[00:00:05] Speaker 04:
Good morning.

[00:00:06] Speaker 01:
Good morning, Your Honor.

[00:00:07] Speaker 01:
May it please the Court, I'll be Sheik Conbley, Deputy Associate Attorney General for the United States, and I will reserve five minutes of my time for rebuttal.

[00:00:15] Speaker 04:
Okay.

[00:00:17] Speaker 01:
Your honors, the question this court has to answer is whether the plaintiffs have demonstrated that the military is constitutionally barred from implementing its policy of presumptively disqualifying those with gender dysphoria from further service.

[00:00:33] Speaker 01:
And with medical conditions in particular, we begin on the premise that the vast majority of Americans are disqualified from military service.

[00:00:42] Speaker 01:
as noted in 2 ER 115, 71% of 17 to 24-year-olds in America would be disqualified from the military without a waiver.

[00:00:53] Speaker 04:
So the other side isn't necessarily saying you have a right to be in the military, correct?

[00:00:59] Speaker 01:
Correct, Your Honor.

[00:01:00] Speaker 01:
And there is one recent landmark Supreme Court case that helps the court answer this question as to whether the military can carry out its policy, and that's United States v. Sturmetti.

[00:01:12] Speaker 03:
Well, how does that help us at all?

[00:01:14] Speaker 03:
It deals with a case, it doesn't reach the equal protection, the question of whether or not this is a suspect or a class that requires intermediate scrutiny, right?

[00:01:27] Speaker 01:
That's correct, Your Honor, but it does guide the inquiry on how to do an equal protection analysis.

[00:01:33] Speaker 03:
Well, see, but if we were doing a rational basis analysis, we might reach one conclusion.

[00:01:38] Speaker 03:
And if we're doing an analysis based on intermediate scrutiny, we might reach another.

[00:01:43] Speaker 03:
And at least in this circuit, we have to apply intermediate scrutiny, do we not?

[00:01:48] Speaker 03:
Yes, Your Honor, so let me back up for one second.

[00:01:50] Speaker 03:
So I don't know how Skirmetti helps me apply intermediate scrutiny to the classification in this case.

[00:01:57] Speaker 01:
So, Your Honor, it answers the question of before we get to what tier of scrutiny, because it asks, what does the policy classify on this case?

[00:02:05] Speaker 05:
Okay, so you just answered Judge Herbert's question about in this circuit, we apply intermediate scrutiny.

[00:02:10] Speaker 05:
You said yes.

[00:02:12] Speaker 01:
If we determine that this policy classifies on the basis of transgender status.

[00:02:17] Speaker 05:
Okay, how would we not determine that?

[00:02:19] Speaker 01:
Because, Your Honor, when you look at the face of the policy and what it classifies based on here, the United States v. Skirmetti and the reason that it's important here.

[00:02:28] Speaker 05:
Not a diagnosis.

[00:02:29] Speaker 05:
That's the argument that you make in the brief.

[00:02:31] Speaker 05:
But the policy goes considerably broader than the diagnosis, sir.

[00:02:35] Speaker 01:
So, Your Honor, the United States v. Skirmetti goes directly into what it says on its face.

[00:02:40] Speaker 01:
And its face says gender dysphoria.

[00:02:42] Speaker 05:
I'm talking about this case.

[00:02:44] Speaker 01:
Yes, Your Honor.

[00:02:44] Speaker 05:
And this policy.

[00:02:46] Speaker 05:
Right?

[00:02:47] Speaker 05:
And this policy sweeps in much more broadly than just the diagnosis is what I'm trying to get at.

[00:02:52] Speaker 03:
No, Your Honor, we disagree with that premise.

[00:02:54] Speaker 03:
So you disagree with the President's executive order, which says that my goal is to remove transgender people from the military?

[00:03:01] Speaker 01:
Your Honor, what matters is right now the policy.

[00:03:04] Speaker 03:
Is the policy consistent with the President's executive order, or is the policy narrower than the President's executive order?

[00:03:11] Speaker 03:
So, Your Honor, all the executive order did was direct the agencies to come up with a policy to... To come up with a policy that removed all transgender people from the military because they're dishonest liars and not loyal.

[00:03:24] Speaker 03:
That's what the President of the United States said.

[00:03:26] Speaker 03:
The Secretary of Defense then promulgated a policy.

[00:03:30] Speaker 03:
So see if you can answer my question.

[00:03:32] Speaker 03:
Do you think the policy that the Secretary of Defense promulgated was narrower than the policy that the President told him to promulgate?

[00:03:40] Speaker 03:
Or should we interpret the policy he promulgated in light of what the President instructed him to do?

[00:03:45] Speaker 01:
So, Your Honor, the reason that we focus solely on the policy is because that's what actually binds... So, the executive order is irrelevant, in your view?

[00:03:53] Speaker 03:
At this point, it is, because we have the policy that says what it requires to continue... Now, the second part of my question was, because I think Judge Kristen began to ask it before, as I read this policy, there is not a transgender person who would not be presumptively excluded under the policy.

[00:04:13] Speaker 03:
And so in reading the policy, am I entitled to look at the president's executive order, which essentially says do that?

[00:04:20] Speaker 01:
No, your honor, because the policy does not cover every trans identifying person.

[00:04:25] Speaker 01:
So for instance, the policy says anyone who is suffering from gender dysphoria or symptoms consistent with that.

[00:04:33] Speaker 01:
And in 2ER70- Well, it says more.

[00:04:35] Speaker 03:
It says more to be fair.

[00:04:36] Speaker 03:
It says somebody who has suffered, has been treated,

[00:04:39] Speaker 03:
has had gender-affirming surgery.

[00:04:43] Speaker 03:
When you add all those up together, I'm trying to figure out who's left.

[00:04:47] Speaker 01:
So, Your Honor, this policy is very similar minus the grandfather clause from the Mattis policy that this court and the DC Circuit allowed to take effect.

[00:04:56] Speaker 01:
And one of the important notes from Doe II v. Shanahan is that it concluded that not everyone covered by the Mattis policy at that time, it did not cover the full universe of trans-identifying people.

[00:05:09] Speaker 01:
And it said that

[00:05:10] Speaker 01:
absent a waiver too, so it didn't base that on the fact that there was a waiver given for grandfathered.

[00:05:17] Speaker 05:
You're talking about the executive order and the policy, but before you leave to go to it, I think Judge Hurwitz is getting ready to pivot.

[00:05:25] Speaker 05:
The guidance in this case sweeps in a history of or a diagnosis of or symptoms consistent with gender dysphoria.

[00:05:34] Speaker 01:
Yes your honor.

[00:05:34] Speaker 01:
And the system's consistent with, if you look at 2ER70 footnote 2, it says consistent with the DSM criteria for gender dysphoria.

[00:05:46] Speaker 01:
So enough symptoms.

[00:05:47] Speaker 05:
Exactly.

[00:05:48] Speaker 05:
So the DSM-5 criteria says a marked incongruence between one's experienced, expressed, and natal gender of at least six months in duration.

[00:05:56] Speaker 05:
So an incongruence between one's experienced, expressed gender identity and natal gender

[00:06:03] Speaker 05:
Is all people transgender?

[00:06:05] Speaker 05:
Is it not?

[00:06:05] Speaker 01:
No, Your Honor, because... How is it not?

[00:06:07] Speaker 01:
Because it is also... Okay, yeah.

[00:06:10] Speaker 04:
I feel like I'm playing a little bit of double, like a jump rope, you know, trying to get in here.

[00:06:17] Speaker 04:
We have a pretty active panel.

[00:06:19] Speaker 04:
So I am curious on that issue if you can, if maybe we can uninterrupt it here.

[00:06:25] Speaker 04:
Is there a transgender person

[00:06:29] Speaker 04:
that does not suffer from gender dysphoria and could qualify for military service.

[00:06:35] Speaker 01:
Yes, Your Honor, people who are trans-identifying but don't suffer the clinical distress or impairment of function that's associated with gender dysphoria.

[00:06:44] Speaker 01:
That is why the court in Doe II v. Shanahan already concluded that the Mattis policy, which in itself listed the term transgender persons in a way that this policy does not.

[00:06:58] Speaker 01:
This policy does not use that term and focuses solely on the term gender dysphoria.

[00:07:02] Speaker 01:
And when the Supreme Court stayed the injunction in the Mattis guidance, the DC Circuit took a look and stated that it does not cover the full universe of trans-identifying people in that case.

[00:07:16] Speaker 01:
And they said that the grandfather clause in that case did not make the difference.

[00:07:21] Speaker 05:
What about the guidance, sir?

[00:07:22] Speaker 05:
You're just skipping over the guidance.

[00:07:24] Speaker 05:
Is that not applicable here?

[00:07:27] Speaker 01:
I'm sorry, Your Honor.

[00:07:27] Speaker 05:
The guidance is what I was just reading from.

[00:07:30] Speaker 05:
And so when you're answering Judge Callahan's question, you seem to be limiting yourself to a different policy.

[00:07:34] Speaker 05:
What about the guidance?

[00:07:35] Speaker 01:
So Your Honor, the policy that we have here and the policy that was there at the Mattis case, it's virtually identical with the exception of the grandfather clause.

[00:07:44] Speaker 05:
What about the guidance?

[00:07:46] Speaker 05:
The guidance defines this as... I'm not sure why you don't want to answer this question.

[00:07:52] Speaker 01:
The guidance defines a diagnosis of gender dysphoria as what the DSM-5 criteria uses.

[00:08:00] Speaker 05:
So here's the question.

[00:08:01] Speaker 05:
I'm just going to do it one more time, and then I'm going to decide that I'm going to understand you don't want to answer it, to be fair.

[00:08:07] Speaker 05:
The guidance includes those who have a history of or a diagnosis or symptoms consistent with gender dysphoria.

[00:08:13] Speaker 05:
It is not limited to the diagnosis, sir.

[00:08:15] Speaker 01:
So, Your Honor, you can see based on the way that the military is implementing this guidance, which is... How do we know how they're implementing it?

[00:08:23] Speaker 01:
That's not in this record, is it?

[00:08:25] Speaker 01:
Yes, it is, Your Honor.

[00:08:26] Speaker 01:
It impeached 2ER233, the military's method for implementing it.

[00:08:31] Speaker 01:
It states that it's going to be based on a medical review where someone... A medical review.

[00:08:36] Speaker 03:
I understand that.

[00:08:37] Speaker 03:
But the guidance seems to cover people who are not currently suffering from gender dysphoria.

[00:08:44] Speaker 03:
Does it not?

[00:08:45] Speaker 01:
So, Your Honor, we disagree with that.

[00:08:47] Speaker 03:
We believe that a history of presumptively disqualifies you, but if you've been... Individuals with a history, so 10 years ago, of cross-sex hormone therapy may not be suffering from gender dysphoria today, may they?

[00:09:05] Speaker 01:
That's where the waiver comes in, Your Honor.

[00:09:07] Speaker 03:
But the waiver is entirely discretionary.

[00:09:09] Speaker 03:
It's not a mandatory one.

[00:09:10] Speaker 01:
It's not a mandatory waiver, but it goes back to what this is.

[00:09:14] Speaker 01:
It's a facial challenge to the policy.

[00:09:16] Speaker 03:
Well, that's what I wanted to ask you.

[00:09:17] Speaker 03:
So thank you.

[00:09:19] Speaker 03:
This is a good segue for the thing I'm interested in.

[00:09:22] Speaker 03:
I'm not sure this is solely a facial challenge to the policy.

[00:09:27] Speaker 03:
We have seven serving service members.

[00:09:31] Speaker 03:
who have each put in declarations, which would be strange if this were just a facial challenge, and who don't seem to have any difficulties in their service.

[00:09:43] Speaker 03:
And we have the Mattis policy, one of the things you cite as being the basis for passing intermediate scrutiny, which says we, of course, shouldn't kick out serving

[00:09:54] Speaker 03:
serving members.

[00:09:56] Speaker 03:
So if we were to treat this as an as-applied challenge, what's the government's basis for separating these seven serving members?

[00:10:06] Speaker 01:
So, Your Honor, to the extent that this court believes that there's daylight between this case and United States v. Skirmetti, then we get into the analysis that this court did in Keranowsky.

[00:10:16] Speaker 03:
And what it states... Okay, so I do believe there's daylight between this case and Skirmetti, and I have seven people

[00:10:24] Speaker 03:
that seem to be exemplary service members who've served for a long time, for whom the government makes no contention that gender dysphoria has affected their service.

