[00:00:00] Speaker 03: Jones versus Critchfield. [00:00:04] Speaker 03: So Mr. Rosen, you may proceed. [00:00:09] Speaker 01: Good morning, Your Honor. [00:00:10] Speaker 01: My name is Max Rosen and I represent the plaintiffs, Atlas Jones and Sophie Smith. [00:00:15] Speaker 01: I would like to reserve four minutes of my time for rebuttal, if I may. [00:00:18] Speaker 03: All right. [00:00:19] Speaker 03: Please watch your clock. [00:00:21] Speaker 01: Your Honors, I'm prepared to answer the questions outlined in the court's order. [00:00:25] Speaker 01: Before doing so, I would like, if I can, to take this opportunity to address the merits. [00:00:30] Speaker 01: Idaho seeks in this case to apply a categorical restroom ban based solely on reproductive capacity at birth to two transgender adult plaintiffs. [00:00:39] Speaker 01: In this as applied challenge, Idaho must demonstrate that its sweeping transgender ban is substantially related to achievement of the state's important objectives here, ensuring bodily privacy and safety. [00:00:51] Speaker 01: Because it cannot do so, we need go no further. [00:00:55] Speaker 01: No single user restroom nor case by case analysis of building logistics can cure the unconstitutional exclusion at the heart of Idaho's inflexible rule and enduring a constitutional violation is per se a reprobable harm on the merits and counsel. [00:01:12] Speaker 02: How do we know? [00:01:13] Speaker 02: that no accommodation could cure on this where we are now irreparable harm. [00:01:28] Speaker 02: I mean, [00:01:29] Speaker 02: the statute requires the state, the institution to provide a reasonable accommodation. [00:01:40] Speaker 02: We are here with regard to specific relief that your clients are seeking and why wouldn't [00:01:53] Speaker 02: How do we know that there's no reasonable accommodation that could, for example, be relevant to current irreparable harm? [00:02:03] Speaker 01: Your honor, the exclusion of the plaintiffs from the restrooms they've long used that correspond with their gender identity itself is the harm. [00:02:10] Speaker 01: It's a constitutional violation that the state must justify under heightened scrutiny. [00:02:15] Speaker 01: And under the statute, were the plaintiffs to request a reasonable accommodation, it's very clear that a reasonable accommodation, and I'm quoting, shall not include access to a restroom, changing facility, or sleeping quarters that is designated for use by members of the opposite sex while persons of the opposite sex are present or could be present. [00:02:33] Speaker 04: So go ahead, Judge Bennett, go ahead. [00:02:37] Speaker 02: So completely hypothetically. [00:02:41] Speaker 02: So again, completely hypothetically, if there were a reasonable accommodation requested and hypothetically, the reasonable accommodation was, we're gonna turn every restroom into a single user restroom. [00:03:00] Speaker 02: That also wouldn't cure the problem for irreparable harm. [00:03:05] Speaker 01: Your honor, I think, and I don't mean to fight the hypothetical, I think that would be impossible. [00:03:09] Speaker 01: There are thousands and thousands of people on campus. [00:03:11] Speaker 01: If you converted every restroom to a single-user restroom, then you would make it impossible for people to go to the bathroom, as is your- Well, restrooms where your clients typically go. [00:03:24] Speaker 01: If you were to simply convert the restrooms where the clients typically go to single-user restrooms, then I think it would very clearly create an inference. [00:03:32] Speaker 01: Take Sophie, for instance, that there's a transgender person present. [00:03:35] Speaker 01: I think there would be no way not to out her and create an inference that there's a transgender person in her building if you solely accommodated in that building by transferring all of the restrooms to single-user restrooms. [00:03:47] Speaker 04: Can we? [00:03:48] Speaker 02: Yeah, I'm sorry, Judge Christian. [00:03:49] Speaker 04: There's just a premise. [00:03:50] Speaker 04: Forgive me for interrupting, Judge Bennett. [00:03:53] Speaker 04: Do we have in this record whether these two plaintiffs have requested an accommodation? [00:03:58] Speaker 01: It's not in the record, Your Honor, but I did look at that because it was in the court's order and I can represent that neither has requested a written accommodation for the reasons I've represented. [00:04:07] Speaker 01: Their understanding is it would be futile to do so. [00:04:11] Speaker 04: Okay. [00:04:12] Speaker 04: And your further understanding is you think that it wouldn't cure the problem because in response to Judge Bennett's questions, you're saying that you think that this would be harmful and stigmatizing. [00:04:21] Speaker 04: Do we have any indication about what has happened, how the status quo has changed for these two plaintiffs since the time that this law went into effect? [00:04:32] Speaker 01: I appreciate that, Your Honor. [00:04:34] Speaker 01: Your Honor's order noted that among the 10 questions, if counsel had any reason to object, then counsel should state so. [00:04:41] Speaker 01: And we were going to do this if we get to the questions and when we get to the questions. [00:04:44] Speaker 01: But I would note as to question eight specifically, which is the question that Your Honor I think is referring to, we would object to answering that question at this juncture. [00:04:53] Speaker 01: And I can explain why it's difficult in this context at this time to talk about the question of the status quo. [00:05:00] Speaker 01: And I would just note that as the question is phrased, the question asks about the use of single occupancy restrooms at the institutions after HB 264 has taken effect and implicit in the question is that the answer for a particular transgender plaintiff could be or person excuse me could be. [00:05:16] Speaker 01: that they have not used exclusively single occupancy restrooms because they are continuing to use restrooms that HP 264 prohibits on some occasions and for particular reasons. [00:05:26] Speaker 01: So the question as phrased might require someone, if that were the case, to proffer that they have been acting in a way that could not be complying with the law. [00:05:35] Speaker 01: That creates a number of important considerations that need to be discussed, I think, before we're in a position to provide that response. [00:05:43] Speaker 04: I really appreciate that and I appreciate and you know our court granted the leave to file the declarations under seal and we're really trying to be very cautious here. [00:05:53] Speaker 04: But I'll just say, and this isn't really even a question, and I'm only one of three, but I have a real concern about not only having this argument in a way that guarantees that it is an open hearing, but also we have to contemplate writing an order or decision on the back end. [00:06:13] Speaker 04: And that would include, for example, allegations sufficient to establish standing. [00:06:18] Speaker 04: I'm only offering that because the parties both stipulated to a posture going forward for this hearing