HOSTS

PETER SHAMSHIRI

MICHAEL LIROFF

RHIANNON HAMAM

Leon Neyfakh: Hey everyone, this is Leon from Prologue Projects. On this subscriber-only episode of 5-4, Peter, Rhiannon and Michael are talking all about trans rights, and how the Supreme Court could decide the future of gender-affirming care. Many states have passed anti-trans laws in recent years, and as you'll hear, the court has agreed to take up a case concerning one of them that could have far-reaching implications. Meanwhile, former President Trump has said that if he's elected again, he would make it a priority to implement an anti-trans agenda.

[ARCHIVE CLIP, Donald Trump: The left wing gender insanity being pushed on our children is an act of child abuse. On day one, I will revoke Joe Biden's cruel policies on so-called gender-affirming care.]

Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have steered our country toward disaster like Kamala Harris steering a hurricane toward red counties.

Michael Liroff: [laughs]

Peter: I'm Peter. I'm here with Rhiannon.

Rhiannon Hamam: They control the weather.

Peter: That's right. And Michael.

Michael: Yeah. Wouldn't it be Doug Emhoff, though, who's steering it? [laughs]

Peter: I don't know who's doing it. I don't know who's doing it.

Michael: He's the—he's the closest Jew to her. So that would be ...

Peter: That's true. I guess—I guess that's right.

Rhiannon: Wait, "they control the weather" is about Jewish people?

Peter: Well, it's not—it's not that it's about Jews explicitly, it's that ...

Michael: It's definitely about Jews.

Peter: No matter what right-wing conspiracy pops up, it's always sort of about the Jews. You know what I mean? Like, the Jews control the weather is like an existing conspiracy. So ...

Michael: Right.

Rhiannon: Oh my God!

Michael: So when they say "they control the weather," that is at least ...

Rhiannon: It's like the implied thing. Yeah. Or, like, it's what they've said before. Yes.

Peter: Yeah, it builds on that conspiracy. There's a foundation of antisemitism, and we're gonna—we're gonna vote them out. That's their solution to the Democrats control the weather, and we're gonna use elections, the electoral process to root them out.

Michael: [laughs]

Peter: All right, this episode is about trans rights. It's another Decision 2024 episode. We wanted to do episodes about issues that are relevant to this election. We did one on citizenship, and now we're doing trans rights. We did an episode about trans rights in the summer of 2023 with Erin Reed, a journalist who monitors anti-trans legislation and cases. And since then, the politics of being trans in America have only gotten more salient and more fraught. We were gonna have Erin on again, but it was my job to email her.

Rhiannon: And that's when the ADHD really becomes a problem on this podcast.

Peter: If I'm being honest, I just let this one drop. But I did rely on her work for much of the episode's content. So, you know, shout out to Erin.

Rhiannon: Yes. Thank you, Erin. Amazing work over there on her Substack. Yeah.

Michael: Yes. Thank you, Erin.

Peter: We'll get you next time. So in 2023, you were seeing a wave of anti-trans bills in various states, and you were also seeing legal challenges by LGBTQ advocates and other groups generally arguing that these laws were unconstitutional violations of equal protection principles. And there was an initial string of successes, but that has quickly given way to even more aggressive anti-trans legislation and a string of wins for conservatives in court, as well as an anti-trans law finally being brought up to the Supreme Court.

Rhiannon: Yeah.

Michael: Mm-hmm.

Peter: So we wanted to give a lay of the land here, and then dig into that Supreme Court case.

Rhiannon: Yeah. You know, a couple of episodes—episode before last, we had our Supreme Court term preview for this year's term, and we talked about how the Supreme Court is taking up a lot of cases where they're going to be deciding basically the victor in the culture wars. And I think we're gonna talk about, like, what trans people sort of symbolically have been built to mean to the right, and how appalling and like, you know, truly kind of like unacceptable conservatives are treating trans people and the quote-unquote "trans issue." But yeah, I think this is one example in particular of the Supreme Court case that we're going to talk about in a little bit more detail. This is an example of that culture war bullshit.

Peter: So in our episode last year, Erin gave a great breakdown of the types of anti-trans laws that you're seeing passed at the state level across the country. As a quick summary, you have bathroom bans which mandate that you use the bathroom consistent with your assigned sex at birth, and which really function to facilitate the policing and harassment of anyone who is gender nonconforming in public spaces.

Michael: Right.

