[00:00:11] Speaker 04:
Mr. Lucas for the impulse, Ms.

[00:00:13] Speaker 04:
Levy for the appellee.

[00:00:19] Speaker 01:
Good morning.

[00:00:20] Speaker 01:
Good morning, Your Honors.

[00:00:22] Speaker 01:
May it please the Court, Brinton Lucas of the United States.

[00:00:25] Speaker 01:
I'd like to reserve five minutes for reply.

[00:00:28] Speaker 01:
In March of this year, Secretary Mattis announced a new military policy that presumptively disqualified individuals with gender dysphoria, a mental health condition characterized by clinically significant distress or impairment in occupational functioning,

[00:00:44] Speaker 01:
from military service, subject to various exceptions.

[00:00:48] Speaker 01:
That policy is entirely constitutional, as starkly illustrated by the fact that the same policy, the Carter policy, that the district court ordered the military to make.

[00:00:57] Speaker 03:
You say this is a new policy, and that sort of gets to the heart of some of the argument here.

[00:01:03] Speaker 03:
What's the standard of review that we should be employing now?

[00:01:08] Speaker 03:
You see, you want us to get straight to the constitutionality of the Mattis plan.

[00:01:12] Speaker 03:
But isn't there an antecedent question we need to ask, given the unique procedural posture here?

[00:01:18] Speaker 03:
I mean, we're here reviewing the denial of a motion to dissolve a preliminary injunction.

[00:01:24] Speaker 03:
That's a little unusual.

[00:01:26] Speaker 03:
So what's our standard review for determining whether that denial

[00:01:32] Speaker 03:
of the motion for the dissolution of a preliminary injunction was properly made.

[00:01:37] Speaker 01:
Your Honor, it is the same as the entry of a preliminary injunction itself.

[00:01:40] Speaker 01:
We're here.

[00:01:41] Speaker 01:
Now, plaintiffs point to say that we have not established... No, I don't think that's right.

[00:01:44] Speaker 03:
I mean, aren't we here?

[00:01:46] Speaker 03:
Don't the federal rules tell us we're operating in the area of Rule 60B5?

[00:01:50] Speaker 03:
Although you haven't styled it that way, that's the provision of the Federal Rules of Civil Procedure to tell us what to do when someone asks for relief or change from an

[00:02:02] Speaker 03:
So why aren't we examining this under 60B5?

[00:02:07] Speaker 01:
Your Honor, we have the right to appeal and please do not dispute that we have the right to appeal a denial of a motion to dissolve a preliminary injunction.

[00:02:14] Speaker 01:
And their entire argument is that we have not established change circumstances.

[00:02:18] Speaker 01:
And we believe that we have, Your Honor.

[00:02:19] Speaker 01:
I'd like to point you to two points.

[00:02:22] Speaker 01:
First, in terms of substance, we think that the new... Let me back up.

[00:02:26] Speaker 03:
So is the change circumstance a question of fact or a question of law?

[00:02:30] Speaker 01:
Your Honor, in this case, we think that it is a question of law because the district court's view that this was not a changed circumstance rested on the interpretation of legal documents.

[00:02:41] Speaker 01:
Those documents included the President's memorandum from 2017, as well as Secretary Mattis's proposed policy in 2018.

[00:02:48] Speaker 01:
And so even if you characterize this as an abuse of discretion, we also think that that standard has been met here because we think that the new policy is clearly different from the old one.

[00:02:58] Speaker 01:
And I'd like to point you to two substantive differences across both retention, dealing with service members who are currently serving, and a session dealing with applicants who wish to serve.

[00:03:07] Speaker 01:
So on retention, the new policy allows almost 10,000 individuals to continue serving in their preferred gender and to continue receiving treatment

[00:03:17] Speaker 01:
for gender transition at government expense.

[00:03:21] Speaker 03:
What was the number you put on that?

[00:03:22] Speaker 01:
Almost 1,000.

[00:03:23] Speaker 03:
So this is the grandfather clause?

[00:03:27] Speaker 03:
Reliance exception.

[00:03:27] Speaker 03:
So there are about 1,000 people you think in that?

[00:03:30] Speaker 03:
Excuse me, there are about 1,000?

[00:03:33] Speaker 01:
937, as of this point, have qualified for that.

[00:03:35] Speaker 01:
They've received a diagnosis of gender dysphoria from a military medical provider under the terms of the Carter policy.

[00:03:42] Speaker 01:
So those individuals would not be allowed to serve under the district court's understanding of the 2017 memorandum.

[00:03:51] Speaker 01:
So that alone is a significant difference.

[00:03:53] Speaker 01:
In addition, current service members who have gender dysphoria or are transgender

[00:03:58] Speaker 01:
or whatnot, are not automatically disqualified.

[00:04:01] Speaker 01:
And this was the fear of the district court in her first opinion.

[00:04:04] Speaker 01:
She went through and plaintiffs in the district court believed that all transgender individuals in the military were going to be subject to discharge starting on March 2018.

[00:04:14] Speaker 01:
They thought this was going to happen.

[00:04:16] Speaker 01:
And the only question the military was studying and resolving was how to discharge all transgender service members in the military.

[00:04:23] Speaker 01:
Now, I point you to the fact that according to one survey, and this is at

[00:04:28] Speaker 01:
I believe page 275 of the Joint Appendix, the military estimates there are about 8,970 service members who identify as transgender.

[00:04:40] Speaker 01:
937 of them have come forward and may qualify for the reliance exemption, and the remaining ones are not going to be discharged on the basis of their transgender status.

[00:04:50] Speaker 00:
But under the Mattis policy, they would have to identify with their biological sex to remain in the military, right?

[00:05:01] Speaker 01:
That is true, Your Honor, but that is also true under the Carter policy.

[00:05:05] Speaker 01:
Currently, they are serving and meeting the standards associated with their biological sex.

[00:05:10] Speaker 00:
If those individuals... Can you show me the language in the Carter policy?

[00:05:15] Speaker 00:
that says that they are required to identify with their biological sex in order to remain in the military.

[00:05:25] Speaker 01:
Your Honor, I would point you to the Carter Policy's framework for gender transition, and I think you can find that at pages 490 to 507 of the Joint Appendix, and that deals with, and is quite explicit, and plaintiffs do not dispute, that in order to obtain a diagnosis, in order to

[00:05:40] Speaker 01:
obtain a gender transition under the Carter policy, you must receive a diagnosis of gender dysphoria from a military medical provider.

[00:05:47] Speaker 01:
And you must go through a process.

[00:05:49] Speaker 01:
It's a very formal process set forth at length.

[00:05:52] Speaker 01:
And only those individuals, upon completing that process, will be able to adhere to the standards associated with their preferred gender.

[00:05:59] Speaker 01:
So safe and setting aside retention, the accession standards, Your Honor, are dramatically different from the accession standards established by the President's 2017 memorandum.

[00:06:08] Speaker 01:
Specifically, and I quote 287 of the Joint Appendix, this is in the military's report, the military says, transgender persons should not be disqualified from service solely on account of their transgender status.

[00:06:21] Speaker 01:
That is consistent with the Carter Policy.

[00:06:24] Speaker 01:
Of course, like the Carter policy, the Mattis policy draws distinctions on the basis of a medical treatment, gender transition, and a medical diagnosis, gender dysphoria.

[00:06:34] Speaker 01:
But it just subjects those to different exceptions.

[00:06:37] Speaker 01:
And that is very different from the policy

[00:06:40] Speaker 01:
adopted and maintained by the military before the change in 2016 adopted by then Secretary Carter.

[00:06:47] Speaker 01:
Under that policy, and I'd point you to a report that plaintiffs rely upon, this is a report from a commission in 2014 chaired by Jocelyn Elders, and

[00:06:57] Speaker 01:
The report made clear that under the pre-2016 policy, even transgender individuals who don't want to take hormones or have surgery or undergo any aspect of gender transition were disqualified from military service.

[00:07:09] Speaker 01:
That's on 784 of the JA.

[00:07:11] Speaker 01:
Now, even setting aside the change in substance, I'd also point you to the fact that there's been significant change.

[00:07:17] Speaker 03:
Let me go back to the change in substance.

[00:07:19] Speaker 03:
As I understand it, you argued that the Mattis plan newly allows

[00:07:26] Speaker 03:
transgendered people who don't have gender dysphoria to serve, right?

