[SPEAKER_01]: Hey everyone, this is Leon from Prologue Projects.
[SPEAKER_01]: On this episode of 5-4, Peter, Reannon, and Michael are talking about Trump V or a recent case from the shadow docket about transgender rights and the Trump administration's efforts to enforce its anti-trans agenda.
[SPEAKER_01]: At issue in the case was Trump's executive order requiring transgender people to identify themselves on their passports with a sex they were assigned at birth.
[SPEAKER_01]: and whether that requirement violates the equal protection clause.
[SPEAKER_01]: A lower court had issued a preliminary injunction, preventing the order from being enforced.
[SPEAKER_01]: But in an emergency ruling, the majority of the justices stayed that injunction.
[SPEAKER_01]: Reasoning that the government would face irreparable harm if the policy wasn't enacted right away.
[SPEAKER_00]: It is a gut punch for transgender and non-binary Americans who have fought hard for the right to be recognized as themselves.
[SPEAKER_00]: The ACLU is warning this could expose trans travelers to harassment and violence while abroad.
[SPEAKER_01]: 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.
[SPEAKER_01]: This is 5-4, a podcast about how much the Supreme Court sucks.
[SPEAKER_04]: Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have failed our nation, like a Christian student, failing a writing assignment.
[SPEAKER_04]: I'm Peter.
[SPEAKER_04]: I'm here with Michael.
[SPEAKER_04]: Hey everybody.
[SPEAKER_04]: Anne Reannon.
[SPEAKER_02]: Hello, what your personal opinion isn't a citation anymore.
[SPEAKER_02]: It doesn't count.
[SPEAKER_04]: One of the funniest things I've ever seen.
[SPEAKER_04]: 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.
[SPEAKER_04]: Hopefully that turns around in some way.
[SPEAKER_02]: But was that I owe you?
[SPEAKER_04]: Yeah, Oklahoma, there was a junior student who was asked to react to, I think, some research about gender identity and her entire essay was basically just a bunch of like a 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
[SPEAKER_04]: And she got a zero out of 25, which is hilarious.
[SPEAKER_04]: I wrote about this online and people yelled at me, but like, as someone who used to do discrimination law, you got to be a little more subtle.
[SPEAKER_04]: You should be discriminating against Christian students, but you've got to play a little more subtle than that.
[SPEAKER_05]: You got to give them a D. You know, three points for having some coherent English in there, although the ideas are nonsense.
[SPEAKER_05]: Yeah.
[SPEAKER_04]: Yeah, the funny as possible thing is to be like zero.
[SPEAKER_05]: This is, you might as well just not handed this in at all.
[SPEAKER_05]: It's same, that's great.
[SPEAKER_04]: Yeah.
[SPEAKER_04]: 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?
[SPEAKER_04]: And you're just like, well, I can tell you what Jesus is thoughts are.
[SPEAKER_04]: You fucking asshole.
[SPEAKER_04]: Jesus thoughts are that you are going to help.
[SPEAKER_04]: Yeah.
[SPEAKER_02]: It's like a little bit more rigorous than that in terms of the ask, right?
[SPEAKER_02]: She wasn't asked to give her just like personal opinion.
[SPEAKER_02]: And that was why she got the zero, which is like, you're not engaging with this in a science way.
[SPEAKER_02]: You're just talking about your opinion.
[SPEAKER_04]: Yeah.
[SPEAKER_04]: These are the thoughts of a baby.
[SPEAKER_04]: That's what I think the TA wanted to say.
[SPEAKER_04]: my other advice for would be anti-Christian discriminators out there and I know you're listening is don't explain yourself so much.
[SPEAKER_04]: This is something that T.A.
[SPEAKER_04]: did where she's like, I'm going to give all thorough explanation of the great, right?
[SPEAKER_04]: But that just gives him shit to hang on to when they're claiming discrimination, right?
[SPEAKER_04]: Give one line.
[SPEAKER_04]: That's like, this is in coherent.
[SPEAKER_04]: And then be done with it, zero out of 25.
[SPEAKER_04]: Hard to clean that discrimination.
[SPEAKER_04]: Do you want to be?
[SPEAKER_04]: Oh, beautiful.
[SPEAKER_04]: Oh, right.
[SPEAKER_04]: Today's case Trump V or this is a case from just a few weeks ago about gender markings on passports.
[SPEAKER_04]: 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.
[SPEAKER_04]: meaning that a transgender woman who was assigned male at birth but has been living as a woman must mark male on her passport.
[SPEAKER_04]: This was challenged as a violation of equal protection for discriminating on the basis of sex and against transgender people.
[SPEAKER_04]: But the Supreme Court in a six to three decision said, no, it's probably fine.
[SPEAKER_05]: We know there are at least three dissenters, but there may have been more.
[SPEAKER_05]: It could have been fine.
[SPEAKER_05]: That's beyond us.
[SPEAKER_05]: I know what you're saying, but come on.