Peter: You have laws that define sex as binary, laws that restrict the ability of minors to socially or medically transition, limitations on changes that can be made to sex designations on official documents like birth certificates and driver's licenses. And you also have laws that end legal recognition for trans people entirely. We have seen this ratchet up in the past few years, and in 2023, it really started hitting the courts in high volume. So we wanted to talk about some of the emblematic court cases, and then of course, hit on the one that is going to be heard by the Supreme Court this year in a little more detail.

Michael: Yeah. And so let's start with some of the action that's happening at the appellate level right now. So recently, the Biden administration passed a rule interpreting Title IX. Title IX is the legislation that prohibits gender discrimination at educational institutions that receive federal funding—sex and gender discrimination. And so this is—you probably have heard of this, it often comes up in the case of, like, funding for women's sports or, you know, proper investigations into sexual violence and things like that. That's where Title IX gets heard of a lot in the news.

Michael: And the Biden administration, basically consistent with some other stuff that had been done in the past in the employment context, interpreted this, passed a rule interpreting this prohibition on discrimination to include trans people, to say that, you know, gender and sex discrimination includes discriminating people for being trans. That rule has now been blocked by two appellate circuits, the 6th Circuit and the 5th Circuit. The opinions are kind of shit. They're both, I believe, 2-1 with Republican appointees in the majority and Dem appointees in dissent, is my recollection.

Peter: Yeah. I'll be reading my opinion from the bench. There are boys and then there are girls.

Rhiannon: That's basically it, folks. Like, yeah.

Michael: They're not thorough. They don't get too much into it. They say stuff like, "Well, look. Yeah, the Supreme Court in Bostock—" which is a case we covered, which was a big win for trans rights— "said that this sort of discrimination does include trans people in the employment context. But that's employment context. That's different. That's totally different. How is it different? Don't worry about it. You know, don't—don't bother your little head about that. We don't need to discuss that. It just—it is."

Michael: The district court case in one of them cited extensively to the dissent in Bostock, Alito's dissent in Bostock, which I think is a good indication of where actually this is originating from. It's originating from displeasure at how the Supreme Court ruled a few years ago, and a belief that the politics of trans issues has changed enough, and the composition of the Supreme Court has changed enough that maybe they can overturn Bostock. Maybe the guy who was writing that dissent, Sam Alito, gets to be writing a majority this time because Ruth Bader Ginsburg is gone, and maybe Gorsuch or Roberts, who both joined the majority in Bostock get cold feet and decide they're done with the trans shit. That's generally what's going on.

Rhiannon: Yeah. Another thing to keep an eye on kind of percolating up through the appellate courts right now is a case coming up in the 10th Circuit that's called Kansas v. Harper. Now this has to do with the ability of trans people in Kansas to change their gender marker on government identity documents—specifically the driver's license in this case. Now laws like the state law at issue in this Kansas case, which I'll talk about in just a second, are coming up, getting passed all over the country. Texas, obviously, where I live, actually didn't pass a law about this, but DPS, the Department of Public Safety, which administers driver's licenses in this state, just came out with a policy. No notice, no public comment, nothing. Just came out with a policy that said that DPS will not accept a court order ordering that somebody's gender marker be changed on identity documents. And so DPS is just not changing identity markers on driver's licenses right now in Texas.

Michael: Open revolt. It's very funny that, like, the liberals, like, talk about, like, what to do about the Supreme Court. Should we pack it? Should we add Justices? Should we add term limits? Ethics reform? And then some people are like, "We should just ignore them. We should just not do what they say." And people get very upset. They're like, that's the breakdown of the rule of law.

Peter: Meanwhile, conservatives are like, "Is this court order too gay for me to obey it?"

Rhiannon: Right! Yes!

Michael: All the fucking time. All the fucking time!

Rhiannon: Yeah, the Department of Public Safety in Texas is like, "We're not honoring court orders."

Michael: Yes. The state. Yeah, they're, "Fuck you."

Rhiannon: Yeah.

Michael: They do it all the time. Conservatives do this shit all the time.

Rhiannon: So yeah, let's talk about Kansas, and what the fuck is going on there. So last year, the state of Kansas, they did pass a law—which Texas has not done. Not to say—not that I would put it past Texas, but Kansas enacted a law under what they called a quote-unquote, "Women's Bill of Rights."

Michael: Mmm.

Rhiannon: Please just run me over with a trash truck.

Michael: Okay.

