[00:00:01] Speaker 00: Before I begin, if I can just explain that I'm splitting time with my co-counsel. [00:00:06] Speaker 00: I'm Justin Smith. [00:00:07] Speaker 00: I represent the Arizona Senate President, Warren Peterson, and Arizona Speaker of the House, Ben Tomah. [00:00:12] Speaker 00: My co-counsel, Maria Simms, represents the state superintendent, Thomas Horne. [00:00:15] Speaker 00: She'll be addressing the equitable factors for five minutes. [00:00:18] Speaker 00: I'll be speaking for 10 minutes. [00:00:19] Speaker 05: That's fine. [00:00:20] Speaker 05: Whatever you want to do is fine? [00:00:21] Speaker 00: Yes. [00:00:22] Speaker 00: Thank you. [00:00:22] Speaker 05: Welcome to the Ninth Circuit. [00:00:24] Speaker 05: Just keep an eye on the clock, and we're ready for your argument. [00:00:27] Speaker 00: Thank you. [00:00:28] Speaker 00: May I reserve time for a battle? [00:00:29] Speaker 00: You bet. [00:00:30] Speaker 00: May I please the court? [00:00:32] Speaker 00: This case differs from this court's decision in the Hecox case in three material ways. [00:00:38] Speaker 00: The first is on the standard of review. [00:00:41] Speaker 00: The district court aired as a matter of law because it should have applied rational basis review to this under inclusiveness challenge. [00:00:47] Speaker 00: To the extent this court believes that intermediate scrutiny applies, the district court also aired because it required a perfect fit between the Arizona law and every citizen in Arizona. [00:00:57] Speaker 00: The second material difference is at the legislative record. [00:01:01] Speaker 00: The district court clearly aired because they ignored or dismissed overwhelming evidence before the legislature showing that biological males have a distinct performance advantage over biological females in athletics, including before puberty. [00:01:15] Speaker 00: And third, unlike in HECOX, the district court reached Title IX and erred by finding that the Arizona law violated Title IX based on Title IX's plain meaning, history, and relevant precedent. [00:01:27] Speaker 00: Let's start with the very first material difference with HECOX, and that's the standard review. [00:01:32] Speaker 00: The first step in equal protection cases, as the court knows, is to determine the classification of the law. [00:01:38] Speaker 00: And here the classification is based on sex between boys and girls in athletics. [00:01:43] Speaker 00: Plaintiffs do not challenge that classification. [00:01:45] Speaker 00: In fact, they agree that schools can and should separate sports teams on the basis of sex. [00:01:50] Speaker 05: That's been the law for many decades. [00:01:51] Speaker 05: So you know the response to this, of course, is there was a status quo, and then there was legislation, and the legislation seemed to target and single out transgender women. [00:02:01] Speaker 05: So what is your response to that, please? [00:02:03] Speaker 05: Why shouldn't we review this as a transgender ban? [00:02:06] Speaker 00: Yeah, of course. [00:02:07] Speaker 00: The status quo before the legislature was a single sports association. [00:02:11] Speaker 00: Arizona has multiple statewide associations that had rules only for high school. [00:02:16] Speaker 00: That association did not regulate middle school. [00:02:19] Speaker 00: And it had a confidential black box process for determining when students could cross over. [00:02:24] Speaker 00: And Arizona had a history, unlike in Idaho, of biological males trying to participate in female sports. [00:02:29] Speaker 00: These are the Clark cases from the 1980s. [00:02:32] Speaker 00: Arizona also, unlike Idaho, also had evidence that at least seven students had played on sports teams that did not match their birth sacks. [00:02:39] Speaker 00: In Idaho, Hecox was thought to be the very first athlete in that situation, so there's a lack of anecdotal evidence in Idaho that Arizona had. [00:02:48] Speaker 00: And so this law did affect a change in the status quo because it provided a clear, consistent standard where it did not exist in middle school. [00:02:57] Speaker 00: It was inconsistent and confidential in high school. [00:03:01] Speaker 00: And the day before the Arizona Senate hearing, the NCAA had outsourced its rules for national and international governing bodies based on the sport. [00:03:11] Speaker 00: And so with that patchwork of rules across all ages, the Arizona legislature was justified in putting forth a single objective standard. [00:03:18] Speaker 00: that was not meant to target, but as the legislative findings show, was based on extensive scientific evidence showing a physiological difference. [00:03:26] Speaker 04: Can we go to your extensive, oh, go right ahead. [00:03:28] Speaker 04: On that extensive scientific evidence, it seems to me it depends, you know, we're looking here at [00:03:37] Speaker 04: pre-pubescent boys and girls and transgender girls who took these blockers before age 11 and a lot of the evidence really relates to after that so it's hard for me to say well there's absolutely clear scientific evidence with what we really do have in the record [00:03:59] Speaker 04: If the standard is intermediate scrutiny, how can the state move that? [00:04:04] Speaker 00: Your Honor, a couple of responses to that. [00:04:05] Speaker 00: The first is, this court, in Second Amendment cases, which apply a higher level of scrutiny, has found that when there's conflicting evidence in the legislative record, they defer to the legislature to ask and review those cases, point the court to the Pina v. Lindley case. [00:04:20] Speaker 00: that Judge McEwen, you wrote a few years ago that showed that the legislature is best positioned to make those judgment calls. [00:04:26] Speaker 00: But as to the evidence specifically before the legislature, if you look at legislative findings number six and number nine, there were findings and studies cited that went down to kids as low as six years old. [00:04:38] Speaker 05: Is there any finding, I've looked at these and I want to make sure you haven't missed one. [00:04:42] Speaker 05: I didn't see one that addressed prepubescent athletes where there wasn't at least some partial puberty blockers as opposed to the plaintiffs in this case who had [00:04:56] Speaker 05: Sure. [00:04:57] Speaker 00: So in legislative finding number nine, there's a study cited by Dr. Hilton