[00:07:33] Speaker 03:
Yes, you are.

[00:07:34] Speaker 03:
That's your argument.

[00:07:35] Speaker 03:
And that the old policy before Carter, that that policy didn't allow that.

[00:07:42] Speaker 03:
Is that right?

[00:07:42] Speaker 03:
Yes, you are.

[00:07:43] Speaker 03:
What is your basis for telling us that there was a categorical ban on transgendered people before the Carter policy?

[00:07:54] Speaker 01:
I think it was widely established, and I would also just point you to the elders report, which is a report plaintiffs have heavily relied on, especially before the Mattis policy was announced, which made quite clear that at that time it was a blanket disqualification for all transgender individuals, regardless of medical diagnoses or desire or need to transition.

[00:08:15] Speaker 01:
And that's on page 784 of the Joint Appendix.

[00:08:18] Speaker 03:
OK.

[00:08:18] Speaker 03:
So isn't the effect of the Mattis plan, isn't the effect to work

[00:08:24] Speaker 03:
a total ban on transgendered individuals because the Mattis Plan requires that they act according to their biological sex.

[00:08:35] Speaker 03:
And isn't that a null set?

[00:08:37] Speaker 03:
Isn't that a contradiction right in itself?

[00:08:39] Speaker 03:
If one is a transgendered individual, the manifestation of that is acting according, is not acting according to your biological sex.

[00:08:52] Speaker 03:
It's acting at variance with that.

[00:08:54] Speaker 03:
So haven't you created a null set in effect?

[00:08:58] Speaker 03:
There's no one who can fit within the category that you've described.

[00:09:02] Speaker 01:
No, Your Honor, I'd like to give you several points in response to that concern.

[00:09:06] Speaker 01:
First, I would just point you to page 636 of the Joint Appendix.

[00:09:10] Speaker 01:
This is in the RAND report.

[00:09:11] Speaker 01:
And it discusses a survey that says 18% of transgender individuals surveyed said that they had no plans to ever fully undergo gender transition in their lifetimes.

[00:09:20] Speaker 01:
I'd also point you to the fact that under the military survey and the fact that it's identified.

[00:09:25] Speaker 03:
Are there transgender people who can serve

[00:09:30] Speaker 03:
in their biological sense?

[00:09:32] Speaker 01:
Yes, Your Honor, and there are many who are doing so right now.

[00:09:34] Speaker 01:
So there's about 9,000 individuals in the military who identify as transgender, and only about 1,000 of those individuals have taken advantage of the Carter Policy's framework for gender transition.

[00:09:46] Speaker 01:
I'd also point you again back to the fact that 18% of transgender individuals surveyed plan to not transition during their lifetime.

[00:09:53] Speaker 01:
That's from a survey discussed in the RAND report.

[00:09:55] Speaker 01:
I'd also point you to the elders report.

[00:09:57] Speaker 00:
Just so that we are all operating under the same understanding and definitions here, when you say the process for gender transition in the Carter, the Ash Carter policy, what are you talking about?

[00:10:13] Speaker 00:
not a medical-surgical transition?

[00:10:18] Speaker 01:
Certainly, Your Honor.

[00:10:19] Speaker 01:
So there are roughly three types of transition that the Carter Policy discusses.

[00:10:23] Speaker 01:
One is a surgical transition.

[00:10:25] Speaker 01:
Another would be a hormonal transition.

[00:10:27] Speaker 01:
And the third would be social transition.

[00:10:29] Speaker 01:
That's recognized as a formal medical treatment for gender dysphoria.

[00:10:34] Speaker 01:
It's a term of art.

[00:10:36] Speaker 01:
And for those individuals, according to one survey of at least the studies that have been done of the individuals who are currently undergoing transition or planning to do so, only about 8.5% of those individuals plan to undergo a social transition.

[00:10:49] Speaker 01:
But that's the framework.

[00:10:50] Speaker 01:
It's still a medical treatment for gender dysphoria.

[00:10:54] Speaker 03:
But that's under-inclusive, isn't it?

[00:10:55] Speaker 03:
Because as I understand it, you're saying there are

[00:10:59] Speaker 03:
transgendered individuals in the military who can serve consistent with their biologic sex.

[00:11:08] Speaker 03:
But don't they have to suppress the very nature of their transgender condition to do that?

[00:11:14] Speaker 01:
Your Honor, those individuals who are currently serving may do so and they may meet the standards.

[00:11:20] Speaker 01:
Now, in terms of whether they suppress or not, under the Carter policy, the only way they may transition under the current policy in place, the only way they may transition is if they get a diagnosis of gender dysphoria from

[00:11:30] Speaker 01:
military medical provider.

[00:11:32] Speaker 03:
And so the entire... You're talking about transition, but I'm suggesting to you that that's an under-inclusive way to look at this issue.

[00:11:38] Speaker 03:
That's one measure, but there are other measures.

[00:11:40] Speaker 03:
And the measure I'm talking about is a transgendered person who has to suppress that characteristic to act consistent with their biologic sex.

[00:11:51] Speaker 03:
And isn't that

[00:11:52] Speaker 03:
That's what the Mattis plan requires, and I'm asking you, doesn't that work as a ban on transgendered individuals?

[00:12:00] Speaker 03:
You can be a transgendered individual as long as you don't...

[00:12:03] Speaker 03:
act like one, as long as you suppress your identity.

[00:12:07] Speaker 01:
Two points in response to that, Your Honor.

[00:12:08] Speaker 01:
First, I just think it's critical to underscore that under either the Carter policy that the military's been enjoying to maintain or the Mattis policy, the only way a transgender individual may get an exemption from having to meet the standards associated with his or her biological sex is by a medical diagnosis of gender dysphoria.

[00:12:26] Speaker 01:
So that problem, in Your Honor's view, will persist across either policy.

[00:12:30] Speaker 01:
But second, I would analogize this.

[00:12:32] Speaker 00:
That seems inconsistent with your briefing.

[00:12:37] Speaker 00:
Your briefing said, I thought that a transgender person without a diagnosis of gender dysphoria could serve, but only if they identified with their biological sex.

[00:12:56] Speaker 01:
Yes, Your Honor, and that is true under both the Carter Policy and the Mattis Policy.

[00:13:00] Speaker 00:
But in response to my questions and Judge Griffith's questions about what did the Carter Policy mean when it talked about this process for gender transition,

[00:13:12] Speaker 00:
and that's the language that you are pointing to, to say that it's identical to the Maddus Policy, you just said that the process for gender transition set forth in the Carter Policy is treatment for gender dysphoria.

[00:13:28] Speaker 00:
You just said that.

[00:13:30] Speaker 01:
Yes, Your Honor.

[00:13:31] Speaker 00:
So if the person doesn't have gender dysphoria, then how does that part of the Carter Policy that you decided to apply to them?

[00:13:42] Speaker 01:
They would not be able to take advantage of that.

[00:13:44] Speaker 01:
If that person under the Carter policy does not have gender dysphoria, he or she would have to meet the standards associated with his or her biological sex.

[00:13:51] Speaker 01:
That's undisputed, Your Honor.

[00:13:53] Speaker 01:
Plaintiffs have not argued otherwise.

[00:13:55] Speaker 04:
Counsel, on this argument that to be a transgender person is to have a powerful desire to transition, it seems to me the data that Rand cites, page 636, note 2,

[00:14:11] Speaker 04:
indicates that's not the case.

[00:14:15] Speaker 04:
If one puts the numbers there together, there are a significant number of people who wish to transition.

[00:14:22] Speaker 04:
We don't know with what degree of passion.

[00:14:26] Speaker 04:
And then they're just starting with the assumption that 100% states the whole universe.

[00:14:35] Speaker 04:
There are 18% who apparently are not interested in transition.

[00:14:41] Speaker 01:
Yes, Your Honor.

[00:14:41] Speaker 01:
I think that powerfully underscores our point.

[00:14:43] Speaker 01:
And I would also point you to the elders report.

[00:14:46] Speaker 01:
And this is on page 761 of the joint appendix.

[00:14:49] Speaker 01:
Also take a look at pages 752 and 770, note 8 of the elders report.