[00:10:34] Speaker 03:
And I have the Mattis policy, which one of the bulwarks of your case, which says, of course, we shouldn't kick out people who are currently serving.

[00:10:43] Speaker 03:
So if I look at those seven, how does this pass intermediate scrutiny?

[00:10:48] Speaker 01:
So, Your Honor, we still believe that intermediate scrutiny should be guided by military deference.

[00:10:55] Speaker 01:
And one of the points in the Mattis guidance, it didn't say that the risk that they were talking about, which primarily focused on readiness, unit cohesion, good order and discipline, and cost, are not present by those who are presently seven.

[00:11:10] Speaker 03:
Okay, but as to these seven, I'm not talking about any other person.

[00:11:13] Speaker 03:
As to these seven people, does the government have any reason why these seven people affect any legitimate concern of the military?

[00:11:23] Speaker 03:
They've served for a long time.

[00:11:24] Speaker 03:
They seem to have exemplary records.

[00:11:26] Speaker 03:
They put an affidavit about those records.

[00:11:29] Speaker 03:
You didn't seem to try to rebut them.

[00:11:31] Speaker 03:
So if I focus on, if I treat this as an as-applied challenge by those seven people, why is the policy constitutional as applied to those seven?

[00:11:43] Speaker 01:
Because, Your Honor, any particular medical condition can have someone who is able to mitigate those conditions and serve.

[00:11:50] Speaker 01:
But that doesn't mean that the military cannot implement a disqualifying condition based on that medical condition.

[00:11:56] Speaker 05:
But these seven people that we're positing, if we flip this analysis and recognize the district court didn't have the benefit of Casa versus Trump.

[00:12:04] Speaker 05:
And if we decide that the district court didn't have the authority to enter a universal injunction, then we look, pursuant to Citizens United and several other cases, where the Supreme Court has said you still look to see, as to the named plaintiffs, was there authority to enter relief as to those folks.

[00:12:20] Speaker 05:
So if we're looking at those seven for the moment, I'll just look at those seven as Judge Hurwitz has posited.

[00:12:26] Speaker 05:
Those people not only entered the military, they've served with distinction.

[00:12:30] Speaker 01:
So, Your Honor, it still goes back to the idea that the military is owed deference on whether it can carry out that policy as a general matter and if plaintiffs happen to be within that policy.

[00:12:40] Speaker 01:
No, no, not as a general matter.

[00:12:41] Speaker 05:
We're talking about as to these seven people.

[00:12:43] Speaker 01:
So Your Honor, the same policy that applies would apply to these seven individuals, and the military is still allowed to carry it out when you talk about how to apply intermediate scrutiny.

[00:12:54] Speaker 05:
Well, I guess I'm not following you, because if you can circle back, I was trying to refine and follow up on what Judge Hurwitz was talking about.

[00:13:00] Speaker 05:
If we're talking about as to these seven people, how does this policy, how is it any indication that allowing these seven people to serve somehow erodes the military's purpose here?

[00:13:09] Speaker 01:
So Your Honor, the premise of that question is that these seven individuals should get exemptions from that general policy that the military has implemented.

[00:13:18] Speaker 01:
My argument is that the military is not required.

[00:13:22] Speaker 05:
I'm not talking about exemptions.

[00:13:23] Speaker 05:
I'm talking about means and fit.

[00:13:25] Speaker 05:
These folks are in the military, and they've served with distinction for a number of years.

[00:13:31] Speaker 05:
And I'm trying to figure out how there is any means and fit to further the government's interests here.

[00:13:36] Speaker 01:
So Your Honor, when you look at what the policy does, it presumptively disqualifies based on a medical condition unless you have a waiver.

[00:13:43] Speaker 01:
And we have to demonstrate whether when the military is utilizing its professional judgment and is granted deference, whether that applies in that scenario.

[00:13:54] Speaker 01:
And Karnosky did not.

[00:13:55] Speaker 03:
Because you're making, I'm sorry, finish your answer.

[00:13:57] Speaker 01:
Yeah, so in Karnosky, it did not get into an as-applied challenge.

[00:14:02] Speaker 01:
It talked because even though there were individual plaintiffs that said they could have overcome that, it just asked, one, whether this policy classifies based on trans-identifying status, and then two, if it did, does it satisfy intermediate scrutiny applying the military deference that's due, even though there were individual plaintiffs there?

[00:14:22] Speaker 04:
I would like to ask a question right at this, because I was on Karnosky.

[00:14:27] Speaker 04:
And that it sort of ended up, we had sent it back, but then the election changed.

[00:14:33] Speaker 04:
And so I'm not sure Karnofsky still is good law after Skirmetti.

[00:14:41] Speaker 04:
What is your position on that?

[00:14:44] Speaker 01:
So, Your Honor, there's two arguments I would make on that.

[00:14:48] Speaker 01:
One, you are correct that the Karnofsky court did not have the benefit.

[00:14:51] Speaker 01:
of Skirmety in its analysis.

[00:14:54] Speaker 01:
But two, there is a way to read the two cases harmoniously here.

[00:14:59] Speaker 01:
And the difference being that in the Mattis policy, the term transgender person was used throughout the policy.

[00:15:05] Speaker 01:
So in that respect, the court concluded that it classified based on persons rather than conditions.

[00:15:12] Speaker 01:
Here, this tracks more with Skirmety because the transgender person's term is not used at all in the guidance.

[00:15:18] Speaker 03:
It's simply gender... It is used in the president's executive order.

[00:15:21] Speaker 01:
I don't believe the exact term was used.

[00:15:24] Speaker 03:
He said transsexual in the order, actually.

[00:15:25] Speaker 05:
So this brings me back to my question about how the guidance does not, and I think Judge Callahan's first question, how does the guidance not sweep in all transgender people?

[00:15:35] Speaker 01:
Because, Your Honor, not all trans-identifying people suffer from gender dysphoria.

[00:15:38] Speaker 05:
No, no, no, no.

[00:15:39] Speaker 05:
The guidance is not limited to the diagnosis.

[00:15:45] Speaker 05:
It includes anyone who's ever had a history of or a symptom consistent with

[00:15:50] Speaker 01:
So Your Honor, what that means is if you have symptoms consistent with, then the military would refer you, and then if you get a diagnosis, that would be the basis of discharge.

[00:16:00] Speaker 05:
Are we clear that these seven named plaintiffs are not eligible for any type of an exemption?

[00:16:04] Speaker 05:
They'd be out, right?

[00:16:06] Speaker 01:
So Your Honor, it is correct that these seven individual plaintiffs would not meet the criteria to continue military service based on this policy.

[00:16:15] Speaker 05:
Right.

[00:16:15] Speaker 05:
So as opposed to any hypothetical other folks, as we talk about these seven people.

[00:16:20] Speaker 05:
Now can you circle back and answer my question about the means to end fit?

[00:16:24] Speaker 01:
Yes, Your Honor.

[00:16:25] Speaker 01:
So the military laid out three issues, readiness, good-order discipline, and cost.

[00:16:31] Speaker 01:
And they were looking at the long-term implications.

[00:16:33] Speaker 01:
That's what the Mattis guidance did.

[00:16:35] Speaker 01:
That's what this guidance with the literature review also did in terms of the long-term effects of allowing those with gender dysphoria.

[00:16:43] Speaker 01:
As to these seven plaintiffs,

[00:16:46] Speaker 03:
Tell me what the long-term concern of the government is.

[00:16:49] Speaker 01:
So, Your Honor, let me talk about one.

[00:16:51] Speaker 01:
So, for instance, privacy and interests.

[00:16:55] Speaker 03:
So in Roe v. Critchfield, this court had decided that... But these people have served now for long periods of time with apparently no concern raised by the government about privacy.

[00:17:06] Speaker 03:
I understand your broader class-wide argument, but I want to... Let's assume this was a case brought by one individual, Schilling.

[00:17:15] Speaker 03:
with an exemplary service record.

[00:17:18] Speaker 03:
And she said, you can't kick me out because I'm terrific.

[00:17:24] Speaker 03:
And this policy has applied to me as unconstitutional.

[00:17:30] Speaker 03:
I take it your argument is, well, maybe it would be as applied to you, but we're entitled to apply it across the board.

[00:17:36] Speaker 03:
And if you're collateral damage, that's OK.

[00:17:39] Speaker 03:
So focus on these seven people and tell me if there's any reason, military reason, why these seven people shouldn't continue to serve.

[00:17:49] Speaker 01:
So Your Honor, when we talk about unit cohesion in good or in discipline, that affects everyone around.

[00:17:54] Speaker 03:
So have any of these seven ever affected unit cohesion?

[00:17:57] Speaker 03:
I mean, I take it you've served, if you haven't.

[00:18:00] Speaker 01:
Yes, Your Honor, I have.

[00:18:01] Speaker 03:
I have too.

[00:18:03] Speaker 03:
Unit cohesion is sort of a strange thing to talk about, because God knows what it is.

[00:18:08] Speaker 03:
But tell me what these seven people, how had any of these seven people have affected unit cohesion in the years and years they've been in the service?

[00:18:17] Speaker 01:
So, Your Honor, this points back to Roe v. Critchfield, where the court here said that the government doesn't have to wait till it's an issue for that to be a viable basis to satisfy intermediate scrutiny.

[00:18:27] Speaker 05:
The difficulty now is, at the time of the prior policy, the record only included predictive evidence.

[00:18:34] Speaker 05:
And now we have actual track record of folks serving openly in the military.

[00:18:39] Speaker 05:
And as far as our record goes, it looks like that has happened without incident.

[00:18:44] Speaker 01:
So Your Honor, this is where military deference is an important piece of the puzzle.

[00:18:49] Speaker 04:
I would like to understand what your position is on military deference.

[00:18:55] Speaker 04:
And I think it's your position that the district court didn't really apply any military deference, correct?

[00:19:02] Speaker 01:
That's correct.

[00:19:03] Speaker 01:
And just since I have a minute left before my time's up.

[00:19:06] Speaker 04:
No, I'll give you your rebuttal time.

[00:19:09] Speaker 04:
We have questions.

[00:19:11] Speaker 04:
OK, so just you can relax about that.

[00:19:14] Speaker 04:
You'll get your rebuttal time.

[00:19:15] Speaker 04:
But military deference isn't really a standard of review.

[00:19:22] Speaker 04:
The standard of review is whether it's the rational basis or whether it's the heightened scrutiny.

[00:19:28] Speaker 04:
But military deference, in some way, affects it, injects itself into that.

[00:19:35] Speaker 04:
So I would like you to explain to me your position on that.

[00:19:41] Speaker 01:
Yes, Your Honor.

[00:19:42] Speaker 01:
So the flow chart that I have in mind.

[00:19:44] Speaker 01:
So first you have United States v. Skirmety.

[00:19:46] Speaker 01:
What does it classify based on its face?

[00:19:49] Speaker 01:
If it's a medical condition, rational basis informed by military deference applies.

[00:19:54] Speaker 01:
If there is daylight between Skirmety

[00:19:57] Speaker 01:
and this case, then we're back into Kornowski territory where, let's just say, the court believes that it classifies based on persons rather than medical conditions, then intermediate scrutiny informed by military deference applied.

[00:20:13] Speaker 01:
And the way that I would define military deference and when it should apply goes back to Goldman v. Weinberger, which talks about professional military judgment.

[00:20:24] Speaker 01:
Did the military

[00:20:25] Speaker 01:
utilize its professional judgment when coming up with this policy.

[00:20:30] Speaker 01:
The court concluded that the Mattis policy was an exercise of professional judgment and allowed that policy to take effect.

[00:20:39] Speaker 01:
The only difference between that one and this one is the grandfather clause, which doesn't change the... That's not the only difference.

[00:20:46] Speaker 05:
That's not the only difference.

[00:20:47] Speaker 05:
In that case, as Judge Callahan indicated, there was quite an interval and there was a careful study.

[00:20:53] Speaker 05:
It took

[00:20:53] Speaker 05:
some months as I recall.

[00:20:55] Speaker 05:
That's not the case here sir.

[00:20:57] Speaker 05:
Or at least we don't have that in our record I should say.

[00:20:59] Speaker 01:
So Your Honor, the military didn't start from a blank slate when coming up with this policy.

[00:21:05] Speaker 01:
So it did have the Mattis policy to build off of.

[00:21:08] Speaker 05:
But it doesn't seem to.

[00:21:08] Speaker 05:
Yes, absolutely.

[00:21:09] Speaker 05:
And that's what I was referring to earlier.