that has two different cohorts of students. [00:05:04] Speaker 00: There are 85,000 children in Australia from ages nine up to 17, and then 424,000 students in Greece down from age six up to 18. [00:05:13] Speaker 05: And those are partial puberty blockers, right, in those studies? [00:05:16] Speaker 00: Yeah, so kids at ages 6 up to, let's just say, 11 would not have any puberty blockers at issue. [00:05:24] Speaker 00: So they include pre-puberty kids in those studies. [00:05:27] Speaker 00: History also includes post-puberty, but the findings were consistent across ages that boys were faster and stronger and had athletic advantages. [00:05:35] Speaker 00: And those studies were considered by the legislature. [00:05:38] Speaker 00: And if you also look at the legislative transcripts, the plaintiffs admitted the Senate transcript into the record below. [00:05:45] Speaker 00: There was no conflicting scientific evidence showing that there was not a competitive advantage for biological poison or growth at any level. [00:05:55] Speaker 05: So your position is that we should disregard the district court's findings in fact? [00:05:59] Speaker 00: Our position is that the district court clearly erred by finding that there was no difference. [00:06:09] Speaker 05: She clearly erred because? [00:06:11] Speaker 00: It clearly erred because there was there was evidence in the record those two studies I just mentioned we also had the four expert reports showing including Arizona specific track data in middle school that there was a difference and the district court recognized that there were small or minimal differences and and then still reached we believe in incorrect includes under enemy scrutiny this infected its substantial real [00:06:34] Speaker 00: relationship analysis. [00:06:35] Speaker 05: The district court found that to the extent there were differences, there were small differences that weren't attributed to innate biological differences. [00:06:44] Speaker 05: Why was she wrong about that? [00:06:47] Speaker 00: We believe that that finding was based on speculation about atmospherics, why boys might be, you know, have different advantages over girls that were unrelated to physiological differences. [00:06:58] Speaker 05: But even if that were true... Didn't she have evidence in the record to that effect? [00:07:01] Speaker 05: We can't retry the facts here, but we've got, you know, the standard for our deference to the findings, in fact, from the district court. [00:07:08] Speaker 05: Of course. [00:07:09] Speaker 00: And the district court did have an expert report from an endocrinologist, the plaintiff's put in, that did testify to those things. [00:07:15] Speaker 00: But we think even if you accept that it's true, that there are non-physiological reasons for boys having an advantage over girls, that the legislature would still be justified in creating this difference between sports teams. [00:07:28] Speaker 00: And when we look at the HECOX analysis under intermediate scrutiny, if the court chooses to apply that in this case, the court looked when it [00:07:37] Speaker 00: It recognized and acknowledged that there was an important governmental interest in the Idaho law, and that same interest would exist here. [00:07:44] Speaker 00: It was a substantial relationship that the Hecox Court faulted in Idaho's law, and it based it on three different things. [00:07:51] Speaker 00: The scientific evidence, the [00:07:52] Speaker 00: anecdotal evidence and then the kind of atmospherics of the Lost Passage. [00:07:57] Speaker 00: And we've been discussing the scientific evidence here. [00:08:01] Speaker 00: We believe that that shows overwhelming support for separation. [00:08:05] Speaker 00: And then on the anecdotal evidence, again, there was evidence in Arizona of a historic problem and that was currently ongoing. [00:08:14] Speaker 04: What is the historic problem? [00:08:16] Speaker 00: Well, again, going back to the 1980s, that there had been boys trying to play in girl sports, and that was evidence that... Well, why was it a problem? [00:08:23] Speaker 05: They had a status quo that accounted for this, right? [00:08:28] Speaker 00: The status quo, again, we think the status quo was inconsistent with preventing biological males from playing with biological females, for the reasons I just mentioned, you know, not having a little bit of... But didn't Arizona allow transgender females to play in male sports? [00:08:45] Speaker 02: They did, Your Honor. [00:08:48] Speaker 00: Just like they would biological girls who identify as girls to play over in male sports. [00:08:58] Speaker 00: I understood what you meant, Judge Ezra. [00:09:01] Speaker 00: But for those reasons, we think that this case differs from the Hecox. [00:09:06] Speaker 00: went out of his way to repeatedly say that it was narrow, it was extraordinarily fact-bound, that it was just based on the record before the district court. [00:09:14] Speaker 00: And we think that the evidence in the record below is much stronger in this case than it was in the Idaho case. [00:09:22] Speaker 04: Do you have any examples of Arizona athletes that have complained about unfairness, about competing against a transgender girl? [00:09:33] Speaker 00: So there was a mom who testified to the Arizona Senate. [00:09:36] Speaker 00: She also co-signed an amicus brief filed by the Arizona Women of Action. [00:09:42] Speaker 00: She said her daughter was playing in school basketball and that there was a biological boy in the other team who was dominating the spirits of the girls on both teams. [00:09:51] Speaker 00: She presented that as a second [00:09:53] Speaker 00: witness to the Arizona Senate, and then she repeated her story in the amicus brief to this court. [00:09:59] Speaker 00: So the Senate did have evidence before it of girls being displaced by non-biological girls. [00:10:09] Speaker 00: If I can just quickly turn to the Title IX issue. [00:10:14] Speaker 00: We [00:10:15] Speaker 00: We contend that the court erred as a matter of law on this because the definition of sex when Title IX was passed meant biological sex. [00:10:24] Speaker 00: We think the Eleventh Circuit's decision in Adams does a good job of looking at the different dictionaries that were in existence at the time and concluding that sex did mean biological. [00:10:34] Speaker 00: The Title IX regulations only make