[00:14:54] Speaker 01:
And this is where it discusses that some transgender individuals are

[00:14:58] Speaker 01:
content in treating their gender dysphoria through psychotherapy alone.

[00:15:02] Speaker 01:
And let me give you a concrete example of this.

[00:15:03] Speaker 01:
I mean, there are some transgender individuals who identify as non-binary or gender fluid.

[00:15:08] Speaker 01:
And so the concept of gender transition has no meaning for these individuals.

[00:15:12] Speaker 01:
So the universe of transgender individuals is much broader than plaintiffs have suggested.

[00:15:17] Speaker 01:
If you look at all the literature, Your Honor, the classic definition of anyone who is transgender is someone who simply identifies with a gender other than his or her biological sex.

[00:15:28] Speaker 01:
So moving on, Your Honors, I think it's pretty clear that the new policy is both different in substance, but I think also in process.

[00:15:37] Speaker 01:
And I would point you to the fact that the new policy rests on an extensive deliberative process by the military, by a panel of experts who thoroughly studied the issue and the independent military judgment of the Secretary of Defense and these military experts.

[00:15:52] Speaker 03:
Is that a type of change circumstance that weighs into a 60B5 analysis?

[00:15:58] Speaker 01:
I certainly think so, Your Honor.

[00:15:59] Speaker 01:
Why?

[00:16:00] Speaker 01:
Because the district court's injunction, the order in 2017, was predicated on the assumption this was critical.

[00:16:07] Speaker 01:
And the district court emphasized it, that this was based on the fact that in the district court's view, the president's memorandum did not rest on evidence or military judgment.

[00:16:18] Speaker 01:
That can no longer be the case here.

[00:16:20] Speaker 01:
The military has provided an over 40-page report that is exhaustively set forth

[00:16:25] Speaker 01:
all of its reasons for this policy.

[00:16:27] Speaker 01:
In addition, the military has come forth and repeatedly stated, and Secretary Mattis testified before the Senate why he thought this policy was a good measure.

[00:16:35] Speaker 01:
And in doing so, he emphasized, and this is also in the report at 274, I just like to underscore this, Your Honor, 71% of Americans of prime military age from 17 to 24 are disqualified under the military's accession standards.

[00:16:50] Speaker 01:
Those are incredibly rigorous accession standards.

[00:16:52] Speaker 01:
They range from conditions

[00:16:54] Speaker 01:
from carpal tunnel syndrome, to food allergies, to eczema, to even using Invisalign.

[00:16:59] Speaker 03:
But the issue here is whether one can make a rested distinction like that based on a suspect class, right?

[00:17:06] Speaker 03:
Based on a class of people who are determined to be a suspect class.

[00:17:11] Speaker 03:
So those distinctions you're making are different here.

[00:17:15] Speaker 03:
We're talking about a constitutional issue here, right?

[00:17:18] Speaker 01:
Your Honor, the Madison policy and the Carter policy both turn on a medical condition and a medical treatment, the medical condition of gender dysphoria and the medical treatment of gender transition.

[00:17:29] Speaker 01:
And thus, it's no different from any of these other medical conditions or treatments.

[00:17:34] Speaker 01:
So we don't think the suspect class issue is entirely set aside from this particular policy.

[00:17:40] Speaker 03:
Other courts that have looked at this have put this under the rubric of sex discrimination.

[00:17:45] Speaker 03:
Do you disagree with that?

[00:17:47] Speaker 01:
Your Honor, right here, I don't think any other court has confronted a policy that turns on the basis of gender dysphoria and gender transition.

[00:17:55] Speaker 01:
Most of the other courts, when they've been addressing cases, at least the ones cited by plaintiffs, have been addressing classifications on the basis of transgender status.

[00:18:02] Speaker 01:
And again, I would point you to 287 of the Joint Appendix that underscores that transgender status alone will not be disqualifying for military service, either with respect to retention or accession.

[00:18:13] Speaker 03:
Let me ask you about the grandfather clause.

[00:18:15] Speaker 03:
So you use that as an argument that there's been a change from the presidential memorandum to the Mattis Plan.

[00:18:21] Speaker 03:
Am I correct?

[00:18:22] Speaker 03:
That's one example of that something new has happened in the Mattis Plan.

[00:18:26] Speaker 03:
But doesn't the rationale that supports the grandfather clause or doesn't the existence of the grandfather clause actually undercut the rationale for a ban in the first place here?

[00:18:39] Speaker 03:
These folks have been determined to be

[00:18:42] Speaker 03:
combat ready to not undermine social cohesion?

[00:18:47] Speaker 01:
Let me give you a few points in response to that.

[00:18:50] Speaker 01:
Just by way of analogies, the military currently has and is retaining, it's not an act of discharge, over 36,000 service members with PTSD.

[00:18:58] Speaker 01:
But service members, applicants with PTSD are not allowed to serve.

[00:19:02] Speaker 01:
They're not allowed to join the military on that front.

[00:19:04] Speaker 01:
The military sets very different standards for retention versus accession.

[00:19:08] Speaker 01:
And the military addressed this specific issue about why the reliance exemption was necessary.

[00:19:15] Speaker 01:
I'd point you to 311 of the Joint Appendix, where it discusses that the investment in these service members that the military has made outweighs the risks with respect to this population.

[00:19:25] Speaker 01:
That's something the military does with respect to all sorts of conditions, ranging from high blood pressure to PTSD, to sleep apnea, to all sorts of serious issues.

[00:19:34] Speaker 01:
So what the military did here is by no means different

[00:19:38] Speaker 01:
So we don't think that the reliance exemption undercuts this at all.

[00:19:43] Speaker 01:
If your honor has no further questions, I'll observe the remainder of my time for rebuttal.

[00:19:46] Speaker 01:
Thank you.

[00:19:47] Speaker 03:
Thank you very much.

[00:19:55] Speaker 02:
May it please the court, Jennifer Levi, for the plaintiffs in this case.

[00:19:59] Speaker 02:
The March 2018 policy bans transgender people from the military.

[00:20:04] Speaker 02:
It bans only transgender people and all transgender people.

[00:20:08] Speaker 02:
The March 2018 policy requires anyone who serves to do so in their biological sex.

[00:20:15] Speaker 02:
Not living in a person's biological sex is the defining characteristic of what it means to be transgender.

[00:20:22] Speaker 04:
Well, why is it that some people in apparently such institutions as the RAND Corporation find to be transgender elect not to transition?

[00:20:34] Speaker 02:
Your Honor, as the district court noted, there are reasons why transgender people don't transition because of discrimination.

[00:20:42] Speaker 02:
And the requirement that someone suppress their identity is not an exception to a ban.

[00:20:50] Speaker 02:
So the definition of what it means, the defining characteristic, is to have an identity that's different from...

[00:20:58] Speaker 04:
I mean, defining characteristics seems to be a kind of deceptive gloss imposed on an array of facts.

[00:21:08] Speaker 04:
And if the facts include that persons in a particular category, transgender, do not want, apparently from the Rand report, it's quite independent of being the military, do not want a transition, how can one say that

[00:21:27] Speaker 04:
The two categories are identical.

[00:21:31] Speaker 02:
Your Honor, the entire focus of the Rand report is on individuals who do transition.

[00:21:37] Speaker 02:
It looks at the medical utilization of individuals who transition.

[00:21:41] Speaker 02:
It compares foreign military policies that relate to authorizing people who transition to serve.

[00:21:47] Speaker 02:
The definition within the Carter policy for what constitutes a transgender service member is someone who undergoes transition.

[00:21:55] Speaker 02:
The beginning language of the Rand report that speaks to who transgender people are distinguishes, for example, people who defy gender stereotypes, tomboyish women,

[00:22:08] Speaker 02:
or feminine appearing men who are not transgender, who don't transition.

[00:22:12] Speaker 04:
You make nonsense of the language of the Rand report, which presupposes that one can be transgender and not wish to transition, assuming you haven't already transited.

[00:22:29] Speaker 02:
Your Honor, the RAND report zeroes in on individuals who do transition.

[00:22:35] Speaker 04:
And so whatever you... You may zero in on them, but they represent a subset of transgender individuals.

[00:22:42] Speaker 04:
So it appears from the RAND report.

[00:22:45] Speaker 02:
Your Honor, the 2018 policy addresses individuals who transition.

