[00:00:00] Speaker 04:
The first case before us today is Doe versus Weiser.

[00:00:10] Speaker 04:
It is 25-1037.

[00:00:13] Speaker 04:
And you can please come forward.

[00:00:32] Speaker 00:
May I please the court?

[00:00:35] Speaker 00:
Josh Dixon on behalf of Appellants John and Jane Doe, I'd like to reserve three minutes for rebuttal, please.

[00:00:43] Speaker 04:
The district court... You will be responsible for keeping track of your own time.

[00:00:47] Speaker 00:
Yes, Your Honor, thank you.

[00:00:48] Speaker 00:
The district court here committed legal error in concluding that the Doe's lacked standing to seek preliminary injunctive relief against the law and the policy.

[00:00:59] Speaker 00:
This court should reverse and remand for entry of the preliminary injunction that we request.

[00:01:04] Speaker 00:
We have standing for four separate reasons, three of which relate to ongoing injury, one of which relates to future injury.

[00:01:13] Speaker 00:
Our first theory of standing for ongoing injury is that the law and policy which give children the right to determine for themselves whether they want to undergo a social transition, the law and the policy

[00:01:27] Speaker 00:
Take decisional authority away from the parents and give that to the child.

[00:01:32] Speaker 02:
Under TRU- What is your best argument for why the law and the policies apply to you now, or apply to you at the time you filed your complaint?

[00:01:42] Speaker 00:
Well, they are in force at the moment.

[00:01:45] Speaker 00:
The effective date of the toolkit is, I believe it's August 2024, and there's no showing, there's no indication that that has been superseded.

[00:01:55] Speaker 00:
and the statute went into effect in April or May of 2024.

[00:01:58] Speaker 00:
So they're both in force right now.

[00:02:00] Speaker 02:
But don't your allegations need to establish that it's not speculative that AD is likely to invoke the law and the policies?

[00:02:10] Speaker 02:
In other words, that it's an opt-in scheme?

[00:02:12] Speaker 00:
That question regards future injury.

[00:02:15] Speaker 00:
I'm happy to jump to that point if Your Honor would like me to.

[00:02:17] Speaker 00:
Future injury, all we have to show is there is a realistic danger that the child will seek to be socially transitioned again.

[00:02:25] Speaker 00:
And our allegations establish that in spades with respect to both children, but particularly with respect to AD.

[00:02:32] Speaker 00:
She has identified as transgender for approximately five years.

[00:02:38] Speaker 00:
She was socially transitioned at school for two years.

[00:02:42] Speaker 00:
She no longer goes by a boy name.

[00:02:45] Speaker 00:
but she still feels like she has gender confusion.

[00:02:49] Speaker 00:
She doesn't identify as a boy, but she's not comfortable in a girl's body, and she's likely to continue having these experiences into adulthood.

[00:02:59] Speaker 04:
Are we switched to future injuries?

[00:03:01] Speaker 00:
We have switched to future injuries in response to the question, Your Honor.

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

[00:03:04] Speaker 04:
I'm sorry.

[00:03:04] Speaker 04:
I was getting a little whipshot.

[00:03:07] Speaker 04:
One question I have is the district court stopped at standing.

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

[00:03:15] Speaker 04:
and never considered the other elements of injunctive relief.

[00:03:21] Speaker 04:
If we were persuaded that, in fact, there is standing here under any of the theories, what's the proper role for us?

[00:03:32] Speaker 04:
Do we continue in the first instance

[00:03:35] Speaker 04:
to consider each of the elements of the preliminary injunction standard, or should we remand to the district court to consider those issues in the first instance?

[00:03:50] Speaker 00:
I believe on this record, this court can conduct that analysis in the first instance.

[00:03:54] Speaker 00:
There are certainly cases from this circuit where that has occurred.

[00:03:58] Speaker 00:
The Somnum case we cited in our brief, the Doe case that we also cited in our brief,

[00:04:03] Speaker 00:
This court can make that ruling on this extensive record.

[00:04:06] Speaker 00:
Your honors have maybe 1,000 pages, including expert reports, the CAS review, the DHS report.

[00:04:14] Speaker 00:
The record is extensive, and the court can make the determination on the record as it stands.

[00:04:19] Speaker 00:
If the court doesn't feel comfortable with doing that, of course, we would accept a remand, I guess a vacay tour with the remand.

[00:04:29] Speaker 04:
Well, we have one expert and then we have an expert that's not really for this case, right?

[00:04:36] Speaker 00:
That's correct.

[00:04:38] Speaker 00:
We introduced an expert affidavit to Dr. Erica Anderson.

[00:04:40] Speaker 00:
The government appears to have downloaded an expert affidavit dated August 5, 2020 and submitted that in connection with their opposition.

[00:04:52] Speaker 00:
I submit that that affidavit is

[00:04:54] Speaker 00:
Not probative, given its date.