sense if it does mean biological because you're looking at sports. [00:10:42] Speaker 00: and living facilities and same-sex institutions. [00:10:47] Speaker 00: There are references to both sexes or the other sex. [00:10:51] Speaker 00: So we think based on the plain text, both of the word itself as well as context and the surrounding parts of the statute and regulations that sex only means biological sex. [00:11:01] Speaker 05: Council, did you want to reserve some time? [00:11:03] Speaker 00: I did want to reserve time. [00:11:04] Speaker 05: We've got four minutes on the clock for you, a little more than that. [00:11:07] Speaker 00: If there are no further questions, I'll save that for rebuttal. [00:11:10] Speaker 05: Okay, thank you. [00:11:20] Speaker 07: Good morning, Your Honors, and may it please the Court, Maria Sims, on behalf of Arizona's Superintendent of Public Instruction, Tom Horne, and I will be talking about why the equitable factors support the law and why girls are being harmed by the preliminary injunction. [00:11:34] Speaker 07: Allowing the district court's ruling to stand sends a message to a generation of young girls that no matter how talented they are or how hard they work, it simply doesn't matter. [00:11:45] Speaker 07: Because of undisputed biological realities that my colleague just spoke about. [00:11:49] Speaker 05: Counsel, how can you say they're undisputed biological realities? [00:11:52] Speaker 05: You're losing me right there. [00:11:53] Speaker 05: Can you back up and help me with that assertion? [00:12:01] Speaker 07: Yes, Your Honor. [00:12:01] Speaker 07: We presented an ocean of expert testimony about the scientific reality creepily [00:12:03] Speaker 07: that shows that there are competitive advantages that cannot be suppressed by puberty blockers. [00:12:09] Speaker 05: And if I might add, what about the findings that district court made when you say there was an ocean of evidence? [00:12:14] Speaker 05: Help me out with the findings and you know the standards, I don't want to waste your time. [00:12:18] Speaker 05: The deference we must owe to those findings. [00:12:20] Speaker 05: So could you please address that? [00:12:21] Speaker 07: Yes, Your Honor, and you have the exact same findings. [00:12:24] Speaker 07: I'll just point out to the Court that the evidence was all written testimony that you have available to you to review just as well. [00:12:32] Speaker 06: And yes, the Court did make those findings, but we believe, as my colleague suggested, that the Court erred in dismissing on a plan and not considering the overwhelming scientific evidence. [00:12:45] Speaker 07: Here are a few articles that show that those advantages cannot be suppressed sufficiently. [00:12:50] Speaker 04: talking about if you go to the language [00:12:55] Speaker 04: of the court. [00:12:57] Speaker 04: It says, the data relied on by Horn merely observes phenomena across a population sample in isolated areas and does not determine a cause for what is observed. [00:13:12] Speaker 04: What's wrong with that finding? [00:13:14] Speaker 07: Well, I think that you're talking about perhaps the atmospheric circumstances that the court relied on that was mentioned earlier. [00:13:23] Speaker 04: Well, I think the court is [00:13:25] Speaker 04: taking a look at all of the evidence that was offered, and basically saying, yeah, we've got this from here and that from there, and we have isolated examples and isolated areas. [00:13:40] Speaker 04: But that doesn't establish a baseline, is what the court is saying. [00:13:45] Speaker 04: And I don't know why that is clearly erroneous. [00:13:51] Speaker 07: We would disagree with the court that it is isolated incidents as we have four experts with extensive studies. [00:14:00] Speaker 07: My colleague mentioned the studies, the pre-puberty studies without puberty blockers of the children having boys having competitive advantages. [00:14:09] Speaker 07: studies in Australia and Greece that show that those advantages cannot be suppressed by what I would call experimental puberty blockers. [00:14:19] Speaker 07: And in fact, just this week, England's National Health Service banned puberty blockers for children 18 and under. [00:14:30] Speaker 07: Well, but this is in the public realm. [00:14:33] Speaker 07: Are you asking us to take judicial notice? [00:14:35] Speaker 07: Yes, we would love the court to take judicial notice. [00:14:36] Speaker 07: File a motion for that. [00:14:37] Speaker 07: We can supplement. [00:14:38] Speaker 07: We'd be happy to. [00:14:39] Speaker 07: We really need to follow the rules. [00:14:41] Speaker 07: I understand. [00:14:42] Speaker 07: I'm trying to, Your Honor. [00:14:43] Speaker 07: But I think that that points out that it supports what our experts have already said in the record and why we believe that the court [00:14:50] Speaker 07: clearly aired in dismissing those important studies that show these puberty blockers are experimental. [00:14:57] Speaker 07: They're not safe and they're unreliable. [00:14:59] Speaker 05: And we even put in... I think you have a point that the science in this area is, I will say, evolving or it's not. [00:15:06] Speaker 05: done yet, for lack of a better term. [00:15:10] Speaker 05: So you have to sort of transplant that onto the realm that we're in and the rules that we have to abide by. [00:15:18] Speaker 05: So Judge McEwen has asked you questions I guess I have as well about the standard. [00:15:22] Speaker 05: We have to look at the record that we've got, which is fixed, and you're predicting some after [00:15:29] Speaker 05: events that have occurred later, so we're the preliminary injunction stage, so we're going to be strict about looking at what the district court had before it, and we need to figure out why, whether there's merit to your contention that her findings, in fact, were clearly erroneous. [00:15:44] Speaker 07: Your point is well taken, Your Honor, and I don't think that the court needs to become a scientific expert in order to decide this case at the preliminary injunction stage and on appeal, because we have also put in expert testimony from a coach that is undisputed, and we believe that a coach who's on the field as a practical matter, who's seeing these competitive advantages on a daily basis, telling me, forgive me for interrupting, but time is short, and you're telling me why the