[00:21:10] Speaker 05:
Because different administrations have gone different ways on this issue, right?

[00:21:14] Speaker 05:
But the difficulty is that this time, and I'm really anxious to hear your response to this, that the earlier policies were predictive.

[00:21:24] Speaker 05:
There was military judgment about what they thought would happen and how they thought it might play out.

[00:21:30] Speaker 05:
But as I understand this record, this time around the policy was announced right away and without regard to, I don't see where it has taken into consideration the several years of time where people were allowed to serve openly in the military even though they're transgender.

[00:21:48] Speaker 01:
So Your Honor, I would preface that by first stating that when the Austin policy took effect, it was done without looking at what was done, what happened during the Mattis years.

[00:21:59] Speaker 01:
So the military is not required to look at a four-year interval necessarily.

[00:22:04] Speaker 05:
But we're looking for reasoned military judgment is why I ask.

[00:22:07] Speaker 05:
So please, I don't mean to interrupt you, but that's the problem.

[00:22:10] Speaker 05:
How is this reasoned military judgment if it disregards actual experience?

[00:22:14] Speaker 01:
So, Your Honor, when you're looking at the long-term effects, especially given that a number of people did not transition until later in the Austin policy, and the military is looking at, one, the long-term effects, especially in an area where the science is evolving.

[00:22:31] Speaker 01:
So, for instance, Justice Thomas

[00:22:32] Speaker 01:
in his concurrence in the United States peace committee, talked about the foundations of the WPAT study that are no longer in effect.

[00:22:39] Speaker 01:
So the military should have some leeway when you're talking about science that is evolving.

[00:22:44] Speaker 01:
They did a literature review on top of the MATA study, and that's enough to meet the bar of professional military judgment.

[00:22:53] Speaker 01:
What Kornowski warned the court not to do

[00:22:56] Speaker 01:
is to substitute its own evaluation for a reasonable one, which reasonable means if the military utilized its professional judgment in tailoring the policy, which it did in this case, given that it was building off the Maddox policy and did additional literature review on top of that.

[00:23:12] Speaker 03:
And I know you want to save time for rebuttal and then Judge Callahan will go ahead.

[00:23:16] Speaker 04:
Go ahead.

[00:23:17] Speaker 04:
Ask your questions because I have more questions.

[00:23:19] Speaker 03:
But I'm still I'm still focusing on the seven people and it seems to me

[00:23:24] Speaker 03:
what you seem to be saying is that this is a reasonable judgment as applied to people as affected by the policy as a whole.

[00:23:34] Speaker 00:
Yes, Your Honor.

[00:23:34] Speaker 03:
The military's exercised its judgment and said the people covered by the policy, let's forget who's covered for a moment, pose some problems and therefore we don't want to enlist them.

[00:23:47] Speaker 03:
We don't want to keep them.

[00:23:48] Speaker 03:
But can't we just focus on these seven?

[00:23:52] Speaker 03:
In other words, what you seem to be saying is, gee, it's unfortunate we've come up with this policy and we have to apply it across the board because we have concerns about people that are not in the case in front of us.

[00:24:04] Speaker 03:
So tell me why it is that military deference requires that we apply this policy across the board, even as to people who pose none of the dangers that you pose.

[00:24:16] Speaker 01:
So, Your Honor, the reason for that is the military does that with every medical condition.

[00:24:21] Speaker 01:
People can serve honorably with all types of medical conditions, especially ones that they gain in their service.

[00:24:27] Speaker 01:
But at the same time, the military is not prohibited from discharging them.

[00:24:33] Speaker 01:
Even if they had that medical condition when they enlisted?

[00:24:38] Speaker 01:
Yes, Your Honor.

[00:24:38] Speaker 01:
So any condition... Have they been separated?

[00:24:42] Speaker 01:
Uh, no, your honor.

[00:24:43] Speaker 01:
At this particular point, uh, what would the process, the way it would work out is that once they conduct a medical review, they would eventually set out notifications for a discharge board.

[00:24:55] Speaker 01:
And when those processes are exhausted, they get discharged.

[00:24:57] Speaker 01:
But at this point, the, my understanding is the notice is that they're subject to discharge have not gone out yet.

[00:25:04] Speaker 05:
Could you answer judge Herbert's question again?

[00:25:06] Speaker 05:
Just assume.

[00:25:08] Speaker 05:
that at least one of the people on the bench doesn't agree with your premise that this classifies on the basis of transgender diagnosis.

[00:25:15] Speaker 05:
But it, in fact, sweeps in for the reasons that you and I have batted back and forth.

[00:25:19] Speaker 05:
Because of the guidance, it sweeps in all transgender people.

[00:25:23] Speaker 01:
Sure, Your Honor.

[00:25:23] Speaker 01:
So the reason that I was highlighting the idea that medical conditions should apply equally across the board is if the court determines, OK.

[00:25:33] Speaker 05:
I understand the premise of my question.

[00:25:34] Speaker 05:
The premise of my question is this is not based on medical condition.

[00:25:37] Speaker 01:
Yes, Your Honor.

[00:25:38] Speaker 01:
OK.

[00:25:39] Speaker 01:
But the military's claim is that it is.

[00:25:42] Speaker 05:
But if you lose that point, I'm just trying to get you to engage in this.

[00:25:45] Speaker 05:
If you lose on that point, then what is your analysis?

[00:25:48] Speaker 01:
So yes, Your Honor, whether the military has legitimate interests.

[00:25:53] Speaker 01:
And it does, based on readiness, good order and discipline, and cost.

[00:25:58] Speaker 05:
But Judge Herbert's question has to do with these seven people.

[00:26:02] Speaker 05:
So could you tailor your answer to these seven people as to military order

[00:26:06] Speaker 05:
orderliness and lethality and all of the other goals that the military has identified.

[00:26:12] Speaker 01:
Yes, Your Honor.

[00:26:12] Speaker 01:
So when you're addressing the long-term costs of allowing people to serve with this condition, let's assume that it captures the universe of trans-identifying people as a premise, because we still believe that the military is focused on the condition, and no one will be discharged without it.

[00:26:29] Speaker 05:
I think we really understand your position on that point.

[00:26:31] Speaker 05:
But if you just engage in the hypothetical, please.

[00:26:33] Speaker 01:
Yes, Your Honor, because at that point,

[00:26:35] Speaker 01:
it becomes difficult for a court to draw the line as to when the military cannot discharge someone.

[00:26:43] Speaker 01:
Because here's the issue, for instance.

[00:26:45] Speaker 01:
So let's just take a condition unique to, let's just say, males throughout the military.

[00:26:53] Speaker 05:
We want to look at our history.

[00:26:55] Speaker 05:
How about women?

[00:26:56] Speaker 05:
Why couldn't the military say, all of a sudden, now, we were wrong, no women in the military?

[00:27:02] Speaker 01:
So Your Honor, at that point,

[00:27:04] Speaker 01:
That would have some particular issues.

[00:27:06] Speaker 01:
This is a little bit different.

[00:27:07] Speaker 05:
I don't know.

[00:27:08] Speaker 05:
It would, because your position is that this would be unreviewable, that the military's judgment is unreviewable.

[00:27:12] Speaker 05:
If the military decides that women are more expensive because some of them get pregnant, for example, or because some of them go through menopause, maybe some of them have to have hysterectomies, and that's more expensive.

[00:27:22] Speaker 05:
These are silly hypotheticals, to be sure.

[00:27:24] Speaker 05:
But what would, under your theory of analysis here, what would prevent the military from announcing that rule, sir?

[00:27:30] Speaker 01:
So, Your Honor, it would go towards the means and tests for intermediate scrutiny, that you would.

[00:27:37] Speaker 01:
So basically, under readiness, for instance, let's just take what deployability, for instance.

[00:27:44] Speaker 01:
There are long-term issues, let's say with PTSD or other things, that can't possibly be mapped out based on one individual person's experience.

[00:27:53] Speaker 01:
And the issue is whether the military can have that general policy apply across the board.

[00:27:58] Speaker 05:
The question is, couldn't they have the policy that excludes women?

[00:28:02] Speaker 05:
What would be different in your analysis?

[00:28:04] Speaker 05:
It seems to me you would still say that it's unreviewable and that they could say, hey, this particular group, in this case, this hypothetical women, are too expensive.

[00:28:11] Speaker 05:
They're out.

[00:28:12] Speaker 01:
So Your Honor, I'm not saying that the policy is not reviewable.

[00:28:15] Speaker 01:
I'm saying that the court applies the standard in Karnosky, which is that it... OK.

[00:28:21] Speaker 05:
OK.

[00:28:21] Speaker 05:
So let's say the military exercises its judgment, and it says that it's done a study, and it decides no more women in the military.

[00:28:27] Speaker 05:
What would prevent it from doing that?

[00:28:29] Speaker 05:
Or maybe your position is that nothing would prevent them from doing that.

[00:28:31] Speaker 05:
But I struggle to see the limits of your argument.

[00:28:35] Speaker 01:
So Your Honor, if it was a situation where the full universe of women were covered and discharged instead of based on a medical condition, then you would have issues as to whether there is a legitimate interest that is there in the case.

[00:28:52] Speaker 03:
But now I'm interested in this because you're again changing Judge Christen's hypothetical.

[00:28:57] Speaker 03:
Judge Christen's hypothetical was assume for purposes of this question that all transgendered people are covered by this policy.

[00:29:05] Speaker 03:
that it's not a policy that discriminates on the basis of medical condition.

[00:29:10] Speaker 03:
And now, if that's so, then I'm trying to figure out why the military couldn't say, we really don't want women.

[00:29:18] Speaker 03:
They're subject to getting pregnant.

[00:29:20] Speaker 03:
They have periods.

[00:29:23] Speaker 03:
They suffer menopause.

[00:29:25] Speaker 03:
They pose additional problems for readiness and deployability.

[00:29:30] Speaker 03:
We choose in our military judgment not to have them.

[00:29:33] Speaker 03:
Would that policy under this reasoning be OK?

[00:29:36] Speaker 01:
So Your Honor, that same hypothetical would have been President Kornowski.

[00:29:40] Speaker 03:
I want to answer your question.

[00:29:44] Speaker 03:
There's a question.

[00:29:44] Speaker 03:
Under your analysis, accepting Judge Christen's hypothetical that this classifies on the basis of transgender status rather than medical condition,

[00:29:54] Speaker 03:
wouldn't it be okay to exclude all women?

[00:29:57] Speaker 01:
So, Your Honor, the analysis would still be different because, one, you would have to ask questions about whether the military utilized its professional judgment and under what circumstances.

[00:30:07] Speaker 03:
Let's assume they did it exactly the same way as they did it here, which is to say there was a policy that allowed transgender people to serve and they decided to change it based on an executive order from the president.

[00:30:20] Speaker 03:
Would that be okay?

[00:30:25] Speaker 03:
It seems to me your answer to the question has to be yes.

[00:30:28] Speaker 03:
The military could exclude women if it wanted to.

[00:30:31] Speaker 01:
No, Your Honor, because this current policy was based on the Mattis policy, which did a thorough review.

[00:30:38] Speaker 01:
It had 13 experts meet over the course of 90 days and came out with a full report and then did a literature review on the issue.

[00:30:46] Speaker 01:
So it would be tough to imagine a scenario where the military could utilize its professional judgment and come to that conclusion.

[00:30:52] Speaker 05:
The military did that for a long time, sir.

[00:30:55] Speaker 01:
So, Your Honor, at this particular point, there is no equivalent study done by the military on the issue, and there would be serious concerns as to whether it meets the qualification for professional judgment, much less meeting the intermediate scrutiny test, if that was the case.

[00:31:14] Speaker 04:
But if it did, then the military could do that.

[00:31:18] Speaker 01:
So if it satisfied intermediate scrutiny, that is shaped by the military deference.

[00:31:26] Speaker 04:
But women already, the Supreme Court has put them in a different class than transgenders, correct?

[00:31:34] Speaker 01:
That's correct.

[00:31:35] Speaker 04:
I mean, right now, we don't know what the Supreme Court's going to do.

[00:31:38] Speaker 04:
Skirmety, they skirted the issue.

[00:31:42] Speaker 04:
decide whether the transgenders are a suspect class.

[00:31:47] Speaker 04:
They said they didn't need to because they were dealing with a medical condition.

[00:31:52] Speaker 04:
They didn't decide about Bostock, correct?

[00:31:56] Speaker 04:
That's correct, Your Honor.

