HOSTS
PETER SHAMSHIRI
RHIANNON HAMAM
MICHAEL LIROFF
Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about Trump v. Orr, a recent case from the shadow docket about transgender rights and the Trump administration's efforts to enforce its anti-trans agenda. At issue in the case was Trump's executive order requiring transgender people to identify themselves on their passports with the sex they were assigned at birth and whether that requirement violates the equal protection clause. A lower court had issued a preliminary injunction preventing the order from being enforced, but in an emergency ruling, a majority of the justices stayed that injunction, reasoning that the government would face irreparable harm if the policy wasn't enacted right away.
[ARCHIVE CLIP: It is a gut punch for transgender and non-binary Americans who have fought hard for the right to be recognized as themselves. The ACLU is warning this could expose trans travelers to harassment and violence while abroad.]
Leon: It's another example of the justices allowing an aggressive executive order from the Trump administration to be put into practice while it winds its way through the courts. This is 5-4, a podcast about how much the Supreme Court sucks.
Peter Shamshiri: Welcome to 5-4 where we dissect and analyze the Supreme Court cases that have failed our nation like a Christian student failing a writing assignment. I'm Peter. I'm here with Michael.
Michael Liroff: Hey, everybody.
Peter: And Rhiannon.
Rhiannon Hamam: Hello. What, your personal opinion isn't a citation anymore?
Michael: [laughs]
Rhiannon: That doesn't count?
Peter: One of the funniest things I've ever seen, and I guess, you know, all funny things now are sort of tragic as well. A TA who almost certainly did not deserve it, got suspended. Hopefully that turns around in some way. But ...
Rhiannon: Was that at OU?
Peter: Yeah, Oklahoma. There was a junior student who was asked to react to, I think it was some research about gender identity. And her entire essay was basically just a bunch of, like, religious gibberish where she was like, "First of all, I think it's okay to bully people based on gender identity because God gave us certain gender identities, and the idea that you can change genders is demonic." And she got a 0 out of 25, which is hilarious. I wrote about this online and people yelled at me but, like, as someone who used to do discrimination law, you gotta be a little more subtle. You should be discriminating against Christian students, but you gotta play it a little more subtle than that. You gotta give them a D, you know?
Michael: Three points for having some coherent English in there, although the ideas are nonsense. Yeah.
Peter: Yeah, the funniest possible thing is to be like, zero. This is absolutely ...
Michael: You might as well have just not handed this in at all. Same value, same grade. Yeah.
Peter: I'm also—I'm very intrigued by the world that she's implying exists where someone is like, "Hey, what are your thoughts on this?" And you're just like, "Well, I can tell you what Jesus's thoughts are, you fucking asshole. Jesus's thoughts are that you are going to hell."
Michael: Yeah.
Rhiannon: It's like, a little bit more rigorous than that in terms of the ask, right? She wasn't asked to give her just, like, personal opinion, and that was why she got the zero, which is like, you're not engaging with this in a science way. You're just talking about your opinions.
Michael: Yeah.
Peter: These are the thoughts of a baby. That's what I think the TA wanted to say. My other advice for would-be anti-Christian discriminators out there, and I know you're listening, is don't explain yourself so much. This is something the TA did where she's like, "I'm gonna give a thorough explanation of the grade." Right? But that just gives them shit to hang on to when they're claiming discrimination, right? Give one line that's like, "This is incoherent," and then be done with it. 0 out of 25. Hard to claim that's discrimination. You know what I mean?
Rhiannon: Oh, beautiful.
Peter: All right. Today's case, Trump v. Orr. This is a case from just a few weeks ago about gender markings on passports. In January, the Trump administration issued an executive order that said, among other things, that moving forward, the sex marked on passports must be aligned with your sex assigned at birth, meaning that a transgender woman who was assigned male at birth but has been living as a woman must mark 'male' on her passport. This was challenged as a violation of equal protection for discriminating on the basis of sex and against transgender people. But the Supreme Court, in a six to three decision, said, "No, it's probably fine."
Michael: We know there are at least three dissenters, but there may have been more. It could have been five to four.
Peter: Let's be honest. I know what you're saying, but come on.
Michael: I could see Gorsuch being an unsigned dissenter.
Peter: Okay. Yeah, right. I bet you could see it.
Michael: He wrote a trans-friendly case.
Peter: Yeah. A long time ago. It's been a long five years.
Michael: 2022. What was it?
Peter: No, it was 2020.
Michael: It was 2020.
