[00:00:00] Speaker 05:
It's Bridge versus Oklahoma State Department of Education 24-6072.

[00:00:07] Speaker 05:
Council for Appellants, if you would begin.

[00:00:09] Speaker 05:
We're ready to hear you.

[00:00:11] Speaker 03:
Good afternoon.

[00:00:12] Speaker 03:
May it please the court.

[00:00:14] Speaker 03:
Robert G. and Shetty of Covington and Burling on behalf of Appellants.

[00:00:17] Speaker 03:
I'll reserve five minutes for rebuttal.

[00:00:21] Speaker 03:
This appeal presents a simple procedural question, whether the student plaintiffs have stated a plausible claim for relief to withstand defendant's motion to dismiss.

[00:00:32] Speaker 03:
The student's complaint and this court's precedence demonstrate that the students have adequately pled that Oklahoma Senate Bill 615 violates the Equal Protection Clause and Title IX.

[00:00:45] Speaker 03:
The District Court's order dismissing the students' Equal Protection Title IX claims on the pleadings with prejudice should be reversed, and the students should be afforded the opportunity to prove their claims on their merit.

[00:00:59] Speaker 03:
I'll focus first on the students' claim under the Equal Protection Clause before turning to the students' Title IX claim.

[00:01:06] Speaker 03:
At the outset, it bears mention that the issue before this court today is not whether Oklahoma can maintain school restrooms separated by sex.

[00:01:16] Speaker 03:
Those restrooms existed before and after SB 615.

[00:01:21] Speaker 03:
The issue presented by this lawsuit is how SB 615 categorically assigns Oklahoma students to those bathrooms.

[00:01:31] Speaker 05:
So Council, you don't, you don't, bathrooms separated by sex as a, as a categorical matter, you don't think it raises equal protection concerns?

[00:01:42] Speaker 03:
Your Honor, I would submit that separation of bathrooms itself, it would be a sex classification, but here the argument, the issue would be how that applies to our students.

[00:01:54] Speaker 05:
Okay, all right.

[00:01:55] Speaker 05:
I'm misunderstanding.

[00:01:57] Speaker 05:
This was a question I was going to ask you.

[00:02:00] Speaker 05:
Opposing counsel repeatedly said that you don't contest that for equal protection purposes, there is not a concern by having separate bathrooms for men and women.

[00:02:14] Speaker 05:
Is that right or wrong?

[00:02:15] Speaker 03:
Correct.

[00:02:16] Speaker 03:
In and of itself, that separation, we're not challenging here.

[00:02:18] Speaker 03:
We're challenging how the statute categorically assigns who can use those sex-separated wrestlers.

[00:02:25] Speaker 05:
Okay.

[00:02:25] Speaker 05:
Got it.

[00:02:26] Speaker 05:
All right.

[00:02:26] Speaker 05:
Then please proceed.

[00:02:29] Speaker 03:
In relevant part, SB 615 requires every multiple occupancy school restroom to be designated for the exclusive use of the male or female sex, with sex here being defined to mean, and I quote, the physical condition of being male or female based on genetics and physiology as identified on the individual's original birth certificate.

[00:02:51] Speaker 03:
As to the student's claim under the equal protection clause, the students adequately allege that SB 615 both triggers and fails heightened scrutiny by classifying based on sex and transgender status.

[00:03:06] Speaker 03:
As this court observed just earlier this year in Griffith versus El Paso County, though SB 615 might ultimately survive heightened scrutiny, that issue simply is not before the court today.

[00:03:17] Speaker 05:
In light of Skirmetty, what is the status of Griffith?

[00:03:20] Speaker 05:
I mean, where is it as president in light of that decision?

[00:03:24] Speaker 03:
I mean, Your Honor, I think Griffith remains binding and valid case law.

[00:03:28] Speaker 03:
You know, Scrametti, as we argue in our supplemental briefing before the court, the law at issue there drew classifications based on medical use and age.

[00:03:37] Speaker 03:
It was not a facial sex classification as we submit as the case here with SB 615.

[00:03:43] Speaker 03:
So ultimately, Griffith can stand notwithstanding the Supreme Court's decision in Scrametti.

[00:03:47] Speaker 05:
Well, as well first, as it relates to Scrametti, how

[00:03:54] Speaker 05:
If Skirmety was not a classification based on gender status, how in the world can this be when Skirmety talked about gender dysphoria and other issues that are not on the face of this statute in any way or form?

[00:04:07] Speaker 05:
So how in the world is this a transgender classification on this SB615?

[00:04:14] Speaker 03:
Sure, Your Honor.

[00:04:15] Speaker 03:
The court in Scrimetti recognized that the Tennessee law at issue there, which restricted availability of certain kinds of gender-affirming care for minors, drew lines based on medical use and, by extension, age, not sex or transgender status.

[00:04:30] Speaker 03:
Scrimetti says nothing about the constitutionality of other laws that do draw lines based on sex or transgender status, which we submit, as V615 does here.

[00:04:40] Speaker 03:
Here, a person who is assigned male at birth can use the boys restroom in schools, but a person assigned female at birth cannot.

[00:04:49] Speaker 03:
Keeping everything constant, a person's sex assigned at birth is a but for cause of whether they can use a particular restroom.

[00:04:56] Speaker 03:
That's why the district court here and every court of appeals that have confronted a similar restroom law has found that laws of this nature constitute facial sex classifications and warrant heightened scrutiny.

[00:05:10] Speaker 05:
Well, the mere use of sex, as Kermade tells us, sex in gender language does not implicate the Equal Protection Clause.

[00:05:17] Speaker 05:
And in fact, there is a reference to the fact that it's a question of whether you're treating men and women differently.

[00:05:23] Speaker 05:
And that is not what we have here, right?

[00:05:25] Speaker 05:
All biologically sexed men per the regulation, SB 615, can use a male restroom, all biologically

[00:05:36] Speaker 05:
women can use a female restroom.

[00:05:40] Speaker 05:
And so how, in light of that sort of understanding of what sex means under the Equal Protection Clause, is this a sex-based classification?

[00:05:50] Speaker 03:
Your Honor, I begin first, as this court noted in Fowler and in Griffith, the meaning of sex on a motion to dismiss posture.

