United States v. Skrmetti

The Supreme Court has made life more difficult for trans children, who are already among the most marginalized groups in the country. 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 Dustin DeSoto. Leon Neyfakh provides editorial support. Our researcher is Jonathan DeBruin, and 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.

• 0:00Speaker 00

  We'll hear argument this morning in case 23477, United States versus Schrammety.

• 0:09Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. And if I sound a little bit different today, that's because I'm in the car with my dog, because I forgot to record this intro before I left. I'm sorry. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about United States v. Schrammety, a recent case about transgender rights. A few years ago, Tennessee passed a law banning gender-affirming care for minors. Three families with transgender children sued, arguing that the law discriminates based on sex and is therefore in violation of the Equal Protection Clause. The Supreme Court ruled that the Tennessee law does not violate the Equal Protection Clause because it does not discriminate based on sex, but rather age and reason for treatment.

• 0:54Speaker 02

  The Supreme Court is upholding Tennessee's ban on gender-affirming care for transgender minors. In a 6-3 decision today, the justices ruled that the state's law, which prevents children from accessing treatments like puberty blockers or hormone therapy, did not violate the Constitution's Equal Protection Clause.

• 1:13Speaker 01

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

• 1:18Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have sent our civil liberties down in flames, like Andrew Cuomo's mayoral campaign.

• 1:27Michael Liroff?

  Yes.

• 1:28Speaker 05

  Bye!

• 1:29Peter Shamshiri?

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

• 1:31Michael Liroff?

  Hey, everybody.

• 1:32Peter Shamshiri?

  And fresh from the Middle East, Rhiannon.

• 1:34Speaker 05

  Hi! And Salaam alaikum.

• 1:37Peter Shamshiri?

  How was that, by the way?

• 1:39Speaker 05

  It was very intense. Egypt, Cairo, like a really incredible place, very intense, even, you know, painful time right now for the Palestinian people. And so the march to Gaza, like if y'all heard about that, like, basically shut down pretty quickly by the Egyptian government. So I took the rest of the time while I was in Egypt, visiting Palestinian refugee families in Cairo. These are refugee families from Gaza who have gotten into Egypt in the past almost two years. So, yeah, it was really meaningful. I'm so glad I went. And I'm also glad to be back in this shithole country, to be yapping yet some more.

• 2:21Peter Shamshiri?

  It was cool to be reading news articles about like hundreds of people being deported and then Slack messaging.

• 2:28Peter Shamshiri?

  Your boyfriend and being like, hey, uh,

• 2:32Peter Shamshiri?

  just, just wondering.

• 2:35Peter Shamshiri?

  Does this news article cover Rhiannon or?

• 2:39Speaker 05

  Did Rhiannon get her ass beat in, in another country?

• 2:44Speaker 05

  All good, all good. Alhamdulillah.

• 2:47Peter Shamshiri?

  We are recording this Wednesday, June 25th. So old news by the time it drops, but we're fresh off of Zoran Mamdani's win in the Democratic primary in New York. Surprise win over Andrew Cuomo. Exit polls revealing that voters thought that Cuomo was disgusting Italian slime ball. And that they didn't want to vote for him.

• 3:12Peter Shamshiri?

  Sending the Democratic establishment into a bit of a tizzy as they believe that that was the winning formula.

• 3:20Speaker 05

  Right.

• 3:21Michael Liroff?

  Yeah, yeah.

• 3:22Speaker 05

  I thought if my guy looked like a meatball and sexually harassed his female coworkers day in and day out, I thought that's a straight shot to the top.

• 3:32Peter Shamshiri?

  Yeah, the Clinton formula, they call it. You have to maximize sexual harassment.

• 3:37Speaker 05

  The Clinton endorsement, the Bill Clinton endorsement, like, is so fucking funny.

• 3:44Peter Shamshiri?

  We need more perverts. Get more perverts in here. Put them shoulder to shoulder with the biggest perverts in this nation's history. That's how we're gonna win this race.

• 3:56Peter Shamshiri?

  Now, it's, uh, it's great to see a Muslim candidate triumph and also great to see the haters fume.

• 4:04Speaker 05

  Oh, yeah.

• 4:04Michael Liroff?

  Yes.

• 4:05Peter Shamshiri?

  Incredible levels of racism we're getting, and I imagine it's just begun. I can't wait.

• 4:10Speaker 05

  They are spiraling. They are spiraling.

• 4:14Peter Shamshiri?

  They are freaking out.

• 4:16Michael Liroff?

  Bill Ackman going to Eric Adams of all people as his savior is incredible, incredible stuff.

• 4:22Speaker 05

  Laura Loomer. I mean, I just, all of them, just all of them losing their minds.

• 4:27Michael Liroff?

  Just losing it.

• 4:28Peter Shamshiri?

  It's also, it's great to see the American right be like, New York City is lost to socialism.

• 4:34Michael Liroff?

  Yes.

• 4:35Peter Shamshiri?

  Been calling the city socialist for 30 years.

• 4:37Michael Liroff?

  Right.

• 4:38Speaker 05

  Yeah.

• 4:38Peter Shamshiri?

  This little boy who cried wolf routine going on here, folks.

• 4:42Michael Liroff?

  There's a really good one I saw on Twitter. I think it was Dinesh D'Souza. It was somebody who was like, I'm telling you, Zohran Mamdani is going to be the Obama of Islam. And somebody replied to him, Obama is a Muslim.

• 5:00Michael Liroff?

  It's so good.

• 5:04Peter Shamshiri?

  Oh, God bless. Beautiful city, beautiful city. I'm excited for the general election. By the way, people kept asking me, why haven't you done like the Eric Adams final chapter for Books Could Kill? And for months, I've been saying, just you wait. I just, I just know it's not over. I know it's not over, and I think I was right.

• 5:25Speaker 05

  No, no, there's, there's a future for him yet, for sure.

• 5:29Peter Shamshiri?

  About to get that denouement. All right. This week's case, folks, United States v. Skrmetti. This is a case from just a couple of weeks back about trans rights, specifically the Tennessee bill banning medical transition care for minors. Tennessee passed this law a couple of years ago amidst a nationwide surge in anti-trans legislation, and it was quickly challenged in court. And then a federal judge halted the law's implementation, saying that it was a violation of the equal protection clause. Basic argument is that this discriminates on the basis of sex and gender identity.

• 6:10Speaker 05

  Yeah.

• 6:10Peter Shamshiri?

  Right?

• 6:10Speaker 05

  Generally frowned upon, like you would think.

• 6:12Peter Shamshiri?

  Almost impossible to argue that it doesn't. But the Supreme Court, in a six to three decision, said it actually doesn't discriminate based on either of those things, if you really think about it. And folks.

• 6:25Speaker 05

  Yeah, if you turn your fucking brain on.

• 6:26Peter Shamshiri?

  We are going to think about it so hard.

• 6:28Speaker 05

  Yeah. I've done nothing but think about it for a really long time and yet and yet I still disagree with John Roberts. It's so strange. Let's jump into it. Like, what is this law in Tennessee? How is it written? How does it affect people? And then, you know, what the fucking idiots on the Supreme Court said about it. Before we do, one note on the use of language throughout this episode in the case, especially in particular, the use of the word sex. I just want to note that, like, when the court is talking about sex-based discrimination, discrimination on the basis of sex, and where this Tennessee law does talk about, you know, a minor's sex, just want to make sure to clarify, this is sex assigned at birth, right? Nobody at the

• 7:11Speaker 05

  Supreme Court is using that acrobatic language, but sex assigned at birth here, almost every time we're saying it in this episode.

• 7:18Peter Shamshiri?

  Yeah.

• 7:18Speaker 05

  So-

• 7:19Peter Shamshiri?

  Sometimes we'll be talking about intercourse.