[00:31:57] Speaker 04:
Which is a Title VII case, correct?

[00:32:00] Speaker 04:
That is correct.

[00:32:01] Speaker 04:
And although I think a couple of the justices, perhaps Alito and Thomas, opined that they didn't think that Bostock

[00:32:10] Speaker 04:
went over into this area.

[00:32:12] Speaker 04:
So we don't really know what they're going to do there.

[00:32:14] Speaker 04:
And my understanding is that we also have what HECOX out of this circuit, where CERT was granted, and then I think there's another Fourth Circuit case.

[00:32:27] Speaker 04:
So to date,

[00:32:32] Speaker 04:
Probably somewhere the Supreme Court's going to have to say whether they're a suspect class and what the level of scrutiny is.

[00:32:41] Speaker 04:
It sounds like it's teed up, correct?

[00:32:44] Speaker 04:
That's correct, Your Honor.

[00:32:46] Speaker 04:
So I'm just not certain what they're going to say.

[00:32:50] Speaker 04:
I mean, I'm trying to read the tea leaves.

[00:32:52] Speaker 04:
And in this case, the Supreme Court granted a stay at the government's request because they said the government had a probability of success.

[00:33:05] Speaker 04:
Now, I don't know what we can read from that.

[00:33:09] Speaker 04:
Those two other cases where they granted cert, in those cases, my understanding, there wasn't a split in the circuit, but both of those cases struck down a law and applied

[00:33:20] Speaker 04:
heighten scrutiny does it make any sense and the district court here did not have the benefit of scrimmage that's correct

[00:33:29] Speaker 04:
Even though I think the district court said, even under a rational basis, it would still find that the plaintiffs prevail, right?

[00:33:41] Speaker 04:
That's correct.

[00:33:43] Speaker 04:
So would it make sense to remand this to the district court to apply scrimmety in the first instance?

[00:33:51] Speaker 04:
I mean, you think scrimmety goes to your benefit, correct?

[00:33:56] Speaker 01:
So, Your Honor, there is one key aspect of this.

[00:33:59] Speaker 01:
The Supreme Court stay in this case was actually granted before Skirmetty had come out.

[00:34:04] Speaker 01:
So we believe that there are a wide variety of ways that the court can get to upholding the policy, even if you discount Skirmetty.

[00:34:13] Speaker 01:
So you don't want us to hold the case.

[00:34:15] Speaker 01:
You want us to decide in your favor.

[00:34:17] Speaker 01:
So, Your Honor, we don't believe that remand is necessary.

[00:34:19] Speaker 01:
The answer to my question is yes.

[00:34:23] Speaker 03:
Very simple question.

[00:34:24] Speaker 03:
Do you want us to hold this case, or do you want us to decide it?

[00:34:28] Speaker 01:
So, Your Honor, we believe that it should be decided on the grounds that the government stated.

[00:34:34] Speaker 01:
Thank you.

[00:34:34] Speaker 04:
All right.

[00:34:35] Speaker 04:
But then, that's you're assuming that you're winning.

[00:34:39] Speaker 03:
You don't get to know that in advance.

[00:34:42] Speaker 04:
Yeah, you don't get to know that in advance is right.

[00:34:45] Speaker 04:
And you're saying what standards should we apply?

[00:34:52] Speaker 04:
Do you win under both heightened scrutiny and rational basis from your perspective?

[00:34:59] Speaker 01:
Yes, we do.

[00:34:59] Speaker 01:
And we also have the Supreme Court stay in effect.

[00:35:03] Speaker 01:
So while the policy is allowed to take effect, yes, we would welcome a decision from this court rather than a remand.

[00:35:10] Speaker 03:
This is a serious question.

[00:35:13] Speaker 03:
As Judge Callahan pointed out, there are cases pending in the Supreme Court that may or may not affect the standard of review.

[00:35:21] Speaker 03:
It's possible we could just sit on this case and wait for them, but you don't want us to do that.

[00:35:27] Speaker 03:
That's what you just said.

[00:35:28] Speaker 01:
So, Your Honor, obviously the court can do whatever.

[00:35:30] Speaker 03:
We can do whatever we want.

[00:35:31] Speaker 03:
I'm asking what you want.

[00:35:32] Speaker 01:
Yes, Your Honor.

[00:35:33] Speaker 01:
We do believe that a decision would be appropriate.

[00:35:36] Speaker 01:
Thank you.

[00:35:37] Speaker 01:
And so, yes, so we believe that we would win whether it's rational basis or intermediate scrutiny, whether it's informed or not informed by military deference.

[00:35:47] Speaker 01:
That would be our position.

[00:35:50] Speaker 04:
Do my panel have any further questions?

[00:35:53] Speaker 04:
All right.

[00:35:54] Speaker 04:
We don't have further questions.

[00:35:55] Speaker 04:
I'll give you five minutes for rebuttal.

[00:35:57] Speaker 04:
Thank you, Your Honor.

[00:36:07] Speaker 04:
You'll probably have longer, too.

[00:36:10] Speaker 04:
As you can see, we have a lot of questions.

[00:36:12] Speaker 04:
So I try to even it up.

[00:36:15] Speaker 02:
Appreciate that very much, Your Honor.

[00:36:16] Speaker 02:
Thank you.

[00:36:22] Speaker 02:
May it please the court?

[00:36:23] Speaker 02:
My name is Sasha Bookert with Lambda Legal, and I am here representing the appellees in this matter.

[00:36:29] Speaker 02:
Your honors, before I start, I just want to say that we do believe that this policy is facially unconstitutional, but also certainly as applied to the individual plaintiffs in this matter, the seven plaintiffs that you've been discussing.

[00:36:44] Speaker 03:
I would like to- If you're making a facial challenge, and I want you to address this,

[00:36:50] Speaker 03:
you would have to demonstrate that there's nobody to whom the policy could be constitutionally applied.

[00:36:57] Speaker 03:
And whether or not gender dysphoria is a marker for the word transgender or whether or not it's just something that many people in the group suffer from, surely there are some people in the group to whom the policy could be constitutionally applied, aren't there?

[00:37:14] Speaker 02:
Your Honor, we would respectfully disagree with that assessment.

[00:37:17] Speaker 02:
We believe that every transgender person in the military is affected and harmed by this policy.

[00:37:24] Speaker 03:
That's a different point.

[00:37:24] Speaker 03:
That's a different question.

[00:37:26] Speaker 03:
Whether they're harmed by it is not the question.

[00:37:28] Speaker 03:
The question is whether or not a policy that disqualified people with gender dysphoria, even if it describes the entire class, couldn't be constitutionally be applied to at least one member of the class.

[00:37:43] Speaker 03:
Because in a facial challenge, you have to show that there's no circumstance under which the policy.

[00:37:49] Speaker 03:
We've always said, don't bring facial challenges because it's a tough mountain to climb.

[00:37:54] Speaker 03:
And so how do you climb that mountain?

[00:37:56] Speaker 03:
Surely there are some people in the group of people that you described that may have such severe gender dysphoria that they are disqualified from service.

[00:38:06] Speaker 02:
Understood, Your Honor.

[00:38:08] Speaker 02:
Well, the policy discriminates against a group of persons.

[00:38:13] Speaker 03:
Discriminating against a medical condition so it would apply to everyone and I would say that in response to your question I would say that you know that applies to everyone but some people in that group Some people in that group of persons may have Disqualifying gender dysphoria, you know, you don't contest that do you your honor?

[00:38:31] Speaker 03:
No, but we would say that they may be so anxious and suffer from what the DSM talks about that they're not they're not

[00:38:38] Speaker 03:
proper subjects for military service.

[00:38:41] Speaker 03:
So I'm trying to figure out how it is that you can claim that there is no one to whom the policy may be constitutionally applied.

[00:38:50] Speaker 02:
Your Honor, because the policy targets all transgender people, and the military has neutral service-based standards, for example, that the seven plaintiffs have been subjected to, and this is creating

[00:39:06] Speaker 02:
For example, if you want to enlist in the military, you have to go through a screening to assess whether you've got issues with suicidality.

[00:39:13] Speaker 02:
Or if you have other conditions, there's just neutral standards that are available to apply to people that are experiencing gender dysphoria or any other condition.

[00:39:21] Speaker 02:
But to classify all transgender people as presumptively unfit to serve is discriminatory.

[00:39:27] Speaker 05:
What about the problem we've got with the district court not having had access to the benefit of CASA versus Trump?

[00:39:34] Speaker 02:
Your Honor, we believe that the district court got the analysis right, and we believe that a universal injunction in this case is appropriate because... Well, but it basically, CASA doesn't bode well in your favor.

[00:39:48] Speaker 04:
I mean, you have to show some extraordinary circumstances, and so you still think you should be entitled to a universal injunction?

[00:39:59] Speaker 02:
Yes, Your Honor.

[00:40:00] Speaker 02:
The President of the United States has labeled transgender people, per se, not a medical condition, but transgender people, per se, as dishonorable.

[00:40:07] Speaker 03:
Nothing we do can change the opinion of the President of the United States.

[00:40:11] Speaker 03:
So why don't your seven, your eight named plaintiffs, but I'm focusing on the active duty people for a moment.

[00:40:18] Speaker 03:
Why don't they get complete relief if the injunction applies to them, as opposed to applying everybody in the world?

[00:40:26] Speaker 02:
Because they will be forced to live under a cloud of uncertainty because of the animus.

[00:40:30] Speaker 03:
But none of the injunction will say they cannot be removed from the service because of their transgender status.

[00:40:35] Speaker 02:
But from the president on down through the Secretary of Defense?

[00:40:38] Speaker 03:
They may all have terrible views and say awful things about your clients.

[00:40:43] Speaker 03:
Nothing we do.

[00:40:44] Speaker 03:
will prevent them from saying anything of those things.

[00:40:47] Speaker 03:
So I'm trying to figure out why your clients don't get complete relief.

[00:40:51] Speaker 03:
I understand their lives may not be peachy keen under this Secretary of Defense or this administration, but that's not our job.

[00:40:59] Speaker 03:
So they're complaining about a policy being applied to them.

[00:41:03] Speaker 03:
What if we were to say it can't be applied to them?

[00:41:06] Speaker 03:
Why don't they then have complete relief?

[00:41:09] Speaker 02:
Because I just don't think that's a practical solution given the rhetoric that the president has used and the fact that, you know, people have to deploy constantly in the service and they're going to be faced with... What can we do to affect the rhetoric that the president used?

[00:41:21] Speaker 02:
Well, it's not just the rhetoric, Your Honor.

[00:41:23] Speaker 02:
It's infiltrated into policy.

[00:41:25] Speaker 02:
There's a policy saying that literally transgender people cannot meet the rigorous standards for military service.

[00:41:30] Speaker 03:
I asked you to assume for a moment that we were going to uphold an injunction of application of the policy against the seven active duty members.

[00:41:39] Speaker 03:
Why don't they have complete relief under the CASA analysis if we do that?

[00:41:45] Speaker 02:
Your Honor, again, because the animus and the viewpoint discrimination that is infiltrated to every part of the military will prevent that from happening.

[00:41:56] Speaker 02:
When they're deployed to a new unit, they'll have the same experience.

[00:41:58] Speaker 05:
But CASA talks about the authority.

[00:42:01] Speaker 05:
This goes back to Judge Callahan's point.

[00:42:03] Speaker 05:
It talks about the district court's authority to enter this type of an injunction.

[00:42:06] Speaker 05:
I think the arguments you're making, I can well imagine them being this problem, being

[00:42:15] Speaker 05:
Presented package as a class action where there need to be you know of course commonality typicality You know all of the of the requirements to to identify a class But what judge Callahan's question really goes to the court's authority to enter this type of an injunction Yeah, what's your bit?

[00:42:29] Speaker 05:
What's your best answer to judge Callahan's question?

[00:42:31] Speaker 05:
Why did the why did the district court have authority for this?

[00:42:34] Speaker 02:
Well, Your Honor, the court made the decision, issued the decision, obviously, before that.

[00:42:38] Speaker 02:
So we think that the court and the district court's reasoning should be upheld.

[00:42:44] Speaker 02:
But the court did ask for guidance from this court if you feel it's appropriate.

[00:42:49] Speaker 02:
But we feel like the reasoning was appropriate, given the lack of complete relief for the plaintiffs.

[00:42:55] Speaker 05:
So one thing we've pointed out is that in other instances, the Supreme Court has said, schmeichel, schmeichel.

[00:43:01] Speaker 05:
There are certainly circumstances where a claim has been argued as a facial challenge.