[00:04:56] Speaker 00:
I mean, the cash review came out in 2024.

[00:04:58] Speaker 00:
2020 was a long time ago.

[00:05:01] Speaker 00:
A lot has happened since then.

[00:05:02] Speaker 04:
Well, the Supreme Court just relied on it heavily, didn't it, in Skirmetti?

[00:05:07] Speaker 00:
Exactly, Your Honor.

[00:05:08] Speaker 00:
The Supreme Court relied on the cash review.

[00:05:09] Speaker 00:
That's what I'm saying.

[00:05:10] Speaker 00:
The affidavit that the government submitted is dated 2020.

[00:05:13] Speaker 00:
So it has been superseded by recent events, including the cash review and the DHSS report.

[00:05:20] Speaker 04:
I'm sorry.

[00:05:21] Speaker 04:
I interrupted you.

[00:05:22] Speaker 04:
But going back to the standing.

[00:05:24] Speaker 04:
Of course.

[00:05:24] Speaker 00:
Of course, yes.

[00:05:25] Speaker 00:
So to continue on our first theory of ongoing injury, the state has taken decisional authority away from these parents and it has done so in such a way that has harmed the family.

[00:05:36] Speaker 00:
The complaint alleges in paragraph 165 that the very enactment of the law and policy have sown seeds of doubt in these children's minds that their parents are looking out for their best interests.

[00:05:49] Speaker 00:
The parental right is a decisional right.

[00:05:52] Speaker 00:
That's what Troxell says.

[00:05:53] Speaker 00:
It is the right to make decisions in the lives of children.

[00:05:55] Speaker 00:
And this policy allocates that decisional authority to the children.

[00:05:59] Speaker 04:
Well, this is a substantive due process claim, right?

[00:06:04] Speaker 04:
And that is a fairly steep hill to climb.

[00:06:09] Speaker 04:
And we have been cautioned not to extend, find new areas.

[00:06:16] Speaker 04:
The first thing that we have to do is we have to identify the particular right with enough particularity that it states the issue that's before us and see whether it is a longstanding recognized liberty and truth.

[00:06:35] Speaker 00:
for standing purposes, this court's precedent in the Gessler case teaches that we're supposed to assume the correctness, the validity of our claim.

[00:06:43] Speaker 04:
Well, yes, we assume the correctness and validity of your claim.

[00:06:47] Speaker 04:
I don't disagree with that.

[00:06:48] Speaker 04:
But we have to identify the issue that we're dealing with to assess whether it's a substantive due process right.

[00:06:59] Speaker 00:
Our contention is that the parents have the due process right to consent when the state seeks to socially transition their children.

[00:07:08] Speaker 00:
That is the statement of the right.

[00:07:10] Speaker 00:
The right to consent when the state seeks to socially transition their children.

[00:07:14] Speaker 02:
And is that based on a thesis of the right as attendant to health care decisions?

[00:07:20] Speaker 00:
That's part of it.

[00:07:21] Speaker 00:
Yes, Your Honor.

[00:07:22] Speaker 00:
Our contention, our allegation, and the evidence in this case supports the conclusion

[00:07:26] Speaker 00:
that social transitioning is a form of psychological treatment and parents have the right to control the psychological treatment their children receive.

[00:07:33] Speaker 00:
We have two additional theories, one being that even if not psychological treatment, the decision is such a significant decision in the life of the child that parents must have control over it.

[00:07:43] Speaker 00:
And the third is that the social transition interferes with the parents' rights to family integrity, all of which are housed under substantive due process precedent.

[00:07:54] Speaker 04:
And what is that, troxel?

[00:07:57] Speaker 04:
What's the case you're relying on?

[00:07:59] Speaker 00:
Well, we're relying on several, Your Honor.

[00:08:00] Speaker 00:
Parham is the case that establishes the parent's right to control the health care treatment of the child.

[00:08:04] Speaker 00:
This court's precedent in the Dubs case and the Wegener case, I think, JP Wegener case established the rights over health care treatment.

[00:08:15] Speaker 00:
Many other cases establish the parent's rights to determine the significant life choices of the child.

[00:08:20] Speaker 00:
Troxel being one of them, the ability to control or the right to control parents

[00:08:24] Speaker 00:
the associates who the child has, the Pierce case, the ability to send your children to private school, the Meyer case, the ability.

[00:08:33] Speaker 02:
This is at a high level of abstraction.

[00:08:35] Speaker 02:
Do you have any case you can point us to or record as accepted your theory that this type of social transition, as you describe it, is healthcare?

[00:08:47] Speaker 00:
I cannot point to a case that holds what you have just, how you have just defined it explicitly.

[00:08:53] Speaker 00:
But I do think that the due process analysis should proceed this way.

[00:09:00] Speaker 00:
The Supreme Court has long held that parents have the right to care, custody, and control of their children.