[SPEAKER_05]: I could see, of course, it's being an unsigned,
[SPEAKER_05]: Decentor.
[SPEAKER_05]: Okay.
[UNKNOWN]: Yeah.
[UNKNOWN]: Right.
[SPEAKER_04]: I bet you could see it.
[SPEAKER_05]: You wrote a transfer in the case.
[SPEAKER_04]: Yeah.
[SPEAKER_04]: That's the old time would go.
[SPEAKER_04]: It's been a long five years.
[SPEAKER_05]: Twenty-twenty-two.
[SPEAKER_05]: That was twenty-two.
[SPEAKER_02]: That was twenty-twenty.
[SPEAKER_02]: So long ago.
[UNKNOWN]: Yeah.
[SPEAKER_02]: But like, here we are in this mess, another like an unsigned opinion, the reason why we don't know how many people are in the majority because this is another case.
[SPEAKER_02]: On, the emergency doc at the shadow doc at 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?
[SPEAKER_02]: So,
[SPEAKER_02]: Let's get into it.
[SPEAKER_02]: The state department adopted this policy on January 22nd of this year.
[SPEAKER_02]: That is early in the Trump administration vote.
[SPEAKER_04]: First things first folks.
[SPEAKER_02]: Yes.
[SPEAKER_04]: Let's get those passports.
[SPEAKER_02]: Exactly.
[SPEAKER_02]: We need to clean up the passports.
[SPEAKER_02]: And what does this policy do?
[SPEAKER_02]: Well, it required that all passports issued from that date from January 22nd, 2025 and onwards.
[SPEAKER_02]: All those passports needed to reflect a person's sex assigned at birth.
[SPEAKER_02]: But Zoom out a little bit.
[SPEAKER_02]: Let's talk about before that.
[SPEAKER_02]: What was the policy on people's passports in terms of the sex designation on somebody's passport?
[SPEAKER_02]: 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.
[SPEAKER_02]: 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.
[SPEAKER_02]: But Trump,
[SPEAKER_02]: If everybody remembers on the first day in office, January 20th, he signed an executive order that described transgender identity as, quote, false and corrosive to American society.
[SPEAKER_02]: He said that the, quote, policy of the United States is, quote, to recognize two sexes, mail and female.
[SPEAKER_02]: And you might ask, okay, well, how is someone determined to be one of those sexes, male or female?
[SPEAKER_02]: The executive order defines sex as the sex assigned at conception.
[SPEAKER_04]: Assigned at conception, so sorry, by God.
[SPEAKER_04]: That's my favorite part of sex by the way.
[SPEAKER_04]: Yeah, that's my favorite part of sex is right afterwards when you're like, boy, by the way, it's boy right now.
[SPEAKER_02]: When you learn this in biology, ninth grade sperm hits egg.
[SPEAKER_02]: God sends down the assignment.
[SPEAKER_05]: Right.
[SPEAKER_05]: Little raise.
[SPEAKER_02]: God says blue or pink.
[SPEAKER_05]: That's what the stars are.
[SPEAKER_05]: His God.
[SPEAKER_05]: Let's light shining through this celestial sphere.
[SPEAKER_04]: That's right.
[SPEAKER_05]: Two signs sex at conception.
[SPEAKER_04]: Every star is one gender to be a sign.
[SPEAKER_02]: And so conception here, you know, what do we have alluding to?
[SPEAKER_02]: We got some fetal personhood in this executive order.
[SPEAKER_02]: We have lots of anti-abortion sentiment included here, right?
[SPEAKER_02]: Sex is assigned at conception, and that's people's true and only sex.
[SPEAKER_02]: And so that's what caused the state department to change the policy on passports.
[SPEAKER_02]: And this change in the policy with respect to passports, obviously gets challenged both procedurally and substantively.
[SPEAKER_02]: 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.
[SPEAKER_02]: is substantively illegal, namely that it violates the equal protection clause of the Constitution.
[SPEAKER_02]: So in the very initial stages, plaintiffs ask to be certified as a class, this is a class action lawsuit, and ask that
[SPEAKER_02]: the implementation of this policy is preliminarily enjoying that the judge blocked 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 and round all the way up to the desks of Elito at all.
[SPEAKER_04]: So the legal claim here is that
[SPEAKER_04]: this violates the equal protection clause by discriminating on the basis of sex and discriminating against transgender individuals.
[SPEAKER_04]: This is another case that comes up through the shadow dot kit, which means this isn't a final determination and technically the court could change their mind later.
[SPEAKER_04]: In some of these cases, we don't even get a written opinion, but we do get one here
[SPEAKER_04]: where they make like a very bare bones argument about why this does not violate equal protection.
[SPEAKER_04]: They say, displaying passport holders sex at birth no more offends equal protection principles than displaying their country of birth.
[SPEAKER_04]: In both cases, the government is merely attesting to a historical fact without subjecting anyone to differential treatment.
[SPEAKER_04]: Why does this feel like such classic
[SPEAKER_04]: right wing argumentation, where they're like, oh, so facts are illegal now, bread and butter.