Rhiannon: So long ago. But, like, here we are in this mess. Another, like, unsigned opinion. The reason why we don't know how many people are in the majority is because this is another case on the emergency docket, the shadow docket, whatever you want to call it. Another Trump administration policy just, like, bouncing up and down and round the federal judiciary at this point, right? So let's get into it. The State Department adopted this policy on January 22 of this year. That is early in the Trump administration, folks.
Peter: First things first, folks.
Rhiannon: Yes.
Peter: Let's get those passports looking right.
Rhiannon: Exactly. We need to clean up the passports. And what does this policy do? Well, it required that all passports issued from that date, from January 22, 2025 and onwards, all those passports issued needed to reflect a person's sex assigned at birth. But zoom out a little bit. Let's talk about before that. What was the policy on people's passports in terms of the sex designation on somebody's passport? So from 1992 to 2010, the State Department had allowed people who had undergone surgical reassignment to have that new sex designated on their passport. And then from 2010 until early this year, 2025, the State Department allowed people to submit a doctor certification that they had received clinical treatment for gender transition in order to change the sex designation on a passport.
Rhiannon: But Trump, if everybody remembers, on the first day in office, January 20, he signed an executive order that described transgender identity as, quote, "false and corrosive to American society." He said that the, quote, "policy of the United States is," quote, "to recognize two sexes, male and female." And you might ask, okay, well, how is someone determined to be one of those sexes, male or female? The executive order defines sex as the sex assigned at conception.
Peter: Assigned at conception.
Michael: So assigned by God?
Peter: That's my favorite part of sex, by the way.
Michael: Yeah.
Peter: That's my favorite part of sex is right afterwards, when you're like, "Boy, by the way. It's boy right now."
Rhiannon: When you learn this in biology, ninth grade, sperm hits egg. God sends down the assignment.
Peter: Right. In little rays.
Rhiannon: God says blue or pink.
Michael: That's what the stars are, is God's light shining through the celestial sphere.
Rhiannon: That's right.
Michael: To assign sex at conception.
Rhiannon: Yeah.
Peter: Every star is one gender to be assigned.
Michael: [laughs] That's right. That's right.
Rhiannon: And so conception here, you know, what do we have alluding to? We got some fetal personhood in this executive order. We have lots of anti-abortion sentiment included here, right? Sex is assigned at conception, and that's people's true and only sex. And so that's what caused the State Department to change the policy on passports. And this change in the policy with respect to passports obviously gets challenged both procedurally and substantively, right?
Rhiannon: The plaintiffs here are challenging this policy change, saying the procedure with which the administration implemented this new passport policy is illegal, and the policy itself is substantively illegal, namely that it violates the equal protection clause of the Constitution.
Rhiannon: So in the very initial stages, plaintiffs ask to be certified as a class—this is a class action lawsuit—and ask that the implementation of this policy is preliminarily enjoined, that the judge block the implementation of this new passport policy. And what happens in the district court at that lower level? The judge agrees. The judge does enter a preliminary injunction, and that's what's getting appealed up and down and round and round, all the way up to the desks of Alito et al.
Peter: So the legal claim here is that this violates the equal protection clause by discriminating on the basis of sex and discriminating against transgender individuals. This is another case that comes up through the shadow docket, which means this isn't a final determination, and technically the court could change their mind later. In some of these cases, we don't even get a written opinion, but we do get one here where they make, like, a very bare bones argument about why this does not violate equal protection. They say "Displaying passport holders sex at birth no more offends equal protection principles than displaying their country of birth. In both cases, the government is merely attesting to a historical fact without subjecting anyone to differential treatment." Why does this feel like such classic right wing argumentation where they're like, "Oh, so facts are illegal now?"
Michael: [laughs] Yeah.
Rhiannon: Bread and butter.
Peter: I had a flashback to when I was a lawyer, and there was a case where some employees at a company were talking about George Floyd. And then one right wing guy just started sharing Black crime statistics.
Michael: Oh my God!
Peter: And then when he got disciplined for it, he was like, "Oh, so you're mad about facts? Like, I can't even say facts?"
Michael: Yeah.
Peter: And it's like, no, dude, we're not mad about facts. We're mad about the thing that we all know that you're trying to do. Like, you can't just, like, hide behind, like, "I'm just saying a fact" and, like, everyone's tricked by it. Like, your prejudice is somehow obscured.