[00:09:04] Speaker 00:
The question here is whether the right that we are advocating for falls within the scope of that pre-existing right based on evaluation of whether

[00:09:13] Speaker 00:
the right is significant enough to fall within the confines of the principles of prior case law.

[00:09:20] Speaker 00:
And our case here establishes that social transitioning is a much greater even infringement on the parental right than these other cases I've been describing.

[00:09:32] Speaker 00:
Troxel, for example, the right to determine whether grandparents have visitation with the child.

[00:09:37] Speaker 00:
Obviously that's a significant life event, but it's nothing like whether the child

[00:09:42] Speaker 00:
changes its gender identity.

[00:09:44] Speaker 04:
Well, the different, I mean, if you look at Troxel, there was a law that required the parent to allow visitation with the grandparent.

[00:09:55] Speaker 04:
Here, the argument is that these laws don't say one way or the other.

[00:10:01] Speaker 04:
They don't speak to

[00:10:03] Speaker 04:
whether prohibiting the parent, letting the parent know, it's up to the child to say whether they feel comfortable.

[00:10:18] Speaker 00:
The argument that the state has made is that the parental right is only violated when there's some coercive act.

[00:10:26] Speaker 00:
And again, the right, the parental right at issue is the right to make decisions in the life of the child.

[00:10:32] Speaker 00:
Whether those decisions are being made by the child or by the state, the right is being infringed.

[00:10:39] Speaker 00:
And so coercion is not a necessary element of a parental rights claim.

[00:10:43] Speaker 00:
The case law that the district cites for this is the Anspach case and the Doe case.

[00:10:47] Speaker 00:
Those cases arose out of a child who sought contraceptives from a standalone public health clinic.

[00:10:55] Speaker 00:
This is a school.

[00:10:56] Speaker 00:
This is a completely different scenario.

[00:10:59] Speaker 00:
The child is handed over to the school.

[00:11:02] Speaker 00:
The school has custody and plenary control over the child during the school day.

[00:11:07] Speaker 00:
The school has pre-existing relationships with children, with the parents, where they could obtain the consent.

[00:11:13] Speaker 00:
Those precedents don't apply in the school context.

[00:11:17] Speaker 00:
And I'd also point out that the Foote case, the one that was recently decided out of the First Circuit regarding social transition, held that

[00:11:25] Speaker 00:
When the school engages in parental deception, that constitutes a restraining act that violates the Constitution.

[00:11:34] Speaker 00:
That's exactly what this policy does here.

[00:11:37] Speaker 02:
Let's assume that there is a fundamental right as you've articulated it.

[00:11:45] Speaker 02:
What I'm really struggling is with understanding how you satisfy the injury aspect of standing.

[00:11:54] Speaker 02:
probably because I interrupted you, you jumped to the future injury.

[00:12:01] Speaker 02:
And there, help me better understand how your reliance on the chance that AD may re-transition or her sister may decide to transition, how can that be a cognizable future injury that is not

[00:12:21] Speaker 02:
entirely speculative.

[00:12:23] Speaker 00:
I see my time is up with the three minutes reserved.

[00:12:25] Speaker 00:
May I answer the question?

[00:12:26] Speaker 02:
Yes.

[00:12:27] Speaker 00:
So the future injury aspect of our claim is that this child who is currently suffering from gender distress, there's a realistic danger, I should say, under the Supreme Court terminology, realistic danger, substantial risk,

[00:12:46] Speaker 00:
that she will seek to socially transition again and thereby invoke the law and policy, thereby superseding, overriding, transcending, violating the parental right to be the one who controls.

[00:13:00] Speaker 02:
But don't you have to show in your allegations that there is a likelihood that

[00:13:04] Speaker 02:
she will invoke the policies and the law that you are challenging?

[00:13:09] Speaker 00:
In order to establish future injury, we absolutely do, but the complaints allegations have very clearly done that.

[00:13:15] Speaker 00:
I mean, this child was totally transitioned for two years, only de-transitioned at the end of the last school year, is on the precipice right now.

[00:13:24] Speaker 00:
She still is experiencing gender confusion.

[00:13:26] Speaker 00:
She has

[00:13:28] Speaker 00:
in the past five years had periods just like this one where she no longer had a transgender identity.

[00:13:33] Speaker 00:
I mean, the standard cannot be the child is presently seeking to undergo a social transition.

[00:13:41] Speaker 00:
That would be actual injury.

[00:13:42] Speaker 00:
We're arguing future injury and we're close enough that this court should hold that we have satisfied the requisite showing that it's substantially likely realistic danger this child and her younger sister will seek to socially transition again.

[00:13:57] Speaker 00:
The younger sister claim is not as strong, we acknowledge, but the allegations and the complaint are that the child is too young to know what having a transgender identity in her life would mean.

[00:14:10] Speaker 00:
The school nevertheless is encouraging her to think about this.