[SPEAKER_04]: 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
[SPEAKER_04]: One right wing guy just sort of sharing black crimes statistics 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.
[SPEAKER_05]: Yeah.
[SPEAKER_04]: And it's like, no, do we're not mad about facts, we're mad about the thing that we all know that you're trying to do like, right,
[SPEAKER_02]: 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.
[SPEAKER_04]: Also, that's not the point.
[SPEAKER_04]: an ID, like the point of an ID is not to like attest to a historical fact.
[SPEAKER_05]: I'm also going to put my baby photo on my past court.
[SPEAKER_05]: It's a historical fact.
[SPEAKER_05]: That's what I looked like at birth.
[SPEAKER_05]: That's very helpful for identifying me.
[SPEAKER_05]: It's my little fat, just crinkly baby face.
[SPEAKER_05]: Yeah, for sure.
[SPEAKER_02]: Eight pounds, two ounces.
[SPEAKER_02]: Put that on my passport.
[SPEAKER_05]: Like, what are we talking about?
[SPEAKER_05]: The point is to identify you.
[SPEAKER_04]: Currently, in the present day, this is just like an exercise in pedantry that completely obfuscates the language of the actual executive order, right?
[SPEAKER_04]: The executive order doesn't say like, oh, we're just interested in historical facts.
[SPEAKER_04]: 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 man access to female spaces, like workplace showers and domestic abuse shelters.
[SPEAKER_04]: That's what the executive order says.
[SPEAKER_04]: It's not like, oh, we're just interested in history.
[SPEAKER_04]: But the court just like gives it that gloss.
[SPEAKER_05]: It's so hamfisted, right?
[SPEAKER_05]: Like this isn't discrimination.
[SPEAKER_05]: This is just stating historical facts.
[SPEAKER_05]: It's like when fucking Homer Simpson is like, I'm not gonna eat this pie.
[SPEAKER_05]: I'm just going to open and close my mouth and walk towards the pie and if it gets interesting.
[SPEAKER_05]: It's its own fault.
[SPEAKER_05]: You know?
[SPEAKER_05]: Like who are we fucking getting here?
[SPEAKER_05]: Like it's so not convincing.
[SPEAKER_04]: I'm glad you remembered that Michael because we were going to record this a week ago and then I got sick.
[SPEAKER_04]: And so we didn't.
[SPEAKER_04]: And then in the outline I just put Homer scene.
[SPEAKER_04]: And then I said today we were like, what the hell is there in your way?
[SPEAKER_04]: The idea that this is not subjecting anyone to differential treatment is absurd, right?
[SPEAKER_04]: Like the entire stated purpose of the executive order is to target transgender people.
[SPEAKER_04]: Oh, yeah.
[SPEAKER_04]: Like, absurd.
[SPEAKER_04]: Imagine that there's an executive order.
[SPEAKER_04]: that says that passports must include your religion, right?
[SPEAKER_04]: You could say, well, it treats everyone the same.
[SPEAKER_04]: It's not subjecting anyone to differential treatment.
[SPEAKER_04]: And then the entire text of the executive order is about eliminating the scourge of the Vatican from public life.
[SPEAKER_04]: Right?
[SPEAKER_04]: Would the court say that the religious marker is just a testing to a historical fact without subjecting anyone to differential treatment, right?
[SPEAKER_04]: And like, it's just so obviously fucking stupid.
[SPEAKER_05]: Yeah, the descent mentions also that on the record there are several plaintiffs who testified to
[SPEAKER_05]: Right, the actual differential treatment they got because of this, right?
[SPEAKER_05]: Which is their gender identity does not match the marker on their passport.
[SPEAKER_05]: And so like one example, it was Chastain Anderson, a test of 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.
[SPEAKER_04]: That's differential treatment, right?
[SPEAKER_04]: TSA doesn't treat passports like they're an adaptation to a historical fact, right?
[SPEAKER_04]: No.
[SPEAKER_04]: They treat them as like a presentation of your current identity.
[SPEAKER_04]: Right.
[SPEAKER_04]: And if there's a mismatch, they're going to notice it.
[SPEAKER_04]: And potentially takes action to like try to find out what's going on or whatever.
[SPEAKER_04]: You know, if you're fucking knows, it's TSA.
[SPEAKER_04]: But they're very likely going to harass someone.
[SPEAKER_04]: who they believe has some discrepancy between their presentation and the idea.
[SPEAKER_04]: That's what it's for.
[SPEAKER_04]: There's also a legal question about animus.
[SPEAKER_04]: Under the precedent, a law violates legal protection if the sole purpose of the law is animus toward a group, especially like a minority group.
[SPEAKER_04]: Right.
[SPEAKER_04]: The opinion here says that the plaintiffs failed to establish that it was, you know, solely driven by anonymous, I have to say I don't really understand this precedent.
[SPEAKER_04]: If we're going to use it like this, right?