[00:22:49] Speaker 02:
The President's 2017 announcement prohibiting individuals from serving focused on individuals who transition.

[00:22:57] Speaker 02:
And the pre-Carter policy here.

[00:23:00] Speaker 04:
What you say is very interesting, but it does not seem to respond to my question at all.

[00:23:05] Speaker 04:
Well, what I'm saying is that much of your argument depends on the equation.

[00:23:09] Speaker 04:
between transgender and persons who either have made a transition or wish, presumably strongly, to do so.

[00:23:18] Speaker 04:
But that equation is not correct, according to the documents which actually underlie the Carter policy.

[00:23:28] Speaker 02:
No, Your Honor, what I'm saying is that the group of individuals, you can call them whatever you call them, but the group of individuals.

[00:23:36] Speaker 04:
I think we have to deal with the terms that we're, as lawyers, talking about, the terms that you've challenged and that the government defends.

[00:23:48] Speaker 04:
And maybe the government is wrong, but it seems to me that

[00:23:52] Speaker 04:
to the extent that you're relying on an equation between these two sets of labels, the record in the case is against you.

[00:24:02] Speaker 02:
Your Honor, the individuals that are referred to in the RAND report who suppress that very characteristic of identifying with a different sect do so because of discrimination.

[00:24:13] Speaker 02:
Well, I don't know.

[00:24:14] Speaker 04:
That footnote, too, simply says, do not wish to make a transition.

[00:24:21] Speaker 04:
That seems rather broad.

[00:24:22] Speaker 04:
I mean, I'm sure a lot of people do hesitate because of discrimination, et cetera.

[00:24:30] Speaker 04:
That doesn't belie the proposition that there is a subset of transgender people who simply do not wish to make a transition.

[00:24:40] Speaker 02:
Your Honor, the 2018 policy is not a change in the announcement by the President that in the White House memorandum that excludes transgender individuals, it refers to prohibiting people from undergoing gender transition, it identifies

[00:24:57] Speaker 02:
But the point is that the 2017 directive was focused on individuals excluding individuals who undergo gender transition from serving.

[00:25:14] Speaker 04:
persons who hadn't made transition from serving.

[00:25:18] Speaker 02:
Your Honor, it directed the reinstatement of the pre-Carter policy which discharged individuals for undergoing gender transition.

[00:25:29] Speaker 04:
The memorandum under which the final Mattis policy was adopted also instructed them to the people whom it was directed to pursue other avenues.

[00:25:41] Speaker 04:
I recognize you have that first sentence which is

[00:25:44] Speaker 04:
does suggest you're just supposed to justify what's already been done, but there are other sentences which clearly invite a broader inquiry, which appears to have been made in any event.

[00:25:56] Speaker 02:
in the process, the process as the district court found followed through on the White House's directive to re-institute a policy that excludes transgender people from military.

[00:26:10] Speaker 04:
Yeah, I'm reviewing that decision and the question is whether in fact the Mattis policy is a carbon copy of the Pete Carter policy and it seems to me self-evident that it isn't.

[00:26:21] Speaker 02:
There's nothing in the record that shows that the pre-Carter policy subjected to discharge from the military individuals who had or would undergo gender transition and prohibited people from enlistment who had completed gender transition.

[00:26:40] Speaker 02:
So the 2018

[00:26:43] Speaker 02:
Policy is a re-institution of the pre-Carter policy dance.

[00:26:48] Speaker 04:
You're saying that the pre-Carter policy focused exclusively on actual gender transition?

[00:26:59] Speaker 02:
Yes, Your Honor, the terms of the pre-Carter policy focused on exclusions for transsexualism and for change of sex.

[00:27:05] Speaker 02:
that is the defining characteristic that focuses on the fact that transgender individuals do not live in their biological sex.

[00:27:13] Speaker 02:
That was the revision, the update that the government was required to do.

[00:27:18] Speaker 02:
It was specifically set forth in the terms of reference that as to accessions, the government should revise the medical terminology, which is what it did to prohibit individuals who undergo gender transition.

[00:27:32] Speaker 02:
And it was to

[00:27:34] Speaker 02:
And it was to identify the specific medical services that people would be denied.

[00:27:39] Speaker 02:
So it revised the pre-Carter exclusion that focused on transsexualism and change of sex in contemporary terms.

[00:27:45] Speaker 03:
Why isn't the Mattis plan a significant change from the President's memo?

[00:27:51] Speaker 03:
Because before the Carter policy, I thought the policy was that if you're a transgender person, you cannot serve.

[00:28:01] Speaker 03:
Under the Mattis Plan, the grandfather clause permits service by sub.

[00:28:06] Speaker 03:
Why isn't that?

[00:28:08] Speaker 03:
a rather significant change.

[00:28:10] Speaker 02:
The standard for dissolving the preliminary injunction is that there's a change of circumstances that justifies the dissolution of the preliminary injunction.

[00:28:17] Speaker 03:
You'll admit, however, that is a change of circumstance.

[00:28:20] Speaker 03:
It may not be sufficient to dissolve the injunction, but you'll grant me, won't you, that that's different.

[00:28:27] Speaker 03:
That is a portion of the Mattis plan that is significantly different than the pre-Carter plan.

[00:28:33] Speaker 02:
Yes, Your Honor, but it doesn't remedy the constitutional injury here.

[00:28:37] Speaker 02:
And so it's not a change that has a significance that remediates the constitutional injury that those individual plaintiffs are experiencing because... So are there transgender people who can serve in the military in their biological sex?

[00:28:54] Speaker 02:
No, Your Honor.

[00:28:56] Speaker 02:
What it means to me... Why not?

[00:28:57] Speaker 03:
Explain that to me.

[00:28:58] Speaker 02:
Because it requires those individuals to suppress a core characteristic of their identity.

[00:29:03] Speaker 02:
It would be the equivalent of a ban, for example, that required somebody who... We analogize it to a ban on gay individuals that would require them to act heterosexually.

[00:29:17] Speaker 02:
If you require someone to suppress the core characteristic... That certainly wasn't the Supreme Court's view in Goldman.

[00:29:23] Speaker 02:
In the Goldman case, it was an as-applied challenge to a facially neutral policy.

[00:29:32] Speaker 02:
Here, the policy on its face, in three separate ways, says that transgender individuals with gender dysphoria are excluded, transgender individuals without gender dysphoria are excluded.

[00:29:43] Speaker 03:
What about Roskar?

[00:29:44] Speaker 03:
That was not facially neutral.

[00:29:47] Speaker 02:
That's correct, Your Honor, Rosker wasn't, but here the process doesn't reflect that there was a consideration of a change of policy.

[00:29:56] Speaker 03:
But don't Rosker and Goldman both caution the judiciary?

[00:30:00] Speaker 03:
in the strongest possible terms, that when we're in the military context, that we're dealing with the apogee of the political branch's powers to determine combat readiness, right?

[00:30:15] Speaker 03:
Isn't that what both those cases teach us is to tell courts, tread very carefully if at all here, because we leave to the political branches the determination of who is combat ready

[00:30:28] Speaker 03:
and who is not combat ready.

[00:30:31] Speaker 03:
Why isn't that precisely what we're dealing with here?

[00:30:34] Speaker 03:
You are asking the courts to make determinations we are not equipped to make.

[00:30:41] Speaker 03:
Who is combat ready?

[00:30:43] Speaker 03:
Who is not?

[00:30:45] Speaker 02:
Your Honor, the weight of the evidence before the district court was that the 2017 White House memorandum

[00:30:54] Speaker 02:
was based on discrimination against a class of individuals.

[00:30:58] Speaker 02:
And the government was directed to develop an implementation plan to carry out that discriminatory

[00:31:06] Speaker 02:
directive.

[00:31:07] Speaker 02:
The documents that the government has come forward with, including the terms of reference and the interim guidance, all reflect that the process indeed followed through with that directive to re-institute a ban on transgender individual serving.

[00:31:23] Speaker 02:
And indeed, the ultimate policy does that on its face.

[00:31:27] Speaker 02:
In contrast to that, the government has argued that it has exercised independence

[00:31:33] Speaker 02:
in adopting this policy or that is acted outside of the specific directive given to the President.

[00:31:40] Speaker 02:
And in the middle is a black box of what actually happened during that process because the government has not come forward to support its unsupported assertion of the exercise of discretion or independence.