district court should have been persuaded by that evidence. [00:16:13] Speaker 05: So what you have to convince me is that she had a mix of evidence and that her findings were clearly erroneous. [00:16:20] Speaker 05: What's your best shot at that please? [00:16:22] Speaker 07: Well, I would say that I would invite the court to look at Coach Blade and see that as a practical matter we have a coach who's out there on the field seeing these competitive advantages topple girls off the winner's podium every day and we know that the preliminary injunction in this case and in other cases where preliminary injunctions have been issued are already accomplishing that goal where girls are losing [00:16:46] Speaker 07: You want me to look at ER, where in the record? [00:16:49] Speaker 07: Coach Blade is going to say that girls are toppled every day. [00:16:52] Speaker 07: What is it? [00:16:53] Speaker 07: I'm sorry, it's Coach Blade's expert testimony. [00:16:57] Speaker 07: I'd have to look at my notes for the exact reference for you. [00:17:00] Speaker 05: That's fine. [00:17:00] Speaker 05: I can find the testimony. [00:17:01] Speaker 05: I think I've read the testimony. [00:17:02] Speaker 05: But your contention is that it supports the proposition that what is toppled every day? [00:17:08] Speaker 05: I'm sorry. [00:17:08] Speaker 05: I missed part of that in the echo in this room. [00:17:11] Speaker 07: that girls are losing, they are competing basically, the preliminary injunction is having girls compete for second place, which can mean the difference between winning and losing, victory and defeat, college scholarships and not going to college at all, which are significant. [00:17:26] Speaker 07: Now the plaintiffs in this case were [00:17:27] Speaker 07: want to say that these differences are minimal. [00:17:30] Speaker 07: I think the court mentioned that earlier when talking to my colleague. [00:17:34] Speaker 07: But when you're talking about seconds and inches in the context of competitive sports, those differences are significant and meaningful. [00:17:42] Speaker 05: We appreciate your argument. [00:17:43] Speaker 05: You're now significantly over your time. [00:17:45] Speaker 05: That clock is going back up now. [00:17:47] Speaker 05: That's all right. [00:17:48] Speaker 05: You don't owe me an apology, but it's my job to try to keep the trains running on time here. [00:17:51] Speaker 05: So I'm going to stop you there. [00:17:53] Speaker 05: There are no further questions. [00:17:54] Speaker 05: Thank you, Your Honor. [00:17:55] Speaker 05: I appreciate the court's attention. [00:17:56] Speaker 05: Not at all. [00:17:57] Speaker 05: We'll hear from opposing counsel, please. [00:17:59] Speaker 05: If you could keep an eye on the time, I'd appreciate it. [00:18:09] Speaker 01: Good morning, Your Honours, and may it please the Court, Justin Rassy of Debovoise and Plimpton, appearing at the Plaintiff's Appellees, and joining me at the bar table are Ms Berg and Ms Zimmerman. [00:18:20] Speaker 01: I want to start with the question that Judge McHugh imposed. [00:18:23] Speaker 01: Was there a problem in Arizona prior to the enactment of this legislation? [00:18:28] Speaker 01: And the answer to that is no. [00:18:29] Speaker 01: In fact, Senator Warren Peterson, represented by Mr. Smith, testified on the legislative record that he was not aware of a specific instance where any girl in Arizona had lost a place on the team prior to the enactment of that legislation. [00:18:47] Speaker 01: That's in the excerpts of record at page 16. [00:18:50] Speaker 03: Well, losing a place on the team is not winning. [00:18:53] Speaker 03: I mean, I think that your opposing counsel's argument is that cisgender athletes have a disadvantage against transgender athletes. [00:19:14] Speaker 03: Even if it's de minimis, de minimis counts. [00:19:18] Speaker 03: That was her argument. [00:19:20] Speaker 03: So I don't think it was losing a place on the team, it was winning, or having an opportunity to win. [00:19:27] Speaker 01: Judge Esra, if a girl, we would say that if a girl... I'm not saying I agree with her, but I'm just saying that's her argument. [00:19:33] Speaker 01: I understand the argument, but if there was no example of a single girl ever displacing another girl from a team, it follows that there is also no issue of a transgender girl ever depriving another girl of winning on that team. [00:19:47] Speaker 04: They take the position, I think it was in the opening brief, that even one transgender girl who might displace a cisgender girl would result in discrimination. [00:20:03] Speaker 04: Do you agree with that position in terms of the framework for looking at this case? [00:20:07] Speaker 01: No, I don't agree with that position and perhaps I can come back to the steps in the analysis that we say this court should follow. [00:20:14] Speaker 01: The first step is that heightened scrutiny should apply. [00:20:19] Speaker 01: We do not accept the proposition that this is an under-inclusiveness challenge that somehow subverts this court's decision in HECOX. [00:20:26] Speaker 01: The Ninth Circuit has been clear across multiple cases, Karnosky, Hecox, Dovey, Snyder, that where a statute discriminates against a transgender person, it triggers heightened scrutiny. [00:20:38] Speaker 01: That is a settled question. [00:20:40] Speaker 01: This law clearly discriminates against transgender women and girls, as the District Court correctly found. [00:20:49] Speaker 01: This law applies to every single transgender woman and girl in Arizona. [00:20:54] Speaker 01: It takes this concept of biological sex, it fixes that concept at birth or possibly even in utero, and it says if you are male under that concept, then you cannot play on a girl's sports teams. [00:21:08] Speaker 05: Proposing counsel makes an argument here that didn't appear in HECOX, and that is the argument, as you know, that this is a remedial statute and under-inclusive. [00:21:16] Speaker 05: What is your response to that, please? [00:21:18] Speaker 01: There is nothing remedial whatsoever about this statute. [00:21:21] Speaker 01: This statute does not do anything that did not already exist in the state of Arizona. [00:21:27] Speaker 01: There have been separate teams for boys and girls in Arizona since this court's decision in Clark in 1982, 40 years ago. [00:21:34] Speaker 01: There's been equal