[00:00:00] Speaker 04: Mr. Zarian, did I pronounce your name correctly? [00:00:03] Speaker 04: Wonderful. [00:00:03] Speaker 04: Come on up, please. [00:00:05] Speaker 04: And you may begin whenever you are ready. [00:00:07] Speaker 04: Thanks, Your Honor. [00:00:07] Speaker 04: You're welcome. [00:00:12] Speaker 00: Michael Zarian on behalf of Dr. Homs. [00:00:14] Speaker 00: So I'd like to reserve five minutes for rebuttal. [00:00:17] Speaker 00: Qualified immunity is meant to give officials the necessary breathing room to carry out their duties on behalf of the state without fear of liability. [00:00:24] Speaker 00: That need for breathing room is particularly strong here, where the law and the facts and science regarding these treatments at issue have been rapidly evolving over the past few years. [00:00:34] Speaker 00: People understandably have strong feelings about this issue, but Section 1983 does not punish officials like Dr. Hamso, who make reasonable decisions based on the law and fact available to them at the time. [00:00:43] Speaker 04: Mr. Zarian, if we hold that Dr. Hamso is entitled to qualified immunity, do the constitutional claims still proceed based on the injunctive relief requested? [00:00:55] Speaker 00: We've argued that the injunctive relief claims are also before this court based on ICBAL. [00:00:59] Speaker 00: And we've appealed both the injunctive relief claims and the qualified immunity denial below. [00:01:04] Speaker 00: So to the extent the court agrees with our jurisdictional argument based on ICBAL, which I think is pretty clear that both can be appealed, then the injunctive relief claims are also before this court. [00:01:13] Speaker 03: They can be appealed, but can they be appealed on an interlocutory appeal? [00:01:16] Speaker 03: That's the question. [00:01:17] Speaker 00: Yes, Your Honor, and that was the issue in Iqbal as well, where there was, and Iqbal went on to scrutinize the factual sufficiency and then dismiss the claims entirely and remanded for the court to decide, a court of appeals to decide whether to allow repleting or not. [00:01:32] Speaker 00: So yes, both are before this court in our view. [00:01:34] Speaker 02: The district court did not seem, I guess it was a magistrate judge with consent, correct? [00:01:41] Speaker 02: Correct. [00:01:43] Speaker 02: seem to be amenable to the renewal of the motion based on the accumulation of additional evidence. [00:01:50] Speaker 02: Is that correct? [00:01:52] Speaker 00: That was the district court's position, but we don't believe there's any extra evidence that's necessary to decide these claims. [00:01:57] Speaker 00: Qualified immunity generally should be decided at the earliest possible stage, and here these are essentially legal questions that additional facts won't shed additional light on. [00:02:06] Speaker 00: Whether there's a protected property interest, for example, in any specific Medicaid treatment is purely decided by the governing laws and regulations governing Medicaid. [00:02:19] Speaker 00: And same with equal protection, this idea of facial discrimination and whether it's a facially neutral statute can be decided just, or a facially neutral policy can be decided just by looking at the policy, for example. [00:02:31] Speaker 00: And honestly, we believe that Dr. Homso doesn't even need qualified immunity. [00:02:37] Speaker 00: We were asking for qualified immunity, but doesn't need qualified immunity because there is no violation of equal protection clause or due process clause here. [00:02:44] Speaker 03: But I just get one factual issue straight, so that I think we're speaking on the same terms. [00:02:50] Speaker 03: And that is, as I understand it, the surgery [00:02:55] Speaker 03: at issue here is provided to cisgender individuals, and it's done so under a certain code in the Medicaid regime, but that that surgery is not provided to transgender individuals. [00:03:12] Speaker 03: Is that correct? [00:03:14] Speaker 00: the treatments are equal across transgender and cisgender individuals. [00:03:19] Speaker 00: So for example, a mastectomy, for example, to treat breast cancer would be available to both transgender and cisgender people. [00:03:28] Speaker 00: The only differentiation that the alleged policy makes is on the basis of diagnosis. [00:03:33] Speaker 00: So for transgender or cisgender people, for these surgeries to treat gender dysphoria are not available. [00:03:42] Speaker 03: Well, but the treatment for gender dysphoria is the same treatment that's given to cisgender individuals, is it not? [00:03:55] Speaker 03: I mean, the surgery? [00:03:57] Speaker 00: The surgery may be the same, but it's not the same treatment. [00:04:01] Speaker 00: Breast cancer and gender dysphoria performing these surgeries to treat each condition are very different. [00:04:07] Speaker 03: Well, we're not talking about breast cancer here. [00:04:10] Speaker 03: So why don't we really stick to what the key issue is here? [00:04:14] Speaker 03: We're not really talking about breast cancer. [00:04:17] Speaker 03: We're talking about genital surgery. [00:04:21] Speaker 00: Well, I guess, Your Honor, it could be genital surgery, but genital surgery could also be for penile cancer, then. [00:04:30] Speaker 00: We can talk about penile cancer if you'd like. [00:04:32] Speaker 00: But the point is that to the extent it is available to a cisgender person, it would have to be available for some other condition and not for gender dysphoria. [00:04:40] Speaker 03: So it's solely based on the condition, correct? [00:04:43] Speaker 00: Solely based on the condition. [00:04:44] Speaker 03: So when they started out, the doctor says, well, you can't have this surgery because under the WPAT. [00:04:50] Speaker 03: guidelines, you don't meet the psychiatric length of time, et cetera. [00:04:56] Speaker 03: They come back and say, no, no, look at this. [00:04:58] Speaker 03: So, okay, that goes by the wayside. [00:05:00] Speaker 03: Correct. [00:05:00] Speaker 03: And then the doctor comes back and says, no, this is cosmetic. [00:05:05] Speaker 03: Correct? [00:05:06] Speaker 03: Correct. [00:05:07] Speaker 03: And so it's at the state's position then that this is cosmetic and therefore not available. [00:05:15] Speaker 00: Well, our position is that it's not medically necessary, and