[00:00:00] Speaker 03:
Case number 25-5087.

[00:00:04] Speaker 03:
Nicholas Talbot et al.

[00:00:05] Speaker 03:
versus United States of America et al.

[00:00:07] Speaker 03:
the balance.

[00:00:09] Speaker 03:
Mr. Cambly for the balance.

[00:00:11] Speaker 03:
Mr. Minter for the appellees.

[00:00:13] Speaker 00:
Good morning, Mr. Cambly.

[00:00:15] Speaker 00:
We'll hear from you.

[00:00:16] Speaker 01:
Good morning, Your Honor.

[00:00:18] Speaker 01:
May it please the court, Abishek Cambly for the defendants, and I will be reserving three minutes of time for rebuttal.

[00:00:24] Speaker 01:
Your honors, this court should follow the lead of the U.S.

[00:00:27] Speaker 01:
Supreme Court in the D.C.

[00:00:28] Speaker 01:
Sturkett State Panel and allow the military to institute its policy of presumptively disqualifying those with gender dysphoria.

[00:00:36] Speaker 01:
With medical conditions in particular, we begin with the premise that most Americans are disqualified from the service.

[00:00:43] Speaker 01:
71% of 17 to 24-year-olds in America would not meet the medical requirements to join.

[00:00:50] Speaker 01:
And so, the military can certainly presumptively disqualify someone with a mental health condition, which the record shows, one, requires nine times the amount of mental health encounters as the average service members, two, makes them non-deployable for a period of time if they're undergoing cross-hormone treatment, and three, have tripled the cost per capita as regular service members.

[00:01:13] Speaker 01:
This policy is subject to nothing more than rational basis, informed by military deference, and it easily passes that standard, and we believe the injunction should be vacated.

[00:01:25] Speaker 00:
The last statement you made about triple the cost per capital, where is that in the record?

[00:01:31] Speaker 01:
Yes, Your Honor, it is in JA 112.

[00:01:35] Speaker 01:
It was part of the Mattis report.

[00:01:40] Speaker 01:
So Your Honor, one case I wanted to spend a little bit of time on is United States v. Skirmetti.

[00:01:45] Speaker 01:
One of the reasons that it's especially important is that it provides a clear roadmap for how this case should be decided.

[00:01:52] Speaker 01:
So the question in that case boiled down to what the policy classified, or in that case, the statute classified on its face.

[00:02:01] Speaker 04:
So could I ask you a question?

[00:02:04] Speaker 04:
Your brief says that

[00:02:06] Speaker 04:
The question before us as to the four factors for a preliminary injunction is whether the district court abused its discretion.

[00:02:15] Speaker 04:
That's at page 20 of your brief.

[00:02:17] Speaker 01:
Yes, Your Honor.

[00:02:18] Speaker 04:
All right, so an abuse of discretion standard anticipates alternatives are available to the district court absent Congress haven't spoken directly or the Supreme Court haven't spoken directly.

[00:02:33] Speaker 04:
So you say in this case, we should follow the Supreme Court's entry of the stay.

[00:02:43] Speaker 04:
Now, what was the reasoning behind that?

[00:02:45] Speaker 04:
Do we know?

[00:02:46] Speaker 01:
So, your honor, it wasn't unreasoned to stay order, but the DC Circuit panel also provided some reasoning.

[00:02:53] Speaker 04:
What did the Supreme Court say?

[00:02:55] Speaker 01:
The Supreme Court just said that the injunction is stayed.

[00:02:59] Speaker 04:
Right.

[00:02:59] Speaker 04:
Okay.

[00:02:59] Speaker 04:
So we don't know exactly for what reason.

[00:03:04] Speaker 01:
That's correct, your honor.

[00:03:05] Speaker 04:
Okay.

[00:03:06] Speaker 04:
So absent that, and your brief saying there's an abuse of discretion standard for us to consider,

[00:03:18] Speaker 04:
Isn't the implication then that there were alternatives available to the district court?

[00:03:28] Speaker 01:
So, Your Honor, we do, legal questions are still reviewed de novo, and we do believe that the district court's error was on the law, which does automatically mean that it abused its discretion when entering the injunction.

[00:03:40] Speaker 04:
And which law are you referring to?

[00:03:42] Speaker 01:
So Your Honor, based on the precedent that we have available on this issue, so one of the cases that came out after the district court entered its injunction was United States v. Scrametti, which states- I understand that.

[00:03:53] Speaker 04:
All I'm trying to get you to acknowledge or not.

[00:03:56] Speaker 04:
So I'm clear.

[00:03:58] Speaker 04:
When I read your brief and you said we were to look at the four factors to determine whether the district court had abused its discretion, you didn't talk about

[00:04:11] Speaker 04:
as a matter of law.

[00:04:14] Speaker 04:
So that said to me that the government was acknowledging that, at least at this point, prior to the Supreme Court ruling in this case and telling us why, or Congress speaking directly, that the district court had some alternatives, options available

[00:04:37] Speaker 01:
So your honor, we do believe that there's multiple reasons that the district court or one example is entering the universal injunction.

[00:04:44] Speaker 04:
I understand that.

[00:04:45] Speaker 04:
I just want to be clear that you're sticking with what you said in your opening brief.

[00:04:52] Speaker 01:
Yes, we do believe that the district court abused its discretion in entering an injunction because it doesn't meet the four factors for preliminary injunction.

[00:05:00] Speaker 04:
All right.

[00:05:00] Speaker 04:
So do you also agree in this case, all of the plaintiffs

[00:05:06] Speaker 04:
are currently serving.

[00:05:09] Speaker 01:
So your honor, nobody has been discharged under the policy at this particular point in time.

[00:05:14] Speaker 04:
And secondly, that they are both transgender and, and I may mispronounce the term, gender dysphoria.

[00:05:30] Speaker 01:
Yes, your honor, we believe that all of them would be presumptively disqualified under this policy.

[00:05:36] Speaker 04:
These are people who have been serving in the military.

[00:05:41] Speaker 04:
And at least our president has spoken very highly of military operations.

[00:05:51] Speaker 04:
And under this policy, as I understand it, all of those people would be discharged unless

[00:06:04] Speaker 04:
Their supervisor says they're absolutely necessary and indispensable and all of those things.

[00:06:11] Speaker 01:
So, Your Honor, it's given that this policy classifies on the basis of a medical condition.

[00:06:16] Speaker 01:
Yes.

[00:06:16] Speaker 01:
It's not unusual even if someone has served honorably to be discharged on the basis of a medical condition, absolute waiver.

[00:06:23] Speaker 04:
In this case, is it correct?

[00:06:27] Speaker 04:
that the disability evaluation system would not be available for these people who have served in the military?

[00:06:36] Speaker 01:
So yes, Your Honor, and I want to talk to you a little bit about that.

[00:06:39] Speaker 04:
And is the answer yes?

[00:06:41] Speaker 01:
Yes, it's not available.

[00:06:42] Speaker 04:
That system would not be available.

[00:06:43] Speaker 01:
That's correct, Your Honor.

[00:06:44] Speaker 04:
So is there any other medical condition for a military person who's in the military now who has a medical condition

[00:06:59] Speaker 04:
does not have this case-by-case determination under this system that the military has created?

[00:07:06] Speaker 01:
So yes, Your Honor, let me explain.

[00:07:09] Speaker 01:
So under section 1642 of the FY 2008 NDAA, it requires that the Department of Defense use the schedule for ratings disabilities with the VA and have it be consistent with them.

[00:07:21] Speaker 04:
Oh, hold on.

[00:07:23] Speaker 04:
I need to get that down.

[00:07:25] Speaker 01:
Yes, Your Honor.

[00:07:25] Speaker 04:
So you're saying the NDAA.

[00:07:28] Speaker 01:
NDAA of fiscal year 2008 and that's section 1642.

[00:07:32] Speaker 04:
And that is what the appropriation?

[00:07:37] Speaker 01:
Yes your honor.

[00:07:38] Speaker 04:
All right that's the appropriation act and it has this language in 1642.

[00:07:43] Speaker 01:
Yeah, so basically the disability evaluation system is for people to get a VA rating, and it requires the military.

[00:07:50] Speaker 01:
A VA rating means what?

[00:07:52] Speaker 01:
It means a disability rating where you get a certain percentage of military, it's basically medical retirement.

[00:07:59] Speaker 04:
So if I went through this system, it's possible I might be discharged on disability?

[00:08:09] Speaker 01:
Yes, Your Honor, and then you would collect a VA's retirement and the VA publishes the conditions in 38 CFR part four, Appendix C that qualify for disability and gender dysphoria is just not listed.

[00:08:23] Speaker 01:
And that was the case even under the last administration.

[00:08:26] Speaker 01:
So that's not anything new.

[00:08:28] Speaker 04:
Is there any other condition that's not?

[00:08:31] Speaker 04:
where this system is not available?

[00:08:35] Speaker 04:
Medical condition?

[00:08:36] Speaker 01:
Yes, Your Honor.

[00:08:39] Speaker 01:
Whatever is listed in that appendix C is typically what is allowed for VA disability.

[00:08:45] Speaker 04:
Do you have any idea what's in that appendix?

[00:08:47] Speaker 01:
I have glanced through it.

[00:08:48] Speaker 01:
It's hundreds of medical conditions, but gender dysphoria, even under the last administration, was not one of them.

[00:08:53] Speaker 04:
Give me an example.

[00:08:55] Speaker 01:
So, I don't know off the top of my head what specific.

[00:08:58] Speaker 04:
So, can you just provide us a record site?

[00:09:04] Speaker 04:
So I can go look at that list of 100.

[00:09:06] Speaker 01:
I don't have anything in this current record, but it's 38 CFR, part 4, appendix C that has the VA listed conditions that qualify for disability.

[00:09:16] Speaker 04:
You're giving me thousands of pages to look at.

[00:09:19] Speaker 01:
So your honor, that's where that's available, but we don't believe that that's ultimately a determination of whether this passes rational basis review because I understand that, but it is relevant to the answer to my question.

[00:09:32] Speaker 01:
So, Your Honor, we do believe that that's a separate inquiry from whether this passes rational basis review and whether this was a pretext for animus, which is what the plaintiffs were ultimately arguing.

[00:09:42] Speaker 04:
Are you saying my question is irrelevant?

[00:09:45] Speaker 01:
I don't believe that, Your Honor.

[00:09:46] Speaker 01:
What I do believe is that the disability system is a separate inquiry than whether this policy passes muster.

[00:09:53] Speaker 04:
It may not be dispositive.

[00:09:56] Speaker 04:
But I need to understand who is eligible for it.

[00:10:00] Speaker 04:
And what you're telling me is that there are hundreds of people who, if they have these conditions listed in the Federal Register, are not eligible for this case-by-case evaluation.

[00:10:14] Speaker 01:
So, Your Honor, that's my statute.

[00:10:16] Speaker 01:
The military is required to align.

[00:10:18] Speaker 04:
Is that your answer to my question?

[00:10:20] Speaker 04:
I just need to be clear.

[00:10:22] Speaker 01:
Yes, Your Honor, so I'm not aware of any of the specific conditions that are not listed there, but gender dysphoria is not one of them and it's not the only one.

[00:10:33] Speaker 04:
But you have no idea what's listed.

[00:10:35] Speaker 01:
I don't know the full universe of what's in there.

[00:10:37] Speaker 04:
I know you know the full, I just want one example.

[00:10:40] Speaker 01:
I don't have that off the top of my head, Your Honor.

[00:10:41] Speaker 04:
Thank you, sorry.

[00:10:43] Speaker 00:
Was this, I'm just trying to clarify, was this in your brief that the disability evaluation system excluded gender dysphoria even under Biden?

[00:10:55] Speaker 01:
It was not in our brief, Your Honor, and it's not in the record.

[00:10:57] Speaker 01:
It was just something that is in statutory and CFR citations.

[00:11:04] Speaker 04:
Well, it came up.

[00:11:05] Speaker 04:
at one of the earlier hearings.

[00:11:08] Speaker 04:
So the government was certainly on notice about this issue.

[00:11:11] Speaker 01:
Yes, Your Honor.

[00:11:12] Speaker 01:
But that is my understanding of the reasoning why that it's there.

[00:11:15] Speaker 01:
But ultimately, the important question is, what does the policy classify on its face?

[00:11:21] Speaker 00:
And in this case, you do have... I have a question about the compelling government interest exemption, for lack of a better word.

[00:11:34] Speaker 00:
So let's suppose you have a currently serving service member who has gender dysphoria diagnosis, they've transitioned, they have changed their gender classification in the DEERS system, I believe it's called.

[00:11:54] Speaker 00:
So let's suppose for the sake of this hypothetical

[00:11:58] Speaker 00:
It was a person who, their birth sex was male, they transitioned to female under, let's say, under the Carter policy, Carter-Boston policy, and the Mattis policy allowed them to remain, and they changed their marker.

[00:12:24] Speaker 00:
Under the Hegseth policy, that individual

[00:12:28] Speaker 00:
is presumptively disqualified, but if they meet this compelling government interest standard, according to their commanders, they can stay.

[00:12:41] Speaker 00:
But my reading of this is that this transgender female service member

[00:12:51] Speaker 00:
would be allowed to stay only if she served under the male standards, her birth sex standards.

[00:13:01] Speaker 00:
Am I correct?

[00:13:02] Speaker 01:
So your honor, there would be a separate reason that they wouldn't meet the waiver criteria.

[00:13:07] Speaker 01:
The waiver criteria requires that you never transitioned or attempted to transition your gender.

[00:13:12] Speaker 01:
So that is the main difference between this and the Mattis policies, that there is not that grandfathering provision.

[00:13:19] Speaker 04:
So as to these plaintiffs, then you acknowledge it's a ban.

[00:13:24] Speaker 01:
So, Your Honor, yes, these plaintiffs will not be able to meet the criteria for waiver.

[00:13:30] Speaker 00:
Okay, so I'm trying to... Okay, so I just want to make sure that I am understanding you correctly.

[00:13:50] Speaker 00:
At JA 53 to 54, where policy appears, I apparently have misread this because I thought that under, I guess it's at 55, JA 55 under retention,

[00:14:17] Speaker 00:
It said that paragraph C, 4.3C, says that service members disqualified because they have a current diagnosis, gender dysphoria, or they have a history of treatment.

[00:14:34] Speaker 00:
could be considered for waiver on a case-by-case basis provided there's a compelling government interest in retaining the service member that directly supports warfighting capabilities and the service member concern meets the following criteria.

[00:14:54] Speaker 00:
So you're saying that the under two

[00:14:59] Speaker 00:
The service member demonstrates that he or she has never attempted to transition to any sex other than their sex means that the person in my hypothetical would not follow under this retention policy.

[00:15:18] Speaker 00:
So who would?

[00:15:21] Speaker 00:
of the people who were retained under the maddest kind of grandfathering or the reliance exception, as it was called in Judge Williams's concurring opinion in Doe II v. Shanahan,

[00:15:39] Speaker 00:
Who's the universe of people that this retention policy could apply to?

[00:15:45] Speaker 01:
Yes, Your Honor.

[00:15:46] Speaker 01:
So it involves someone who's trans identifying, but not everyone who's trans identifying necessarily receives a diagnosis for gender dysphoria.

[00:15:55] Speaker 01:
So those people would be allowed to serve.

[00:15:58] Speaker 01:
If they do have a diagnosis for a gender dysphoria and they have 36 months of stability, they have never attempted to transition sex and are willing to serve in their biological sex, that person would also be retained.

[00:16:12] Speaker 01:
And Your Honor, I see I'm out of time, but I'm happy to stay as long as there's questions.

[00:16:15] Speaker 00:
Well, we've got more questions.

[00:16:28] Speaker 00:
people to remain in service and even continue the transition and change the marker based on this reliance exemption.

[00:16:43] Speaker 00:
Yes, your honor, including.

[00:16:48] Speaker 00:
recognition that retention standards are generally less stringent than possession standards, and that the commitment of the service members and investment that the military had put into people and training them, et cetera,

[00:17:09] Speaker 00:
All of that justified allowing people to stay in kind of in reliance on the kind of Obama era policies.

[00:17:21] Speaker 00:
I found the only explanation I found for Secretary Hegseth revoking that judgment of Mattis

[00:17:37] Speaker 00:
was at, I think it's JA65, in the single paragraph.

[00:17:47] Speaker 00:
Is there any place else in the record where I can find a justification for evoking that fallacy?

[00:18:00] Speaker 01:
Yes, your honor.

[00:18:00] Speaker 01:
So one aspect of that of the matters policy, they did have a grandfather clause, but it wasn't because there was no risk associated for the military with allowing those troops to serve.

[00:18:11] Speaker 01:
It was just a matter of where they drew the line as to where you can't serve.

[00:18:15] Speaker 01:
But one example is J 93.

[00:18:17] Speaker 01:
That's also in the matters report.

[00:18:19] Speaker 01:
Those with gender dysphoria had an average of 28.1 mental health encounters during the period that they tested while the average service member had 2.7.

[00:18:29] Speaker 01:
So it is going to be of a common sense that says those with the mental health condition will seek mental health treatment more often than the average person.

[00:18:39] Speaker 01:
So some of those types of things and costs would never change.

[00:18:42] Speaker 01:
But it goes back to what this policy classifies on the basis on its face, which is what United States v. Skirmety talks about.

[00:18:49] Speaker 01:
And that came out after DOE 2 v. Shanahan and can provide some light on that.

[00:18:53] Speaker 00:
I understand that, but I guess all I'm saying is that even under strict rational basis review, the Supreme Court has struck down lots of statutes, state constitutional amendments, policies under rational basis review based on the fact that some sort of difference in treatment or classification is arbitrary.

[00:19:26] Speaker 00:
There's readings of case law about, you know, the government can kind of change its mind and a new administration has a prerogative to change policies of the last administration.

[00:19:41] Speaker 00:
But generally speaking, you have to A, acknowledge that you're changing, and B, give a rational explanation for the change.

[00:19:55] Speaker 00:
And it may be that the court might think that that's not the best reason or whatever, but that's not for us to weigh.

[00:20:04] Speaker 00:
But we have to at least see an acknowledgement and an explanation

[00:20:09] Speaker 00:
I guess what I'm asking you is, what is the explanation that was given where Mattis knew all of the costs, knew all of the risks, but said, based on reliance interest, the investment,

[00:20:26] Speaker 00:
service, we're willing to essentially take that risk and let these people stay who began treatment, even began transitioning under the Obama era policy.

[00:20:41] Speaker 00:
And Hegseth comes and says, if you've attempted to transition at all, you don't get a waiver at all.

[00:20:49] Speaker 00:
You're out.

[00:20:50] Speaker 01:
So your honor, that goes towards, so when we're talking about that, it's talking about where we draw the line.

[00:20:57] Speaker 01:
So both the Mattis policy and this policy obviously have a presumptive disqualification for gender dysphoria.

[00:21:03] Speaker 01:
But where they draw the line as to when someone can get a waiver and stay and when someone can't is the difference.

[00:21:09] Speaker 01:
And that is an area where there's military deference that should play a role in that calculation.

[00:21:16] Speaker 01:
So when we talk about military deference, we're not talking about necessarily which studies the military considered and why.

[00:21:23] Speaker 01:
It's a separation of powers principle that says that courts are ill-equipped to make that judgment.

[00:21:28] Speaker 00:
I didn't really hear an answer to my question.

[00:21:32] Speaker 00:
So what was Secretary Hegs's explanation for

[00:21:40] Speaker 00:
drawing the line differently than where Mattis had it, where he essentially relied on mostly all of the same evidence that Mattis had.

[00:21:50] Speaker 01:
So your honor, they obviously relied on the Madison report.

[00:21:53] Speaker 01:
The Madison report does talk about those with gender dysphoria seeking mental health treatment at nine times the rate of an average member.

[00:22:02] Speaker 01:
It talks about triple the costs.

[00:22:04] Speaker 01:
It talks about how people undergoing cross hormone treatment also end up being undeployable for a year.

[00:22:10] Speaker 01:
So all of that is something that the military considered along with the 2025 literature review, which talks about the strength of evidence for treatment for gender dysphoria being low to moderate.

[00:22:22] Speaker 01:
Those with gender dysphoria having 13 times the suicide ideation rate and a higher likelihood of other disorders.

[00:22:28] Speaker 01:
So that 2025 medical review combined with the Mattis report does provide a rationale that survives rational basis informed by military deference.

[00:22:39] Speaker 00:
Some of that data, A, is not like even in the military context, but B, I think more to the point, you have people who have been in for years and are serving fine, getting Bronze Stars and other commendations, and you adopt a policy

[00:23:09] Speaker 00:
revoking a reliance exception by predecessor without even looking at data for how it's worked and how service members who were allowed to stay under that reliance exception have performed and what problems they have presented or what costs they have presented, what risks they have presented.

[00:23:39] Speaker 00:
So there's no attempt that I can see in this record to ascertain the answers to any of those questions.