[00:05:56] Speaker 03:
The court must accept allegations as to sex.

[00:05:59] Speaker 03:
Gender identity is true for purposes of a motion to dismiss.

[00:06:02] Speaker 03:
We're at this threshold pleading stage.

[00:06:04] Speaker 05:
Your Honor's argument, I believe... Oh, I'm not sure that's true at all.

[00:06:08] Speaker 05:
If you're saying that sex as you define it should be the operative principle as opposed to sex as it's defined in the statute, then no, I don't accept that premise.

[00:06:18] Speaker 05:
I mean, sex is, you know,

[00:06:20] Speaker 05:
this statute offers a definition of sex.

[00:06:24] Speaker 05:
It is biologically oriented.

[00:06:26] Speaker 05:
Why should that definition not be the operative one, not the one that appears in your brief and the one that appears in your complaint, which talks about the notion of gender identity being a central component of sex?

[00:06:40] Speaker 05:
That's fine, but that's not what's before us in SB 615 is

[00:06:46] Speaker 03:
Your Honor, even if you were to view sex narrowly as nothing more than a person's assigned sex, or what the state defendants refer to as the concept of biologic sex, which I'll note also in Scrimetti was a term that was used but not defined by the court.

[00:07:00] Speaker 03:
That's still the reason why the students here are being treated differently and why defendants denied the students access to the restrooms consistent with their sex.

[00:07:09] Speaker 03:
So I'd submit that this statute, like the other restroom laws that were before the Fourth, the Seventh, the Ninth, the Eleventh Circuit, classifies based on sex and thus triggers heightened scrutiny.

[00:07:19] Speaker 05:
And how does it deny them equal rights based upon biological sex?

[00:07:26] Speaker 05:
Biologically sexed men use the male restroom.

[00:07:30] Speaker 05:
Biologically sexed women use the female restroom.

[00:07:34] Speaker 05:
I mean, girls and boys, sorry, in this context.

[00:07:38] Speaker 05:
So if I understood you correctly, even if we use the narrower definition, you still found some point of disparity and discrimination.

[00:07:48] Speaker 05:
So I just am trying to understand that.

[00:07:50] Speaker 03:
Sure, Your Honor, I think even if the rule or the statute here were to apply equally to biologic men and biologic boys, equal application of a rule doesn't make it neutral from an equal protection context.

[00:08:01] Speaker 03:
That would be akin to saying that a rule that no one can wear yarmulkes is neutral or a law that no one can marry a person of the same sex or of a different race is neutral here.

[00:08:11] Speaker 03:
If a transgender boy had been identified as male at birth rather than female, he could use the boys restroom at school.

[00:08:19] Speaker 03:
He's therefore being treated worse than those identified male at birth and is being discriminated in the process on the basis of sex.

[00:08:27] Speaker 03:
I believe we've alleged enough at this stage, consistent with Griffith and Rocky Mountain and the reasoning of Fowler, to survive another day and be able to prove in discovery the merit of our claims.

[00:08:37] Speaker 05:
Why isn't he being treated differently because of his gender identity as opposed to sex?

[00:08:41] Speaker 05:
I mean, as I understood your brief in particular, what it was drawing is the distinction, and I think you just articulated it, in which you had two different sets of people, a transgender boy who identifies as a boy and a cisgender boy who identifies as a boy, the cisgender boy being biologically male.

[00:09:02] Speaker 05:
The difference that determines whether they can use the male bathroom

[00:09:06] Speaker 05:
is the question of what's on their birth certificate and what is their biological status.

[00:09:11] Speaker 05:
They both identify as male.

[00:09:14] Speaker 05:
Is that right?

[00:09:16] Speaker 03:
Your honor, I think the logic and the reasoning of Bostock is instructive here, where the court articulated that it's impossible to discriminate against one for being transgender, which we define as having a gender identity different from your sex assigned at birth.

[00:09:29] Speaker 05:
And how does Bostock help us in light of Skrimetti, in light of how Skrimetti seemed to shy away from Bostock?

[00:09:36] Speaker 05:
And Bostock is a Title VII case.

[00:09:37] Speaker 05:
It's not a legal protection case.

[00:09:39] Speaker 03:
Scrametti made clear that because the statute issue there did not classify based on sex, it wasn't going so far as to opine on whether Bostock applied in the equal protection clause.

[00:09:49] Speaker 03:
And it made clear that Bostock remains good law.

[00:09:51] Speaker 03:
It simply wasn't visiting that issue that day.

[00:09:54] Speaker 03:
So I think the logic and the underpinning of Fowler as to how Bostock's rationale in Title VII can apply equally to the first step of the equal protection analysis I think remains true, notwithstanding Scrametti.

[00:10:07] Speaker 00:
And didn't Fowler get I'm sorry good judgment Q does your your equal protection argument depend on applying boss stock to the equal protection context.

[00:10:20] Speaker 03:
No, Your Honor, I think that this court need not even reach the bad issue.

[00:10:23] Speaker 03:
The students are these.

[00:10:25] Speaker 03:
Sure, the students arguments are consistent with Bostock's logic, but we would Smith's heightened scrutiny is triggered here based on straightforward application of the Supreme Court's sex discrimination and equal protection precedents like VMI.

[00:10:38] Speaker 03:
It's clear that sex based classifications trigger heightened scrutiny, not withstanding Bostock.

[00:10:44] Speaker 00:
Well, the problem they have is you've conceded that you don't have any objection to sex based classifications for purposes of bathrooms, right?

[00:10:56] Speaker 00:
And what you're really focusing on is you disagree with the definition of boy and girl, right?

[00:11:05] Speaker 03:
Your Honor, I think we disagree with how the statute categorically assigns students into restrooms, not withstanding the fact that sex-separated restrooms existed before and after the statute.

[00:11:16] Speaker 03:
But as the courts in Grimm and the Seventh Circuit and Whitaker noted, it's discriminatory then when the statute categorically assigns who qualifies as a boy or who qualifies as a girl for purposes of separation into those restrooms.

[00:11:32] Speaker 00:
And you think that you can prevail to at least have heightened scrutiny without carrying Bostock over to this context.

[00:11:44] Speaker 03:
Correct.

[00:11:44] Speaker 03:
I think the Supreme Court's precedence in the sex discrimination context, even if the ballot didn't exist, we would still be able to trigger heightened scrutiny here.

