Trump v. Orr

Trans erasure. Anti-intellectualism. Culture war. Moral panic. These are a few of the Supreme Court’s favorite things! If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support.] 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. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:04Speaker 00

  Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, 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.

• 0:48Speaker 01

  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.

• 1:03Speaker 00

  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 Five to Four, a podcast about how much the Supreme Court sucks.

• 1:26Peter Shamshiri?

  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. I'm Peter. I'm here with Michael.

• 1:37Michael Liroff?

  Hey, everybody.

• 1:38Peter Shamshiri?

  And Rhiannon.

• 1:39Speaker 04

  Hello. What, your personal opinion isn't a citation anymore? That doesn't count?

• 1:47Peter Shamshiri?

  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...

• 2:01Speaker 04

  Was that at OU?

• 2:02Peter Shamshiri?

  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 zero 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.

• 2:47Peter Shamshiri?

  You gotta give them a D, you know?

• 2:49Michael Liroff?

  Three points for having some coherent English in there, although the ideas are nonsense. Yeah.

• 2:56Peter Shamshiri?

  Yeah. The funniest possible thing is to be like, zero.

• 3:00Michael Liroff?

  You might as well just not handed this in at all. Same value, same grade. Yeah.

• 3:05Peter Shamshiri?

  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. Uh, Jesus's thoughts are that you are going to hell.

• 3:21Michael Liroff?

  Yeah.

• 3:21Speaker 04

  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.

• 3:39Michael Liroff?

  Yeah.

• 3:39Peter Shamshiri?

  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 that 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. Zero out of 25. Hard to claim that's discrimination. You know what I mean?

• 4:13Speaker 04

  Oh, beautiful.

• 4:15Peter Shamshiri?

  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.

• 4:49Peter Shamshiri?

  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.

• 5:02Michael Liroff?

  We know there are at least three dissenters, but there may have been more. It could have been five.

• 5:06Peter Shamshiri?

  Let's be honest, I know what you're saying, but come on.

• 5:09Michael Liroff?

  I could see Gorsuch being an unsigned dissenter.

• 5:13Peter Shamshiri?

  Okay, yeah, right. I bet you could see.

• 5:17Michael Liroff?

  He wrote a trans friendly case?

• 5:19Peter Shamshiri?

  Yeah, that was a long time ago. It's been a long five years.

• 5:22Michael Liroff?

  2022, what was it?

• 5:25Peter Shamshiri?

  No, it was 2020.

• 5:26Michael Liroff?

  It was 2020.

• 5:26Speaker 04

  Dang, so long ago. 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 on the emergency docket, the shadow docket, whatever you want to call it, another Trump administration policy, just like bouncing up and down and around 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.

• 6:00Peter Shamshiri?

  First things first, folks.

• 6:02Speaker 04

  Yes.

• 6:03Peter Shamshiri?

  Let's get those passports looking right.

• 6:04Speaker 04

  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 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

• 6:47Speaker 04

  allowed people to submit a doctor's certification that they had received clinical treatment for gender transition in order to change the sex designation on a passport. But Trump...

• 6:59Speaker 04

  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." 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.

• 7:33Peter Shamshiri?

  Assigned at conception?

• 7:35Michael Liroff?

  So, assigned by God?

• 7:36Peter Shamshiri?

  That's my favorite part of sex, by the way.

• 7:38Michael Liroff?

  Yeah.

• 7:39Peter Shamshiri?

  That's my favorite part of sex is right afterwards, when you're like, "boy, by the way, it's boy right now."

• 7:44Speaker 04

  When you learn this in biology, ninth grade, sperm hits egg, God sends down the assignment.

• 7:52Michael Liroff?

  Right, a little raise.

• 7:53Speaker 04

  God says, "blue or pink."

• 7:55Michael Liroff?

  That's what the stars are, his God's light shining through the celestial sphere.

• 8:00Speaker 04

  That's right.

• 8:00Michael Liroff?

  To assign sex at conception.

• 8:03Peter Shamshiri?

  Every, every star is one gender to be assigned.

• 8:07Michael Liroff?

  That's right, that's right.

• 8:09Speaker 04

  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? 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,

• 8:52Speaker 04

  namely that it violates the equal protection clause of the Constitution. 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 at all.

• 9:30Peter Shamshiri?

  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.

• 10:11Peter Shamshiri?

  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?

• 10:25Michael Liroff?

  Yeah.

• 10:25Peter Shamshiri?