Rhiannon: Right. Not to mention, like, yes, it is a fact that every baby basically is assigned a sex at birth, but that's not—like, the actual accuracy of that assignment is not factual.
Peter: Also, like, that's not the point of an ID. Like, the point of an ID is not to, like, attest to a historical fact.
Michael: I'm also gonna put my baby photo on my passport. It's a historical fact. That's what I looked like at birth. That's very helpful for identifying me is my little fat, crinkly baby face. Yeah, for sure.
Rhiannon: Eight pounds, two ounces. Put that on my passport.
Michael: Like, what are we talking about here? The whole point is to identify you!
Rhiannon: Currently. In the present day.
Peter: This is just like an exercise in pedantry that completely obfuscates the language of the actual executive order, right? The executive order doesn't say, like, "Oh, we're just interested in historical facts." It says it's meant to, quote, "defend women from gender ideology extremism," and that, quote, "Ideologues who deny the biological reality of sex," unquote, are trying to grant men access to female spaces like workplace showers and domestic abuse shelters. That's what the executive order says. It's not like, "Oh, we're just interested in history." But the court just, like, gives it that gloss.
Michael: It's so ham-fisted, right? Like, this isn't discrimination, this is just stating historical facts. It's like when fucking Homer Simpson is like, "I'm not gonna eat this pie. I'm just gonna open and close my mouth and walk towards the pie. And if it gets eaten, it's its own fault." You know? Like, who are we fucking kidding here? Like, it's so not convincing.
Peter: I'm glad you remembered that, Michael, because we were gonna record this a week ago, and then I got sick and so we didn't. And then in the outline I just put "Homer scene."
Michael: [laughs]
Peter: And then, like, today we were like what the hell is that?
Rhiannon: The Iliad or what?
Michael: [laughs]
Peter: The idea that this is not subjecting anyone to differential treatment is absurd, right? Like, the entire stated purpose of the executive order is to target transgender people.
Rhiannon: Yeah.
Michael: Absurd.
Peter: Imagine that there's an executive order that says that passports must include your religion, right? You could say, "Well, it treats everyone the same. It's not subjecting anyone to differential treatment." And then the entire text of the executive order is about eliminating the scourge of the Vatican from public life or whatever, right? Like, would the court say that the religious marker is just attesting to a historical fact without subjecting anyone to differential treatment? Right? And, like, it's just so obviously fucking stupid. Like, why even bother explaining yourself at this point?
Rhiannon: Yeah.
Michael: Yeah. The dissent mentions also that on the record there are several plaintiffs who testified to the actual differential treatment they got because of this, right? Which is that their gender identity does not match the marker on their passport. And so, like, one example, it was Chastain Anderson attests to having been strip searched when traveling. TSA abusing, molesting, harassing people because their gender identities or gender presentations don't match what their passport says. That's differential treatment, right?
Peter: And it goes to show that TSA doesn't treat passports like they're an attestation to a historical fact, right?
Michael: No.
Peter: They treat them as, like, a presentation of your current identity.
Michael: Right.
Peter: And if there's a mismatch, they're going to notice it and potentially take action to, like, try to find out what's going on or whatever, you know? Who fucking knows? It's TSA. But they're very likely going to harass someone who they believe has some discrepancy between their, like, presentation and the ID. That's just—that's what it's for.
Rhiannon: Right.
Peter: There's also a legal question about animus. Under the precedent, a law violates equal protection if the sole purpose of the law is animus toward a group, especially like a minority group.
Rhiannon: Right.
Peter: The opinion here says that the plaintiffs failed to establish that it was, you know, solely driven by animus. I have to say I don't really understand this precedent if we're gonna use it like this, right? Like, when a government passes a prejudiced law ...
Rhiannon: Targeted at a minority.
Peter: Targeted at a minority group. Obviously when they do that, they're going to have, like, a quote-unquote "reason," right? Like, they don't just say, "Hey, we hate this group." They say this group is dangerous in some way. They're invading women's locker rooms, right? In Trump v. Hawaii, the Muslim ban case, the court said the same thing, right? They said, like, "Well, the law is not entirely based in animus. The administration had various reasons concerning national security, right? Which means that you can just pass this test as long as your prejudiced law has some purported justification. It's not animus against Muslims, it's national security, right? It's not animus against trans people, we're just worried about the integrity of women's locker rooms. By the way, the entire executive order is about, like, women's spaces and stuff. There's nothing, like—there's nothing about someone who transitions to identify as a male.
Rhiannon: Yeah. It's like protecting women.