[SPEAKER_04]: Like when a government passes a prejudice law targeted at a minority targeted at a minority group.
[SPEAKER_04]: Obviously when they do that, they're going to have like a quote unquote reason, right?
[SPEAKER_04]: Like they don't you say, hey, we hate this group.
[SPEAKER_04]: They say, this group is dangerous in some way.
[SPEAKER_04]: They're invading women's locker rooms, right?
[SPEAKER_04]: In Trump v. Hawaii, the Muslim ban case, the courts had the same thing, right?
[SPEAKER_04]: They said, well, the law is not entirely based in animus.
[SPEAKER_04]: The administration had various reasons concerning national security, right?
[SPEAKER_04]: Which means that you can just pass this test as long as you like your prejudice law has some like purported justification.
[SPEAKER_04]: like 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 spaces and stuff there's nothing but like there's nothing about someone who transitions to identify as a male
[SPEAKER_04]: Yeah, it's like protecting women in a one way thing that just never gets addressed in the order or it by the court right 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.
[SPEAKER_04]: because they're prone to crime.
[SPEAKER_04]: And it's like, well, that's not animes.
[SPEAKER_04]: That's just a practical response to crime.
[SPEAKER_04]: Right.
[SPEAKER_04]: It can't be that is not considered prejudice.
[SPEAKER_02]: And it can't be that no skepticism is applied to these kinds of claims by the government by courts, right?
[SPEAKER_02]: You know, just to this point about animes, you know, remember, you touched on this Michael.
[SPEAKER_02]: 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, and
[SPEAKER_02]: 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 and in finding that the judge said, quote, if the plaintiffs use
[SPEAKER_02]: They are likely to experience worsened gender dysphoria, anxiety and psychological distress, and they will face a greater risk of experiencing harassment and violence.
[SPEAKER_02]: Injuries like these cannot be accurately measured or compensated by money damages or other legal remedies.
[SPEAKER_02]: You have that judge here.
[SPEAKER_02]: You have tons of evidence at the lower level, right?
[SPEAKER_02]: That shows what damage the implementation of this policy would actually do in reality.
[SPEAKER_02]: And so, yes, this evidence points to the irreparable harm that the plaintiffs would face if the policy is implemented.
[SPEAKER_02]: But it also, like, really just lays bare the enemies.
[SPEAKER_02]: Who else knows the consequences of this?
[SPEAKER_04]: 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?
[SPEAKER_04]: That the Trump administration has animus towards trans people.
[SPEAKER_02]: Right.
[SPEAKER_02]: It's an executive order.
[SPEAKER_02]: Like that's what I'm seeing.
[SPEAKER_02]: Like it's all over this.
[SPEAKER_04]: Their whole thing is just like, well look, it's not animus.
[SPEAKER_04]: It's just that we don't believe that they're real.
[SPEAKER_04]: And we want to strip them of all legal recognition and protection.
[SPEAKER_02]: And we'll just say that with legal authority.
[SPEAKER_02]: I mean, this goes back to the pedantry point, right?
[SPEAKER_02]: Like, pedantry is the crooks of this opinion.
[SPEAKER_02]: We've talked multiple times in many episodes this year, right?
[SPEAKER_02]: 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 a reprobable harm if this policy is implemented with the government suffer a reprobable harm if they're prevented from implementing this policy.
[SPEAKER_02]: And so the pedantry comes up not just in like this attestation of historical factor, whatever.
[SPEAKER_02]: Also foreign affairs gets inserted here in these short paragraphs, pedantic claims about foreign affairs all of the sudden.
[SPEAKER_02]: The court says the irreparable harm that's supposedly going to be caused to the government if this policy about passports is blocked.
[SPEAKER_02]: is that it, quote, joins enforcement of an executive branch policy with foreign affairs implications concerning a government document.
[SPEAKER_02]: Hmm.
[SPEAKER_02]: Huh?
[SPEAKER_04]: Yeah.
[SPEAKER_04]: Foreign affairs implications.
[SPEAKER_04]: None that we can need.
[SPEAKER_04]: Yep.
[SPEAKER_04]: But the implications are there, folks.
[SPEAKER_02]: Do you have any evidence?
[SPEAKER_02]: Any explanation?
[SPEAKER_02]: There's nothing.
[SPEAKER_02]: What foreign affairs are you talking about?
[SPEAKER_02]: And you're saying the U.S. government is being irreparably harmed?
[SPEAKER_02]: I don't even understand what is being proposed here.
[SPEAKER_04]: No, it's insane.
[SPEAKER_04]: It's insane.
[SPEAKER_04]: We've made a promise to our allies to be anti-trance and now this is a national security issue.
[SPEAKER_02]: And then last thing I'll say about the opinion, you know, quote unquote opinion.
[SPEAKER_02]: This is what for paragraphs or something.
[SPEAKER_02]: And the irreparable harm analysis that the court is supposedly doing.