[00:31:53] Speaker 03:
Don't both Rosker and Goldman stand for the proposition that that is not an inquiry we ought to be engaged in.

[00:32:01] Speaker 02:
No, Your Honor.

[00:32:02] Speaker 03:
This is the military and it's the military context and it gets special deference, not normal.

[00:32:07] Speaker 03:
I mean in Goldman they wouldn't even

[00:32:09] Speaker 03:
Talk about the level of scrutiny, right?

[00:32:12] Speaker 03:
Stay away from it.

[00:32:12] Speaker 03:
It's the military.

[00:32:14] Speaker 03:
They get great difference in matters like this.

[00:32:17] Speaker 02:
Under Rosker, the court said you apply the same standard of scrutiny that you would otherwise apply to a facially discriminatory policy.

[00:32:26] Speaker 02:
And here, where the process, where there's no evidence in the record that there was any independent discretion, where another panel of this court

[00:32:34] Speaker 02:
already found that the initial 2017 directive from the president to reinstitute the ban was based on discrimination.

[00:32:42] Speaker 02:
There's simply at this point in time nothing in the record to find that the district court acted outside of her discretion not to credit the unsupported assertions of the government and to find simply based on the record in front of you.

[00:32:58] Speaker 03:
Do you know of any cases in the history of the republic in which the judiciary

[00:33:04] Speaker 03:
has decided military-wide rules about accession and detention.

[00:33:09] Speaker 03:
Any case like that?

[00:33:12] Speaker 02:
In the case of Crawford v. Cushman where there was an exclusion for individuals who were pregnant where that medical condition was treated differently than other temporary conditions, the court said

[00:33:25] Speaker 02:
that the only justification was based on animus and because of sex and therefore the same level of deference wouldn't apply in that context.

[00:33:33] Speaker 02:
What we're arguing here is that the court has said that there simply is not sufficient evidence in the record at this point in time to apply the deference that would apply if the process had been focused on determining what the policy was.

[00:33:48] Speaker 03:
We have a policy here.

[00:33:49] Speaker 03:
This used to be

[00:33:51] Speaker 03:
the policy for years, right, through numerous presidents had a ban similar to this one.

[00:33:58] Speaker 03:
The only time that hasn't been the case was in the last year of President Obama's administration.

[00:34:04] Speaker 03:
That's it.

[00:34:06] Speaker 03:
In all time that this has been an issue, presidents of different parties have had this policy.

[00:34:14] Speaker 03:
Then we have one change and now we have another president who

[00:34:17] Speaker 03:
wants to go back to the old policy.

[00:34:20] Speaker 03:
Why would the courts be involved in that decision?

[00:34:25] Speaker 02:
Because where the only evidence in the record shows that the reason for the reversal of policy to reinstate a ban on transgender individuals... That's a bit strong.

[00:34:34] Speaker 03:
The only evidence?

[00:34:37] Speaker 03:
There's evidence... I mean, you heard your friend talk about the Mattis plan convened a group of experts.

[00:34:44] Speaker 03:
Did studies, took time, they had the benefit of having some experience under the Carter Plan?

[00:34:51] Speaker 02:
There's no evidence that supports that the process departed from the directive from the President to re-institute the ban.

[00:35:00] Speaker 02:
And the only basis to, in fact, there's not even an acknowledgement in the substance of the policy that it's a change of policy, even under

[00:35:10] Speaker 02:
in the administrative law context.

[00:35:14] Speaker 00:
Help us understand how we're supposed to, I mean, what in your view would indicate that there was an adequate reassessment?

[00:35:24] Speaker 00:
I mean, judges are asked to reconsider their decisions all the time.

[00:35:30] Speaker 00:
You know, party files a motion to reconsider.

[00:35:33] Speaker 00:
And the judge might issue an order that says,

[00:35:37] Speaker 00:
I've considered all the arguments, but I believe that the original decision was correct and I deny your motion.

[00:35:46] Speaker 00:
I mean, we don't employ some sort of presumption that they didn't really reconsider it, right?

[00:35:53] Speaker 02:
It would have had the requisite consideration that looked at the benefits of the policy, the effects of the reversal of policy, of the service level impacts of the reversal of policy.

[00:36:06] Speaker 02:
All that the report shows and all that the record has reflected is that the process was focused on implementing the president's directive to reinstate the ban, not that it was riding on a blank slate.

[00:36:19] Speaker 02:
And so what we are arguing is that based on the record here.

[00:36:23] Speaker 03:
I don't think that's fair either.

[00:36:25] Speaker 03:
I mean, in the presidential memorandum itself, it invites the Secretary of Defense to advise to go in a different direction, so.

[00:36:36] Speaker 02:
Your Honor, on that same record.

[00:36:39] Speaker 03:
And in fact, he did in one element with what I keep calling the grandfather clause.

[00:36:44] Speaker 03:
That was different than the original directive.

[00:36:46] Speaker 02:
Another panel of this court said that there was, based on the same 2017 White House memorandum, that there was no motivation in the review process for anything other than to reinstate the pre-Carter ban on transgender individuals.

[00:37:02] Speaker 02:
And with regard to the grandfather clause,

[00:37:04] Speaker 02:
that you've referenced, it's specifically included in the terms of reference document that the process should include consideration of currently serving transgender individuals.

[00:37:18] Speaker 02:
And it was for the purpose of institute, reinstituting the ban and contemplate the continued service because once those individuals' terms of service expire, then the ban will have been complete.

[00:37:30] Speaker 02:
And it's also not a change for those individuals because it inflicts a constitutional injury that subjects them to different terms of service as individuals who are accepted from a categorical band.

[00:37:46] Speaker 03:
So in your view, what level of scrutiny should we use to analyze the Mattis plan?

[00:37:53] Speaker 02:
Your Honor, under any level of scrutiny, the Mattis Plan fails because it's rooted in discrimination against a group of individuals.

[00:38:03] Speaker 04:
It's as they... Council, before you go too far on that, can I read you the AMA's description of transgender dysphoria, or of consequences, that it can cause debilitating distress, depression, impairment of function, self-mutilation,

[00:38:22] Speaker 04:
or other self-injurious behavior and suicide.

[00:38:27] Speaker 04:
And I know that you, in your brief, scoffed at the numbers on suicide.

[00:38:33] Speaker 04:
But you said they were low, which they were in heaven.

[00:38:37] Speaker 04:
But the interesting question is the ratio between suicidal impulses in people with gender dysphoria and people without it.

[00:38:48] Speaker 04:
And there, the ratio, I think, was about eight to one.

[00:38:51] Speaker 04:
which is the relevant comparison.

[00:38:55] Speaker 04:
So you're clear that a military policy limiting people with a condition can exhibit these symptoms and has this very much higher ratio of suicidal impulses than the population at large.

[00:39:17] Speaker 04:
That's clearly wrong.

[00:39:20] Speaker 02:
And if I may make two responses to that.

[00:39:22] Speaker 02:
One is that the policy on its face excludes transgender people even without gender dysphoria.

[00:39:27] Speaker 02:
But to your point, the data that it refers to actually equates suicidal thinking with suicidal behavior.

[00:39:37] Speaker 02:
And if you look at the actual comparison, which is reflected by the data of comparison between suicidal thinking of transgender service members and suicidal thinking of non-transgender service members,

[00:39:48] Speaker 02:
they're about equivalent, and that's in the Surgeon's General Report and in the amicus brief that's submitted by the Surgeon's General.

[00:39:55] Speaker 02:
The report that you refer to, the eight and a half number figure, actually wrongly compares suicidal behavior to suicidal thinking, and so that number is not consistent.

[00:40:08] Speaker 02:
In addition, there's no reason to apply a special exclusionary rule

[00:40:15] Speaker 02:
in the military where the military already has significant vetting procedures for individuals with a suicidal history and can address any of those issues that arise during service or non-transition.

[00:40:26] Speaker 04:
As we know from the record, the military do preemptively exclude categories

[00:40:33] Speaker 04:
up to the point of 71% of the essentially eligible population, including limiting it to males of a particular age.

[00:40:43] Speaker 04:
So clearly, to assure the availability of people who are able to serve without creating serious problems, the military normally uses

[00:40:59] Speaker 04:
exclusions which are broader than the actual incidence of problems.