cosmetic is the flip side of medical necessity, correct? [00:05:21] Speaker 03: You know, I think you would agree, and probably the plaintiffs would agree, it all depends on how you define the issue for purposes of applying the qualified immunity analysis. [00:05:35] Speaker 03: If you say that [00:05:38] Speaker 03: If you recognize that under our established principles in the Ninth Circuit that transgender requires something more in terms of heightened scrutiny without specificity, then [00:05:59] Speaker 03: Where is that in the record? [00:06:01] Speaker 03: And that's what makes me wonder whether that isn't, if not a factual issue, an issue where the record is not fulsome because the state didn't seem to really come back on this medical necessity and provide, you know, why there was a weighing here. [00:06:18] Speaker 00: Well, we have provided evidence of medical necessity, and we've cited it in this brief. [00:06:22] Speaker 00: This isn't an appeal from an administrative decision. [00:06:24] Speaker 00: So this isn't like an APA chennery doctrine. [00:06:27] Speaker 00: We're limited to things that were said in the administrative record. [00:06:29] Speaker 00: This is a 1983 claim, and we're allowed to bring our justification now. [00:06:33] Speaker 00: And we have provided some evidence of medical necessity. [00:06:36] Speaker 03: Right, but I don't think you can't really litigate that in the Court of Appeals. [00:06:40] Speaker 03: You're entitled to bring it now, you're saying. [00:06:43] Speaker 03: We have to look at the district court is looking [00:06:47] Speaker 03: qualified immunity and determining whether on that record. [00:06:52] Speaker 03: So, you know, you're right, this isn't a Cheneree-type appeal. [00:06:56] Speaker 03: We're not arguing over the Medicaid regulations or anything like that. [00:06:59] Speaker 03: We're arguing over what was the district court faced with. [00:07:03] Speaker 03: And the district court said, well, no qualified immunity now on this record, but in fact, that issue is still open. [00:07:14] Speaker 03: So why is that wrong? [00:07:15] Speaker 00: Well, if the issue is open, then qualified immunity is appropriate. [00:07:18] Speaker 03: And the district court, the only issue is open for further development on whether the state met its burden. [00:07:25] Speaker 00: So as far as facial classification, the statute does not classify on the basis of transgender status. [00:07:34] Speaker 00: So Your Honor referred to some of the past cases. [00:07:37] Speaker 00: I assume you're talking about Karnosky or Doe, which talk about a heightened scrutiny when there is discrimination on the basis of transgender status. [00:07:44] Speaker 00: Here, that's not what we're talking about. [00:07:46] Speaker 00: We're talking about differentiation on the basis of medical diagnosis. [00:07:49] Speaker 00: And Karnosky and Doe specifically reserved that question. [00:07:52] Speaker 00: Karnosky in footnote 18 talked about whether this is just so closely associated with transgender status that it constitutes discrimination on the basis of transgender status. [00:08:03] Speaker 00: We're not reaching that question. [00:08:04] Speaker 00: And Doe said, we're going to let that question develop in the district court. [00:08:08] Speaker 00: That wasn't a preliminary injunction posture. [00:08:11] Speaker 00: And so that question has never been addressed. [00:08:13] Speaker 00: And simply citing what the district court did, simply citing Bostock as the proposition that there should not be discrimination is the highest possible level of generality. [00:08:23] Speaker 00: and not sufficiently concrete to be able to resolve the specific debate here about whether regulating a procedure would constitute improper discrimination. [00:08:33] Speaker 02: You're not here, as I understand it, and correct me if I'm wrong in this apprehension, to defend at this point the policy. [00:08:44] Speaker 02: You're here representing Dr. Hamsa, who's an employee of the state, [00:08:49] Speaker 00: That's correct, Your Honor. [00:08:51] Speaker 02: Whose position, as I understand it, is I don't make this policy. [00:08:56] Speaker 02: The policy is set. [00:08:58] Speaker 02: I simply implement the policy. [00:09:01] Speaker 02: I'm not trying to violate anybody's constitutional rights. [00:09:04] Speaker 02: Do I have that right? [00:09:06] Speaker 00: I don't know if Dr. Hamsaw's personal position is in the record. [00:09:09] Speaker 00: But essentially, yes, Dr. Hamsaw was... There's no evidence of Dr. Hamsaw creating the policy, for example. [00:09:15] Speaker 00: That's right. [00:09:16] Speaker 02: But as I understand it, there's yet to be a determination of the, if you will, constitutional solidarity of the state's position on this issue. [00:09:32] Speaker 00: Could you describe solidarity? [00:09:33] Speaker 02: Yeah, well, is the state correct in taking the position that Dr. Hamso [00:09:42] Speaker 02: provided to the plaintiffs in this case. [00:09:44] Speaker 02: I can't do this surgery because the policy of the state is X. [00:09:52] Speaker 00: Yes, that was what Dr. Hamsaw said, and the state believes the policy is constitutional, absolutely, and Dr. Hamsaw's role was limited to implementing the policy. [00:10:02] Speaker 02: That's my point, and I may not have zeroed right in. [00:10:05] Speaker 00: Okay, that's right. [00:10:05] Speaker 02: There has yet to be a determination in this litigation as to the constitutionality of the state's position vis-a-vis this surgery, correct? [00:10:16] Speaker 00: I believe that's what the district court's opinion was, though, was that it didn't have anything to do with Dr. Hamsaw's role in particular, but did scrutinize the policy on whether it was constitutional or not, and then whether Dr. Hamsaw would be entitled to qualified immunity. [00:10:32] Speaker 02: If it's later determined that the state's policy in this regard was entirely constitutional and defensible, that's the end of the game for Dr. Hamsaw, isn't it? [00:10:45] Speaker 00: That would also be the end of the game. [00:10:47] Speaker 00: Or qualified immunity either way is a way that Dr. Hamsa would no longer be subject to personal liability. [00:10:53] Speaker 00: Thank you. [00:10:54] Speaker 00: Thank you, Your Honor. [00:10:56] Speaker 