[00:43:06] Speaker 05:
And the Supreme Court has, much more diplomatically than I just did, much more precisely talked about that.

[00:43:11] Speaker 05:
That is a fluid concept.

[00:43:13] Speaker 05:
And so we don't throw it out necessarily.

[00:43:15] Speaker 05:
We look to see whether the court had authority to grant relief to the named plaintiffs.

[00:43:18] Speaker 05:
And we've been talking all day about the seven.

[00:43:20] Speaker 05:
There's, of course, an eighth.

[00:43:22] Speaker 05:
And then there's an organizational plaintiff.

[00:43:23] Speaker 05:
I want to talk about those as well.

[00:43:25] Speaker 05:
But it seems to me now that you're right, the District Court didn't have the benefit of CASA, but we do.

[00:43:30] Speaker 05:
And so for the posture of this case, we would have to show that there's a likelihood of success on the merits of the scope of this injunction.

[00:43:38] Speaker 05:
And that seems to me to be a really tough hill for you to climb.

[00:43:42] Speaker 05:
Judge Callahan asked you the same question.

[00:43:43] Speaker 05:
What's your best answer to that?

[00:43:47] Speaker 02:
Your Honor, the best answer that I have to that question is that given the animus involved with this and the way that this has been operationalized within the entire US military,

[00:43:57] Speaker 02:
and characterizing transgender people as being dishonest and lacking selfishness, there is simply no way that they're going to be able to be viewed as equals to their peers and have the same opportunities that other service members are going to have under that cloud of uncertainty.

[00:44:13] Speaker 05:
So Citizens United said the distinction between facial and as applied challenges goes to the breadth of the remedy employed by the court.

[00:44:19] Speaker 05:
So that's what we're talking about, whether the court had the authority here.

[00:44:22] Speaker 05:
The comments that you're talking about, some of them are, I would say, defamatory, certainly disparaging.

[00:44:30] Speaker 05:
And I think opposing counsel is quite candid in the district court that there is not evidence in the record to support

[00:44:35] Speaker 05:
attributing those attributes to transgender people.

[00:44:39] Speaker 05:
But it seems to me, so I've been trying to figure out what to do with that.

[00:44:41] Speaker 05:
The district court didn't make an animus finding here, but it seems to me this the very blatantly disparaging comments that were attributed to transgender people might factor in at the top of the analysis when we talk about the degree of

[00:44:59] Speaker 05:
deference to the military.

[00:45:01] Speaker 05:
There's some authority for that, some support for that in the Department of Commerce case.

[00:45:06] Speaker 05:
But it might factor in at the bottom on the means to ends fit.

[00:45:12] Speaker 05:
Where do you think that we take into account those very disparaging comments?

[00:45:17] Speaker 02:
Your Honor, it's got to be to the scope of the means fit scope of the harm that's happening here to the plaintiffs.

[00:45:26] Speaker 02:
You know, they're not going to be able to serve anywhere without having that cloud of uncertainty over them.

[00:45:34] Speaker 02:
That's the best answer I have.

[00:45:38] Speaker 05:
Okay, I appreciate that.

[00:45:41] Speaker 02:
And, Your Honors, I just wanted to touch on the discussion about Skirmety.

[00:45:44] Speaker 02:
We believe that, you know, Karnosky is still binding in law.

[00:45:46] Speaker 02:
Skirmety was very clear.

[00:45:47] Speaker 02:
It involved a case, you know, where, you know, youth had, where there was a statute, Tennessee statute passed that prohibited certain treatments for transgender youth, and the court held that it classified based on medical use and age.

[00:45:59] Speaker 02:
But the court was crystal clear that if it regulated a class of persons identified on the basis of a specific characteristic, that the analysis in Scrametti wouldn't apply.

[00:46:16] Speaker 03:
Let's assume I agree with you about Scrametti.

[00:46:19] Speaker 03:
I asked your friend whether we should wait for the Supreme Court to decide some of its pending cases, and he

[00:46:28] Speaker 03:
eventually said, no, we should go ahead and decide this one now.

[00:46:31] Speaker 03:
I take it that's your view too?

[00:46:33] Speaker 02:
I think the case should be decided now.

[00:46:34] Speaker 02:
The seven active plaintiffs that we've been talking about, we're in touch with them regularly.

[00:46:39] Speaker 02:
And they're already experiencing irreparable harm.

[00:46:42] Speaker 04:
The record doesn't.

[00:46:44] Speaker 04:
But the Supreme Court disagreed with you on that point.

[00:46:48] Speaker 04:
They granted a stay in this case.

[00:46:50] Speaker 04:
Your Honor, I don't think that they're.

[00:46:51] Speaker 04:
I mean, we have to think about what the Supreme Court's doing.

[00:46:56] Speaker 04:
How are you reading the tea leaves?

[00:46:59] Speaker 02:
I don't think that you can draw any merits conclusions from this day.

[00:47:04] Speaker 03:
Well, Justice Gorsuch and Kavanaugh tell us we should.

[00:47:08] Speaker 05:
Perhaps one conclusion is that the court didn't have authority to enter a universal injunction.

[00:47:13] Speaker 02:
I'm sorry.

[00:47:14] Speaker 05:
Perhaps one conclusion is that the Supreme Court had a pretty good idea that the district court wasn't going to be left with the authority to enter a universal injunction.

[00:47:22] Speaker 02:
Absolutely.

[00:47:23] Speaker 02:
And they probably wanted the court to reconsider the case in light of the pending Scrametti case that was coming out, because it was around that time.

[00:47:31] Speaker 05:
All of that was up in the air.

[00:47:33] Speaker 05:
Yes.

[00:47:33] Speaker 05:
What about the organizational

[00:47:36] Speaker 05:
Plaintiff that I'm a little bit troubled by that the organization so we look at the for standing purposes We look at who's a plane you know on the day of the of the complaint was filed the organizational plaintiff was But I think at the time of course you're advancing a facial challenge then and

[00:47:53] Speaker 05:
I think we would have to, if we were inclined to grant relief or think that they're entitled to relief, it would be much more limited than the entire League, right?

[00:48:06] Speaker 05:
Because the executive director, first of all, says that the League includes transgender people.

[00:48:10] Speaker 05:
She doesn't say that it's limited to transgender people on this record.

[00:48:14] Speaker 02:
That's correct, Your Honor.

[00:48:15] Speaker 02:
There are veterans and actively serving members that are members of the Gender Justice League.

[00:48:19] Speaker 05:
Okay, and so there's some retired people, as you mentioned, so they'd have to be, in order for the band to be subject to them, they would have to be actively serving, right?

[00:48:28] Speaker 02:
That's correct, Your Honor.

[00:48:29] Speaker 05:
Okay, and the other thing I really don't know what to do with this, the executive directors, it's at ER 948, the declaration says that that organization, that the League, advocates on behalf of transgender people in Washington state.

[00:48:45] Speaker 05:
So are we talking about a universe of people in the military who are from Washington state?

[00:48:49] Speaker 02:
No, Your Honor.

[00:48:50] Speaker 02:
Let me just clarify.

[00:48:51] Speaker 02:
They're headquartered in Washington State, but they have membership that exists all around the world.

[00:48:56] Speaker 05:
OK.

[00:48:57] Speaker 05:
So do you agree, then, if we were to go forward, at most, the League, as an organizational plaintiff, could only represent folks among their membership who are actively serving and who are transgender and who have not retired?

[00:49:13] Speaker 02:
Yes, Rhonda.

[00:49:14] Speaker 02:
We would be comfortable with that.

[00:49:15] Speaker 04:
Did the district court make it?

[00:49:16] Speaker 04:
But is that what you were asking for?

[00:49:18] Speaker 04:
You're saying you'd be comfortable with that, but what were you asking for?

[00:49:22] Speaker 02:
Yes, Your Honor, we are requesting full relief on behalf of the actively serving membership of Gender Justice League, who are transgender service members.

[00:49:31] Speaker 03:
I have a question about the league.

[00:49:34] Speaker 03:
I looked at the district court opinion, and I may have missed it.

[00:49:37] Speaker 03:
Did the district court ever make a separate associational standing finding

[00:49:41] Speaker 03:
with respect to the league.

[00:49:43] Speaker 03:
It probably didn't have to, because it had in front of it plaintiffs with obvious standing.

[00:49:48] Speaker 03:
But did it go through the three elements of associational standing?

[00:49:53] Speaker 03:
It did not, Your Honor.

[00:49:54] Speaker 03:
It did not?

[00:49:56] Speaker 03:
Isn't that something we ought to ask the district court to do in the first instance, since it's a fact-based analysis?

[00:50:02] Speaker 03:
Yes, Your Honor, that would be appropriate.

[00:50:04] Speaker 03:
Can I ask you about, I think the name is Mr. Medina, or Medina?

[00:50:09] Speaker 03:
The applicant.

[00:50:11] Speaker 03:
Is the person who hasn't served yet in a different position than the people who have served?

[00:50:18] Speaker 03:
I take your friend's argument to be, we can't point to any particular problems with these seven people, but we want to have a policy that applies across the board.

[00:50:29] Speaker 03:
He can correct my mischaracterization of it later if I've mischaracterized it.

[00:50:35] Speaker 03:
It seems to me there's a different argument with respect to people who have never served.

[00:50:40] Speaker 03:
If people have never served and a number of them may have a medical condition that may be disqualifying, can the Army be prophylactic and say, we're just not going to admit you into this, into the military?

[00:50:59] Speaker 03:
And it seems to me that the equities are quite different with respect to the serving members and an applicant.

[00:51:05] Speaker 03:
So would you address whether there's a difference between

[00:51:08] Speaker 02:
Certainly a difference in the standards.

[00:51:11] Speaker 02:
The military has a much stronger interest in retaining service members.

[00:51:16] Speaker 02:
Their retention policies are extremely liberal and they don't

[00:51:21] Speaker 02:
categorically prohibits actively serving folks under the retention standards, if you've got an eating disorder or if you've got anxiety disorder.

[00:51:32] Speaker 03:
I'm not sure you're answering my question.

[00:51:34] Speaker 03:
My question is, could the military, under even an intermediate level of review, say, we have concerns.

[00:51:43] Speaker 03:
They're forward-going concerns, to be sure.

[00:51:45] Speaker 03:
But they're rational.

[00:51:46] Speaker 03:
They're a nematous report.

[00:51:48] Speaker 03:
about effects on our legitimate objectives.

[00:51:52] Speaker 03:
So with respect to people that we haven't admitted yet, we just want to avoid those.

[00:51:58] Speaker 03:
We may have a different set of interests with respect to people that have served and have been here and have shown that they don't implicate those concerns.

[00:52:05] Speaker 03:
So I'm trying to figure out whether there's a difference constitutionally between the applicant and the people who are serving.

[00:52:13] Speaker 02:
No, Your Honor.

[00:52:13] Speaker 02:
I think the answer is the same.

[00:52:14] Speaker 02:
I was making a distinction between the military's policy

[00:52:17] Speaker 02:
which is different for accessions.

[00:52:20] Speaker 02:
But the legal standard remains the same, is that they need to show their homework.

[00:52:25] Speaker 02:
They need to show that their policy is supported by justifications, showing that there have been, under intermediate scrutiny, that there has been problems with.

[00:52:33] Speaker 03:
Does there have to have been documented problems under intermediate scrutiny?

[00:52:38] Speaker 03:
Or is it only enough that applying military deference is?

[00:52:41] Speaker 03:
Judge Callahan, I have the same problem Judge Callahan does.

[00:52:44] Speaker 03:
I'm not sure what it means, but I know it's there.

[00:52:46] Speaker 03:
applying military deference, we can say this is not an unreasonable evaluation by the military.

[00:52:53] Speaker 02:
No, Your Honor.

[00:52:54] Speaker 02:
I think very little deference should be given here for a number of reasons.

[00:52:57] Speaker 02:
The Secretary of Defense asked the DOD to go, quote, outside the normal DOD issuance process in the memo.

[00:53:05] Speaker 02:
And the testimony that we submitted from the undersecretaries that

[00:53:09] Speaker 02:
talked about the process said it was an extreme departure from typical military.

[00:53:16] Speaker 02:
It bore none of the hallmarks of standard military policy.

[00:53:19] Speaker 02:
It didn't invite stakeholders to discuss the policy.

[00:53:23] Speaker 02:
It didn't ask for recommendations.

[00:53:25] Speaker 02:
And the most damning thing, though, is that they just didn't look the last seven years.