  Where they're like, "Oh, so facts are illegal now?"

• 10:28Speaker 04

  Yeah. Bread and butter.

• 10:30Peter Shamshiri?

  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.

• 10:42Michael Liroff?

  Oh, my God.

• 10:43Peter Shamshiri?

  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?"

• 10:49Michael Liroff?

  Yeah.

• 10:50Peter Shamshiri?

  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."

• 10:56Michael Liroff?

  Like, right.

• 10:57Peter Shamshiri?

  Because 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.

• 11:05Speaker 04

  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.

• 11:20Peter Shamshiri?

  Also, like, that's not the point. An ID, like the point of an ID is not to like attest to a historical fact.

• 11:28Michael Liroff?

  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. It's my little fat, crinkly baby face. Yeah, for sure.

• 11:41Speaker 04

  Eight pounds, two ounces. Put that on my passport.

• 11:44Michael Liroff?

  Like, what are we talking about here? The whole point is to identify you.

• 11:47Speaker 04

  Currently, in the present day.

• 11:49Peter Shamshiri?

  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.

• 12:25Michael Liroff?

  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.

• 12:49Peter Shamshiri?

  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 seen. And then like today, we were like, what the fuck are we talking about?

• 13:06Peter Shamshiri?

  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.

• 13:18Speaker 04

  Oh, yeah.

• 13:19Peter Shamshiri?

  Like,

• 13:20Michael Liroff?

  Absurd.

• 13:20Peter Shamshiri?

  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, 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?

• 13:52Speaker 04

  Yeah.

• 13:53Michael Liroff?

  Yeah, the dissent mentions also that on the record, there are several plaintiffs who testified to, right, the actual differential treatment they got because of this, right? Which is 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?

• 14:27Peter Shamshiri?

  And it goes to show that TSA doesn't treat passports like they're an attestation to a historical fact, right?

• 14:35Michael Liroff?

  No.

• 14:35Peter Shamshiri?

  They treat them as like a presentation of your current identity.

• 14:39Michael Liroff?

  Right.

• 14:39Peter Shamshiri?

  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?

• 14:50Michael Liroff?

  Right.

• 14:50Peter Shamshiri?

  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. It's just, that's what it's for.

• 15:01Michael Liroff?

  Right.

• 15:02Peter Shamshiri?

  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.

• 15:16Speaker 04

  Right.

• 15:17Peter Shamshiri?

  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 going to use it like this, right? Like, when a government passes a prejudiced law.

• 15:31Speaker 04

  Targeted at a minority.

• 15:33Peter Shamshiri?

  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 you're like, your prejudiced law has some like purported justification. 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.

• 16:18Peter Shamshiri?

  By the way, the entire executive order is about like, women's spaces and stuff? There's nothing about, like, there's nothing about someone who transitions to identify as a male.

• 16:27Speaker 04

  Yeah, it's like protecting women.

• 16:29Peter Shamshiri?

  It's a one-way thing that just never gets addressed in the order or 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 because they're prone to crime. And it's like, well, that's not animus.

• 16:53Speaker 04

  Right.

• 16:54Peter Shamshiri?

  It's just a practical response to crime.

• 16:56Speaker 04

  Right.

• 16:57Peter Shamshiri?

  It can't be that is not considered prejudice.

• 17:00Speaker 04

  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.

• 17:43Speaker 04

  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, right? 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

• 18:25Speaker 04

  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.

• 18:35Peter Shamshiri?

  Ree, 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?

• 18:43Speaker 04

  Right, right, right. It's in the executive order. Like, that's what I'm saying. Like, it's all over this.

• 18:49Peter Shamshiri?

  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.

• 18:59Speaker 04

  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, right? 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. Also, foreign affairs gets inserted here in these short paragraphs.

• 19:42Speaker 04

  Pedantic claims about foreign affairs all of the sudden. The court says the irreparable harm that's supposedly going to 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."

• 20:02Peter Shamshiri?

  Hmm.

• 20:03Speaker 04

  Huh?

• 20:04Peter Shamshiri?

  Yeah, no, foreign affairs implications, none that we can name.

• 20:08Michael Liroff?

  No.

• 20:08Peter Shamshiri?

  But the implications are there, folks.

• 20:10Speaker 04

  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.

• 20:25Michael Liroff?

  No, it's insane. It's insane.

• 20:27Peter Shamshiri?

  We've made a promise to our allies to be anti-trans and now this is a national security issue.