00: And returning quickly to Judge McEwen's point about the policy, and I think there's one thing to point out that's important, which is that the policy can be applied entirely without reference to sex. [00:11:12] Speaker 00: And that was something that district courts seemed to be a little bit confused about, which was that it has some sort of reference to sex or it has something to do with sex generally. [00:11:21] Speaker 00: the policy can be applied simply by knowing the diagnosis of the patient. [00:11:25] Speaker 00: And if a claim came in or pre-approval request came in without knowing the sex at all, only knowing that it was to treat gender dysphoria, that is how the alleged policy would be applied. [00:11:37] Speaker 03: That seems to me, I totally understand your point, but that seems to be in a circle. [00:11:42] Speaker 03: So if the diagnosis is gender dysphoria, isn't that in and of itself [00:11:50] Speaker 03: a gender-based determination? [00:11:54] Speaker 00: Somebody upstream may have made the decision that there was some sort of—some had to have assessed the person's gender, but the policy would not have assessed the person's gender. [00:12:01] Speaker 00: And that would be true for any treatment of gender dysphoria. [00:12:03] Speaker 00: For example, the 12-month waiting period to be able to have the surgery of taking hormones, the exact same thing, or a ban on conversion therapy. [00:12:12] Speaker 00: I know this court recently addressed that intimately. [00:12:14] Speaker 00: All of these things [00:12:15] Speaker 00: to the same extent, take into account somebody's sex, or even another treatment, for example, for Turner syndrome, something where a woman doesn't have another X chromosome, for example. [00:12:25] Speaker 00: All of these treatments have something to do with sex in the abstract. [00:12:29] Speaker 03: But this has only to do with sex and gender, doesn't it? [00:12:33] Speaker 03: Can you give me anything in the record to look to where I would be able to say, well, gender dysphoria as a diagnosis has something to do [00:12:46] Speaker 03: with something that isn't gender or sex-based? [00:12:52] Speaker 00: I don't think we would disagree that somebody diagnosing someone with gender dysphoria would take into account somebody's sex. [00:13:01] Speaker 00: But that is upstream of the policy that's being applied. [00:13:04] Speaker 00: And generally, equal protection, the relevant question is whether the policy at issue classifies on the basis of sex. [00:13:12] Speaker 03: Well, I guess, I mean, isn't that just a different way of saying the question I asked? [00:13:16] Speaker 03: And that is, it is, if you can't have this surgery, and the only, I mean, people who legitimately qualify, whether under WPATH or some other criteria, would need to be transgender, isn't that a gender-based classification? [00:13:41] Speaker 00: No, Your Honor, and I think that sounds a lot like the reasoning that was rejected in Keduldig, right? [00:13:47] Speaker 03: Well, I knew you were going to say the pregnancy case. [00:13:50] Speaker 00: Exactly, just like that. [00:13:51] Speaker 00: Or even in Dobbs and abortion, very similar, which is that it's a condition that is only attached to one group of people. [00:13:57] Speaker 00: And doesn't that just necessarily mean that you're discriminating on that basis? [00:14:00] Speaker 00: And the Supreme Court was clear, no, that sort of treatment receives rational basis scrutiny. [00:14:06] Speaker 00: And there needs to be some additional showing of invidious discrimination or pretext to be able to. [00:14:11] Speaker 03: Of course, we're back in time with the Gudulig case. [00:14:15] Speaker 03: But here, we know it's not a rational basis. [00:14:19] Speaker 03: We know that it's some kind of heightened scrutiny. [00:14:21] Speaker 03: So that alone kind of puts us in a non-Gudulig situation. [00:14:29] Speaker 03: What's your position on what the state needs to show in that regard? [00:14:32] Speaker 00: Well, Your Honor, respectfully backing up to the presumption that you just presumed, I think that presumes the conclusion, right? [00:14:39] Speaker 00: So before reaching whether this receives heightened scrutiny or not, the question has to be, is this discriminating on the basis of transgender status or on the basis of a diagnosis? [00:14:48] Speaker 00: And so Giduldig already puts us into the rational basis world without ever reaching the heightened scrutiny world. [00:14:54] Speaker 00: And so the heightened scrutiny does not come into play because the policy only differentiates on the basis of diagnosis. [00:15:04] Speaker 04: So I want to talk to you about gadooling a little more. [00:15:06] Speaker 04: In that case, I reviewed it. [00:15:08] Speaker 04: And that was a case where no one gender was comparatively advantaged over another to obtain insurance. [00:15:20] Speaker 04: Can you provide any examples on how the policy burdens cisgender beneficiaries or limits access to them for surgery in any way? [00:15:29] Speaker 04: Because it appears that only transgender individuals are being limited to access to these surgeries when it's for gender dysphoria. [00:15:37] Speaker 00: I think that's the exact same thing as Giduldig, though, Your Honor. [00:15:40] Speaker 00: So in Giduldig, you would have said, well, men can have any sort of things, can qualify as disabilities. [00:15:47] Speaker 00: But for women, there's a whole category of things that don't qualify as disabilities. [00:15:51] Speaker 00: Or in DOBS, all treatments are available to men. [00:15:54] Speaker 00: But for women, abortions are not available, right? [00:15:56] Speaker 00: And so it's the exact same reasoning. [00:16:00] Speaker 00: So here it's the exact same thing where you have on both sides of the line you have people who can receive These same surgeries for other conditions that includes Cisgender and trans would you agree with me that a cisgender individual is never going to seek a surgery like this for gender dysphoria That seemed that seems likely your honor. [00:16:18] Speaker 03: Yes, okay individuals that issue are transgender correct [00:16:27] Speaker 00: The only, very likely, the only ones who are ever going to be affected by this, but that's a disparate impact claim. [00:16:31] Speaker 00: And the key teaching of