[SPEAKER_02]: You know, they're saying the US government is going to suffer irreparable harm if they can't implement this transphobic violent policy.
[SPEAKER_02]: But think about what would happen if they're blocked from implementing this policy.
[SPEAKER_02]: It would go back to the status quo, meaning the passport policy around sex designation.
[SPEAKER_02]: That has been in place for like the last 30 years.
[SPEAKER_02]: So what irreparable harm are you talking about it's so silly that it's like hard to actually like make a full podcast episode about this like it's so absurd.
[SPEAKER_04]: 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.
[SPEAKER_04]: 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?
[SPEAKER_04]: And now everything's so performative, right?
[SPEAKER_04]: Everything's like, how can we like dress this up?
[SPEAKER_04]: 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.
[SPEAKER_04]: because this feels like they're id talking to us a little bit, right?
[SPEAKER_04]: Where they're just sort of like, what, you can't fucking say facts about things now.
[SPEAKER_04]: That's illegal now.
[SPEAKER_04]: And what?
[SPEAKER_04]: And then the opinions over.
[SPEAKER_02]: What if the cold, monstrous, disgusting ghost inside my heart?
[SPEAKER_02]: We're speaking.
[SPEAKER_02]: Finally.
[SPEAKER_04]: Yeah.
[SPEAKER_04]: 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?
[SPEAKER_04]: What are you talking about?
[SPEAKER_04]: Like, you're talking on literate.
[SPEAKER_04]: And then it's over.
[SPEAKER_04]: And you're like, what was that?
[SPEAKER_04]: You thought that was a point?
[SPEAKER_04]: Like, you put that online?
[SPEAKER_04]: That's how I feel about this.
[SPEAKER_04]: And like, you put this into public for people to read.
[SPEAKER_05]: Yeah, this is what Katanchi Brown Jackson's descent is about, for the most part, is about the balance of harms, the balance of equities, the standard of review here.
[SPEAKER_05]: You know, and it's all good.
[SPEAKER_05]: It's not new territory, right?
[SPEAKER_05]: Like this is how ever many kind, you know, 10th time, 12th time through the fucking house 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.
[SPEAKER_05]: And then,
[SPEAKER_05]: We've had to explaining that, you know, so in a lot of ways, it's just sort of old hat.
[SPEAKER_05]: She does use some pretty strong language.
[SPEAKER_05]: She would one point cause this, a pointless but painful perversion of our equitable discretion.
[SPEAKER_04]: Sick use of a literation.
[SPEAKER_05]: Yeah, I love that.
[SPEAKER_05]: At one point, she's like, this is like a, well, like, a nice pattern now of, you know, we were once again stepping in on there behalf, but I thought like the most interesting thing in this descent was actually in a footnote.
[SPEAKER_05]: And so I'm just going to read the footnote.
[SPEAKER_05]: It says, not only does the court state determination produce inequity, but it is also part of a broader pattern of this court using its emergency dock at the Cavalierly Pick, the winners and losers in cases that are still pending in the lower courts.
[SPEAKER_05]: This way of handling state 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.
[SPEAKER_05]: The courts' stavrelated pronouncements cannot be permitted to thwart the full legal process that our judicial system requires.
[SPEAKER_05]: And I think this is like a sharp point that I hadn't thought about is that these cases go back, right?
[SPEAKER_05]: They go back to the lower courts with a Supreme Court,
[SPEAKER_05]: picking a winner in a case where the lower courts have already indicated they disagree with who the likely winner is with a lot of evidence to back it up.
[SPEAKER_05]: Right.
[SPEAKER_05]: And now you have one of two paths either which is a very perverted idea of justice of a court functioning properly.
[SPEAKER_05]: One is the district court being like, no, I'm doing what I think is right, knowing that it'll probably get overturned on a
[SPEAKER_05]: Well, I think this is wrong, but the Supreme Court said, you're like, you know, you're likely to lose, so I guess that's what we're doing.
[SPEAKER_04]: Either way, it's a fucking joke, it's like, to give people understanding of what's happening here, this stuff comes up to the Supreme Court, and there isn't a full record, right?
[SPEAKER_04]: Like, we don't know exactly what all the facts are in most of these cases.
[SPEAKER_04]: And so the courts, just like here's who we think is going to win, we're eyeballing it, right?
[SPEAKER_04]: And then a lower court,
[SPEAKER_04]: We'll at some point have all of the evidence that is allowed in front of it and have to make it a termination and
[SPEAKER_04]: Looming over their head is like, well, the Supreme Court sort of guessed, right?
[SPEAKER_04]: The Supreme Court sort of said, here's what we think will happen, right?
[SPEAKER_04]: So how do you go against that, right?
[SPEAKER_04]: Do you?
[SPEAKER_04]: 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?
[SPEAKER_04]: And should you have to factor in that the Supreme
[SPEAKER_04]: had no real explanatory power said that it agrees with the other side, at least at a glance.
[SPEAKER_04]: Like, should you have to consider that?
[SPEAKER_04]: I don't even know.