Rhiannon: In that "Women's Bill of Rights," quote-unquote, they passed a law that tried to basically, like, define transgender out of existence. The law restricted the definition of "woman" to "the biological function of producing ova." Like, your ovaries make eggs and send them down the fallopian tubes. And that's what a woman is. And so, like, you know, taking a step back, this—obviously, it doesn't just negate and, like, erase the experiences and lives of trans women, this also excludes vast categories of cis women who are not trans from womanhood. Women who are postmenopausal, women who, you know, for some reason or another might have reproductive challenges. Their ovaries do not produce ova and send them down the fallopian tubes. Like, this is ridiculous. This is a ridiculous definition of "woman."

Michael: Had their tubes tied.

Rhiannon: Yeah.

Michael: Are pre pubescent. [laughs]

Peter: This is why, like, you know, a few years ago, conservatives were like, "Well, Democrats don't even know what a woman is." And that was like, the whole meme is like, "They can't even define it."

Rhiannon: Yeah.

Peter: And then you ask them, and the conservative line ends up being very absurd because it's actually kind of hard to define because you can't do it by reproductive function and still be accurate, because not every person who's assigned female at birth has the same reproductive function, et cetera, et cetera. So if you, like, ask J.K. Rowling or whatever, some, like, freak like that what a woman is, they are like, "It is the large gamete-producing segment of our species." And you're just like, "What the fuck are you talking about?" Like, that's ...

Rhiannon: They're like "Julia Roberts." Like, that's—you know, like ...

Peter: This is what you are, like, predicating your culture war upon? The large gamete production of some members of our species? That—it's just insane. And they sort of like—they imagine that they are speaking with, like, moral but also scientific clarity, but at the end of the day, it's actually just nonsense.

Rhiannon: Oh, yeah. No, this is anti intellectual, this is anti science. This is—yeah, this is fucking made-up bullshit. So back to Kansas. That law gets passed by the state ledge. And then the AG in Kansas, Kris Kobach, starts to direct state agencies to enact that policy. So for example, the Kansas Department of Health and Environment, which issues birth certificates, they changed their policy so that trans people in Kansas can no longer update their gender marker on their birth certificates. But meanwhile, the department that administers driver's licenses in Kansas, which is the Department of Revenue, they did not change their policy. They refused to enact this law to ban trans people from being able to change their gender marker on driver's licenses.

Rhiannon: The AG, Kris Kobach, turned around and sued the Department of Revenue. And so we have this case going up in the 10th Circuit. Now really sadly, what has happened so far on this case is that a few days after this case was filed, the judge issued a temporary order that does ban trans Kansans from changing their gender marker on their license while the case is pending, like, while the case goes up through the appellate courts, until there's, you know, more of a final ruling. And so yeah, it's a quote-unquote "temporary order" until there's, like, a final decision. But we know that cases can take many months. They can take years. And in the meantime, trans people in Kansas are stuck under this order, which is obviously an attack on their safety, their privacy, their bodily autonomy. And so currently, trans people in Kansas cannot change their gender marker on birth certificates or their driver's licenses.

Peter: So another case worth discussing is out of Florida. Florida under Ron DeSantis is probably the highest-risk state in the country for trans people, and maybe for LGBTQ people generally. Erin Reed maps out states by risk, and Florida is the only one she has labeled "Do not travel." Part of the reason for that is that they are the only state with a ban on gender-affirming care for adults, not just minors. It's very popular now, very trendy in conservative states to pass bans on gender-affirming care for minors. Florida has gone a step farther and said adults, too.

Peter: You know, sort of taking the mask off, right? Because there's this, like, mainstream version of the conservative argument that's just like, "Well, kids shouldn't be able to decide and take definitive steps toward transitioning, right? The decision's too big. We can't trust kids with that." Florida goes a step further and basically admits what the whole thing is actually about, right? They're like, "Well, trans people aren't real. Like, we're not going to allow people to transition because we don't believe trans people are real." Which is the conservative position, right? This is sort of the only state that's being honest about what they're hoping to achieve with their anti-trans agenda.

Peter: But you don't get points for honesty when you are a huge fucking piece of shit. And Ron DeSantis surely is one. This was challenged in court, right? And a few months back, a federal district court held that the law was unconstitutional. The court issued a lengthy, thorough decision. It included an entire section titled "Gender Identity is Real," where the judge basically explained the concept of gender identity and how it is grounded in actual science. The court held that these laws discriminated on the basis of sex, and were based in significant part on animus towards trans people and were unconstitutional. But a panel of the 11th Circuit Court of Appeals, led by two Trump appointees, overturned that decision, allowing the law to go into effect. They were very dismissive of the idea that the legislature was motivated by animus towards trans people, and basically said, like, "No, we are good here." Right? This is part of a long trend in discrimination law where conservatives have tried to remove the animus calculus from this. And what I mean by that is that in many contexts, discrimination laws will often try to figure out whether the law in question not just discriminates in the more literal technical sense, but is motivated by a desire to harm the group in question, right? Those can be different things. Not every law that discriminates is motivated by animus.