[00:53:30] Speaker 02:
They prop it up almost entirely on the Mattis Report, which came to a different result.

[00:53:35] Speaker 02:
They had a reliance exception.

[00:53:36] Speaker 02:
This doesn't.

[00:53:38] Speaker 02:
There have been hundreds, if not thousands, of transgender service members that have been enlisted in the military in the last four years.

[00:53:44] Speaker 02:
And even before that, we have two plaintiffs that have been serving since 2015 and 2016.

[00:53:47] Speaker 02:
And there's all kinds of data at their fingertips.

[00:53:50] Speaker 02:
They can just look it up.

[00:53:51] Speaker 03:
Are you saying the Mattis report is no, that the Mattis policy is no longer constitutional, given that there's been four years of experience since then?

[00:54:01] Speaker 02:
No, Your Honor, I'm saying that the reliance upon the Mattis report to try to prop up the deference question here doesn't hold any water.

[00:54:09] Speaker 03:
No, but let me ask you a question.

[00:54:10] Speaker 03:
Let's assume we were today faced with the Mattis policy, the policy based on the Mattis report, which is don't enlist, but don't kick out.

[00:54:20] Speaker 03:
That's a shorthand for the Mattis policy.

[00:54:23] Speaker 03:
Would that be unconstitutional?

[00:54:27] Speaker 02:
Your Honor, we would have to get a close look at if that were another policy that were issued by the DOD.

[00:54:36] Speaker 03:
The old policy, don't stick animus into it.

[00:54:40] Speaker 03:
Don't play with the hypothetical.

[00:54:43] Speaker 03:
The government says today, we love the Mattis policy and we want to continue it.

[00:54:49] Speaker 03:
And you bring a lawsuit on behalf of people who have not yet enlisted saying that policy is unconstitutional.

[00:54:56] Speaker 02:
It would be a closer call for sure, but we would still challenge it as unconstitutional.

[00:55:00] Speaker 04:
Under the current state of the law, is gender dysphoria a medical condition?

[00:55:08] Speaker 02:
Well, Your Honor, not to be difficult here.

[00:55:12] Speaker 02:
So gender dysphoria is a diagnosis within the DSM, but it's also a symptom that people experience as part of the diagnosis of gender dysphoria.

[00:55:25] Speaker 04:
If it is a medical condition and people are not admitted to the military or they're separated from the military after good service for medical conditions under all sorts of circumstances, what kind of policy can there be on gender dysphoria that, in your view, would pass constitutional scrutiny?

[00:55:49] Speaker 02:
Yes, your honor, thank you.

[00:55:50] Speaker 02:
It would be a policy that didn't target the class of persons, you know, it didn't, you know, do as this does in every phase of the process, you know, call out that this is about transgender people per se.

[00:56:00] Speaker 04:
It wouldn't have... Well, would it, but I guess, but wouldn't gender dysphoria always include transgender people?

[00:56:08] Speaker 04:
I mean, I'm understanding your position to say not all transgender individuals

[00:56:14] Speaker 04:
have gender dysphoria, but wouldn't all people that have gender dysphoria be trans people?

[00:56:22] Speaker 02:
That's correct, Your Honor, yes.

[00:56:23] Speaker 04:
Okay, so what kind of policy, if it is a medical condition, which Grimetti seems to indicate that it is, and it is in the DSM, and the military does have the authority to exclude people with certain medical conditions,

[00:56:40] Speaker 04:
tell me what would be a policy regarding gender dysphoria that could pass constitutional scrutiny?

[00:56:49] Speaker 02:
Your Honor, I would respectfully disagree that Skrimetti says that this Skrimetti applies here, but I think here what would make it constitutional is, aside from the animus and the targeting of persons, is to treat it like a medical condition.

[00:57:03] Speaker 02:
They don't treat this like a medical condition.

[00:57:05] Speaker 02:
you're not eligible for a disability evaluation process, you know, and you're just presumptively, you know, fit to categorically unfit to serve, which is inconsistent with how they, again, you know, if you look at the retention standards, it's littered with one phrase, and that's absent appropriate treatment, then you got to go, meaning that, you know, treatments are, you know,

[00:57:28] Speaker 02:
Assessments are on a case-by-case basis.

[00:57:30] Speaker 02:
So it would be treated like a medical condition, like any other medical condition, and it would be backed by science and evidence and some kind of study.

[00:57:40] Speaker 02:
Here we have none of those things.

[00:57:42] Speaker 03:
But put aside this policy for a second, which seems to define the class of people subject to the policy in a way that encompasses every transgender person, because somebody at some point must have

[00:57:55] Speaker 03:
suffered from gender dysphoria or had some symptoms of it.

[00:57:59] Speaker 03:
But this is a hypothetical question.

[00:58:03] Speaker 03:
Let's assume the policy said, we're going to exclude everybody with gender dysphoria.

[00:58:08] Speaker 03:
And it turned out that excluded 99% of, with current gender dysphoria, that included 99% of transgender people.

[00:58:17] Speaker 03:
Would that be constitutional?

[00:58:20] Speaker 03:
You know, without more information, Your Honor, I can't suggest... The problem is when I ask hypotheticals, you don't get any more information.

[00:58:28] Speaker 03:
You get to deal with the information I gave you.

[00:58:30] Speaker 03:
It seems to me if this truly were a classification based on a current medical condition or a current diagnosis of something in the DSM, you'd have a much more difficult time, wouldn't you?

[00:58:45] Speaker 03:
Your argument depends on the district court's finding, in effect, that this is a marker.

[00:58:52] Speaker 03:
No matter what this policy says, when you look at it and break it down into its components, it's really discrimination against transgendered people.

[00:59:01] Speaker 03:
If it were really only discrimination against people currently suffering from a recognized thing in the DSM, wouldn't you have a much more difficult time?

[00:59:12] Speaker 02:
Certainly, your honor, because there wouldn't be the other factors.

[00:59:19] Speaker 03:
You're right.

[00:59:20] Speaker 03:
Now my next question, and this is the hard one, is what if it really does match up neatly with the class?

[00:59:26] Speaker 03:
In other words, what if there were evidence that everybody in the class of people want to represent, and this is not a class action.

[00:59:35] Speaker 03:
95% of them have this condition.

[00:59:38] Speaker 03:
Does the military really have to have a policy for sorting out the other 5% or can it just exclude the whole group?

[00:59:45] Speaker 02:
Your Honor, the burden lies with them to provide, you know, justifications to substantially further their objective.

[00:59:53] Speaker 02:
And, you know, they haven't done it here, and I don't know if they've done it in that context, but that would be the analysis is to look at, you know, if they just ignored the last seven years, I would say absolutely not.

[01:00:04] Speaker 02:
If they had some kind of evidence, there might be a closer call, but there's just none of that here.

[01:00:10] Speaker 04:
Let me ask you about, are the plaintiff's First Amendment and procedural due process claims dependent on their underlying equal protection claims?

[01:00:23] Speaker 04:
In other words, if they do not prevail on the equal protection claims, can they prevail on the First Amendment and procedural due process claims?

[01:00:33] Speaker 02:
Yes, Your Honor.

[01:00:35] Speaker 02:
They can prevail aside from our equal protection claim.

[01:00:38] Speaker 02:
They're not contingent on the equal protection claim.

[01:00:40] Speaker 04:
I'm having a hard time seeing that.

[01:00:42] Speaker 04:
I see that the ball of wax for you is the equal protection.

[01:00:47] Speaker 04:
That if you lose on that, I don't see how you can win on the other ones.

[01:00:54] Speaker 04:
Tell me how you can.

[01:00:56] Speaker 02:
Sure, Your Honor.

[01:00:57] Speaker 02:
So with regard to our procedural due process, we've brought a stigma plus claim, arguing that there's been public disclosures from the executive order on down about transgender people that is stigmatic, that we oppose, and that's caused the loss of employment.

[01:01:16] Speaker 03:
Is that a procedural due process claim or a substantive due process?

[01:01:20] Speaker 03:
It's procedural, Your Honor.

[01:01:21] Speaker 03:
So tell me what procedure you think your clients

[01:01:25] Speaker 03:
have been denied.

[01:01:26] Speaker 02:
Thank you, Your Honor.

[01:01:29] Speaker 02:
The procedure that the plaintiffs are seeking here is an opportunity to show that they have been harmed by this policy

[01:01:40] Speaker 02:
And they disprove the aspersions that have been made against them and to show that they're fit to serve.

[01:01:47] Speaker 03:
So if, once again, if we were to uphold your equal protection claim, you'd realize you don't have this procedural due process claim as to these seven people, do you?

[01:02:00] Speaker 03:
Yes, Your Honor.

[01:02:01] Speaker 02:
These are, as applied challenges, the procedural due process.

[01:02:04] Speaker 03:
OK, so what are we supposed to say?

[01:02:05] Speaker 03:
If we grant an injunction as to

[01:02:09] Speaker 03:
application of the policy as to these seven people.

[01:02:13] Speaker 03:
What other procedure do you think they're entitled to?

[01:02:17] Speaker 02:
Your Honor, just again, some opportunity to be able to, whether it's a hearing or just some formal mechanism.

[01:02:25] Speaker 03:
What do they have to have a hearing for?

[01:02:26] Speaker 03:
They're not being separated.

[01:02:28] Speaker 03:
The policy can't be applied against them.

[01:02:31] Speaker 03:
Do they get to have a hearing to demonstrate why the court injunction is correct?

[01:02:37] Speaker 03:
I just don't understand what the procedural due process claim is on behalf of these seven people, if you prevail on your equal protection claim.

[01:02:45] Speaker 03:
And if you don't, then it seems to me, I don't know what they get to demonstrate in the procedural due process hearing.

[01:02:53] Speaker 03:
If we say that it's OK to exclude all people who meet the subscription in the policy, what do they get to show in their procedural due process claim?

[01:03:02] Speaker 02:
Yeah, again, Your Honor, I think I misunderstood the hypothetical.

[01:03:05] Speaker 03:
Well, but it's Judge Callahan's question I'm going back to.

[01:03:08] Speaker 03:
This is really dependent on your equal protection claim, is it not?

[01:03:14] Speaker 02:
Yeah.

[01:03:14] Speaker 02:
I would respectfully disagree, Your Honor.

[01:03:16] Speaker 03:
Why don't you disagree, but tell me why?

[01:03:17] Speaker 02:
Well, it's contingent on the, if the court affirms on the equal protection grounds, that's a different scenario.

[01:03:24] Speaker 02:
I was just assuming.

[01:03:25] Speaker 03:
Well, what if we say, no, your equal protection claim fails?

[01:03:30] Speaker 03:
We've applied whatever level of scrutiny is supposed to be applied, and your equal protection claim fails, and therefore it doesn't violate the 14th Amendment, too.

[01:03:39] Speaker 03:
implement this policy.

[01:03:41] Speaker 03:
What do your clients then get to show at a procedural due process hearing that we were wrong?

[01:03:47] Speaker 02:
No, Your Honor.

[01:03:48] Speaker 02:
As General Mattis said himself, there's been a promise that's been made to actively serving folks that cannot be dismissed.

[01:03:57] Speaker 02:
Those are his words.

[01:03:58] Speaker 03:
But that's not an equal protection argument.

[01:04:01] Speaker 03:
It's a different.

[01:04:02] Speaker 03:
So I'm saying assume for a moment that we were to agree with the government this policy is constitutional in all of its various respects.

[01:04:15] Speaker 03:
I'm still having difficulty figuring out what procedure your clients are therefore entitled to that's not provided for by the policy at which they get to say, gee, this is a really stupid idea because I'm a terrific service person.

[01:04:32] Speaker 02:
Again, Your Honor, it would be to demonstrate, to contest the aspersions that have been labeled against them, and to prove that they're fit to serve.

[01:04:42] Speaker 03:
The way the proceedings are... But if we uphold the policy, it doesn't matter whether they're fit to serve.

[01:04:47] Speaker 03:
Because I'm asking you to assume that you lose the case on equal protection.

[01:04:51] Speaker 03:
And this is the question that Judge Callahan was asking.

[01:04:54] Speaker 03:
Isn't your procedural due process claim dependent

[01:04:59] Speaker 03:
on your underlying equal protection claim.

[01:05:02] Speaker 03:
If we were to say, this is a terrific policy, the government can do it, I'm just not sure what process your clients are entitled to thereafter to demonstrate that the Ninth Circuit was wrong.

[01:05:19] Speaker 02:
Again, Your Honor, it's not that we're saying that the Ninth Circuit was wrong based on equal protection analysis.