Peter: It's a one-way thing that just never gets addressed in the order or by the court.
Michael: Right.
Peter: It just cannot be that your law is okay as long as you come up with, like, some ostensible justification for your prejudice, right? Like, it can't be that it's like, we're cracking down on this minority because they're prone to crime. And it's like, well, that's not animus.
Rhiannon: Right.
Peter: That's just a practical response to crime. It can't be that it's not considered prejudice.
Rhiannon: And it can't be that no skepticism is applied to these kinds of claims by the government by courts, right? You know, just to this point about animus. You know, remember, you touched on this, Michael, at the district court level, the judge agrees to enter a preliminary injunction. Why? Because he finds that there is a ton of evidence from experts, from people affected, people with lived experience, testimony, studies, et cetera, that trans people would face irreparable harm by having to face this policy, by the implementation of this policy in the interim period as it makes its way through the court system.
Rhiannon: And in finding that, the judge said, quote, "If the plaintiffs use passports that identify them by their sex assigned at birth, they are likely to experience worsened gender dysphoria, anxiety and psychological distress, and they will face a greater risk of experiencing harassment and violence. Injuries like these cannot be accurately measured or compensated by money damages or other legal remedies." You have that judge here, you have tons of evidence at the lower level that shows what damage the implementation of this policy would actually do in reality. And so yes, this evidence points to the irreparable harm that the plaintiffs would face if the policy is implemented, but it also, like, really just lays bare the animus. Who else knows the consequences of this? The government. The State Department.
Peter: Rhi, I know you're doing a good faith attempt to dissect this here but, like, do we need to pretend that we need to establish that the Trump administration has animus towards trans people?
Rhiannon: Right. Right. It's in the executive order. Like, that's what I'm saying. Like, it's all over this.
Peter: Their whole thing is just like, "Well, look, it's not animus, it's just that we don't believe that they're real, and we want to strip them of all legal recognition and protection."
Rhiannon: And we'll just say that with, like, legal authority. I mean, this goes back to the pedantry point, right? Like, pedantry is the crux of this opinion. We've talked multiple times in many episodes this year about, like, the standards at this stage of litigation that, like I just said, the lower court is looking for, you know, would plaintiffs suffer irreparable harm if this policy is implemented? Would the government suffer irreparable harm if they're prevented from implementing this policy? And so the pedantry comes up not just in, like, this attestation of historical fact or whatever.
Rhiannon: Also foreign affairs gets inserted here in these short paragraphs. Pedantic claims about foreign affairs all of the sudden. The court says the irreparable harm that's supposedly gonna be caused to the government if this policy about passports is blocked is that it, quote, "joins enforcement of an executive branch policy with foreign affairs implications concerning a government document."
Michael: Hmm.
Rhiannon: Huh? Huh?
Peter: Yeah. "Foreign affairs implications. None that we can name."
Michael: No.
Peter: But the implications are there, folks."
Rhiannon: Do you have any evidence, any explanation? There's nothing. What foreign affairs are you talking about? And you're saying the US government is being irreparably harmed? Huh? I don't even understand what is being proposed here.
Michael: No, it's insane! It's insane!
Peter: We've made a promise to our allies to be anti-trans, and now this is a national security issue.
Rhiannon: And then last thing I'll say about the opinion—you know, quote-unquote "opinion." This is what, four paragraphs or something?
Peter: Yeah.
Rhiannon: And the irreparable harm analysis that the court is supposedly doing. You know, they're saying the US government is going to suffer irreparable harm if they can't implement this transphobic, violent policy. But think about what would happen if they're blocked from implementing this policy. It would go back to the status quo, meaning the passport policy around sex designation that has been in place for, like, the last 30 years.
Michael: Yeah.
Rhiannon: So what irreparable harm are you talking about?
Michael: Right.
Rhiannon: It's so silly that it's, like, hard to actually, like, make a full podcast episode about this. Like, it's so absurd.
Peter: This is one of those things where—it's very interesting. I've said many times that I appreciate that, like, a hundred years ago the Supreme Court's opinions were, like, three pages long and they were just like, "Let's just vibe this out real quick and be done with it." Right?
Michael: Mm-hmm.
Peter: And now everything's so performative, right? Everything's like, how can we, like, dress this up and just, like, stack one idea after another on top of each other until it, like, feels more authoritative, like, it feels like something that is written in history somehow that we're just presenting to you? So I kind of appreciate this, because this feels like they're id talking to us a little bit, right? Where they're just sort of like, "What, you can't fucking say facts about things now? That's illegal now." And what? And then the opinion's over. That's it.