Michael: A law that says you get Medicare once you turn 65 discriminates between people who are 65 and older and people who are younger. That's—like, that's discriminating in the legal sense, but that's not motivated by animus for people under 65. It's got to do with, you know, your ability to engage in the workforce and blah, blah, blah, blah, blah.

Peter: Right. So it's not uncommon that in discrimination cases, the court will analyze whether animus is driving the law in question.

Rhiannon: Yeah.

Peter: This is very bad for conservatives, because every law they've ever passed is driven by animus for one group or another.

Michael: That is their whole thing.

Peter: Their whole thing is just hating various groups of people and loving themselves and no one else.

Michael: Especially under Trump. Especially under Trump. That's his whole pitch! His whole pitch is, "The people you hate, we're gonna make them miserable." Like, that's it. Like that's their entire project these days.

Peter: Right. So this legal analysis is a huge bummer for conservatives, and so they solve that primarily by ignoring it, right? Or being like, "Who knows what motivates any particular legislator?" Right?

Michael: Right.

Peter: So this is a temporary situation in the 11th Circuit. The case will continue, but the law has been allowed to go into effect. And the 11th Circuit is one of the more conservative circuits in the country, so we're basically just waiting on the Supreme Court in Skrmetti, the case that we are about to discuss, which will discuss a very similar law in Tennessee, but one that applies, like most of the laws around the country, only to gender-affirming care for minors.

Rhiannon: Yeah. Turning to that case, which is United States v. Skrmetti. This is one that we did preview in that episode on the term preview for the Supreme Court this year. But just getting into a little bit more detail, and a little bit more detail too, on the government's argument here, on the Democratic administration's argument.

Rhiannon: So the quick rundown is that Tennessee passed Senate Bill 1 this year, which is a ban on gender-affirming care for minors. And the question at the Supreme Court is whether SB1, which prohibits all medical treatments intended to allow a minor to identify with or live as a purported identity inconsistent with the minor's sex, or to treat a purported discomfort or distress from a discordance between the minor's sex and asserted identity, whether that law violates the equal protection clause of the 14th Amendment. So like I said in that court term preview episode, you know, this law obviously, like, identifying, you know, children as having purported gender identities. This is a direct attack on what conservatives would like to brand as, like, dangerous mental illness. So a little bit of background, though. In the past three years, 22 states have enacted laws that categorically ban transgender teens, transgender minors, from receiving, you know, what is evidence-based medical care to treat gender dysphoria. And at the same time, those states have enacted those laws targeting trans teens, gender-nonconforming teens, but they don't impose restrictions when the same treatments, the same kinds of medications, for example, are provided to a child for any other purpose, for any other medical reason.

Peter: So yeah, just to give an example. Trans teens will often be prescribed puberty blockers, which prevent the body from going through puberty, right? Which allows them time to decide whether or not they want to continue with a transition, take further steps, et cetera. But puberty blockers are also prescribed for what's called precocious puberty, early puberty.

Rhiannon: Yeah.

Peter: This is something that can happen to very young children. They're prescribed puberty blockers. So what these laws do is basically say, "Yeah, you can use these drugs to prevent precocious puberty, but you can't if you're trying to transition." So same drug, different treatment, right? This is the sort of heart of the argument that this is discrimination.

Rhiannon: Yeah. Yeah.

Michael: Right. But that's not animus, right?

Rhiannon: Right.

Peter: No, of course not. It's actually love. It's actually love for women.

Rhiannon: This is the Women's Bill of Rights.

Michael: Animus is from the Latin anima, which just means mind or spirit. And so aren't all laws from the mind and spirit?

Peter: Yeah. Go off, go off, baby. That one's—that one's gonna make its way into the concurrence, for sure.

Rhiannon: And that exact difference, the way the law treats the purpose for getting this kind of medical treatment and this gender-affirming care, the way the law treats that differently based on who is seeking that medical treatment and for what reason, that is the crux of this equal protection argument. So legally, constitutionally, let's just talk about the 14th Amendment and the equal protection clause a little bit. Being trans is not a, quote-unquote, "protected class" right now under the Constitution. Now this case is not seeking to establish that being trans would be a protected class under the 14th Amendment because sex is a protected class. The equal protection clause protects against legal discrimination based on sex.