[00:23:49] Speaker 01:
So, Your Honor, the stat that I presented, it's on JA-93, the number of mental health encounters.

[00:23:56] Speaker 04:
What is it, JA-93?

[00:23:58] Speaker 01:
That was in the Mattis report, and it measured outcomes within the military, and even

[00:24:05] Speaker 01:
the RAND report, which was the policy or the study that was designed to or the basis for Secretary Carter to allow those with gender dysphoria to serve.

[00:24:14] Speaker 01:
Even that states that those undergoing cross-hormone treatment would not be deployable for a period of a year, and that's in JA104.

[00:24:24] Speaker 01:
And then in JA106, one of the things in the MATIS report it talks about is that it's cited that the RAND study itself said all of its information must be cited with caution because much of the current research on transgender prevalence and medical treatment rates relied on self-reported non-representative samples.

[00:24:41] Speaker 01:
So what we have here is an area of medicine

[00:24:44] Speaker 01:
which we can also agree that there's a certain level of uncertainty over the military does not necessarily is allowed to make predictive judgments and doesn't have to wait until a situation arises in order to pass rational basis to perform a disqualification based on a medical condition and there are

[00:25:02] Speaker 01:
numerous medical conditions such as high blood pressure or others where a member can serve honorably but can still get disqualified from service as a result of that.

[00:25:12] Speaker 01:
So that's why it goes back to what does the policy classify on its face and how that fits within rational basis viewed through the lens of military deference where the military is in the best position to make the call on predictive judgments.

[00:25:28] Speaker 01:
So that also brings me to my next point.

[00:25:32] Speaker 01:
There was no disagreement.

[00:25:34] Speaker 02:
Before you totally move to the next point, you said one thing that I just wanted to make sure I heard correctly.

[00:25:41] Speaker 02:
I think you said that under the Mattis policy, a person with gender dysphoria

[00:25:52] Speaker 02:
whose transition is in progress and who wants to serve with a gender different than the gender they were assigned at birth would be allowed to continue serving under the reliance exception.

[00:26:12] Speaker 02:
I wasn't sure if I heard that right or if the MATAS policy distinguished between

[00:26:21] Speaker 02:
a reliance exception for people whose transitions were complete, but not a reliance exception for people whose transitions were in progress.

[00:26:28] Speaker 01:
Yes, Your Honor.

[00:26:29] Speaker 01:
I believe that there was a certain cutoff date as to when you had to finish the procedure under the Mattis policy.

[00:26:35] Speaker 01:
I don't have that date off the top of my head, since it went through, obviously, a number of lawsuits before it was allowed to be implemented.

[00:26:41] Speaker 01:
But at the time, because the policy did not take effect right away, there were some people who, after the report came out, completed their transition.

[00:26:50] Speaker 01:
But I do believe that there was a cutoff date to when you had to have your sex marker changed in years.

[00:26:58] Speaker 02:
Under the mass policy, at least some people whose transitions were in progress and who wanted to serve under a preferred gender that was not their birth sex would not have been covered by reliance exception.

[00:27:18] Speaker 01:
Yeah, I believe that it depends on when they met the cutoff date.

[00:27:21] Speaker 01:
If they met the cutoff date, then they were covered.

[00:27:24] Speaker 01:
If they didn't meet it and didn't complete the process, then they were not covered.

[00:27:30] Speaker 01:
So that's also why there is the importance of military deference and line drawing.

[00:27:34] Speaker 01:
So every administration, including the Obama and the Biden administration, did draw the line somewhere at gender dysphoria.

[00:27:42] Speaker 01:
It wasn't just unrestricted service if you had that medical condition.

[00:27:46] Speaker 01:
There was a period of stability.

[00:27:48] Speaker 01:
There was options for how you could get a waiver.

[00:27:51] Speaker 01:
But the Trump policy here just, or excuse me,

[00:27:55] Speaker 01:
Hex F policy here just draws the line at a different place.

[00:28:00] Speaker 01:
And that's why we do have the idea of military deference, because it begins with the presumption that courts are ill equipped to decide where the military should draw its line.

[00:28:11] Speaker 01:
And especially when it comes to personnel where that's at its Apogee.

[00:28:16] Speaker 01:
And when the district court did was pierce the veil of the evidence for what the military considered and attempted to poke holes in it.

[00:28:22] Speaker 01:
But the district court can't substitute its own judgment for that of the military.

[00:28:28] Speaker 01:
So when you look at what you do have here, you have a policy that easily passes rational basis review that is informed by military deference.

[00:28:37] Speaker 01:
And you can't say that it's for

[00:28:39] Speaker 01:
any other purpose other than a bare desire to harm an unpopular group.

[00:28:43] Speaker 01:
So that is why this court should follow the lead of the Supreme Court and the state panel here and allow this policy to take effect.

[00:28:51] Speaker 00:
How does the compelling government interest exception, I don't see anything in the record that indicates how a service member would apply to be able to for the waiver.

[00:29:09] Speaker 01:
Yes, Your Honor.

[00:29:10] Speaker 01:
So the policy is still being implemented, but the compelling interest just boils down to effectively what are the needs of the military.

[00:29:17] Speaker 01:
So that is what if there is a need for that position.

[00:29:21] Speaker 00:
I understand what the policy says.

[00:29:23] Speaker 00:
I'm trying to find out how is it administered.

[00:29:26] Speaker 01:
So Your Honor, at this point, no waivers have been decided.

[00:29:30] Speaker 01:
So we don't have any examples of what that would look like in practice.

[00:29:35] Speaker 01:
JA 1289-90 talks about what the implementation looks like.

[00:29:41] Speaker 01:
And the implementation is primarily based on the records review and the member's annual physical health assessment.

[00:29:48] Speaker 01:
And so far, no one has actually been discharged under the policy.

[00:29:51] Speaker 01:
So we don't have any decisions on waivers yet.

[00:29:58] Speaker 00:
the language at J.A.

[00:30:00] Speaker 00:
1289 to 90 say how a service member applies for the waiver?

[00:30:08] Speaker 01:
So typically what would happen is the member before their discharge gets notified that they are subject to discharge and they would get an opportunity to present the case before an administrative discharge board and that's where they would put in evidence of why they would qualify for the waiver and be able to apply for that as well.

[00:30:26] Speaker 00:
Is that in the record, or are you just telling me what you believe to be the case?

[00:30:30] Speaker 01:
So, Your Honor, the JA1289-90 talks about the process that it's going to have in the initiation of a discharge board.

[00:30:37] Speaker 01:
It doesn't say exactly what a compelling government interest would be.

[00:30:45] Speaker 01:
And, Your Honors, if there are no further questions, yeah, that is all I have.

[00:30:50] Speaker 04:
Can I ask just a question?

[00:30:52] Speaker 04:
You say no one has been discharged.

[00:30:58] Speaker 04:
There's no commitment not to discharge.

[00:31:02] Speaker 01:
That's correct.

[00:31:03] Speaker 04:
Tomorrow.

[00:31:04] Speaker 01:
So your honor, the practical way that it would work is until that member's time for a yearly physical health assessment is in place.

[00:31:13] Speaker 01:
That's when they would identify who is in the universe of someone that has gender dysphoria.

[00:31:18] Speaker 01:
And even then they would have to go through a discharge process that would take some time.

[00:31:22] Speaker 04:
Council, we started out by your acknowledging that all the plaintiffs

[00:31:27] Speaker 04:
we know about them.

[00:31:30] Speaker 04:
So they could be discharged tomorrow.

[00:31:32] Speaker 01:
Everyone would still go through the process that the military, the process where they would be identified, get notified of a discharge and then go through a board if they elect it or be able to provide information.

[00:31:44] Speaker 01:
But that, that has not happened at this point.

[00:31:48] Speaker 04:
I understand the process, but the argument is

[00:31:53] Speaker 04:
The end result is foregone.

[00:31:58] Speaker 04:
What's the word I'm looking for?

[00:32:00] Speaker 04:
It's predetermined.

[00:32:02] Speaker 04:
So it's a meaningless process.

[00:32:04] Speaker 04:
It's just moving paper around.

[00:32:06] Speaker 04:
There's no chance that one of the plaintiffs could continue to serve.

[00:32:11] Speaker 01:
So Your Honor, they would not meet the criteria for disqualification, which is based on the evidence that they have presented in the record.

[00:32:21] Speaker 04:
So I want to be clear that while the government says no one's been discharged, the way I read the policy, there's absolutely nothing to prevent the government from discharging all the plaintiffs tomorrow.

[00:32:38] Speaker 01:
So, Your Honor, even if they were discharged tomorrow, it goes towards the issue of reparable harm.

[00:32:43] Speaker 01:
There is an avenue if the Supreme Court later changes its mind and enjoins the policy for reinstatement with back pay that happened with the COVID-19 vaccine.

[00:32:53] Speaker 01:
So even if that were to happen.

[00:32:54] Speaker 04:
All speculation.

[00:32:56] Speaker 04:
Have no idea what the Supreme Court may or may not do.

[00:32:59] Speaker 04:
Because in other cases, it's been very deferential to the military.

[00:33:07] Speaker 04:
And it really hasn't cared about any individual.

[00:33:12] Speaker 01:
So, Your Honor, what I can say is that the process is moving forward and because of the Supreme Court state, the military is allowed to go through with the process of presumption.

[00:33:21] Speaker 04:
Right, so that's my point.

[00:33:23] Speaker 04:
Everybody could be fired today or tomorrow.

[00:33:25] Speaker 04:
There's no process.

[00:33:27] Speaker 04:
There's no procedural protection.

[00:33:30] Speaker 04:
And you say, well, the Supreme Court could come along and provide it.

[00:33:34] Speaker 04:
And I agree, the Supreme Court could.

[00:33:35] Speaker 04:
But for these plaintiffs today, there is no protection.

[00:33:41] Speaker 04:
And all I'm getting at is under an abuse of discretion standard, isn't that the type of consideration that

[00:33:52] Speaker 04:
a district court may properly take into account in weighing whether or not to issue an injunction.

[00:34:03] Speaker 01:
So, Your Honor, that part would go towards irreparable harm, but that type of harm is normally reparable.

[00:34:07] Speaker 01:
So the district court would be incorrect to say that that's up or irreparable.

[00:34:12] Speaker 01:
Excuse me.

[00:34:13] Speaker 01:
Yeah, I'm sorry.

[00:34:14] Speaker 04:
How is it reparable?

[00:34:15] Speaker 04:
Because someone saying is a district court has found it's not reparable.

[00:34:22] Speaker 01:
So, Your Honor, the Supreme Court also weighed the equities in deciding whether to grant to stay.

[00:34:29] Speaker 01:
And one of the things that they have to weigh is harm to both sides.

[00:34:33] Speaker 04:
No question about that.

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

[00:34:35] Speaker 04:
But all I'm saying is the Supreme Court may come forth and provide the protection.

[00:34:42] Speaker 04:
But I'm just saying the plaintiffs, as of this moment, do not have that protection.

[00:34:49] Speaker 04:
It may come, but right now,

[00:34:52] Speaker 04:
the Supreme Court has acted without giving reasons.

[00:34:59] Speaker 01:
So, Your Honor, the Supreme Court has allowed the policy to go into effect, but loss of employment is typically not considered irreparable harm under this circuit's precedent.

[00:35:06] Speaker 04:
How about damage to career, damage to personality, damage to reputation, et cetera?

[00:35:13] Speaker 04:
I mean, when you lose your job and you're told that you're

[00:35:19] Speaker 04:
all these terrible things and you couldn't possibly serve honorably in trying to defend your country against all enemies, foreign and domestic.

[00:35:30] Speaker 01:
So Your Honor, the Supreme Court has never held that reputational damages who were operable.

[00:35:35] Speaker 01:
But to the extent that it is a factor in this case, everyone who gets discharged receives an honorable discharge.

[00:35:40] Speaker 01:
So when they do apply for a job, they would see that they have served honorably.

[00:35:43] Speaker 01:
So we don't believe that the reputational part would be there.

[00:35:47] Speaker 04:
I'm just curious about this, because in a lot of employment law, there is this question about whether a future employer can inquire as to the reasons for your being let go

[00:36:01] Speaker 04:
At your previous job, and there are some state laws that don't allow that type of inquiry.

[00:36:07] Speaker 04:
All right, and some federal laws even come close, but I don't see anything here that protects against that.

[00:36:14] Speaker 01:
So, Your Honor, there's no evidence in the record of what their future employment will be and how this would harm them, especially when they get an honorable discharge.

[00:36:20] Speaker 01:
I know.

[00:36:21] Speaker 04:
There's nothing in the record about how they wouldn't be harmed.

[00:36:23] Speaker 04:
What you're saying is just all speculation.

[00:36:27] Speaker 01:
No, Your Honor.

[00:36:27] Speaker 01:
We do believe that what they have presented evidence of, which they have the burden to, is loss of employment, which is generally reparable.

[00:36:37] Speaker 04:
And then you also- I understand that.

[00:36:38] Speaker 04:
But what about the fact that they lost the employment because they were dishonorable?

[00:36:43] Speaker 04:
They were not honest.

[00:36:45] Speaker 04:
They were not trustworthy.

[00:36:47] Speaker 04:
They were not capable of defending and carrying out military orders.

[00:36:55] Speaker 04:
Another ball of wax that has nothing to do with what amount of pay you take home every day.

[00:37:02] Speaker 01:
So your honor, ultimately they do get discharged with an honorable and typically in most job applications, they did ask if you served in the military and what was your service character.

[00:37:10] Speaker 04:
Typically, typically, typically.

[00:37:11] Speaker 04:
So you want us to look at this case, even though there's no protection out there, in terms of saying, as I understand it, that the district court abused its discretion in looking at the potential weighing of these factors.

[00:37:30] Speaker 04:
All right, at least this court so far hadn't said that the first factor is dispositive of everything.

[00:37:37] Speaker 04:
All right, so you get into the balance of equities, et cetera.

[00:37:41] Speaker 04:
And your argument to us, as I understand it, is the military certainly has the right to decide it wants to take a long range perspective.

[00:37:57] Speaker 04:
on who is qualified to serve and continue serving in the military.

[00:38:05] Speaker 04:
the explanation, period.

[00:38:08] Speaker 01:
So your honor, the DC circuit has a heightened requirement for what a plaintiff who has the burden of demonstrating that they meet irreparable harm should meet.

[00:38:16] Speaker 01:
And based on the record that they presented, it's ultimately a loss of employment where they get an honorable discharge.

[00:38:21] Speaker 01:
So we don't believe that it meets the threshold for irreparable harm, especially when weighing against the government's interest in carrying out its military policy.

[00:38:31] Speaker 00:
My understanding was that at the oral argument before our court at the stay posture, it was represented, and this is reflected in Judge Pillers' opinion, that there is no other medical condition that automatically triggers administrative separation from the military rather than individualized medical evaluation.

[00:39:01] Speaker 00:
other than gender dysphoria.

[00:39:05] Speaker 00:
Was that representation made?

[00:39:08] Speaker 01:
So, Your Honor, I wasn't there, but when you're talking about the involuntary separation process, which is different than the Disability Evaluation Board, I'm not aware of which particular medical conditions are subject to that.

[00:39:23] Speaker 01:
It is getting into the weeds of exactly how the military classifies things.

[00:39:27] Speaker 01:
But what I can say with the disability evaluation system is that it's based on a disability process to get a VA disability.

[00:39:35] Speaker 01:
So my understanding is based on the statutory requirement and then the VA, because gender dysphoria is not listed, that that's not a new requirement is what I was getting at.

[00:39:44] Speaker 00:
Okay.

[00:39:45] Speaker 00:
So administrative separation.

[00:39:49] Speaker 00:
which was referred to in the prior panel.

[00:39:54] Speaker 00:
What is that?

[00:39:56] Speaker 01:
Yes, your honor.

[00:39:57] Speaker 01:
It's a process that is playing out and where you get a discharge board that states the basis for your discharge.

[00:40:05] Speaker 01:
And then you get an opportunity to present.

[00:40:07] Speaker 01:
Normally you have to have six years or more in service in order to be allowed to have a discharge board.

[00:40:13] Speaker 01:
But for this particular condition, they're allowing anyone regardless of service time to have it.

[00:40:18] Speaker 04:
And then in your sense, just so I'm clear, what is it?

[00:40:22] Speaker 01:
It's a panel of three officers that determine whether there's a basis for discharge and honorable discharge.

[00:40:29] Speaker 01:
They automatically get an honorable if they if they are separated under the policy.

[00:40:34] Speaker 04:
But you still do that.

[00:40:36] Speaker 04:
But the question I thought in response to Judge Wilkins question was you were going beyond that.

[00:40:44] Speaker 01:
I'm sorry.

[00:40:46] Speaker 01:
So yeah, so the oh yeah, because when you normally are a three member board.

[00:40:51] Speaker 01:
Yes.

[00:40:52] Speaker 01:
And the reason that I was saying that is because normally for someone to have an administrative discharge board, they're required to have six years or more in service.

[00:41:01] Speaker 01:
But this one, they're allowing people who have less than six years of service to have a hearing in front of an administrative discharge board.

[00:41:08] Speaker 04:
So that's what would you get at the end of that?

[00:41:10] Speaker 04:
That's what I'm trying to understand.

[00:41:12] Speaker 01:
So, for instance, they would have to determine whether you meet the criteria for presumptive disqualification and they could also provide a recommendation for the waiver, but the waiver is ultimately going to be decided at a higher level and the discharge has to be finalized at a higher level too.

[00:41:27] Speaker 01:
you do get an opportunity to present your case in front of a board, which is what this process entails.

[00:41:34] Speaker 01:
It's not only designed for misconduct.

[00:41:37] Speaker 01:
So that's why it's a process to, it's basically the due process the member gets before being discharged.

[00:41:44] Speaker 01:
They're not just getting summarily discharged from the military.

[00:41:47] Speaker 01:
It's the big picture point I was making.

[00:41:49] Speaker 00:
So I'm just trying to understand your position is that

[00:41:54] Speaker 00:
an administrative separation before the discharge board in the government's view, even if it is, even if gender dysphoria is the only medical condition that triggers that process,

[00:42:14] Speaker 00:
Your argument is that that's not any sort of a disadvantage or prejudice or stigmatizing people with gender dysphoria.

[00:42:26] Speaker 00:
Is that your position?

[00:42:28] Speaker 01:
Yes, Your Honor, because it's a form of due process and at the end of it they get an honorable discharge.

[00:42:33] Speaker 00:
Okay, I just want to understand that.

[00:42:36] Speaker 00:
So, I want to understand your position with respect to animals.

[00:42:44] Speaker 01:
Yes, Your Honor.

[00:42:45] Speaker 00:
The district court found that there was animus.

[00:42:51] Speaker 00:
I didn't see anywhere in your briefing where you attacked that finding or asked us to set aside that finding for under the clear error guidelines, which I believe would be our standard of review.

[00:43:06] Speaker 00:
Did I miss that?

[00:43:07] Speaker 01:
So your honor, we do believe that it's a legal determination that should be reviewed de novo.

[00:43:12] Speaker 01:
But the point that the state panel and the Supreme Court made and one of the cases I wanted to draw the court's attention to is a recent Supreme Court state opinion that's on point for this case, Trump v. Orr.

[00:43:24] Speaker 01:
That was the case involving biological sex to be displayed on passports.

[00:43:31] Speaker 01:
And it was also based on a executive order that used similar language that's here.

[00:43:38] Speaker 01:
And there was an anonymous finding in the district court.

[00:43:41] Speaker 01:
And when the Supreme Court

[00:43:43] Speaker 01:
had its day opinion on the issue.

[00:43:46] Speaker 01:
Here's what it said, and I want to make sure I'm reading it verbatim.

[00:43:49] Speaker 01:
But it says, quote, respondents have failed to establish that the government's choice to display biological sex lacks any other purpose than a bare desire to harm a politically unpopular group.

[00:44:00] Speaker 01:
So there was no clear error review or anything else that the Supreme Court utilized when making that determination.

[00:44:07] Speaker 01:
So that's why we do believe that it's a legal determination to be reviewed de novo as the Supreme Court treated it in Trump v. Orr.

[00:44:15] Speaker 04:
Well, that I thought that maybe I'm wrong, but that what the court was saying was the record shows that there were other reasons.

[00:44:23] Speaker 04:
Not that it's a question of the law.

[00:44:26] Speaker 01:
It said that on this record, respondents have failed to establish Hawaii.

[00:44:30] Speaker 04:
Doesn't the chief justice talk about, you know, if you can find some reason somewhere, somehow,

[00:44:37] Speaker 04:
That's enough.

[00:44:39] Speaker 01:
So yes, Your Honor, the standard is that it has to be, in order for a policy to be struck down on animus, it has to be inexplicable by anything other than animus.

[00:44:47] Speaker 01:
Or another way to put it is that it lacks any other purpose than a bare desire to harm a politically unpopular group.

