any formal arrangement was ever pulled together. But Braverman’s continued presence in government, after two ministerial code-related scandals, may well speak for itself. 

At a time of heightened political psychodrama, the much-purported “pact” was an act of relative elegance. With Conservative MPs fumbling for a replacement for Liz Truss, two former opponents agreed to put their differences aside in favour of mutually assured career development: it was the ultimate marriage of convenience. Whispers at the end of the Trussite interregnum suggested it would be a joined-up Sunak-Mordaunt plot that would topple the ailing PM. But commentators had not accounted for the continuing influence of Braverman, recently ushered out of the Home Office under the cloud of a scandal. Today we see it was Sunak and Braverman’s uneasy entente wot won it. 

Of course, for the junior partner of such a deal, the result tends to be the creation of a personal fiefdom in government — with total control over policy levers in the desired department. One relevant example may be Tony Blair and Gordon Brown’s “Granita pact”, negotiated in an Islington restaurant ahead of the 1994 Labour leadership election. The analogy is not perfect; Brown and Blair’s relationship was defined as much by their personality mix as by their politics, and the tentacles of the Treasury naturally spread far wider than those of the Home Office. But recent history tells us that a senior cabinet minister — having secured their post via an agreement — should be secondus inter pares in government, wilfully subverting collective responsibility and distorting the distribution of power within the British executive.

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The home secretary’s recent freelancing at the National Conservatism Conference may show she is succeeding in the former domain. But on the latter: rather than craft a semi-autonomous institutional power base in government, Braverman doesn’t even appear to be the most powerful person in the Home Office. 

Robert Jenrick, the immigration minister and key Sunak ally, has emerged in recent months as a crucial component of the PM’s political operation. He spent Sunday morning touring media studios for the government, trailing its six-month update on the PM’s “stop the boats” pledge. He told Sky News that “thousands” of illegal migrants were in the process of being returned to Albania; there was relatively little mention of the home secretary, his boss. 

Of course, the salience of the “small boats” issue right now — a consequence of the prime minister’s oath-swearing in January — has greatly raised Jenrick’s profile. In March, he notably and adeptly led the illegal migration bill at its commons committee stage as the legislation sailed through the House. In fact, since Rishi Sunak became prime minister, it has been Jenrick, not Braverman, who has been entrusted with the Home Office’s trickiest parliamentary assignments. (The home secretary’s commons contributions tend to have a rather more chaotic quality, a fact displayed yesterday as Braverman clashed with the Speaker and her opposite number Yvette Cooper).

Moreover, as immigration minister, Jenrick has not shied away from the discursive elements of the brief. His comments to a Policy Exchange event last month that migration threatened to “cannibalise” British compassion was an unsubtle confirmation that the minister would not operate, as had initially been assumed, as a moderating influence in the Home Office. The best way to quiet Braverman, so it seems, is simply to agree with her. 

Ultimately, Jenrick’s proximity to Braverman on both policy stances and rhetoric — coupled with his conspicuousness across the media and at the commons dispatch box — means he is no less than the de facto home secretary in Sunak’s government. Braverman’s personal fiefdom, the Home Office is not. 

Suella’s ‘soft power’?

Of course, one could say that in winning the “stop the boats” pledge for her department — one-fifth of PM’s pre-election offering — Braverman is exercising soft power in cabinet, slowly working her colleagues to the right on migration. And, in terms of policy, Sunak and Braverman’s political alliance appears to have yielded significant movement for the Conservative right’s favoured cause. The illegal migration bill, if passed, would see arrivals on “small boats” detained within the first 28 days without bail or judicial review. It would place a legal duty on the government to deport almost anyone who arrives “irregularly” in the UK. And it would introduce a cap on the number of refugees offered sanctuary through safe and legal routes.

But that the prime minister has marked himself out as an unapologetic “small boat”-stopping Conservative, even sharpening up the illegal migration on ECHR interventions at the commons committee stage, need not necessarily be credited to Braverman’s influence. Sunak’s tough talk, his tough rules, his bullishness, the desire to test the limits of international law and stare down the ECHR, must be viewed as much through the prism of electoral strategy than of party management. 

Small boats are central to Sunak’s political offering — with his highly presidential approach shaped on this area, as on others, by polling which shows he is far more popular than his party. So when the public was updated on the “small boats” situation yesterday, it was Sunak, freshly fitted with Timberland boots, stood at the helm. We have long passed the time when tough talk on migration was the exclusive privilege of a particular Conservative party clique. 

And then there’s the matter of the Home Office curse. The department is not what it once was as a platform for an ambitious minister and Braverman’s continued presence there may in time begin to erode her future leadership positioning. 

Through 2019-2022, then-home secretary Priti Patel was no less convinced on immigration policy than Braverman is now. But by the end of her tenure, the right-winger was much-derided by the Conservative grassroots. Patel discovered that the expectations raised by hardline rhetoric in the Home Office makes a perceived lack of delivery even more politically potent. ConservativeHome’s final cabinet “league table” of Boris Johnson’s premiership found Patel had a negative 13.4 per cent satisfaction among surveyed party members.