that is not workable for the court. [00:06:30] Speaker 04: And so I just want to invite you to keep that in mind as we go forward, because at some point, I really appreciate where you're trying to be very careful of your clients. [00:06:37] Speaker 04: And at some point, this becomes, I don't know if it will be tenable. [00:06:41] Speaker 03: Well, let me ask a question at this juncture. [00:06:45] Speaker 03: I mean, there are certain things, facts, [00:06:48] Speaker 03: that we need to support standing, but also to support harm and to support irreparable harm is what I'm saying. [00:06:59] Speaker 03: And would it be preferable for your clients to remand our questions and have an in-camera hearing before the district court? [00:07:11] Speaker 01: So your honor, I want to clarify, if I may, two things. [00:07:14] Speaker 01: So first, we can answer all the other questions. [00:07:16] Speaker 01: And second, our objection to Question 8 isn't a ceiling objection. [00:07:20] Speaker 01: As phrased, the question could require individuals to disclose whether they're complying with the law. [00:07:26] Speaker 03: So it's a Fifth Amendment, kind of. [00:07:28] Speaker 01: Well, I would hope that in this context, we wouldn't have to invoke the Fifth Amendment at this stage. [00:07:32] Speaker 01: But I think you'll have to take the case. [00:07:35] Speaker 02: There's no criminal liability for violating the statute, is there? [00:07:38] Speaker 01: I would hope there is not. [00:07:40] Speaker 01: Some states have attempted to use certain laws to prosecute individuals for violating sex separated restroom policies. [00:07:46] Speaker 01: And given that at this juncture, there may be a way for us to handle this going forward. [00:07:50] Speaker 01: But at the time of this hearing, I don't think we would be in a position to disclose that information because of the potential prejudice. [00:07:58] Speaker 03: So let me get this straight. [00:08:00] Speaker 03: So if I read the statute, there's no [00:08:05] Speaker 03: It doesn't seem to provide, the statute itself doesn't seem to provide for criminal penalties. [00:08:10] Speaker 03: It seems to provide for a private cause of action for somebody else who is offended by someone using the bathroom to which they were not assigned at birth. [00:08:33] Speaker 03: Can the institution be held liable under this statute as well? [00:08:39] Speaker 01: Under the statute itself, the only remedial provision is that an individual who encounters a transgender person or someone that is of the, quote, opposite sex in a restroom can then bring a suit for declaratory injunctive relief and attorney's fees against the institution. [00:08:54] Speaker 01: And without going into further detail, I would just note that in other states where prosecutors have attempted to bring criminal prosecutions based on sex separated restroom policies, they have done so using criminal trespass laws. [00:09:08] Speaker 03: Oh, OK. [00:09:10] Speaker 03: So that's saying that your, your clients may be subject to criminal prosecution, not withstanding the language of this statute. [00:09:22] Speaker 01: I would first say, I don't intend to give a substantive response to eight. [00:09:25] Speaker 01: So I want to make clear that I'm not doing that at this juncture. [00:09:27] Speaker 03: I just want to know how this statute works. [00:09:32] Speaker 01: And I would certainly hope not your honor. [00:09:34] Speaker 03: Okay. [00:09:35] Speaker 02: And there's nothing totally taking your two clients out of the mix here. [00:09:43] Speaker 02: This is a question that is a very general question, has nothing to do with your two clients. [00:09:49] Speaker 02: You know of no [00:09:51] Speaker 02: no evidence that you could proffer to us that the state or any municipality has initiated or threatened anyone with criminal prosecution for using a restroom that doesn't align with the gender they were assigned at birth. [00:10:11] Speaker 01: Thankfully, that is correct, Your Honor. [00:10:13] Speaker 01: Yes, I agree with that. [00:10:15] Speaker 04: Council, does the record tell us whether the buildings where Atlas attends classes have single user restrooms? [00:10:24] Speaker 01: Thank you, Your Honor. [00:10:24] Speaker 01: The record does not. [00:10:25] Speaker 01: I'm happy to answer that question. [00:10:27] Speaker 01: That question doesn't fall under the concern we have for question eight. [00:10:31] Speaker 01: So the answer is most of them do. [00:10:34] Speaker 01: Atlas attends classes, but Atlas generally attends classes and spends his time in a number of buildings. [00:10:40] Speaker 01: So there's the library, which he spends time in. [00:10:43] Speaker 01: In the library, there are a number of study rooms that go across the library. [00:10:46] Speaker 01: It's a large building. [00:10:48] Speaker 04: Council, I think I mean we have limited time. [00:10:50] Speaker 04: And so I just want to be helpful. [00:10:51] Speaker 04: I think the record is clear about the library, and I appreciate that. [00:10:55] Speaker 04: And I think you've answered my question about the classrooms it sounds like there's some buildings where he attends classes that don't have single user restrooms and some that do is that right. [00:11:04] Speaker 01: That is our understanding. [00:11:05] Speaker 01: That's correct. [00:11:06] Speaker 04: Yes. [00:11:06] Speaker 04: That's all I needed. [00:11:08] Speaker 04: That helps me. [00:11:09] Speaker 04: Thank you. [00:11:10] Speaker 02: Judge Wardlaw, would it be acceptable if Mr. Rosen did get to, he indicated except for question eight, he was willing to answer our questions on the record. [00:11:24] Speaker 02: Would it be acceptable with you and Judge Kristen if he were to do that now? [00:11:28] Speaker 03: It would be acceptable to me. [00:11:31] Speaker 03: Sure. [00:11:32] Speaker 03: Yes. [00:11:33] Speaker 03: And then, Mr. Rosen, we will give you extra time for rebuttal. [00:11:39] Speaker 01: That was my question, Your Honor. [00:11:40] Speaker 01: Absolutely. [00:11:40] Speaker 01: So number one, just to close the loop on it, that asks whether either plaintiff has requested a written request for reasonable accommodation. [00:11:48] Speaker 01: The answer is no. [00:11:49] Speaker 01: And we've represented why our understanding is that the answer is no. [00:11:52] Speaker 01: But factually, they have not. [00:11:55] Speaker 02: Number two asks, there's actually a second question in number one. [00:11:59] Speaker 01: Sorry, Your Honor. [00:12:02] Speaker 01: If so, have the institutions provided with an accommodation in accordance with the statute? [00:12:06] Speaker 02: No, no, no, no. [00:12:06] Speaker 02: I'm sorry, the last question. [00:12:08] Speaker 02: Have the institutions provided anyone with such an accommodation to your knowledge? [00:12:12] Speaker 01: Not to my knowledge. [00:12:14] Speaker 01: I don't know if that's the case. [00:12:16] Speaker 01: Yeah. [00:12:18] Speaker 01: Yeah. [00:12:18] Speaker 01: Question number two, do cisgender students, faculty, or others use the single occupancy restrooms at the