[00:44:55] Speaker 01:
And the way the state panel described it is basically the absence of a rational basis.

[00:45:00] Speaker 01:
And that's the way that we believe that it survives rational basis, which then negates the possibility of animus being controlling.

[00:45:07] Speaker 00:
So do you think that it works that same way, whether it's intermediate scrutiny or strict scrutiny, that evidence of animus isn't really relevant?

[00:45:24] Speaker 00:
You just look at the objectives expressed by the state and then you see whether the fit matches

[00:45:36] Speaker 00:
Yes, Your Honor.

[00:45:37] Speaker 00:
You require closer fit for intermediate scrutiny and you require really tight fit for strict scrutiny, but as long as there are some legitimate objectives, we don't really care about animus.

[00:45:52] Speaker 00:
Do you think that that's the way that the analysis works?

[00:45:54] Speaker 01:
Yes, your honor, because animus by its very nature is irrational.

[00:45:58] Speaker 01:
So if it can't pass rational basis and then it can't pass the intermediate scrutiny or strict scrutiny in that scenario.

[00:46:05] Speaker 01:
So we do believe that here it's subject to rational basis.

[00:46:09] Speaker 01:
And if there is a legitimate and everyone agrees in this case that

[00:46:14] Speaker 01:
The reasons the military stated are legitimate reasons.

[00:46:17] Speaker 01:
So, you know, cohesion, readiness, and costs are all legitimate interests.

[00:46:24] Speaker 01:
It's just a matter of whether the means of presumptively disqualifying those with gender dysphoria are rationally related to that.

[00:46:32] Speaker 01:
And we do believe that there's plenty of evidence in the record, such as the statistics I was citing about the number of mental health encounters, the time away from a deployed environment for cross-hormone treatment,

[00:46:42] Speaker 01:
And then also the triple the cost per capita.

[00:46:48] Speaker 01:
And the fact that this is ultimately an evolving area of science.

[00:46:52] Speaker 01:
Things that we thought we knew, it turns out not to be the case.

[00:46:56] Speaker 01:
Justice Thomas had a concurrence in Skirmety that talked about WPATH.

[00:47:01] Speaker 01:
WPATH used to be the gold standard for all of this type of medicine.

[00:47:05] Speaker 01:
And then it turns out that there was a lot less

[00:47:08] Speaker 01:
a lot more going on than just being a neutral body.

[00:47:12] Speaker 01:
So when you have this much uncertainty, the military is- Let me just drill down on animus though.

[00:47:17] Speaker 00:
I'm trying to make sure I understand your position.

[00:47:22] Speaker 00:
So let's suppose you had a president and a defense secretary that makes statements for, this is a hypothetical,

[00:47:33] Speaker 00:
but it clearly display animus.

[00:47:36] Speaker 00:
I hate people of a certain race, hate people of a certain religion, hate women.

[00:47:45] Speaker 00:
It's in the executive order, it's in the defense secretary, makes lots of statements, tweets, speeches, et cetera.

[00:47:54] Speaker 00:
And then it's followed by a policy

[00:48:00] Speaker 00:
that might get heightened scrutiny because there's race or gender classification to it.

[00:48:10] Speaker 00:
Are you saying that when a court reviews that policy, the animus that it would find by the policymakers kind of outside the four corners of the policy document

[00:48:27] Speaker 00:
is completely irrelevant.

[00:48:29] Speaker 00:
We just look to see whether there's legitimate kind of reasons that are stated in the four quarters of the document and then how tight do the classifications, you know, fit those objectives.

[00:48:46] Speaker 00:
We don't care at all about animus, if that were the case.

[00:48:50] Speaker 01:
So Your Honor, it depends on what the policy itself says and does.

[00:48:53] Speaker 01:
So one of the things that United States v. Skirmetti talks about is the identity between, like say it's a medical condition, for instance, this court did hold in Doe II v. Shanahan that not every trans identifying person necessarily suffers from gender dysphoria.

[00:49:10] Speaker 01:
So you at least allow a subset of those people to serve.

[00:49:14] Speaker 01:
So it depends on what the policy does, who it incorporates, and then that determines the tier of scrutiny.

[00:49:20] Speaker 01:
But at the same time, race and religion are a little bit different because students for fair admission in other cases say that you can't use something else as a proxy for race.

[00:49:29] Speaker 01:
That type of precedent is missing from intermediate scrutiny, which if it's not subject to rational basis, that's what it would be subject to.

[00:49:37] Speaker 01:
So there's a little bit different when you're talking about race or religion because there is that proxy issue.

[00:49:43] Speaker 01:
But the general rule from Trump v. Hawaii that was later applied in Trump v. Orr is that if it can be explained by anything other than a bare desire to harm a politically unpopular group, then animus does not control.

[00:50:01] Speaker 02:
I have a follow up to

[00:50:05] Speaker 02:
the question about automatically triggering separation.

[00:50:10] Speaker 02:
And I think Judge Williams read

[00:50:14] Speaker 02:
Sorry, I think Judge Wilkins, Judge Williams' opinion is going to be part of my questions later.

[00:50:20] Speaker 02:
But I think Judge Wilkins read the sentence that said, the government cannot identify any other medical condition that automatically triggers administrative separation instead of an individualized medical evaluation regarding continued fitness to serve.

[00:50:34] Speaker 02:
Or if it wasn't that sentence, it was, I think, getting at that.

[00:50:37] Speaker 02:
And that's a sentence from Judge Pillard's dissent.

[00:50:43] Speaker 02:
So and then you kind of segued into a description of what an administrative separation hearing would look like.

[00:50:54] Speaker 02:
But I think, is that statement correct that for any other medical condition, you are not automatically separated?

[00:51:14] Speaker 02:
you instead get an individualized medical evaluation.

[00:51:18] Speaker 01:
So, Your Honor, it's very complicated with the administrative processes that the military utilizes for any condition.

[00:51:27] Speaker 01:
What I can say is, though, with- Of course it is.

[00:51:29] Speaker 04:
And you're going to help us understand it by simplifying it to the core issues we have to decide.

[00:51:38] Speaker 04:
And that's why, with all due respect, Judge Walker's question is so pertinent.

[00:51:45] Speaker 01:
Yes, your honor.

[00:51:45] Speaker 01:
So there are a lot of medical conditions under the VA system for discharge.

[00:51:52] Speaker 01:
So I'm not aware of which particular ones would be excluded, but other than gender dysphoria has historically been excluded.

[00:51:59] Speaker 01:
The difference was under the Carter and Austin policies, they were allowed to serve, so they weren't discharged.

[00:52:08] Speaker 02:
Let me try asking you this way.

[00:52:12] Speaker 02:
got to be some medical condition out there that would, in a hundred cases out of a hundred cases, require separation?

[00:52:28] Speaker 02:
Yes, there are non-relatable conditions.

[00:52:30] Speaker 02:
Okay, so what's one of them?

[00:52:32] Speaker 02:
Schizophrenia.

[00:52:33] Speaker 02:
Okay, so in that situation,

[00:52:37] Speaker 02:
that person would get an individualized medical evaluation, correct?

[00:52:43] Speaker 01:
I don't know the answer to that specific one.

[00:52:45] Speaker 02:
So it is possible that that person would not get an individualized medical evaluation.

[00:52:52] Speaker 01:
If it's not on the list from the VA, then it wouldn't go through the disability evaluation system.

[00:52:59] Speaker 01:
But I don't know whether they would necessarily be discharged through the administrative separation process or if there's some other medical process that's out there.

[00:53:06] Speaker 04:
I thought you answered these questions when I asked them.

[00:53:10] Speaker 04:
Are you changing your answer in responding to Judge Walker's question?

[00:53:14] Speaker 01:
No, Your Honor, I'm just answering the question of what qualifies for the disability.

[00:53:19] Speaker 04:
You told me if I looked at the Federal Register, I'd see all of these conditions that were disqualifying, and you couldn't think of any.

[00:53:28] Speaker 04:
So now you're telling Judge Walker schizophrenia is one, and if you're diagnosed as a schizophrenic,

[00:53:39] Speaker 04:
you're out without an individualized review.

[00:53:42] Speaker 04:
Is that what your response to him is?

[00:53:45] Speaker 01:
So your honor, the disability evaluation system is one specific process.

[00:53:50] Speaker 01:
So it came up in Judge Pollard's dissent.

[00:53:52] Speaker 01:
So I was addressing that in particular.

[00:53:54] Speaker 01:
There are, you know, the military has, and each service has a different, various ways of discharge.

[00:54:01] Speaker 01:
So I don't know off the top of my head if there's any other procedure outside of the disability evaluation system or the administrative process that that member would be discharged.

[00:54:10] Speaker 01:
But I do know that gender dysphoria was not a condition for the disability evaluation system and that the administrative discharge process is the method.

[00:54:19] Speaker 02:
Disability evaluation system,

[00:54:22] Speaker 02:
that is connected to the VA.

[00:54:24] Speaker 02:
Yes.

[00:54:26] Speaker 02:
Does that have to do only with what benefits you receive after separation or does it have to do with whether you are separated?

[00:54:36] Speaker 01:
It's both.

[00:54:38] Speaker 01:
It determines if you're separated for the medical condition and the VA also utilizes that to determine your VA disability rating.

[00:54:44] Speaker 02:
Okay.

[00:54:47] Speaker 02:
And

[00:54:48] Speaker 02:
Let's take the example you gave of a condition that would be automatically, that would be disqualifying in a hundred times out of a hundred times.

[00:54:57] Speaker 02:
And let's compare that to gender dysphoria under the Hex Death Policy.

[00:55:04] Speaker 02:
Would, would either of those, would either of, would a person in either of those situations have any better chance of staying in the military than the other?

[00:55:18] Speaker 01:
The person with gender dysphoria would have a better chance because there is a waiver process.

[00:55:22] Speaker 02:
Okay.

[00:55:23] Speaker 02:
And then putting aside the waiver process, they would have an equal chance because they would both have a zero chance.

[00:55:31] Speaker 01:
Yes, your honor, because both are disqualifying conditions and there's obviously hundreds of different conditions that can disqualify you.

[00:55:38] Speaker 02:
Yeah.

[00:55:38] Speaker 02:
And these are not...

[00:55:40] Speaker 02:
Hostile questions or friendly questions.

[00:55:41] Speaker 02:
I was trying to understand the person who would go through the individualized medical assessment.

[00:55:51] Speaker 02:
That person is getting a process that

[00:55:56] Speaker 02:
It's different than an administrative separation hearing, but not a process.

[00:56:04] Speaker 02:
Your argument is it's not a process that's better than an administrative separation hearing because in both situations, the conclusion is foregone.

[00:56:14] Speaker 01:
Yes, for the most part.

[00:56:16] Speaker 01:
Putting aside the waiver issue.

[00:56:17] Speaker 01:
Yes.

[00:56:17] Speaker 01:
And the other thing is there was one additional benefit that those suffering from this medical condition got that others didn't, which was a severance package if they voluntarily separated.

[00:56:27] Speaker 02:
That's people with gender dysphoria.

[00:56:30] Speaker 01:
Yes, Your Honor.

[00:56:31] Speaker 01:
So that's a benefit that they get that those with other medical conditions don't.

[00:56:36] Speaker 02:
Is that where the six-year thing comes in, or is that totally separate?

[00:56:39] Speaker 01:
That's totally separate.

[00:56:40] Speaker 01:
That goes towards whether you can get a discharge board.

[00:56:43] Speaker 01:
But that's also another benefit.

[00:56:45] Speaker 04:
I don't understand why when an equal protection challenge is raised and the very issue that Judge Walker and I have been exploring was identified in a published opinion.

[00:57:00] Speaker 04:
In this case, the government doesn't come with clear answers

[00:57:10] Speaker 04:
because what you have just told Judge Walker, there are all sorts of qualifications.

[00:57:18] Speaker 04:
It's not clear.

[00:57:19] Speaker 04:
I mean, generally, you know, but there could be exceptions.

[00:57:24] Speaker 04:
And now we hear about this, you know, exit package.

[00:57:30] Speaker 04:
I don't understand this argument.

[00:57:32] Speaker 04:
I understand the argument.

[00:57:34] Speaker 04:
It's the military's decision to make stay out of it courts.

[00:57:39] Speaker 04:
I understand that.

[00:57:41] Speaker 04:
The question I had, and that's where I started, was you told us that our standard of review of the district court's ruling on the four factors for preliminary injunction was abuse of discretion.

[00:57:57] Speaker 01:
Yes, Your Honor.

[00:57:58] Speaker 04:
That means under our law, the Supreme Court laws,

[00:58:04] Speaker 04:
There are alternatives that are permissible unless the Supreme Court has addressed the issue directly or Congress has addressed it directly.

[00:58:16] Speaker 04:
And you acknowledge that while the Supreme Court has acted, it hasn't told us why.

[00:58:23] Speaker 04:
And it could have acted the way it did for a number of reasons, including the Gaza issue.

[00:58:30] Speaker 04:
It has nothing to do with what we've been talking about basically this morning.

[00:58:35] Speaker 04:
I just don't understand how a court can apply abuse of discretion standard that the government says is what we are obligated to do and not take into account who the plaintiffs are, how the government defended its case,

[00:59:05] Speaker 04:
And the questions Judge Wilkins has been exploring, unless you think the courts have no role.

[00:59:14] Speaker 04:
And that may well be your position.

[00:59:15] Speaker 04:
And I understand that.

[00:59:17] Speaker 04:
But I'm just saying, I don't think any of the judges on this court, including the two in the majority who just found

[00:59:28] Speaker 04:
They were likely to succeed on the preliminary injunction.

[00:59:32] Speaker 04:
That's as far, that adverb is a qualifier, okay?

[00:59:38] Speaker 04:
So now we're into the preliminary injunction itself.

[00:59:43] Speaker 04:
The government says abuse of discretion.

[00:59:47] Speaker 04:
So to me, the government is saying there is a role for the court.

[00:59:53] Speaker 04:
All right?

[00:59:54] Speaker 04:
And it's not telling the military how to run the military or who to let in or let out.

[01:00:02] Speaker 04:
But it is saying that for these plaintiffs, maybe there are some issues that need to be addressed.

[01:00:15] Speaker 04:
And that's what the district court did.

[01:00:17] Speaker 04:
And I understand your criticism of the district court.

[01:00:22] Speaker 04:
But the questions we've been raising, it seems to me, go to, if you tell us abusive discretion, then don't we have to follow your instruction and apply that standard to the best of our ability?

[01:00:40] Speaker 01:
Yes, Your Honor, we do believe that there was an abuse of discretion in this case because one, the policy was just subject to rational basis review framed by military deference.

[01:00:49] Speaker 01:
So the plaintiffs were unlikely to succeed on the merits.

[01:00:52] Speaker 01:
And the Supreme Court's in its ruling did at least address the equities because they couldn't have granted a stay without addressing balance of the harm.

[01:01:00] Speaker 04:
So we do believe that now with all due respect, uh, they could have addressed it on the CAFA issue.

[01:01:10] Speaker 04:
Okay.

[01:01:11] Speaker 04:
So what Judge Wilkins, I thought, was trying to pursue with you is we had an administration that had a different view, at least with this reliance exception.

[01:01:29] Speaker 04:
And as I said, and it's not in the record, I know, but the president has been on television, radio, and doubles praising the military.

[01:01:42] Speaker 04:
and all that was done in the Caribbean Air Force.

[01:01:46] Speaker 04:
I mean, you know, so apparently he likes what's going on with the people who are there now.

[01:01:56] Speaker 04:
So aren't they perhaps to be viewed differently?

[01:02:04] Speaker 04:
under an abuse of discretion standard.

[01:02:06] Speaker 04:
And it seems to me those are the kinds of questions that the district court was raising.

[01:02:10] Speaker 04:
And I realize you don't like the answers, but they are pertinent questions, it seems to me, that we just ignore.

[01:02:18] Speaker 01:
So, Your Honor, this ultimately boils down to a racial challenge to the military policy and to hold that- Well, abuse of discretion doesn't tell me that, okay?

[01:02:29] Speaker 04:
It says that there are alternative

[01:02:34] Speaker 04:
that are potentially available, and you may not be persuaded by them.

[01:02:41] Speaker 04:
And I understand that, and we may not be persuaded by them, or the Supreme Court may not be persuaded by them.

[01:02:48] Speaker 04:
But abusive discretion doesn't tell me this is a slam dunk on a facial challenge.

[01:02:54] Speaker 01:
So your honor, it's still in addition to the state, it still has to be read in light of other Supreme Court precedents.

[01:02:59] Speaker 01:
So the United States v. Skirmety, for instance, came out after this case was decided.

[01:03:04] Speaker 01:
So on this one, it classifies on the basis of the medical condition.

[01:03:08] Speaker 01:
So it has to be rational basis.

[01:03:10] Speaker 01:
So one error the court committed was utilizing intermediate scrutiny.

[01:03:14] Speaker 01:
Or then there's Trump v. Or that came out afterwards, which also talks about how- What's the hypothetical?

[01:03:21] Speaker 04:
We currently have a military that is doing extraordinary work according to the president.

[01:03:35] Speaker 04:
He wants to look long term.

[01:03:38] Speaker 04:
That's what the secretary of defense tells us.

[01:03:41] Speaker 04:
And so the policy going forward is looking long term.

[01:03:47] Speaker 04:
So we're not going to let any

[01:03:49] Speaker 04:
the type of people that the plaintiffs are in.

[01:03:52] Speaker 04:
The question that I think we're all dealing with is, what do you do with the people who are there?

[01:03:59] Speaker 05:
Yes, Your Honor.

[01:04:00] Speaker 04:
I've been serving.

[01:04:01] Speaker 05:
Yes, Your Honor.

[01:04:02] Speaker 04:
You haven't given us a clear answer.

[01:04:04] Speaker 04:
You're talking about all these boards and they can buy out and all that sort of stuff.

[01:04:08] Speaker 01:
So, Your Honor, what matters is whether there's a rational basis for discharging those that are already in there.

[01:04:15] Speaker 04:
That's right.

[01:04:16] Speaker 04:
Where there is nothing to say to us.

[01:04:20] Speaker 04:
that they are not doing one hell of a good job.

[01:04:24] Speaker 04:
That's all I'm getting at.

[01:04:26] Speaker 04:
And you say, just ignore that.

[01:04:28] Speaker 01:
So, Your Honor, there's hundreds of medical conditions where someone can do a good job in the military, and they're still subject to discharge, and it doesn't necessarily mean that the military can't do it.

[01:04:38] Speaker 01:
So the question is, when it classifies on the basis of medical condition, including for existing service members, whether there's a rational basis to do so, and we do believe that the record contains that.

[01:04:50] Speaker 00:
So the FLEs on their brief at page four, footnote two, say that the Air Force issued guidance saying that transgender service members could only appear at their separation proceedings if they appear in their birth sex.

[01:05:13] Speaker 00:
Yes, your honor.

[01:05:14] Speaker 00:
So if they have transitioned, and I'm assuming they have their deer's marker classification changed,

[01:05:28] Speaker 00:
the FLEs represent that they cannot appear at their separation proceeding.

[01:05:37] Speaker 00:
Do you dispute that that is the case?

[01:05:42] Speaker 01:
No, Your Honor, we don't dispute that.

[01:05:44] Speaker 01:
And that goes towards uniform and grooming standards, which the military is allowed to draw the line on.

[01:05:49] Speaker 01:
And the case that I would cite on that is Goldman B. Weinberger, where there was an as-applied challenge

[01:05:56] Speaker 01:
to a service member who wanted to wear a yarmulke.

[01:05:59] Speaker 00:
I'm familiar with that case but the denial of them appearing at a proceedings in which the issue is going to be decided as to whether and under what conditions they're going to be separated from the military

[01:06:23] Speaker 00:
That decision, which is part of this policy, is not based on a medical classification of gender dysphoria.

[01:06:33] Speaker 01:
So your honor, that goes towards what someone has to wear when they're in military service.

[01:06:40] Speaker 01:
And the military does get a lot of deference with where to draw the line on uniform and grooming standards.

[01:06:45] Speaker 01:
And the military as a policy has said that it has to be based on biological sex.

[01:06:49] Speaker 01:
So they would be doing nothing more than what every military member currently has to do.

[01:06:54] Speaker 01:
And that still applies during a separation board.

[01:06:56] Speaker 00:
My point is that you say that the only thing that this policy classifies based on

[01:07:04] Speaker 00:
is medical diagnosis.

[01:07:08] Speaker 00:
Yes, Your Honor.

[01:07:08] Speaker 00:
And under SCRMEDE, then okay, that's not heightened scrutiny because that's the only thing that this policy really kind of treats people differently based on.

[01:07:25] Speaker 00:
But it's not the only thing that this policy treats people differently based on.

[01:07:32] Speaker 01:
So your honor, they're in front of the discharge board in the first place because of a medical condition.