• 7:30Peter Shamshiri?

  I really got you.

• 7:33Speaker 05

  Stupid. Fucking stupid.

• 7:36Peter Shamshiri?

  Every time one of my jokes absolutely kills with Reeve, she'll be like, "You're stupid. It's so stupid." She gets mad at herself for laughing, and then she calls me stupid.

• 7:44Michael Liroff?

  That is, that is a consistent pattern.

• 7:50Speaker 05

  You're just like my boy cousins, you know? Like, I don't have fucking brothers, but I have boy cousins, and you're just like them, and you're fucking stupid.

• 8:00Speaker 05

  Okay. All right.

• 8:04Peter Shamshiri?

  We're having so much fun. We're about to transition into the most enraging case.

• 8:07Speaker 05

  It's a horrific case. Yeah.

• 8:08Michael Liroff?

  It's so bad.

• 8:09Speaker 05

  Um, Tennessee, the state of Tennessee. The House of Representatives and then the state senate passed what was first HB1 and then SB1. In March 2023, this law prohibited surgical procedures and hormone therapies, including puberty blockers, for minors with a diagnosis of gender dysphoria. Now, want to set aside, the thing at issue in this case is hormone therapies, not surgical procedures, but the law does ban surgical procedures. As well. Now, a lot of people are describing the Tennessee law only in that way that it prohibits hormone therapies for minors with a diagnosis of gender dysphoria.

• 8:51Speaker 05

  And it's being described in this way around like the diagnosis of gender dysphoria. That's not inaccurate, but the law actually says things in a really specific way. That's really relevant to how the court rules on this. What the law says is that all medical treatments that are intended to allow a minor, quote, "to identify with or live as a purported identity inconsistent with the minor's sex, or to treat purported discomfort or distress from a discordance between the minor's sex and asserted identity are prohibited." So like the math equation here, just to break it down is hormone therapies are prohibited if two things, one, you're a minor, and two, the hormone therapy would be supporting you

• 9:37Speaker 05

  in like attaining or living a gender identity that is inconsistent with your sex assigned at birth. That's what the law says.

• 9:44Peter Shamshiri?

  Right. And that's important because basically every treatment we're talking about here has a permissible use under this law. So puberty blockers are a big part of this law. And they are permissible under the law to treat precocious puberty. They're just not permissible to aid someone in the transitioning process.

• 10:08Speaker 05

  Exactly. It's important to highlight this, like the explicit use of sex here in the law, because sex discrimination is like supposedly frowned upon in the law, gets a higher level of scrutiny. We're going to talk about that in a little bit. And based on the way this law is worded, the plaintiffs are arguing like this is sex-based discrimination. You're talking about sex here. So we'll talk about that more in a bit. But the other reason, which Peter just touched on, the other reason it's important to highlight this is because of how narrow the prohibition on hormone therapy treatments is. Minors can receive hormone therapy for treatment of anything other than identity inconsistent with the minor's sex. So hormone therapy, you know,

• 10:49Speaker 05

  It can be used to treat a minor who wants to align their experience or their characteristics or what have you with their sex assigned at birth, like that would be fine. And and hormone therapy used in the treatment of precocious puberty, like Peter said, which is like early onset puberty, that's fine, too. It's only when hormone therapy is used in the treatment of this kind of like gender incongruence, gender dysphoria that the law says is prohibited. Now, importantly, you know, because the majority has so much to say about how this has nothing to do with sex. Importantly, in the bill itself, the Tennessee legislature says themselves

• 11:30Speaker 05

  that they are interested in passing the bill, that it is in the state's interest to pass this bill in part because they want to encourage minors to appreciate their sex. Again, big question in this case is whether this involves sex.

• 11:47Peter Shamshiri?

  Yeah. By the way, how do you write that down and not pause for a second? You know what I mean?

• 11:51Speaker 05

  I know, right?

• 11:52Peter Shamshiri?

  Like, right? Kids, just look down and smile.

• 11:55Speaker 05

  Kids, appreciate your sex. Just you fucking weirdos.

• 11:59Peter Shamshiri?

  Absolute creeps, dude.

• 12:00Speaker 05

  Yeah. So let's talk about who this law affects. And, you know, the children plaintiffs and their families who brought this case to the Supreme Court. All of these children are, you know, their names obviously are kept anonymous. So we have Ryan Rowe, a child that's identified as LW, and another child identified as John Doe. Let's just go through like briefly each of these children. Ryan Rowe, a child assigned female at birth. He felt as early as elementary school that he was a boy. And as puberty approached, he began experiencing really serious symptoms of like psychological distress, physical distress at the changes that were happening in his body. He didn't want to speak. He contemplated going mute because of what his voice would sound like.

• 12:45Speaker 05

  You know, for example, he threw up every single day before school from anxiety. And then after two years of really extensive psychotherapy, medical consultation, he was prescribed testosterone. And Ryan himself says, like, testosterone hormone therapy saved my life. Without hormone therapy, he told a court that he worries about his ability to survive in the future. LW, another child, this is a child who was assigned male at birth. She began to question her gender also in elementary school. She would say that she felt like she was drowning, that she didn't feel comfortable using the boy's bathroom. And when she started hormone therapy, including puberty blockers and estrogen,

• 13:27Speaker 05

  her parents described her as like, all of a sudden, like a confident and happy and free child, just like she should have been her whole life and she should be her whole life into the future, right? John Doe, another child, assigned female at birth. He chose a male name for himself at the age of three. Developed anxiety around puberty, that those changes that were going to be happening to his body, that they would be permanent. And his mom says that her child's transition and this move through and navigating, you know, things, big questions like gender identity have not been easy. But his mom says that like hormone therapy is the one thing that gives her hope, that her child can have a fulfilling life.

• 14:08Speaker 05

  So these parents with the passage of this law are faced with decisions about long-term health and wellness of their children that put them in like just such an extreme scenario of like making a choice literally between having to move your family to another place where you can seek life-saving medical treatment or staying in Tennessee where you're risking like your child living a fulfilling life, your child surviving, like navigating life in a healthy way, in a fulfilling way. And so these, I think, really, really brave families joined together and sued, arguing that this Tennessee law is discriminatory

• 14:51Speaker 05

  and it violates the equal protection clause of the Constitution. That's how we get to the Supreme Court.

• 14:57Peter Shamshiri?

  Let's talk about the law here. First, we're going to have to keep in mind that a lot of this is about scrutiny levels. Basically, when the Supreme Court is evaluating laws under the equal protection clause, there are laws they scrutinize more than others. And what that turns on is whether those laws discriminate against protected characteristics like sex. So the majority here is written by John Roberts. It's very established that laws discriminating on the basis of sex are presumptively unconstitutional. So first, Roberts is discussing whether the law discriminates on the basis of sex. And he says that it does not. He says that the law only, quote, "prohibits healthcare providers from administering puberty blockers

• 15:41Peter Shamshiri?

  and hormones to minors for certain medical uses." So according to him, the law discriminates based upon age and medical use, but not sex. The obvious question here is which medical uses does it discriminate against, right? And the answer is that the law bans any of these treatments that is, quote, "inconsistent with sex." So it's not the medical use per se that is banned. In fact, like we mentioned, there is no particular medical procedure that is blanket banned by this law. It's only that it's banned for use by a certain sex when the purpose is transitioning.

• 16:26Peter Shamshiri?

  So essentially, just textbook discrimination here.

• 16:29Michael Liroff?

  Absolutely.

• 16:30Peter Shamshiri?

  And I think that's the central point here. And it's what Roberts keeps dancing around. Like, he starts talking about certain medical diagnoses being banned or whatever. But what the law actually says is that certain treatments are banned if they are inconsistent with your sex, which is just up and down discrimination. Like, there's really no way around it. Whether or not this treatment is legal for you under this law depends on your sex. It turns on your sex. Roberts addresses that language, the inconsistent with sex language, by saying that it's a mere reference to sex.