[00:11:52] Speaker 03:
And again, as this Court in Rocky Mountain made clear, when we're in a heightened scrutiny world, the defendants simply can't meet their burden to show that the statute is substantially related to important governmental interests.

[00:12:04] Speaker 03:
Those are very fact-intensive inquiries that are just not right for resolution on a motion to dismiss posture.

[00:12:11] Speaker 00:
You mentioned, I'm sorry, go ahead.

[00:12:13] Speaker 02:
No, no, you go ahead.

[00:12:15] Speaker 00:
The Yamaka case you mentioned, but in Skirmetty, the court doesn't cite that the Yamaka is actually a hypothetical in another case, but it does talk about the pregnancy case where the insurance company excluded the coverage of pregnancy

[00:12:39] Speaker 00:
which obviously only women can get pregnant and seem to say that that was not an issue with regard to an equal protection violation.

[00:12:52] Speaker 00:
I mean, I think Skirmetty has, as I think Judge Holmes has said, has sort of told us that they are not receptive to the argument you're making here.

[00:13:09] Speaker 03:
Your honor, I don't think we could predict what this record would or wouldn't do.

[00:13:12] Speaker 03:
We can only rely on what Scrimetti says.

[00:13:14] Speaker 03:
And in fact, Scrimetti in footnote three notes quite clearly that that decision does not speak to a law that regulates based on a class of persons identified on the basis of a specific characteristic, neither Scrimetti nor Godoldig, which I believe is the decision.

[00:13:30] Speaker 03:
your honor is referring to, deals with a law like that.

[00:13:33] Speaker 03:
So we're just outside of a world where the holding of scrimmaging and goulding need apply.

[00:13:38] Speaker 03:
And in goulding in particular, the court's reasoning there was that when you have a statute that doesn't classify based on sex on the face of it at all,

[00:13:46] Speaker 03:
The fact that the medical condition like pregnancy might be something that only one sex can experience isn't a basis to necessarily say that's facial sex discrimination, but that doesn't apply here where the statute itself sets forth the facial sex classification that was missing in adulting.

[00:14:03] Speaker 02:
Yes, but why doesn't Trump versus or?

[00:14:09] Speaker 02:
reorient the analysis we should be making, and that is that if there's a designation of biological sex based on historical fact, they said that does not offend equal protection and is subject to rational basis analysis.

[00:14:33] Speaker 02:
It seems that you need to tell me why

[00:14:40] Speaker 03:
Your Honor, your decision was in an emergency posture on an undeveloped record.

[00:14:44] Speaker 03:
The court made clear that there its view was the government was merely attesting to a historical fact on passports without subjecting anyone to differential treatment here.

[00:14:54] Speaker 03:
The students are alleged to suffer differential treatment because of their sex assigned at birth.

[00:14:59] Speaker 03:
There's no

[00:14:59] Speaker 03:
historical fact attestation, like in the passport context.

[00:15:03] Speaker 03:
So I'd submit that or was an emergency posture staying a preliminary injunction.

[00:15:08] Speaker 03:
It doesn't bear on whether the students here have stated a claim.

[00:15:11] Speaker 03:
So it's to prove their claims at a later date.

[00:15:15] Speaker 02:
Well, let me understand.

[00:15:16] Speaker 02:
Are you are you saying that what they said doesn't matter because this was on an emergency docket on a preliminary injunction?

[00:15:29] Speaker 02:
and what they said doesn't apply.

[00:15:32] Speaker 03:
I wouldn't say it doesn't matter.

[00:15:34] Speaker 03:
I just would want to make sure we're giving it the proper, it's not precedential binding precedent here.

[00:15:39] Speaker 03:
I don't think we can interpret that to mean that the students here have failed the state of claim again.

[00:15:43] Speaker 03:
The statute here facially classifies based on sex, unlike the passport policy there.

[00:15:50] Speaker 02:
Is there something in the rules or a case or something that says an emergency order like this that is published

[00:15:59] Speaker 02:
and has articulation beyond granted or denied is not precedential.

[00:16:06] Speaker 03:
Your honor, I believe there's case law that

[00:16:09] Speaker 03:
Preliminary rulings such as saying a preliminary injunction aren't a full, dispositive, presidential decision.

[00:16:16] Speaker 03:
And even if it were, I submit that it doesn't require dismissal of a student's claims here with prejudice.

[00:16:22] Speaker 03:
Again, there's no historical fact being attested to when one uses the restroom in this context, so it doesn't seem akin to the passport issue present in OR.

[00:16:31] Speaker 00:
Well, you said that they're not being discriminated against by transgender status in the Trump versus Or case, but that's exactly what the argument was, right?

[00:16:43] Speaker 00:
That only the only people that would have a problem with checking the box for their sex at birth would be people who have transitioned on a passport.

[00:16:58] Speaker 03:
So I believe I believe that was one of the arguments that was made your honor and I believe the court again in a very diverse two paragraph decision had brief language the effect of its view that the government merely attesting to historical fact on passport didn't draw sex based lines.

[00:17:12] Speaker 03:
I think that's different from the situation presented by this particular statute as we've alleged.

[00:17:17] Speaker 05:
Well, it's hot.

[00:17:19] Speaker 05:
I'm sorry.

[00:17:19] Speaker 05:
No, go ahead.

[00:17:20] Speaker 05:
But the historical fact that there have been men and women bathrooms, which you've accepted, leads to the question of the conception of what sex-based classifications are under the Equal Protection Clause.

[00:17:33] Speaker 05:
And not only do you have language in the majority decision in Skirmety that suggests it involves disparate treatment as it relates to boys and girls, men and women,

[00:17:43] Speaker 05:
And I want to get your reaction to this.

[00:17:46] Speaker 05:
This is the language from Justice Alito's decision.

[00:17:50] Speaker 05:
He says, a party claiming that a law violates the Equal Protection Clause because it classifies on the basis of sex cannot prevail simply by showing that the law draws the distinction on the basis of gender identity.

[00:18:03] Speaker 05:
Rather, such a plaintiff must show that the challenge law differentiates between two biological sexes, male and female.