institutions? [00:12:25] Speaker 01: I don't know if that is the case at University of Idaho, but I have no reason to doubt it. [00:12:29] Speaker 01: At BSU, we do know that is the case. [00:12:32] Speaker 01: I would flag an important consideration, which is based on the information I have, it is uncommon for a cisgender person to wait at a single user restroom. [00:12:41] Speaker 01: So when convenient, a cisgender person will use them. [00:12:44] Speaker 01: Sometimes they're convenient, they're closer than a multi-occupancy in some occasions, or they're next to a multi-occupancy and unoccupied. [00:12:51] Speaker 01: It is rare for someone to wait. [00:12:53] Speaker 01: And our understanding is it would raise suspicions were someone to wait outside of a single occupancy restroom, especially if multi-occupancy restrooms were available. [00:13:01] Speaker 01: And that has been the Percipian experience that's been relayed to me. [00:13:06] Speaker 01: The next question is based on the information provided in the declarations of Christie Jordan and Rusty Vineyard. [00:13:12] Speaker 01: Do you agree that anyone may use the single occupancy restrooms at the institutions for any reason? [00:13:17] Speaker 01: Generally, we do agree and we think that was the case before HB 264 as well. [00:13:23] Speaker 01: Question number four, how many hours do Smith and Jones spend at their institutions on the average day they come to campus? [00:13:30] Speaker 01: For Jones, the record at paragraph 12 of his declaration states five or more hours per day. [00:13:35] Speaker 01: I can further clarify that. [00:13:37] Speaker 01: That on the days where he comes to campus for classes, which are three days a week, he spends around eight hours on campus per day. [00:13:44] Speaker 01: Two other days he comes for math tutoring. [00:13:46] Speaker 01: On one of those days he spends about six hours and on the other he spends about three hours. [00:13:52] Speaker 01: For Miss Smith, some of that information is in the record at paragraph 14, but is not unredacted. [00:14:00] Speaker 01: In open court, I can say that she is on campus for long enough to need to use the restroom regularly, but can't provide more granular detail. [00:14:09] Speaker 01: Question number five is how far is the nearest single occupancy restroom from the locations where Smith and Jones spend time on campus? [00:14:17] Speaker 01: For Smith, as reflected in her declaration, there is no single occupancy restroom in the two buildings where she spends the majority of her time on campus. [00:14:26] Speaker 01: That is, as far as I read it, consistent with everything else in the record, including consistent with the Vineyard Declaration, which identifies buildings that do have single user restrooms, and consistent with the chart that we produced at A232. [00:14:41] Speaker 01: My understanding is the nearest single user restroom is approximately two buildings away, and she would have to go outside to use it. [00:14:49] Speaker 01: For Jones, some of this is not in the record. [00:14:52] Speaker 01: As to the library, it is in the record, although I will flag that as to the two restrooms that defendants have identified in the library, they're actually labeled multi-stall restrooms. [00:15:01] Speaker 01: They include multiple stalls and it is not clear to us that they are in fact single occupancy. [00:15:05] Speaker 01: They're not listed on the single occupancy website even to this day, which is presumably why Atlas did not identify them in his declaration. [00:15:12] Speaker 01: However, I can confirm he has used them since defendants identified them in their declaration. [00:15:18] Speaker 04: Hold on, forgive me on this one. [00:15:20] Speaker 04: I thought that the circumstance originally that Atlas thought there weren't any that through the course of the briefing that the university pointed out there really are two in the library where Atlas studies, but they're not on the website. [00:15:36] Speaker 04: Now I just heard you say they're actually multi-users and he's used them or are they single-use? [00:15:42] Speaker 04: I'm not sure if they're multi or single. [00:15:44] Speaker 01: Defendants just one of the questions asked just if we agree with this declaration on this point and I looked carefully at the photographs that they produced and I talked to Atlas. [00:15:51] Speaker 01: So the declaration they produced says there are two single occupancy restrooms in the first floor of the library. [00:15:57] Speaker 01: The photographs of those restrooms have signs on the outside that refer to them as multi-stall and the [00:16:02] Speaker 01: The photographs also include floor plans that indicate that there are multiple, there's a stall in multiple urinals in one and a stall in a urinal in the other. [00:16:10] Speaker 01: So we have defendants representation that they're treating them as single occupancy, which I appreciate. [00:16:15] Speaker 01: The actual sign on the door does not indicate that they are single occupancy restrooms, but I can confirm that Atlas has used them since the declaration was filed. [00:16:26] Speaker 04: All right, thank you. [00:16:28] Speaker 01: Additionally, sorry the question we're on just to come back to it is, how far is the nearest single occupancy restroom from these individuals so so for Atlas Jones, assuming these are single occupancy restrooms the two in the library, there are no others. [00:16:41] Speaker 01: The library is very large so there are study rooms across this [00:16:45] Speaker 01: large building that houses multiple academic departments. [00:16:47] Speaker 01: Depending on the study room that Atlas uses, you might be very close to those restrooms or it might be a further walk. [00:16:54] Speaker 01: I don't know the exact number of minutes. [00:16:56] Speaker 01: I think it's fairly described as a few minutes and faster if you go outside. [00:17:01] Speaker 01: So if you're on one side of the building, the multi-occupancy restrooms are much closer. [00:17:04] Speaker 01: If you are on the other side of the building, then the single occupancy restrooms are close comparably to the multi-occupancy. [00:17:11] Speaker 01: In the math building where he tutors, he tutors on the first floor. [00:17:15] Speaker 01: There's a single user restroom on the second floor. [00:17:17] Speaker 01: It's there and it's not far, although it is frequently occupied. [00:17:21] Speaker 01: He also takes classes in three buildings, the Interactive Learning Center, the Micron Center, and the Multipurpose Building. [00:17:29] Speaker 01: The Interactive Learning Center and Micron Center appear to have single-user restrooms. [00:17:33] Speaker 01: We are not aware of one in the Multipurpose Building, but I do want to flag, because I saw how that went back and forth below, I'm representing based on where we are and what we were able to do to investigate that we are not aware of one. [00:17:46] Speaker 01: Just in case, in fact, there is one somewhere that we are not aware of. [00:17:50] Speaker 04: So in one of the three buildings where he takes classes, you think, to the best of your knowledge, that