• 17:13Peter Shamshiri?

  But it's not a mere reference, right?

• 17:16Michael Liroff?

  No, it's not.

• 17:16Peter Shamshiri?

  It's the whole law, the whole clause turns on the sex of the recipient of the medical treatment.

• 17:23Michael Liroff?

  Yeah.

• 17:24Speaker 05

  This isn't an incidental use of the word sex.

• 17:27Peter Shamshiri?

  Right. The procedure is forbidden if it's inconsistent with your sex.

• 17:33Michael Liroff?

  Right.

• 17:33Peter Shamshiri?

  So your sex is the determinant factor. That's what else could discrimination mean here?

• 17:39Speaker 05

  Yeah.

• 17:40Michael Liroff?

  If you were born female and don't have enough estrogen, you get the estrogen. If you were born male and you don't have enough estrogen... Biologically male, assigned male at birth, and are female, you don't get the estrogen. That's it.

• 17:56Peter Shamshiri?

  Right.

• 17:56Michael Liroff?

  It's your sex.

• 17:58Peter Shamshiri?

  So, Roberts says that there's no equal protection problem because, quote, "No minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence." He says, quote-

• 18:10Speaker 05

  No minor, just none of them.

• 18:12Peter Shamshiri?

  Right. He says, quote, "Minors of any sex may be administered puberty blockers or hormones for other purposes." So, this exact logic has been used for literally centuries to argue that discriminatory laws aren't really discriminatory, right?

• 18:28Speaker 05

  Yeah.

• 18:28Peter Shamshiri?

  He's saying, "It's not discriminatory because it prohibits transition for either sex." Like, oh. But that misses the point, which is that the law prohibits certain medical treatments based entirely upon what your sex is, right? Like, the law's relationship to you, the citizen, turns on your sex. So, this is like very similar to the idea that gay marriage bans don't discriminate based on sex because everyone is free to marry someone of the opposite sex.

• 19:00Peter Shamshiri?

  That's a tricky logic. In Loving v. Virginia, the case from the 60s that legalized interracial marriage nationwide, the Virginia court that originally upheld the interracial marriage ban used this exact logic, right? They said, "It's not discriminatory. Everyone of every race is free to marry someone of the same race and forbidden to marry someone of another race." So, how is that discriminatory? Treats all races equal. And just to articulate the problem here, what they're doing is basically arguing that something is only sex discrimination if sex is like the sole and determinant factor, but also from the government's perspective. Like, I was pointing out, your relationship as a citizen to this law turns entirely on your sex, right?

• 19:44Michael Liroff?

  Right.

• 19:44Peter Shamshiri?

  But John Roberts is looking at it like a different way. He's sort of like, "Well, from the government's perspective, it blankets everyone equally," which I think is just a ridiculous way.

• 19:53Michael Liroff?

  From a bird's eye view.

• 19:54Peter Shamshiri?

  Right.

• 19:54Michael Liroff?

  Yeah.

• 19:55Peter Shamshiri?

  Right. By the way, this logic always leads to one of my favorite hypotheticals, which is, imagine a law that denies a right- To everyone in a demographic group except for one person, right? So a law that says women are forbidden from driving except for Rhiannon, right? Does that law discriminate against women? If you take this logic seriously, I think the answer is genuinely no.

• 20:18Speaker 05

  Yeah, yeah.

• 20:19Peter Shamshiri?

  Because it's like, well, Rhiannon's a woman.

• 20:22Speaker 05

  Right.

• 20:22Michael Liroff?

  Yeah.

• 20:23Peter Shamshiri?

  Boom, boom.

• 20:24Speaker 05

  Okay, yeah.

• 20:28Peter Shamshiri?

  You can even choose one man that can't drive, right? Just to even it out a little bit.

• 20:33Michael Liroff?

  Yeah.

• 20:34Peter Shamshiri?

  Now, in support of this logic, the court cites very consistently to a case from the 1970s, Gudaldig v. Aiello. This is a case we covered about a year and a half ago, maybe?

• 20:45Speaker 05

  Yeah.

• 20:46Peter Shamshiri?

  The court there found that pregnancy discrimination was not technically sex discrimination, because not all women are pregnant, folks.

• 20:58Peter Shamshiri?

  All right, so a lot of people thought that Gudaldig was sort of functionally overturned, because you had cases like the VMI case, the Virginia Military Institute case, United States v. Virginia in the 90s, where the court struck down VMI's male-only policy. And they basically said, you know, this is sex stereotyping. This is predicated in sex stereotyping, so this violates equal protection.

• 21:23Speaker 05

  Yeah.

• 21:24Peter Shamshiri?

  A lot of people thought, well, that must essentially be the end of Gudaldig, even if they didn't overtly overturn it. But no, alive and well here. Now, before we move on, you might have this thought. I feel like we're going to get this in our replies. That's sort of like, well, if this is really how they're defining discrimination, could you, as an employer, for example, fire an employee for wearing a cross? Right? Not all Christians wear crosses. In fact, some people that wear crosses aren't Christians.

• 21:55Michael Liroff?

  Yep.

• 21:55Peter Shamshiri?

  So can you do that? And the answer is no, because no one on earth actually defines discrimination this way, including the Supreme Court, except when it's happening to other groups that they don't like. Then all of a sudden, they're getting fucking cute with it, right?

• 22:11Speaker 05

  Exactly.

• 22:11Peter Shamshiri?

  And you could think of a thousand examples like this. They would never tolerate this in a circumstance where it fell upon their preferred groups.

• 22:19Speaker 05

  Yeah, it sort of exposes like how absurd this is to not define this as sex discrimination. Like, you know, we were thinking of examples. What if a law banned peeing standing up? Right? And like, the argument is, well, everybody, male, female, non-binary, you can pee standing up, right?

• 22:40Peter Shamshiri?

  Not all men pee standing up.

• 22:41Speaker 05

  Yeah, and not all men pee standing up.

• 22:44Michael Liroff?

  Yeah.

• 22:44Speaker 05

  Some of them are weird. And so.

• 22:48Michael Liroff?

  That's right. I have a friend who never peed standing up, and we all agree, he's odd. He's an odd duck.

• 22:53Peter Shamshiri?

  Look, sometimes in the middle of the night, it's not worth trying to aim. You just want to sit.

• 23:00Speaker 05

  Right, so here's an example of a law that you can argue in bad faith doesn't turn on sex, but in impact, in treatment, in the unfairness, in who is actually targeted, right? That would be generally, by and large, the vast majority of men. Only men and not women. Now, when you're thinking of examples like this.

• 23:24Peter Shamshiri?

  Just to drive this home, like, even that law might not be as discriminatory as this one, as the one we're talking about. If you had a law that said, like, you can't pee in a way that's inconsistent with your sex.

• 23:36Speaker 05

  Right.

• 23:36Peter Shamshiri?

  That's the analogy.

• 23:38Speaker 05

  This one is even more explicitly discriminatory because it literally explicitly turns on sex. It says that it is about sex. It's determinative based on this child's sex. And so, you know, when you're thinking of examples that are sort of like analogous to this, but where you know the court would find that it is sex-based discrimination, you're kind of thinking of like, you know, absurd and kind of abs- extract examples because there aren't a lot of instances, you know, maybe none in real life where in terms of sex discrimination, men are discriminated against based on their sex. And, you know, this goes up to the Supreme Court and the Supreme Court strikes down that

• 24:22Speaker 05

  law because they protect men or they think sex-based discrimination against men only is important. So we're stuck with these hypotheticals because it's always the right doing this targeted discrimination against insular minorities, against disfavored minority groups, against trans people, or women, or racial minorities, et cetera, et cetera. It's not a blue state passing a law that says you can't pee standing up because they're targeting men.