[00:18:14] Speaker 05:
And there's, granted, not with the same level of detail, but there's mirroring language in the majority decision in Skirmetti as it relates to what it means

[00:18:24] Speaker 05:
to discriminate on sex for purposes of the equal protection clause.

[00:18:28] Speaker 05:
And so how does that, we don't have that here.

[00:18:31] Speaker 05:
I mean, there's no differential treatment of men and women in this case.

[00:18:36] Speaker 03:
Again, Your Honor, I would return to my arguments about the equal application of a law to biologic men, biologic sex does not mean it's neutral from an equal protection context.

[00:18:45] Speaker 03:
I think that's fully consistent with the majority's decision and scrimmage.

[00:18:48] Speaker 03:
It even pointed out that the

[00:18:51] Speaker 03:
issue in Loving vs. Virginia, for example, where one couldn't marry someone from a different sex that's different from the law that was presented in Scrimetti.

[00:18:59] Speaker 03:
I think that there's a facial sex classification here as every single appellate court that's considered a similar law has found, and it can remain true, notwithstanding Scrimetti.

[00:19:09] Speaker 05:
Well, let's play this out a little bit.

[00:19:11] Speaker 05:
I mean, the district court, of course, adopted the view that there was a sex-based classification here and then found that it nevertheless survived intermediate scrutiny.

[00:19:22] Speaker 05:
Throughout your brief, there's a suggestion that somehow or other we could not do that in the context of the 12b6, and it's not clear to me why that is.

[00:19:30] Speaker 05:
I mean, your complaint itself,

[00:19:34] Speaker 05:
articulates what Oklahoma has said are its justifications for this, as in security and privacy.

[00:19:43] Speaker 05:
Well, why do I need evidence, or why does anybody need evidence to know, in particular the privacy justification, whether that is an important governmental interest and whether this is substantially related to serving that?

[00:19:57] Speaker 03:
Your honor, I don't think we dispute that privacy and safety are important governmental interests, but the issue is determining whether this statute actually substantially furthers those interests.

[00:20:06] Speaker 05:
And what I'm saying is, why do we need evidence for that?

[00:20:09] Speaker 05:
And in particular, I could see maybe an argument about safety, but privacy?

[00:20:16] Speaker 05:
I mean, what is it that would be substantially unrelated about privacy when it's talking about the notion of people who are not biologically of the same sex entering

[00:20:26] Speaker 05:
the restroom of another.

[00:20:28] Speaker 03:
Your honor, I think the courts in Grimm and in Whitaker, when they had evidence before them, found that those privacy concerns were not actually justified on those records.

[00:20:37] Speaker 03:
And I think the students here are prepared and ready to make a similar submission to the district court if we have that opportunity.

[00:20:43] Speaker 03:
But looking just at the face of the complaint, which is what this court is tasked with,

[00:20:47] Speaker 03:
I don't think you're able to determine as a matter of fact or law that this statute actually substantially furthers those interests.

[00:20:54] Speaker 03:
Our allegations, which are the contrary, they must be accepted as true at this juncture.

[00:20:58] Speaker 03:
That's not to say that this statute may not one day survive heightened scrutiny.

[00:21:01] Speaker 05:
The allegation that it does not further privacy is something we have to accept as true?

[00:21:07] Speaker 03:
We argue and allege that those justifications are pretext as applied here.

[00:21:11] Speaker 05:
That's a legal conclusion, is it not?

[00:21:14] Speaker 03:
That's not a statement of fact.

[00:21:15] Speaker 03:
We also allege that factually, privacy and safety are not furthered by statutes of this nature, and that there are no germane privacy or safety concerns with a transgender student using a restroom consistent with their identity.

[00:21:29] Speaker 03:
So these are very fact-intensive issues that need to be resolved at a later date.

[00:21:33] Speaker 05:
Let me let me follow up and get your view on one thing.

[00:21:36] Speaker 05:
Throughout the briefs, your briefs, there's been a reference to multiple use restrooms.

[00:21:42] Speaker 05:
And as if that was the entire scope of what's at issue here.

[00:21:46] Speaker 05:
I mean, as I understand, that's not what we're talking about.

[00:21:49] Speaker 05:
We're also talking about locker rooms.

[00:21:51] Speaker 05:
We're also talking about showers.

[00:21:52] Speaker 05:
And isn't that a distinction with the difference if you're talking about the notion of whether one can say that privacy might be in play?

[00:22:00] Speaker 05:
I mean, the definition of multiple occupancy restrooms in changing areas, which is in the statute, SB 615, includes locked rooms and showers.

[00:22:09] Speaker 05:
And so aren't those on the table, too, in terms of deciding how to evaluate this?

[00:22:14] Speaker 03:
Thank you, Carter.

[00:22:15] Speaker 03:
I think we're bringing an as-applied challenge as to our three students particularly, so focusing on that for a moment.

[00:22:20] Speaker 03:
The allegations in our complaint show that the students are using restrooms, not these other facilities.

[00:22:25] Speaker 03:
And then even facially, the thrust of our complaint is as to the application of restrooms in this context.

[00:22:31] Speaker 03:
But again, the defendants here didn't move to dismiss on the extent of SB 16

[00:22:36] Speaker 03:
15's applications.

[00:22:37] Speaker 03:
The court didn't rule on that.

[00:22:39] Speaker 03:
If this court has concerns with that, I think the appropriate solution would be to remand and let the students consider whether an amendment might be appropriate.

[00:22:47] Speaker 03:
But to dismiss the claims in their entirety with prejudice doesn't seem appropriate on the current posture.

[00:22:54] Speaker 03:
That would be something.

[00:22:54] Speaker 05:
I thought the district court did have, I'm sorry to interrupt, I thought the district court did have some language about not calving the scope of this argument in your claim.

[00:23:04] Speaker 05:
Did it not?

[00:23:05] Speaker 03:
I believe your honor that might have been in connection with the preliminary injunction, which you may recall the court's order focused primarily on a preliminary injunction, which is not on appeal, and then briefly on the motion to dismiss aspects.

[00:23:16] Speaker 03:
I believe your honor is referring to a footnote that focused primarily on the preliminary injunction, which as the Ninth Circuit recently found,

[00:23:26] Speaker 03:
Affirmed it reversed a preliminary injunction on these facial as applied issue as your honor is articulating.