• 20:32Speaker 04

  And then last thing I'll say about the opinion, you know, quote unquote, opinion, this is what, four paragraphs or something? 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.

• 21:05Michael Liroff?

  Yeah.

• 21:06Speaker 04

  So what irreparable harm are you talking about?

• 21:12Michael Liroff?

  Right.

• 21:12Speaker 04

  It's so silly that it's like hard to actually like make a full podcast episode about this. Like it's so absurd.

• 21:19Peter Shamshiri?

  This is one of those things where it's very interesting. I've said many times that I appreciate that like 100 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? 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. Cause this feels like they're id talking to us a little bit, right?

• 22:01Peter Shamshiri?

  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.

• 22:11Speaker 04

  What if the cold, monstrous, disgusting ghost inside my heart were speaking finally?

• 22:20Peter Shamshiri?

  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?

• 22:40Michael Liroff?

  Yeah, this is what Katanji 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 kind, 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 explaining that, you know? So in a lot of ways, it's just sort of old hat. She does use some pretty strong language.

• 23:22Michael Liroff?

  She, at one point, she calls this a pointless but painful perversion of our equitable discretion.

• 23:29Peter Shamshiri?

  Sick use of alliteration.

• 23:30Michael Liroff?

  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 like the most interesting thing in this dissent was actually in a footnote. And so I'm just going to 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 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."

• 24:14Michael Liroff?

  The court's state-related pronouncements cannot be permitted to thwart the full legal process that our judicial system requires. And I think this is like the 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.

• 24:38Speaker 04

  With a lot of evidence to back it up, also.

• 24:40Michael Liroff?

  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. Yeah.

• 25:09Peter Shamshiri?

  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.

• 25:31Michael Liroff?

  Yeah.

• 25:31Peter Shamshiri?

  And have to make it a termination. 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? And 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.

• 26:14Michael Liroff?

  Yeah, 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

• 26:59Michael Liroff?

  a fucking opinion explaining like how this is supposed to shake out, right? So I don't think there's 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, right? Properly functioning appendage of the American government are like 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.

• 27:34Speaker 04

  Right. Let it go up.

• 27:35Michael Liroff?

  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.

• 28:06Peter Shamshiri?

  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?

• 28:18Michael Liroff?

  Right.

• 28:19Speaker 04

  Yeah, like a label.

• 28:20Peter Shamshiri?

  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, 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, right, like this makes it difficult to travel internationally, right, 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

• 29:05Peter Shamshiri?

  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, 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?

• 29:32Speaker 04

  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 marker or 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?

• 30:13Speaker 04

  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 and audience member of the theater? The general public.

• 30:53Speaker 04

  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.

• 31:05Michael Liroff?

  And reproduced by the masses eventually.

• 31:08Speaker 04

  Right, right, exactly. And with the most harm, most violence, most danger of like falling on what is a really small minority of people.

• 31:16Michael Liroff?

  Yeah.

• 31:17Peter Shamshiri?

  Yeah. Put what's happening here next to what we talked about up top, the Oklahoma dipshit, right? 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 is 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, right? Like a trans person just sort of asserting their identity in a relatively banal way becomes discrimination, right? They recoil from you there. You know, I think it was Adam Johnson over at, uh, citations needed, who originally coined the term cry bullies, right? People who.

• 31:59Peter Shamshiri?

  Are sort of constantly in a perpetual state of bullying others and also crying when there's any pushback, right?

• 32:08Speaker 04

  Right.

• 32:09Peter Shamshiri?

  Being informed between the two at all times.

• 32:11Speaker 04

  Yeah, and bullying others based on their, you know, persecution victimhood complex, right?

• 32:17Peter Shamshiri?

  Right. And I mean, just think, the absurdity of saying, I'm being discriminated against in, with my grade on this essay. Meanwhile, this is not discrimination, right?

• 32:28Michael Liroff?

  Right.

• 32:29Peter Shamshiri?

  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.

• 32:37Michael Liroff?

  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, right? While we're figuring this stuff out.

• 33:12Speaker 04

  Based on what we know now, what would be a fair result at this stage? Yeah.

• 33:17Michael Liroff?

  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 a trial, you can have that harm repaired, then the court isn't as concerned with it. It's, well, is something going to happen that can't be changed? Is something going to 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?

• 33:58Michael Liroff?

  Get in irreparable harm before trial is even finished, right? So, and what the court is saying is essentially like being stripped through its TSA, which is, I would argue, 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.