[00:41:06] Speaker 02:
The military doesn't look at, for example, the increased levels of suicidality among children of service members or among white individuals as compared to black individuals where there's higher levels

[00:41:18] Speaker 02:
of distress, so there's no reason other than the direction to exclude transgender individuals for service for the military to have looked at this specific way of excluding transgender individuals, and it's the reason why it is so significant that the March 2018 policy excludes transgender individuals regardless of whether or not they have gender dysphoria.

[00:41:42] Speaker 03:
So if that were not part of the policy, if it were linked simply to dysphoria,

[00:41:49] Speaker 03:
Different case?

[00:41:50] Speaker 02:
Well, Your Honor, gender dysphoria here is being used as a proxy for excluding transgender individuals.

[00:41:56] Speaker 02:
There has not been an evaluation in the process that looks separate and apart from the group that both gender dysphoria and gender transition is being used to focus on.

[00:42:08] Speaker 03:
Is there a group that's transgender and does not experience dysphoria?

[00:42:14] Speaker 02:
Yes, Your Honor, there are.

[00:42:16] Speaker 02:
There are transgender individuals who do not experience gender dysphoria and who do go through gender transition.

[00:42:23] Speaker 00:
So for those people who are transgender but who have not been diagnosed with gender dysphoria, how were they treated under the Carter policy?

[00:42:41] Speaker 02:
Under the Carter policy,

[00:42:43] Speaker 02:
anyone who was serving and would undergo gender transition would be discharged.

[00:42:53] Speaker 02:
And anyone who underwent gender transition would be excluded from service.

[00:42:59] Speaker 02:
Under the Carter Policy, as I said, focused as it was on transsexualism and change of sex, it excluded individuals who would or did undergo gender transition.

[00:43:13] Speaker 00:
A person who was transgender without a diagnosis of gender dysphoria could serve only if they identified with their biological sex?

[00:43:28] Speaker 02:
Your Honor, there certainly have been people who have suppressed their identity as transgender individuals.

[00:43:36] Speaker 02:
But what it means to be transgender is to not identify in the birth sex.

[00:43:41] Speaker 02:
The fact that there have been transgender individuals who could suppress that core characteristic of their identity was not a policy that permitted transgender individuals to serve.

[00:43:52] Speaker 00:
I want you to answer my question as to what the Carter policy said with respect to those people.

[00:44:00] Speaker 02:
I'm sorry, Your Honor.

[00:44:01] Speaker 02:
Could you restate your question?

[00:44:05] Speaker 00:
The policy instituted in 2016 by Secretary Carter.

[00:44:09] Speaker 00:
Yes, Your Honor.

[00:44:10] Speaker 00:
If there was someone who wanted to join the military, who said that they were transgender, who had no diagnosis of gender dysphoria, what did the Carter policy say would be the accession rule for them?

[00:44:36] Speaker 02:
Your Honor, the reason I'm hesitating to respond is because it presumes that there are transgender individuals who have a gender identity that's inconsistent with their birth sex, who live and function consistent with their birth sex.

[00:44:53] Speaker 02:
In other words, who disavow their gender identity.

[00:44:56] Speaker 02:
And so again, that distinction

[00:44:58] Speaker 02:
between conduct, that it's an effort to distinguish between the status of being transgender and the conduct that defines it, which is to not live in your birth sex.

[00:45:08] Speaker 02:
And so under the Carter policy, in order for someone to enlist, they had to have completed, it authorized people to enlist who had completed gender transition and did so prior to 18 months before service.

[00:45:22] Speaker 00:
Okay, let me ask my question this way.

[00:45:26] Speaker 00:
Is there a difference between the Carter Policy and the 2018 Mattis Policy with respect to transgender persons who have no diagnosis of gender dysphoria?

[00:45:42] Speaker 02:
The Carter Policy allows someone who is transgender to openly serve.

[00:45:47] Speaker 02:
And what the focus of that open service was was that it allowed somebody who had undergone transition and had completed gender transition to enlist and allowed someone to remain in service who would undergo gender transition.

[00:46:01] Speaker 02:
And so that was the Carter Policy.

[00:46:06] Speaker 02:
It's the precise opposite of the Mattis Policy.

[00:46:10] Speaker 00:
And I'm talking about people without a diagnosis of gender dysphoria.

[00:46:15] Speaker 02:
If there was someone who had transitioned without a diagnosis, which there are, that person would be allowed to serve under the Carter policy and denied service under the March 2018 policy.

[00:46:26] Speaker 00:
And how do we know that?

[00:46:28] Speaker 00:
What language in the Carter policy tells us that?

[00:46:33] Speaker 02:
That individuals can.

[00:46:35] Speaker 00:
Your friend on the other side said a few minutes ago,

[00:46:40] Speaker 00:
that you conceded that there was no difference between the Carter policy and the Mattis policy with respect to transgender persons with no history or diagnosis of gender dysphoria?

[00:46:58] Speaker 00:
Yes or no, do you concede that?

[00:47:01] Speaker 02:
The Mattis policy is completely the opposite of

[00:47:05] Speaker 02:
of the Carter policy, their argument that the Carter policy somehow allowed transgender people who didn't, required transgender people to serve in their birth sex misstates the criterion that authorizes people who transition to remain in service when they do so.

[00:47:23] Speaker 02:
It is a requirement that you complete transition while in service and change the dears marker before you can live consistent with your birth sex.

[00:47:32] Speaker 00:
So I asked you a yes or no question.

[00:47:34] Speaker 00:
Was that a no?

[00:47:39] Speaker 00:
Do you concede that the policies are the same with respect to a transgender person with no history or diagnosis of gender dysphoria?

[00:47:50] Speaker 00:
There's a chart of page 12 of the government's brief, opening brief, the first row on the chart.

[00:47:59] Speaker 00:
Is that chart correct or incorrect?

[00:48:03] Speaker 00:
Are you familiar with the chart I'm referring to?

[00:48:05] Speaker 02:
Yes, Your Honor.

[00:48:09] Speaker 02:
The chart presumes that there are transgender individuals who live and function in their birth sex.

[00:48:17] Speaker 02:
It's a contradiction in terms, and it's a word game that the government is playing with this court.

[00:48:23] Speaker 02:
to suggest that there's an exception that allows transgender people to serve who are suppressing the core characteristic, the defining characteristic of what it means to be transgender.

[00:48:38] Speaker 02:
And that's in front.

[00:48:39] Speaker 04:
On the last question, what the pre-card policy was, the first paragraph of the

[00:48:48] Speaker 04:
of Secretary Carter's July 28, 2015 memo says, effective July 2015, no service member shall be involuntarily separated, denied relistment or continuation of service on the basis of their gender identity.

[00:49:07] Speaker 04:
without various things and so forth.

[00:49:10] Speaker 04:
The overwhelming implication of that is that until that moment, the pre-Carter policy was automatic exclusion, indeed separation from the service, for people who were simply transgender.

[00:49:31] Speaker 02:
Your Honor, there's no evidence in the record

[00:49:37] Speaker 02:
that supports the government's argument that in pre-Carter transgender, that there were transgender individuals.

[00:49:44] Speaker 04:
I mean, it certainly makes this memo seem kind of crazy.

[00:49:48] Speaker 04:
What you say is true.

[00:49:49] Speaker 04:
Secretary Carter was sort of shooting it in the air.

[00:49:55] Speaker 02:
What Secretary Carter said is that individuals wouldn't be discharged for needing to undergo gender transition.

[00:50:01] Speaker 04:
No, what he says on the basis of their gender identity.

[00:50:05] Speaker 04:
That's what he says.

[00:50:07] Speaker 02:
Yes, and then the policy, the implementation of that policy was about revising the accession standards and revising the retention standards to ensure that people wouldn't be discharged if they had or would undergo.

[00:50:20] Speaker 04:
I'm just talking about the opening line of his memo of July 28, 2015.

[00:50:27] Speaker 04:
But if your account of things is correct, it was crazily worded.

[00:50:36] Speaker 04:
It does not talk of transitions.

[00:50:39] Speaker 04:
It does not talk of any of those things.

[00:50:41] Speaker 04:
It talks about one thing, gender identity.

[00:50:46] Speaker 04:
And it seems to say no more will that be a freestanding basis for exclusion for separation from the military.