• 24:53Michael Liroff?

  Right. Blue states don't go after white people or men or anything like that. They're not outlawing boiled chicken with no salt or any seasoning.

• 25:05Speaker 05

  Mattress on the floor loser banned now.

• 25:08Michael Liroff?

  Yeah. Yeah. No, that shit doesn't happen. It's always the conservatives targeting small politically marginalized groups.

• 25:17Peter Shamshiri?

  So that's the sex discrimination question. Is it sex discrimination? Because again, as I've mentioned, it's well established that laws discriminating on the basis of sex are subject to a higher level of scrutiny and presumptively unconstitutional. So Robert says, no, it's not sex discrimination. But that still leaves the question, is this discrimination based on transgender status? Is this transgender discrimination? There hasn't been a Supreme Court establishing whether or not transgender status is subject to a higher level of scrutiny or not. So having determined that this law is not sex discrimination, they now have to turn to whether it's transgender discrimination. And if so, what the level of scrutiny should be.

• 26:02Peter Shamshiri?

  Robert says, quote, "By the same token, SB 1 does not exclude any individual from medical treatments on the basis of transgender status. Rather, it removes one set of diagnoses, gender dysphoria, gender identity disorder, and gender incongruence, from the range of treatable conditions."

• 26:21Speaker 05

  So being trans, but it's not really that you're trans.

• 26:27Peter Shamshiri?

  It's like, I guess the thinnest slice of the Venn diagram is not overlapping, and he's like, "There we go. Perfect. Got it." Again, basically doing the same thing as the court did in Ghidorah Dig with pregnancy discrimination, probably worse just on a per capita basis, because it's a small percentage of women are pregnant, but the percentage of trans people who suffer from gender dysphoria, gender identity disorder, and gender incongruence is nearing 100%. We're getting into extremely high percentage territory. So, I mean, he's saying it's not discrimination against transgender status, it's discrimination against medical treatments that basically only transgender

• 27:10Peter Shamshiri?

  people need, and also almost all transgender people. And again, to be clear, if you read the law, it does not prohibit any medical treatments or procedures, per se. What it does is prohibit procedures that are done for the purpose of transitioning.

• 27:28Michael Liroff?

  Right.

• 27:29Peter Shamshiri?

  The idea that this is not discrimination against transgender people is so patently fucking ridiculous. It's in the law. They say that this is about encouraging minors to appreciate their sex, right?

• 27:42Michael Liroff?

  Right.

• 27:43Peter Shamshiri?

  Like, you can look at how this law came to be. It's about transgender people. This is ridiculous. Ridiculous.

• 27:50Michael Liroff?

  Yeah, so there are some concurrences here from the conservatives. I think Amy Coney Barrett is not having it with how ridiculous this argument is. Modern queen Amy Coney Barrett would go further and say, "Clearly, this law discriminates based on transgender status, and that's okay."

• 28:11Peter Shamshiri?

  Yeah.

• 28:12Michael Liroff?

  And she does this very overly formalistic, in my opinion, analysis about how the court typically determines whether a group gets this special categorization called a suspect or quasi suspect class.

• 28:29Speaker 05

  Like whether a group is like protected by the constitution, right?

• 28:34Michael Liroff?

  Such that they get a more skeptical judiciary.

• 28:38Speaker 05

  Right, right.

• 28:38Michael Liroff?

  Right? And she she lays out the standards very well and she explains everything. And like, I don't think there's a single point of law or fact that I would like really dispute. But the overall thrust is just missing the forest for the trees, in my opinion. And so the thing is like, as she says, like, we presume laws are constitutional. We give them this very generous basis of review. As long as they have any sort of rationality that makes sense, we accept it. And it's only when they classify based on, you know, race or gender or national origin, do we have a more searching inquiry?

• 29:23Michael Liroff?

  Do we look into the motives of the legislature or whatever? But I think thinking of this as like a rigid formula is wrong. I think it's more like, yeah, generally speaking, we don't have the judicial resources to search into the motivations of every legislator for every single law passed in the country. And so we use these heuristics to decide when to be more suspicious, right? Which is why they're called suspect classifications. When a law classifies like this, it makes us suspicious. And because we're more suspicious, we do a more scrutinizing form of review of the law and the legislator's comments and all that stuff.

• 30:07Michael Liroff?

  And yeah, race, national origin, sex, these are good, classic historical examples of that. But like, who the fuck are we kidding here? Like, we're in the middle of a 10-year moral panic about transgender people. Like, of course, there's animus going on here.

• 30:25Peter Shamshiri?

  Right.

• 30:25Michael Liroff?

  What are you talking about? Like, that's, that's the thing for me.

• 30:29Peter Shamshiri?

  I think I'd go further than you, Michael. I think that, like, what she gets wrong with the application of facts to the law is that she seems to hand wave away the idea that there is a history of discrimination against transgender people.

• 30:43Michael Liroff?

  Oh, for sure.

• 30:44Speaker 05

  Yeah.

• 30:44Peter Shamshiri?

  Basically...

• 30:46Michael Liroff?

  But she says she reserves judgment.

• 30:48Peter Shamshiri?

  Right, right. Which is, I'm sorry, but I don't even understand what there is to reserve. There's a couple of things here. One is, to the extent that there isn't a history of, like, legal discrimination against trans people, meaning like, from and by the state.

• 31:05Michael Liroff?

  Right.

• 31:06Peter Shamshiri?

  To the extent that that doesn't exist, that's mostly because the state lacked the vocabulary until relatively recently, right?

• 31:13Michael Liroff?

  Right.

• 31:13Speaker 05

  Yeah.

• 31:13Peter Shamshiri?

  The ACLU pointed out in their briefs, like, laws against cross-dressing go back centuries.

• 31:21Michael Liroff?

  Right.

• 31:21Peter Shamshiri?

  There's a history of discrimination. And maybe more to the point, discrimination at the state and federal level against transgender people is a fairly recent phenomenon at the scale that we're seeing it, but still a very real phenomenon and should be part of the analysis. The fact that half the states in the country have laws like this, the federal government isn't letting trans people into the military.

• 31:45Speaker 05

  Right.

• 31:46Peter Shamshiri?

  I mean, this doesn't count towards the history of discrimination analysis. To me, this is like, that's like, an open and shut part of the analysis, which is why Amy Coney Barrett dodges it.

• 31:54Michael Liroff?

  Right.

• 31:54Peter Shamshiri?

  I, I just thought that part was embarrassing. It's just like, in my mind, it feels to me like what she wants to say is, well, that doesn't count, because that's, like, this law is part of that. It's part of that panic.

• 32:06Michael Liroff?

  Right. It's all part of the panic, and the panic is new. So it can't be a history if it's new, if it's happening now.

• 32:12Peter Shamshiri?

  We're trying to do it right now.

• 32:13Michael Liroff?

  Yeah, exactly. Exactly. There hasn't been enough discrimination, and we're rectifying that in this moment. I mean, it's garbage. Like, I want to be clear. I think the ACV concurrence is garbage. I just think it overall misunderstands the whole point of equal protection law, which is like, when there's indicia of animus, be a little more skeptical of what the legislature is doing, right? And this is sort of what like, happened in the first Defense of Marriage Act case, which is like, Kennedy, he's not a very good writer, but he does this. He's like, there is a sharing of power between the federal

• 32:53Michael Liroff?

  government and the states about marriage that was settled for 150 years. And then the federal government upended that understanding of how the power is shared. And that makes me suspicious, right? He's like, we don't need a suspect classification. It's just something weird is going on here. And so I'm going to be a little more skeptical of the government's claims.