[01:05:25] Speaker 02:
they have an interest in having a process that's not a sham, that gives them an opportunity to contest the aspersions and to prove they're fit to serve, just neutrally as service members, stripping away gender dysphoria.

[01:05:40] Speaker 03:
Isn't that your argument?

[01:05:41] Speaker 03:
Your argument is that they cannot be labeled as unfit to serve because they're transgender.

[01:05:47] Speaker 03:
And I'm sympathetic to the argument.

[01:05:49] Speaker 03:
We may accept it.

[01:05:50] Speaker 03:
But I don't know how you can then say, if we find that that's OK,

[01:05:54] Speaker 03:
They're nonetheless entitled to a procedural due process hearing to show that our conclusion was wrong.

[01:06:00] Speaker 03:
But I want to ask you a separate question.

[01:06:03] Speaker 03:
You went back to the Mattis policy.

[01:06:06] Speaker 03:
You make an estoppel argument.

[01:06:10] Speaker 03:
The estoppel argument, I think, doesn't apply to your applicant, does it?

[01:06:18] Speaker 03:
The estoppel argument is people relied on

[01:06:23] Speaker 03:
the government's representation.

[01:06:26] Speaker 03:
That can't be true as to the person who's applying, can it?

[01:06:29] Speaker 02:
Oh, to a session, sorry.

[01:06:31] Speaker 02:
I didn't understand.

[01:06:32] Speaker 02:
No, Your Honor, that just applies to the system as applied to them.

[01:06:37] Speaker 03:
It seems to me there might be great differences.

[01:06:39] Speaker 03:
Your stop-all requires reliance.

[01:06:42] Speaker 03:
Some people hadn't listed well before.

[01:06:45] Speaker 03:
Some people continue to serve.

[01:06:48] Speaker 03:
Some people may have come out.

[01:06:50] Speaker 03:
Aren't those individual questions that are not really subject to universal relief?

[01:06:57] Speaker 02:
Your Honor, we would be fine if the court wanted to take this up and assess each of the service members.

[01:07:02] Speaker 03:
Well, the district court didn't, is my point.

[01:07:05] Speaker 03:
And so if we thought the estoppel argument was important, shouldn't we ask the district court to look at the elements of estoppel as to these seven individuals?

[01:07:15] Speaker 02:
I think the concept, I mean, all of the plaintiffs, all of the as-applied plaintiffs have served 10 to 20 plus years.

[01:07:22] Speaker 02:
So they enlisted before.

[01:07:25] Speaker 03:
Some of them enlisted before.

[01:07:27] Speaker 03:
the Mattis policy was implemented.

[01:07:29] Speaker 03:
So they couldn't have acted in reliance on it.

[01:07:32] Speaker 02:
Well, I respectfully disagree, Your Honor, because they, you know, they, you know, in Commander Schilling's declaration, for example, she said she waited until her command made it clear that there was a pathway for her to, you know, live open as who she is.

[01:07:46] Speaker 02:
And so I think that there isn't, you know, waited for what?

[01:07:51] Speaker 02:
For inducement.

[01:07:53] Speaker 05:
There was a policy change.

[01:07:54] Speaker 05:
There was a time where people already in the military, there was an announcement that they would be allowed to serve openly, and they self-identified.

[01:08:00] Speaker 03:
That's correct, Your Honor.

[01:08:02] Speaker 03:
So she waited to identify until that point.

[01:08:04] Speaker 03:
Is that what you're saying?

[01:08:05] Speaker 03:
That's correct, Your Honor.

[01:08:06] Speaker 03:
OK.

[01:08:06] Speaker 03:
And you're condemning she acted in reliance on the policy in identifying.

[01:08:12] Speaker 03:
And not just that.

[01:08:12] Speaker 02:
It was the military.

[01:08:14] Speaker 05:
Counsel, you didn't answer Judge Hurwitz's question.

[01:08:16] Speaker 05:
That's an important question.

[01:08:18] Speaker 05:
He said she waited until the policy was announced to self-identify.

[01:08:21] Speaker 05:
Is that right?

[01:08:22] Speaker 05:
And I don't think you answered the question.

[01:08:23] Speaker 03:
Yes, Your Honor.

[01:08:24] Speaker 03:
And your contention on the estoppel argument is that it was in reliance on the policy that she self-identified.

[01:08:34] Speaker 02:
Yes, Your Honor, it was in reliance on the policy, but it was also in reliance on the

[01:08:38] Speaker 02:
on the fact that the policy had been in place for almost a decade, well, at that point.

[01:08:43] Speaker 03:
Well, I mean, I don't care how long it's been in place.

[01:08:45] Speaker 03:
Your answer has to be yes, doesn't it?

[01:08:47] Speaker 03:
Yes, Your Honor.

[01:08:48] Speaker 03:
OK.

[01:08:48] Speaker 03:
It doesn't have to be a more complicated answer than yes.

[01:08:50] Speaker 05:
We're not trying to make it difficult.

[01:08:51] Speaker 05:
Sometimes lawyers forget what we really are bound by the record.

[01:08:54] Speaker 05:
And sometimes there are gaps where you haven't quite said.

[01:08:58] Speaker 05:
what we think we're gleaning and we're just trying to verify.

[01:09:01] Speaker 05:
They're not trick questions.

[01:09:03] Speaker 04:
So if the Supreme Court says that transgender is not a suspect class and that we're dealing with a medical condition subject to rational review, can you prevail along with the concept of military deference?

[01:09:30] Speaker 02:
Your Honor, we in this case have argued that it's not just transgender status discrimination, that this is discrimination on the basis of sex, so heightened scrutiny should apply, and that it's also discrimination.

[01:09:43] Speaker 04:
But if the Supreme Court disagrees with you on that, and then it's a rational basis review along with military deference, can you prevail?

[01:09:53] Speaker 02:
Your Honor, we would argue that even if those two were, even if the Supreme Court ruled against us on those conditions, we would still argue that the animus is still here.

[01:10:04] Speaker 02:
So heightened scrutiny should apply as well.

[01:10:06] Speaker 03:
Well, but even if there's animus.

[01:10:08] Speaker 04:
Well, if the Supreme Court, if you lose at the Supreme Court, you don't get to continue to make that same argument.

[01:10:15] Speaker 04:
You could disagree with what the Supreme Court says.

[01:10:18] Speaker 04:
But if heightened scrutiny is not

[01:10:21] Speaker 04:
the proper review and its rational basis.

[01:10:25] Speaker 04:
And we already know that military deference is a concept that is involved in the law.

[01:10:32] Speaker 04:
Can you win?

[01:10:33] Speaker 02:
I'm sorry, I didn't understand the hypothetical.

[01:10:35] Speaker 04:
Yeah, that's the hypothetical.

[01:10:37] Speaker 04:
We don't know whether you're going to win or lose.

[01:10:39] Speaker 02:
Yes, Your Honor.

[01:10:40] Speaker 02:
I think that if this case went up to the Supreme Court and they held that we couldn't get heightened scrutiny under sex discrimination or transgender status discrimination, that if we had to face a world where we just had rational basis, we would argue that at least rational basis with bite should apply here given the animus argument with regard to this targeting a group of people and the unusual circumstances around them.

[01:11:07] Speaker 03:
So let me ask you about the animus.

[01:11:08] Speaker 03:
question.

[01:11:10] Speaker 03:
The district court didn't reach it.

[01:11:14] Speaker 03:
Whether or not we don't need to reach it if we were to uphold the district court's decision on another basis.

[01:11:22] Speaker 03:
But let's assume that we're in the world that Judge Callahan described.

[01:11:26] Speaker 03:
Let me just make the hypothetical clear so you're not confused.

[01:11:29] Speaker 03:
We rule in your favor.

[01:11:30] Speaker 03:
It goes up to the Supreme Court.

[01:11:32] Speaker 03:
The Supreme Court says, no, no, you made a mistake.

[01:11:34] Speaker 03:
This is not a gender-based classification.

[01:11:36] Speaker 03:
It's not a sex-based classification.

[01:11:39] Speaker 03:
A classification based on being transgender doesn't push us up to an intermediate scrutiny.

[01:11:48] Speaker 03:
Go back and deal with this under a rational basis standard.

[01:11:53] Speaker 03:
And there were animus.

[01:11:55] Speaker 03:
Animus alone doesn't make something unconstitutional.

[01:11:59] Speaker 03:
So I'm trying to figure out what that would mean.

[01:12:02] Speaker 03:
Let's assume there is a rational basis, but there's also animus.

[01:12:05] Speaker 03:
You would still lose, wouldn't you?

[01:12:07] Speaker 03:
No, Your Honor.

[01:12:08] Speaker 03:
So the government can't classify on something that might be rational if it also has animus?

[01:12:18] Speaker 03:
See, I'm not sure what to read in the animus cases.

[01:12:20] Speaker 03:
That's why I'm asking.

[01:12:21] Speaker 03:
Not if there's just a bare desire to harm.

[01:12:23] Speaker 03:
No, if there's a bare desire, there's no rational basis.

[01:12:26] Speaker 03:
That's easy.

[01:12:27] Speaker 03:
I'm saying the president has an animus.

[01:12:30] Speaker 03:
He's expressed it in his executive order.

[01:12:33] Speaker 03:
But under normal standards of review, we would find that the policy had a rational basis.

[01:12:39] Speaker 03:
What will we do in that circumstance?

[01:12:41] Speaker 02:
Your Honor, it still doesn't

[01:12:43] Speaker 02:
I would encourage the court to apply rational basis, something higher than basic rational basis, given, again, the... Is there something higher than rational basis, but lower than intermediate scrutiny?

[01:12:56] Speaker 02:
Again... My mind boggles at these various levels.

[01:13:00] Speaker 03:
I would, you know, a rational basis would be the closest thing we would... Yeah, see, it seems to me the animus might tell us whether or not the policy really was designed to do what it was said to design to do.

[01:13:14] Speaker 03:
But I'm not sure that animus changes the level of scrutiny that we have to apply to the policy.

[01:13:21] Speaker 02:
You know, courts have, again, in the past, Moreno and other decisions have been very clear that, you know, when there's, you know, just express bare desire to harm that... Yeah, and I'm with you there.

[01:13:36] Speaker 03:
I understand that.

[01:13:36] Speaker 03:
If the policy is just based on a bare desire to harm, we're done.

[01:13:41] Speaker 03:
I'm trying to figure out what we do if we find that the policy is in part based on a bare desire, or may have been promulgated because of a desire to harm, but in fact absent that desire would pass the appropriate level of scrutiny.

[01:13:54] Speaker 03:
What do we do then?

[01:13:55] Speaker 02:
And this is a world where we don't have sex-based classifications.

[01:13:58] Speaker 02:
Yeah, yeah, yeah.

[01:13:59] Speaker 02:
That's why I went through the long hypothetical first.

[01:14:01] Speaker 02:
Well, I mean, I would still argue that at the end of the day, this policy is just irrational.

[01:14:08] Speaker 02:
They haven't provided sufficient justifications.

[01:14:12] Speaker 02:
They haven't bothered to look at seven years of evidence at their fingertips.

[01:14:16] Speaker 02:
And that would be the argument we would make.

[01:14:20] Speaker 04:
All right.

[01:14:22] Speaker 04:
We don't have any additional questions.

[01:14:23] Speaker 04:
We've sort of evened it up.

[01:14:27] Speaker 04:
We are equal opportunity questioners.

[01:14:31] Speaker 04:
All right.

[01:14:32] Speaker 04:
The government, you have five minutes for rebuttal.

[01:14:36] Speaker 01:
Thank you, Your Honor.

[01:14:38] Speaker 01:
So I did want to revisit the as-applied issue, just to hone in on one aspect.

[01:14:44] Speaker 01:
So it's not just a question of whether they get to serve in the military or not.

[01:14:50] Speaker 01:
The First Amendment claim that they have is premised upon the idea that they're unwilling to serve in their biological sex.

[01:14:56] Speaker 01:
And the military has made a determination that everyone has to utilize the same grooming as well as the same salutations based on your biological sex.

[01:15:07] Speaker 01:
So that would still present issues when it comes to unit cohesion and good order and discipline, even as applied, because they're not just asking... Well, but aren't these people all now serving?

[01:15:19] Speaker 03:
using grooming standards and uniform standards, et cetera, that applies to, I don't want to use an inappropriate term, but I'll use it anyway, to their chosen sex.