Rhiannon: And the argument here is that because this law targets kids who are seeking gender-affirming care based on, connected to what their sex assigned at birth is, and the reason they're seeking that medication is related to their sex assigned at birth, the law then, the argument goes, the law creates a sex-based classification, which is a problem under the 14th Amendment. It is in the legal sense sex-based discrimination because the law restricts care only when it would, you know, induce—the government says, only when it would induce physiological effects inconsistent with an individual's sex assigned at birth. And so because the law doesn't restrict the ability of cis minors to get these kinds of medications if they're needed for another medical reason, you know, what the law bans is entwined with the sex, is entwined with a child's sex assigned at birth. This isn't a sex-neutral law. SB1, right? Like, what the law prohibits, can't be stated without reference to sex. So this really does bring, like, sex assigned at birth as a central question. And there is discrimination tied to a person, a child's sex assigned at birth in this case. And so that's the argument being made here.

Rhiannon: We've talked about Bostock v. Clayton County a couple of times, and want to say in the Biden administration's brief which argues that SB1 in Tennessee is unconstitutional under the 14th Amendment, they reference Bostock, and they say that, you know, under court precedent right now, when a law or policy, quote "Penalizes a person identified as male at birth for traits or actions that it tolerates in a person identified as female at birth, that person's sex plays an unmistakable role in the law. That brings up the concerns of the 14th Amendment and equal protection."

Peter: There's a lot going on here in terms of options presented to the court. If you are an eternal optimist, you might say, "Okay, Neil Gorsuch wrote the majority in Bostock v. County. Maybe he's a little woke about this shit.

Michael: Mm-hmm.

Peter: John Roberts joined him. Maybe he's a little woke about this too, right?

Michael: Or at least will feel externally pressured not to switch sides on this issue so quickly after.

Peter: Right. Right.

Michael: Right? So soon after he was in the majority on Bostock.

Peter: Now the other side of this is that when Bostock came down, Ruth Bader Ginsburg was alive. She has been replaced with Amy Coney Barrett. So even if our woke saviors Neil Gorsuch and John Roberts hold strong and are like, "No, we are going to stand where we were roughly in Bostock and say that this is a violation of equal protection," that's only five-four.

Michael: Yeah.

Peter: Which is a win.

Rhiannon: Yeah.

Peter: But what I'm saying is you gotta hold onto both of those guys.

Michael: Yes.

Peter: And the landscape politically has changed drastically. When Bostock came down, that wasn't really viewed as a case about trans rights. And trans rights weren't like an A1 issue. That was about gay people, whether gay people enjoyed discrimination protection in the workplace under Title VII. It impacted trans people, but that wasn't at the front of Neil Gorsuch's mind when he was writing that opinion, right? So now we're talking about trans rights being at the forefront of the issue, and a political landscape wherein the right has gotten increasingly hostile to trans rights over the span of several years, to the point where I think it's safe to say that it's the number two issue in this campaign for Donald Trump, right? One, ethnic cleansing.

Michael: Yes.

Peter: Two, domestic cleansing of the impure gender folks, right?

Michael: Gender nonconforming. Yeah.

Peter: The idea that gay rights went too far, spiraled out of control, and that now libs have gone crazy with this gender nonsense, and why can't you all just be normal? Right?

Michael: Yeah.

Peter: The principle guiding this is them looking at gender-nonconforming people and just being like, "Oh, that's fucking gross." That's it. It is purely driven by hate. And it is again the number two priority of the Trump administration. And I think it's hard—it's hard for me to feel optimistic about that when this issue is so salient for the Republican Party.

Michael: Yeah. You know, I've been thinking about this, and it's like you get into—like, when you're trying to figure out how this will go, you can get really deep into the weeds, right? Like, you can be like, "Well, I remember when John Roberts in Whole Woman's Health and June Medical—" those were two abortion cases that were basically an identical issue. And Roberts was in dissent on one, but the composition of the court changed and Republicans brought it again, essentially being like, "Oh, we've got a more conservative court now. Now we can win." And Roberts switched sides to join, you know, the pro abortion side, being like, essentially like, "Look, we can't just, a year after we decide this, two years after we decide this, go the other way just because Kennedy was replaced with Kavanaugh.

Peter: It looks bad.

Michael: It looks bad. And so you could be like, "Maybe he won't want to do that." You were hoping a guy who was in dissent on gay marriage, right, on Obergefell, is going to be concerned about the optics of abandoning Bostock just a few years after he joined that majority. That's what you're pinning your entire hopes on. Or Amy Coney Barrett being a big trans rights believer.