both Gaduldig and Dobbs is that there needs to be some showing of intent if all you have is disparate impact of a claim. [00:16:39] Speaker 04: Is it your position that gender dysphoria is not a legitimate medical diagnosis? [00:16:44] Speaker 00: No, Your Honor. [00:16:46] Speaker 02: Should we wait for the Supreme Court, and I hope to pronounce it right, Skirmety? [00:16:53] Speaker 00: We think the Skirmety deals with the same issues here. [00:16:56] Speaker 00: But here, these are mostly backwards-looking claims as far as qualified immunity. [00:17:01] Speaker 00: And so the question is, what was the law as of May 2022? [00:17:04] Speaker 00: And so some of these more creative theories about something referencing sex or [00:17:09] Speaker 00: How would this apply in the diagnosis context as opposed to Karnosky where it says transgender individuals, yes or no, right? [00:17:17] Speaker 00: Some of these harder questions makes it clear that this was not clearly established as of May 2022. [00:17:23] Speaker 00: So at least as far as the qualified immunity portion, that can be resolved now and should be, qualified immunity should be granted. [00:17:31] Speaker 00: And so I'll reserve the rest of my time for rebuttal. [00:17:39] Speaker 04: All right. [00:17:41] Speaker 04: Mr. Beladoff, did I pronounce that correctly? [00:17:45] Speaker 04: I'm on a roll today. [00:17:48] Speaker 04: All right, counsel, whenever you're ready. [00:17:50] Speaker 01: Thank you. [00:17:52] Speaker 01: May it please the court, I'm Howard Beladoff, here with my co-counsel, Jane. [00:17:57] Speaker 04: Can we ask you to either get closer to the mic or speak up, please? [00:18:02] Speaker 01: Okay, um, is that better? [00:18:05] Speaker 01: Yes. [00:18:06] Speaker 01: All right. [00:18:06] Speaker 01: Thank you. [00:18:07] Speaker 01: Um, I represent the plaintiffs MH and TB on this appeal the issue before the court today Concerns number one the appellate jurisdiction with regard to denial of qualified immunity in a motion to dismiss in a 1983 action the court [00:18:29] Speaker 01: reviews the narrow and purely legal question of whether the factual allegations in the complaint, because much of what counsel addressed is not in the complaint and not in the record, taken as true, possibly alleges denial of life-saving medically necessary treatment of gender dysphoria. [00:18:50] Speaker 01: based upon gender identity, and we believe is a violation of the constitutional rights to equal protection and due process. [00:18:59] Speaker 01: In other words. [00:19:00] Speaker 02: The district court has said this states a claim, right? [00:19:05] Speaker 01: It said, yes, plausibly states a claim. [00:19:08] Speaker 01: Correct, Your Honor. [00:19:08] Speaker 01: Plausibly states a claim. [00:19:09] Speaker 01: Yes. [00:19:09] Speaker 02: That's perfectly correct. [00:19:11] Speaker 01: And it's cited if you review the order, many allegations in the complaint. [00:19:18] Speaker 01: that stated a claim. [00:19:21] Speaker 02: Do you concede that further discovery could establish a basis for qualified immunity for Dr. Hamsall? [00:19:35] Speaker 01: Well, I think the law is clearly established, which is the narrow issue on qualified immunity, as I see it. [00:19:40] Speaker 01: But discovery is an issue here, because they have alleged a policy. [00:19:46] Speaker 01: Well, there was no policy when this complaint was filed. [00:19:49] Speaker 01: The closest thing we have to a policy is the governor's letter that came in seven months after the complaint. [00:19:57] Speaker 01: And the policy apparently is, according to the governor, which I might say specifically refer to the plaintiffs in this case, said sex reassignment surgery is not available to change the appearance of someone's biological sex, sex at the time of their birth. [00:20:19] Speaker 01: That clearly is facially and by proxy discrimination. [00:20:25] Speaker 01: sex reassignment surgery. [00:20:27] Speaker 01: Who does that apply to? [00:20:29] Speaker 01: Changing the appearance of their assigned sex at birth rather than their gender identity, which means it isn't the assigned sex at birth. [00:20:41] Speaker 01: So that was pled. [00:20:44] Speaker 01: That's what the court found was the issue in this case, that was Idaho's [00:20:51] Speaker 01: I'll say policy, but we don't know, as was raised. [00:20:55] Speaker 01: At MH's fair hearing, she proved the reason that Dr. Hampso denied authorization for the surgery was she believed she didn't have 12 months of hormone therapy. [00:21:10] Speaker 03: OK, and that got passed over and said, OK, you're incorrect about that. [00:21:15] Speaker 03: But now we're into what I think is the issue here, and that is whether [00:21:20] Speaker 03: it's medically necessary was the second question. [00:21:24] Speaker 01: Right. [00:21:26] Speaker 01: And that's a factual issue. [00:21:28] Speaker 01: And in our complaint, we plausibly alleged it was medically necessary. [00:21:32] Speaker 01: Every major medical. [00:21:35] Speaker 03: And let's just credit that statement in your complaint. [00:21:39] Speaker 03: But then we have to kind of jump over to Dr. Hamso. [00:21:43] Speaker 03: And the question is, [00:21:48] Speaker 03: What is it in the law that would compel her to know? [00:21:55] Speaker 03: that this was a gender or transgender-based discrimination. [00:22:03] Speaker 03: So there's kind of two or three cases going on here, if you will. [00:22:08] Speaker 03: There's a policy. [00:22:09] Speaker 03: There's the injunction. [00:22:11] Speaker 03: But we do have to focus just on Dr. Hamso and her potential qualified immunity. [00:22:19] Speaker 01: Let me get back to his honor's question that's kind of put together here. [00:22:23] Speaker 01: We're at a motion to dismiss days. [00:22:24] Speaker 01: We just accept the factual allegations. [00:22:27] Speaker 01: I haven't had discovery. [00:22:28] Speaker 01: I don't know anything about what Dr. Hamso was thinking. [00:22:34] Speaker 01: But what I do know is there are many, many cases. [00:22:39] Speaker 01: We have Bostic that talks about discrimination against transgender status. [00:22:43] Speaker 01: We have Karniski. [00:22:44] Speaker 01: that specifically talks about it. [00:22:47] Speaker 01: And let me read you, because apparently