Gordon Brown once said that “There are only two types of chancellors; those that fail and those get out in time”. It is a saying which may be readily applied to the Home Office today. In the end, for a home secretary positioning for a future leadership run, small boats are much easier to talk about than to “stop” outright.

It means that on illegal immigration any forthcoming success will likely be attributed to the influence of the PM and his Timberland boots. But failure on Channel crossings, as the Priti Patel case study illustrates, may ultimately accost the ambitious home secretary. 

Rather than a model of dual governance, therefore, the Braverman-Sunak nexus has become a means by which the PM has furthered his party-political and policy goals. The losers in this equation, it would appear, are the home secretary and her leadership prospects. 

From Doe v. Ladapo, decided today by Judge Robert Hinkle (N.D. Fla.):

This action presents a constitutional challenge to a Florida statute and rules that (1) prohibit transgender minors from receiving specific kinds of widely accepted medical care and (2) prohibit doctors from providing it. The treatments at issue are GnRH agonists, colloquially known as “puberty blockers,” and cross-sex hormones. This order grants a preliminary injunction….

[II.] Gender identity is real

With extraordinarily rare exceptions not at issue here, every person is born with external sex characteristics, male or female, and chromosomes that match. As the person goes through life, the person also has a gender identity—a deeply felt internal sense of being male or female. For more than 99% of people, the external sex characteristics and chromosomes—the determinants of what this order calls the person’s natal sex—match the person’s gender identity.For less than 1%, the natal sex and gender identity are opposites: a natal male’s gender identity is female, or vice versa. This order refers to such a person who identifies as female as a transgender female and to such a person who identifies as male as a transgender male. This order refers to individuals whose gender identity matches their natal sex as cisgender.

The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear. The medical defendants, speaking through their attorneys, have admitted it. At least one defense expert also has admitted it. That expert is Dr. Stephen B. Levine, the only defense expert who has actually treated a significant number of transgender patients. He addressed the issues conscientiously, on the merits, rather than as a biased advocate.

Despite the defense admissions, there are those who believe that cisgender individuals properly adhere to their natal sex and that transgender individuals have inappropriately chosen a contrary gender identity, male or female, just as one might choose whether to read Shakespeare or Grisham. Many people with this view tend to disapprove all things transgender and so oppose medical care that supports a person’s transgender existence. In this litigation, the medical defendants have explicitly acknowledged that this view is wrong and that pushing individuals away from their transgender identity is not a legitimate state interest.

Still, an unspoken suggestion running just below the surface in some of the proceedings that led to adoption of the statute and rules at issue—and just below the surface in the testimony of some of the defense experts—is that transgender identity is not real, that it is made up. And so, for example, one of the defendants’ experts, Dr. Paul Hruz, joined an amicus brief in another proceeding asserting transgender individuals have only a “false belief” in their gender identity—that they are maintaining a “charade” or “delusion.” Another defense expert, Dr.

Patrick Lappert—a surgeon who has never performed gender-affirming surgery— said in a radio interview that gender-affirming care is a “lie,” a “moral violation,” a “huge evil,” and “diabolical.” State employees or consultants suggested treatment of transgender individuals is either a “woke idea” or profiteering by the pharmaceutical industry or doctors.

Any proponent of the challenged statute and rules should put up or shut up: do you acknowledge that there are individuals with actual gender identities opposite their natal sex, or do you not? Dog whistles ought not be tolerated.

[III.] The challenged statute and rules

The challenged parts of the statute and rules apply to patients under age 18. The statute prohibits the use of “puberty blockers” to “stop or delay normal puberty in order to affirm a person’s perception of his or her sex if that perception is inconsistent with the person’s [natal] sex.” And the statute prohibits the use of “hormones or hormone antagonists to affirm a person’s perception of his or her sex if that perception is inconsistent with the person’s [natal] sex.” The statute makes violation of these provisions a crime and grounds for terminating a healthcare practitioner’s license.

The statute has exceptions, including, for example, for use of these products during a transition away from them, but the exceptions are not relevant here. And the statute has other provisions, including a prohibition on transgender surgeries, but those provisions, too, are not at issue here.

The challenged rules were adopted by the Florida Board of Medicine and the Florida Board of Osteopathic Medicine. In identical language, the rules prohibit the Boards’ licensed practitioners from treating “gender dysphoria in minors” with “[p]uberty blocking, hormone, or hormone antagonist therapies.” …

[IV.] The standards of care

Transgender individuals suffer higher rates of anxiety, depression, suicidal ideation, and suicide than the population at large. Some suffer gender dysphoria, a mental-health condition recognized in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-5”). The diagnosis applies when specific criteria are met. Among other things, there must be a marked incongruence between one’s experienced gender identity and natal sex for at least six months, manifested in specified ways, and clinically significant distress or impairment.

There are well-established standards of care for treatment of gender dysphoria. These are set out in two publications: first, the Endocrine Society Clinical Practice Guidelines for the Treatment of Gender Dysphoria; and second, the World Professional Association for Transgender Health (“WPATH”) Standards of Care, version 8. I credit the abundant testimony in this record that these standards are widely followed by well-trained clinicians. The standards are used by insurers and have been endorsed by the United States Department of Health and Human Services.