[00:50:57] Speaker 02:
Your Honor, again, it presumes that there are transgender individuals who live in their birth sex and do so for reasons other than

[00:51:05] Speaker 02:
suppressing the fact that they have a gender identity that's different than their birth sex.

[00:51:11] Speaker 02:
And in the pre-Carter policy, the individuals who were excluded or discharged from service were those who underwent gender transition, and those that were precluded from enlistment included those who underwent gender transition.

[00:51:25] Speaker 04:
You have a very binary view of the universe.

[00:51:29] Speaker 04:
And I take it under that anyone with an impulse towards transition out of his or her biological sex.

[00:51:44] Speaker 04:
is A, transgender, and B, as part of that person's identity, making such transitions.

[00:51:52] Speaker 04:
But there seem to be people who spend decades in their biological sex

[00:51:59] Speaker 04:
And then after various things happen in their lives, they come to the view that they would like to transition, and then they do or do not transition.

[00:52:13] Speaker 04:
But they seem to refute your notion of this binary classification.

[00:52:20] Speaker 04:
It isn't exactly binary, it's an equation, but it's an equation based on a proposition that these binary phrases, transgender, significantly or passionately desiring a transition, are concepts that we can deal with, but we have to equate them.

[00:52:45] Speaker 02:
Your Honor, again, drawn in comparison to a ban on individuals on the basis of sexual orientation, where somebody has a homosexual orientation, the fact that someone could either not act on that orientation or suppress that orientation doesn't just make the individual not gay.

[00:53:04] Speaker 02:
And the fact that somebody could serve and repress or either

[00:53:09] Speaker 04:
act inconsistent with that identity and even later on go through the process of embracing it doesn't change the fact that that individual is gay.

[00:53:30] Speaker 04:
gradual transitions, mental transitions, psychological transitions in terms of awareness of even the possibility of changing sex.

[00:53:44] Speaker 04:
You seem to have that entire period of evolution zeroed out.

[00:53:53] Speaker 04:
They go automatically, apparently, and perhaps by your definitions they have never had a period when it wasn't part of their identity to make a transition.

[00:54:07] Speaker 04:
I'd be astonished to find empirical evidence supporting that.

[00:54:13] Speaker 02:
The group that was targeted by the Mattis policy is the group given.

[00:54:20] Speaker 04:
Please don't talk, you aren't responding.

[00:54:22] Speaker 04:
I'm talking about the real world, not about what policies target, et cetera.

[00:54:28] Speaker 02:
I mean, the fact that people decide to or are only able to later on transition doesn't change the fact that a policy that excludes individuals.

[00:54:37] Speaker 04:
Yes, please, please, please.

[00:54:39] Speaker 04:
Just forget about policies, forget about targets.

[00:54:42] Speaker 04:
Talk about the world, the world in which human people exist and have various notions of what they want of life and of themselves, okay?

[00:54:53] Speaker 02:
Yes, if I may.

[00:54:55] Speaker 04:
If you mention policy in your answer to that, I will give up.

[00:54:59] Speaker 02:
Okay, if I may.

[00:55:02] Speaker 02:
During the pre-Carter world, there were also people

[00:55:07] Speaker 04:
Who, I'm talking about the world.

[00:55:09] Speaker 04:
I don't care about the pre-Carter world, the Carter world, the Mattis world, any of those worlds.

[00:55:13] Speaker 04:
I'm talking about the world we live in, okay?

[00:55:17] Speaker 04:
Where there are millions of individuals who go through various phases of psychological and other development.

[00:55:27] Speaker 04:
And you appear to be telling me that anyone who at any point

[00:55:35] Speaker 04:
thinks that he or she wants to make a transition, must by definition have always wanted that from the moment of serious consciousness.

[00:55:48] Speaker 04:
You're arguing that?

[00:55:49] Speaker 02:
No, Your Honor, I'm not.

[00:55:51] Speaker 04:
But if I may... So isn't it the case that people may start out with one set of assumptions about themselves,

[00:55:59] Speaker 04:
go into a period when those assumptions, they begin to question those assumptions, and can go at least one or two ways, probably many more.

[00:56:11] Speaker 04:
One is to

[00:56:15] Speaker 04:
adopt the view that, in fact, their biological sex is something they're comfortable with, and the other is to adopt the view, at least at the opposite extreme, is to adopt the view that their biological sex is something they cannot be comfortable with, and therefore must make a transition.

[00:56:32] Speaker 04:
And this, you seem to cut out this whole middle phase of ordinary human beings' lives.

[00:56:41] Speaker 02:
If I may analogize to religion,

[00:56:43] Speaker 02:
There are individuals who may be of a particular faith tradition for part of their lives, and then maybe Jewish for part of their lives, and then at a later time in their life may be of a different faith tradition.

[00:56:59] Speaker 02:
The fact that that happens doesn't change that they were of a particular faith tradition during a particular period of time.

[00:57:09] Speaker 04:
And so the problem here is that invites the identification of sort of intermediate category, agnostic either with respect to particular religion or perhaps with respect to the deity altogether.

[00:57:30] Speaker 02:
What I'm suggesting, Your Honor, is the fact that someone might, at a different period of their life, either have a different identity or live in a different way.

[00:57:38] Speaker 04:
Again, you make it sound like a switch that gets flicked.

[00:57:44] Speaker 02:
Well, the flick that's being switched is the military's policy.

[00:57:50] Speaker 04:
Please put that aside.

[00:57:51] Speaker 02:
Well, I guess, Your Honor, I am saying that there is a realness and a seriousness and a persistence to a person's gender identity and that for transgender individuals that is defined by the fact that a person's identity is different than their birth sex.

[00:58:10] Speaker 02:
The fact that that may be true or different at a different period in their life doesn't change the fact that that defining characteristic is real and serious when it in fact emerges.

[00:58:20] Speaker 02:
And the record in this case, and it's supported by the affidavit by George Brown as well, is that gender identity is deep-seated and long-standing and set very early in life.

[00:58:31] Speaker 03:
And that... Can it change throughout life, transgender identity?

[00:58:35] Speaker 03:
Can it change throughout life?

[00:58:36] Speaker 02:
The record evidence is that it is typically, it is impervious to change, it's deep-seated, and it does not change throughout a period's life, throughout an individual's life.

[00:58:48] Speaker 02:
I mean, there may be somebody whose identity is not as polarized as Judge Williams' question, but it's not that it changes over the course of a period's lifetime.

[00:59:04] Speaker 04:
Yeah.

[00:59:04] Speaker 04:
It's false consciousness.

[00:59:06] Speaker 02:
Gender identity?

[00:59:08] Speaker 04:
The period of uncertainty between one's biological sex and a different gender is false consciousness.

[00:59:21] Speaker 04:
It's only when the person becomes assured that he or she wants to make the transition that his or her consciousness becomes truthful.

[00:59:33] Speaker 02:
Well, there's significant reasons why someone is not able to embrace or understand their gender identity, particularly where it doesn't align with a person's birth sex, both because there's such discrimination and because it is outside of what we anticipate that people's identities and birth sex is aligning.

[00:59:55] Speaker 02:
And so there are reasons why it does take longer

[00:59:58] Speaker 02:
for many people to understand that experience that is core to who they are, but it doesn't mean that that individual isn't transgender.

[01:00:08] Speaker 03:
Thank you very much.

[01:00:12] Speaker 03:
How much time does the government have?

[01:00:16] Speaker 03:
We'll give you back four minutes.

[01:00:21] Speaker 01:
Thank you, Your Honor.

[01:00:22] Speaker 01:
Four points.

[01:00:23] Speaker 01:
First, Judge Griffith, my friend on the other side conceded when you asked that there were changed circumstances.

[01:00:29] Speaker 01:
And so we think that based on that concession and her response was that, well, it still is not changed circumstances for the purpose of the constitutional analysis.

[01:00:38] Speaker 01:
That means we still have to go to the merits of the case.

[01:00:41] Speaker 01:
Secondly, Judge Williams, you repeatedly asked my friend on the other side about the fact that transgender does not necessarily mean gender transition.

[01:00:51] Speaker 01:
She had no answer to that.

[01:00:53] Speaker 01:
We think that the record speaks for itself and makes clear that there is a significant subset of transgender individuals who do not transition their genders throughout their lifetime.