footnote 18 is not fully understood. [00:22:53] Speaker 01: It says, quote, because of the 2018 policy discriminates on the basis of transgender status on its face, we need not address whether it can constitute discrimination against transgender persons on an alternative ground [00:23:07] Speaker 01: The gender dysphoria and transition are closely correlated with being transgender, which is another way of saying proxy. [00:23:13] Speaker 01: So Karnesky found that the policy discriminates on the basis of transgender status. [00:23:20] Speaker 01: That is fair warning. [00:23:21] Speaker 01: That's what we have to show. [00:23:23] Speaker 01: We don't have to show under US Supreme Court President and Ninth Circuit that there's a case directly on point. [00:23:31] Speaker 03: Let me, could I just interrupt? [00:23:34] Speaker 03: There's been some discussion in the briefs about whether proxy discrimination was alleged. [00:23:39] Speaker 03: I know the district court used those words. [00:23:42] Speaker 03: Did the plaintiffs here allege proxy discrimination? [00:23:47] Speaker 01: Well, proxy discrimination as a legal conclusion. [00:23:51] Speaker 03: Well, that's kind of a yes or no answer, and then you can explain. [00:23:54] Speaker 01: Yes. [00:23:54] Speaker 01: Yes, we did, Your Honor. [00:23:55] Speaker 01: Yes, we did. [00:23:56] Speaker 01: Because we did allege that [00:24:00] Speaker 01: uh... trash gender people couldn't get the surgery based upon gender dysphoria whereas while sin gender people could get would would be approved for that surgery and we're getting that surgery and let me just say at the beginning of this case your honor the the position of the of this of the defendants was that they were only challenging the uh... [00:24:22] Speaker 01: surgeries. [00:24:23] Speaker 01: People were getting gender medically necessary treatment for gender dysphoria. [00:24:28] Speaker 01: They weren't getting it until recently when Idaho passed a new statute, in effect, January 1st. [00:24:36] Speaker 01: So there's clear discrimination here. [00:24:38] Speaker 01: The court picked up on the allegations, and it was one of the things that the court asked me at the hearing on the motion. [00:24:47] Speaker 01: I don't know if the word proxy is in the complaint, but under Iqbal, I need to plead facts. [00:24:55] Speaker 01: I need to plead a plausible claim. [00:24:57] Speaker 01: And I think there is clearly proxy, where you have a discrete group, and you may have a neutral criteria, but only applies to that group. [00:25:12] Speaker 01: As the cases say, if you have [00:25:14] Speaker 01: gray hair, if you're going to discriminate on the basis of gray hair, that could be discrimination against people of age, age discrimination. [00:25:23] Speaker 01: If you tax a yarmulke, you don't say it applies to Jews or non-Jews, but if you tax a yarmulke, [00:25:32] Speaker 01: That's proxy discrimination, because only Jewish people wear yankas as part of their religious faith. [00:25:39] Speaker 01: So. [00:25:40] Speaker 03: Well, I think one response, and I'll let the state make its own response, but one response may well be, what you're talking about is really disparate impact. [00:25:50] Speaker 03: So I would appreciate your comments on their claim that what you're really talking about is disparate impact, which wasn't alleged. [00:25:58] Speaker 01: Well, your honor, I think the governor's letter came in the day before, seven months after the complaint was filed, and the state submitted it. [00:26:07] Speaker 01: And that's where you have the proxy discrimination on its face. [00:26:10] Speaker 01: That's where you have the facial discrimination on its face. [00:26:15] Speaker 04: Do you have anything other than Governor Little's letter for the proxy discrimination? [00:26:24] Speaker 01: This is what the issue is at the motion to dismiss. [00:26:27] Speaker 01: I didn't have discovery. [00:26:28] Speaker 01: I don't have a burden to present evidence. [00:26:32] Speaker 01: That's summary judgment. [00:26:33] Speaker 01: They get a chance to put their site in. [00:26:34] Speaker 01: I get a chance to counter with my declarations. [00:26:37] Speaker 01: That's why the court held in this case, the court did not deny qualified immunity. [00:26:42] Speaker 01: It said it was premature and undeveloped. [00:26:44] Speaker 01: And it specifically says they could come back on summary judgment. [00:26:48] Speaker 01: And I think that is the court cited the Flores case and a few other Ninth Circuit cases for the proposition. [00:26:54] Speaker 01: And Peltier actually [00:26:57] Speaker 01: with regard to jurisdiction says, we don't like to see these cases on a motion to dismiss because the purely narrow legal question cannot necessarily be answered because all it is based upon the facts in the complaint. [00:27:10] Speaker 01: And that's where I am now. [00:27:11] Speaker 01: So when you ask me questions on the merits, [00:27:14] Speaker 01: I just go to the complaint and say, I don't have to prove it. [00:27:19] Speaker 01: I'd plausibly allege it. [00:27:20] Speaker 01: That's Iqbal. [00:27:21] Speaker 01: And Iqbal was a Bivens case. [00:27:23] Speaker 01: And Iqbal said, you know, it was Attorney General Ashcroft and the director of the FBI. [00:27:30] Speaker 01: They pled Bivens. [00:27:32] Speaker 01: And all the cases that they alleged jurisdiction are Bivens cases. [00:27:36] Speaker 01: Why? [00:27:36] Speaker 01: Because Bivens is a court-created claim. [00:27:40] Speaker 01: 1983 is congressional and enacted. [00:27:44] Speaker 01: Everybody has a right to that. [00:27:45] Speaker 01: The court has narrowly developed a Bivens claim for constitutional rights against federal officers, but has severely cut that back. [00:27:56] Speaker 01: And I think it's very clear in the cases that they make an exception of the Mitchell versus Forsythe standard for Bivens cases, because [00:28:06] Speaker 01: because they're so narrow, the Bivens cases, that they're going to look at that. [00:28:11] Speaker 01: And in each case they have, they never get to the qualified immunity, because Bivens is so restricted. [00:28:17] Speaker 01: In Eichball, they said, well, we're going to look at what's alleged here for federal officers. [00:28:24] Speaker 01: And they compared it to 1983, says