[01:07:38] Speaker 01:
And the uniform guidance is so like under the Austin and Carter policies, unless you have a diagnosis of gender dysphoria and take all the steps necessary to transition, you're required to serve, to wear the uniform in your biological sex and adhere to those grooming standards.

[01:07:56] Speaker 01:
So it's just a matter of whether they draw the line or where they draw the line on that policy.

[01:08:01] Speaker 01:
And that would be a little bit of a different challenge than what we have here because challenging the uniform policies would still be a little different.

[01:08:07] Speaker 01:
And that would still be subject to substantial military deference because even in a scenario where strict scrutiny would normally apply, the Supreme Court applied military deference and defer to the judgment of the military when it comes to uniforms.

[01:08:22] Speaker 00:
So I'm trying to make sure I understand this.

[01:08:29] Speaker 00:
If a person

[01:08:31] Speaker 00:
has already transitioned and they changed their gender classification marker in the system.

[01:08:43] Speaker 00:
They're not subject to the waiver.

[01:08:45] Speaker 00:
Correct.

[01:08:47] Speaker 00:
Are they subject to this administrative separation?

[01:08:52] Speaker 00:
Yes or no?

[01:08:53] Speaker 00:
Yes.

[01:08:55] Speaker 00:
but they wouldn't be able to appear at their hearing because they can't appear in their birth gender, right?

[01:09:03] Speaker 01:
If they choose not to, then the hearing would continue in absentia.

[01:09:08] Speaker 00:
What do you mean if they choose not to?

[01:09:10] Speaker 01:
If they don't appear in the uniform and grooming standards of the biological sex, the board would continue, but just without their presence.

[01:09:19] Speaker 00:
Well, if it's a follow-up to that, go ahead.

[01:09:25] Speaker 02:
Let's imagine someone was born male, someone has transitioned to female, and they want to appear at the administrative separation hearing.

[01:09:40] Speaker 02:
You're saying that that person, even though that person has transitioned already, that person could come to the hearing dressed and groomed as male and would still be entitled to appear in person at the hearing?

[01:09:57] Speaker 02:
Yes.

[01:09:59] Speaker 00:
Yes.

[01:10:00] Speaker 00:
So I have a question about Hassan.

[01:10:08] Speaker 00:
Trying to make sure I understand the government's position as to what the district court should have done.

[01:10:15] Speaker 00:
Let's suppose, I know you believe the district court should not have imposed an injunction at all because no likelihood of success on the merits, no reparable harm, et cetera, et cetera.

[01:10:27] Speaker 00:
For the purpose of this typo, if this district court or any district court, in a challenge like this,

[01:10:36] Speaker 00:
imposes an injunction what are you saying should have been the scope of the injunction how should it have been worded so your honor if um if speaking solely to scope it should have been limited to the named plaintiffs in this case so it would say that um the order says

[01:11:04] Speaker 00:
At J1207, I'm looking at it.

[01:11:06] Speaker 00:
It says that all these various officials and departments are preliminary and joined from implementing Executive Order 14183, as well as this guidance, and the other memoranda, blah, blah, blah, blah, blah.

[01:11:24] Speaker 00:
Period.

[01:11:26] Speaker 00:
You're saying that the proper injunction under CASA

[01:11:30] Speaker 00:
would say those same things with respect to plaintiffs A, B, and C, or the named plaintiffs.

[01:11:39] Speaker 00:
That's what it should say.

[01:11:40] Speaker 00:
That's correct, Your Honor.

[01:11:43] Speaker 00:
It could still be a facial challenge, but even a successful facial challenge would only get an order granting relief to the named plaintiffs in the facial challenge.

[01:11:59] Speaker 01:
Yes, absent a class certification, that would be the limits.

[01:12:03] Speaker 02:
I have a yes or no question on the standard of review.

[01:12:06] Speaker 02:
I'm going to read from Weishalisha, and I'm going to ask you if you agree this is correct.

[01:12:12] Speaker 02:
We review the district court's decision to grant the plaintiff's request for a preliminary injunction for abuse of discretion, its legal conclusions de novo, and its findings of fact for clear error.

[01:12:24] Speaker 02:
Is that correct?

[01:12:25] Speaker 04:
Yes.

[01:12:26] Speaker 04:
And what does your brief at page 20 say?

[01:12:42] Speaker 01:
Yes, it says, to obtain the extraordinary remedy of a preliminary injunction, a plaintiff must establish that he is likely to succeed on the merits, that he's likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tip in his favor, and that an injunction is in the public interest.

[01:13:00] Speaker 01:
The court reviews an order regarding preliminary injunctive relief for abuse of discretion.

[01:13:05] Speaker 01:
Any underlying questions of law, however, are reviewed de novo.

[01:13:13] Speaker 04:
Mm hmm.

[01:13:17] Speaker 04:
So do you see where you cite winter?

[01:13:20] Speaker 01:
Yes, your honor.

[01:13:25] Speaker 04:
And what does your sentence say after you cite winter?

[01:13:28] Speaker 01:
Says this court reviews an order regarding preliminary injunctive relief for abuse of discretion.

[01:13:34] Speaker 04:
Right.

[01:13:37] Speaker 01:
And your honor, getting the law incorrect is a visa discretion.

[01:13:41] Speaker 01:
No question about it.

[01:13:42] Speaker 04:
So you agree that the Supreme Court has yet to decide this case, although you'd say there are all kinds of signals as to how it's going to decide it.

[01:13:51] Speaker 01:
So your honor, we do believe that the Supreme Court's stay should be to provide guidance to the court.

[01:13:59] Speaker 01:
But at the same time, it's inconclusive as to the merits.

[01:14:04] Speaker 05:
Any other questions?

[01:14:08] Speaker 00:
All right, if you have any kind of concluding remarks or something that was important for you to present that we waylaid you from presenting, give you a couple minutes to do that and wrap up.

[01:14:27] Speaker 01:
Yes, your honor.

[01:14:28] Speaker 01:
So it's clear that there's a raging debate across the country about the issue that we're arguing here today.

[01:14:34] Speaker 01:
And it's also a rapidly evolving one.

[01:14:37] Speaker 01:
So as I mentioned earlier, the WPAT was presumed to be the gold standard for this field.

[01:14:42] Speaker 01:
And Justice Thomas's concurrence in Skirmetti notes that their studies have proven to be unreliable.

[01:14:48] Speaker 01:
So when you include the level of uncertainty we have with this particular issue, the military was and should be careful with gender dysphoria and it gets significant deference for where it draws the line.

[01:15:00] Speaker 01:
So the proper question for this court is whether the military did what the guidance said it did, which was classifying the basis of a medical condition and then whether it passes rational basis review that's informed by military deference.

[01:15:13] Speaker 01:
And if that were the case,

[01:15:14] Speaker 01:
the law does not prohibit what the military's decision was.

[01:15:17] Speaker 01:
And we asked that the injunction get vacated.

[01:15:19] Speaker 01:
Thank you, your honors.

[01:15:21] Speaker 00:
Thank you.

[01:15:21] Speaker 00:
We'll give you some time on rebuttal.

[01:15:37] Speaker 03:
Thank you, honors may please support yet Shannon mentor appearing for the appellees.

[01:15:43] Speaker 03:
Your honors, the policy seeks to do something totally unprecedented.

[01:15:48] Speaker 03:
It proposes a mass discharge of thousands of conceitedly qualified troops, including service members who have deployed around the world in dangerous assignments like Iraq and Afghanistan.

[01:16:00] Speaker 03:
They've received multiple awards for valor and performance.

[01:16:04] Speaker 03:
the government actually concedes that these plaintiffs every single one of them are qualified.

[01:16:10] Speaker 03:
They've met every standard with deployments before during and after transition in the district court here very carefully analyze the entire record had a three day hearings and reached the

[01:16:26] Speaker 03:
conclusion that this policy is driven by unmistakable animus.

[01:16:31] Speaker 03:
The court repeatedly acknowledged the deference owed to the military and for that reason gave them every opportunity to provide evidence of considered judgment supporting this policy or to rebut the very extensive evidence put forward by the plaintiffs and the government repeatedly declined to do so.

[01:16:49] Speaker 03:
They rested on their position, which we've heard here today,

[01:16:53] Speaker 03:
that they can simply assert a facially legitimate reason and don't have to substantiate that in any way.

[01:16:59] Speaker 03:
And so they're now asking this court, having made that decision, to reweigh the evidence.

[01:17:05] Speaker 03:
They disagree with the court's findings of fact because they disagree with them.

[01:17:10] Speaker 03:
And now we're even hearing new testimony from counsel today about facts.

[01:17:15] Speaker 03:
But that's not their error.

[01:17:17] Speaker 03:
And I know this court's very well aware of that.

[01:17:19] Speaker 02:
Can I ask you about some of the terms

[01:17:25] Speaker 02:
When people are transgender, they have an internalized, felt sense of their gender that does not align with their sex assigned at birth.

[01:17:42] Speaker 02:
Is that correct?

[01:17:43] Speaker 03:
On this record, your honor, there was questions in Dovey Shanahan.

[01:17:48] Speaker 03:
There was confusion about what's the definition of a transgender person.

[01:17:51] Speaker 03:
I can tell you that the plaintiffs and the district court here took that confusion very seriously.

[01:17:56] Speaker 03:
And the record on this case is crystal clear, unrebutted evidence that a transgender person is someone who lives or would do so if able in a sex different than their birth sex.

[01:18:09] Speaker 02:
Okay, so you disagree with that definition of transgender?

[01:18:13] Speaker 03:
That definition can be understood in a very misleading way.

[01:18:18] Speaker 03:
We've got testimony from Dr. Brown who was also the expert in Doe versus Shanahan to clarify that his testimony talking about a person who identifies as a sex different than their sex at birth was misconstrued.

[01:18:34] Speaker 03:
to some extent in those questions raised about it.

[01:18:37] Speaker 02:
What would the proper term be for someone who has an internalized felt sense of their gender that does not align with their sex assigned at birth and who has no distress or impairment and who has not transitioned

[01:19:03] Speaker 02:
and who does not desire to transition.

[01:19:08] Speaker 02:
What would the term be for that person?

[01:19:10] Speaker 03:
Well, I think what the record in this case shows is there is no such person.

[01:19:14] Speaker 03:
That Dr. Brown clarifies in his supplemental declaration that somebody- I think I have the answer.

[01:19:20] Speaker 02:
You think that person doesn't exist.

[01:19:22] Speaker 02:
In the opinion by Judge Williams and Joe Chuby Shanahan, he cites a RAND report

[01:19:31] Speaker 02:
That RAND report that I think had been relied on, if not, had been relied on by one of the secretaries of defenses.

[01:19:44] Speaker 02:
It says 55% of transgender people live in their preferred gender.

[01:19:48] Speaker 02:
Another 27% wish to transition in the future.

[01:19:52] Speaker 02:
that leaves 18% of transgender people who have not transitioned and don't wish to transition.

[01:19:58] Speaker 02:
So you disagree with that RAND report.

[01:20:02] Speaker 03:
I would refer the court to Dr. Brown's supplemental declaration where he addresses these issues.

[01:20:08] Speaker 02:
Just asking what your position is.

[01:20:11] Speaker 02:
Maybe we can discuss later why you think what you think.

[01:20:16] Speaker 02:
But I'm just asking, is it your position that that RAND report is wrong when it says 18% of transgender people have not transitioned and don't wish to transition?

[01:20:31] Speaker 03:
The record in this case.

[01:20:33] Speaker 02:
I think all the judges, I want to know what your, you're right.

[01:20:39] Speaker 02:
I'm not asking for your personal subjective opinion, but I am asking for your client's litigating position in this case.

[01:20:46] Speaker 03:
Will they agree with what's put forward by the expert that they submitted?

[01:20:49] Speaker 02:
Your client's litigating position in this case is that the RAND report is incorrect when it says that 18% of transgender people have not transitioned and don't wish to transition.

[01:20:59] Speaker 03:
think that cannot be meaningfully understood without the context provided by this expert report where Dr. Brown explains that, of course, there's people who, for a period of time, for a variety of reasons, family rejection, employment discrimination, other types of external discrimination, and just the process of coming to terms with being a transgender person, it's not an instantaneous process.

[01:21:22] Speaker 03:
It's a developmental process.

[01:21:23] Speaker 03:
So yes, but what he makes really clear is that by the-

[01:21:29] Speaker 03:
So yes, there will be at any given time if you took a snapshot of the entire population of transgender people, there would be people who are transgender and who have not yet come to terms with being transgender have not yet reached the point where they're

[01:21:44] Speaker 03:
must be able to muster the courage and the effort it takes to go through transition.

[01:21:48] Speaker 03:
But it's very clear that that is definitional.

[01:21:50] Speaker 02:
I mean, you've been pretty critical as the Defense Department here for impugning the courage and honesty and integrity of your clients.

[01:21:55] Speaker 02:
And now you're saying that people are courageous if they are trans but don't wish to transition?

[01:22:02] Speaker 03:
No, Your Honor.

[01:22:03] Speaker 03:
I'm in no way saying that.

[01:22:05] Speaker 03:
I'm saying that Dr. Brown makes very clear that part of what it means to be transgender, just like non-transgender people,

[01:22:12] Speaker 03:
There's an internal drive to live congruently with your identification.

[01:22:16] Speaker 03:
That's just as true for a transgender man or a transgender woman as for a non-transgender man or a non-transgender woman.

[01:22:22] Speaker 03:
It's just, it is very much part and parcel of what it means to be a transgender individual.

[01:22:28] Speaker 02:
So it sounds like you're adopting Dr. Brown's position and you're describing Dr. Brown's position as there will at any given time

[01:22:41] Speaker 02:
be a number of transgender people who, for whatever reason, perhaps family dynamics, any other reasons that you listed, there will be at a given time some number of transgender people who have not transitioned and at that time don't wish to transition.

[01:23:01] Speaker 03:
I think with the context provided by Dr. Brown, yes.

[01:23:07] Speaker 02:
OK.

[01:23:08] Speaker 02:
So now, I think that then leads to my next question, which is, what is gender dysphoria?

[01:23:20] Speaker 02:
One understanding is that gender dysphoria is distress or impairment because someone identifies with a gender other than their birth sex.

[01:23:27] Speaker 02:
Is that definition correct?

[01:23:32] Speaker 03:
The definition that's in the record in this case, again from Dr. Brown, is that gender dysphoria is the distress a transgender person will feel if they're unable to, or prevented from being able to live congruently with their gender identity, if they're unable to live in a sex different than their birth sex, eventually that will cause distress.

[01:23:53] Speaker 02:
That is a little bit different than the definition that I suggested.

[01:24:00] Speaker 02:
I think you're saying someone who feels distress or has impairment because they identify with a gender other than a birth sex does not have gender dysphoria unless the distress or impairment is caused by the fact that they have not transitioned.

[01:24:31] Speaker 03:
That incongruence between your identity as male or female and being seen by others and having to live in your birth sex is the source of the distress.

[01:24:43] Speaker 03:
That's my understanding of the clinical literature and what Dr. Brown explains.

[01:24:50] Speaker 02:
Okay.

[01:24:53] Speaker 02:
Then is it true here what

[01:24:59] Speaker 02:
The plaintiffs in 2019 said, they said a requirement to serve in one's biological sex is a transgender ban.

[01:25:09] Speaker 02:
That's your position here, right?

[01:25:12] Speaker 03:
Yes, sir.

[01:25:13] Speaker 02:
OK.

[01:25:14] Speaker 02:
At the time, they wanted a return to the Carter policy, Secretary Carter, that required transgender people to serve in their biological sex

[01:25:27] Speaker 02:
until their transition was complete.

[01:25:32] Speaker 02:
Do you think that that Carter policy was constitutional?

[01:25:38] Speaker 02:
Yes.

[01:25:40] Speaker 02:
OK, so you would not object to a policy that requires transgender people to continue serving in their biological sex until their transition is complete.

[01:25:50] Speaker 03:
I think that would be that was a reasonable policy to enable a path forward for transgender people to transition the military.

[01:25:58] Speaker 02:
Do you is what is what you propose consistent with this any person who remains biologically male any person born male who remains biologically male in every respect

[01:26:13] Speaker 02:
can demand to be treated in all respects as female, including medical fitness, physical fitness, uniform and grooming, deployability and retention standards, as well as for assignment to birthing, bathroom, and shower facilities.

[01:26:28] Speaker 03:
I'm not sure what you mean by can demand that.

[01:26:31] Speaker 02:
Well, is it constitutionally entitled?

[01:26:36] Speaker 03:
No.

[01:26:39] Speaker 03:
that we have not argued that.

[01:26:41] Speaker 02:
Okay, so what of that is not constitutionally required?

[01:26:46] Speaker 03:
Your Honor, we're not here saying the Constitution mandates some particular policy.

[01:26:49] Speaker 03:
We're challenging an animus-driven policy that excludes all transgender people.

[01:26:54] Speaker 03:
We don't have a position on that.

[01:26:56] Speaker 02:
So you don't have a position on whether it would be constitutional for the military to require someone whose sex birth is male

[01:27:09] Speaker 02:
but who says, treat me as female.

[01:27:14] Speaker 02:
You don't have a position on whether it be constitutional to require that that person satisfy the physical fitness requirements for a male.

[01:27:26] Speaker 03:
No, our position is that the policy that's at issue in this case

[01:27:31] Speaker 03:
is unconstitutional because it's animus-driven and targeted.

[01:27:34] Speaker 02:
It would be constitutional for the military to require someone born a male who has transitioned to female.

[01:27:40] Speaker 02:
It would be constitutional for the military to require that person to wear the uniform of a male and be groomed like a male.

[01:27:47] Speaker 03:
No, I'm definitely not conceding that.

[01:27:49] Speaker 03:
I'm just telling you that we're not here to say the Constitution mandates a specific military policy.

[01:27:55] Speaker 03:
We're challenging the one that has been adopted.

[01:27:57] Speaker 02:
It would help to know how you understand the Constitution, how you understand the equal protection aspect of the Fifth Amendment.

[01:28:08] Speaker 02:
And I guess you're saying you don't know whether

[01:28:13] Speaker 02:
the equal protection aspect of the Fifth Amendment requires the military to allow a transgender female to wear the uniform of a female.

[01:28:27] Speaker 03:
All I know, Your Honor, is that this policy that is adopted hastily and with animus towards transgender people and is designed to intentionally exclude them even though they're qualified to serve

[01:28:41] Speaker 03:
does not meet even the barest requirements of equal protection.

[01:28:44] Speaker 02:
You cannot answer also whether it would be constitutional for the military to require a transgender female to be groomed as a male.

[01:28:57] Speaker 03:
We don't have a position on exactly what the Constitution requires about these specifics.

[01:29:02] Speaker 03:
Again, just that the policy can't be animal-driven and designed to exclude.

[01:29:07] Speaker 02:
You don't have a position on whether the Constitution requires the military to assign a transgender female to female shower facilities?

[01:29:19] Speaker 02:
No, Your Honor.

[01:29:20] Speaker 02:
Or bathrooms?

[01:29:21] Speaker 03:
No, Your Honor.

[01:29:24] Speaker 02:
Or to be

[01:29:27] Speaker 02:
required to meet the deployability and retention standards of females.

[01:29:36] Speaker 03:
No, just that whatever policy exists, it has to be rational and not fueled by animus.

[01:29:42] Speaker 02:
I do have more questions, but I know I've monopolized the first quite a bit, so pause.

[01:29:54] Speaker 00:
Let's suppose for the sake of argument that the fourth agrees with the district court that animus was present and played some sort of motivating factor with this policy.

[01:30:14] Speaker 00:
Given Trump v. Hawaii, what work does the finding of animus do for

[01:30:24] Speaker 00:
What does that get you?

[01:30:29] Speaker 03:
Thank you, your honor.

[01:30:29] Speaker 03:
Yes, I think that Trump v Hawaii and the court's other animus cases tell us that once a district court finds, as a matter of fact, that a policy is fueled by animus,

[01:30:43] Speaker 03:
then the burden then is on the government to show that there is some actual legitimate purpose at work and that the policy would have been passed that absent animus, the same policy would have been enacted.

[01:30:58] Speaker 00:
I think that's, you know, so, so you believe that it operates to shift the burden to the government?

[01:31:06] Speaker 03:
I think, you know, Arlington Heights, you know, made very clear that once animus has shown the,

[01:31:12] Speaker 03:
deference that's ordinarily afforded is suspended.

[01:31:16] Speaker 03:
And then there is the requirement that the, yes, and I think this comes through in Judge Pollard's dissent very clearly as well that the government then does have to show that there was an actual legitimate purpose that is served by the policy.

[01:31:35] Speaker 03:
If that better explains the policy.

[01:31:37] Speaker 00:
Okay.

[01:31:37] Speaker 00:
I want to drill down on this.

[01:31:46] Speaker 00:
A plaintiff challenging in the government action is unconstitutional as the burden of proving that that action is unconstitutional.

[01:31:58] Speaker 00:
Yes.