[00:14:13] Speaker 00:
She's unable to process it.

[00:14:15] Speaker 00:
Her friend group is very popular to identify as LGBTQ plus.

[00:14:19] Speaker 00:
Teachers are encouraging these types of behaviors.

[00:14:23] Speaker 00:
And so even with a younger sister, she too

[00:14:27] Speaker 00:
is close enough that there's a realistic danger that she will seek to take advantage of this policy in the future.

[00:14:32] Speaker 02:
And as to the ongoing injury, is it your position that the law and the policies, because they exist, apply to AD right now, even if the allegations in your complaint do not suggest that she is presently or in the future intending to invoke them?

[00:14:50] Speaker 00:
It absolutely is, Your Honor.

[00:14:51] Speaker 00:
Under Clapper,

[00:14:52] Speaker 00:
Clapper holds that in the context of when the government is regulating a third party, the plaintiff who is not being regulated cannot manufacture standing by taking evasive measures to avoid the act.

[00:15:07] Speaker 00:
In this case, under the language of Clapper, the parents are being regulated, constrained, or controlled.

[00:15:15] Speaker 00:
This separates the case from Clapper, and Clapper was a third party who was being surveilled, and the plaintiffs sought an injunction against that surveillance of a third party on the IFCOM that they might be on the phone when the third party was being surveilled.

[00:15:28] Speaker 00:
Here, the parents themselves are being directly constrained by the policy insofar as their parental right is being abdicated or breached, and so the rule of Clapper that you can't manufacture standing does not apply here, and by the way,

[00:15:43] Speaker 00:
It's not manufacturing standing.

[00:15:45] Speaker 00:
It is taking reasonable measures in light of what happened to this child.

[00:15:49] Speaker 00:
I mean, the child was on the verge.

[00:15:51] Speaker 04:
You're out of time.

[00:15:52] Speaker 00:
Thank you, Your Honor.

[00:16:15] Speaker 01:
Good morning, Your Honors, may it please the court?

[00:16:17] Speaker 01:
Elliot Hood on behalf of School District 27J.

[00:16:20] Speaker 01:
I'm gonna attempt to split my time with my colleagues at the AG's office, and I understand that I need to monitor my own time.

[00:16:31] Speaker 04:
So, Your Honors, there is- Let me ask, I wanna start with a question.

[00:16:36] Speaker 04:
In looking at the issue of

[00:16:38] Speaker 04:
on the realistic danger or the substantial risk that AD may try to transition again.

[00:16:48] Speaker 04:
I find it interesting that the district court never discusses AD's declaration, which pretty clearly indicates that she is still struggling.

[00:17:04] Speaker 04:
What do we do with that?

[00:17:05] Speaker 04:
Isn't that relevant evidence for

[00:17:08] Speaker 04:
consideration of the standing issue here?

[00:17:11] Speaker 01:
I think it's relevant, but if you look at the totality of evidence that we have, including the verified allegations in the complaint and the materials attached to the preliminary injunction motion and response, there is no reasonable likelihood of danger that she's going to take the speculative chain of events that would be required to enforce the policy.

[00:17:34] Speaker 01:
This is a child who

[00:17:36] Speaker 01:
a year and a half ago, fully disavowed her decision to transition.

[00:17:41] Speaker 04:
She told... Well, she's been vacillating since the sixth grade.

[00:17:47] Speaker 01:
Well, but she actually hasn't in the last year and a half been vacillating.

[00:17:51] Speaker 01:
In middle school, she was struggling with her gender identity.

[00:17:55] Speaker 01:
Her freshman year of high school, she was identifying as a transgender male.

[00:18:02] Speaker 01:
And as of a year and a half ago, at the end of her sophomore year,

[00:18:06] Speaker 01:
She told folks at the school and her parents that she was done with that, and none of that has changed.

[00:18:12] Speaker 01:
She may be at home struggling still with her identity, and she may be still struggling with mental health concerns related to her gender identity, but she has not actually taken any concrete steps at all to go to the school to tell her parents that she's going back to being a transgender male.

[00:18:31] Speaker 01:
that she's going to ask that her name be changed?

[00:18:33] Speaker 04:
Well, she hasn't said to anybody that I'm going to transition again, but she says, well, I currently feel like a girl.

[00:18:40] Speaker 04:
There is a part of me that does not yet feel comfortable in a female body.

[00:18:45] Speaker 04:
I am trying to understand those feelings and get back to my prior self, but I have not yet figured out how to do that.

[00:18:51] Speaker 04:
I believe living at a boy at school for two years has made that process more difficult.

[00:18:57] Speaker 04:
This is a declaration

[00:18:59] Speaker 04:
that is pretty recent in terms of this litigation that she's still struggling.

[00:19:06] Speaker 01:
So this child may be struggling.

[00:19:10] Speaker 01:
Let's credit what she said in that declaration and when she said it.