there's not a single user restroom, is that right? [00:17:58] Speaker 04: Yes. [00:18:01] Speaker 04: OK, thank you. [00:18:02] Speaker 01: Apologies for interrupting, Your Honor. [00:18:04] Speaker 04: Not at all. [00:18:05] Speaker 01: Question number six is, prior to the enactment of HB 264, did Sophie Smith ever use the institution's single occupancy restrooms? [00:18:12] Speaker 01: And the answer is no. [00:18:14] Speaker 01: She used the women's restroom. [00:18:17] Speaker 01: Prior to the act of HB 264, how often did Jones use the institution's single occupancy restroom? [00:18:23] Speaker 01: And the answer consistent with his declaration at paragraph 14 is that he sometimes did so. [00:18:28] Speaker 01: That's still the case. [00:18:29] Speaker 01: I clarified further that he would do so when the restroom was unoccupied, convenient. [00:18:35] Speaker 01: He would not wait out of a concern that it would look strange if he were waiting, but also just because he wouldn't wait to use a single occupancy restroom when a multi-occupancy is available [00:18:44] Speaker 01: Partly because as the record also reflects, he's had a history of urinary tract infections and one of the ways he manages in the present is ready and quick access to restaurants. [00:18:56] Speaker 01: Question eight, we've discussed. [00:19:01] Speaker 01: Question nine is based on the information provided in Christie Jordan's declaration. [00:19:06] Speaker 01: Do you agree that there are two single occupancy restrooms in the library where Jones studies and one single occupancy in the restroom in the building where Jones tutors students? [00:19:14] Speaker 01: Has Jones attempted to use these restrooms? [00:19:16] Speaker 01: Has he ever been unable to access these restrooms or had to wait to do so? [00:19:20] Speaker 01: Starting with the library, I explained why I think there's some ambiguity in the record as to whether those are single occupancy restrooms, but assuming they are, Atlas has used them and has not had to wait. [00:19:30] Speaker 01: likely because I think people on campus don't tend to know that they're there. [00:19:35] Speaker 01: As to the math center, he's also used the single user restroom there and he has often had to wait. [00:19:43] Speaker 01: And finally, question 10 is, do the buildings where Jones attends classes have single occupancy restrooms? [00:19:50] Speaker 01: If not, how far are the nearest single occupancy restrooms? [00:19:52] Speaker 01: I think we have answered that, but if not, I can give any additional details as relevant. [00:20:00] Speaker 01: That's the court's questions. [00:20:02] Speaker 01: I understand that we've gone substantially over time. [00:20:04] Speaker 01: I'm happy to answer any other question, but I also understand if we would like me to conclude and reserve time for rebuttal. [00:20:12] Speaker 03: Have we gone over time? [00:20:14] Speaker 03: I can't see the color of the. [00:20:17] Speaker 02: Yes, it's it's three 20 over time right now. [00:20:20] Speaker 03: So why don't we hear from Mr. Hurst and then we will give you time for rebuttal. [00:20:33] Speaker 03: Okay, Mr. Hearst, you're on mute. [00:20:39] Speaker 00: Thank you, Your Honor. [00:20:40] Speaker 00: And good morning, may it please the Court. [00:20:42] Speaker 00: Alan Hearst here for Superintendent Critchfield, the other appellees. [00:20:45] Speaker 00: Good to see you all again. [00:20:46] Speaker 00: Glad I can come here and answer your questions. [00:20:49] Speaker 00: But like my friend on the other side, I'm going to start with the merits because like them, we don't think these questions ultimately matter. [00:20:56] Speaker 00: We think under Skirmety, there's no transgender status-based classification here. [00:21:00] Speaker 00: And we think that even if there is, the law passes heightened scrutiny. [00:21:04] Speaker 00: I'll start with that second point. [00:21:06] Speaker 00: The other side has made a lot of arguments about how we need to focus on specifically the plaintiffs at issue and ask whether the state can justify its law based specifically with regard to those two specific plaintiffs. [00:21:18] Speaker 00: And I think this is not a correct statement of Supreme Court precedent or this court's precedent, as Rose said, [00:21:24] Speaker 00: The state doesn't have to show under heightened scrutiny that its law can satisfy its objectives in every individual instance. [00:21:31] Speaker 00: And if people are allowed to bring as applied challenges and focus on individual people, then that's what you're doing. [00:21:36] Speaker 00: You're forcing the state to justify itself in every individual instance. [00:21:40] Speaker 00: which would be a very strict form of narrow tailoring rather than a substantial relationship test. [00:21:46] Speaker 04: Can I stop you here at the top of this? [00:21:48] Speaker 04: I'm distracted noticing that the state's interest here and that the title of this is an act relating to protecting the privacy of women. [00:21:57] Speaker 04: Chapter 98 is protecting the privacy of women. [00:21:59] Speaker 04: The statement of purpose is this legislation will continue Idaho's efforts to protect the rights of girls and women in their private spaces. [00:22:06] Speaker 04: So given that interest, I have concerns and questions about how 264 really furthers this interest, again, as we're talking just as to these two individuals. [00:22:18] Speaker 04: And for starters, I don't know why we care or are considering, frankly, whether these restrooms, whether the men's restrooms have urinals and whether the urinals are divided. [00:22:30] Speaker 04: Why are we doing that? [00:22:31] Speaker 04: Is there some concern that a transgender man is going to be using a urinal? [00:22:36] Speaker 04: I mean Atlas is and Atlas has said in his declaration, he doesn't use them. [00:22:40] Speaker 04: So he just uses a stall. [00:22:41] Speaker 04: So can't we set that aside for purposes of this as applied challenge? [00:22:45] Speaker 00: I don't think so, Your Honor, because again, the question is whether focusing on the urinal side and then I'll try to get back to the other side of the question. [00:22:54] Speaker 00: The question again is whether the state has an interest in, like in Roe, like bodily privacy in the common spaces of the restroom, which is what's at issue. [00:23:03] Speaker 00: I think that they don't dispute there's an interest in bodily privacy in the, you know, inside the stalls, et cetera. [00:23:08] Speaker 00: And, you know, the urinals are not very protective, even the ones that have barriers, you know. [00:23:14] Speaker 04: Except there's no question Atlas doesn't use them. [00:23:16] Speaker 04: And Atlas is going in and using us. [00:23:18] Speaker 04: That's what Atlas, we're talking about one human. [00:23:19] Speaker 04: He says it uses the stall, washes his hands and leaves. [00:23:23] Speaker 00: Yes. [00:23:24] Speaker 00: Well, I mean, so first off, we don't think that we should be focused entirely on Jones. [00:23:27] Speaker 00: However, you generally have to walk behind urinals, right, to get to the