funding for girls and women's sports teams in Arizona since Title IX was passed in 1972. [00:21:41] Speaker 01: All that this statute does is abrogate the existing position in Arizona where transgender girls could play on girls' sports teams. [00:21:50] Speaker 01: It is clear on the face of the statute that it is designed to target and discriminate against transgender women and exclude them from girls' sports teams. [00:22:02] Speaker 01: And in each of the six cases that appellants rely upon for this under-inclusiveness theory, they are so inapposite. [00:22:10] Speaker 01: If we look at Jana Rock, it's a case about affording certification to minority businesses so they can access government contracts. [00:22:17] Speaker 01: Huhuli and Ariyoshi is about affording and distributing land and income to the indigenous people of Hawaii. [00:22:24] Speaker 01: Shilburn Quable is about a bail reform statute that was designed to reform bail bondsman position in Illinois, which the Supreme Court described as being in full and odorous bloom. [00:22:36] Speaker 01: Each of these examples are remedial statutes or social welfare schemes or affirmative action programs where the legislation was distributing some sort of benefit or remediating some sort of discrimination. [00:22:49] Speaker 01: That is not this statute, because the statute did nothing to change the existing position in the state of Arizona. [00:22:59] Speaker 05: Opposing counsel argues, sir, that even if you're right and intermediate scrutiny applies, that this was imperfectly tailored. [00:23:08] Speaker 05: Can you speak to that? [00:23:10] Speaker 01: No, the district judge did precisely what this court instructed in HECOX and applied intermediate scrutiny to the ban before her. [00:23:19] Speaker 01: The district judge was expressly clear in paragraph, I think it's 157 of her analysis, which says that the legislature does not need to choose the wisest alternative under intermediate scrutiny. [00:23:33] Speaker 01: I just want to make sure that I have the right reference for that 157. [00:23:38] Speaker 01: That's correct. [00:23:40] Speaker 05: I think it is. [00:23:42] Speaker 01: It was. [00:23:42] Speaker 01: It was. [00:23:43] Speaker 01: And what the district judge there was saying that looking at this legislation, its text, its effect, its consequence, its structure, and in considering the record before it, this legislation was overbroad. [00:23:58] Speaker 01: It applies to every single transgender girl and women in Arizona, as young as kindergarten, in every single level of sports competition. [00:24:06] Speaker 01: in every sport without any regard whatsoever to an individual's circumstances. [00:24:14] Speaker 01: And it relies upon the erroneous assumption that transgender status is a proxy for athletic ability, which it is not, which this court rejected in HECOX. [00:24:24] Speaker 01: And the district judge therefore did not rely, did not require strict scrutiny, did not require perfect tailoring. [00:24:32] Speaker 01: The district judge said considering this statute before me and the record that I have, it is so over broad and the state has not discharged its burden of proving that it was substantially related to legitimate governmental objectives. [00:24:47] Speaker 04: But you've heard their argument and it really consists [00:24:50] Speaker 04: looking at the studies cited by the legislature and a large number of studies and we of course give certain deference to the legislative findings per se but you know they definitely are the various studies but we also have the district court finding and even acknowledging some [00:25:14] Speaker 04: absence of evidence in terms of making a firm decision. [00:25:18] Speaker 04: How does that play in these two competing findings in a preliminary injunction proceeding? [00:25:26] Speaker 01: The district judge is required to take into account the legislative findings which were in the record and the expert evidence which is in the record. [00:25:34] Speaker 05: What's their strongest study? [00:25:37] Speaker 01: I'm sorry? [00:25:37] Speaker 05: What's opposing counsel's strongest study? [00:25:41] Speaker 01: I don't think that any of their studies are strong, Judge Kristen, because none of their studies go to the specific question of whether or not pre-pubertal boys and girls have physiological differences between them. [00:25:53] Speaker 01: And I heard Mr. Smith say this morning that, in fact, there is evidence from plaintiffs, the evidence of Dr. Schumer. [00:26:01] Speaker 01: Dr. Schumer is a pediatric endocrinologist. [00:26:04] Speaker 01: He has extensive experience. [00:26:06] Speaker 01: He's treated over 600 transgender children. [00:26:09] Speaker 01: And his evidence was [00:26:11] Speaker 01: Twofold. [00:26:12] Speaker 01: First, that there are no significant differences in athletic performance prior to puberty. [00:26:18] Speaker 01: And that is because the scientific consensus, the weight of the medical evidence is that physiological differences emerge as a result of exposure to circulating testosterone that occurs during male puberty. [00:26:33] Speaker 01: As a result, children that have not gone through male puberty or persons that will never go through male puberty because they've either taken puberty blockers or are taking cross-sex hormones, hormone replacement therapy, will never have those physiological advantages that are newer during male puberty. [00:26:52] Speaker 05: One way this case differs is that the plaintiff in Hecox, of course, had experienced puberty and was taking hormone therapy to suppress circulating testosterone levels. [00:27:03] Speaker 05: But I think the record in this case is that both of these plaintiffs had not experienced puberty and will not. [00:27:08] Speaker 05: Is that correct? [00:27:09] Speaker 01: So both of my clients are now taking puberty blockers. [00:27:13] Speaker 01: Megan, who is 16, was already taking puberty blockers from the time this statute was enacted. [00:27:20] Speaker 01: Jane started taking them. [00:27:21] Speaker 05: Setting aside the statute, I'm trying to make sure these two plaintiffs did not experience puberty. [00:27:26] Speaker 01: They did not and they will not. [00:27:28] Speaker 05: The record explains this, I think? [00:27:30] Speaker 01: It does. [00:27:32] Speaker 01: It's in the declarations of both the parents, the mothers of both