there's no responde at Superior. [00:28:28] Speaker 01: And so they went there, and they said, well, [00:28:31] Speaker 01: The attorney general and the director of the FBI, they're not involved with any of the alleged constitutional rights. [00:28:36] Speaker 01: So we're just going to dismiss it. [00:28:39] Speaker 01: But on a sufficiently of pleadings, they had to figure out, OK, what's the claim? [00:28:44] Speaker 01: Is there a claim? [00:28:45] Speaker 01: They looked to an analogous 1983, and they just said, [00:28:49] Speaker 01: No, we're not going to reach that. [00:28:52] Speaker 01: But Bivens is really a pleading sufficiency case. [00:28:55] Speaker 01: That's all it is. [00:28:55] Speaker 01: It doesn't jerry-rig or bootstrap jurisdiction for an interlocutory appeal. [00:29:02] Speaker 01: That's what we have here, interlocutory appeal. [00:29:04] Speaker 01: The Supreme Court carved that out under the collateral order doctrine in those clear cases where there was sufficient evidence and there was one case [00:29:16] Speaker 01: I'm not sure what it was, where the officer said they weren't there. [00:29:22] Speaker 01: But it's very clear. [00:29:23] Speaker 03: I have a couple cases I would like to ask you about. [00:29:27] Speaker 03: Let's go back to your comment about Kynarski. [00:29:30] Speaker 03: And it triggers heightened scrutiny. [00:29:32] Speaker 01: Yes. [00:29:33] Speaker 03: So now let's put Dr. Hamso into the picture. [00:29:37] Speaker 03: And how does she figure out [00:29:39] Speaker 03: that she might be violating some constitutional right, is she supposed to evaluate heightened scrutiny? [00:29:48] Speaker 03: Or what is she supposed to do? [00:29:50] Speaker 01: Well, as you know, Your Honor, this is a judge-made theory. [00:29:57] Speaker 01: I understand. [00:29:57] Speaker 01: OK? [00:29:57] Speaker 01: And you hit upon a problem here. [00:30:00] Speaker 01: But it's present in every case. [00:30:02] Speaker 01: So they look to what's the law clearly established, and they look to other cases. [00:30:07] Speaker 01: in other circumstances. [00:30:09] Speaker 01: And for equal protection, the district court, the magistrate, said that the Ninth Circuit has had the law, that principles of qualified immunity are clear. [00:30:19] Speaker 01: And there's a long line of cases. [00:30:21] Speaker 01: Doe versus Schneider. [00:30:25] Speaker 01: Judge Callahan, in review of the denial of the preliminary injunction, said, well, first, Bostock has not limited to Title VII. [00:30:36] Speaker 01: at this is for purposes of remand and in support of that in a footnote she cited to four different cases in which transgender medically necessary treatment for gender dysphoria for adults that that create you know i believe give notice now when you apply when you apply legal concepts that we're here all disagreeing about today to the man on the street [00:31:01] Speaker 01: be it a police officer, be it a municipal person. [00:31:08] Speaker 01: They don't really know. [00:31:09] Speaker 01: They're not lawyers. [00:31:11] Speaker 01: They don't read the books like we do. [00:31:12] Speaker 01: They don't read the cases. [00:31:13] Speaker 01: They don't keep up with that. [00:31:16] Speaker 01: But that's why they have qualified immunity, as I understand it. [00:31:20] Speaker 01: They're going to give it to them. [00:31:21] Speaker 01: But the one thing they can't do, they just can't go out and violate people's rights. [00:31:25] Speaker 01: And if they think that they should be on notice, that they need to look. [00:31:30] Speaker 01: As a matter of fact, in the record, in the complaint, TB's mother [00:31:36] Speaker 01: sent emails trying to get a decision. [00:31:40] Speaker 01: And we don't have a decision today. [00:31:42] Speaker 01: How many years later? [00:31:43] Speaker 01: We have no decision of the actual reason why Dr. Hamsall or anybody else denied it. [00:31:50] Speaker 01: They haven't given it to us. [00:31:51] Speaker 03: So let me have a couple more questions related to that. [00:31:54] Speaker 03: You're saying that the state has indicated it's because it's not medically necessary. [00:32:03] Speaker 03: That was part two of the decision. [00:32:06] Speaker 03: are not medically indicated. [00:32:08] Speaker 03: And you're saying that we don't have that decision somewhere? [00:32:14] Speaker 01: We don't have that decision somewhere in this case you're talking about? [00:32:19] Speaker 03: Well, it's the only case that's here. [00:32:21] Speaker 01: OK, I know. [00:32:22] Speaker 01: I thought you were referring to a case precedent, Your Honor. [00:32:26] Speaker 01: Well, I do allege it's medically necessary. [00:32:28] Speaker 01: I do allege that. [00:32:29] Speaker 03: No, no, no. [00:32:30] Speaker 03: I guess my question is the flip of that. [00:32:32] Speaker 03: You were saying we don't have a decision from the state. [00:32:36] Speaker 03: So are you saying that the state, we have no decision in writing or otherwise at the time this occurred, that the basis for rejection was medical necessity? [00:32:49] Speaker 01: I don't have a decision with that, Your Honor. [00:32:50] Speaker 01: What I have is Dr. Hamsoe denying MH in the initial application for authorization. [00:33:00] Speaker 01: She said under the WAPATH standards, you haven't complied with the 12-month therapy, right? [00:33:06] Speaker 01: So she's recognizing the standard of care that's internationally recognized. [00:33:10] Speaker 03: But then that got responded to. [00:33:13] Speaker 01: Only at the hearing. [00:33:14] Speaker 01: It was a nurse when the hearing officer said, well, [00:33:19] Speaker 01: Is there any other reason? [00:33:21] Speaker 01: Which is kind of interesting, because that was no notice of that. [00:33:23] Speaker 01: That came up. [00:33:24] Speaker 01: And so he remanded it back, the hearing officer remanded it back, and here we are today. [00:33:29] Speaker 01: And I don't have a decision. [00:33:31] Speaker 03: Let me also ask you to respond to Idaho's comments on Gudulik, the pregnancy case, saying, well, that was a case where the only individuals who can get pregnant, of course, are women. [00:33:46] Speaker 03: It's a rational basis. [00:33:48] Speaker 03: So that case is out there as controlling law. [00:33:53] Speaker 03: Why can't that be applied here to invoke qualified immunity? [00:33:57] Speaker 01: Let's be clear here. [00:34:00] Speaker 01: Gdaldig, the court said there are pregnant women in one subgroup and men and women non-pregnant in the other group. [00:34:10] Speaker 01: And they said there was no discrimination. [00:34:12] Speaker 01: Here we have. [00:34:14] Speaker 01: Transgender men, transgender women who need medically necessary gender-affirming care according to their doctors. [00:34:23] Speaker 01: And there's no dispute about that in the record. [00:34:26] Speaker 01: And you have cisgender male and female Medicaid participants who can receive the same treatments [00:34:37] Speaker 01: but they can't receive it because of the diagnosis of gender dysphoria, which is clearly inherent in the status of being transgender. [00:34:48] Speaker 01: It's inherent in sex. [00:34:49] Speaker 01: You can't make that decision without looking at the sex. [00:34:53] Speaker 01: As the Supreme Court said, it said, [00:34:58] Speaker 01: Well, as the court said, thus defendant's seemingly neutral exclusion is not so. [00:35:03] Speaker 01: The exclusion of gender affirming care precludes a specific treatment that is connected to a person's sex and gender identity. [00:35:10] Speaker 01: Gender dysphoria is inherent in being transgender. [00:35:19] Speaker 01: Non-transgender people don't get gender dysphoria. [00:35:24] Speaker 01: So you are talking about that. [00:35:28] Speaker 01: It wasn't based upon the sex assigned at birth versus the sex that somebody, the gender identity based on the sex that isn't assigned at birth. [00:35:40] Speaker 01: So it's not only facial and proxy, but it's sexually stereotyping. [00:35:47] Speaker 01: That's also discrimination in this case, because they're not [00:35:52] Speaker 01: They're not living up to, or they're not living with what somebody thinks a masculine person should do, and somebody thinks a female person should do. [00:36:01] Speaker 01: Because they do. [00:36:01] Speaker 04: Counsel, I would like some clarification on your due process claims here. [00:36:06] Speaker 04: So this is a two-part question. [00:36:08] Speaker 04: My first question is, are you alleging that there was not adequate hearing and notice to the plaintiffs to address the denials or their infinite nondecision? [00:36:16] Speaker 04: So is your due process claim based on that? [00:36:18] Speaker 04: Or are you saying that your clients have a due process right to the treatments themselves? [00:36:26] Speaker 01: Well, procedural due process is just that. [00:36:30] Speaker 01: Notice and an opportunity to be heard. [00:36:32] Speaker 01: Goldberg versus Kelly gives them that. [00:36:34] Speaker 01: What is that, a 1974 decision? [00:36:37] Speaker 01: The Medicaid regulations say, specifically addressing due process, that Congress said, you've got to provide due process in this. [00:36:45] Speaker 01: This is a government entitlement. [00:36:47] Speaker 01: This court in KW versus Armstrong, Mr. Armstrong was the director of Idaho Department of Health and Welfare, said they have a due process right. [00:36:55] Speaker 01: They have an entitlement. [00:36:57] Speaker 01: They have an entitlement to these benefits. [00:36:59] Speaker 01: So the determination of whether they should receive it or not, you've got to provide notice. [00:37:04] Speaker 01: We didn't have notice of the cosmetic. [00:37:06] Speaker 01: We didn't have notice of what they allege the right is. [00:37:09] Speaker 04: OK, so it's yes to my first question. [00:37:11] Speaker 04: My second question then, are you also saying that your clients have a due process right to the treatments themselves? [00:37:20] Speaker 01: That would be a more substantive due process, Your Honor, you know, versus a procedural one. [00:37:29] Speaker 01: We do not have a substantive due process claim. [00:37:32] Speaker 01: That's the LW Schumerty involving minors. [00:37:37] Speaker 01: Okay. [00:37:38] Speaker 01: I agree that I don't believe that case is [00:37:40] Speaker 04: So counsel you're running out of time. [00:37:42] Speaker 04: So let me get my other questions in Is it your position that dr. Hams? [00:37:46] Speaker 04: So cannot legitimately regulate what? [00:37:48] Speaker 04: Diagnosis Idaho Medicaid treats. [00:37:51] Speaker 04: So does she not have the right to make that decision? [00:37:55] Speaker 01: Your honor the way I look at it is You can regulate but you can't discriminate [00:38:02] Speaker 01: That's the distinction here. [00:38:05] Speaker 01: They're discriminating in the way they're approving or not approving surgeries among people. [00:38:13] Speaker 01: It's as simple as that. [00:38:16] Speaker 01: You can't say it. [00:38:17] Speaker 01: Congress didn't give Dr. Hamso the right to discriminate in Medicaid. [00:38:21] Speaker 01: I can assure you of that. [00:38:24] Speaker 01: Dr. Hamso, in Medicaid, when she's the medical director, cannot discriminate on the basis of sex or transgender status. [00:38:32] Speaker 03: OK. [00:38:33] Speaker 01: I'm out of time. [00:38:33] Speaker 03: One last question on the due process. [00:38:36] Speaker 03: What specific statute or case law would make it clear that Dr. Hamso, that a delay attributed to Dr. Hamso would be unlawful? [00:38:51] Speaker 01: Let me preface it by saying, in the complaint, there's allegations of the clients were repeatedly contacting her. [00:38:59] Speaker 03: Matter of fact, one talked to her. [00:39:00] Speaker 03: We're taking all the allegations in your favor, but we're benchmarking it under qualified immunity under some law or regulation that would say, Dr. Hempstow, you knew you violated their rights. [00:39:14] Speaker 03: What do I look to? [00:39:15] Speaker 01: Well, there's actually an Idaho statute that says they have a right to notice and fair hearing. [00:39:18] Speaker 01: That's the first thing. [00:39:20] Speaker 01: There's the Medicaid regulations that say you have to abide by Goldberg versus Kelly and all the things and all requirements. [00:39:28] Speaker 03: But the allegation that there's this delay, how is she, how is it attributed to her? [00:39:34] Speaker 01: Well, the regulations say you have to make a decision within 90 days. [00:39:38] Speaker 01: So I don't know how you get more clear notice