[00:23:32] Speaker 03:
But whether we state a claim in the first instance, I think we've passed that low bar.

[00:23:38] Speaker 05:
Okay, let's hear from the other side and then we'll see where we are in terms of rebuttal time.

[00:23:42] Speaker 05:
Thank you to your honor.

[00:23:49] Speaker 05:
Please proceed.

[00:23:50] Speaker 06:
Gary gaskins for the state defendants I plan to use 10 of the audit 20 minutes.

[00:23:56] Speaker 06:
The district court correctly dismissed plaintiffs claims challenging Senate bill 615 as implausible we asked this court to affirm.

[00:24:04] Speaker 06:
This case has been fundamentally transformed by the Supreme Court's decision earlier this year in the United States v. Scrametti.

[00:24:11] Speaker 06:
There, the court held that Tennessee's law restricting certain medical procedures for transgender minors was subject only to rational basis review and did not violate the Equal Protection Clause.

[00:24:23] Speaker 06:
Critically, the court used the term biological sex nearly 20 times and explicitly defined transgender

[00:24:30] Speaker 06:
as meaning someone whose gender identity does not align with their biological sex.

[00:24:35] Speaker 06:
Following Scrametti, the Supreme Court vacated this court's decision and Fowler v. Stitt, a case plaintiffs had cited extensively and remanded for reconsideration in light of Scrametti.

[00:24:47] Speaker 06:
Most significantly, Skrimetti's concurring justices explicitly stated that access to restrooms represents an area of legitimate regulatory policy where legislatures have wide latitude and heightened scrutiny is inappropriate.

[00:25:02] Speaker 06:
Under the Supreme Court's own standard, the Court's GVR and Fowler indicates a reasonable probability that this Court would reach a different conclusion.

[00:25:11] Speaker 06:
and the Supreme Court's recent opinion accompanying its order in Trump v. Orr on November 6 related to displaying sex at birth on passports should eliminate any remaining doubt as to whether Fowler must be vacated.

[00:25:25] Speaker 06:
Turning to the merits plaintiffs face insurmountable obstacles on both their title nine and equal protection claims on title nine the regulations implementing it explicitly permit schools to maintain quote separate toilet locker room and shower facilities on the basis of sex.

[00:25:43] Speaker 06:
Remarkably, plaintiffs themselves, and you admitted again today that they do not object to restrooms separated by sex in schools.

[00:25:51] Speaker 06:
This admission is fatal to their claim.

[00:25:54] Speaker 06:
If sex separation is constitutionally permissible, which plaintiffs concede, then how can Oklahoma's implementation of that permissible policy violate Title IX?

[00:26:05] Speaker 06:
The answer is it cannot.

[00:26:07] Speaker 06:
Moreover, when Tile 9 was enacted in 1972, sex had a clear meaning referring to biological sex, the anatomical and physiological differences between male and female, and Congress knows how to protect gender identity explicitly when it chooses to, as shown in the Violence Against Women Act, which lists both sex and gender identity as the state protected categories.

[00:26:32] Speaker 05:
Mr. Gaskins, I didn't understand

[00:26:35] Speaker 05:
In the appellant's brief, I understood them to say that you could use sex as having a component of gender identity.

[00:26:43] Speaker 05:
In fact, that is a significant component of sex.

[00:26:47] Speaker 05:
And therefore, there is, as I understood it, that the only difference as they see it is that you have two people who believe, you know, using male restrooms, two people who have the same

[00:27:01] Speaker 05:
identity of being male, and the only thing that stops one from using the restroom is that they don't biologically qualify as a male.

[00:27:10] Speaker 05:
But the important point for the purposes of this question is the fact that the transgendered male is, in their view, male because of the essential component of identity and sex.

[00:27:28] Speaker 06:
Yeah, I would say at least we're still talking about title nine that we need to know we're talking about we're talking about equal protection.

[00:27:34] Speaker 06:
Sure.

[00:27:35] Speaker 06:
Well, on equal protection.

[00:27:39] Speaker 06:
The U.S.

[00:27:40] Speaker 06:
Supreme Court in Skrimeti had no issue understanding what biological sex was.

[00:27:46] Speaker 06:
I think from the questions just a few minutes ago, I think Skrimeti made it pretty clear that you have to show that there's conduct that is prohibited from one sex that is permitted for another for that to be any sort of equal protection violation.

[00:28:08] Speaker 05:
Well, you answered the question.

[00:28:09] Speaker 00:
Go ahead.

[00:28:11] Speaker 00:
In Scrametti, they said the statute didn't classify on the basis of sex at all, right?

[00:28:18] Speaker 06:
Well, I think what Scrametti said is we must focus on what the text actually says.

[00:28:23] Speaker 06:
And they said it's medical procedure and age.

[00:28:26] Speaker 06:
Well, I mean, I think at first the court said we've never suggested that mere reference to sex is sufficient to trigger heightened scrutiny.

[00:28:34] Speaker 06:
And then in concluding the rational basis applied, the court said Tennessee law, quote, does not prohibit conduct for one sex that it permits for the other.

[00:28:43] Speaker 00:
And Scrametti also said you can't circumvent the equal protection clause by writing in abstract terms, right.

[00:28:51] Speaker 06:
But I think with the court and the analysis, they looked at whether changing the person's sex alters how the law applies to them.

[00:28:59] Speaker 06:
In Tennessee, the answer was no.

[00:29:02] Speaker 06:
A biological male minor couldn't receive puberty blockers for gender dysphoria.

[00:29:07] Speaker 06:
A biological female minor could not receive puberty blockers for gender dysphoria.

[00:29:13] Speaker 06:
Changing their sex wouldn't change the result.

[00:29:15] Speaker 06:
Therefore, the law didn't classify on sex.

[00:29:18] Speaker 06:
Applying the test here yields the same result.

[00:29:20] Speaker 06:
Does changing a student's sex alter how Senate Bill 615 applies?

[00:29:25] Speaker 06:
No.

[00:29:26] Speaker 06:
A biological male must use bell facilities.

[00:29:30] Speaker 06:
A biological female must use female facilities.

[00:29:33] Speaker 06:
If we somehow change the student's biological sex, they'd use the facility corresponding to their biological sex.

[00:29:40] Speaker 06:
The law applies based on objective biological criteria.