[01:32:05] Speaker 00:
What language in Arlington Heights or Trump v. Casa or any of the other animus cases you have cited

[01:32:14] Speaker 00:
suggest that once animus is shown, then the burden, so to speak, and persuasion, proof, however you want to put it, shifts to the government.

[01:32:34] Speaker 03:
Yeah, I think the language in St.

[01:32:37] Speaker 03:
Harlington Heights,

[01:32:40] Speaker 03:
just cited said that once you know once animus has shown the deference that is ordinarily afforded under rational basis is no longer justified and then the government does need to show that there is some other legitimate reason i mean the the supreme court in trump versus hawaii i think is a great

[01:33:02] Speaker 03:
model of that where the court takes that requirement very seriously and very methodically looks at all of the evidence that showed in that case, it's all missing here, but that showed in that case that there was a legitimate, substantial reason

[01:33:21] Speaker 03:
for the policy that was not fueled by animus, and they went through a number of factors.

[01:33:27] Speaker 00:
I agree with you that that's what the court did there at the part that's in subsection D, so to speak, where they applied the standard of review.

[01:33:40] Speaker 00:
But I guess what I'm trying to get at is

[01:33:49] Speaker 00:
that seems to go to kind of fit and maybe the level of scrutiny is a little bit enhanced than kind of what it normally might be with rational basis with no animus.

[01:34:05] Speaker 00:
I'm just not sure that I see from that part of the opinion that

[01:34:12] Speaker 00:
there's some sort of a burden shifting where the presumption is then because there's evidence that the law is unconstitutional and then the government then kind of has to, given that presumption or the shifting burden,

[01:34:34] Speaker 00:
be on the hook to persuade the court that no, it really did have legitimate objectives that the law was trying to meet.

[01:34:45] Speaker 00:
That's why I'm trying to help you help me understand.

[01:34:50] Speaker 03:
understanding.

[01:34:51] Speaker 03:
I did find the site for Arlington Heights.

[01:34:53] Speaker 03:
It's at the site is, you know, it's 429 US at 265, 66, where there's proof that a discriminatory purpose has been a motivating factor in the decision.

[01:35:05] Speaker 03:
Judicial deference is no longer justified.

[01:35:08] Speaker 03:
And I think the necessary implication there

[01:35:11] Speaker 03:
is that they're then, once animus is shown as a motivating factor, the government does need to show that it would have enacted that same policy absent the discriminatory purpose.

[01:35:24] Speaker 03:
And I think that's, again, Judge Pollard's understanding of how this case law works as well.

[01:35:31] Speaker 03:
I think you see that reflected in this line of cases from Cleburne, Moreno, Romer,

[01:35:38] Speaker 03:
Windsor where once animus is shown that what the court then requires the government to not just to articulate

[01:35:48] Speaker 03:
a hypothetical or possible legitimate basis, which would ordinarily be enough under rational basis review.

[01:35:56] Speaker 03:
You don't ordinarily have to show it was the actual purpose, but the court in every single one of those cases requires more than that.

[01:36:04] Speaker 03:
They require some indicia of truth and independence is

[01:36:11] Speaker 03:
I think the quote from one of the cases, an indicia of truth and independence that there really is an actuality that the actual purpose was whatever, whatever justification the government is asserting.

[01:36:25] Speaker 03:
And then the courts look there to a number of factors to assess

[01:36:29] Speaker 03:
Do we believe that it's not a heavy burden?

[01:36:32] Speaker 03:
I mean, you just have to show that it's truthful and that there's a truthful actual purpose and that it's independent of the animus.

[01:36:41] Speaker 03:
But here, the government did not think it needed to do that.

[01:36:45] Speaker 03:
And it declined.

[01:36:47] Speaker 03:
The district court asked again and again, give me something.

[01:36:51] Speaker 03:
Tell me something.

[01:36:52] Speaker 03:
And the government here, they wouldn't even explain why.

[01:36:56] Speaker 00:
Let me put it this way.

[01:36:59] Speaker 00:
The Obama era policies under Secretary Carter, Secretary Austin, or wait, no, Secretary Austin was under Biden.

[01:37:14] Speaker 00:
So the Obama era policies, those policies treated gender dysphoria differently, where it was disqualifying for possession.

[01:37:27] Speaker 00:
for joining the military unless the person was stable for 18 months, right?

[01:37:34] Speaker 00:
Yes, sir.

[01:37:36] Speaker 00:
And even then, if they were admitted to the military, they would have to serve under the standards of their birth sex, not their preferred gender, right?

[01:37:51] Speaker 03:
No, sir.

[01:37:52] Speaker 03:
Sorry, not under Secretary Carter's policy, no.

[01:37:57] Speaker 03:
No, no, the whole accession policy, the whole point was if you'd already transitioned.

[01:38:01] Speaker 00:
No, if you haven't transitioned.

[01:38:03] Speaker 00:
I'm talking about somebody who has a diagnosis of gender dysphoria and who has not transitioned.

[01:38:08] Speaker 03:
And they're seeking to enlist.

[01:38:09] Speaker 00:
They're seeking to enlist.

[01:38:10] Speaker 03:
They cannot do so until they've transitioned and been stable for 18 months.

[01:38:16] Speaker 00:
transition had been stable or have stable in their diagnosis?

[01:38:27] Speaker 03:
No, sir.

[01:38:27] Speaker 03:
That was not the policy under Secretary Carter.

[01:38:34] Speaker 03:
It was designed to reflect the reality that genitisfora is very treatable, that many people undergo the treatment transition.

[01:38:40] Speaker 03:
They're perfectly stable.

[01:38:42] Speaker 03:
They need very minimal medical treatment going forward.

[01:38:45] Speaker 03:
There's no reason to keep them out.

[01:38:46] Speaker 03:
But they just wanted to know, basically, have you completed your treatment?

[01:38:50] Speaker 03:
And are you stable in your post-transition status?

[01:38:54] Speaker 03:
And if so, fine, and you meet the other qualifications, you're welcome to join.

[01:38:58] Speaker 00:
So if somebody has a diagnosis of gender dysphoria and they said, I don't wish to transition, I'm willing to serve under my birth gender,

[01:39:13] Speaker 00:
And, you know, I'm under doctor's care and through kind of counseling other sorts of treatment, not hormonal treatment or surgery or anything of that nature, it's typically associated with transition through these other treatment, I'm stable.

[01:39:37] Speaker 00:
You're saying that under the Ash Carter policy, that person would not be allowed to join the military?

[01:39:47] Speaker 03:
Yes, I am saying that, yes.

[01:39:49] Speaker 03:
If they have a diagnosis of gender dysphoria, that would have ruled them out.

[01:39:56] Speaker 03:
If they had not completed treatment and been stable in that post-transition status, yeah.

[01:40:01] Speaker 00:
Treatment as in transition treatment, not treatment as in

[01:40:06] Speaker 00:
I don't want to transition.

[01:40:08] Speaker 00:
I just want to, you know, feel good about kind of who I am.

[01:40:17] Speaker 03:
Yes, sir.

[01:40:18] Speaker 03:
Because, you know, diagnosis of gender dysphoria includes the distress component.

[01:40:22] Speaker 03:
I mean, it's caused by not being able to live congruently with who you are.

[01:40:26] Speaker 03:
So, yes, anyway, that is my understanding anyways, that policy, they would not be able to join.

[01:40:32] Speaker 00:
So, thank you for clearing that up for me.

[01:40:35] Speaker 00:
But I guess what I'm getting at is, in general then, if the Ash Carter policy treats gender dysphoria differently than other medical conditions, so to speak, then it's kind of presumptively disqualifying, except if you've transitioned, been stable, et cetera.

[01:41:06] Speaker 00:
And if there's no contention that that was based on animus, then how do you reach the conclusion that the Mattis policy or the Hegseth policy, as far as possession to the military goes, is based on animus because it targets gender

[01:41:35] Speaker 03:
Yes, well, so the whole goal of the Secretary Carter policy was to approach gender dysphoria the same for accession purposes and retention, but we're talking about accession for accession purposes, the same way that would approach any other treatable medical condition and apply the same kind of analysis and criteria and so forth.

[01:41:59] Speaker 03:
So there are plenty of other

[01:42:00] Speaker 03:
treatable medical conditions that don't keep you out of enlisting in the military as long as you can show that you've undergone the treatment and that you're stable.

[01:42:11] Speaker 03:
So it's just applying that same, it's a very equal treatment kind of framework to just apply that same framework.

[01:42:18] Speaker 03:
Like let's stop singling out

[01:42:22] Speaker 03:
this condition because it's associated with transgender people, let's stop treating it differently.

[01:42:27] Speaker 03:
And let's just look at this the same way we would look at any other medical conditions.

[01:42:30] Speaker 03:
So that's how they came up with those criteria.

[01:42:33] Speaker 03:
And that is a very legitimate, good faith effort to just be even handed and come up with a reasonable policy.

[01:42:41] Speaker 03:
That's very different than what's going on here, which is

[01:42:48] Speaker 03:
An animus driven desire to exclude transgender people entirely and treating gender dysphoria because of its association with transgender people completely differently than the military treats any other medical condition, whether it's for purposes of accession or in the retention context.

[01:43:09] Speaker 00:
So I want to make sure I understand the

[01:43:15] Speaker 00:
and the different categories that your plaintiffs, your clients fall into.

[01:43:21] Speaker 00:
There are some, it's my understanding, who are seeking to join the military and are thus challenging the accession policies, right?

[01:43:32] Speaker 03:
Yes, sir.

[01:43:33] Speaker 00:
How many fall into that?

[01:43:35] Speaker 00:
Two.

[01:43:36] Speaker 00:
Two.

[01:43:37] Speaker 00:
And then the remainder are already in the military serving?

[01:43:42] Speaker 00:
Yes, sir.

[01:43:43] Speaker 00:
And how many of those joined the military prior to 2016?

[01:43:52] Speaker 03:
I apologize, I cannot give you the exact number.

[01:43:59] Speaker 03:
Are there some?

[01:44:01] Speaker 03:
I believe there are.

[01:44:02] Speaker 03:
Yes, there are, yes.

[01:44:06] Speaker 00:
So,

[01:44:08] Speaker 00:
And it's my understanding, but I want to be clear on this, that all of them have a diagnosis at some point in their history of gender dysphoria.

[01:44:19] Speaker 00:
Yes, sir.

[01:44:23] Speaker 00:
Are there any of them who you are contending would no longer be diagnosed with gender dysphoria?

[01:44:37] Speaker 00:
In other words, I could get the flu, I can go through a course of treatment, and then I would go back and the doctor would say, you no longer have the flu.

[01:44:51] Speaker 00:
You are no longer diagnosed with the flu.

[01:44:54] Speaker 00:
Does that happen with gender dysphoria or any of your

[01:44:59] Speaker 00:
clients, these plaintiffs saying, that's me.

[01:45:04] Speaker 00:
My current diagnosis would not properly list me as having gender dysphoria.

[01:45:11] Speaker 03:
Yes, sir.

[01:45:11] Speaker 03:
That is a feature of how this condition, the treatment is very effective.

[01:45:17] Speaker 03:
So yes, once you receive the treatment, the dysphoria dissipates.

[01:45:23] Speaker 00:
So, is it in the record that some of these plaintiffs have a current diagnosis that says you no longer have gender dysphoria?

[01:45:39] Speaker 03:
Your Honor, I apologize.

[01:45:41] Speaker 03:
I don't know the answer to that.

[01:45:43] Speaker 03:
I don't know if any of them have a reflection in their medical records that their gender dysphoria has been resolved.

[01:45:49] Speaker 00:
Your litigation position, posture, theory apparently doesn't turn on that.

[01:45:55] Speaker 03:
No, sir.

[01:46:08] Speaker 00:
Senior moment.

[01:46:10] Speaker 00:
I've forgotten what my next question was.

[01:46:14] Speaker 00:
So proceed.

[01:46:17] Speaker 02:
While you're thinking, I will just ask some questions along the lines of Judge Wilkins' questions.

[01:46:25] Speaker 02:
Before 2016, did military policy bar people with gender dysphoria from service?

[01:46:38] Speaker 03:
That term was not used in the policy.

[01:46:41] Speaker 03:
It used different terminology.

[01:46:43] Speaker 02:
But what we now call gender dysphoria, whatever term was used back then, before 2016, military policy barred people with that from the service.

[01:47:00] Speaker 03:
I believe the terms used were transsexualism and transvestism were barred.

[01:47:06] Speaker 03:
And I'm sorry, what was your answer?

[01:47:09] Speaker 03:
The terms in the back then were transsexualism and transvestism.

[01:47:16] Speaker 03:
That was the terminology used.

[01:47:17] Speaker 03:
Yeah.

[01:47:19] Speaker 02:
And that answer may be the answer to my next question as well.

[01:47:23] Speaker 02:
Before 2016, did military policy bar transgender people from service?

[01:47:31] Speaker 02:
Yes.

[01:47:33] Speaker 02:
I'd like you to consider this situation.

[01:47:35] Speaker 02:
A person was identified male at birth.

[01:47:40] Speaker 02:
Later, that person joins the military.

[01:47:44] Speaker 02:
Later than that, the person identifies as female, adopts a female name and female pronouns.

[01:47:53] Speaker 02:
Before 2016, did the military allow that person to continue serving in the military?

[01:48:04] Speaker 03:
I don't believe I know the answer to that question.

[01:48:13] Speaker 00:
Can I just make sure I understand the question?

[01:48:18] Speaker 00:
If the person still served under the standard of their birth sex,

[01:48:29] Speaker 00:
But maybe they adopted a female name and used she-her pronouns.

[01:48:39] Speaker 00:
You're saying you don't know if that person would have been disqualified.

[01:48:46] Speaker 00:
But if the person had tried to change their classification,

[01:48:51] Speaker 00:
in the deer system, D-E-E-R-S, right?

[01:48:55] Speaker 00:
Isn't that it?

[01:48:56] Speaker 00:
Yes, sir.

[01:48:57] Speaker 00:
If they had sought to change their classification to female, that wouldn't have been allowed prior to 2016, would it?

[01:49:07] Speaker 03:
That's my understanding.

[01:49:09] Speaker 03:
And thank you.

[01:49:10] Speaker 03:
That's very clarifying.

[01:49:12] Speaker 03:
I mean, one of the reasons Secretary Carter took this issue up is because there were individuals that such as

[01:49:20] Speaker 03:
you were just describing who were serving in the military, identify as transgender, and had taken steps to transition and were, you know, living as a sex different than their birth sex and off, you know, some of them were very high performers and doing a great job and there was some

[01:49:44] Speaker 03:
ambiguity about what to do with them or how the military should address that.

[01:49:50] Speaker 03:
And that's one of the reasons that Secretary Carter wanted to examine this policy and come up with a more modern way to address it.

[01:50:04] Speaker 00:
But to answer Judge Walker's question, that person

[01:50:11] Speaker 00:
may or may not have been disqualified just because they were trying to transition and using a different name and different pronouns.

[01:50:23] Speaker 00:
they wouldn't have been able to change their classification.

[01:50:27] Speaker 00:
And perhaps if they insisted on that and insisted on wearing the women's uniform rather than the men's uniform, it seems likely that they would have been removed from the military, right?

[01:50:48] Speaker 03:
based on the policy on the books.

[01:50:50] Speaker 03:
Yes, sir.

[01:50:51] Speaker 03:
Yes, sir.

[01:50:51] Speaker 03:
Yeah.

[01:50:52] Speaker 03:
Yeah.

[01:50:52] Speaker 03:
I think in reality, it existed in a kind of de facto gray zone.

[01:50:57] Speaker 03:
But yes, the actual policy on the books was to exclude people.

[01:51:02] Speaker 03:
And part of what the military recognized, that was not a rational policy.

[01:51:10] Speaker 03:
And commanders were coming to

[01:51:12] Speaker 03:
coming forward and saying, look, I have transgender people serving.

[01:51:16] Speaker 03:
These are valuable members of my unit.

[01:51:19] Speaker 03:
Can you be requesting that the military come up with a new policy?

[01:51:25] Speaker 00:
All right.

[01:51:25] Speaker 00:
I apologize for interrupting.

[01:51:27] Speaker 00:
I wanted to get clarity on that point.

[01:51:30] Speaker 02:
Definitely no apology necessary.

[01:51:31] Speaker 02:
That was really helpful.

[01:51:33] Speaker 02:
And thank you for phrasing it the way I was trying to phrase it and failing to phrase it.

[01:51:37] Speaker 02:
Under the Hegseth policy,

[01:51:44] Speaker 02:
Could someone serve who feels like they are a gender different than their birth sex but has not transitioned and has not been diagnosed with gender dysphoria and is not displaying symptoms to other people of gender dysphoria and is willing to serve under the service standards of their birth sex?

[01:52:13] Speaker 03:
Well, at the hearing, when district court judge asked counsel for the government, is there some person who's not excluded by this policy?

[01:52:26] Speaker 03:
The only example they could come up with is what I believe was referred to as a village of one that we could imagine someone like living on a desert island who has privately unexpressed thoughts

[01:52:38] Speaker 03:
in their head and that person might not be excluded under the policy, but any expression, including stating something or expressing it in any visible way or sharing it with somebody else is going to trigger the provisions about someone having symptoms of gender dysphoria

[01:53:06] Speaker 03:
And actually the person is required under the current policy to report that themselves.

[01:53:15] Speaker 03:
There's a required to self-report.

[01:53:16] Speaker 03:
So I guess that would be an important caveat here that such a person based on the current policy is required in their annual health assessment to self-report any symptoms.

[01:53:27] Speaker 03:
And that is a symptom of gender dysphoria.

[01:53:29] Speaker 03:
So they would be required to report that.

[01:53:32] Speaker 03:
And then that would trigger

[01:53:35] Speaker 03:
the kind of investigation, review, evaluation process.

[01:53:43] Speaker 02:
And is your understanding that that is different than the pre-2016 policy?

[01:53:52] Speaker 03:
Oh, yes.

[01:53:53] Speaker 03:
Yes.

[01:53:53] Speaker 03:
There's no similar requirements.

[01:53:56] Speaker 03:
In fact, I don't think anything like that has ever been required for any medical condition at all.

[01:54:01] Speaker 03:
It's a pretty extraordinary new policy that

[01:54:05] Speaker 03:
Um, anybody who has symptoms consistent with gender dysphoria is required to self report that.

[01:54:13] Speaker 03:
In fact, the military is actually changing the form for every single person serving in the military, which the district court.

[01:54:23] Speaker 03:
estimated to be about 1.3 million people.

[01:54:26] Speaker 03:
Now every single person when they fill out their annual health assessment form has to literally attest whether they have gender dysphoria or symptoms of gender dysphoria.

[01:54:37] Speaker 03:
all in an effort to find these 2,000 people who, by the government's own concession, are qualified and meeting standards.

[01:54:47] Speaker 03:
And again, this is an important piece of evidence about why this is not a medical policy, because that actually turns any sort of legitimate medical framework on its head and completely, its complete departure

[01:55:02] Speaker 03:
from the retention policy for literally every single other medical condition, which where the focus is on fitness, like, can you do the job?

[01:55:11] Speaker 03:
And once somebody is in the military, and this comes through very loud and clear in the Mattis report, the focus is on trying to keep people in.

[01:55:18] Speaker 03:
You've invested enormous resources in them.

[01:55:21] Speaker 02:
I do think I understand that answer, and I'm grateful for it.

[01:55:26] Speaker 02:
And I would like the government on rebuttal to tell me if they agree with what you just said about the self-reporting.

[01:55:34] Speaker 02:
I think you're saying that the government views even an internalized, unexpressed sense that your gender does not align with your birth sex as a symptom of gender dysphoria that must be reported to the milk.

[01:55:49] Speaker 03:
Well, that is a symptom of gender dysphoria and the DSM.

[01:55:53] Speaker 03:
And then there's a policy that says no.

[01:55:54] Speaker 02:
Does the military understand that to be a symptom of gender dysphoria?

[01:55:57] Speaker 03:
I believe so.

[01:55:57] Speaker 03:
Yes, sir.

[01:55:58] Speaker 03:
Yeah.

[01:55:59] Speaker 03:
I mean, I think they say they follow the DSM.

[01:56:04] Speaker 03:
So yeah.

[01:56:04] Speaker 02:
So I want to ask them that.

[01:56:06] Speaker 02:
And that's helpful to know.

[01:56:07] Speaker 02:
I want to ask you, please, under the Carter policy, at the end of the Obama administration,

[01:56:20] Speaker 02:
I think Judge Wilkins was asking about this.

[01:56:25] Speaker 02:
Imagine a person born male, later identifies as female, and then later wants to join the military.

[01:56:41] Speaker 02:
On the last day of the Obama administration, does

[01:56:49] Speaker 02:
the military let that person join?

[01:56:56] Speaker 02:
Does the military let that person join?

[01:57:03] Speaker 03:
Sounds similar to the question Judge Wilkins was asking.