stalls. [00:23:32] Speaker 00: The urinals tend to be closer to the door. [00:23:34] Speaker 00: I mean, it's part of the common area where you don't have a door behind you. [00:23:38] Speaker 00: The risk of exposure is greater if somebody is standing next to a urinal, but it is not zero for people who are just walking past in the common area. [00:23:45] Speaker 04: So I think your concern is, and I appreciate this is a little awkward to discuss, but I think your concern is that people who are using the urinals might feel like their privacy is invaded. [00:23:54] Speaker 04: That's what we're talking about, right? [00:23:55] Speaker 04: Not that Atlas is going to, right. [00:23:58] Speaker 04: And so I think that's the answer to the question about why we're concerned about them being divided or not divided. [00:24:03] Speaker 04: And what's the record show about that? [00:24:06] Speaker 04: as to the restrooms that Atlas uses? [00:24:10] Speaker 00: I can't speak to the specific restrooms that Atlas uses. [00:24:12] Speaker 00: I don't think we know which ones those are, in fact, or were used past tense, presumably. [00:24:20] Speaker 04: The record doesn't show us that. [00:24:22] Speaker 00: I don't believe the record shows us that. [00:24:23] Speaker 00: We have a record that shows us sort of generally what the restrooms look like at the campus. [00:24:27] Speaker 00: And based on that, I can say that it's, as you'd expect at a large university, it's a wide variety. [00:24:33] Speaker 00: some stalls with, you know, deep dividers, excuse me, not stalls, some urinals with deep dividers that provide a fair amount of protection, some stalls with, or urinals with very small dividers, some with none at all. [00:24:43] Speaker 00: You can see pictures all through the record. [00:24:45] Speaker 00: Yes. [00:24:46] Speaker 04: All right. [00:24:46] Speaker 04: So I've looked at those pictures. [00:24:47] Speaker 04: Then as to the other, I think the state is continuing the argument that other activities are going on in the common areas of these restrooms. [00:24:58] Speaker 04: What are we talking about? [00:25:00] Speaker 00: Changing clothes. [00:25:00] Speaker 00: I mean, it's mentioned [00:25:02] Speaker 00: That's what Judge Nye pointed to in the Roe case, and I think we just have to appeal with lacking further information in the record to the general experience of people. [00:25:12] Speaker 00: Have people seen people change clothes in the common areas of the restroom? [00:25:15] Speaker 00: Most people I talked to say yes. [00:25:16] Speaker 00: I saw it happen just last week. [00:25:18] Speaker 00: It is something that does apparently happen and something that the state has an interest in protecting. [00:25:24] Speaker 00: Now, but to get back to the question about the [00:25:27] Speaker 00: the divide, right, the men's restrooms versus the women's restrooms and the statute's focus on the women's restrooms is, I think the state has an additional interest in the women's restrooms, like where in addition to this privacy interest, there's this interest that our expert discusses about felt safety and the interest that's discussed in our four affidavits for female students who talk about their concern about using a restroom where biological males might be present and how they would themselves [00:25:55] Speaker 00: be inclined to avoid such restrooms and then risk all the various problems that are talked about on the other side. [00:26:02] Speaker 00: This is a problem for everybody who feels unsafe in the restroom, not just for people identified as transgender. [00:26:07] Speaker 04: Can I stop you there? [00:26:08] Speaker 04: Because as to Sophie's case, again, we're talking as applied challenges to humans. [00:26:13] Speaker 04: And on Sophie's side of the ledger, our record is that she's been doing this for decades without any complaint or concern. [00:26:23] Speaker 04: Is there something more recent that tells us this has been a problem? [00:26:28] Speaker 00: Aye. [00:26:29] Speaker 00: So again, I have to fight back on the question because I don't think that as applied gets us past this notion that substantial relationship means again, it's set in Roe, it's set in Nguyen, it's set in a bunch of Supreme Court cases. [00:26:41] Speaker 04: Roe was a facial challenge. [00:26:43] Speaker 00: That's correct, but it cites Nguyen. [00:26:46] Speaker 00: Right, it cites Nguyen. [00:26:47] Speaker 00: And, you know, again, look at the Nguyen case, right, where, you know, Congress draws a line, it says, [00:26:53] Speaker 00: We assume that the mother has a relationship with the child. [00:26:55] Speaker 00: And so we're going to let citizenship pass easily. [00:26:57] Speaker 00: We're not going to assume that the biological father has a relationship with the child. [00:27:00] Speaker 00: And so he has to prove one. [00:27:02] Speaker 00: And the court said, obviously, this doesn't work out in every case. [00:27:05] Speaker 00: Obviously, there are fathers who are present, unmarried fathers who are present at the birth of the child. [00:27:09] Speaker 00: Obviously, there are unmarried fathers who do have an ongoing relationship with a child such that citizenship would make sense. [00:27:15] Speaker 00: And yet, [00:27:16] Speaker 00: Congress doesn't have to account for that. [00:27:18] Speaker 00: Heightened scrutiny doesn't require that degree of fit between the statute and the people it's being applied to. [00:27:25] Speaker 02: Counsel, I want to change the focus for my question a little bit. [00:27:29] Speaker 02: Let's assume, hypothetically, and again, hypothetically, let's assume that the court was not on board with your view of the merits. [00:27:40] Speaker 02: But let's just assume that hypothetically and let us and I understand your view that if you're right on the merits, then irreparable harm essentially doesn't matter. [00:27:53] Speaker 02: But I'd like to focus my question on irreparable harm. [00:27:56] Speaker 02: Let's assume again, just hypothetically that the panel thought there was more to the merits than the state does. [00:28:05] Speaker 02: With regard to irreparable harm, if that's what we were looking at, would the state defendants want the opportunity to get written requests for reasonable accommodations under Section 6B of the statute and have the opportunity from both of these plaintiffs in this applied challenge and have the opportunity to respond as the statute requires? [00:28:35] Speaker 00: I mean, yes, we would welcome the opportunity in the sense that the opportunity already exists. [00:28:40] Speaker 00: Nothing is stopping them from submitting these requests. [00:28:42] Speaker 02: But that's not my question. [00:28:45] Speaker 02: Would the state want to have that opportunity to see if they could provide a reasonable accommodation that could ameliorate some or all of the claimed irreparable harm to these two plaintiffs? [00:29:03] Speaker 00: Yes, your honor. [00:29:04] Speaker 00: And without that request, I don't see how they prove irreparable harm because they haven't proven how the law actually applies to them. [00:29:13] Speaker 02: But