children, which testify to the fact that they are taking puberty blockers and cross-sex hormones. [00:27:43] Speaker 05: Another way that this case differs from HECOX is the scope of this injunction. [00:27:47] Speaker 05: Would you speak to that? [00:27:48] Speaker 05: Because I want to make sure that opposing counsel gets a chance to respond to this as well. [00:27:53] Speaker 01: We brought this case as an as-applied challenge and the district judge correctly tailored this injunction to these two plaintiffs only. [00:28:02] Speaker 01: The district judge's findings make clear that it's a prohibitory injunction. [00:28:06] Speaker 01: It only prevents the enforcement of this statute as against Jane and Meghan. [00:28:10] Speaker 01: This case was not conducted as a facial challenge and that is because the Supreme Court and Ninth Circuit has said that as-applied challenges are a favorable prudential vehicle for constitutional determinations. [00:28:20] Speaker 01: This judge in no way, the district judge in no way, decided this on a facial basis and the injunction here does not apply more broadly as the issue came up in HECOX. [00:28:32] Speaker 01: As I understand the concern in HECOX, there was a question there around whether or not the injunction applied to every transgender woman and girl in the state of Idaho, whereas here it is clear it only applies to these two plaintiffs and appellants have not argued otherwise. [00:28:45] Speaker 05: I think Judge Ezra had a question and I interrupted. [00:28:48] Speaker 03: No, no, no, that was fine. [00:28:52] Speaker 03: It seems to me, what sports remind me now that do Jane and Megan propose to engage in? [00:29:02] Speaker 01: Megan is volleyball and Jane is soccer, cross-country, and basketball. [00:29:07] Speaker 01: So these are pure team sports? [00:29:09] Speaker 01: Correct. [00:29:10] Speaker 01: Okay. [00:29:11] Speaker 01: It seems to me... Sorry, Judge Ezra, I don't mean to interrupt. [00:29:14] Speaker 03: Cross-country... Cross-country is not, obviously. [00:29:17] Speaker 03: Cross-country is more of an individual sport, but you can have teams. [00:29:21] Speaker 03: Yes. [00:29:21] Speaker 03: In virtually every... [00:29:22] Speaker 03: But it seems to me that it's of greater concern in individual competitive sports or sports where people play as individuals. [00:29:38] Speaker 03: You might aggregate their results, ultimately. [00:29:42] Speaker 03: But for instance, shot put, track, running, those kinds of sports versus, say, basketball. [00:29:50] Speaker 03: where you might get a transgender female who happens to be six feet eight or six feet nine playing on a basketball team. [00:30:05] Speaker 03: I mean, having somebody that's tall like that is not necessarily going to give one team over another a huge competitive advantage, but you have very tall people anyway. [00:30:18] Speaker 03: Believe me, San Antonio Spurs have Wembiana and it hasn't gone well. [00:30:27] Speaker 01: All I would say to that is that simply knowing that a person is transgender tells you nothing about their athletic ability. [00:30:34] Speaker 01: A person can be a transgender girl, they might be woeful at sports as I am, they might be wonderful at sports as the San Antonio Spurs wish to be, but all I wish to say is that this law rests on the erroneous assumption that transgender status is a proxy for athletic ability and it is simply not. [00:30:52] Speaker 01: I'd also just like to obviously briefly address to the extent there was any question around this latest evidence from England on puberty blockers. [00:31:00] Speaker 01: It's not part of the record. [00:31:01] Speaker 01: This court should not take judicial notice of that. [00:31:03] Speaker 01: Medical treatment for transgender individuals is not an issue in this case, and we would ask the court not to take judicial notice of that. [00:31:10] Speaker 03: Would you have opposition to their filing a motion to have it be taken into consideration, giving you an opportunity to respond? [00:31:20] Speaker 01: If the court wishes to hear the issue that way, we have no opposition to it. [00:31:23] Speaker 01: We would say it is totally irrelevant because the... Are you talking about... I'm not sure. [00:31:29] Speaker 05: I want to make sure we understand this. [00:31:30] Speaker 05: I invited opposing counsel after saying that we're not going to consider anything outside of the record. [00:31:34] Speaker 05: If she wanted to file a motion for judicial notice, she could do that. [00:31:37] Speaker 05: So are you now saying you wouldn't oppose that motion or you wouldn't oppose us considering that motion or what is it you're telling us? [00:31:43] Speaker 01: I don't think that motion is necessary, but we are prepared to oppose it if the court wishes to grant that right. [00:31:48] Speaker 01: I guess we should see what it is first, right? [00:31:52] Speaker 05: Make sure I clarify what it is you were saying you didn't oppose. [00:31:54] Speaker 01: But fundamentally, it seems to be appellant's case this morning that they wish to relitigate factual issues that the district judge fully and fairly considered. [00:32:03] Speaker 05: Well, I think that we pushed back on that pretty hard. [00:32:08] Speaker 05: But I need to push back on you. [00:32:10] Speaker 05: We do owe deference. [00:32:11] Speaker 05: We have this mixed bag of findings. [00:32:14] Speaker 05: I don't know if finding is the right word. [00:32:15] Speaker 05: But we have this legislative record, as well as the district court's findings. [00:32:20] Speaker 05: And opposing counsel has argued that the district court clearly erred because she disregarded. [00:32:25] Speaker 05: I think that's the right verb. [00:32:26] Speaker 05: I think that's the verb that was used by opposing counsel, disregarded part of the record. [00:32:31] Speaker 05: Do you want to respond to that? [00:32:33] Speaker 01: Clear error is not shown by simply pointing to conflicting pieces of evidence in the record. [00:32:40] Speaker 05: Yes, that's correct, and I think opposing counsel would agree with that. [00:32:43] Speaker 05: That wasn't her position. [00:32:44] Speaker 05: Her position was that the District Court disregarded some evidence. [00:32:47] Speaker 01: The District Court did not disregard any evidence. [00:32:50] Speaker 01: In fact, the District Judge took a forensic approach to this