Michael: Yeah.
Rhiannon: What if the cold, monstrous, disgusting ghost inside my heart were speaking, finally?
Peter: Yeah. If you ever just, like, get, like, a right winger in your TikTok algorithm for a second and you're just like, "What the fuck? What are you talking about? Like, are you fucking illiterate?" And then it's over. And you're like, "What was that? You thought that was a point? Like, you put that online?" That's how I feel about this. I'm like, "You put this into public for people to read?"
Michael: Yeah. This is what Ketanji Brown Jackson's dissent is about, for the most part, is about the balance of harms, the balance of equities, the standard of review here. You know, and it's all good. It's not new territory, right? Like, this is the however many time—you know, 10th time, 12th time, who the fuck knows, that the Supreme Court has stepped in to give the Trump administration a win on the shadow docket. And they've done it, like, in contravention of all the standards, all the balance of harms and all that. And then we've had to be explaining that. You know, so in a lot of ways, it's just sort of old hat. She does use some pretty strong language. She at one point calls this "a pointless but painful perversion of our equitable discretion."
Peter: Sick use of alliteration.
Michael: Yeah, well done. At one point she's like, this is like a well-recognized pattern now of, you know, we were once again stepping in on their behalf. But I thought the most interesting thing in this dissent was actually in a footnote. And so I'm just gonna read the footnote. It says, "Not only does the court's stay determination produce inequity, but it is also part of a broader pattern of this court using its emergency docket to cavalierly pick the winners and losers in cases that are still pending in the lower courts. This way of handling stay determinations jeopardizes procedural fairness as well, because the lower courts have an obligation to fully and fairly consider the merits of the plaintiff's legal claims despite the majority's declaration of the quote-unquote 'likely winner.' the court's stay-related pronouncements cannot be permitted to thwart the full legal process that our judicial system requires." And I think this is like a sharp point that I hadn't thought about is that these cases go back, right? They go back to the lower courts, with the Supreme Court essentially picking a winner in a case where the lower courts have already indicated they disagree with who the likely winner is.
Rhiannon: With a lot of evidence to back it up, also.
Michael: Right. And now you have one of two paths, either of which is a very perverted idea of justice, of a court functioning properly. One is the district court being like, "No, I'm doing what I think is right, knowing that it'll probably get overturned on appeal." Or the other is the district court being like, "Well, I think this is wrong, but the Supreme Court said, you're—like, you know, you're likely to lose, so you're—so I guess that's what we're doing." Either way, it's a fucking joke.
Peter: To give people an understanding of what's happening here, this stuff comes up to the Supreme Court, and there isn't a full record, right? Like, we don't know exactly what all the facts are in most of these cases. And so the court's just like, "Here's who we think's gonna win. We're eyeballing it." Right? And then a lower court will at some point have all of the evidence that is allowed in front of it and have to make a determination. And looming over their head is, like, well, the Supreme Court sort of guessed, right? The Supreme Court sort of said, "Here's what we think will happen." Right? So how do you go against that, right? Do you? Like, is it—are you just wasting your time doing, like, the careful work of trying to analyze who you think actually wins this case? And should you have to factor in that the Supreme Court, in, like, two lines that had no real, like, explanatory power, said that it agrees with the other side, at least at a glance? Like, should you have to consider that? I don't even know.
Rhiannon: Yeah.
Michael: I don't think there's a good answer to it, right? These aren't supposed to be precedential, and they're not supposed to be a full merits determination. But there's a consistent pattern, and there's justices complaining publicly that the lower courts are not respecting their decisions. So they clearly think, like, you should be getting the picture that we think the Trump administration wins all the time—unless it's with the Fed and the economy, you know? Then keep your hands off our index funds or whatever. But in all other cases, Trump wins, right? They think they're being very clear. And a number of them have expressed that they're upset with the lower courts about this, but at the same time, not so clear that they're willing to sit here and, like, actually write a fucking opinion explaining, like, how this is supposed to shake out, right? So I don't think there is an answer. I think the answer that they want is that the lower courts just do the dirty work for them, right? That's what they want is bagmen to handle it for them. But so far, the low courts haven't been willing to do that. And I think that's like the last functioning appendage of the American government at this point, properly functioning appendage of the American government are the district courts being like, "Fuck that. I'm just—I'm doing it. I'm applying the precedent properly, and I'm ruling how I think is right."