Mike, I understand that argument. [00:29:16] Speaker 02: But my question, which you've answered, is the state would want that opportunity. [00:29:23] Speaker 00: Yes, your honor. [00:29:30] Speaker 00: Moving then again to your [00:29:31] Speaker 00: questions or the you know the on the assumption that the panel is disagreeing with without the merits. [00:29:37] Speaker 00: We think that the existence of these questions you know does show that they have failed to meet their burden improving irreparable harm and we think the correct response to that situation is not a limited remand. [00:29:46] Speaker 00: The correct response to that situation is affirmance. [00:29:48] Speaker 00: If there's no if there is no irreparable harm then judge and I was right to deny the injunction and this case can just go back to the district court and [00:29:57] Speaker 00: Practically speaking, for the plaintiffs, I'm not sure what difference there is in that because as soon as it's back in the district court, I mean, as soon as the injunction issue is back in the district court, they can develop further evidence and move for another injunction. [00:30:10] Speaker 00: And the court can hear all of that without there needing to be any sort of limited remand or specific instruction. [00:30:15] Speaker 02: Although part of the practical difference, at least from my perspective, is that I think that for me, I would benefit from actually having additional facts in order to decide what I find is a not easy motion. [00:30:37] Speaker 02: So I mean, I take your point. [00:30:40] Speaker 02: that it was plaintiff's burden to develop facts, but there might be some facts that the panel would be particularly interested in that the best way to get them is to have a fairly quick process, but with focused questions if these were the ones that were of interest to the panel. [00:31:01] Speaker 03: My question following up on that is, do you have any reason to believe that if [00:31:08] Speaker 03: written requests for a reasonable accommodation were made that the state would do anything other than say, point to the existing single occupancy restrooms as a reasonable accommodation? [00:31:24] Speaker 00: I have to speak very hypothetically in response to this question for two reasons. [00:31:31] Speaker 00: You know, one that we don't have the request and we don't know the details of the situations that we would need to be responding to. [00:31:37] Speaker 00: And two, to the extent that we do have such information about Smith, we can't talk about it in open court. [00:31:46] Speaker 00: Sorry, I will continue and answer the question. [00:31:48] Speaker 00: I can say that in response to your question, whichever one it was about the status quo, I've forgotten, eight, that at the University of Idaho, there is already one building not mentioned in the previous declarations where single occupancy restrooms are currently being installed. [00:32:04] Speaker 00: I don't know to what extent that is possible. [00:32:07] Speaker 00: I don't know the extent to which that building is relevant to this case and to Smith's schedule, and I don't know to what extent that's possible in other buildings, but it's being done at one of these schools already. [00:32:17] Speaker 00: Beyond that, I'm sorry I shouldn't say that, that gets into matters in the sealed portion. [00:32:25] Speaker 02: Yeah, I would urge you to be careful in responding to Judge Wardlaw's questions. [00:32:31] Speaker 04: I just want to add that, [00:32:34] Speaker 04: We have already issued rulings indicating that we have concern about this alternative that the statute provides. [00:32:43] Speaker 04: That's what makes this case not so easy, speaking for myself. [00:32:48] Speaker 04: Because it's not the case that there's no alternative. [00:32:52] Speaker 04: The statute requires that this single-user restroom be made available. [00:32:55] Speaker 04: And so one of the reasons we remanded, as you know, in Roe, was because the allegation there was that using them might out a student. [00:33:05] Speaker 04: And that that would be irreparable harm, because once that private information is revealed, it can't be taken back, of course. [00:33:11] Speaker 04: And so your preface when you respond to Judge, I think it was Judge Wardlaw's question about irreparable harm, [00:33:21] Speaker 04: I think baked in the notion that if those single user restrooms are available, we're good to go. [00:33:28] Speaker 04: No harm, no irreparable harm. [00:33:31] Speaker 04: And one of the messages that we tried to be clear about in our remand is that we would need information about that. [00:33:39] Speaker 04: So and it's one of the things we've asked about regarding the status quo, whether students are using them, we don't know whether they're configured in a way where using them would be tantamount to disclosing one's gender identity. [00:33:56] Speaker 04: So this record also leaves something [00:34:02] Speaker 04: to be desired on that point. [00:34:04] Speaker 04: And for me, that's a very important point. [00:34:06] Speaker 04: Opposing counsel has made it clear that he thinks using those single-use restrooms is sort of, this is my word, not his, you know, per se stigmatizing. [00:34:15] Speaker 04: There's something to be said about that. [00:34:18] Speaker 04: I don't mean to endorse that, but I am trying to tease out where these bathrooms are located and how accessible they are is something that is, it seems to me at least, to be critically important. [00:34:30] Speaker 00: And Your Honor, I don't think we can answer that question for the record. [00:34:33] Speaker 00: That's not there. [00:34:33] Speaker 00: I would dispute that I am assuming that a single occupancy restroom under all circumstances is adequate. [00:34:41] Speaker 00: But what I am saying is that I think it would be adequate in many or most situations. [00:34:45] Speaker 00: But this is what the accommodation process is for, right? [00:34:48] Speaker 00: That if it's not adequate for some reason, they can bring that reason to the institution and they can try to work something out. [00:34:54] Speaker 00: As it is, the institution has no knowledge of what situation specifically they're concerned about. [00:34:58] Speaker 03: By the terms of the statute, the accommodation has to be reasonable. [00:35:03] Speaker 03: So I think if they're offering an unreasonable accommodation, that wouldn't work. [00:35:08] Speaker 00: Exactly, Your Honor. [00:35:09] Speaker 03: So if you had to go, say, outside in the winter and the snow and walk 200 yards just to get to a single occupancy restroom, that would not be reasonable. [00:35:22] Speaker 00: In response to that, I'd have to say it would depend on the individual. [00:35:25] Speaker 00: It would depend on the circumstances. [00:35:26] Speaker 00: I mean, reasonable is very individual specific, I would say. [00:35:30] Speaker 00: And so perhaps there are individuals for whom that would not be an issue and would not object to that situation. [00:35:35] Speaker 00: I don't know. [00:35:35] Speaker 02: But but but part of your answer is that in this applied