[01:57:07] Speaker 03:
I think it is.

[01:57:08] Speaker 03:
If they have a diagnosis of gender dysphoria, then no.

[01:57:13] Speaker 03:
If they have a diagnosis, no, they can't join.

[01:57:15] Speaker 03:
That's my that is my understanding of that of that policy.

[01:57:20] Speaker 00:
I mean, that's not what the policy says.

[01:57:23] Speaker 00:
Policy says that if you have a history of gender dysphoria, it's disqualifying unless it's certified by a doctor that the applicant has been stable.

[01:57:38] Speaker 00:
without clinically significant distress or impairment in social occupation or other important areas of functioning for 18 months.

[01:57:46] Speaker 00:
Do you see anything in there that says stable because they have transitioned?

[01:57:54] Speaker 03:
Well, I think the necessary implication of the portion you just read about stable without clinical distress means they no longer have gender dysphoria because they've undergone treatment.

[01:58:09] Speaker 03:
So that's my understanding of how this policy works.

[01:58:15] Speaker 00:
It seems like we're getting to a point where maybe you want to die in this, but your position, at least litigating position, seems to be that there is no one who has a diagnosis of gender dysphoria who doesn't seek to transition.

[01:58:40] Speaker 00:
Or where we're transitioning in the sense of either hormone treatment or surgery.

[01:58:50] Speaker 03:
Or social transition does not necessarily involve any particular medical treatments.

[01:58:58] Speaker 00:
Okay, social transition, not necessarily medical treatment.

[01:59:03] Speaker 00:
I thought that, so I may have, forgive me, I may have misunderstood one of your earlier responses.

[01:59:13] Speaker 00:
But let's suppose it's a non-medical, not hormones, not surgery, but socially they seek the transition in the way they choose to do that.

[01:59:31] Speaker 00:
is to ask people to refer to them with if they're born as male refer to them with she her pronouns use maybe a feminine variation of their legal birth name but and based on that counseling

[01:59:59] Speaker 00:
other interventions, they are stable and they say, I'm willing to stay in the military and adhere to the standards of my first sex.

[02:00:18] Speaker 00:
Are you saying that that person doesn't exist?

[02:00:26] Speaker 00:
It doesn't appear to be any of your plaintiffs, of your clients, but I'm trying to understand your litigating position.

[02:00:33] Speaker 00:
Are you saying that such a person does not exist or could never exist?

[02:00:40] Speaker 00:
That's what I'm trying to understand.

[02:00:43] Speaker 03:
Gosh, Your Honor.

[02:00:47] Speaker 03:
So you're saying someone who has socially transitioned but is willing to

[02:00:53] Speaker 03:
is living as sex different than their birth sex, but would be... At least maybe in all other facets of their life.

[02:01:04] Speaker 00:
wherever they can, they live in their preferred gender.

[02:01:10] Speaker 00:
But for military purposes, they will adhere to the military's standards for their birth sex with respect to grooming, uniform, bathrooms, where they sleep, all of that.

[02:01:29] Speaker 00:
But

[02:01:32] Speaker 00:
their treatment for their gender dysphoria is such that they don't want to do or choose to do any of the medical transitions.

[02:01:47] Speaker 00:
Are you saying that that person doesn't exist or I'm just trying to understand?

[02:01:53] Speaker 03:
You're right, that person may exist.

[02:01:58] Speaker 03:
You're right that it does not reflect

[02:02:01] Speaker 03:
any of the plaintiffs here.

[02:02:05] Speaker 03:
There's don't think there's anything in the record one way or another about whether that person exists.

[02:02:10] Speaker 00:
I because if that person existed, that person could potentially under the HECS plan, stay in the military under a waiver, right?

[02:02:23] Speaker 03:
I don't.

[02:02:24] Speaker 03:
Well, one obstacle there would be

[02:02:28] Speaker 03:
The very clear statement in the policy that expressing what they refer to as a false gender identity divergent from your birth sex is incompatible with military service.

[02:02:39] Speaker 03:
So I think that might be an obstacle there.

[02:02:43] Speaker 00:
And I guess in language, it says you can't have tried to transition.

[02:02:49] Speaker 00:
Yes, sir, I think.

[02:02:50] Speaker 00:
So even if it's not a, I don't know if they qualify it as medical transition or if they say transition with medical treatment.

[02:03:01] Speaker 03:
Of course, yes.

[02:03:02] Speaker 03:
Yes, the policy says you cannot have attempted to transition, attempted to transition, intend to transition.

[02:03:09] Speaker 03:
So I think that would be kind of a categorical barrier there, yes.

[02:03:17] Speaker 04:
So in light of your responses to the questions here, how do you respond to the government's response that the only difference really between the Mathis policy and the Hexmith policy is the difference between 18 months and 36 months?

[02:03:39] Speaker 04:
How long that hearing instability has to exist because everybody

[02:03:46] Speaker 04:
excluded them.

[02:03:50] Speaker 04:
Now there may have been some undercover people, all right, so nobody knew, but once they acknowledged one way or the other,

[02:04:02] Speaker 03:
Yes, they were out.

[02:04:04] Speaker 03:
Well, no, I think those two policies are about as opposite as two policies could be.

[02:04:10] Speaker 03:
The Carter policy is designed to permit qualified transgender individuals who've gone through gender transition to join the military and definitely to stay in the military once they're there unless

[02:04:22] Speaker 03:
as long as they're meeting all standards.

[02:04:25] Speaker 03:
The Hegseth policy is the complete opposite.

[02:04:27] Speaker 03:
It's designed to keep all transgender people out of the military.

[02:04:32] Speaker 03:
The term stability is very misleading.

[02:04:35] Speaker 03:
The fact that both policies use the term stability, I think is a bit of a red herring because yeah.

[02:04:42] Speaker 04:
I understand you say there is no exception, but under the plain text of the policy, there is an exception.

[02:04:52] Speaker 04:
Well, and they acknowledge that the exception is much narrower than under the Mathis policy, but nobody could be in if they wanted to serve different from their birth sex.

[02:05:12] Speaker 03:
Well, the so called exception in the heads up policy and the record on this is very clear.

[02:05:16] Speaker 03:
The district court made very detailed findings about this backed up by unrebutted evidence is that no transgender person could qualify for that exception.

[02:05:25] Speaker 03:
That exception is essentially you have to record says that.

[02:05:28] Speaker 04:
But the language in the policy.

[02:05:31] Speaker 04:
talks about this exception.

[02:05:33] Speaker 04:
Now, whether it ever happens or not, that's another issue.

[02:05:36] Speaker 04:
But all I'm getting at is your answers to both Judge Wilkins and Judge Walker, it seems to me, line up quite nicely with the government's argument about

[02:05:50] Speaker 04:
you know, the limited differences in the policies.

[02:05:53] Speaker 04:
Oh my goodness.

[02:05:54] Speaker 04:
I mean, one is... And I'm focusing on not the two people who want to join who are plaintiffs, but everybody else who's in the military.

[02:06:04] Speaker 03:
Well, under one policy, no transgender person under any circumstances can either join or remain in the military.

[02:06:11] Speaker 03:
Under the other policy, transgender people who are qualified and fit can both join and serve and remain in the military.

[02:06:20] Speaker 00:
I mean, those- I think- Yeah.

[02:06:22] Speaker 00:
Correct me if I'm wrong, but I think Judge Rogers is asking about the difference between Madison Hegseth.

[02:06:28] Speaker 00:
That's right.

[02:06:29] Speaker 03:
Oh, the Mattis policy, yes.

[02:06:31] Speaker 00:
Not Carter.

[02:06:32] Speaker 03:
Understood.

[02:06:33] Speaker 03:
Understood.

[02:06:34] Speaker 03:
Yes.

[02:06:34] Speaker 03:
I'm sorry if I was.

[02:06:36] Speaker 03:
I'm so sorry.

[02:06:37] Speaker 03:
I apologize.

[02:06:38] Speaker 03:
I may have been on.

[02:06:39] Speaker 03:
I'm sure it was me.

[02:06:40] Speaker 03:
I'm so sorry.

[02:06:42] Speaker 03:
Oh, under Mattis and headsets.

[02:06:43] Speaker 03:
So under the Mattis policy, transgender people who were already serving in the military could remain in service.

[02:06:52] Speaker 03:
They will continue to get medical care.

[02:06:54] Speaker 03:
They continue to live and serve in a sex different than their birth sex.

[02:06:59] Speaker 03:
They would be subject to the just ordinary retention policy.

[02:07:03] Speaker 04:
So Hexpath says, you know, our policy is different.

[02:07:08] Speaker 04:
It's narrower.

[02:07:10] Speaker 04:
Some people can continue to serve, but it's going to be a lot fewer.

[02:07:14] Speaker 03:
Well, zero.

[02:07:15] Speaker 03:
Transgender people would be able to continue to serve.

[02:07:17] Speaker 04:
They say, you know, some military supervisor

[02:07:22] Speaker 04:
can issue a statement saying this person is absolutely essential here.

[02:07:27] Speaker 03:
I don't believe that.

[02:07:30] Speaker 03:
Well, if they have to meet the waiver requirements, which means that you have no history, you've never been diagnosed with gender dysphoria, you don't have it, you've never attempted to transition and you have no intention of transitioning, i.e.

[02:07:44] Speaker 03:
you're not transgender.

[02:07:46] Speaker 03:
You say i.e.

[02:07:48] Speaker 04:
you're not transgender, but as I understand it, all the plaintiffs say they are transgender.

[02:07:54] Speaker 03:
and none of them would qualify for that waiver, which the government concedes because- The government says it's still implementing the policy.

[02:08:02] Speaker 04:
The language is there.

[02:08:04] Speaker 03:
Your honor, the government has conceded very clearly that none of these plaintiffs qualify for that waiver.

[02:08:12] Speaker 03:
That's, I think, very clear.

[02:08:15] Speaker 03:
I believe I heard counsel reiterate that just earlier today, but it's also very, very clear from the record

[02:08:25] Speaker 00:
Can I just clarify, this is a facial challenge.

[02:08:31] Speaker 00:
You are not bringing an as applied consent.

[02:08:38] Speaker 00:
So with respect to that, and I think following up on Judge Rogers' question,

[02:08:53] Speaker 00:
with respect to a session for the side retention, with respect to a session, your description of the difference between the MADIS policy and the Hegseth policy with respect to a session is what?

[02:09:24] Speaker 03:
They're very similar.

[02:09:25] Speaker 03:
They both are transgender enlistees.

[02:09:29] Speaker 00:
Okay.

[02:09:32] Speaker 00:
So my question to you is the district court made findings that there's animus and it's rush and those sorts of things.

[02:09:43] Speaker 00:
But if the accession policy is materially the same under Hegseth, then it was for Mattis.

[02:09:54] Speaker 00:
then what does the animus or the rush findings really, what work does that really do if all they're doing is essentially re-adopting a policy without any real material change with respect to a session than there was before?

[02:10:16] Speaker 03:
I understand I understand your question.

[02:10:19] Speaker 03:
I think we do have to look at the different the.

[02:10:24] Speaker 03:
differences between Mattis and HexSeth that are relevant to the animus finding.

[02:10:29] Speaker 03:
And so the differences are, as we've noted, the Mattis policy didn't result in the discharge of any transgender service member.

[02:10:39] Speaker 03:
It was much- I'm not talking about discharge.

[02:10:43] Speaker 00:
I'm talking about a session.

[02:10:44] Speaker 00:
A session.

[02:10:44] Speaker 00:
I understand you are.

[02:10:46] Speaker 00:
Let me make it plain.

[02:10:47] Speaker 00:
We're not playing poker here.

[02:10:49] Speaker 00:
I'm going to make it plain.

[02:10:50] Speaker 05:
Yeah.

[02:10:50] Speaker 05:
Yeah.

[02:10:54] Speaker 00:
There were no animus findings with respect to the Mattis policy.

[02:11:05] Speaker 00:
That was maybe an argument that was there in the background, but that wasn't anything that was like really legally relevant.

[02:11:14] Speaker 00:
So I'm saying that if there's a policy that was adopted without animus,

[02:11:23] Speaker 00:
And then later on, it's readopted, and maybe, let's assume for the sake of my hypothetical, there is animus.

[02:11:36] Speaker 00:
Yeah.

[02:11:38] Speaker 00:
Yeah.

[02:11:38] Speaker 00:
But they're also saying that we're following the same objectives that the Mattis policy, the prior policy followed for adopting the policy for the same reason.

[02:11:52] Speaker 00:
So, doctrinally, what work does this new animus policy do for you if the policy is readopted from a prior administration where there was no animus?

[02:12:09] Speaker 03:
Do you get what I'm getting at?

[02:12:10] Speaker 03:
I do.

[02:12:10] Speaker 03:
I apologize for being slow to get it.

[02:12:12] Speaker 03:
I'm sorry.

[02:12:13] Speaker 03:
I do get it.

[02:12:14] Speaker 03:
Yeah, so I do think it matters a lot that there was an intervening policy under Carter and the Austin awesome policy that again was designed to provide equal treatment.

[02:12:30] Speaker 03:
to transgender enlistees and did so and did that, and that we have several years now of experience with that policy and zero evidence of any problems.

[02:12:44] Speaker 03:
And in fact, a lot of evidence put forward by the plaintiffs from senior military officials directly responsible for enforcing that policy that it had only positive impacts.

[02:12:56] Speaker 03:
And that includes the accession policy.

[02:12:58] Speaker 03:
So that is now part of the record here.

[02:13:00] Speaker 03:
So for someone to come in, the whole rationale with Mattis was that we just don't know.

[02:13:06] Speaker 03:
There's some uncertainty here.

[02:13:08] Speaker 03:
I'm making predictions.

[02:13:10] Speaker 03:
I want to err on the side of being as cautious as possible.

[02:13:14] Speaker 03:
Well, we do know now.

[02:13:15] Speaker 03:
We know now.

[02:13:16] Speaker 03:
We know.

[02:13:16] Speaker 03:
We have direct experience.

[02:13:18] Speaker 03:
We have unrebutted unanimous testimony from the very senior officials

[02:13:23] Speaker 03:
that were responsible for enforcing and overseeing

[02:13:28] Speaker 03:
both the succession and retention policies, that it was positive and it's working out great.

[02:13:34] Speaker 03:
These are qualified people.

[02:13:35] Speaker 03:
They're contributing to the safety and security of our country.

[02:13:38] Speaker 03:
So for someone to come in and just reverse that and go back to a policy that keeps everyone out based on a rationale that is completely now moot and outdated because it was based on we don't know.

[02:13:53] Speaker 03:
Well, now we do know.

[02:13:54] Speaker 03:
And in the context of

[02:13:57] Speaker 03:
much other evidence that this is driven by animus then I think the animus does a lot of work there a lot of work it just shows look you and that's one of the that's one of the circumstantial factors that the Supreme Court has identified when you have a sudden reversal of policy and there's no

[02:14:16] Speaker 03:
good explanation for why you're doing what you're doing, that is very probative of animus.

[02:14:22] Speaker 00:
Of course, we've got all the other factors here too, including... So what about the evidence that was in the record and the Carter, Secretary Carter acknowledged this, but that when someone is kind of beginning treatment for gender dysphoria or going through transition process,

[02:14:45] Speaker 00:
It does affect deployability.

[02:14:47] Speaker 00:
And so isn't that a legitimate reason to treat a session differently than retention because you're kind of at the front end, perhaps, of the transition process

[02:15:12] Speaker 00:
where deployability may be more of an issue with a session, but if somebody is already in, they've gone through the transition, treatment, etc.

[02:15:27] Speaker 00:
There's not as much concern about their deployability, availability, et cetera.

[02:15:34] Speaker 00:
So isn't that a reason why you would treat the two kind of.

[02:15:46] Speaker 00:
groups of people differently, those seeking to join versus those who are already in and who have transition and isn't there evidence in the record to support that concern about deployability because even Secretary Carter had those concerns, but the judgment was made was that notwithstanding that, we'll allow these people to join in the transition after they have joined.

[02:16:16] Speaker 03:
Well, the record on this, the evidence on that on that point, this record is so clear.

[02:16:21] Speaker 03:
And that would also be the point of the 18 months stability requirement.

[02:16:26] Speaker 03:
Like, that's why there's that requirement.

[02:16:28] Speaker 03:
And again, that requirement is in no way unique.

[02:16:31] Speaker 03:
to gender dysphoria.

[02:16:32] Speaker 03:
That's just applying the same generic criteria and framework applied to every other treatable medical condition.

[02:16:39] Speaker 03:
Military wants to make sure you've been treated and that you're stable in your treatment.

[02:16:44] Speaker 03:
So it's just even-handed, equal, applying the same rule.

[02:16:48] Speaker 03:
So that kind of addresses that.

[02:16:50] Speaker 03:
You do have to show you've been stable.

[02:16:52] Speaker 03:
On the deployment issue again on this record, there was extensive unrebutted testimony from those senior military officials that there were zero issues.

[02:17:02] Speaker 03:
with deployability and transgender people.

[02:17:04] Speaker 03:
And there's declarations from our plaintiffs.

[02:17:07] Speaker 03:
Multiple of our plaintiffs have submitted declarations saying, Erica Vandal, she did not even use the sick day.

[02:17:14] Speaker 03:
She transitioned in the military, did not miss a single day.

[02:17:18] Speaker 03:
Kate Coles, that's true of multiple of the plaintiffs.

[02:17:22] Speaker 03:
And I think people have this idea that, and I think Secretary Carter has some concern about this, but what we know in practice is that

[02:17:32] Speaker 03:
ongoing medical treatment for gender transition is a general rule does not involve any significant periods of non-employability for many of our plans involve no period of non-employable whatsoever.

[02:17:43] Speaker 03:
Dr. Brown has also un-rebutted testimony on this in the record.

[02:17:48] Speaker 03:
And then, of course, there's the 2021 AMSARA summary that confirms that the rates of non-employable for transgender people are

[02:18:01] Speaker 03:
to the state you can make a meaningful comparison favorable compared to others.

[02:18:06] Speaker 03:
So the record on that here is really, really clear.

[02:18:10] Speaker 03:
And again, the government had every opportunity to cross examine any of these witness to submit contrary evidence and they chose not to do so.

[02:18:19] Speaker 00:
With respect to heightened scrutiny of any sort.

[02:18:24] Speaker 00:
Do you have anything you want to say with respect to why Skirmetty doesn't control this case?

[02:18:33] Speaker 03:
Well, Your Honor, I think Skirmetty was very clear that it was cabined, its decision was cabined to the specific situation there, which has been these particular medical treatments for young people.

[02:18:45] Speaker 03:
What we have here is

[02:18:48] Speaker 03:
a very different situation where here we have the government adopting a policy that repeatedly on its face throughout the relevant documents, targets, transgender status as such.

[02:19:00] Speaker 03:
I mean, for example, nothing in that Tennessee law and scrimmety said that young people can't transition, that it doesn't say anything about how they live their lives, how they dress, how they refer to themselves.

[02:19:10] Speaker 03:
So the policy here is- Policies are different, but the legal question

[02:19:18] Speaker 00:
Tell me why the legal question is different.

[02:19:21] Speaker 00:
The legal question was a classification that turns on age or medical use are subject only to rational basis review.

[02:19:31] Speaker 00:
That's what the court said.

[02:19:33] Speaker 00:
I'm voting from the opinion.

[02:19:34] Speaker 03:
Yep.

[02:19:35] Speaker 03:
Yep.

[02:19:36] Speaker 03:
So here, I mean, this goes to one of the central issues in the case, which is, is this policy based on transgender identity?

[02:19:44] Speaker 03:
Is it identity-based?

[02:19:45] Speaker 03:
Is it intended to target?

[02:19:47] Speaker 03:
people who live in a sex different than their birth sex, transgender people, or is it just about a medical condition?

[02:19:54] Speaker 03:
And I think that the text of the policy and other considerations make it clear that it is targeting transgender identity.

[02:20:02] Speaker 00:
But you seem to be wanting to kind of have it both ways.

[02:20:06] Speaker 00:
in the sense that you seem to be arguing that any person who has gender dysphoria is transgender, and any person who is transgender has gender dysphoria.

[02:20:24] Speaker 00:
And if that's the case, then maybe the classification does only target transgender people.

[02:20:34] Speaker 00:
Well, but that's because it targets people with this medical condition of gender dysphoria.

[02:20:41] Speaker 00:
And your position, litigating position, is that all transgender people have gender dysphoria.

[02:20:50] Speaker 03:
Well, let me clarify that.

[02:20:52] Speaker 03:
I think all transgender people do have gender dysphoria.

[02:20:56] Speaker 03:
Again, if you've undergone treatment, you may not have gender dysphoria anymore.

[02:21:00] Speaker 00:
But I'm saying that I asked you earlier and you're saying that that doesn't have anything to do with your litigating position because maybe some of your clients don't have it anymore, but you're saying that doesn't really make any difference with respect to this claim that you're litigating.