Rhiannon: Right. Let it go up.
Michael: Yeah, the Supreme Court's fucked. Congress is fucked. Some of the circuit courts of appeals are fucked. Obviously, the administration itself is fucked. But we got a few district court judges doing their jobs, at least.
Peter: One thing I want to mention, the executive order, as it pertains to gender markings on passports, is sort of symbolic in the very literal sense that it's dealing with symbols, right?
Michael: Right.
Rhiannon: Yeah, like a label.
Peter: Right. Which I think makes it easy for some people to write it off as, like, performative. But it is really functionally at its core, just the federal government saying, "We don't recognize you" to trans people. Right? "We don't believe that this exists. You will not see it reflected in any federal government business." Right? That is what the goal is. And if they do enough of that, like, this makes it difficult to travel internationally if you are a trans person. You now have to explain this potentially to a TSA agent, subject yourself to potential harassment. The more things like this they put up, the more obstacles they put up to just existing as a trans person in this country, the more difficult it becomes for someone to say, "Hey, yeah, I am a trans person," to come out as a trans person, right? They want it to be so painful to be an out trans person, to be someone who is embracing their gender identity that people won't do it anymore. Like, that is the end goal, right?
Rhiannon: Yeah. Yeah, I think that's exactly right. Like, you can say that this is—and I think accurately, to a degree, that there's a lot of political theater behind this, right? Like, when you get down to it, like, it's quote-unquote, "just one sort of identity, a marker label on one government document." Like, this doesn't really apply to that many people relatively, right? You know, this isn't anywhere near a majority of people in this country, right? A very small minority, and yet the administration's spending so much time talking about trans people. Like, this is just—this is theatrical, right? Because it is. But that's not to say that it's not dangerous, right? So maybe the specific, you know, small issue of how many people does this apply to, like, literally how many passports are affected relative to the number of passports issued total in the United States, sure, that's small, right? But the theater of this is the danger, the theater that the Supreme Court is doing about this, about historical attestations and this affecting matters of foreign affairs, right? The theater of it is incredibly damaging. It is incredibly harmful, right? Because who is a consumer, an audience member of the theater? The general public. And so if this kind of pedantry theatrics are being consumed and reproduced across media, across the education system, this is internalized by the masses.
Michael: And reproduced by the masses, eventually.
Rhiannon: Right. Right, exactly. And with the most harm, most violence, most danger is, like, falling on what is a really small minority of people.
Michael: Yeah.
Peter: Yeah. Put what's happening here next to what we talked about up top, the Oklahoma dipshit. Right?
Rhiannon: Mm-hmm.
Peter: This girl who writes a dumb-ass essay being like, "Trans people are demonic." Her trans TA, she was just like, "Well, this is offensive, and also very bad writing. You did not do any analysis here at all." And that girl is like, "Oh, my God! I'm being discriminated against."
Michael: Mm-hmm.
Peter: Like, a trans person just sort of asserting their identity in a relatively banal way becomes discrimination, right? They recoil from you. They're—you know, I think it was Adam Johnson over at Citations Needed who originally coined the term "crybullies," right? People who are sort of constantly in a perpetual state of bullying others and also crying when there's any pushback. And flowing between the two at all times.
Rhiannon: Yeah. And bullying others based on their, you know, persecution victimhood complex, right?
Michael: Right.
Peter: And I mean, just think the absurdity of saying, "I'm being discriminated against with my grade on this essay," meanwhile, this is not discrimination, right? Just putting out an executive order that's like, "Trans people aren't real and we don't want to see that shit on passports." Not discrimination.
Michael: Yeah. And I may have mentioned this phrase when I was talking about the dissent, but something we should talk about regardless is, like, the balance of equities. It's like a legal phrase. This is—what the court's doing here is called "sitting in equity." And Jackson talks about this. Equity is less legalistic and more the touchstone is fairness. And this goes to what Peter was saying about how this is early in the proceedings. You don't have a full record. And so the idea is just like, well, what's the most fair way to proceed during discovery, while we're figuring this stuff out.
Rhiannon: Based on what we know now, what would be a fair result at this stage? Yeah.