challenge, we would in at least in some circumstances and going to judge wordless hypothetical, it might depend, for example, on and I'm not saying this with regard to anything in the record about either of these two. [00:35:53] Speaker 02: plaintiffs, but it could depend on, for example, a disability or an inability to walk distances or extreme susceptibility to cold, something like that. [00:36:05] Speaker 02: And again, I'm not suggesting there's anything in the record on that, but reasonable for a particular person might not be reasonable for some other person. [00:36:17] Speaker 00: That is my reading of the statute, Your Honor, yes. [00:36:19] Speaker 00: And [00:36:19] Speaker 00: And once again, that's why we need a request before we can know what the effect of this statute on these people is, because we've not had a chance to work out what the accommodation is. [00:36:30] Speaker 03: So hypothetically, for someone who has undergone, you know, transformation such that for two decades, they've been perceived as one gender, [00:36:48] Speaker 03: Isn't there harm just in being outed by having to use the single occupancy restroom, for example? [00:36:58] Speaker 03: I mean, and maybe there's even if they're, I'm saying, could there be a reasonable accommodation that would not affect their being outed? [00:37:10] Speaker 03: I mean, they'd have to go to the school, they'd have to make a request. [00:37:16] Speaker 02: I'm sorry, I lost everybody for a minute, but everybody's back. [00:37:20] Speaker 02: So sorry. [00:37:21] Speaker 02: Can you hear me? [00:37:22] Speaker 02: I keep losing my video, but can you hear me? [00:37:25] Speaker 03: We can hear you. [00:37:26] Speaker 03: And we didn't lose your video either. [00:37:33] Speaker 03: Do you remember my question? [00:37:35] Speaker 00: Sorry. [00:37:36] Speaker 00: Yes. [00:37:37] Speaker 00: And so my response is that first off, on this record, there's just no evidence that using these restrooms would actually out anyone. [00:37:45] Speaker 00: So far as everybody agrees, it seems that everyone uses these restrooms and that the fact of using these restrooms does not indicate anything about someone's gender identity. [00:37:53] Speaker 00: In addition to that, we would point out that, you know, in order for the [00:37:57] Speaker 00: The loss of the secret to be a harm. [00:37:59] Speaker 00: It has to be a secret first. [00:38:01] Speaker 00: And in the case of Atlas Jones in particular, it is not a secret. [00:38:04] Speaker 00: Atlas Jones is not a pseudonym. [00:38:05] Speaker 00: It's a use name. [00:38:06] Speaker 00: It's used at Boise State. [00:38:08] Speaker 00: A photo of Atlas Jones is in the public record in this case, not sealed. [00:38:12] Speaker 00: If you Google Atlas Jones, you will find a number of news articles or the like in which Atlas Jones is outed as transgender. [00:38:21] Speaker 00: So I don't think Atlas Jones has any real interest in keeping a secret of the transgender identity. [00:38:27] Speaker 00: Smith is another matter. [00:38:28] Speaker 00: Smith, I think that we would need more facts in the record. [00:38:31] Speaker 00: And for Smith, we've been hindered significantly both by the shared desire to keep the identity secret. [00:38:40] Speaker 00: We have no interest either in disclosing this information publicly and causing problems for this person, but then also by the fact that we didn't even know Smith's identity, actual identity, until after we filed our response brief in the court below. [00:38:55] Speaker 00: And so we've had no opportunity to put evidence into the record about Smith specifically at all. [00:39:00] Speaker 00: We've only had to take on faith what they've been saying. [00:39:03] Speaker 00: At this point, I guess I should add, we are happy to answer the court's questions. [00:39:09] Speaker 00: And we do object, however, to the extent that the court is considering issuing an injunction based on the representations of counsel and oral argument that have not been supported by admissible evidence. [00:39:21] Speaker 00: I don't know if that's what the court's considering, [00:39:24] Speaker 00: That doesn't seem to us to be an appropriate procedure. [00:39:26] Speaker 00: We need an opportunity to respond to some of these things that are being said that we have not heard before. [00:39:33] Speaker 00: With that, I see I'm over time. [00:39:35] Speaker 00: I imagine you probably want my answers to the court's 10 questions. [00:39:40] Speaker 03: Yes. [00:39:42] Speaker 00: OK. [00:39:43] Speaker 00: In that case, question one, let me pull up the actual language of the questions. [00:39:51] Speaker 03: Question one, you would say no, presumably. [00:39:53] Speaker 00: Correct. [00:39:53] Speaker 00: I think all agree that no accommodation has been requested. [00:39:59] Speaker 00: To my knowledge, no accommodation has been requested by anyone or given to anyone at this point at either institution. [00:40:05] Speaker 00: Question two, I think we all agree that cisgender students, faculty, and others use the single-occupancy restrooms, that there is no limitation, that they are open to everybody and used by everybody. [00:40:18] Speaker 00: Question three, the same, anyone may use these. [00:40:21] Speaker 00: We stand by the decorations of Jordan Vineyard. [00:40:24] Speaker 00: Question four, we agree that my friend's description of Jones's schedule sounds accurate to us as far as it's gone. [00:40:36] Speaker 00: Beyond that, the university does not have information about how much time either of them spends on campus. [00:40:41] Speaker 00: That's not something the university tracks. [00:40:44] Speaker 00: How far is the nearest single occupancy restroom from the locations where they spend their time? [00:40:49] Speaker 00: My understanding is that as was discussed, most of the places that Jones goes, they have a single occupancy restroom inside the building. [00:40:59] Speaker 00: My understanding is that neither of them is ever more than one, locations we're aware of, that neither of them is ever more than one building away from a single occupancy restroom. [00:41:11] Speaker 00: That seems to be a little bit different from what opposing counsel said, but that's, I don't know how to resolve those facts on the posture we have here. [00:41:19] Speaker 00: Prior to the enactment, did Smith ever use the single occupancy restrooms? [00:41:24] Speaker 00: We have no way of knowing that. [00:41:26] Speaker 00: Prior to the enactment of 264, how often did Jones use the single occupancy restrooms? [00:41:32] Speaker 00: Again, the declaration says that Jones did use those restrooms, but does not say how often, and we have no way of knowing. [00:41:39] Speaker 00: Since HB 264 has taken effect, how has the status quo changed? [00:41:43] Speaker 00: Answer at the University of Idaho. [00:41:45] Speaker 00: They have added some additional single occupancy restrooms to a building. [00:41:49] Speaker 00: I am not sure that that building is relevant to the facts relating to these two people, but that would have to be developed further. [00:41:55] Speaker 00: Based see