• 33:14Speaker 05

  I'm gonna scrutinize it more, right? Like, this rises to a level where I'm gonna look into this more.

• 33:20Michael Liroff?

  Right. And when a bunch of states start passing onerous laws on a small minority, all within a few years of each other, I think that's reason enough to scrutinize them. Like, that's it. Like, that's it. Like, you don't need much more.

• 33:34Peter Shamshiri?

  This fits into a long history for conservatives of like, pretending that there's no way to know the heart of these state legislators. Like, how are we to know what the true motivation is? Meanwhile, they're on the state floor being like, transgender is not real. This is just super gay. This is just like, this is just people who are extra gay, and we're gonna stop them.

• 33:56Speaker 05

  Yeah, right.

• 33:57Michael Liroff?

  Yeah.

• 33:57Peter Shamshiri?

  They're just saying it out loud. And then, like, you put that in front of the Supreme Court, and they're like, hmm.

• 34:03Michael Liroff?

  Hmm, truly a mystery.

• 34:05Peter Shamshiri?

  What are the comments of one legislator going to tell us?

• 34:09Michael Liroff?

  The human soul is a gem of many facets. You simply cannot know. How light is refracted through?

• 34:20Peter Shamshiri?

  How can we know what this legislator meant when we don't even know how consciousness manifests? What is the human brain? What is a decision?

• 34:29Speaker 05

  I'm telling you, Jesus walked on water.

• 34:33Peter Shamshiri?

  What is a motive?

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• 36:12Michael Liroff?

  But so this, so this opinion is very funny because Clarence Thomas signs on to this, which the backbone of this opinion is like, look, we presume state legislatures are acting with good intentions and require showing to overcome that. And then Thomas also writes a concurrence. And his concurrence is like, it might be the most pure, like, my brain has been marinating in online mush I've read from any Supreme Court justice.

• 36:49Peter Shamshiri?

  It's wild.

• 36:50Michael Liroff?

  The entire thing is just like, and, and I just think it's very funny that he signed on to the ACB concurrence because the entire thing is about how experts are biased, how experts are politically influenced and ideological. On the one hand, you're like, oh, the noble state legislatures, whose intentions we presume are great. But then these fucking nasty doctors, these psychologists, oh, they are, you can't trust them. You can't trust the expert class. He calls them the expert class, as if like, everybody with a graduate degree in the country is of the same type.

• 37:28Speaker 05

  Right. And who he's talking about, like, it's the American Medical Association, right? It's the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists. Like, it's not like quack.

• 37:39Michael Liroff?

  It's so insane. It's so insane.

• 37:43Peter Shamshiri?

  Can we read his, his thesis here?

• 37:45Michael Liroff?

  Yes.

• 37:46Speaker 05

  Okay. His thesis here, Clarence Thomas in concurrence, "There are several problems with appealing and deferring to the authority of the expert class. First, so-called experts have no license to countermand the quote wisdom, fairness, or logic of legislative choices. Second, contrary to the representations of the United States and the private plaintiffs, there is no medical consensus on how best to treat gender dysphoria in children. Third, notwithstanding the alleged experts' view that young children can provide informed consent to irreversible sex transition treatments, whether such consent is possible is a question of medical ethics that states must decide for themselves."

• 38:28Speaker 05

  Fourth, there are particularly good reasons to question the expert class here as recent revelations suggest that leading voices in this area have relied on questionable evidence and have allowed ideology to influence their medical guidance.

• 38:42Michael Liroff?

  Do you know who is fit to evaluate the medical evidence? Is Clarence Thomas?

• 38:49Speaker 05

  And state legislators.

• 38:50Michael Liroff?

  And state legislators. The dude who's main experience in life is like owning a car dealership gets to decide whether the evidence is compelling about whether this is an effective medical treatment and not doctors and psychologists and psychiatrists.

• 39:09Peter Shamshiri?

  He alternately calls experts, quote, "so-called experts" and "self-described experts", like as if, as if the concept of expertise doesn't exist at all. Like to be an expert, like they're, the right is so deep in the anti-intellectual sauce that the idea that expertise even exists is questionable to them.

• 39:31Michael Liroff?

  Right.

• 39:32Speaker 05

  This is also like a legal like classification. This is something that courts do, which is certify people as experts in cases. Like that, that's a thing.

• 39:40Michael Liroff?

  Right.

• 39:40Peter Shamshiri?

  I actually think that's what he's talking about when he says like self-described experts. Like there were so many affidavits submitted by experts in support of gender-affirming care that he's like, oh, so they say they're experts.

• 39:54Speaker 05

  Right, right, right. Anybody can call themselves an expert these days, yeah.

• 39:59Michael Liroff?

  And, and it's also like, motherfucker, your entire judicial method is claiming to be able to divine how the average citizen would understand something written 250 years ago. And you have the balls to sneer at other people for being like-

• 40:17Peter Shamshiri?

  Who do actual fucking science?

• 40:18Speaker 05

  Yeah.

• 40:19Michael Liroff?

  Right, who do real, like, do real methodological studies and like-

• 40:24Peter Shamshiri?

  You could put a regression analysis in front of Clarence Thomas and give him from now until the end of his life. Never happening, folks.

• 40:31Speaker 05

  Not-

• 40:32Peter Shamshiri?

  Never happening.

• 40:33Speaker 05

  Be able to explain it to you.

• 40:33Michael Liroff?

  Never, never understanding it. It's unbelievable.

• 40:37Peter Shamshiri?

  The actual sources that he uses here are so telling because on one hand, he's like, we cannot trust these large medical organizations, which by the way, like literally dozens of them submitted-

• 40:49Michael Liroff?

  Right.

• 40:50Peter Shamshiri?

  Briefs in support of gender-affirming care.

• 40:52Speaker 05

  Yeah.

• 40:53Peter Shamshiri?

  We can't trust them. They're corrupted by liberal politics. But then his citations are just to like New York Times articles about like

• 41:02Michael Liroff?

  Yeah.

• 41:02Peter Shamshiri?

  trans healthcare. Several of them are opinion pieces.

• 41:05Speaker 05

  Yes.

• 41:06Peter Shamshiri?

  Dude, he cites Pamela Paul.

• 41:08Michael Liroff?

  Pamela Paul, editor of the Literary Review of Books or whatever. Like what?

• 41:13Peter Shamshiri?

  Oh, the American Academy of Pediatrics? That's liberal bullshit. Pamela Paul is who I listen to.

• 41:20Michael Liroff?

  Pamela Paul.

• 41:21Peter Shamshiri?

  The dumbest bitch in the New York Times. That's your source? That's, that's who overrides dozens.

• 41:28Speaker 05

  Citing op-eds.

• 41:30Peter Shamshiri?

  Citing op-eds.

• 41:31Speaker 05

  In Supreme Court.

• 41:33Peter Shamshiri?

  Not only that.

• 41:33Speaker 05

  Opinions.

• 41:34Peter Shamshiri?

  He spends a ton of time trying to undermine WPATH, which I think is the World Professional Association of Trans Healthcare or something like that. So WPATH puts out guidelines for trans healthcare, you know, gender-based healthcare. And they were sued by Alabama a couple of years ago. Alabama got a bunch of documents and then like tried to find evidence of like political ideology and corruption, right? And this, all these documents have circulated on like right-wing social media. And they basically haven't found much. But like Thomas quotes one contributor to these guidelines that, who is saying like, "Yeah, we hope to influence law and policy with these." And it's like, he's saying that like it's corrupt.

• 42:17Peter Shamshiri?

  It's like, yeah, dude, the people who know and understand the science want law and policy to reflect that. That's not actually weird, dude.

• 42:26Michael Liroff?