evidence. [00:32:53] Speaker 01: The factual findings indicate that. [00:32:55] Speaker 01: The factual findings, particularly at paragraph 157 and 158, show [00:33:01] Speaker 01: In detail, all of the failings on the state's part when it came to their evidentiary burden. [00:33:07] Speaker 01: It said that the state had failed to prove that prior to puberty, there were physiological differences between boys and girls. [00:33:14] Speaker 01: The state had failed to prove that there was any issue of competitive fairness or safety that had been presented by transgender girls in the state of Arizona. [00:33:23] Speaker 01: The district judge took into account each of the expert reports submitted by both sides, weighed that evidence, and came to factual findings that were open to the district judge on the record. [00:33:35] Speaker 01: It is not error, much less clear error, that the district judge credited the findings of Dr. Schumer, a pediatric endocrinologist with extensive experience. [00:33:45] Speaker 05: If we think that are left with the impression from this record, the finite record that we have, that the science in this area is evolving, which way does that cut? [00:33:56] Speaker 01: It would still come in plaintiff's favor because the district judge recognized, I think, that further factual issues will need to be fleshed out as this case proceeds on the merits, that each party will have the opportunity to take discovery, conduct depositions of the experts, present their case at trial. [00:34:17] Speaker 01: The district judge was correct on the record before her that what she had in reviewing the statute against that record that it failed intermediate scrutiny and this court should affirm that the district judge did precisely what she was supposed to do on a preliminary injunction record. [00:34:33] Speaker 01: And I just want to be clear about the two studies that were referenced by both Mr. Smith and Ms. [00:34:38] Speaker 01: Sims coming out of Australia and Greece. [00:34:40] Speaker 01: And I just want to be crystal clear, neither of those studies controlled the persons that were transgender, and neither of those studies controlled the persons that were taking puberty blockers. [00:34:51] Speaker 01: They are simply observational studies across many children of many different circumstances. [00:34:57] Speaker 01: And that's really what Dr. Schumer was driving at. [00:34:59] Speaker 01: He says, [00:35:00] Speaker 01: that to the extent you can show some differences, however minimal, in some discrete activities between boys and girls, the evidence adduced does not show its cause. [00:35:13] Speaker 01: It does not explain its cause. [00:35:14] Speaker 05: It could be... You're talking about boys and girls pre-puberty? [00:35:18] Speaker 01: Boys and girls pre-puberty, yes. [00:35:20] Speaker 01: It could be that boys are more encouraged to play sports and therefore have more opportunities. [00:35:25] Speaker 01: It could be because of social factors. [00:35:27] Speaker 01: We simply do not know and the state failed to discharge its burden on that point and fatally... Let me just make sure that I'm understanding. [00:35:34] Speaker 05: You think the state failed to discharge its burden because it didn't show that any differences are attributable to inherent biological advantages? [00:35:43] Speaker 01: It failed to justify this law by showing that it was substantially related to legitimate governmental objectives and it failed to show that there is a need or that it is substantially related to fairness in women's sports or to safety to ban every single transgender girl in every single sport at every age level in every level of competition without regard to their individual circumstances. [00:36:09] Speaker 01: That is what the fate state failed to do, and that is why the law does not survive heightened scrutiny. [00:36:15] Speaker 01: And just in my remaining time, I wanted to briefly address both Title IX. [00:36:20] Speaker 04: Oh, good, because I was about to ask you about Title IX. [00:36:23] Speaker 04: So go ahead. [00:36:24] Speaker 01: If you have a question, I'm happy. [00:36:25] Speaker 04: Well, I mean, the question I have is really whether there is a claim there under Title IX. [00:36:32] Speaker 04: We've had, of course, ins and outs of [00:36:36] Speaker 04: things being withdrawn. [00:36:39] Speaker 04: You're on the referencing Department of Education guidelines? [00:36:45] Speaker 04: Yes, right. [00:36:46] Speaker 04: And so I think the question is whether the state would have really been on clear notice about the funding issue tied to this. [00:36:55] Speaker 04: And that relates also to, well, what does sex mean in Title IX and is that different than Title VII? [00:37:01] Speaker 04: So that's a lot of questions, but they're all packaged into, do you really have a Title IX claim? [00:37:07] Speaker 01: Yes, we do. [00:37:08] Speaker 01: In my remaining minute, I'll try and take on all of those questions. [00:37:10] Speaker 01: The first one is, the state was on notice because the Supreme Court had decided Bostock in 2020, two years prior to this statute being enacted. [00:37:19] Speaker 01: And it has long been the law in this circuit. [00:37:23] Speaker 01: Then Title IX is construed consistently with the protections in Title VII. [00:37:28] Speaker 05: But where does Title IX unambiguously state, and I think it would have to unambiguously state, that a recipient of federal funds cannot exclude transgender females? [00:37:39] Speaker 01: We disagree. [00:37:39] Speaker 01: The Supreme Court said in Bostock that it is... Which part of that do you disagree with? [00:37:43] Speaker 01: That it would need to specify... Unambiguously? [00:37:46] Speaker 01: Unambiguously. [00:37:47] Speaker 01: Sex includes gender identity. [00:37:49] Speaker 01: The Supreme Court said in Bostock that it is impossible to discriminate against a person [00:37:54] Speaker 01: based on their transgender status without discriminating against them on the basis of sex. [00:38:00] Speaker 01: And that is because gender identity is a part of sex. [00:38:04] Speaker 01: It is the wrong prism to view gender identity as a separate and distinct concept from sex. [00:38:10] Speaker 01: They are interrelated concepts. [00:38:13] Speaker 05: As used in Title IX. [00:38:14] Speaker 05: That's your position. [00:38:16] Speaker 01: As in Title IX. [00:38:18] Speaker 