[SPEAKER_05]: Yeah.
[SPEAKER_05]: I don't think there's a good answer to it, right?
[SPEAKER_05]: These aren't supposed to be presidential and they're not supposed to be a full mayor's determination.
[SPEAKER_05]: But there's a consistent pattern and there's just this is complaining publicly that the lower courts
[SPEAKER_05]: You should be getting the picture that we think that Trump administration wins all the time, unless it's with the Fed and the economy.
[SPEAKER_05]: Then keep your hands off our index funds or whatever.
[SPEAKER_05]: But in all other cases, Trump wins.
[SPEAKER_05]: They think they're being very clear.
[SPEAKER_05]: and a number of them have expressed that they're upset with the lower courts about this.
[SPEAKER_05]: But at the same time, not so clear that they're willing to sit here in, like, actually write a fucking opinion explaining, like how this is supposed to shake out, right?
[SPEAKER_05]: So I don't think there's an answer.
[SPEAKER_05]: I think the answer that they want is that the lower courts just
[SPEAKER_05]: do the dirty work for them, right?
[SPEAKER_05]: That's what they want.
[SPEAKER_05]: It's a badman to handle it for them.
[SPEAKER_05]: But so far, the low course haven't been going to do that.
[SPEAKER_05]: And I think that's the last functioning appendage of the American government at this point, right, properly functioning, appendage of the American government are like, did this record's being like, fuck that?
[SPEAKER_05]: I'm just, I'm doing it.
[SPEAKER_05]: I'm applying the precedent properly, and I'm ruling how I think is right.
[SPEAKER_02]: Right.
[SPEAKER_02]: Let it go up.
[SPEAKER_05]: Yeah, the Supreme Court's fucked.
[SPEAKER_05]: Congress is fucked.
[SPEAKER_05]: Some of the circuit courts of appeals are fucked.
[SPEAKER_05]: Obviously the administration itself is fucked.
[SPEAKER_05]: But we've got a few district court judges doing their jobs at least.
[SPEAKER_04]: 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?
[SPEAKER_02]: Yeah, like a label, yeah.
[SPEAKER_04]: Which I think makes it easy for some people to write it off as like performative, but it is,
[SPEAKER_04]: really functionally at its core just the federal government saying we don't recognize you to train.
[SPEAKER_04]: We don't believe that this exists.
[SPEAKER_04]: You will not see it reflected in any federal government business, right?
[SPEAKER_04]: That is what the goal is.
[SPEAKER_04]: And if they do enough of that, right?
[SPEAKER_04]: Like this makes it difficult to
[SPEAKER_04]: travel internationally, right?
[SPEAKER_04]: If you are a trans person, you now have to explain this potentially to a TSA agent to subject yourself to potential harassment.
[SPEAKER_04]: 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, I am a trans person, to come out as a trans person,
[SPEAKER_04]: so painful to be an out trans person, to be someone who is embracing their gender identity that people won't do it anymore.
[SPEAKER_04]: Like that raises the end goal, right?
[SPEAKER_02]: Yeah, yeah, I think that's exactly right.
[SPEAKER_02]: 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?
[SPEAKER_02]: Like when you get down to it,
[SPEAKER_02]: 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
[SPEAKER_02]: 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
[SPEAKER_02]: 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 issue to total in the United States.
[SPEAKER_02]: Sure, that's small, right?
[SPEAKER_02]: But the theater of this is the danger.
[SPEAKER_02]: The theater that that's a
[SPEAKER_02]: about historical attestations and this affecting matters of foreign affairs, right?
[SPEAKER_02]: The theater of it is incredibly damaging.
[SPEAKER_02]: It is incredibly harmful, right?
[SPEAKER_02]: Because who is a consumer and audience member of the theater, the general public?
[SPEAKER_02]: And so if this kind of pedantry theatrics are being consumed and reproduced across media,
[SPEAKER_05]: then reproduced by the masses.
[SPEAKER_02]: Right, right, exactly.
[SPEAKER_02]: And with the most harm, most violence, most danger, is like falling on what is a really small minority of people.
[SPEAKER_04]: Yeah, yeah.
[SPEAKER_04]: Put what's happening here next to what we talked about up top, the Oklahoma dipshit, right?
[SPEAKER_04]: This girl who writes a dumb ass essay being like,
[SPEAKER_04]: trans people are demonic.
[SPEAKER_04]: Her trans TA, she's just like, well, this is offensive and also is very bad writing.
[SPEAKER_04]: You did not do any analysis here at all.
[SPEAKER_04]: And that girl is like, oh my god, I'm being discriminated against, right?
[SPEAKER_04]: Like a trans person just sort of asserting their identity in a relatively
[SPEAKER_04]: becomes discrimination, right?
[SPEAKER_04]: They were coiled from you.
[SPEAKER_04]: They're, you know, I think it was Adam Johnson over at Stethicians Needed, who originally coined the term cry bullies, right?
[SPEAKER_04]: People who...