  No, that's, it would be weird if it wasn't the case. If they're like, "This is super effective and I don't care if it's legal and widely available." Like, that'd be bizarre. That'd be really bizarre.

• 42:37Peter Shamshiri?

  There's also, I don't want to spend too much time on this portion, but I think it speaks to how intellectually dishonest he is. There's a bit where he's like, "The Biden administration had influence over the guidelines." And this is sort of true. When WPATH was figuring out the guidelines, they wanted to put out guidelines that had recommended ages for certain procedures. So like 14 for this, 15 for that as the minimum age, right?

• 43:07Peter Shamshiri?

  Rachel Levine, the Assistant Secretary of HHS under Biden, reached out being like, I don't think you should put specific ages in because basically it's going to cause right wing backlash. So, we don't know, it doesn't actually look like she was the cause, but they did ultimately lose the ages. Which means if you're paying attention, the guidelines are more conservative than they otherwise would have been. Right. And the reason for that is because they were concerned about right wing backlash. So like, the political influence that Thomas is citing here cuts the other way. Like, they changed the guidelines to make them more conservative because of fear of the right. It's just ridiculous. And then, I know I said I wouldn't go too deep, but one more thing.

• 43:53Peter Shamshiri?

  There is one study that he cites to say that the evidence on puberty blockers for gender dysphoria is mixed. By the way, not really true. We have a ton of evidence about the use of puberty blockers in other contexts, especially for precocious puberty. But, the paper that he cites has a conflict of interest section that's basically as long as the abstract, because every single person involved, or almost every single person involved, is connected to the Society for Evidence-Based Gender Medicine, which is like a Koch-funded fucking right wing anti-trans group founded by a guy who like doesn't believe trans people exist. And it was founded in like 2019. Those are the experts Clarence Thomas trusts.

• 44:35Speaker 05

  Yeah. You know, and this is like in a long line of, you know, just like anti-intellectual bullshit. Tennessee seizes on this like supposed, alleged controversy in the science of what's going on. And Sotomayor actually points out in Dissent, which we'll talk about later, that like Tennessee's points about like, there's a lot of questions scientifically right now and the court shouldn't like wade into, you know, what is like really murky territory, we should just be trusting state legislatures on these calls. Sotomayor is like, Tennessee's briefing on this is eerily similar to the state of Virginia's briefing in Loving the Virginia.

• 45:16Speaker 05

  Saying back then that like if the court intervened and allowed interracial marriage, then the court was going to find itself in quote, "a bog of conflicting scientific opinion upon the effects of interracial marriage and the desirability of preventing such alliances from the physical, biological, genetic, anthropological, cultural, psychological, and sociological point of view. In such a situation, it is the exclusive province of the legislature of each state to make the determination for its citizens as to the desirability of a policy of permitting or preventing such interracial alliances, a province which the judiciary may not constitutionally invade."

• 45:57Speaker 05

  This, but, folks, they've been saying this. They say this every fucking time. Okay, Alito has a concurrence too. I don't think we need to spend much time on it at all. Alito is beefing directly with Sotomayor in his concurrence because Sotomayor is in dissent and Sotomayor's entire argument is the obvious argument that, again, this is discriminatory, this is sex-based discrimination, this is trans discrimination. Alito is taking issue, of course, with Sotomayor's viewpoint there and just kind of like being a little bit more specific or like trying to explain more about what sex-based discrimination is or what a sex-based classification is. And he's going back to what you mentioned

• 46:41Speaker 05

  before, Peter. He's going back to this idea that like sex-based discrimination is when in the law, like sex serves as the explicit criterion for differential treatment. So a college that has a male-only admissions policy, that is sex-based discrimination. You know, a law that said, "Women can vote, but men cannot," that's sex-based discrimination, nothing else. That's what Alito's on about. He simply hates Sonia Sotomayor with his entire fucking heart. And yeah, so that's where he's at in concurrence here.

• 47:20Peter Shamshiri?

  Yeah.

• 47:20Speaker 05

  That brings us, I think, to the dissents. There are two dissents here. Kagan writes a dissent, and it's not very long. We won't go into it, actually, because what Kagan is doing is agreeing with all of Sonia Sotomayor's dissent, except one part where Sonia Sotomayor gets into whether or not this law in Tennessee would survive heightened scrutiny. Kagan says, "I wouldn't get to that question. I do think that this requires heightened scrutiny, and I'll leave it at that." But let's get into what Sotomayor says, because I think this is a very solid dissent. And actually, when I was reading it, I think, folks, like, if you're listening to this, I honestly would recommend reading Sotomayor's dissent. I'd recommend reading it in full,

• 48:03Speaker 05

  but especially the beginning. I actually think this is a good rundown in terms of, like, a piece of public education about, like, trans teens, hormone therapy, and she's writing this and publishing this really in, like, the absence of a Democratic Party or anyone fucking else right now doing anything to, like, counter right-wing narratives about how, you know, gender-affirming medical care happens, right? Or like, what it means to experience gender dysphoria as a child, you know, those kinds of things. And so, yeah, I think Sonia Sotomayor does a really good job of just kind of, like, explaining this context, like, sociologically and, like, medically and that kind of thing. But as she,

• 48:48Speaker 05

  like, she turns to the law, "Come on, guys, this is plainly sex-based discrimination." Right. She says, quote, "Sex determines access to the covered medication in this law." Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child, but not a female child, look more like a boy. And to help a female child, but not a male child, look more like a girl. This is sex-based discrimination. And also, Sonia Sotomayor says, like I mentioned up top, "All of this for the explicit stated purpose of children appreciating their sex." This is sex-based discrimination. Like, she's

• 49:29Speaker 05

  losing her mind. She goes into, like, how this operates in real life, how this law, like, plays out in terms of, like, the doctor-patient relationship in real life, reveals that it's obviously sex-based discrimination also. So say like a parent gets in touch with a doctor in Tennessee and the parent says, "Hey, my kid is growing facial hair and we want this to stop. We want to stop this from happening. It's distressing my kid because my kid doesn't want to look more masculine than they do right now." The doctor's next step in Tennessee must necessarily be like asking what the kid's sex is. What's the kid's sex assigned at birth? And that is the determinative fact on whether or not the doctor can proceed with giving treatment or not giving treatment, right?

• 50:13Speaker 05

  If the kid was assigned female at birth, then SB1 allows that doctor to treat that condition with hormone therapy. If the kid was assigned male at birth, the doctor cannot give that treatment.

• 50:25Peter Shamshiri?

  This is, I'm sorry, it's just ridiculous. The idea that this is not sex discrimination is preposterous.

• 50:31Michael Liroff?

  Right. It's insane.

• 50:32Speaker 05

  Yes, yes. Peter, you touched on this. She goes through a lot of analogies, guys, because it's so fucking easy and like preposterous on its face, you know? There's easy religion analogies to be made here. If you mirror the way this law is worded, but you make it about religious identity, religious discrimination, it would clearly be that and it would clearly be struck down. So suppose that the state of Tennessee prohibited a child from attending any religious service or religious assembly that is inconsistent with that child's religion. No one would dispute that that rule classifies on the basis of religion. If the law prohibited, you know, a child from attending a religious

• 51:16Speaker 05

  service that is inconsistent, not the same as the religion that their parents want them to practice. It's religious discrimination and Tennessee actually admits that other clearly sex-based discrimination, sex-based classifications in the law that would be structured exactly the same way as this law, that those would be sex-based classifications that would be struck down. Tennessee says, the state says, that a prohibition on wearing clothing that is inconsistent with the wearer's sex, or a prohibition on professionals working in jobs that are inconsistent with their sex, that would trigger intermediate scrutiny. Tennessee admits that. The only difference

• 52:00Speaker 05

  here is that this is sex-based discrimination against trans people, against trans kids, and Tennessee thinks that should be permissible in a way that other sex-based discrimination can't even arguably be permissible.