Under the standards, gender-dysphoria treatment begins with a comprehensive biopsychosocial assessment. In addition to any appropriate mental-health therapy, there are three types of possible medical intervention, all available only to adolescents or adults, never younger children.

First, for patients at or near the onset of puberty, medications known as GnRH agonists can delay the onset or continuation of puberty and thus can reduce the development of secondary sex characteristics inconsistent with the patient’s gender identity—breasts for transgender males, whiskers for transgender females, changes in body shape, and other physical effects.

Second, cross-sex hormones—testosterone for transgender males, estrogen for transgender females—can promote the development and maintenance of characteristics consistent with the patient’s gender identity and can limit the development and maintenance of characteristics consistent with the patient’s natal sex. For patients treated with GnRH agonists, use of cross-sex hormones typically begins when use of GnRH agonists ends. Cross-sex hormones also can be used later in life, regardless of whether a patient was treated with GnRH agonists.

Third, for some patients, surgery can align physical characteristics with gender identity, to some extent. The most common example: mastectomy can remove a transgender male’s breasts. Perhaps 98% of all such surgeries are performed on adults, not minors.

The motions now before the court deal directly only with GnRH agonists.

The motions deal indirectly with cross-sex hormones, because to achieve their intended result, GnRH agonists are ordinarily followed by cross-sex hormones. The motions do not present any issue related to surgeries.

The court moves on to conclude that the standards of care are supported by “[t]he overwhelming weight of medical authority,” and cites the testimony of doctors in the case, concluding:

The clinical evidence would support, though certainly not mandate, a decision by a reasonable patient and parent, in consultation with properly trained practitioners, to use GnRH agonists at or near the onset of puberty and to use cross-sex hormones later, even when fully apprised of the current state of medical knowledge and all attendant risks. There is no rational basis for a state to categorically ban these treatments.

The record includes no evidence that these treatments have caused substantial adverse clinical results in properly screened and treated patients….

I find, based on the record now before the court, that the plaintiffs are likely to succeed on their claim that they have obtained appropriate medical care for their children to this point, that qualified professionals have properly evaluated the children’s medical conditions and needs in accordance with the well-established standards of care, and that the plaintiffs and their children, in consultation with their treating professionals, have determined that the benefits of treatment with GnRH agonists, and eventually with cross-sex hormones, will outweigh the risks. I find that the plaintiffs’ ability to evaluate the benefits and risks of treating their individual children this way far exceeds the ability of the State of Florida to do so. I find that the plaintiffs’ motivation is love for their children and the desire to achieve the best possible treatment for them. This is not the State’s motivation.

The court concludes that “banning treatment with GnRH agonists and cross-sex hormones” likely “violates the Fourteenth Amendment’s Equal Protection Clause” because it discriminates based on sex and gender nonconformity, citing and elaborating on Brandt ex rel. Brandt v. Rutledge (8th Cir. 2022), which held likewise:

Consider an adolescent, perhaps age 16, that a physician wishes to treat with testosterone. Under the challenged statute, is the treatment legal or illegal? To know the answer, one must know the adolescent’s sex. If the adolescent is a natal male, the treatment is legal. If the adolescent is a natal female, the treatment is illegal. This is a line drawn on the basis of sex, plain and simple.

In asserting the contrary, the defendants note that the reason for the treatment—the diagnosis—is different for the natal male and natal female. Indeed it is. But this does not change the fact that this is differential treatment based on sex. The reason for sex-based differential treatment is the purported justification for treating the natal male and natal female differently—the justification that must survive intermediate scrutiny. One can survive—but cannot avoid—intermediate scrutiny by saying there is a good reason for treating a male and female differently….

Drawing a line based on gender nonconformity—this includes transgender status—also triggers intermediate scrutiny….

The court concludes that Florida’s arguments for why intermediate scrutiny are “largely pretextual” and don’t justify the law. (The analysis is too long for me to quote here; see the opinion for the details.) And it also concludes that plaintiffs are likely to prevail on their parental rights claims:

The defendants say a parent’s right to control a child’s medical treatment does not give the parent a right to insist on treatment that is properly prohibited on other grounds. Quite so. If the state could properly prohibit the treatments at issue as unsafe, parents would have no right to override the state’s decision. But as set out above, there is no rational basis, let alone a basis that would survive heightened scrutiny, for prohibiting these treatments in appropriate circumstances.

The court closes with this:

Gender identity is real. Those whose gender identity does not match their natal sex often suffer gender dysphoria. The widely accepted standard of care calls for evaluation and treatment by a multidisciplinary team. Proper treatment begins with mental-health therapy and is followed in appropriate cases by GnRH agonists and cross-sex hormones. Florida has adopted a statute and rules that prohibit these treatments even when medically appropriate. The plaintiffs are likely to prevail on their claim that the prohibition is unconstitutional. And they have met the other prerequisites to a preliminary injunction.