[00:19:14] Speaker 04:
As we must.

[00:19:15] Speaker 01:
As we must.

[00:19:16] Speaker 01:
That was months ago.

[00:19:18] Speaker 01:
She has not taken any steps at school to actualize that.

[00:19:23] Speaker 01:
She hasn't come to her parents and said, I'm changing course and going back to the way I was before.

[00:19:28] Speaker 01:
And what she's expressing is the possibility that maybe in the future she might change her mind again.

[00:19:36] Speaker 01:
That's not enough to establish standing for ongoing or future injury.

[00:19:41] Speaker 02:
So can you help me understand if this is the right way to be thinking about this?

[00:19:48] Speaker 02:
A.D.

[00:19:49] Speaker 02:
may still be struggling, as she says in her declaration and in the complaint.

[00:19:55] Speaker 02:
But is the question for us for purposes of the standing inquiry whether she's likely to or has invoked, opted in to the policies at the school?

[00:20:08] Speaker 01:
Yeah, the inquiry is whether the idea that she's going to invoke the policy at school is sufficiently imminent.

[00:20:15] Speaker 01:
Whether it's happening now, we know it's not happening now.

[00:20:18] Speaker 01:
For the future, it's whether it's sufficiently imminent, certainly impending.

[00:20:21] Speaker 02:
So what would happen if

[00:20:23] Speaker 02:
AD's parents called up the school right now and asked, what name is my child using at school?

[00:20:35] Speaker 02:
What would the school's response be?

[00:20:38] Speaker 01:
They would treat that inquiry like any other parent calling to inquire about their kid at school.

[00:20:45] Speaker 01:
They would

[00:20:46] Speaker 01:
First of all, that would be, if you're talking about a specific question related to transgender identity.

[00:20:50] Speaker 02:
I'm not, I'm actually.

[00:20:52] Speaker 01:
Just like what the name they're using?

[00:20:53] Speaker 02:
I'm assuming a universe where AD is no longer transitioning at school and the parents just call and ask, what name is my child who attends this school using at school?

[00:21:08] Speaker 02:
What pronouns is my child using at school?

[00:21:11] Speaker 01:
So they would, the person, presuming the person has access to her records,

[00:21:16] Speaker 01:
that person would pull up Infinite Campus and look at what information is reflected in Infinite Campus to see what her gender is, her name is.

[00:21:27] Speaker 04:
But they have another methodology by which they can change a name and gender pronouns and not make it accessible, right?

[00:21:38] Speaker 01:
To the parents, but the staff can.

[00:21:40] Speaker 04:
Right, so Judge Rossman is saying

[00:21:45] Speaker 04:
if I call up and I ask about what name my child is using at school, telling me I can go look at a site that might not be accurate.

[00:21:55] Speaker 01:
That's not what I, I'm sorry, I misspoke if that's what you heard.

[00:21:58] Speaker 01:
So what I said was the staff will sit on the phone with the parent and answer their questions about what is, because the staff may not know how this student is called, what names the student is using in school.

[00:22:11] Speaker 01:
That would have to be,

[00:22:12] Speaker 01:
a teacher or a counselor or someone who interacts with the student on a daily basis and knows what they're called in class or otherwise.

[00:22:20] Speaker 01:
So the staff would, because parents have a FERPA right to information about their students.

[00:22:25] Speaker 01:
So if a parent calls up, if I call up and ask for information about my child, the staff member would tell me over the phone, this is what we have in the system in your child's records.

[00:22:36] Speaker 04:
Which may not be accurate.

[00:22:39] Speaker 01:
If the parents ask specifically,

[00:22:42] Speaker 01:
about is there a pronoun flag in the system, then the staff member should, because it's a record, go into the IC file, figure out where those tabs are, and identify whether there is such a pronoun.

[00:22:59] Speaker 01:
And our policy, though, requires that we not out a student to their parents.

[00:23:05] Speaker 01:
And if the student has instructed staff to do that.

[00:23:08] Speaker 01:
So in that rare occasion where the student

[00:23:11] Speaker 01:
has a pronoun flag and has instructed staff not to tell his or her parents about it, the staff would not confirm or deny the existence of the flag.

[00:23:20] Speaker 01:
They would say, you should have a discussion with your student about that.

[00:23:23] Speaker 02:
So my question gets at how to understand the operation of the laws for purposes of thinking about the plaintiff's ongoing injury.

[00:23:34] Speaker 02:
And so it seems if I understand your answer correctly,

[00:23:38] Speaker 02:
that what you're saying is that the informational injury that the plaintiffs allege that arises from the existence of the laws requires the student to have opted in and invoked the chosen name law and policies.

[00:23:55] Speaker 02:
And if she has not done so, even though she may still be struggling with her gender identity, there is no informational injury currently.

[00:24:05] Speaker 01:
Correct.