• 52:14Peter Shamshiri?

  Right. It seems like Tennessee wants it to be okay to do sex discrimination if the ultimate target is trans people.

• 52:22Speaker 05

  That's right. Yeah, exactly. And so, you know, the fake neutrality of this law, the way the majority, Roberts talks about this law as not being sex discrimination because it falls on everybody equally, no matter your sex, that's just ridiculous. It's so stupid, and it comes in a super-long history. Sotomayor has a lot of points to make about how this looks and feels like those same arguments that were in support of Virginia continuing to ban interracial marriage before loving the Virginia. And last thing I'll say about Sotomayor's dissent, a point that I think she makes that is really important, is that, like, judicial scrutiny is important, heightened scrutiny is important, the role of the judiciary,

• 53:05Speaker 05

  like what you're saying about the role of the judge, the role of an independent judiciary in having levels of heightened scrutiny, it's super important because it's this guardrail, like, against legislative efforts to, like, impose the state's views about how people of a certain sex have to act, have to live, or people of a certain race. This is why we have judicial scrutiny. You can't just, we shouldn't be, like, acting so flippantly with the act of judicially scrutinizing discriminatory laws, which I think is what you were talking about earlier, Michael, in terms of, like, how ACB just, like, mm, whatever, scrutiny, you know?

• 53:47Peter Shamshiri?

  Right.

• 53:47Speaker 05

  It's important. It's important. It's an important judicial function.

• 53:50Peter Shamshiri?

  It is. It is. I agree. And if you think it's worth saying that, like...

• 53:55Michael Liroff?

  A legal regime where discrimination is greenlit, like Coney Barrett and Thomas endorse, is one that will be enforced with lots of private violence as well. We've seen this throughout American history. The norms embodied in this law will be defended by vigilantes beating the shit out of people or killing people or lynching people. And then cops will barely investigate or not investigate at all. There's just, this is the tale of separate but equal in this country's entire history. That's how it works.

• 54:38Michael Liroff?

  Like, they want to put this very anodyne, antiseptic structure on it, but what we're really talking about here is the violent suppression of non-conforming beliefs and presentations. And I just think it's really disgusting.

• 54:56Peter Shamshiri?

  There's one other thing that the majority and a couple of the concurrences talk about that I think is important, which is that unlike some of the comparable forms of discrimination, this involves medical care. Now, this sort of gives them a little bit of an out where they're like, you know, especially in the area of medicine, we should be deferring to the legislature. Now, I'm not entirely understanding of why that's true, but it feels especially weird when Thomas has a whole concurrence about how like we shouldn't be listening to experts. It's like, it's so funny to be like, we shouldn't,

• 55:38Peter Shamshiri?

  we should be ignoring experts, especially when it comes to medicine. It's like, what, what, is this, this is where your train of thought has led you? And maybe more on the nose. Couple of years ago, cases came up to the Supreme Court about COVID restrictions in the height of COVID, right? If you remember, there was a case about like gathering restrictions in New York during early COVID. And it's interesting that the Supreme Court was all of a sudden feeling.

• 56:13Peter Shamshiri?

  Very doctor-y when it came to that COVID stuff. They were just Stephen Hawking the shit out of that analysis. They were like, oh, you guys are-

• 56:21Speaker 05

  House open that shit.

• 56:22Peter Shamshiri?

  You, you guys are saying that you should be doing this and not this. But by my formulation, those are equally dangerous. They, they were just making full-on fucking medical determinations in the pages of the Supreme Court reporter when it came to COVID restrictions. All of a sudden, they're like, ooh, better defer to the dumbest people on the planet, state legislators, as always, a little more transparent than I think it needs to be. Like, don't insult me like this.

• 56:48Speaker 05

  Yeah.

• 56:48Peter Shamshiri?

  You know what I mean?

• 56:49Speaker 05

  Yeah, yeah. Don't think I'm as stupid as you are.

• 56:52Michael Liroff?

  Now, astute followers of the court may have noted up top that this is 6-3. That means Justice Gorsuch joined the majority. And you might be wondering, what's that about? Didn't he write Bostock, the case protecting trans people from employment discrimination under Title VII? And just as a reminder, if you don't remember that case, that was a case written by Gorsuch where he determined that when employers discriminate against someone based on their trans identity, that that is discriminating against them based on their sex. And he breaks down sort of logically why that's so.

• 57:34Michael Liroff?

  And there are concurrences in this case that try to differentiate by saying, well, there's different language in Title VII than there is in the equal protection law and all that. But at the end of the day, the logic is inescapable, right? If you believe that discriminating against someone based on their transgender status is discrimination based on sex, then that's going to be true in the equal protection context as well.

• 58:03Michael Liroff?

  And then in this case, he was silent. He joined the majority, but he didn't write separately. He didn't speak at oral argument at all. People were literally commenting on like, where is Justice Gorsuch? Why is he not asking any questions of anyone? And at the time, I said, and I think this still remains true, is he knew he had already lost, that this decision was, you know, the cake was already baked on where this was going and that there was nothing to be done. I find it hard to believe that the guy who wrote Bastok joined this opinion because he believes it. I just don't know how they are compatible. I think it's far more likely that what we're

• 58:46Michael Liroff?

  seeing here is someone who saw no upside in being the fourth dissenter, not changing the outcome and getting yelled at by the right wing ecosystem, right? I think this is a successful disciplining of a Supreme Court justice by the right wing. He just was like, I don't want the heat. I don't want to get yelled at. I'm not going to win anyway. Why bother with a dissent? That is my take on Gorsuch. It's also possible that his brain is so fucking fried by right wing media that he's, he has changed on the issue. I don't know. It doesn't feel like that to me, though. The silence, the silence itself at oral argument and in this case.

• 59:29Peter Shamshiri?

  Yeah, right. You would think that if that were the case, that he'd change his mind, that he would write a concurrence.

• 59:35Michael Liroff?

  He'd write to explain how he sees this as different than Bastok, right?

• 59:38Peter Shamshiri?

  Right. And again, this is, you know, Gorsuch, as much as anyone on the court, maybe outside of Kavanaugh, loves to hear himself talk, thinks very highly of his reasoning ability. I don't think that he could square this with Bastok. And so I think he was like, why bother? Why bother? I don't want to risk getting disinvited from the Eyes Wide Shut parties. Let's just, I'll just sit tight.

• 1:00:03Speaker 05

  I need those. I need those so bad, man.

• 1:00:07Speaker 05

  It's the only thing that gives me going the eyes wide shut parties. Don't take the eyes wide shut parties away from me, please.

• 1:00:14Peter Shamshiri?

  Whether or not they can give trans care to minors, that doesn't matter. I just want to do the ritual sacrifices, guys, please.

• 1:00:24Michael Liroff?

  The other person where I think there's something interesting going on here that's worth getting into in detail is with Robertson with the majority. And I'm going to start by talking about something I saw on social media that I think sort of misread the opinion. At what point Roberts says like, this doesn't essentially ban all care for gender dysphoria, you can still do talk therapy. And people interpreted that as endorsing conversion therapy. And I don't think that's correct. I think Roberts is more in this case saying, look, it's kind of like any other disease, even if you assume it's a disease and that it's a tough one to go through. People who have cancer, go see a therapist and talk about

• 1:01:09Michael Liroff?

  it and come to terms with their cancer, or people who lost a leg, get talk therapy. People who are depressed, they get talk.

• 1:01:15Peter Shamshiri?

  And there are, there are productive forms of talk therapy for people experiencing gender dysphoria.

• 1:01:19Michael Liroff?