Michael: Right. And so that's kind of what the balance of equities is about. That's why they talk about "irreparable harm," right? Like, somebody might be harmed during trial, but if it's reparable harm, if you could be compensated for it afterwards because you won at trial, you can have that harm repaired, then the court isn't as concerned with it. It's well, is something gonna happen that can't be changed? Is something gonna happen during trial that is unfixable? And then maybe we should be cautious about letting that happen before a final determination is made. Right? And again, so that's like a fairness thing. Like, is it really fair to let you get an irreparable harm before trial is even finished? And what the court is saying is essentially like being strip-searched at TSA, which is, I would argue, an irreparable harm—it's certainly a harm. And I think a lot of people would say getting compensated after the fact, which is very unlikely anyway, is not much of a reparation.
Peter: Right.
Rhiannon: Or facing violence in a foreign country.
Michael: That's what balance of equities is really about, which is like, do we keep the status quo in place? Do we change the status quo, and if so, how? What's the fairest outcome? And what the court's saying here is that the most unfair injury it can imagine is Donald Trump not getting to do whatever he wants.
Peter: Or, like, the reactionary political movement not getting what it wants, right? The more unhinged the conservative political movement gets, the more you see this sense of, like, faux urgency in the court, right? Where they're like, Trump needs to win all of these cases, because they're absorbed—like, in their media environment, the information that they absorb is like, we're under attack by liberal forces and, like, it necessitates this immediate, this overwhelming response by Donald Trump and his allies, right? The idea that they're just, like, in power and oppressing other people, it doesn't really clock to them. They are the oppressed in their minds, right? The traditional religious family is oppressed in their minds, right? The dumbass student who says that trans people are demonic because the Bible says so, that's the oppressed minority in their minds, right? And it sort of necessitates immediate action. And so when they're analyzing the balance of the equities, when they're saying, like, what would be fair here? That's what's in their head, right? That's the framework through which they're operating, this just sort of like brain-poisoned right wing bullshit.
Rhiannon: Right. Well, and it's so not real. It's so inaccurate. It's so, you know, like, not actually what's happening in the real world. That, like, this tone of urgency and this feeling of urgency, this feeling of, like, impending danger and harm and doom, like that's what replaces what Jackson is pointing out in dissent is a complete lack of analysis on the balance of equities. Which is actually what a court should do, right? There's no substance here, over and over again. There's no legal analysis. There is no legal justification. There is transphobic, racist, violent urgency and othering, right? And talk about the danger and the harm that would fall on the government for not being able to be transphobic, for not being able to be racist, what have you, right? And so building the creation of the looming monster and the damage to society from trans people existing, you're seeing it at the Supreme Court replace legal analysis.
Michael: You know, when we started this podcast, we would often say they aren't really doing legal analysis, they're, like, backfilling rationalizations for their political goals and stuff. But here they're, like, really not doing legal analysis. They're, like, not even going through the motions.
Peter: There's no backfill, right? They're not rationalizing it at all. They're just being like, "Fucking, I don't know.
Rhiannon: Go read it. I encourage listeners.
Michael: It's so—I've never been so frustrated to win an argument, you know what I mean? [laughs]
Peter: Yeah.
Rhiannon: Yeah.
Peter: I want to point out that the executive order in question here is trying to hit a point of leverage with the low info general public, where there are a lot of people who have this general sort of like, "Well, I'm not transphobic. Like, maybe trans people are real, but a lot of people are trying to get into women's locker rooms by pretending to be women." This is something I actually didn't think was that widespread of a view until I encountered it a bunch on social media. And there's probably a little bit of lens distortion here but, you know, TikTok and Instagram, for example, every, like, three months there will be a new trans person who has engaged in some kind of either real or made up social transgression involving, like, women's bathrooms, right? A trans woman who has gone into a women's locker room or a women's restroom, and either done something that's, like, very marginally out of line by bathroom standards, right? Like peed standing up. Like, just like the thinnest sort of, like, you know—or has just used facilities, right? Which I think is most of them. These situations produce reaction that results in thousands of people being like, "I'm not anti trans, but A) this person's a man; and B) like, we need to take steps to stop this from happening." Right? There's no world where you can, like, crack down on, you know, the concept of, like, a man who's being fake trans without actually cracking down on actual trans people.
Rhiannon: Yeah.
Peter: You have this sort of, like, fake trans woman boogeyman.
Michael: Yeah.
Rhiannon: Yeah.
Peter: In their minds.
Rhiannon: Well, it's a creation of a moral panic that actually falls on real people, right? It's not like just the demonization of, like, oh, you know, maybe kids are looking at comic books that, like, have demons in them or something like that, right? Like, no, there's actually real people. Like, the boogeyman exists not as a boogeyman, actually, but, like, you've made real people.