[01:01:02] Speaker 03:
Doesn't the AMA amicus brief refute that?

[01:01:05] Speaker 03:
Wasn't that simply the definition that your friend was using?

[01:01:09] Speaker 01:
No, Your Honor, I don't think so.

[01:01:10] Speaker 01:
The standard definition of transgender individuals throughout the literature is someone who identifies with a gender other than his or her biological sex.

[01:01:18] Speaker 01:
That does not mean that that person will necessarily transition throughout his or her lifetime.

[01:01:24] Speaker 03:
But it does mean that for that category of individuals, if they are in the military and are required to act according to their biological sex, that the word we would use for that is suppression.

[01:01:36] Speaker 03:
They're suppressing an innate,

[01:01:38] Speaker 03:
human characteristic of theirs.

[01:01:39] Speaker 03:
Is that, that's right?

[01:01:41] Speaker 03:
I don't think so, Your Honor, because some... Your argument is just that, well, they have to do that to serve, but there is suppression going on.

[01:01:48] Speaker 01:
Two points, Your Honor.

[01:01:49] Speaker 01:
I point you against the literature of that.

[01:01:52] Speaker 01:
First, not all transgender individuals seek to undergo transition, and that's not necessarily because of suppression.

[01:01:57] Speaker 01:
Sometimes their gender identities do not line up to either male or female gender identities, and so they are comfortable serving in their particular biological sex.

[01:02:08] Speaker 01:
And secondly, even if you think that there's some sort of suppression, Your Honor, we would analogize this case to Goldman, and we don't think it is any different than

[01:02:16] Speaker 01:
the Air Force regulation that required all service members not to wear headgear while indoors.

[01:02:22] Speaker 01:
That required Captain Goldman.

[01:02:23] Speaker 01:
Certainly, it recluded him from service consistent with his faith.

[01:02:27] Speaker 03:
But plaintiffs... What do you do about your friend's argument that that was a facially neutral regulation and that this is not, that this is facially discriminatory?

[01:02:37] Speaker 01:
Your Honor, we think they're both facially neutral.

[01:02:39] Speaker 01:
In either case, all service members, safer ones, whether they're following the reliance exemption or in the Carter policy, are required to meet the standards associated with their biological sex.

[01:02:49] Speaker 01:
That applies regardless of the gender identity of the service member.

[01:02:53] Speaker 01:
That is just as facially as neutral as the Air Force's regulation saying that no service member could wear a headgear indoors.

[01:03:00] Speaker 01:
To be sure, for many transgender individuals, that will be

[01:03:04] Speaker 01:
preclusive for service, but that does not mean it is not facially neutral.

[01:03:08] Speaker 01:
Neither plaintiffs nor the courts nor anyone has suggested that the regulation in Goldman was not facially neutral, even though, to be sure, it had a significant impact on service members of particular faith like Captain Goldman.

[01:03:22] Speaker 01:
We see no difference here.

[01:03:24] Speaker 01:
And we don't think there should be a distinction between religious identity and gender identity in the context of military deference.

[01:03:32] Speaker 01:
And I think

[01:03:33] Speaker 01:
Going on and responding, particularly Judge Wilkins, you were concerned and you repeatedly asked my friend on the other side whether there was a difference in the Carter policy and the Mattis policy between how they treated transgender individuals without gender dysphoria.

[01:03:49] Speaker 01:
I don't think she ever gave you an answer and that is because they are treated the same.

[01:03:52] Speaker 01:
You can look throughout the record, and I would point you, for example, to page 461 of the Joint Appendix stating that under the Carter policy, you must receive a diagnosis of gender dysphoria in order to begin the transition process.

[01:04:05] Speaker 01:
Finally, Judge Griffith, I would just return to your point that this is truly extraordinary what has happened here.

[01:04:11] Speaker 01:
The military is subject to four nationwide injunctions, precluding it from adopting a policy that the Secretary of Defense, in his professional military judgment, has concluded poses

[01:04:20] Speaker 01:
would better further the national defense and avoid a policy that poses risks to the United States military.

[01:04:28] Speaker 01:
We are asking for just a simple amount of deference that was applied in Goldman, that was applied in Rosker.

[01:04:33] Speaker 03:
The way we got here is an extraordinary circumstance, too.

[01:04:36] Speaker 03:
The way this policy was first created and announced.

[01:04:39] Speaker 03:
And that's one of the issues you have to deal with, was whether there was a taint that was created in the first instance that the Mattis plan has been freed from.

[01:04:49] Speaker 03:
But that's extraordinary as well.

[01:04:51] Speaker 01:
Your Honor, we don't think this is any different from, say, the travel ban case in a Trumpy Hawaii.

[01:04:57] Speaker 01:
In that case, the argument proposed by the plaintiffs there was incredibly similar to the one advanced by the plaintiffs here.

[01:05:03] Speaker 01:
They said that the final version of the proclamation was simply tainted by the president's tweets.

[01:05:10] Speaker 01:
It was the product of the previous executive orders, and thus the process underlying it.

[01:05:14] Speaker 03:
The government was able to show the Supreme Court there that there were many, many differences

[01:05:18] Speaker 03:
from the ultimate ban than they were from the first one.

[01:05:22] Speaker 03:
You haven't been able to identify so many.

[01:05:24] Speaker 03:
Even if I had some, one in particular, right, what I keep calling the grandfather clause.

[01:05:30] Speaker 01:
Your Honor, the many, many differences in the travel ban litigation, there weren't that many significant ones between the first executive order and the second executive order and the final proclamation.

[01:05:40] Speaker 01:
In fact, plaintiffs before the Supreme Court in the Hawaii litigation repeatedly told the Supreme Court, this is substantially the same travel ban.

[01:05:47] Speaker 01:
Sure, it mixed around various countries and so on and forth, but the core of it remained the same.

[01:05:52] Speaker 01:
And that was their argument for why it could not be actually neutral, notwithstanding the process of review that it underlay that proclamation.

[01:05:59] Speaker 01:
The same thing is true here.

[01:06:00] Speaker 01:
Instead of arguing that there is religious gerrymandering, plaintiffs have advanced the notion that this is somehow a form of transgender gerrymandering.

[01:06:07] Speaker 01:
But the Mattis policy is based on a thorough investigation and study of this issue, and it draws distinctions

[01:06:14] Speaker 01:
on the basis of gender dysphoria and gender transition, the same distinctions the Carter policy adopted.

[01:06:19] Speaker 00:
Just so that we're clear, what changed between the original 2017 plan and the 2018 plan other than the grandfather provision?

[01:06:33] Speaker 01:
The critical difference, setting aside the grandfather provision, is the fact that under the 2017 presidential memorandum and the pre-Carter policy, individuals, transgender individuals, could be discharged solely on the basis of their gender identity.

[01:06:47] Speaker 01:
Even if they expressed no desire to transition, even if they had no gender dysphoria, those individuals could not come in and could not serve.

[01:06:56] Speaker 01:
They would be

[01:06:56] Speaker 01:
under fear of discharge.

[01:06:58] Speaker 01:
That is no longer the case and the Mattis policy is expressed on this point.

[01:07:01] Speaker 01:
I point you again to page 287 of the JA where it says transgender individuals shall not be disqualified on the basis of their transgender status.

[01:07:09] Speaker 03:
Respond to your friend's argument that there's a noble set of that.

[01:07:12] Speaker 03:
That to be a transgender individual means that you cannot live according to your biological sex.

[01:07:21] Speaker 03:
Or to do so you do at great human cost of human suffering.

[01:07:25] Speaker 01:
Again, Your Honor, I would point you to all the various sources in the literature cited on pages two to three of our reply.

[01:07:31] Speaker 01:
I point you specifically to the study cited in the RAND report saying that 18 percent of transgender individuals just do not plan to ever transition.

[01:07:38] Speaker 01:
I point you to the study chaired by Jocelyn Elders that discusses that for many transgender individuals, gender transition has no

[01:07:46] Speaker 01:
framework and no meaning.

[01:07:48] Speaker 01:
It's not a null set, Your Honor, and plaintiffs are just simply resisting this argument and this fact and the literature in order to advance their case.

[01:07:56] Speaker 01:
Thank you.

[01:07:57] Speaker 01:
Thank you very much.

[01:07:57] Speaker 01:
The case is submitted.