[02:21:17] Speaker 00:
So I don't see how you can argue that

[02:21:21] Speaker 00:
this is really not about a medical condition.

[02:21:23] Speaker 00:
It's about transgender status when your position is that everybody with that status has the medical condition.

[02:21:30] Speaker 03:
Well, I believe that our position is reflected in the expert testimony that we submitted that again was unrebutted that gender dysphoria is highly treatable

[02:21:44] Speaker 03:
in that when people undergo transition, it resolves the gender dysphoria.

[02:21:50] Speaker 03:
That is part of our record here, and the government did not rebut that.

[02:21:56] Speaker 03:
But I think it's also very important here, Your Honor, that the policy on its face applies independently of gender dysphoria.

[02:22:07] Speaker 03:
It applies to anyone who's

[02:22:10] Speaker 03:
transition, attempted to transition, wishes to transition, refers themselves with pronouns different than their birth sex, dresses different than their birth sex.

[02:22:21] Speaker 03:
I mean, it's really about transgender identity and status.

[02:22:26] Speaker 03:
It is not caverned.

[02:22:27] Speaker 03:
It includes gender dysphoria, but it goes far beyond that.

[02:22:32] Speaker 03:
I mean, it's part of a unified policy.

[02:22:34] Speaker 03:
It's a single document.

[02:22:37] Speaker 03:
It's very much focused on if you, anyone who lives or wishes to live in a sex different than their birth sex is unfit for military service.

[02:22:47] Speaker 00:
Anything that- I think I've heard you say that all of those things that you just listed are things that would be considered

[02:22:58] Speaker 00:
symptoms or consistent with symptoms of gender dysphoria.

[02:23:04] Speaker 00:
So it appears your argument is, well, it's broader than gender dysphoria because it also includes people who exhibit symptoms consistent with gender dysphoria, even if they don't have or have never had that diagnosis.

[02:23:22] Speaker 03:
Well, I'm only mentioning the symptoms consistent with gender dysphoria because that is one of the criteria in this policy.

[02:23:28] Speaker 03:
I mean, as the district court emphasized, I mean, this policy attempts to cover every possible policy.

[02:23:35] Speaker 00:
Tell me one thing that the policy disqualifies someone for doing that would not be considered a symptom consistent with gender dysphoria.

[02:23:50] Speaker 03:
Well, it's true that identifying as a sex different than your birth sex or in wishing to live as a sex different than your birth sex or living as a sex different than your birth sex that

[02:24:05] Speaker 03:
is a symptom of gender dysphoria, but it's just also part of what it means to be transgender.

[02:24:13] Speaker 03:
I mean, the fact that those overlap doesn't mean that transgender people are wholly defined by a clinical diagnosis.

[02:24:23] Speaker 03:
I mean, that diagnosis is there to help people transition, but it's broader than that.

[02:24:29] Speaker 00:
I guess it's not maybe a perfect hypo.

[02:24:33] Speaker 00:
But let's suppose

[02:24:34] Speaker 00:
there were some medical condition that only people of a certain race could get.

[02:24:45] Speaker 00:
But it's also a medical condition that could be seen as disqualifying a person from being in the military because of

[02:24:58] Speaker 00:
of how it operates on the body or the mind or whatever.

[02:25:05] Speaker 00:
So if the military says, we are going to disqualify people from joining who have that medical condition, it just happens to be the case that all of the people who have that medical condition are people of a certain race.

[02:25:28] Speaker 00:
Would we say, well, that's not really a classification based on a medical diagnosis.

[02:25:36] Speaker 00:
It's really a racial classification.

[02:25:40] Speaker 03:
Well, I think we'd want to look at, is there a good reason, a legitimate reason to be concerned about that medical diagnosis?

[02:25:47] Speaker 03:
Is there a good reason to ban all people with that medical diagnosis?

[02:25:51] Speaker 03:
When you look at that question here, the answer is a resounding no.

[02:25:56] Speaker 03:
That's the issue here.

[02:25:58] Speaker 03:
The military is not... They're not... All right.

[02:26:01] Speaker 00:
Well, I take that point, and I agree you look at it, but all I'm saying is that doesn't mean necessarily that using that medical condition as the grounds for disqualification

[02:26:20] Speaker 00:
is equivalent to saying that they are only seeking to disqualify people of the race that has that.

[02:26:30] Speaker 00:
That's all I'm saying.

[02:26:32] Speaker 00:
What I have to do, and forgive me because I like rules and doctrines, I'm built as an engineer and that's what I was in my former life, etc.

[02:26:43] Speaker 00:
But if the doctrine says that classifications that turn on medical use are in rational basis, and you are seeking to have me use a different rule, it's a heightened review, not rational basis review, I need to understand how we get there, especially given what the Supreme Court has told me.

[02:27:09] Speaker 00:
And just saying that

[02:27:12] Speaker 00:
Well, the people who have this medical diagnosis also happen to be this certain group of people.

[02:27:24] Speaker 00:
I don't see how that gets me to saying that this is a classification targeting that group of people.

[02:27:32] Speaker 03:
I guess what I would say is that these requirements

[02:27:37] Speaker 03:
that people have to live and serve in their birth sex are independent of the clinical diagnosis.

[02:27:49] Speaker 03:
You could have a policy that simply had those requirements in it and not even include the gender dysphoria.

[02:27:57] Speaker 03:
And I don't think anyone would, just because those also happen to be,

[02:28:01] Speaker 03:
symptoms of gender dysphoria and be like, oh, that's a medical diagnosis.

[02:28:05] Speaker 03:
I mean, on its face, the plain language here, these are requirements that are targeted at a person.

[02:28:13] Speaker 03:
changing their sex, living as a different sex.

[02:28:16] Speaker 03:
That's just about being transgender.

[02:28:18] Speaker 03:
It's a belt and suspenders approach here for sure because the government's trying to sweep every possible transgender person in.

[02:28:25] Speaker 03:
So they're also throwing in the gender dysphoria and symptoms consistent with gender dysphoria.

[02:28:30] Speaker 03:
But I think that does not alter the plain language of those requirements or how just unmistakably they're targeted at just being transgender.

[02:28:38] Speaker 03:
I think that's really, really

[02:28:42] Speaker 03:
just clear from the text and also certainly clear from many statements that have been made, both in these policies themselves and contemporaneously by the president and by Secretary Hexeth, that they are very concerned with transgender people per se not being able to serve in the military.

[02:29:02] Speaker 00:
I don't want to preempt if others have questions.

[02:29:08] Speaker 02:
I do have some questions.

[02:29:14] Speaker 02:
The, I guess, a while back, I thought I heard you just say that if someone has, if someone wants to transition in a, if someone wants to, let me just, the,

[02:29:44] Speaker 02:
The recommended treatment for gender dysphoria includes assessment, counseling, and as appropriate, gender transition.

[02:29:53] Speaker 02:
You would agree with that, I think.

[02:29:57] Speaker 02:
Gender transition can include hormone therapy, it can include surgical interventions, and it can include social transition.

[02:30:10] Speaker 02:
Um, and social transition would consist of, um, you might say living one's life fully in accordance with one's gender identity.

[02:30:20] Speaker 02:
Um, is all that correct?

[02:30:22] Speaker 02:
It's consistent with my understanding.

[02:30:24] Speaker 02:
Yep.

[02:30:25] Speaker 02:
Uh, and do any of your clients, have any of your clients transitioned, um, socially without hormone therapy or surgical intervention?

[02:30:40] Speaker 02:
Yes.

[02:30:42] Speaker 02:
And that is the choice that many people who are transgender make.

[02:30:50] Speaker 02:
Is that also correct?

[02:30:53] Speaker 02:
At least some do.

[02:30:55] Speaker 02:
OK, that clarifies something that helps me.

[02:30:59] Speaker 02:
I have more questions or more about law than the facts of the case or definitions.

[02:31:10] Speaker 02:
Would you agree with this statement?

[02:31:12] Speaker 02:
Outside the elections and death penalty contexts, the Supreme Court rarely if ever reaches a decision on the merits that's different from its emergency docket decision.

[02:31:26] Speaker 03:
You know, I apologize, Your Honor, but I don't feel I have a basis to agree or disagree with that.

[02:31:31] Speaker 03:
I would have to look at the

[02:31:33] Speaker 03:
the record on that.

[02:31:34] Speaker 02:
Can you think of any times in the past five years where the Supreme Court has issued an order on the emergency docket that required it to make a finding about likelihood of success?

[02:31:46] Speaker 02:
Made that finding at least by implication in favor of one party and then ruled on the merits later for the opposing party?

[02:31:54] Speaker 03:
You know, this is just not something I have tracked closely enough to give you a fair enough.

[02:31:58] Speaker 02:
I appreciate the reason why answer a question about deference.

[02:32:06] Speaker 02:
Do you, and this question may have been asked and answered, but I want to make sure I understood.

[02:32:12] Speaker 02:
Do you think the military has to submit contrary evidence under the military deference standard?

[02:32:20] Speaker 03:
Not necessarily.

[02:32:21] Speaker 03:
I think they have to, well, Judge Wilcombs is actually thinking of something from your concurring opinion in Shanahan.

[02:32:31] Speaker 03:
You know, it's one thing to defer to the military's

[02:32:34] Speaker 03:
justifications, it's another thing to just ask the military to explain itself.

[02:32:39] Speaker 03:
So I do think that the military has an obligation to explain kind of the basis of its decisions and what they considered, what evidence was relevant to that.

[02:32:48] Speaker 03:
I don't think there's any requirement.

[02:32:50] Speaker 03:
They have to have some certain type of study or something like that, but they have to have some basis and they have to be able to explain it in a

[02:33:01] Speaker 03:
that they have adopted a reasonable, even-handed approach that's rooted in military needs.

[02:33:09] Speaker 02:
What's the best precedent from the Supreme Court or this circuit for you where the case concerned a uniquely military matter like military preparedness?

[02:33:27] Speaker 03:
I think Singh is very relevant here.

[02:33:29] Speaker 03:
Which one?

[02:33:31] Speaker 03:
Singh versus Berger.

[02:33:32] Speaker 03:
Rosker relevant as well.

[02:33:40] Speaker 02:
Singh was the First Amendment case, or it was a Riffer case, actually.

[02:33:44] Speaker 03:
It was a Riffer case, yes.

[02:33:46] Speaker 02:
I guess, and then Rosker, the military won.

[02:33:50] Speaker 03:
Yeah, I understand that.

[02:33:51] Speaker 02:
Is there any case where the military has lost

[02:33:55] Speaker 03:
um on a constitutional question when the case concerned a uniquely military matter like military preparedness um i i cannot nothing is coming to mind beside the obvious uh well justice chief justice robert's recent clarification that koromatsu was wrongly decided of course it weren't at the time but yeah um

[02:34:23] Speaker 02:
Slightly new topic.

[02:34:24] Speaker 02:
We're trying to figure out the meaning of the equal protection as found in the due process clause of the Fifth Amendment.

[02:34:35] Speaker 02:
Do we look to 1791 to the extent we care about its original meaning?

[02:34:39] Speaker 02:
Do we look to 1791 when the Fifth Amendment was ratified or 1868 when the Fourteenth Amendment was ratified with an equal protection right that we now understand to be included in the Fifth Amendment?

[02:34:53] Speaker 03:
You know, I apologize.

[02:34:54] Speaker 03:
We are not prepared as I stand today to take a position on that.

[02:34:58] Speaker 03:
You know, I just, I do want to, there's something I just recalled.

[02:35:02] Speaker 03:
I do believe the Supreme Court has recently partially upheld a lower court ruling involving in favor of service members involving COVID vaccinations.

[02:35:12] Speaker 03:
And I apologize.

[02:35:13] Speaker 03:
I cannot call the case name to mind.

[02:35:18] Speaker 02:
Okay.

[02:35:21] Speaker 02:
I'm not sure, but there was some emergency order work on that issue during COVID.

[02:35:31] Speaker 02:
I don't have any more questions right now.

[02:35:33] Speaker 02:
I appreciate your patience, Judge Wilkinson.

[02:35:38] Speaker 00:
There was some back and forth on this administrative separation issue.

[02:35:43] Speaker 00:
I wanted to give you an opportunity to-

[02:35:47] Speaker 00:
what your friend on the other side said about that.

[02:35:51] Speaker 00:
I guess what I'm trying to get to is I have to go back and listen to the oral argument, I guess, but it appears that there's a representation made that the oral argument on the stay having to do with

[02:36:18] Speaker 00:
with administrative separation.

[02:36:22] Speaker 00:
And Judge Pillard's opinion points out that gender dysphoria is treated differently than any other medical condition.

[02:36:37] Speaker 00:
And there's not the ability to have an individualized medical evaluation.

[02:36:47] Speaker 00:
Can you shed light on whether that characterization is true or not, and what is administrative separation, and is that different than the disability evaluation system, et cetera?

[02:37:09] Speaker 03:
Yes, sir, I can.

[02:37:11] Speaker 03:
The statement in Judge Piller's opinion that there's no other medical condition that automatically triggers administrative separation from the military rather than individualized medical evaluation followed by a determination of appropriate response is 100% correct.

[02:37:27] Speaker 03:
the government conceded that at the hearing.

[02:37:32] Speaker 03:
And again, the record is closed and there's this clear error standard here, but it is correct.

[02:37:39] Speaker 00:
And for the vast... If I wanted to find the answer to that, if I said, well, I'm not going to hold the government to this concession made at the podium, and I wanted to find the answer to that, where would I look to find the answer to that?

[02:37:52] Speaker 03:
Well, the overwhelming majority of medical conditions that somebody who's already serving develops or has our process to the disability evaluation system, which is an individualized assessment to determine whether that person can still do their job.

[02:38:09] Speaker 03:
Your answer just defeated your goal.

[02:38:14] Speaker 04:
You said the overwhelming majority.

[02:38:16] Speaker 04:
So it's not the only one.

[02:38:19] Speaker 04:
And that's the government's doing.

[02:38:20] Speaker 04:
Well, just give me one minute.

[02:38:22] Speaker 03:
Just give me one minute here.

[02:38:23] Speaker 03:
Well, I want to lead at this point in the argument when you're strong.

[02:38:27] Speaker 03:
OK, thank you.

[02:38:28] Speaker 03:
Thank you.

[02:38:28] Speaker 03:
I appreciate that.

[02:38:31] Speaker 03:
Yes, so there's a handful of conditions that are very severe that are processed through administrative separation.

[02:38:40] Speaker 03:
However, and I'll just look at joint appendix

[02:38:44] Speaker 03:
845 and 846.

[02:38:47] Speaker 03:
Even these handful of conditions are there is an individualized assessment separate and that is 9.2.

[02:38:59] Speaker 03:
See one.

[02:39:02] Speaker 03:
A and B. And you have an opportunity.

[02:39:06] Speaker 03:
The question is whether the disorder is so severe that the service member's ability to function effectively in the military is significantly impaired.

[02:39:16] Speaker 03:
And it includes documentation to establish.

[02:39:19] Speaker 04:
So you heard the government's response, and why isn't that a full response?

[02:39:22] Speaker 04:
It says you get a notice of discharge, you have an opportunity to have a hearing before the three-member board.

[02:39:28] Speaker 03:
Well, that you do not get this individualized assessment for gender dysphoria.

[02:39:32] Speaker 04:
You do not receive this council made this representation that get this three member.

[02:39:39] Speaker 04:
And counsel can tell me if I misunderstood his answer, but that was part of it, that you get a notice of discharge.

[02:39:46] Speaker 04:
You can go to this three-member board and make your case.

[02:39:49] Speaker 03:
No, the only thing you get to do is the only question is, do you have gender dysphoria?

[02:39:54] Speaker 03:
If so, you're done.

[02:39:55] Speaker 03:
There is no assessment of, can you still function?

[02:39:58] Speaker 03:
Can you perform your job?

[02:39:59] Speaker 03:
And that is not true even for these very severe disorders.

[02:40:03] Speaker 03:
I mean, gender dysphoria is so treatable,

[02:40:06] Speaker 03:
And we know that you are correct because the policies themselves state that.

[02:40:15] Speaker 02:
What about the government mentions schizophrenia?

[02:40:19] Speaker 02:
I'm not comparing that to gender dysphoria, but I am asking, was the government correct when it said that someone is automatically

[02:40:30] Speaker 02:
So they may get an individualized medical hearing, but no one with schizophrenia will be permitted after an individualized medical hearing to remain in the military?

[02:40:41] Speaker 03:
No, sir.

[02:40:42] Speaker 03:
No, sir.

[02:40:43] Speaker 03:
They'll be subject to this individualized assessment.

[02:40:46] Speaker 02:
What's your support for the assertion that maybe that there's been even one person who was not disqualified?

[02:41:01] Speaker 03:
Well, it's not in the record, but from speaking with our experts and the senior military officials to administer these provisions, I mean, this is very serious.

[02:41:09] Speaker 03:
I mean, the overwhelming orientation of retention is to keep people in so long as they can continue to function and do their jobs or do any job where they're going to be useful to the military.

[02:41:21] Speaker 03:
And so that's true in the DES system.

[02:41:25] Speaker 03:
It's true for this very small number of very severe disorders that this is taken very seriously.

[02:41:31] Speaker 03:
And you can read from the text here that you can see there's all kinds of evidence that they're going to look at.

[02:41:37] Speaker 03:
And if people can still perform their job duties, they will be retained.

[02:41:42] Speaker 03:
And that is not the case for gender dysphoria under the policy, under the headset policy.

[02:41:47] Speaker 00:
So I'm trying to

[02:41:52] Speaker 00:
make sure I understand precisely what you say the land is here.

[02:41:58] Speaker 00:
Are you saying yes or no that there are other medical conditions that trigger an administrative separation with

[02:42:14] Speaker 00:
with no individualized medical evaluation?

[02:42:18] Speaker 00:
No.

[02:42:19] Speaker 00:
No, no, no.

[02:42:21] Speaker 04:
Well, what was council telling us this morning about the Appropriations Act?

[02:42:24] Speaker 04:
And I can go look up all of these thousands of conditions that are listed.

[02:42:30] Speaker 04:
If I'm just talking about disability.

[02:42:33] Speaker 03:
Yes, ma'am.

[02:42:34] Speaker 03:
That's my understanding.

[02:42:35] Speaker 03:
Yeah.

[02:42:35] Speaker 03:
It's which is a whole different.

[02:42:37] Speaker 04:
Right.

[02:42:37] Speaker 04:
So they can't retire on disability if you have this condition.

[02:42:41] Speaker 04:
That's I totally agree.

[02:42:44] Speaker 04:
All right, but that was his answer.

[02:42:46] Speaker 04:
All right, when I asked him about this very thing that the other two, see, I think it's amazing that we're getting all these different answers.

[02:42:56] Speaker 04:
And apparently it depends on who asked the question at what point in the oral argument.

[02:43:01] Speaker 04:
I mean, it's just, that can't be.

[02:43:04] Speaker 04:
It's either in black and white or it isn't.

[02:43:08] Speaker 03:
I believe it is black and white and the regulations and the policy.

[02:43:12] Speaker 03:
And I just will also,

[02:43:14] Speaker 04:
You know, this is why the district court gave the government opportunity to present evidence, supplement the record, come forward with witnesses, and they- Looking at the Supreme Court, I think there are two chief justices who have made it pretty clear that in the military context, the military doesn't have to put on much of anything.

[02:43:34] Speaker 04:
All right?

[02:43:35] Speaker 04:
And you've got some five-four decisions.

[02:43:39] Speaker 04:
But that's the landscape you're facing.

[02:43:44] Speaker 04:
And the government has argued very strenuously to me is that, yes, they talked about abuse of discretion, but it really is an abuse of discretion.

[02:43:51] Speaker 04:
It's all just a matter of law.

[02:43:54] Speaker 04:
And there's no way you could prevail in the Supreme Court.

[02:44:00] Speaker 04:
And that was the implication of Judge Walters.

[02:44:03] Speaker 04:
questions.

[02:44:03] Speaker 04:
Well, I may be naive, but I think, you know, maybe if the court has a full oral argument on in matter and briefing, you know, it might qualify an emergency order or something.

[02:44:15] Speaker 04:
But that's neither here nor there.

[02:44:18] Speaker 04:
But I think there's some very strong Supreme Court decisions that present real difficulties for you in terms of your approach, in terms of what is the government's burden

[02:44:33] Speaker 04:
And, you know, we're at rational basis.

[02:44:37] Speaker 04:
And the government has given us some reasons.

[02:44:40] Speaker 04:
And the Chief Justice has those language about, you know, if you can look around and figure out a reason, it's good enough.

[02:44:50] Speaker 03:
I just quickly say then that I do think it's very important that the district court opinion and showing did not reach the question of animus expressly declined to reach the question of animus and rely primarily on finding that

[02:45:05] Speaker 03:
Transgender discrimination gets heightened scrutiny.

[02:45:08] Speaker 03:
I mean, that's a new issue.