when Congress passes a statute and HHS who monitors or administers the Medicaid program, which Spiker says they must comply with. [00:39:53] Speaker 01: You know, I don't know how you can get more notice of that. [00:39:57] Speaker 01: And I believe she actually knew that when she applied the WAPATH standard. [00:40:00] Speaker 01: She actually knew that the standard care for, and she's a doctor, so she knew gender dysphoria is a diagnosis, and she knew that she had to go to WAPATH, and she knew that it was a treatable disease, and the harmful effects that the clients would suffer if it went untreated, which they suffered. [00:40:19] Speaker 04: Counsel, you are out of time. [00:40:20] Speaker 01: Thank you, Your Honor. [00:40:21] Speaker 04: Thank you. [00:40:23] Speaker 04: three quick points on rebuttal your honors first just to do process [00:40:41] Speaker 00: The question for due process is whether property was deprived without due process of law. [00:40:47] Speaker 00: That's the Constitution. [00:40:47] Speaker 00: So the question isn't, was a procedural step denied? [00:40:50] Speaker 00: This isn't just a general claim for bad procedural things. [00:40:53] Speaker 00: The first step, the antecedent question is, what is the property interest? [00:40:56] Speaker 00: And the thing that was denied was coverage for one treatment. [00:40:59] Speaker 00: And I think I just heard them disclaim that they thought they had a property right in any treatment. [00:41:04] Speaker 00: No case has ever held as much. [00:41:05] Speaker 00: And so that is enough to dispose of the due process claim. [00:41:09] Speaker 00: As far as Karnosky, Karnosky did discriminate on the basis of its face. [00:41:14] Speaker 00: It said, transgender persons may not serve in the military. [00:41:17] Speaker 00: And here, the alleged policy does not use those words on the face. [00:41:21] Speaker 00: The theory needs to be proxy discrimination. [00:41:23] Speaker 00: And that makes it much more complicated and it brings in these daubs and some of these complicating factors. [00:41:30] Speaker 00: The district court called this all the nuance to the claim and that nuance is precisely why this is not clearly established and that's why the Supreme Court has granted cert on essentially the same question because it's not clearly established yet. [00:41:42] Speaker 00: And the last point I wanted to raise was that they have not pleaded proxy discrimination, and that makes all the difference. [00:41:50] Speaker 00: And it wouldn't have been proxy discrimination anyways. [00:41:52] Speaker 00: They raised the example of attacks on yarmulkes, for example. [00:41:55] Speaker 00: And when Bray talks about the case that gives that example, when it talks about attacks on yarmulkes, [00:42:00] Speaker 00: What it says is that such an irrational object of disfavor, that we can presume an animus against that group. [00:42:07] Speaker 00: And here, there is an ongoing medical debate as to the efficacy of these treatments. [00:42:12] Speaker 00: And the Obama administration in 2016 declined to issue a nationwide Medicare mandate to cover these treatments. [00:42:20] Speaker 00: And I would be surprised to hear my friend on the other side say that that must have been, it was so irrational that it must have been motivated by animus. [00:42:28] Speaker 00: And in those circumstances, when it's not clear how these treatments should be handled, that gets left to the state to decide. [00:42:35] Speaker 00: And that's what rational basis review is, and particularly with a qualified immunity overlay that disposes of the case. [00:42:42] Speaker 02: What's your response to the argument I think I heard from counsel for appellants, that they still don't have an administrative decision on the availability of this care? [00:42:56] Speaker 00: Well, Your Honor, they did not receive a decision throughout the process. [00:43:01] Speaker 00: And what they've alleged in their complaint is that they haven't received a decision. [00:43:04] Speaker 00: But the allegation here is that there is a policy, and that that policy has adversely affected them, and that it's unconstitutional. [00:43:11] Speaker 00: And we've come in and now defended ourselves against this allegation of an alleged policy. [00:43:16] Speaker 00: It's not a question of finality or appeal from an administrative decision. [00:43:22] Speaker 00: The state has been accused of implementing an unlawful policy, and here we are defending ourselves against that charge. [00:43:27] Speaker 04: I had a follow up on that due process question still. [00:43:31] Speaker 04: What's the extent of Dr. Hamsow's and Idaho's discretion to regulate the Medicaid program? [00:43:36] Speaker 04: Are there any limits? [00:43:37] Speaker 00: There are some limits. [00:43:39] Speaker 00: The Supreme Court talked about in Beale broad discretion requiring only that standards for determining the extent of medical assistance be reasonable and consistent with the objectives of the act. [00:43:50] Speaker 00: I think 42 CFR 442 30 the dot 230. [00:43:54] Speaker 00: also talks about the agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures. [00:44:03] Speaker 00: So that is one of the things the state can do in limiting what's covered is rely on medical necessity. [00:44:08] Speaker 04: So if the diagnosis here was cancer instead of gender dysphoria, would you still find that Dr. Hamso's delay here is reasonable? [00:44:20] Speaker 00: I don't think we've argued about whether the delay is reasonable or not. [00:44:24] Speaker 00: The question, when we still argue that there's no constitutionally protected property interest in a cancer treatment, then yes, we'd raise that same argument. [00:44:32] Speaker 00: And that they can argue that that's not rational or that the denial is arbitrary and capricious or something along those lines as an appeal from an administrative decision. [00:44:41] Speaker 00: But as far as due process clause, that wouldn't have anything to say on this subject. [00:44:47] Speaker 04: Any questions? [00:44:48] Speaker 00: And with that, we would ask the court to reverse. [00:44:50] Speaker 00: Thank you. [00:44:50] Speaker 04: All right. [00:44:51] Speaker 04: Thank you, counsel. [00:44:51] Speaker 04: The matter is now submitted. [00:44:53] Speaker 04: Have a wonderful day.