  Right. And so you might be able to, you can imagine a regime that is something like, all right, you're 14, you have gender dysphoria, you are trans, and you see a therapist for four years to help with the dysphoria, the discomfort as your body changes. And then when you turn 18 and you're no longer a minor and the law no longer affects you, you can go transition. Right? That's sort of a regime that Roberts, I think, is putting this stamp of approval on.

• 1:01:51Peter Shamshiri?

  Right.

• 1:01:51Michael Liroff?

  And I think what's happening here is this is just policymaking. This is politicking. Because, look, the activists who started with, oh, we just don't want, you know, boys competing in girls' sports, and now we're trying to ban all gender-affirming care for kids under 18, they're not going to stop there. Either, right? Like, we've already seen some talk about changing it to 25, or even banning gender-affirming care altogether in some states. It's in the works. And so this compromise, I think, is a compromise informed by what, you know,

• 1:02:34Michael Liroff?

  polling and reasonable pundits and all this stupid bullshit discourse has determined is the reasonable position. But it's not one that the right wing is going to be satisfied with. And the logic that is so terrible is working backwards from trying to achieve that compromise. And, and that's it. Like, that's, that's all he's trying to do here. That's not good. It's not, I'm not like, I don't want to praise him or give him the benefit of the doubt. They're just trying to give a win to their side on an issue where they think it polls well. They think it's politically advantageous. If they thought it were as fucking toxic, they would go the other way.

• 1:03:18Speaker 05

  Yeah.

• 1:03:19Peter Shamshiri?

  I think it's worth noting that there are no guardrails in this opinion that would protect adult transition, right? The logic of this opinion is, hey, this isn't sex discrimination. This isn't discrimination against trans people, right? So what if a state tries to ban all trans healthcare? All transition care for all ages? There's nothing that the court says here that makes me think that that's unconstitutional, right?

• 1:03:47Michael Liroff?

  Right.

• 1:03:47Peter Shamshiri?

  I think that in John Roberts's mind, like you're getting at here, Michael, this is like a moderated compromise position where we're only banning trans healthcare for minors, right? Maybe that polls well, right? I've, I've reached a compromise. But this is sort of where, like, the politically savvy compromise guy, John Roberts, runs up against 2025 American fascism. Because the right wing is not interested in compromise at all. And I guarantee you that lawyers on the right notice what I just mentioned. That there's really nothing here that limits this to care for minors.

• 1:04:30Peter Shamshiri?

  And so you feel like you get this like, you know, 2014, 2015 political operator, John Roberts, trying to hash out a moderate position, but in reality, taking off all the guardrails and creating an avenue for the right to go even further here.

• 1:04:50Speaker 05

  Yeah.

• 1:04:51Michael Liroff?

  Right. I was thinking about this. It's interesting. He's fucking batshit, but I think Thomas's opinion of all of them is the one that has the most meat on it for going a different way with adults, because he spends a lot of time talking about how he doesn't think minors can give informed consent.

• 1:05:07Peter Shamshiri?

  Yeah, but his actual conclusion is just state legislators should be able to do whatever they want. Like, that's the point.

• 1:05:13Michael Liroff?

  Yeah, oh, for sure. No, I agree. I'm not saying.

• 1:05:15Peter Shamshiri?

  Right, right, right. No.

• 1:05:16Michael Liroff?

  For adults. But I'm just saying that like, in terms of like, intellectual meat for, for an argument, it's somehow fucking cooked by Newsmax Clarence Thomas, who comes out here, which just goes to show like, how fucking stupid John Roberts is, how badly he's misread the politics of the moment and badly misunderstood what's going on here. And I think to your point about like, misunderstanding the left on this too, there's a passage I wanted to read from Samantha Hancock's Lee, who writes for Liberal Recurrence, who's a transgender thinker, writer, academic, I believe. And she's writing about this, about,

• 1:05:57Michael Liroff?

  you know, adolescence as a trans person. And she says, puberty in particular is a time when endogenous hormones will create marked and in many ways irreversible changes in your body. To know that your body is being warped day by day by these chemicals, to know that you're becoming day by day less yourself is a horrific experience. Perhaps if you're cis, you cannot relate. Imagine if a disease led your daughter's ovaries to cease producing estrogen and begin producing large quantities of testosterone. Imagine if, week after week, she began developing typically male features, like a man boiling up from under her skin. Imagine if the cure for this were cheap and safe and well-known and denied to her by the state.

• 1:06:43Michael Liroff?

  Yeah, people are not going to be happy with this compromise. Like activists aren't going to be happy with this compromise. Religious freaks are not going to be happy with this compromise. No, the only people who are happy with this compromise are like people who don't know trans people, don't interact with them at all, live in some suburb and are like, yeah, I don't know, it's not right. Like, that's it.

• 1:07:06Peter Shamshiri?

  Right, like, right, people who are so fucking New York Times pilled. And they're like, well theoretically, people should be able to be who they want to be and do what they want to do, but, ooh, minors and this, this stuff's all tricky. It's just a little too tricky. It seems really tricky. Those are the people that would be satisfied by this status quo. I think there's something here that like, about the inadequacy of the law in these moments, because the idea that like, the fundamental question here is about whether or not this is sex discrimination.

• 1:07:39Speaker 05

  Yeah.

• 1:07:39Peter Shamshiri?

  Very divorced from the actual question, which is like, this is about bodily autonomy, right? The reason that the challenge comes from a sex discrimination angle is because the jurisprudence about bodily autonomy has been carved up. It's been fucking decimated. And so that is what creates this bizarre state of affairs where there is in fact, no constitutional barrier between states and saying, we're going to ban trans care for everyone.

• 1:08:09Michael Liroff?

  Right.

• 1:08:10Peter Shamshiri?

  John Roberts might say, ooh, I don't really like that, but how's he going to strike it down? He's hollowed out the elements of the 14th amendment that would allow that law to be struck down and forced us to talk about this purely in this like sex discrimination framework that's completely ancillary from the ability of people in this country to live the lives that they want to lead.

• 1:08:38Michael Liroff?

  The one thing we have going for us, though, is that if he does decide that's too far, he's a low level intellect who would have no problem just inventing a new test.

• 1:08:47Peter Shamshiri?

  Fair enough.

• 1:08:48Michael Liroff?

  Like, like, whatever.

• 1:08:49Peter Shamshiri?

  Our intellectually dishonest king, John Roberts, please save us with some bullshit reasoning.

• 1:08:54Michael Liroff?

  Yeah, exactly.

• 1:08:55Peter Shamshiri?

  When the states try to.

• 1:08:56Speaker 05

  Major questions, too.

• 1:08:58Peter Shamshiri?

  Yeah, yeah.

• 1:08:59Speaker 05

  Yeah.

• 1:09:00Peter Shamshiri?

  Absolutely.

• 1:09:04Peter Shamshiri?

  All right, folks. Next week, Trump v. Casa, the birthright citizenship case that just dropped. We are overdue for a Patreon episode, but because the term has just ended and a bunch of awful cases have just dropped, we're gonna, we're gonna keep doing cases and our premium subscribers will get access to a couple of Zoom events we're gonna be doing in the next few weeks where we talk about the end of the term. Subscribe to our Patreon, patreon.com/54pod, all spelled out, to get access to those events, our premium episodes, our Slack, all sorts of shit. And by the way, we've gotten some requests recently for transcripts. We have them at our website, 54pod.com, right there on the

• 1:09:48Peter Shamshiri?

  front page if you need them. We'll see you next week.

• 1:09:52Michael Liroff?

  Bye. Bye, everybody.

• 1:10:05Michael Liroff?

  Five to Four is presented by Prolog Projects. This episode was produced by Dustin DeSoto. Leon Mayfok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chip's 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, discounts on merch, access to our Slack community, and more, join at patreon.com/54pod.