Rhiannon: Yeah. With no evidence of that. Right.

Michael: Yeah, exactly. I'm not optimistic about either of those things, especially when we see how Roberts has behaved in other contexts recently, right? Like, he has been fucking balls to the wall on Trump stuff. So, like—and this is very much a Trump thing right now.

Peter: Yeah. I think that's the bottom line is when something is such a high priority for the Republican Party ...

Michael: Yeah.

Peter: ... it's hard to imagine this Supreme Court standing in the way.

Michael: Yeah. I hope I'm wrong.

Peter: That's how I sort of feel.

Michael: But I'm not optimistic.

Peter: Yeah. It's one of those things that we've always said, trying to predict these cases, sort of a fool's errand, right?

Michael: Mm-hmm.

Peter: The intersection of politics and ideology. Wait a few months and we'll see. I do want to say more broadly, what's so bizarre about the attack on trans rights in this country is the scope and scale of that attack relative to the number of actual trans people.

Michael: Oh, yeah.

Peter: Trans people are a very small minority in this country, yet they are one of the primary focuses of the Republican Party right now. We've seen that taken to, like, absurd extremes in certain places. Like in Utah, there was a law passed against transgender girls participating in public school sports that, on inspection, appeared to apply to only one child in the state, right? Sort of the ultimate absurdity. A law passed being like, "That kid can't play sports."

Peter: I feel like this phenomenon needs to be explained, and I think it reflects two things. One, the complete detachment from reality of the Republican base, right? They live in a world where they don't experience reality as much as they absorb a narrative about it through media. And so to them, trans people are omnipresent because trans people are shoved into their field of vision by Fox News and Libs of TikTok, or whatever other psychotic social media accounts they absorb, right?

Peter: And the second thing happening is that to the right, to many people on the right at least, trans people are symbolic, right? They represent an ideology that rejects long-held norms about sexuality and gender, which is how we know that this will not end with trans people, right? That this will go beyond them and reach gay people, reach anyone who's gender nonconforming. And they have leveraged trans people because they are such a small minority. Because part of the reason that the gay rights movement was so effective in this country, where we went from 20 years ago, gay marriage being fairly unpopular to 10 years ago, a Supreme Court win and overwhelming support across the country, that happened because nearly 10 percent of the population is gay. So as soon as people started coming out, everyone realized, "Oh, I know someone who's gay." And that helped bolster the cause. With trans people, you don't have that, and it's very unlikely that you will have that, at least at any point in the near future. And I think conservatives sort of recognize that and recognized that this is a minority that they could prey on because they are so few.

Michael: Yeah, I think that's right. And I do think it's—the term they use in politics sometimes is that, like, this is the thin edge of the wedge, right? Where it's—well, we've ...

Peter: I like how you say "They use it in politics." In fact, Michael Liroff is the primary ...

Michael: I use it all the time.

Peter: Primary user of this term.

Michael: I love that term.

Peter: It is a good term. I like it.

Michael: It's very evocative. But it is—this was something where, you know, they had lost on sort of cultural acceptance of gay people, right? Like, TV shows about gay main characters, gay people being prominent in commercials and movies, coming out, having pride parades, et cetera, et cetera. They just—they lost. And they found an issue where enough people were still uncomfortable about it. Like, that they could be like, "All right. Well, this might not be your gay friend, but this is kind of gross, isn't it? Or this is kind of unfair that, you know, a boy is competing against girls." Or whatever dumb bullshit. And seized on that to begin this project of rolling back all the gains. But it won't stop with trans people. That's not the project, right? The project isn't just trans people. That's not the only reason to be very concerned about this. Like, we need to protect our trans brothers and sisters and non-binary siblings, regardless of whether it would stop with them. But it won't. And we should all be realistic about that.

Rhiannon: Yeah. Yeah, I mean, this is in line. We talked about it last week with the denaturalization, with ethnic cleansing, with the immigration horrors that are posed by a Trump administration. This is another example of making a scary enemy out of someone who is not scary or an enemy to the people, in order to fire up a political base around hate, around insular, protective, defensive politics, around keeping and reifying a hierarchy where the white, straight cis male is on top making decisions, and everybody else falls in line. This is another example of that. I mean, the point you made, Peter, about a Republican base right now that doesn't experience reality so much as, like, they absorb a contrived, scary reality that is fed to them by media.