• 34:21Peter Shamshiri?

  Right.

• 34:21Speaker 04

  Or facing violence in a foreign country.

• 34:24Peter Shamshiri?

  Right, right.

• 34:24Michael Liroff?

  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.

• 34:42Peter Shamshiri?

  Or like the reactionary political movement.

• 34:44Michael Liroff?

  Yeah.

• 34:45Peter Shamshiri?

  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.

• 35:03Speaker 04

  Yes.

• 35:03Peter Shamshiri?

  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.

• 35:44Peter Shamshiri?

  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 green poisoned, right wing bullshit.

• 36:00Speaker 04

  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, right? 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

• 36:43Speaker 04

  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? 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.

• 37:05Michael Liroff?

  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.

• 37:19Peter Shamshiri?

  There's no backfill, right? They're not rationalizing it at all. They're just being like, fucking, I don't know.

• 37:25Speaker 04

  Go read it. I encourage listeners.

• 37:27Michael Liroff?

  It's so, I've never been so frustrated to win an argument. You know what I mean?

• 37:34Peter Shamshiri?

  Yeah.

• 37:34Speaker 04

  Yeah.

• 37:35Peter Shamshiri?

  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.

• 37:51Peter Shamshiri?

  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 bathroom, right? A trans woman who has gone into a

• 38:33Peter Shamshiri?

  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 I just like the thinnest sort of I 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

• 39:14Peter Shamshiri?

  crack down on, you know, the concept of like a man who's being fake trans, right? Without actually cracking down on actual trans people, right?

• 39:23Speaker 04

  Yeah.

• 39:24Peter Shamshiri?

  You have this sort of like fake trans woman boogeyman.

• 39:28Michael Liroff?

  Yeah.

• 39:28Speaker 04

  Yeah.

• 39:29Peter Shamshiri?

  In their minds.

• 39:30Speaker 04

  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.

• 39:53Peter Shamshiri?

  You can go to the gym and see a trans woman at the gym and decide to yourself, that person is fake.

• 39:58Michael Liroff?

  Right.

• 39:59Peter Shamshiri?

  Right?

• 39:59Speaker 04

  Yeah.

• 39:59Peter Shamshiri?

  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 OK 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.

• 40:43Speaker 04

  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?

• 40:50Peter Shamshiri?

  Yeah, that's you can take at Oklahoma University.

• 40:56Speaker 04

  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.

• 41:20Peter Shamshiri?

  Which I think you need to say like doesn't really exist in the numbers that people believe that it does.

• 41:25Speaker 04

  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 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.

• 41:45Peter Shamshiri?

  It's like the QAnonification of like normal people.

• 41:49Speaker 04

  Yes, right? There are demons all around us, right? 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.

• 42:04Michael Liroff?

  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.

• 42:11Peter Shamshiri?

  Don't let them intern for a Republican Congress.

• 42:14Michael Liroff?

  You're good.

• 42:15Peter Shamshiri?

  It's not that hard.

• 42:16Michael Liroff?

  You're knocking out like 90% of all sex traffickers if you just steer clear of the RNC.

• 42:21Peter Shamshiri?

  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, I read to circle back on that point in a more serious way. 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 harm children, who are like 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

• 43:04Peter Shamshiri?

  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 of 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, right? Because of what they can justify to themselves, based on all this bullshit.

• 43:40Peter Shamshiri?

  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-

• 43:51Speaker 04

  That fuckface.

• 43:52Peter Shamshiri?

  A Supreme Court case, kind of. If you recall, a couple of 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. Unfortunately, we will be lining the pockets of literal fashions when we do this, but it's gonna be worth it overall.

• 44:24Speaker 04

  It's $4.

• 44:25Michael Liroff?

  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.

• 44:31Peter Shamshiri?

  That's right. Before we go, we should mention, we have new merch up on our website, 54pod.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 54 merch store. Follow us on social media at 54pod. Subscribe to our Patreon, patreon.com/54pod, 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.

• 45:08Michael Liroff?

  Bye, everybody.

• 45:09Speaker 04

  Bye, y'all.

• 45:15Michael Liroff?

  Five to Four is presented by Prolog Projects. This episode was produced by Andrew Parsons. Leon Nefok 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/54pod.

• 45:53Speaker 05

  All right, guy, I'm just gonna do this.

• 45:57Speaker 05

  And if you get eaten, it's your own fault.