and then of course have Smith and Jones use single occupancy restrooms. [00:42:00] Speaker 00: We have no way of knowing. [00:42:02] Speaker 00: We stand by the Jordan declaration. [00:42:05] Speaker 00: I was unaware of their potentially being multiple stalls in these single occupancy restrooms, and we will need to investigate that further, but I see no reason to believe my client's declaration is inaccurate. [00:42:17] Speaker 00: And then finally, do the buildings where Jones attends classes have single occupancy restrooms on this point as well? [00:42:22] Speaker 00: I think we agree with opposing counsel that most of them do, and we think that if there is one that doesn't, I think that the nearest one is only one building away, but we will have to investigate that further. [00:42:33] Speaker 03: All right, thank you very much, counsel. [00:42:35] Speaker 03: You're well over your time, and I'm going to give Mr. Rosen some rebuttal time. [00:42:42] Speaker 01: Thank you, your honor. [00:42:43] Speaker 01: I want to make a few brief points. [00:42:45] Speaker 01: I'm happy to address any factual discrepancies between the two sides, but I don't know that we can resolve those purely based on counsel's representations. [00:42:53] Speaker 01: I understand that. [00:42:55] Speaker 01: But I want to just sort of come back to the core point, which is as this court held in Melendez versus Arpaio, [00:43:02] Speaker 01: It is well established that the deprivation of constitutional rights is unquestionably constitutes irreparable injury, and that's a preliminary injunction case. [00:43:10] Speaker 01: And in this case, we have on the merits the problem that as to these two transgender adults, the state cannot demonstrate that it has an exceedingly persuasive justification [00:43:21] Speaker 01: and that it's substantially related to that justification to exclude Sophie, a transgender woman who's had genital reassignment surgery, and Atlas, a transgender man who has long lived as a transgender man who uses the men's restroom and does so in the context of a law with a stated purpose of specifically protecting women's spaces. [00:43:40] Speaker 01: The state cannot carry its burden of demonstrating that the categorical line it chose to draw is substantially related to its application to these plaintiffs. [00:43:48] Speaker 01: That's a merits issue. [00:43:50] Speaker 01: It's a merits issue that exists regardless of the presence of a single user restroom. [00:43:55] Speaker 01: I will note second, [00:43:56] Speaker 01: We talk a lot about where single user restrooms are. [00:43:58] Speaker 01: I think no one seems to dispute that Sophie's buildings don't have a single user restroom. [00:44:03] Speaker 01: No one disputes that sometimes Atlas will be a building away from a single user restroom. [00:44:07] Speaker 01: And I think it is clear as a matter of common sense that sometimes a single user restroom will be occupied when someone wants to use that restroom. [00:44:15] Speaker 01: But as to outing, which is a sort of concept that we talk about, I think it's really important. [00:44:19] Speaker 01: We're not just talking about whether using a restroom one time is going to out someone. [00:44:23] Speaker 01: I understand that using a restroom one time will not invariably out someone. [00:44:28] Speaker 01: Using a single user restroom one time will not invariably out either Atlas or Sophie necessarily, depends on a number of different contextual questions. [00:44:36] Speaker 01: But that's not what we're talking about. [00:44:37] Speaker 01: We're talking about an injunction pending appeal, and we're talking about the potential use of single user restrooms for years. [00:44:43] Speaker 01: We're talking about the consistent use of those restrooms. [00:44:46] Speaker 01: If you look at the budget declaration, there's the example, for instance, of young men walking towards a multi-occupancy restroom and the transgender student having to pull away to go use the single occupancy restroom. [00:44:56] Speaker 01: That won't happen every time, but when it does, there will be an outing risk. [00:45:00] Speaker 01: And I would also point out, no one disputes that Sophie is not out. [00:45:03] Speaker 01: I disagree strongly with Mr. Hurt's representation that by openly being a plaintiff in this case, it follows that Atlas is now wearing a sign that says he is transgender and everyone knows. [00:45:12] Speaker 01: It's clear in his declaration at paragraph 17 that he's out to his friends, but he's not out to everyone he sees. [00:45:18] Speaker 01: When he enters a restroom, not everyone in that restroom has read this case and knows that Mr. Jones is transgender. [00:45:23] Speaker 01: It's not about in this context, [00:45:26] Speaker 01: whether there is a constitutional right to privacy at issue. [00:45:28] Speaker 01: We don't have to deal with that. [00:45:29] Speaker 01: That's not the claim in the injunction pending appeal. [00:45:32] Speaker 01: It's a question of harm and whether Mr. Jones has or will be harmed if by using exclusively single user restrooms for years, [00:45:41] Speaker 01: The effect of that is that over time, more people to whom he did not want to disclose that information start to see him as transgender. [00:45:48] Speaker 01: When, for instance, when he's tutoring students or when he's otherwise interacting on a regular basis on campus, he wants to be able to be seen just as a person and not always as specifically a transgender person. [00:45:59] Speaker 01: The last thing I would point out is that I do think Doe vs. Horn makes very clear that the nature of this as-applied challenge is proper. [00:46:06] Speaker 01: In Doe vs. Horn, this court refused to find that Arizona's categorical ban of all biological manas defined in the Act from sports was constitutional as applied to a subset of transgender plaintiffs. [00:46:21] Speaker 01: because that subset could demonstrate, just as the district court's own findings show here, that there wasn't a substantial relationship between the interests the Act sought to serve and its application to those individuals. [00:46:32] Speaker 01: That is the cornerstone of an Equal Protection Clause challenge, of an as-applied challenge, because the Equal Protection Clause protects persons. [00:46:40] Speaker 01: not groups. [00:46:41] Speaker 01: There is nothing inconsistent with that in WIN, which, by the way, involved not a categorical rule, but a process whereby a father could establish citizenship for his child. [00:46:50] Speaker 01: And it was important to Justice Kennedy in that opinion that the statute did include that procedural provision. [00:46:56] Speaker 01: So in conclusion, Your Honor, I think an injunction is merited here. [00:46:59] Speaker 01: And I don't think we need to definitively answer all these factual questions to know that on the current record based on the current law. [00:47:05] Speaker 01: And I thank you very much for your time. [00:47:07] Speaker 03: Thank you very much, counsel. [00:47:10] Speaker 03: Jones versus Critchfield will be submitted and the session of the court is adjourned for today.