Peter: You can go to the gym and see a trans woman at the gym and decide to yourself that person is fake.
Michael: Right.
Peter: They're just trying to get into the locker room. Maybe they don't clock as much as you would like them to or whatever, and you can put their face on social media and make their lives miserable. But I'm very wary that there is, like, a sizable population of people for whom that is the basic position, right? Which is functionally, like, "Oh, you know, I'm okay with trans people, but if I ever see one, I'm going to freak out." That is where a lot of people are. It reminds me of where a ton of homophobic people were in, like, 2005, which is, like, in this very theoretical sense, they don't hate gay people, but as soon as they are met with the presence of a gay person, they have some objection that they will conjure up.
Rhiannon: Yeah. There's so much here that, like, is explained by, like, a lot of sociology and a lot of gender and, like, feminist study, right?
Peter: Yeah. You can take it at Oklahoma University.
Rhiannon: [laughs] That's about babies and stars. Really, like, the morality around sex, right? And, like, I see moral panic around trans people, like, just, like, really quickly, like, proliferating at the same time in parallel and maybe layered with moral panic about, like, the sex trafficking of children, which is, like, obviously a horrible thing that exists.
Peter: I think you need to say, like, doesn't really exist in the numbers that people believe that it does.
Rhiannon: Right. For so many parents on social media, for so many parents that I know to be like, preoccupied with this, like, oh, what does that person's bumper sticker mean, right? Like, all of these, like, symbols that supposedly are all around us that are talking about child sex trafficking.
Peter: It's like the QAnonification of, like, normal people.
Rhiannon: Yes, right? There are demons all around us, is this idea. And demons all around us who are sexually perverse. This is a really central moral panic that, like, fascists exploit and spread.
Michael: If you're worried about your kid being sex trafficked, you're much safer leaving them with a trans person than you are with, like, a GOP elected ...
Peter: Don't let them intern for a Republican Congress. It's not that hard.
Michael: You're knocking out, like, 90 percent of all sex traffickers if you just steer clear of the RNC.
Peter: Don't send them to church. If you don't send your kid to church, you're doing so fucking good on the not getting them molested thing. Like, you're doing a huge percentage of it. And, you know, to circle back on that point in a more serious way. I think for a lot of reactionaries, they have this idea of this perverse, vaguely liberal adjacent almost cult of people who harm children, who are sexually deviant in ways you couldn't really comprehend. And trans people fold into that in their minds, as do many gay people, which sort of creates a point of contact in their minds where if they see a gay person, a trans person, they believe that they are seeing, like, the tip of the iceberg of this movement.
Rhiannon: Of an underworld.
Peter: Evil, child-harming people, right? Rather than just a human being trying to live their life, they believe that they are sort of looking at someone who is part of it, right? Those types of people are insanely dangerous, because of what they can justify to themselves based on all this bullshit.
Peter: All right, next week we're doing a movie review, folks, because it's December, it's the holiday season. Average Joe. It's a movie about ...
Rhiannon: That fuckface.
Peter: ... a Supreme Court case, kind of. If you recall, a couple years ago, there's a Supreme Court case about a high school football coach who was brave enough to pray in the middle of the football field. And then someone was like, "Hey, doesn't this violate the establishment clause?" And Neil Gorsuch was like, "No, you piece of shit. It absolutely does not." And then they made a movie about this fucking schmuck, and we're gonna pay someone $4 for it, and then we're gonna watch it.
Rhiannon: [laughs]
Peter: Unfortunately, we will be lining the pockets of literal fascists when we do this, but it's gonna be worth it overall.
Rhiannon: It's $4.
Michael: I'd say we'd torrent it, we'd pirate it, but I seriously doubt anybody cared enough to rip this movie and make it available. [laughs]
Peter: That's right. Before we go, we should mention we have new merch up on our website, FiveFourPod.com, because you probably have family and friends who are also anti-Supreme Court perverts. We recommend you look into it for the holidays. Don't get your parents something meaningful and from the heart, instead get them merch from the 5-4 merch store. Follow us on social media @fivefourpod. Subscribe to our Patreon—Patreon.com/fivefourpod—all spelled out, for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.
Michael: Bye everybody.
Rhiannon: Bye y'all.
Michael: 5-4 is presented by Prologue Projects. This episode was produced by Andrew Parsons. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, ad-free episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.
[ARCHIVE CLIP, Homer Simpson: All right, pie, I'm just gonna do this. And if you get eaten, it's your own fault.]