[00:29:45] Speaker 06:
not on identity status or subjective characteristics.

[00:29:49] Speaker 06:
Therefore, rational basis applies.

[00:29:51] Speaker 06:
I think also Justice Barrett's concurring opinion, I think, is very helpful on this point where she telegraphed in her concurring opinion with Justice Thomas that rational basis would apply in this very case.

[00:30:06] Speaker 06:
She said, quote, in some context,

[00:30:08] Speaker 06:
Some contacts present legitimate reasons for sex based distinctions access to restrooms is one such area.

[00:30:17] Speaker 06:
Legislators have many valid reasons to make policy in these areas.

[00:30:21] Speaker 06:
And as long as the statute is rash is a rational means of pursuing a legitimate in the equal protection clauses justified.

[00:30:28] Speaker 06:
And Justice Alito, in his own clearing of opinion, said a law classifies based on sex for equal protection purposes only when it lays down one rule for males and one rule for females.

[00:30:39] Speaker 06:
Again, males and females are treated exactly the same as it relates to Oklahoma's Senate Bill 615.

[00:30:50] Speaker 06:
I'd also point out that a biological male seeking access to female facilities is not similarly situated to a biological female using those same facilities.

[00:31:01] Speaker 06:
This is because the privacy interests add state protection from exposure to the opposite sex and states of undress operates differently for each.

[00:31:11] Speaker 06:
Similarly, situated inquiry must focus on what matters for the specific context.

[00:31:19] Speaker 06:
Here, we're talking about facilities where children disrobe and perform bodily functions.

[00:31:25] Speaker 05:
Go ahead, Judge McHugh.

[00:31:30] Speaker 00:
I'll concede.

[00:31:32] Speaker 00:
You go ahead.

[00:31:33] Speaker 05:
What I want to spend a little time, though, on is the argument that

[00:31:38] Speaker 05:
if we were to accept the premise that this is a sex-based classification, we were looking at intermediate scrutiny, that this would not be an appropriate case to go out on a 12b6.

[00:31:51] Speaker 05:
And the notion that Oklahoma has articulated privacy and safety as its reasons, and that those were things that cannot be

[00:32:02] Speaker 05:
as a matter of law determined and based upon the pleadings.

[00:32:08] Speaker 05:
Let me hear your best argument for why that is not true.

[00:32:13] Speaker 05:
I assume your argument would be it's not true.

[00:32:16] Speaker 05:
And what authority would you look to in making that statement?

[00:32:20] Speaker 06:
Sure.

[00:32:20] Speaker 06:
Well, I'll first turn to what the district court said.

[00:32:23] Speaker 06:
The district court said determining what is and is not an important governmental objective is a legal question.

[00:32:29] Speaker 06:
And the district court wanted to say that protecting students' safety and privacy interests in school restrooms and changing areas is undoubtedly closely related to the statute's mandate that all multiple occupancy restrooms or changing areas be for the exclusive use of either male or female sex.

[00:32:46] Speaker 05:
You can use the word undoubtedly all you want, but I mean, that doesn't answer the question.

[00:32:50] Speaker 05:
I mean, that's a conclusionary statement.

[00:32:52] Speaker 05:
I'm asking how do you know that these things, that important interest is substantially related?

[00:32:58] Speaker 05:
What's what the SB615 is?

[00:33:01] Speaker 06:
And I would go back to a decision, another decision written by the Supreme Court this last term, Free Speech Coalition v. Paxton, which counsels against the need for remand.

[00:33:10] Speaker 06:
There the court was able to resolve intermediate scrutiny without an extensive factual development because the constitutional issues were clear and the government interests are evident from the statute's face and historical practice.

[00:33:26] Speaker 00:
You have to have allegations that support that

[00:33:29] Speaker 00:
connection between the interest and the means, right?

[00:33:35] Speaker 00:
So with respect to privacy, I think maybe you can look historically that what for 200 years we've been separating men and women, but it seems a little thin to me on safety.

[00:33:49] Speaker 00:
Do we just presume that there's a safety issue?

[00:33:52] Speaker 00:
I mean, the complaint suggests the safety issue goes the other way.

[00:33:58] Speaker 00:
If you force transgender students to use the bathroom of their sex at birth, they're more likely to be subject to being beaten up.

[00:34:12] Speaker 06:
And I would go back, and Paxton, the court said that these requirements, they're talking about having to have age verification for buying.

[00:34:21] Speaker 06:
Explicit magazines have been made by generations of legislators and by the American people as a whole, and that they command our respect.

[00:34:30] Speaker 06:
A decision contrary to long and unchallenged practice should be approached with great caution, no less with explicit overruling of precedent.

[00:34:39] Speaker 06:
So the court is essentially saying that when a regulatory approach has deep historical roots and widespread acceptance, the court can rule that it serves important interests through appropriate means as a matter of law.

[00:34:51] Speaker 06:
The historical practice itself provides the justification.

[00:34:55] Speaker 06:
I see that I've gone past by 10 minutes.

[00:34:57] Speaker 06:
I do want to make sure that I reserve time for the school defendants.

[00:35:02] Speaker 01:
All right.

[00:35:06] Speaker 01:
Good afternoon, your honors.

[00:35:08] Speaker 01:
May it please the court.

[00:35:10] Speaker 01:
My name is Adam Haven.

[00:35:11] Speaker 01:
I'm here on behalf of the school defendants to address the plaintiff's equal protection claim, as well as any questions this court may have with regard to its ability to affirm on alternative grounds.

[00:35:24] Speaker 01:
I intend to reserve some time for my colleague, Mr. Clyburn, to address the Title IX issue, as well as any issues the court may have with regard to the Charter School

[00:35:34] Speaker 05:
Mr. Haven, I was somewhat surprised in your brief that you refer to affidavits in conjunction with making your argument and suggesting that somehow or other that was okay because they were in the motion for preliminary injunction.

[00:35:50] Speaker 05:
What basis is it on a 12b6, which is what we're on now, would you have for referring to affidavits and evidence that came up in the context of preliminary injunction?

[00:36:02] Speaker 01:
We fully acknowledge that the court is tasked with looking at the four corners of the complaint here.