Peter: It's a world where they are scared of trans people but not of hurricanes for some reason. Where they won't evacuate from flood zones, but they will stay at home freaking out about the existence of a trans child somewhere in this country. You don't want to sort of go on a tangent about disinformation or something because it's so widely discussed, but these are some of the dumbest people on the planet, and they are a political plurality in our nation. People who believe that Democrats control the weather are yelling at you about how you don't accept biology because you believe in the existence of trans people. This is why we have to keep sending those hurricanes.

Rhiannon: [laughs]

Peter: Keep talking shit about trans people, all right? Another hurricane. Bang. Another one next week.

Rhiannon: Pushing the hurricane button again. [laughs]

Peter: Get ready, Jacksonville. It's happening. The Gulf Coast.

Rhiannon: Yeah.

Peter: Better hunker down, motherfuckers. [laughs]

Rhiannon: Yeah. And on this—on this media point, on this stirring up of hatefulness, of discrimination, of really, really sort of violent fantasies among the hard right. We've already mentioned that this is high on the priority list for the Donald Trump campaign right now. I have seen—Michael, we've talked about it, too—during NFL football games over the past couple of weeks ...

Peter: Yes, all sports. It's all—and any major sporting event. Yeah.

Michael: Yeah. I've seen it on college football, and I've seen people tweeting about seeing it during playoff baseball as well.

Rhiannon: Sick shit.

Peter: I don't even watch baseball. I watched it for, like, 20 minutes the other day and saw this ad three times.

Rhiannon: Yeah, yeah. It's a Donald Trump campaign ad that sort of ostensibly attacks Kamala Harris's campaign for being, you know, let's say pro trans. Taking Kamala Harris quotes completely out of context with regards to gender-affirming care for people in prison. Taking that out of context to say that Kamala Harris wants to give gender-reassignment surgery or will allow gender-reassignment surgery to all criminals.

Michael: Even illegal immigrants in prison.

Rhiannon: Yes. Uh-huh.

Michael: I use the word "illegal immigrants" because that's what's in the ad. Not because ...

Rhiannon: Right, right. That's how—that's how the ad talks about people. I mean, the ad is really, really—it's revolting. I've seen two versions of it. One version literally shows, like, a sequence of photos of people who you don't even know are trans, but it's supposed to be heavily implied that these people are trans, that these people are scary, that we don't like the way they look, right? But it's just—it's photos of real human beings being sequenced at the end of this ad. And it ends with this line they think is really, really clever, which is that Kamala Harris ...

Peter: It is kind of good. I'm gonna be honest.

Rhiannon: Kamala Harris cares about they/them. Donald Trump cares about you.

Michael: Yeah. And that followed by, "I'm Donald Trump and I approve this message."

Peter: Yeah.

Michael: It's incredible. It's disgusting. It's truly disgusting.

Peter: It is filth. It does pain me to say that that line is catchy. I don't really think that this shit works because I don't think—I don't think that people outside of the Republican base are motivated by this.

Michael: I feel like that line only hits if you are, like, on 4Chan, you know? Or the equivalent, like Twitter.

Peter: Right.

Michael: Which is now the equivalent of 4Chan. [laughs]

Peter: Yeah. But I think it is important to remember that the Supreme Court is part of this political movement.

Michael: Yes.

Peter: They don't always move in lockstep. They might have different priorities, they might have different chosen paths, but they are part of that political movement. And so you can't separate these things out. You can't say, "Well, okay. But that's not John Roberts making that ad," or whatever, right? These are people who are very much active in this party. I mean, that in the sense that A) they run in social circles and intellectual circles full of Republicans; and B) that they are literally functioning to the benefit of the Republican Party. That is how they view their role, whether they say it out loud or not. So the fact that Donald Trump is running that ad is very relevant to what the Supreme Court is going to do here.

Michael: Yeah. I got an anti-trans mailer yesterday in my mailbox.

Rhiannon: Michael's in New Mexico. Yeah.

Michael: Yeah, in New Mexico. And it was paid for by the Republican Congressional Campaign Committee. So, like, you know, it's the whole party.

Rhiannon: Yeah. They're running on this. Yes.

Michael: Yeah, the whole party is running on this. It doesn't really matter whether they're taking their cues from Trump or Trump and them are taking their cues from the same pollsters or whatever. They're all doing it, right? Like, my understanding is Ted Cruz has some nasty ads. I've seen people say they've seen nasty local ads in Pennsylvania and Wisconsin. Like I said, I got an anti-trans—like a very hateful anti-trans mailer here in New Mexico. And the Trump campaign is plastering just open animus to trans people all over the national airwaves.