[00:24:05] Speaker 01:
And it's completely speculative because they haven't done it.

[00:24:08] Speaker 01:
And if they did reach out, they're saying that the existence of the policies alone establish future injury.

[00:24:15] Speaker 01:
Because the school has no information currently that either child, either student is identifying as transgender or gender questioning, the policy or the toolkit wouldn't even apply in that situation.

[00:24:26] Speaker 02:
And why doesn't the existence of the policy establish current injury?

[00:24:30] Speaker 01:
Because it's not being enforced, because the student has not come to the school and asked that,

[00:24:35] Speaker 01:
they use a certain name.

[00:24:37] Speaker 02:
Based on the allegations in the complaint and the declaration and evidence that we have.

[00:24:41] Speaker 01:
Correct.

[00:24:42] Speaker 04:
Can we look at past injury to inform future injury?

[00:24:48] Speaker 01:
We can look to past injury to inform the possibility of future injury.

[00:24:56] Speaker 04:
And we also, in terms of standing, the obligation changes over time.

[00:25:02] Speaker 04:
You have a lower burden when you file your complaint

[00:25:06] Speaker 04:
summary judgment, you have a little bit higher burden, and then you have an even higher burden if you survive summary judgment.

[00:25:13] Speaker 04:
Would you agree with that?

[00:25:15] Speaker 01:
I think that as facts develop, you have a higher burden to establish ongoing harm, and they haven't done so here.

[00:25:23] Speaker 04:
Okay, so if we look at, would you admit that there was past injury?

[00:25:29] Speaker 01:
I'm not going to admit past injury, but I will admit that they have standing to challenge

[00:25:34] Speaker 01:
the application of the toolkit during the time that AP opted.

[00:25:40] Speaker 04:
But they're only looking for perspective relief.

[00:25:43] Speaker 04:
Correct.

[00:25:43] Speaker 04:
So in my view anyway, the past injury is only relevant to the extent that it is part of the analysis on future injury.

[00:25:52] Speaker 01:
You got it.

[00:25:53] Speaker 04:
Okay.

[00:25:54] Speaker 01:
All right.

[00:25:55] Speaker 04:
Let me ask you one more question or two more.

[00:25:58] Speaker 04:
One is the district court didn't get beyond standing.

[00:26:02] Speaker 01:
I disagree with that.

[00:26:04] Speaker 01:
The district court did get beyond standing.

[00:26:07] Speaker 01:
It looked at all four of the factors under winter.

[00:26:13] Speaker 02:
The district court understood standing as part of the likelihood inquiry, right?

[00:26:16] Speaker 02:
Of success.

[00:26:16] Speaker 01:
Correct, yeah.

[00:26:17] Speaker 01:
No, but the district court actually did analyze all four of the factors.

[00:26:22] Speaker 04:
Okay, so you don't think there's any need for us to, if we were to say there is standing, to send it back for the district court in the first instance to

[00:26:30] Speaker 04:
have a robust analysis of the other factors?

[00:26:33] Speaker 01:
You could.

[00:26:33] Speaker 01:
I think that standing was the primary analysis, but the district court did address all of the elements.

[00:26:39] Speaker 04:
Okay.

[00:26:40] Speaker 04:
And then my other question is, in terms of whether this is medical treatment, does it matter that we don't have, that I have been able to find a diagnosis of any kind?

[00:26:53] Speaker 01:
It matters a lot, actually, and also the school district implementing its policies is not engaging in

[00:26:59] Speaker 01:
healthcare or medical treatment.

[00:27:01] Speaker 01:
So whether or not she's diagnosed with a condition at the end of the day doesn't mean that they're being injured by the school district's policies.

[00:27:10] Speaker 01:
Okay, out of respect for my colleagues, I'm going to cede the rest of my time.

[00:27:13] Speaker 01:
Thank you very much, Your Honors.

[00:27:19] Speaker 03:
Good morning.

[00:27:20] Speaker 03:
May it please the court, I'm First Assistant Attorney General Leanne Morrill on behalf of the Attorney General.

[00:27:26] Speaker 03:
Page 40 of the Doe's reply brief before this court conceded that the district court correctly concluded that the attorney general lacks sufficient enforcement power under the chosen name law to bring him within the ex parte young exception to sovereign immunity.

[00:27:41] Speaker 03:
That could be the beginning and end of this court's inquiry on the issue of sovereign immunity for purposes of the preliminary injunction denial.

[00:27:48] Speaker 02:
Weren't you dismissed from the case?

[00:27:50] Speaker 02:
Yes, your honor.

[00:27:50] Speaker 02:
So isn't that the beginning and the end of, you're not a party, and that order's not on appeal.

[00:27:56] Speaker 03:
That is correct, your honor, that is another basis for the court to begin and end its inquiry.