[00:36:10] Speaker 01:
To the extent the affidavits were cited, we would put forward that the affidavits, rather than contradicting the truthfulness of the allegations in the complaint,

[00:36:20] Speaker 01:
actually proved the truthfulness of the allegations in the complaint.

[00:36:25] Speaker 05:
Well, that was plaintiff's job.

[00:36:26] Speaker 05:
That was not your job to to put them in to support the complaint.

[00:36:31] Speaker 05:
Uh, I mean, I do accept the premise that that and I know there's some side motions about this matter.

[00:36:38] Speaker 05:
Do you accept the premise that that's not on the table for us now?

[00:36:42] Speaker 01:
Your honor, we do absolutely accept the premise that the four corners of the complaint are one control.

[00:36:47] Speaker 05:
All right.

[00:36:50] Speaker 01:
Your honors, I'm here today to put forward a simple proposition that the school districts cannot be held liable merely because they implemented a mandatory state law.

[00:37:01] Speaker 01:
This court in 2000 recognized this principle and the decision of Weitzel where it held that a local government entity could not be held liable merely because it implemented a state adopted policy.

[00:37:17] Speaker 01:
Also, the briefing has pointed the court to two pertinent Second Circuit opinions.

[00:37:23] Speaker 01:
In particular, the Juzumas decision that the Second Circuit released in 2022 addresses the exact issue before this court, which is whether or not a local government entity can be held liable under Monell simply for adopting a mandatory state law.

[00:37:41] Speaker 01:
There, the Second Circuit adopted a two-step inquiry

[00:37:46] Speaker 01:
The first step of that inquiry is whether or not the local government entity had any meaningful choice as to whether it would implement the state's law.

[00:37:58] Speaker 01:
And the second inquiry is, if so, did they adopt a discrete policy that evidences a conscious choice made by that local government entity to implement the policy?

[00:38:11] Speaker 01:
Neither of those inquiries are satisfied here.

[00:38:15] Speaker 01:
The plaintiff's own complaint acknowledges that the statute was mandatory.

[00:38:20] Speaker 01:
There's nothing discretionary about the statute.

[00:38:24] Speaker 00:
In addition- Well, doesn't SB 615 make it pretty clear that the schools can decide whether or not to promulgate policies consistent with the state statute?

[00:38:34] Speaker 00:
They can choose not to do it.

[00:38:37] Speaker 00:
They are subject to penalties, but they have the autonomy to decide.

[00:38:43] Speaker 00:
whether they do or they don't follow it.

[00:38:46] Speaker 01:
Your honor, I would say that that's not true and the reason for that is

[00:38:51] Speaker 01:
Each of our school defendants has governed by a board of education and each individual board member takes an oath to uphold Oklahoma law and to not violate that law.

[00:39:03] Speaker 01:
And so regardless of whether or not there's a financial penalty or private causes of action or possible adverse accreditation action, all of which are true here.

[00:39:13] Speaker 01:
And only as the plaintiffs admit in their complaint further the coerciveness of this statute,

[00:39:19] Speaker 01:
But regardless, the school defendants posit that there is no meaningful choice when it comes down to a violation of state law or not.

[00:39:28] Speaker 05:
Well, if the state law expressly gives you a basis to essentially conscientiously object, then how is it such that I think what I understand you to be saying is you have these school board members who've sworn to uphold the Oklahoma law, the Oklahoma Constitution, there's this Oklahoma law, so I feel bound to follow it.

[00:39:48] Speaker 05:
Well, if embedded in the Oklahoma law,

[00:39:52] Speaker 05:
is a way that you can walk away by paying a penalty.

[00:39:56] Speaker 05:
Why doesn't Oklahoma law contemplate that some people will do exactly that?

[00:40:03] Speaker 01:
Your honor, I don't think that is a meaningful choice as contemplated by the Second Circuit case law, and it certainly wouldn't pass this court's decision in Whitehall.

[00:40:14] Speaker 01:
There, the statute, or I'm sorry, the

[00:40:17] Speaker 01:
policy, the state adopted policy at issue was the state judiciary had adopted a TRO form for issuance of TROs for individuals that have committed domestic abuse violations.

[00:40:30] Speaker 01:
And this court remanded to the district court with the specific instruction and emphasis that the county could not be held liable merely for a state adopted policy.

[00:40:40] Speaker 01:
Here, there is absolutely no discretion.

[00:40:43] Speaker 01:
It goes well beyond the facts at issue in Weitzel.

[00:40:47] Speaker 01:
the statute repeatedly over and over again clarifies that it's mandatory that there is no discretion.

[00:40:55] Speaker 01:
Your honor, I hope that answers your question.

[00:40:56] Speaker 01:
If you'll have any further questions for me, I'm happy to answer.

[00:40:59] Speaker 01:
I want to make sure my colleague Justin has time as well.

[00:41:03] Speaker 05:
That's fine.

[00:41:08] Speaker 04:
May I please the court?

[00:41:10] Speaker 04:
I'm Justin Clyburn on behalf of Defendants, Oklahoma City Public Schools and Harding Independent Charter District.

[00:41:18] Speaker 04:
Under title 9, there's no vicarious liability and that it's exactly what the complaint alleges for Oklahoma City public schools whose only act alleged in the complaint is approving the charter school application of.

[00:41:31] Speaker 04:
There's no.

[00:41:33] Speaker 04:
Vicarious liability under Oklahoma's charter school act and the complaint does not allege that any plaintiff attended Oklahoma City public schools.

[00:41:42] Speaker 04:
This case is distinct from the circuit court cases holding similar policies violate Title IX in three important regards.

[00:41:51] Speaker 04:
First, the school defendants here are not challenging the court's interpretation of sex or sex discrimination.

[00:41:57] Speaker 04:
Second, this is the first case in which the state legislature and State Board of Education mandated bathroom policy such as this.

[00:42:07] Speaker 04:
And third, this is the only case on appeal addressing whether a bathroom policy

[00:42:11] Speaker 04:
adopted under threat of reduced funding exposes the school district to Title IX.

[00:42:17] Speaker 05:
And that's your... Restate the first one again.

[00:42:20] Speaker 05:
What was your first statement?

[00:42:23] Speaker 04:
Unlike in the other circuit court cases, the school defendants are not challenging the court's interpretation of sex or sex discrimination under Title IX.