[02:45:09] Speaker 03:
The Supreme Court hasn't spoken to it.

[02:45:11] Speaker 03:
The Supreme Court has, I do think the doctrinal framework around animus is very clear.

[02:45:17] Speaker 03:
And the Supreme Court just keeps reaffirming it.

[02:45:20] Speaker 03:
This court, the court we have now keeps reaffirming it, including in Scrimetti, where they did say that if this was a pretext, if there was evidence that this was a pretext for discrimination, that it was animus driven, that would be a different matter.

[02:45:34] Speaker 03:
And so I do think that makes a big difference.

[02:45:37] Speaker 03:
And the court has told us that when they don't issue an opinion, that it shouldn't be read as like covertly overturning established law.

[02:45:46] Speaker 03:
And I think that legal framework on animus, the legal framework is at least

[02:45:52] Speaker 04:
clear and they did just reaffirm that and scrimmety but i guess what concerns me is some of the answers we're getting today and it's in the briefing i mean it's nothing new is that this kind of discrimination has been going on for years in the military nothing new all right um and if the military decides they need a uniform

[02:46:21] Speaker 04:
Court is not going to second guess that.

[02:46:25] Speaker 04:
5-4.

[02:46:30] Speaker 03:
I do think that's why it is important that the animus analysis and findings here are so important.

[02:46:37] Speaker 03:
Because yeah, the military's had different policies, but they have been based on serious study of this issue and looking at relevant criteria and factors.

[02:46:47] Speaker 03:
And I think that the government comes in and says, look,

[02:46:51] Speaker 04:
You know, we had a lot of study.

[02:46:54] Speaker 04:
Look at the Mathis era.

[02:46:56] Speaker 04:
We looked at all that.

[02:46:56] Speaker 04:
We've looked at the recent literature, too.

[02:46:59] Speaker 04:
You know, and we've just reached a different conclusion than you have.

[02:47:04] Speaker 04:
All right.

[02:47:04] Speaker 04:
And that's the point about military preparedness.

[02:47:11] Speaker 03:
Yeah, I do think it matters that when you lay out every single factor that the Supreme Court has ever identified as relevant to a finding of animus, they're all present here and that the district court

[02:47:26] Speaker 03:
made such detailed, I mean, more than 80 findings, in fact, very detailed analysis and did give the government every opportunity to explain or rebut.

[02:47:34] Speaker 03:
And, you know, they chose not to.

[02:47:36] Speaker 03:
And I think on this record here, her factual findings supporting the conclusion that this is an animus-driven policy are very solid.

[02:47:47] Speaker 03:
So I do think that matters under the Supreme Court's current case law.

[02:47:53] Speaker 03:
And I think this Supreme Court will take that very seriously.

[02:47:58] Speaker 03:
I mean, they just told us in scrimmage that would make a difference to them.

[02:48:02] Speaker 03:
And even in Trump versus Hawaii, it was an external statement months earlier by the president, but it prompted them to undertake

[02:48:13] Speaker 03:
An examination of whether there were legitimate reasons for that policy and here, you know, the, the, the demeaning derogatory statements are in the policy itself.

[02:48:25] Speaker 03:
The contemporary statements are instantaneous.

[02:48:29] Speaker 03:
None of the other.

[02:48:30] Speaker 03:
Uh, criteria factors that the court said sort of rehabilitated that policy in Trump versus Hawaii are present here.

[02:48:37] Speaker 03:
I think these things really do matter.

[02:48:41] Speaker 03:
And I do think the court is given a very clear legal framework on the animus question.

[02:48:46] Speaker 03:
And then the facts here.

[02:48:49] Speaker 03:
factual findings are so detailed and so strong and by the government's own prerogative, largely unrebutted.

[02:48:56] Speaker 03:
And I don't think they can come back now and just disagree with those facts on a clear error standard.

[02:49:05] Speaker 03:
I think this, it does really matter.

[02:49:08] Speaker 03:
I mean, these are folks who are serving our country very honorably at very high levels and the government admits there have done nothing wrong, that there are exemplary, their service is exemplary and thousands of them, if you all, you know, declined to let this PI go into effect or about to suffer really severe irreparable harm is going to be harmful to them, harmful to our country.

[02:49:33] Speaker 00:
And I think you're welcome to ask a couple of questions before we wrap up.

[02:49:37] Speaker 02:
I recall the Supreme Court majority saying in its Obergefell decision when describing the issue of gay marriage, when describing the traditional view, that this view has long been held and continues to be held in good faith by reasonable and sincere people here and throughout the world.

[02:50:01] Speaker 02:
I think in this litigation, some people think some incendiary things have been said by, I think you think that they've been said and I think the government might think that incendiary things have been said.

[02:50:20] Speaker 02:
So I want to give you an opportunity to answer a couple of questions with that Obergefell quote in mind.

[02:50:28] Speaker 02:
Some people believe that service members, with some mental health conditions, not necessarily gender dysphoria, but with some mental health conditions, make military readiness less ready.

[02:50:46] Speaker 02:
That view has long been held in good faith by reasonable and sincere people, correct?

[02:50:54] Speaker 03:
which is why there's an individualized assessment.

[02:50:57] Speaker 02:
Fair enough.

[02:50:59] Speaker 02:
Some people, some people think that sex is fixed at birth.

[02:51:07] Speaker 02:
That view has long been held and continues to be held in good faith by reasonable and sincere people here and throughout the world.

[02:51:14] Speaker 02:
Do you agree?

[02:51:17] Speaker 03:
You know, I think that what's important

[02:51:22] Speaker 03:
for this court, for this case, is the policy in front of us.

[02:51:27] Speaker 03:
And I think that policy was undertaken with a very deliberate intent to exclude and demean transgender people.

[02:51:35] Speaker 02:
What about outside the context of this particular Hegseth policy?

[02:51:38] Speaker 02:
Do you think reasonable and sincere people acting in good faith can disagree about whether sex is fixed at birth?

[02:51:46] Speaker 03:
You know, that's such a broad question.

[02:51:47] Speaker 03:
I really did not.

[02:51:48] Speaker 03:
I don't have an opinion on that.

[02:51:50] Speaker 02:
Last one.

[02:51:51] Speaker 02:
Same question.

[02:51:53] Speaker 02:
But with regard to whether service members should live in their birth sex, many people disagree about whether they should or shouldn't.

[02:52:01] Speaker 02:
Do you think that both views are held in good faith by reasonable and sincere people?

[02:52:09] Speaker 03:
Again, I think what counts here is whether the government can impose a policy based on disfavoring transgender people in order to exclude them from military service while conceding that they're meeting all standards that are fit to serve.

[02:52:22] Speaker 00:
All right, if there are no further questions, I'll give you, if you want to make 30 second closing argument.

[02:52:34] Speaker 00:
We're not, but I'll give you that opportunity.

[02:52:39] Speaker 03:
Yeah, I just appreciate your your patience and thank you very much.

[02:52:43] Speaker 00:
All right.

[02:52:43] Speaker 00:
Thank you.

[02:52:45] Speaker 00:
So, Mr. Cambly, I know we greatly exceeded your time to ask for three minutes.

[02:52:56] Speaker 00:
So I'll give it to you.

[02:52:57] Speaker 01:
Yes, your honor.

[02:52:58] Speaker 01:
So just a few things that I wanted to point out.

[02:53:00] Speaker 01:
Judge Walker, you stated that you were going to ask me questions on the symptoms consistent with.

[02:53:04] Speaker 01:
So I would direct the court's attention to footnote two of J1289, which states the phrase exhibit symptoms consistent with gender dysphoria refers to the diagnostic criteria and in the DSM and the language applies only to individuals who exhibit such symptoms as would be sufficient to constitute a diagnosis.

[02:53:24] Speaker 04:
So I wanted to ask you a question about that, because this whole symptom issue has come up.

[02:53:34] Speaker 04:
And I thought maybe in your reply where you write comparing these two policies, Mathis and

[02:53:53] Speaker 04:
the Biden where you say, but these differences, like any difference between the 2025 policy and the Carter and Austin policies, simply reflect a more cautious approach to the, quote, risk associated with allowing the accession and retention of individuals with a history or diagnosis of gender

[02:54:19] Speaker 04:
dysphoria, close quote, quoting J.A.

[02:54:22] Speaker 04:
69.

[02:54:23] Speaker 04:
And when I read that, I thought, are you saying that the court should read the HESAS policy statement to

[02:54:36] Speaker 04:
be limited to those with a history or an actual diagnosis of gender dysphoria, as opposed to a broader language about people who have symptoms consistent with gender.

[02:54:55] Speaker 01:
Yes, Your Honor, and that scenario is just designed to cover people who might be suffering from gender dysphoria but never received a formal diagnosis.

[02:55:02] Speaker 04:
So my question is, in your reply brief, that's your response.

[02:55:06] Speaker 04:
And I read it, and I thought, well, is the government taking the position that the court should read that language about consistent with to be only

[02:55:19] Speaker 04:
for the risk associated with people who have a history or a diagnosis, which to me is a lot narrower than saying, and also, by the way, people consistent with.

[02:55:35] Speaker 01:
Yes, Your Honor.

[02:55:36] Speaker 01:
It's basically people who experience enough clinical distress to be diagnosed with it.

[02:55:40] Speaker 04:
Is that a yes to my question?

[02:55:43] Speaker 01:
So, Your Honor, we don't believe that there is a significant amount of daylight between those two positions since- I ask the question.

[02:55:51] Speaker 04:
Yes, Your Honor, we do believe that the policy says- So, should the court, I'll repeat it, read this policy in line with what I just quoted from your reply brief at 25.

[02:56:06] Speaker 01:
So, Your Honor, it should be read in line with what the policy says on its face, which is-

[02:56:11] Speaker 04:
what the government has argued to this court in its reply brief on page 25.

[02:56:17] Speaker 01:
So your honor, to the extent that it wasn't intended to be read as anything different than what the policy states.

[02:56:23] Speaker 04:
Well, you're making a very strong statement.

[02:56:26] Speaker 04:
And I thought they're pulling back because they realize symptoms consistent with, I have a hiccup.

[02:56:33] Speaker 04:
I have a sniffle.

[02:56:35] Speaker 04:
I have a cough.

[02:56:37] Speaker 04:
I mean, it's just too broad.

[02:56:39] Speaker 04:
Whereas what you're saying is anyone with a history or diagnosis, surely that is what

[02:56:49] Speaker 04:
the administration is focused on.

[02:56:52] Speaker 01:
And that is, Your Honor, because that's what footnote two clarifies.

[02:56:55] Speaker 01:
Right.

[02:56:55] Speaker 01:
Symptoms consistent would be enough to have a diagnosis.

[02:56:59] Speaker 04:
That's my point.

[02:57:00] Speaker 04:
Yes, Your Honor.

[02:57:01] Speaker 04:
So we should read that symptoms consistent to be the same as and equal to

[02:57:10] Speaker 04:
either a diagnosis or a history.

[02:57:14] Speaker 01:
Correct, Your Honor.

[02:57:15] Speaker 04:
And not read the policy more broadly.

[02:57:17] Speaker 01:
That's all I want to be clear about.

[02:57:19] Speaker 01:
Yeah, that's correct.

[02:57:19] Speaker 02:
Yeah, because that's why the footnote two is there because there was some... We were told something about a self-reporting requirement if you feel a different gender than your birth sex, but you've never done anything externally to indicate that.

[02:57:34] Speaker 01:
So, your honor, that's not what the policy says.

[02:57:37] Speaker 01:
So I've been in the military for about 13 years now and every year I have to take a physical health assessment where I fill out an online questionnaire saying, you know, hundreds of conditions, whether I have them or not.

[02:57:49] Speaker 04:
And, but we're just told the policy, the form is being changed.

[02:57:53] Speaker 04:
So you will have to answer about.

[02:57:57] Speaker 01:
Gender dysphoria, yes.

[02:57:59] Speaker 04:
But symptoms consistent with.

[02:58:02] Speaker 04:
So if you have a headache or temperature.

[02:58:05] Speaker 01:
You're going to have to say yes, that person would not be intended to say yes, your honor.

[02:58:09] Speaker 01:
It would be someone who suffers the clinical distress and have the other symptoms that would be enough to form a diagnosis.

[02:58:14] Speaker 01:
But the self reporting that applies to hundreds of medical conditions.

[02:58:18] Speaker 01:
So that's not something that form is not something new.

[02:58:21] Speaker 01:
It's just that gender dysphoria is one of the conditions that's on the form.

[02:58:24] Speaker 02:
It's asking to self report distress or impairment.

[02:58:28] Speaker 01:
No, it's asking to report gender dysphoria or history of symptoms consistent with the symptoms consistent with as is defined as the DSM 5 criteria.

[02:58:39] Speaker 01:
Which are?

[02:58:41] Speaker 01:
Which are listed on JA 1292.

[02:58:45] Speaker 01:
And what does it say?

[02:58:48] Speaker 01:
It's a mark in congruence between ones experienced and slash expressed gender and natal gender of at least six months in duration as manifested by at least two of these following six conditions and then says the condition is associated with clinically significant distress or impairment in social occupational or other important areas of functioning.

[02:59:08] Speaker 04:
All I'm getting at is that so broad, you could be distressed for all kinds of reasons that have nothing to do with gender dysphoria.

[02:59:16] Speaker 01:
They have six criteria that you have to meet at least two of.

[02:59:19] Speaker 01:
So it is defined there.

[02:59:21] Speaker 02:
And the distress has to be caused, stress impairment has to be caused by your gender identity.

[02:59:27] Speaker 01:
Yes.

[02:59:28] Speaker 01:
Yeah.

[02:59:28] Speaker 01:
And it has to be a clinically significant level of distress.

[02:59:32] Speaker 00:
And so, go ahead.

[02:59:34] Speaker 00:
I'm confused.

[02:59:35] Speaker 00:
I want you to answer this yes or no.

[02:59:39] Speaker 00:
If a person has never had a diagnosis for gender dysphoria, but they say that they have symptoms that could be construed as consistent with symptoms for gender dysphoria,

[03:00:06] Speaker 00:
Does the Hegseth policy disqualify them from, let's start with, accession?

[03:00:15] Speaker 01:
So with accession, it would only be if it's enough to form a diagnosis.

[03:00:20] Speaker 01:
And I don't know what that scenario.

[03:00:22] Speaker 04:
Just say that in the policy.

[03:00:24] Speaker 04:
That's why I thought you might jump at this phrase that you wrote in the reply brief, because it clears up all that.

[03:00:32] Speaker 04:
So yes.

[03:00:32] Speaker 04:
That's not what's in the policy, and you won't

[03:00:35] Speaker 04:
say that this is it.

[03:00:37] Speaker 01:
It is.

[03:00:38] Speaker 01:
It's in Putnote 2 of J-1289 that says, symptoms consistent with that language only applies to individuals who exhibit such symptoms as would be sufficient to constitute a diagnosis.

[03:00:49] Speaker 01:
So that part is in the record.

[03:00:51] Speaker 04:
So you're self-diagnosing in addition to self-reporting.

[03:00:56] Speaker 01:
So if you believe that you suffer from gender dysploria because you meet the DSM criteria, there's nothing that prohibits you from self-reporting, but then the military would still- I'm getting at, if you're in the military and you want to continue to serve, why would you ever self-report?

[03:01:12] Speaker 04:
You have a sniffle, you have a headache, you're all distressed about some emotional event.

[03:01:20] Speaker 01:
So, Your Honor, it's the same thing with other conditions such as anxiety or depression.

[03:01:23] Speaker 01:
They ask those questions.

[03:01:25] Speaker 04:
Right, but at least you get an individualized assessment.

[03:01:28] Speaker 01:
So, Your Honor, if you do mark that box, there would be a further medical evaluation to determine whether you actually do suffer from gender dysphoria is my understanding, but that goes towards- I agree.

[03:01:39] Speaker 04:
That is not in the policy, however.

[03:01:41] Speaker 01:
So it says, if during a PHA a member is identified as having a current diagnosis or history of exhibiting systems consistent with gender dysphoria, the facility or location conducting the PHA will be responsible for conducting or coordinating any follow-up medical evaluation if necessary and for notifying the service committee.

[03:02:01] Speaker 04:
That's for people who have, as you write in your brief, a history or diagnosis.

[03:02:10] Speaker 01:
Yes, Your Honor.

[03:02:11] Speaker 04:
don't want to talk about this other language in the policy that talks about symptoms consistent with.

[03:02:19] Speaker 04:
That's the self-diagnosing in the self-reporting.

[03:02:22] Speaker 04:
And why, given the policy and the way it reads, would you ever self-report?

[03:02:28] Speaker 01:
It's the same reason.

[03:02:29] Speaker 04:
Self-defeating.

[03:02:30] Speaker 01:
So, dear honor, it's the same reason you would self-report for any other

[03:02:34] Speaker 01:
mental health condition that would be disqualifying.

[03:02:36] Speaker 01:
So for instance, if you believe you suffer from depression, you might mark that box, yes, but there will still be a follow on medical treatment to determine if you actually have a level of depression that would warrant a diagnosis.

[03:02:50] Speaker 04:
You've told me that you don't get this individualized assessment and certainly you don't get this three member panel.

[03:02:59] Speaker 04:
So disability, so I don't know what you'd get other than you get a letter saying you're discharged.

[03:03:06] Speaker 04:
Thank you very much for your service.

[03:03:07] Speaker 01:
So, your honor, just to clarify the disability, what I was referring to was a very particular process that was listed in the policy about a disability evaluation system.

[03:03:18] Speaker 01:
That's what I was referring to earlier.

[03:03:20] Speaker 01:
The Administrative Discharge Board is an option that the member has, and that's what Judge Wilkins was referring to when he talked about where you have to appear in the hearing in the uniform of your biological sex.

[03:03:31] Speaker 01:
That's the three-member panel I was referring to.

[03:03:34] Speaker 04:
But under the policy, then, as you read it in its broadest plain terms, if a member of the military self-reports symptoms consistent with, he or she is out, right?

[03:03:50] Speaker 01:
So, Your Honor, that doesn't necessarily mean they're out because it still has to be enough to form a clinical diagnosis.

[03:03:56] Speaker 01:
Where is that stated?

[03:03:58] Speaker 01:
So, Your Honor, it states, as I mentioned in footnote two of J1289, and then 1290 that talks about follow-on medical evaluation.

[03:04:06] Speaker 04:
No, but that's not in the policy itself.

[03:04:09] Speaker 04:
That's all I'm getting at.

[03:04:11] Speaker 04:
I'm just trying to understand this policy, and you're telling me read it in light of all of this military background, et cetera.

[03:04:19] Speaker 04:
when the plaintiffs want to talk about military background.

[03:04:23] Speaker 04:
and environmental issues, you say, no, no, no, we just have to look at the four corners of the policy.

[03:04:28] Speaker 04:
So I'm looking at the four corners of the policy, and I'm perfectly willing to do that.

[03:04:33] Speaker 01:
This is the four corners of the policy.

[03:04:35] Speaker 01:
It's the March 21st, 2025 memorandum subject prioritizing military excellence and readiness, military department identification, and that's in implementation of this policy.

[03:04:46] Speaker 04:
That's February 5th?

[03:04:48] Speaker 01:
The March 21st.

[03:04:48] Speaker 01:
The March 21st, OK.

[03:04:50] Speaker 01:
Yeah, so that is in the policy.

[03:04:52] Speaker 00:
So before we adjourn, I just want to make sure that I understand your position.

[03:05:00] Speaker 00:
The statement in Judge Pillard's dissenting opinion, citing to the oral argument that says there is no other medical condition that automatically triggers administrative separation from the military,

[03:05:19] Speaker 00:
rather than individualized medical evaluation followed by determination of an appropriate response.

[03:05:30] Speaker 00:
Is it your contention that that statement is false?

[03:05:35] Speaker 01:
No, Your Honor.

[03:05:36] Speaker 01:
That is accurate.

[03:05:37] Speaker 01:
And I was just talking specifically about the disability evaluation system, which is an option for some but not gender dysphoria.

[03:05:45] Speaker 01:
There are a number of processes.

[03:05:47] Speaker 01:
And while it is also possible for other conditions to be treated in an administrative separation discharge, that is correct in terms of the automatic triggering.

[03:06:02] Speaker 02:
You heard the questions that I asked at the few minutes ago and just ask them to you as well.

[03:06:08] Speaker 02:
Some people think sex is fixed at birth.

[03:06:09] Speaker 02:
Some people disagree.

[03:06:10] Speaker 02:
Some people think service members should live in their birth sex.

[03:06:13] Speaker 02:
Some people disagree.

[03:06:14] Speaker 02:
Do you think both views can be held in good faith by reasonable and sincere people?

[03:06:19] Speaker 01:
Yes, your honor.

[03:06:22] Speaker 02:
All right.

[03:06:23] Speaker 02:
Thank you.

[03:06:23] Speaker 02:
The matter submitted.