[00:28:01] Speaker 03:
I do want to address the Doe's pivot where they pleaded with the district court to construe the first amended complaint to assert a remedy against the attorney general under the Colorado, because of alleged enforcement authority under the Colorado Anti-Discrimination Act, known as CADA.

[00:28:22] Speaker 03:
That pivot is highly problematic for both

[00:28:25] Speaker 03:
the district court and this court to countenance for several reasons.

[00:28:29] Speaker 03:
First, it violates rule eight, notice plating requirements.

[00:28:33] Speaker 03:
No CADA claim was ever set forth in the original complaint or the first amended complaint that the DOES filed as a matter of right in lieu of filing responses to all defendants' motions to dismiss the original complaint.

[00:28:48] Speaker 03:
For that same reason, it also violates rule 15, which requires further amendment of

[00:28:53] Speaker 03:
their claims to be pursuant to leave of the district court, which they never sought at any time.

[00:29:01] Speaker 04:
Well, it's also not a final appealable order, is it?

[00:29:04] Speaker 03:
Exactly, Your Honor.

[00:29:05] Speaker 03:
And for that reason, this court wisely declined to exercise pendant appellate jurisdiction over their attempt to appeal without permission the AG dismissal order, as I refer to it.

[00:29:19] Speaker 03:
At every stage of these proceedings, the DOES have bypassed or attempted to bypass the rules of trial court or appellate procedure in order to force this court's hand and the district court's hand to consider claims that they never raised.

[00:29:33] Speaker 03:
We ask the court to reject that attempt and affirm the district court's denial of the PI order as to the attorney general on sovereign immunity grounds.

[00:29:44] Speaker 03:
Additionally, I'd like to join my co-counsel

[00:29:46] Speaker 03:
in the clarification of the record at pages 20 to 21 of the PI denial order, the district court did address at length all of the other factors necessary to obtain a preliminary injunction, most notably the lack of an irreparable injury that the DOES were imminently facing.

[00:30:05] Speaker 03:
The district court went through all three remaining factors and found that each of them, in particular the lack of immediate irreparable injury,

[00:30:13] Speaker 03:
tipped in the defendant's favor in this case.

[00:30:17] Speaker 03:
So while the Attorney General's position is that this court would not need to remand for further consideration of those.

[00:30:26] Speaker 02:
I thought it was the Commissioner's position that if we were to construe the District Court's conclusion as only relating to standing, that an evidentiary hearing is requested and would be required.

[00:30:38] Speaker 03:
First, Your Honor, I do not speak for the Commissioner of Education.

[00:30:40] Speaker 03:
I only speak for the Attorney General.

[00:30:43] Speaker 03:
that the commissioner did request discovery.

[00:30:46] Speaker 03:
I don't recall a specific request by the commissioner for an evidentiary hearing, but ostensibly some discovery might lead to then a request for such a hearing.

[00:30:57] Speaker 03:
But the district court, in its opinion, concluded that no hearing is required under the Rule 65 or the precedence of this court.

[00:31:07] Speaker 03:
I have another question.

[00:31:08] Speaker 03:
Sure.

[00:31:08] Speaker 02:
I wanted to ask what your position was on

[00:31:12] Speaker 02:
how we should be thinking about the parents' FERPA right vis-a-vis the Chosen Name Law?

[00:31:18] Speaker 03:
FERPA is a right to information, as I understand it.

[00:31:22] Speaker 03:
Again, the Attorney General is not an educator.

[00:31:26] Speaker 03:
The Chosen Name Law vests public schools and local education providers with

[00:31:36] Speaker 03:
discretion to adopt and implement policies to enforce the anti-discrimination provisions of the chosen name law.

[00:31:44] Speaker 03:
That anti-discrimination rate, essentially what the law does is it puts words in the mouths of public school employees and administrators, which is a core government speech function.

[00:31:56] Speaker 03:
The state can do that, and that's what it's done through the chosen name law.

[00:31:59] Speaker 03:
But nothing about the chosen name law limits or

[00:32:03] Speaker 03:
prohibits parents from exercising their informational rights under FERPA.

[00:32:07] Speaker 03:
And most notably, the record below, also the record on appeal to this court, does not allege that Doe's ever sought information about AD's chosen name, pronouns, any attempts to socially transition her under the toolkit, which again, predates the chosen name law by several years.

[00:32:28] Speaker 03:
They never requested such information.

[00:32:30] Speaker 04:
But when they did have conversations with the school about their daughter, the school's representatives didn't use the name and pronouns that they were using for AD at school.

[00:32:46] Speaker 04:
They intentionally tried to mislead the parents by

[00:32:54] Speaker 04:
using the birth name and birth pronouns.

[00:32:58] Speaker 04:
Does that seem a concern?

[00:33:00] Speaker 04:
Do you see that as a concern at all?

[00:33:02] Speaker 03:
Your Honor, if it were supported by the record, it might be a concern.

[00:33:06] Speaker 03:
But I disagree that it is.