[00:42:32] Speaker 04:
Okay.

[00:42:33] Speaker 05:
And what court are you referring to?

[00:42:34] Speaker 05:
Just generally courts or what court are you talking about?

[00:42:38] Speaker 04:
I'm referring to Grimm.

[00:42:40] Speaker 04:
Well,

[00:42:40] Speaker 04:
Any court, but what I'm referring to is that in grim in the 4th circuit, Dodds in the 6th and Whitaker in the 7th, the school districts actually argued that the policy did not discriminate based on sex, and that is not what the defendants here are doing.

[00:42:56] Speaker 05:
But you're just not taking a position on it, right?

[00:42:59] Speaker 05:
You're not saying that you're not, do you join the position of plaintiffs regarding that issue?

[00:43:06] Speaker 04:
We take no position on the issue.

[00:43:07] Speaker 04:
I just wanted to make clear that we are not arguing that this is or is not sex discrimination.

[00:43:15] Speaker 04:
All right.

[00:43:16] Speaker 00:
If we were to find that HICD violated Title IX, then the Oklahoma public schools would have given a significant assistance to them by funding.

[00:43:35] Speaker 00:
Right?

[00:43:37] Speaker 04:
Well, your honor, the school, let me say the Oklahoma City Public Schools has not funded HICD.

[00:43:45] Speaker 04:
The State Board of Education calculates the state aid to HICD separately from Oklahoma City.

[00:43:52] Speaker 04:
It then sends that money to Oklahoma City with the non-discretionary mandate that it disperses it to HICD.

[00:43:59] Speaker 04:
As well, the State Board of Education, under state law,

[00:44:03] Speaker 04:
is responsible for ensuring that HICD complies with federal law.

[00:44:08] Speaker 00:
Does Oklahoma Public Schools provide property to be used by the charter school?

[00:44:19] Speaker 04:
They lease property to the charter school, but in that sense, it'd be a landlord-tenant relationship.

[00:44:24] Speaker 00:
Well, you just have to have, you know... Do they provide any financial assistance?

[00:44:30] Speaker 04:
They do not, Your Honor.

[00:44:34] Speaker 05:
All right, any more questions from the panel?

[00:44:41] Speaker 05:
Okay, as I indicated, Appellant will give you in total two minutes, and you don't have to use it all, but you have it.

[00:44:51] Speaker 05:
Thank you.

[00:44:52] Speaker 03:
I think it bears emphasis that of my three friends on the other side, only one offered any defense of SB 615 today on the merits, the school

[00:44:59] Speaker 03:
defendants, as you know, go out of their way to disclaim any defense.

[00:45:03] Speaker 03:
I find that notable.

[00:45:05] Speaker 03:
In response to my colleague from the state defendants, the role of heightened scrutiny is not to make sex a prescribed classification, it's just to shift the burden to the state.

[00:45:14] Speaker 03:
to show their work and show that, in fact, this is a law that substantially advances an important governmental interest.

[00:45:20] Speaker 03:
In fact, this court in Free the Nipple said, more, not less, judicial scrutiny is required when asserted physical differences between men and women are raised to justify sex discrimination.

[00:45:32] Speaker 03:
So again, I'd submit we've alleged a sex classification triggering heightened scrutiny.

[00:45:37] Speaker 03:
These are fact issues that simply can't be resolved on the face of this complaint.

[00:45:41] Speaker 03:
Briefly on Title IX, which I didn't have a chance to address in my opening remarks, and it was addressed in counsel's argument, while we do not challenge the maintenance of restrooms separated by sex, the simple fact that the Title IX regulations or the generic Title IX provision allowing for sex-separated facilities exists, that doesn't change the analysis.

[00:46:02] Speaker 03:
Those provisions can't override the statutory prohibition against discrimination on the basis of sex under Title IX.

[00:46:09] Speaker 03:
They're simply broad statements that sex-separated facilities are not unlawful in and of themselves, not that schools can act in an arbitrary or discriminatory manner when dividing students into those facilities.

[00:46:23] Speaker 05:
Well, do you disagree that, no, go ahead and point us to something.

[00:46:26] Speaker 05:
What do you want to point us to?

[00:46:27] Speaker 03:
Thank you, Your Honour.

[00:46:28] Speaker 03:
I would point, Your Honour, to the court's decision, the Fourth Circuit's decision in Grimm and in the Seventh Circuit's decision in Whittaker and in Martinsville where these same issues were teed up and resolved in favour of the students there.

[00:46:38] Speaker 03:
I'll note on preliminary injunction and summary judging records here, we're on a 12b6 standard.

[00:46:44] Speaker 03:
It's a low bar to satisfy.

[00:46:46] Speaker 03:
I believe we satisfy it here.

[00:46:47] Speaker 03:
Go ahead, Judge McHugh.

[00:46:51] Speaker 00:
Are all those cases before Scrametti?

[00:46:54] Speaker 03:
They're before Scrametti, but again, Your Honor, I don't believe Scrametti touches on Title IX and as to the equal protection arguments as we discussed in our briefing and today, it certainly is relevant to the analysis, but we explain it doesn't prove dispositive, again, for determining whether we've stated a claim here.

[00:47:08] Speaker 03:
Very briefly, if I might be heard as to the school defendants' arguments,

[00:47:13] Speaker 03:
as your honor's noted, none of their arguments for dismissal of the complaint or the district court's bases for dismissal touched on this argument of whether they were simply following orders.

[00:47:23] Speaker 03:
So I submit that issue is waived for purposes of this appeal.

[00:47:27] Speaker 03:
In any event, even if the court were to engage with that argument on the merits, this court's decision, the barber decision, shows that when there's a conflict between federal law and state law, I'll be blighted.

[00:47:39] Speaker 03:
simply following orders is not a defense.

[00:47:41] Speaker 03:
Nothing stopped these school defendants from suing the state like we did.

[00:47:45] Speaker 03:
If they were concerned with the application of SB 615, they implemented their own policies.

[00:47:52] Speaker 03:
They are not passive or ministerial actors here.

[00:47:57] Speaker 05:
All right.

[00:47:58] Speaker 05:
Thank you for your very fine arguments.

[00:48:00] Speaker 05:
If the panel doesn't have any more questions, case is submitted and the court will be in recess.