The latest episode of the podcast series “This American Life” is extraordinarily good.

Episode 857: The Museum of now

We were driving home early Saturday afternoon, and were treated to part three of this episode, which reports on a recent hearing in a Washington, D.C. courtroom, presided over by Judge Ana Reyes. The hearing was to consider a challenge to President Trump’s Executive Order banning transgender people from military service.

This executive order followed an earlier one spelling out a new government policy: “It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality.”

But challengers have lined up to state the obvious: The idea that there are only two sexes, male and female, is biologically false.

And it poses the question: Can a policy based on a scientifically false belief be upheld by the courts?

The case has been reported on previously. But the use of actors to replay the exchanges between Judge Reyes and the government attorneys captures the absurdity of the government’s position.

Actor As Ana Reyes You understand, as a matter of biology, it’s just incorrect that there are only two sexes, right?

Actor As Jason Lynch Do I understand that to be incorrect as a biological matter?

Actor As Ana Reyes Yes, it is incorrect as a biological matter. You understand that, right?

Actor As Jason Lynch
I don’t understand that to be incorrect.

Actor As Ana Reyes Well, you understand that not everyone has an XX or an XY chromosome, right?

Actor As Jason Lynch Well, honestly, no, I’m not prepared to–

Actor As Ana Reyes I mean, it’s actually kind of a really important point because this executive order is premised on an assertion that’s not biologically correct. There are anywhere near about 30 different intersex examples. So someone who does not have just an XX or XY chromosome is not just male or female, they’re intersex.

And there are over 30 potential different intersex examples. We’ve got genetic differences. We have people with XXX chromosomes. We have androgen insensitivity, XY genetically, but may have female external sex characteristics and internally have testes. There’s a 5-alpha reductase deficiency that causes changes in testosterone metabolism.

Laura Starecheski (the reporter) She was deep in this material. I hadn’t been able to tell up until this point if Reyes was leaning in a particular direction with this case. Now, I could see the things she loves– science, rational thought, facts. Later, in this and other hearings, there would be Star Trek references, Beyoncé, side speech on Newtonian physics. For now, homework for the lawyers.

Actor As Ana Reyes I’m happy to have you guys brief this more if you want, but I’m telling you right now that there are people who are neither male nor female. And so the premise of the executive order is just incorrect. And my question to you is– and if you want to talk about this tomorrow, that’s fine. But my question to you is, what do I do with the fact that the entire order is premised on an incorrect biological assessment?

What’s striking is that the government did not provide any evidence of any kind–no research, no testimony a by military officer or anyone else, no sworn declaration, nothing–to support the idea that transgender personnel are somehow incapable of performing their assigned jobs in the military. Even when given additional time to come up with evidence to support the position spelled out in the Executive Order, the government was unable to respond.

This is reminiscent of the spate of court cases filed by Republicans alleging the 2020 presidential election had been stolen. Cases filed in a number of state courts, and in different federal courts. The results were the same. The challenges were uniformly unsuccessful, and often found to be premised on false information. Some attorneys were sanctioned for bringing baseless claims. Rudy Giuliani was stripped of his license to practice law for pushing false claims. But this time it’s the government trying to defend policies built on false premises.

You can jump right in and listen to this segment about the case before Judge Reyes (Exhibit Three), and then go back to listen to the full episode.

And Judge Ryes issued a 79-page opinion on March 18 which is well-worth reading in its entirety.

And a transcript is also available if you prefer to read rather than listen to the program.
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