[00:33:08] Speaker 03:
In fact, the Doe spoke with AD's counselor, who before speaking with the parents, talked to AD and asked if they could speak to her about

[00:33:18] Speaker 03:
to speak to her parents about her gender identity and her pronouns.

[00:33:25] Speaker 03:
And so I do think that the counselor who spoke with the Doe's was forthcoming and that there was no attempt to prevaricate that, I mean, the Doe's certainly alleged that that could happen.

[00:33:38] Speaker 04:
The record reflects two separate instances where there were conversations with the parents where the person that the parents spoke to

[00:33:47] Speaker 04:
used the pronouns, the birth pronouns, I'll call them, and name, as opposed to the name and pronouns that were currently being used at school.

[00:33:59] Speaker 03:
My recollection is that ADD transitioned in March of 2024, Your Honor, and after that, if conversations occurred after that date, and references were made to she, her pronouns,

[00:34:14] Speaker 03:
and her birth name, it was because she had chosen to resume using those of her own volition.

[00:34:23] Speaker 03:
Again, that's my recollection of the facts.

[00:34:25] Speaker 04:
Okay, if you're wrong and the record is closer to what I'm saying, is that a violation of a substantive due process, right?

[00:34:34] Speaker 04:
If you affirmatively mislead the parents?

[00:34:38] Speaker 03:
I don't understand the chosen name law on its four corners.

[00:34:43] Speaker 03:
Again, that's the statute that's being challenged to require school districts to affirmatively mislead.

[00:34:49] Speaker 03:
If the district has chosen to do so, then perhaps it is a substantive due violation, due process violation against the district.

[00:34:57] Speaker 03:
It is not connected to the chosen name law.

[00:35:02] Speaker 04:
Thank you.

[00:35:03] Speaker 04:
Thank you, Your Honors.

[00:35:04] Speaker 04:
And since we went more over time, I will give you two minutes on rebuttal.

[00:35:12] Speaker 04:
trying to even it up.

[00:35:15] Speaker 00:
Just to be clear, in addition to the three I reserved?

[00:35:18] Speaker 04:
No, you used your three.

[00:35:20] Speaker 00:
Okay, very well.

[00:35:21] Speaker 04:
It's all in that 15.

[00:35:24] Speaker 00:
Very well, Your Honor.

[00:35:26] Speaker 04:
But that's a good try.

[00:35:28] Speaker 00:
To address the informational injury, Your Honor, Council for the District admitted that if parents call up and their kids are being socially transitioned and have asked the parents not to be told, that the parents will not be told

[00:35:41] Speaker 00:
If my clients were to pick up the phone right now and call the school and say, are my kids being socially transitioned?

[00:35:47] Speaker 00:
And the school said no.

[00:35:48] Speaker 00:
Parents have no way of knowing whether that's because their child says no, my parents are unsupportive or because the school is not socially transitioning them.

[00:35:57] Speaker 00:
They have no way to find that out from the district.

[00:35:59] Speaker 00:
That's the informational injury.

[00:36:01] Speaker 00:
In addition, we contend the Constitution requires the district to provide notice.

[00:36:05] Speaker 00:
We're not getting notice that the children are being socially transitioned.

[00:36:09] Speaker 00:
So we don't know whether that's because, again, the child has said that parents aren't supportive or because it's not happening.

[00:36:16] Speaker 00:
Back to the ongoing injury, I'd like to highlight, which we put in the very introduction of our opening brief, the Alclair case in which Justice Alito dissented from the denial of certiorari.

[00:36:27] Speaker 00:
He basically said, he didn't basically say, he said, lower courts are misreading Clapper when it comes to these school secrecy policies.

[00:36:36] Speaker 00:
He cited to the very section that I addressed earlier with regard to policies that regulate, constrain, or compel.

[00:36:50] Speaker 00:
As for the FERPA rights,

[00:36:53] Speaker 00:
The district seems to suggest that the parents can get around this informational problem by invoking FERPA.

[00:36:58] Speaker 00:
If you look at the toolkit, the toolkit says that children have FERPA rights against their parents.

[00:37:05] Speaker 00:
I believe that's a gross misreading of FERPA, but that's what the text of the policy says.

[00:37:10] Speaker 00:
So they're not going to overcome children's alleged FERPA rights in response to parent inquiries.

[00:37:16] Speaker 00:
And then finally,

[00:37:18] Speaker 00:
Not every social transition requires documentation.

[00:37:21] Speaker 00:
FERP is not about information, it's about documentation.

[00:37:24] Speaker 00:
And not every social transition requires the production of documentation.

[00:37:28] Speaker 04:
Thank you.

[00:37:29] Speaker 00:
Thank you, honors.

[00:37:31] Speaker 04:
We will take this matter under advisement.

[00:37:33] Speaker 04:
We appreciate all of the briefing and argument on this difficult question.