[01:15:32] Speaker 01:
It would effectively mean that the court not just says that they can serve in the military, but that they get to serve under the conditions of the last administration.

[01:15:40] Speaker 03:
Right, but they have been serving under those conditions.

[01:15:43] Speaker 03:
And as to these seven people, and you haven't responded to this, so I assume that you're agreeing with me.

[01:15:49] Speaker 03:
There's no evidence that any of them have posed any legitimate problem to military cohesion or loyalty or anything else.

[01:15:58] Speaker 03:
And they have been serving under

[01:16:01] Speaker 03:
serving using grooming standards, et cetera, that apply to their, as I just said, chosen gender.

[01:16:07] Speaker 03:
So why, as to them, not as to the group as a whole, but why, as to them, does that make a difference?

[01:16:14] Speaker 01:
Because, Your Honor, there's no way for the court to slice that piece out without limiting the military's overall ability.

[01:16:21] Speaker 01:
No, I'm not.

[01:16:23] Speaker 03:
I'm now saying we say, again, giving you a hypothetical opinion,

[01:16:29] Speaker 03:
We'll only treat this as an as-applied challenge.

[01:16:33] Speaker 03:
We have seven people in front of us with exemplary military service who have served under the various conditions we've talked about.

[01:16:42] Speaker 03:
And we can't find any good means objectives measure that would suggest why they need to be separated.

[01:16:51] Speaker 03:
We're not saying what the military can do as to anybody else.

[01:16:55] Speaker 03:
We just have these seven people in front of us.

[01:16:57] Speaker 03:
So tell me why, tell me once again why, other than hypothetical future problems that apparently have never occurred with these people or anybody else serving in the last four years, we should allow you to separate these people from the military.

[01:17:13] Speaker 01:
So Your Honor, as one example, the privacy interests, that affects how... Has it been a problem?

[01:17:19] Speaker 05:
I can't say there's anything in the record with these individual plaintiffs either I can't find it I have a related question an oral argument in front of the district court you respond the government responded I don't know if it's you're not forgive me the government responded there was nothing no evidence associating transgender people with a lack of honesty or humility that's an SCR 1013 is there any evidence associating transgender service members with a lack of integrity so your honor there's no evidence in the record of that

[01:17:45] Speaker 05:
Okay.

[01:17:45] Speaker 05:
I'm going to ask the other four traits.

[01:17:47] Speaker 05:
I'm not trying to be pedantic, but I want to make sure I'm not missing anything, because there are a lot of different studies.

[01:17:52] Speaker 05:
The other traits attributed, lack of selflessness.

[01:17:56] Speaker 01:
Your Honor, there's no evidence in the record on that.

[01:17:58] Speaker 05:
Honor.

[01:17:59] Speaker 01:
There's no evidence in the record on that.

[01:18:00] Speaker 05:
Truth.

[01:18:01] Speaker 01:
The same answer.

[01:18:01] Speaker 05:
And the same answer for lack of discipline?

[01:18:03] Speaker 01:
There's the same answer to that.

[01:18:05] Speaker 01:
All right.

[01:18:05] Speaker 01:
So, Your Honor, I also wanted to spend a little bit of time on the due process argument.

[01:18:10] Speaker 01:
One of the questions that came up is what process they're due.

[01:18:14] Speaker 01:
But before we get there, I think we have to operate off the concession made by both sides, which is that nobody has

[01:18:21] Speaker 01:
a property interest in their continued military service.

[01:18:25] Speaker 01:
So what they do is they have the reliance or the stigma plus.

[01:18:28] Speaker 01:
But the reason that the stigma plus doesn't work here is because the way the stigma plus works is that you have something on you that affects your future employment outside of the employment that you might be losing.

[01:18:42] Speaker 05:
Right.

[01:18:43] Speaker 05:
And I think their argument is we've now been branded as people who lack honesty, humility, integrity, selflessness, honor, truth, and discipline.

[01:18:51] Speaker 05:
and that that scars us.

[01:18:54] Speaker 05:
That's my word.

[01:18:55] Speaker 05:
They didn't use the word scars.

[01:18:56] Speaker 05:
But I think that's the argument.

[01:18:57] Speaker 01:
So Your Honor, how it would work in practice, when they get discharged, they would get an honorable discharge.

[01:19:03] Speaker 01:
And whenever they apply for another job, they ask, did you serve in the military?

[01:19:06] Speaker 01:
And what was the characterization of your service?

[01:19:08] Speaker 01:
So unless there's more evidence than that, all they would put down is that they served honorably, and that would be the end of it.

[01:19:13] Speaker 05:
Hasn't this secretary, hasn't this policy, I don't mean to personalize this in any way, but the policy has, I think,

[01:19:20] Speaker 05:
Attributed all of these traits to them sir So your honor what it matters though is what the stigma actually is when they go on the outside thing They wouldn't have to fess up Not that this wouldn't apply to them if it there's this very broad brush And it's quite unusual that we'd be in a position where the government would have to say and I appreciate your candor that there's nothing in the record that supports this I

[01:19:43] Speaker 01:
So, Your Honor, but that doesn't apply to how the Stigma Plus operates.

[01:19:47] Speaker 01:
It has to be something known within a community, and it affects their ability to get future employment.

[01:19:53] Speaker 05:
But if they were to apply... Well, that goes back to my point about... I guess it wouldn't have to... What you're saying is they wouldn't have to disclose that.

[01:19:59] Speaker 05:
They wouldn't have to fess up.

[01:20:01] Speaker 05:
Of course, this argument is being streamed live.

[01:20:04] Speaker 05:
These are not private proceedings.

[01:20:07] Speaker 01:
So, Your Honor, whether they put their name on a public case or not is not the deciding factor in a stigma plus claim.

[01:20:14] Speaker 05:
It did not affect them going forward.

[01:20:16] Speaker 01:
because their service is branded as honorable, and they retain all their rights and benefits that are associated with VA service, which for instance includes medical insurance, which they would get through the VA after they're separated, even on this basis.

[01:20:30] Speaker 01:
And they still, for instance, maintain the same rights that any member who served honorably has received.

[01:20:35] Speaker 05:
But not the privilege to continue to serve, and this is their chosen career.

[01:20:39] Speaker 01:
So Your Honor, that's where the issue of stigma plus and what it means, because no one has a property interest in their continued military service.

[01:20:47] Speaker 01:
So the idea of stigma plus is that it affects a tangible interest for future employment outside of the military context.

[01:20:54] Speaker 05:
We set these aside.

[01:20:55] Speaker 05:
Is there no place?

[01:20:57] Speaker 05:
This is not a rhetorical question.

[01:20:58] Speaker 05:
This district court didn't make a finding of animus.

[01:21:01] Speaker 05:
I think we've all recognized that.

[01:21:02] Speaker 05:
But there are these comments.

[01:21:04] Speaker 05:
And what I'll say for my part is that these seem to be

[01:21:07] Speaker 05:
facially disparaging, and we've just run through the list of them, and you've been very candid about saying there isn't any evidence supporting any of this.

[01:21:19] Speaker 05:
So in your analysis, do these simply fall out and play no role in our analysis?

[01:21:24] Speaker 01:
So, Your Honor, if the Court were to reach the question of animus, we still believe... I'm not suggesting that.

[01:21:31] Speaker 05:
I'm asking if we don't, because the District Court didn't make a finding of animus.

[01:21:36] Speaker 05:
then is it your position that these statements fall out and we ignore them?

[01:21:42] Speaker 01:
So Your Honor, they would play no role because in the policy itself, it classifies based on a medical condition.

[01:21:47] Speaker 05:
So the guidance doesn't.

[01:21:48] Speaker 05:
You and I have been over that many times.

[01:21:50] Speaker 05:
And let me ask you this a little more specifically.

[01:21:53] Speaker 05:
Would these statements affect the level of deference we give to the military policy?

[01:21:58] Speaker 05:
We're looking for reasoned military judgment.

[01:22:00] Speaker 05:
You've said that these statements, you haven't tried to defend them as nondisparaging, which I appreciate.

[01:22:05] Speaker 05:
You have said that there isn't evidence supporting them.

[01:22:09] Speaker 05:
So do those statements affect the level of deference, sir?

[01:22:14] Speaker 01:
No, Your Honor, because as long as the military used its professional judgment, which it based on the past review of the Mattis policy along with the literature review, they wouldn't be relevant for that purpose.

[01:22:25] Speaker 01:
They would only be relevant for animus.

[01:22:26] Speaker 03:
Couldn't a finder of fact find that the military in fact didn't exercise its professional judgment here because it had been instructed by the commander in chief to arrive at a result?

[01:22:39] Speaker 03:
But that's not what happened here, Your Honor.

[01:22:41] Speaker 03:
Oh, surely it is.

[01:22:42] Speaker 03:
It's precisely what happened.

[01:22:44] Speaker 03:
The commander-in-chief said, I want you to do something.

[01:22:47] Speaker 03:
Because I regard these people as having characteristics that you now admit there's no evidence in the record to support.

[01:22:54] Speaker 03:
And the military then comes up with a policy that on its own might look like it was based on professional judgment, but which a finder of fact might find that was driven by an order by the commander in chief.

[01:23:07] Speaker 03:
Why isn't that a permissible finding on this record?

[01:23:10] Speaker 01:
No, Your Honor, because the guidance itself uses the term gender dysphoria and is basically identical to the Mattis policy without the grandfather clause.

[01:23:23] Speaker 03:
So I had one other factual question.

[01:23:25] Speaker 03:
Because early on in this case, there was some dispute about what kind of discharge people discharged under this policy would receive.

[01:23:34] Speaker 03:
And at one point, somebody said, well, it's almost as good as an honorable discharge.

[01:23:38] Speaker 03:
I take it we're now at a point where both sides agree that if someone is discharged because of this policy, they will receive an honorable discharge?

[01:23:46] Speaker 01:
That is absolutely correct, Your Honor.

[01:23:49] Speaker 01:
And one more brief point I wanted to make on remand versus hold.

[01:23:54] Speaker 01:
Just to clarify what our earlier statement was, if this court believes that it would benefit from seeing what the Supreme Court... My question was what you wanted.

[01:24:05] Speaker 01:
The three of us will decide what we would benefit from.

[01:24:07] Speaker 01:
I just wanted to know what you wanted.

[01:24:09] Speaker 01:
Yes, Your Honor.

[01:24:10] Speaker 01:
So if it's going to be...

[01:24:12] Speaker 01:
It does appear that it might be a few months before Highecox is decided.

[01:24:15] Speaker 01:
So rather than have a situation where the court comes out with an opinion, and a couple weeks later the Supreme Court comes out with something that requires reassessment, we don't believe that it would be problematic to hold.

[01:24:29] Speaker 01:
But we do believe a remand would be problematic.

[01:24:32] Speaker 03:
OK, I'm not asking it's problematic.

[01:24:34] Speaker 03:
I'm asking you represent the government of the United States.

[01:24:37] Speaker 01:
Your choice.

[01:24:37] Speaker 01:
You want us to hold this, or do you want us to decide it?

[01:24:40] Speaker 01:
So, Your Honor, our position is no remand, but either hold or decide.

[01:24:43] Speaker 05:
I have one more question.

[01:24:44] Speaker 05:
Sorry, Judge Callahan.

[01:24:45] Speaker 05:
Just one more.

[01:24:46] Speaker 05:
Is it possible to be transgender and not experience an incongruence between one's experience expressed and natal gender?

[01:24:53] Speaker 01:
So, Your Honor, the way that we frame it, everyone suffering from gender dysphoria would be trans-identifying, since that's one of the symptoms listed.

[01:25:01] Speaker 01:
But not everyone who is trans-identifying suffers from gender dysphoria.

[01:25:05] Speaker 05:
Yes.

[01:25:05] Speaker 05:
Thank you.

[01:25:06] Speaker 01:
Thank you.

[01:25:08] Speaker 04:
That will conclude argument.

[01:25:10] Speaker 04:
Thank you, counsel, for both your arguments.

[01:25:13] Speaker 04:
It's helpful to the court, and we appreciate that.

[01:25:16] Speaker 04:
We're going to just take a brief recess.

[01:25:18] Speaker 04:
So if any people only that want to be here for this case, as I said, you're welcome to stay for a remote hearing.

[01:25:27] Speaker 04:
But if you want to be excused, go ahead and excuse yourself, and we'll be back, and we'll take a 15-minute recess.

[01:25:46] Speaker 00:
The court stands in recess until quarter of 11.

[01:25:50] Speaker 00:
Thank you.