[SPEAKER_04]: are sort of constantly in a perpetual state of bullying others and also crying when there's any pushback, right?
[SPEAKER_02]: Right.
[SPEAKER_04]: And obviously, yeah.
[SPEAKER_04]: Right.
[SPEAKER_02]: And bullying others based on their, you know, persecution victim or complex, right?
[SPEAKER_04]: Right.
[SPEAKER_04]: And I mean, just think of the absurdity of saying, I'm being discriminated against.
[SPEAKER_04]: And with my grade on this essay, meanwhile, this is not discrimination, right?
[SPEAKER_04]: 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.
[SPEAKER_04]: Not discrimination.
[SPEAKER_05]: Yeah, and I may have mentioned this phrase when I was talking about the descent, but something we should talk about regardless is like the balance of equities.
[SPEAKER_05]: It's like a legal phrase.
[SPEAKER_05]: This is what the courts do in here is called sitting in equity and Jackson talks about this equity is
[SPEAKER_05]: 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 right while we're figuring this stuff out based on what we know now what would be a fair result at this stage yeah right and so that's kind of what the balance of equity is about that's why they talk about irreparable harm right
[SPEAKER_05]: Somebody might be harmed during trial, but if it's reparable harm, if you could be compensated for it afterwards, because you want it trial, you can have that harm repaired, then the court isn't as concerned with it.
[SPEAKER_05]: 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?
[SPEAKER_05]: And again, so that's like a fairness thing.
[SPEAKER_05]: Like is it really fair to let you get an irreparable harm before trial is even finished, right?
[SPEAKER_05]: So yeah.
[SPEAKER_05]: And what the court is saying is essentially like being strips roots at TSA, which is I would argue in irreparable harm, it's certainly a harm.
[SPEAKER_05]: And I think a lot of people would say getting compensated after the fact, which is very unlikely anyway,
[SPEAKER_02]: or facing violence in a foreign country.
[SPEAKER_05]: That's what balance of equities is really about, which is like, do we keep the status quo in place?
[SPEAKER_05]: Do we change the status quo in your so-how?
[SPEAKER_05]: What's the fairest outcome?
[SPEAKER_05]: And what the courts saying here is that the most unfair injury it can imagine is Donald Trump not getting to do whatever he wants or like the reactionary political movement.
[SPEAKER_04]: Yeah, not getting what it wants, right?
[SPEAKER_04]: 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.
[SPEAKER_04]: all of these cases because they're absorbed like in their media environment, yes, 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?
[SPEAKER_04]: The idea that they're just like in power,
[SPEAKER_04]: and depressing other people, it doesn't really clock to them.
[SPEAKER_04]: They are the oppressed in their minds, right?
[SPEAKER_04]: The traditional religious family is oppressed in their minds, right?
[SPEAKER_04]: The dumbass student who says that trans people are demonic, because the Bible says so, that's the oppressed minority in their minds, right?
[SPEAKER_04]: And it sort of necessitates immediate action.
[SPEAKER_04]: And so, when they're analyzing,
[SPEAKER_04]: 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 rain poisoned right wing bullshit.
[SPEAKER_02]: Right, well, and it's so not real, it's so inaccurate.
[SPEAKER_02]: 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, right?
[SPEAKER_02]: 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.
[SPEAKER_00]: Right.
[SPEAKER_02]: There's no substance here over and over again.
[SPEAKER_02]: There's no legal analysis.
[SPEAKER_02]: There's no legal justification.
[SPEAKER_02]: There is transphobic racist violent urgency and other ring.
[SPEAKER_02]: Right.
[SPEAKER_02]: and talk about the danger and the harm that would fall on the government, right, for not being able to be transphobic, for not being able to be racist, what have you, right?
[SPEAKER_02]: 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.
[SPEAKER_05]: When we started this podcast, we would often say they
[SPEAKER_05]: backfilling rationalizations for their political goals and stuff, but here they're like, really not doing legal analysis.
[SPEAKER_04]: They're like, not even going through the motions.
[SPEAKER_04]: There's no backfill, right?
[SPEAKER_04]: They're not rationalizing it at all.
[SPEAKER_04]: They're just being like, fucking, I don't know.
[SPEAKER_02]: Go read it.
[SPEAKER_02]: I encourage listeners.
[SPEAKER_05]: It's so, I've never been so frustrated to win an argument.
[SPEAKER_05]: You know what I mean?
[SPEAKER_05]: Yeah, yeah.
[SPEAKER_04]: I want to point out that the executive order in question here,
[SPEAKER_04]: 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.
[SPEAKER_04]: encountered it a bunch on social media, and it'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 bathroom, right?
[SPEAKER_04]: A trans woman who has gone into a women's locker room or a women's
[SPEAKER_04]: either done something that's like very marginally out of line by bathroom standards, right?
[SPEAKER_04]: Like, Pete standing up like I just like the thinnest sort of, like, you know, or has just used facilities, right, which I think is most of them.