01: I mean the Supreme Court's decision in Bostock with Title VII, but this court's decision in Dovey Snyder, in Grabowski, both held that we construe in the circuit Title IX protection consistently with Title VII, and those cases extend, and Grabowski certainly extended Bostock to the Title IX context. [00:38:35] Speaker 05: You're over time, so let me just see if you've answered Judge McEwen's question. [00:38:38] Speaker 05: Thank you. [00:38:39] Speaker 05: I think we've got your answer. [00:38:41] Speaker 01: Thank you, Your Honours. [00:38:41] Speaker 01: For these reasons, this Court should affirm. [00:38:43] Speaker 05: Thank you. [00:38:49] Speaker 05: We will hear rebuttal. [00:38:51] Speaker 00: Thank you, your honor. [00:38:52] Speaker 00: I'd like to start with the questions that the court had about what happens when there's a conflict between the legislative record and the district court's record. [00:39:00] Speaker 00: Our position would be that the court should give deference in that case to the legislative record, and here's why. [00:39:04] Speaker 00: I think the Sixth Circuit decision in the Skrimeti case last September does a really good job of explaining that in our system of government that the legislators are supposed to be these laboratories of democracy at the state level. [00:39:16] Speaker 00: And this court, as I mentioned in my earlier remarks, has this precedent, especially in the Second Amendment context, saying that when there is a conflict in the legislative record, the court is supposed to let the legislature make those decisions and not sit as a super legislature in second-guessing legislative line. [00:39:32] Speaker 05: Judge Sutton's opinion in the Sixth Circuit case, though, they had rational basis tests. [00:39:37] Speaker 05: So it seems to me to be a really different problem that they were presented with. [00:39:42] Speaker 00: It's a comparable statute that was arising out of Kentucky and Tennessee. [00:39:46] Speaker 00: It's in the same space. [00:39:47] Speaker 00: It did apply rational basis review. [00:39:49] Speaker 00: We agree with that analysis, of course. [00:39:51] Speaker 00: But we think that it's analysis on looking to legislatures. [00:39:55] Speaker 00: It talks about, independent of rational basis, how states are deciding this difficult question differently. [00:40:02] Speaker 00: That you have some states that have certain protections on one side and different protections on the other. [00:40:08] Speaker 05: Yes, but it also advocates that we should sit it out. [00:40:12] Speaker 05: and allow the states to work this out as I indicated. [00:40:17] Speaker 05: It seems to me, I'm just one voice, that this science may still be evolving. [00:40:21] Speaker 05: And the Sixth Circuit advocated that the court should stay out of it. [00:40:25] Speaker 05: We have a controversy here presented that we have to rule on, don't we? [00:40:29] Speaker 00: There is a controversy, and all I'm saying is that when there's this conflict, the court should, when it looks between the findings the district court made in the legislature, that the legislature should be given the tiebreaker in that situation. [00:40:41] Speaker 04: I'm not sure it says that. [00:40:43] Speaker 04: I'm looking at the Supreme Court case of Gonzalez versus Carhartt, and they say although we review legislative findings under a differential standard, [00:40:51] Speaker 04: The court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. [00:40:59] Speaker 04: So tipping the balance doesn't really appear in the Supreme Court language. [00:41:07] Speaker 04: I understand why there might be a preferred or a preference for that. [00:41:13] Speaker 04: How do you get around this clear Supreme Court language? [00:41:16] Speaker 04: Really, it's back to the courts, it's saying. [00:41:19] Speaker 00: Sure. [00:41:19] Speaker 00: And we think, as I was arguing earlier, that even if the court takes an independent view, that there would still be reason to uphold this law under an intermediate scrutiny analysis or rational basis for that matter. [00:41:30] Speaker 05: The district court was required to take an independent view, wasn't she? [00:41:33] Speaker 00: Yeah, the district court should have. [00:41:35] Speaker 00: All right. [00:41:36] Speaker 00: I think I've understood you. [00:41:37] Speaker 00: I'm not trying to be difficult. [00:41:38] Speaker 05: I want to make sure I understood your point. [00:41:39] Speaker 00: I appreciate that, Judge Kristen. [00:41:43] Speaker 00: The argument that opposing counsel made was that the legislature failed to take into account individual circumstances and this gets to our perfect fit argument that under any media scrutiny there's a long line of Supreme Court cases in Wynn and Ward versus Rock against racism and United States versus Edge Broadcasting where the court's supposed to look at not how a law works in individual circumstances but how it works to advance the government interest overall. [00:42:06] Speaker 00: And here, the overall interest is being advanced by protecting all the women in girls' sports. [00:42:14] Speaker 00: And the court in Nguyen, VI&S, has a good analysis. [00:42:19] Speaker 00: That case involved fathers being treated differently than mothers when it came to citizenship. [00:42:24] Speaker 00: And the court said that Congress could have drawn the line differently, but perhaps it chose not to because it would be subjective or intrusive or involve very difficult burdens of proof. [00:42:35] Speaker 00: And it upheld an objective standard because Congress had that authority. [00:42:40] Speaker 00: And the court said in my closing seconds that to fail to acknowledge even our most basic biological differences risk making the guarantee of equal protection superficial. [00:42:49] Speaker 00: And we believe that the record the legislature had before it supports a finding that the biology matters and that the legislature judgment should be upheld and the lower court reversed. [00:43:00] Speaker 05: Thank you. [00:43:00] Speaker 05: Thank you all. [00:43:01] Speaker 05: Thank you all for your excellent advocacy. [00:43:03] Speaker 05: We appreciate it very much. [00:43:05] Speaker 05: And we're going to take this important case under advisement. [00:43:07] Speaker 05: We're also going to take a five minute break before we hear the last argument on the record today.