Peter: Before we sign off here, just as a way to absorb how far afield the sort of conservative legal movement is getting here, there's a case being brought to the Supreme Court called Ames v. Ohio Department of Social Services. This case is about a woman who works for the Ohio Department of Youth Services, and says that they discriminated against her because she's straight, that she was passed over for promotion by her gay boss for other gays. This is just a government body just run by just the flaming gays who hate the straight lady. They're like, "Your clothing is trash. Your musical taste is awful."

Michael: [laughs]

Peter: "You're not getting promoted. You don't—you're not a culture fit." That's what she's alleging here. This case was taken up by the University of Virginia Supreme Court Clinic.

Michael: Yep.

Peter: Now to give you a decent understanding here, law school clinics are essentially intended as a public interest function, right? They take up cases that they believe serve the public interest and they bring them. And so this is a case being brought by UVA students and supervisors, who we'll talk about shortly, who believe that this woman's cause is important. So while the Supreme Court is contemplating whether trans people can just be legally discriminated against across the country, some woman, some unpleasant woman ...

Rhiannon: Unpleasant straight woman.

Peter: Some woman who I assume has very little vivacity. You know what I mean? Like, so this is someone who absolutely sucks and is just like, "All the fucking gays are getting promoted." The kicker here is that the person heading up this clinic, the Supreme Court clinic, is Xiao Wang, who's like a liberal public interest guy. Back when he was at Northwestern, he invited us out to, like, talk to his clinic out there. Holds himself out as, like, a lefty. And here he is doing straight rights lawyer brain rot to an obscene degree.

Michael: Extremely disappointing.

Peter: What are you doing, dude? Retire, bro. Get a new fucking career. What are you doing?

Rhiannon: Xiao, I can only assume that you're listening because you were when we talked at Northwestern a couple years ago, a fan who had listened to the whole back catalog of 5-4, so I can only assume you're listening to this right now. This is fucking embarrassing. This is really, really fucking humiliating.

Peter: Here's some anti-straight discrimination for you, buddy. Suck my dick. Absolutely fucking blow me, bro.

Michael: [laughs]

Rhiannon: This is not something to be proud of. This is a stain on your career. And some idea of taking up this case because of some fake fucking, you know, principle around well, we just want everybody not to be discriminated against. We're gonna fight discrimination in any sense.

Peter: A principle thinner than air.

Rhiannon: Yes. And the supposed principle, right, that, like, well, this is an important sort of legal issue at this time. Like it or not, this is the kind of case that the Supreme Court is looking at, looking for. And maybe this is a good learning experience for students to be involved on this kind of case, to write on this kind of case. Also embarrassing. A stain on your career. As somebody who's listened to this podcast, you fully understand, actually, I believe, that we should be actively rejecting those principles which are whitewashed, fed to us as what we talk about on the podcast all the time—this fake neutrality, this fake, you know, sort of like objective bullshit that ...

Michael: Ignoring existing power structures, ignoring extent discrimination.

Rhiannon: Yes. What are you doing? What are you doing with your career? And for what? For what? Because now you're at UVA Law and it's a good school? Very elite school. You're the head of the Supreme Court clinic. You're teaching the future lawyers of fucking America. Fuck off. For what? To trample on gay people like this? To trample on minorities? To take up a case for a fucking straight woman who's saying that gay people were promoted over her because they're gay? What are you doing? For what? How do you sleep at night? This is bullshit. We know and you know that what you are doing is laundering hate and you are making it legal.

Peter: Dude, just go be a partner at a big law firm. Just go make a million a year.

Michael: Also, we read the brief, and the only lesson your students are learning is that you can write like shit and you have crap arguments, but if you are touching the right wing culture war buttons, you get fucking fast tracked up. So congrats. You wrote a shitty brief and got cert granted because wow, they love the hacks. And I guess you're hoping to be one or something.

Rhiannon: You may just be one.

Michael: I don't get it. I don't understand.

Peter: Yeah. And guess what? I'm calling up Kamala Harris, and she's starting a hurricane inside your lungs, bro.

Rhiannon: Hurricane button again.

Peter: You suck.

Peter: Next week we are continuing our Decision 2024 coverage, talking about reproductive rights, another set of rights that will be stripped from us if Trump wins. And one that contrary to immigration and trans rights, the Trump administration is trying not to talk about, trying to avoid, but we are going to talk about some of the Republican-led efforts to strip away reproductive rights, and what the Supreme Court has been doing about them. Follow us on social media @fivefourpod. Subscribe to our Patreon at Patreon.com/fivefourpod—all spelled out—for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.

Rhiannon: Bye.

Michael: Bye everybody.

Leon: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh and Andrew Parsons provide 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.

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