[SPEAKER_04]: These situations produce reaction that results in thousands of people being like, I'm not anti-trans, but
[SPEAKER_04]: A, this person's a man, and B, like we need to take steps to stop this from happening, right?
[SPEAKER_04]: There's no world where you can like crack down on, you know, the concept of like a man who's being fake trained, right?
[SPEAKER_04]: Without actually cracking down actual trans people, right?
[SPEAKER_04]: You have this sort of like fake trans woman boogie man in their minds.
[SPEAKER_02]: Well, it's a creation of a moral panic that actually falls on real people, right?
[SPEAKER_02]: 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?
[SPEAKER_02]: Like, no, there's actually real people.
[SPEAKER_02]: Like the boogie man exists not as a boogie man actually, but like you've made real people.
[SPEAKER_04]: You can go to the gym and see a train.
[SPEAKER_04]: women in the gym and decide to yourself that person is fake right right yeah 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
[SPEAKER_04]: For whom that is the basic position, right, which is functionally like, oh, you know, I'm okay with trans people.
[SPEAKER_04]: But if I ever see one, I'm going to freak out.
[SPEAKER_04]: That is where a lot of people are.
[SPEAKER_04]: 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.
[SPEAKER_04]: But as soon as they are met with the presence of a gay person, they have some objection that they will conjure up.
[SPEAKER_02]: 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?
[SPEAKER_04]: Yeah, that's you can take at Oklahoma University.
[SPEAKER_02]: That's about babies and stars.
[SPEAKER_02]: 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.
[SPEAKER_04]: We should I think you need to say like doesn't really exist in the numbers that people believe that it does.
[SPEAKER_02]: right for so many parents right on social media for so many parents that I know to be like preoccupied with this like oh what is 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 right the QAnonification of like normal people
[SPEAKER_02]: Yes.
[SPEAKER_02]: Right?
[SPEAKER_02]: There are demons all around us, right?
[SPEAKER_02]: Is this idea?
[SPEAKER_02]: And demons all around us who are sexually perverse.
[SPEAKER_02]: This is a really central moral panic that like fascists exploit and spread.
[SPEAKER_05]: If you're worried about your kid being sex trafficked,
[SPEAKER_05]: you're much safer leaving them with a trans person than you are with like a GOP elected.
[SPEAKER_05]: Don't let them in turn for a Republican country.
[SPEAKER_05]: It's not that hard.
[SPEAKER_05]: You're knocking out like 90% of all sex traffickers if you just steer clear of the RNC.
[SPEAKER_04]: Don't send them the church.
[SPEAKER_04]: 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.
[SPEAKER_04]: And you know, I read to circle back
[SPEAKER_04]: I think for a lot of reactionaries, like they have this idea of like this perverse vaguely liberal adjacent almost cult of like of people who harmed children who are like sexually deviant and ways that couldn't really comprehend.
[SPEAKER_04]: And trans people.
[SPEAKER_04]: 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
[SPEAKER_04]: a gay person, a trans person, they believe that they are seeing like the tip of the iceberg of this movement of underworld child harming people, 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.
[SPEAKER_04]: Those types of people are insanely depressed, because of what they can justify to themselves, based on all this action.
[SPEAKER_04]: Alright, next week we're doing a movie review, folks, because it's December, the holiday season.
[SPEAKER_04]: Average Joe, it's a movie about that fuck face.
[SPEAKER_04]: A Supreme Court case kind of a sheer call.
[SPEAKER_04]: A couple years ago, there's a Supreme Court case about a high school football coach who just brave enough to pray in the middle of the football field.
[SPEAKER_04]: And then someone was like, hey, doesn't this violate the establishment clause and Neil Gorsuch was like, no, you piece of shit.
[SPEAKER_04]: It absolutely does not.
[SPEAKER_04]: And then they made a movie about this fucking schmuck and we're gonna pay someone $4 for it.
[SPEAKER_04]: And then we're gonna watch it.
[SPEAKER_04]: Unfortunately, we will be lining the pockets of literal fans who will be do this, but it's going to be worth it overall.
[SPEAKER_02]: That's $4.
[SPEAKER_05]: That's the same we're torrented, we've pired it, but I seriously doubt anybody cared enough to rip this movie and make it available.
[SPEAKER_05]: That's right.
[SPEAKER_04]: Before we go, we should mention we have a new merch up on our website, 54pod.com.
[SPEAKER_04]: Because you probably have family and friends who are also anti Supreme Court Irvers.
[SPEAKER_04]: We recommend you look into it for the holidays.
[SPEAKER_04]: Don't get your parents something meaningful and from the heart instead get them merch from the five or four merch Follow us on social media at five four pod and subscribe to our patreon patreon.com slash five four pod All spelled out for access to premium and at free episodes special events are slack all sorts of shit We'll see you next time everybody bye y'all
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[SPEAKER_05]: All right, bye.
[SPEAKER_01]: I'm just going to do this and if you get it, it's your own fault.