[00:00:01] Speaker 05: Okay. [00:00:02] Speaker 05: All right. [00:00:02] Speaker 05: So good morning. [00:00:04] Speaker 05: Each side in this matter, we are now going to do the Poe versus Labrador. [00:00:08] Speaker 05: Each side will have 20 minutes. [00:00:10] Speaker 05: If appellants would like to reserve time for rebuttal, please be aware that you are responsible for keeping track of your own time. [00:00:16] Speaker 05: It's also my understanding that the United States has filed an amicus brief and that the appellees will share six minutes of their argument time with counsel for the US Department of Justice. [00:00:26] Speaker 05: So Mr. [00:00:28] Speaker 05: Bursch. [00:00:29] Speaker 05: Bursch. [00:00:29] Speaker 05: Okay. [00:00:30] Speaker 05: Mr. Bursch, thank you so much. [00:00:31] Speaker 05: You may begin when you are ready. [00:00:33] Speaker 02: Thank you. [00:00:33] Speaker 02: Good morning, Your Honors. [00:00:34] Speaker 02: John Bursch on behalf of Attorney General Labrador. [00:00:37] Speaker 02: I hope to reserve five minutes for rebuttal. [00:00:39] Speaker 02: May it please the court. [00:00:41] Speaker 02: Idaho and the rest of the country are facing an epidemic of teenage depression. [00:00:45] Speaker 02: Everyone is looking for solutions. [00:00:47] Speaker 02: Some have turned to treatments that physically alter children's bodies to match their perception of their sex. [00:00:53] Speaker 02: But these treatments are experimental and they carry heavy risks as evidenced by the UK's CAS review and many other studies. [00:01:00] Speaker 02: But for two reasons, this panel need not resolve the science because rational basis review applies here. [00:01:06] Speaker 02: First, the VCPA does not regulate based on who seeks treatment. [00:01:11] Speaker 02: but based on the benefits and risks of the treatment requested. [00:01:15] Speaker 02: When a doctor removes a young woman's breasts, it matters whether the reason is breast cancer or for the purpose of making her look like a boy. [00:01:21] Speaker 02: And a vaginoplasty has very different risks when performed on a boy than on a girl. [00:01:27] Speaker 02: Second, there is no substantive due process right to any specific medical treatment, and so there is no parental right. [00:01:33] Speaker 05: I'd like to ask you some questions. [00:01:35] Speaker 05: Yes, please. [00:01:36] Speaker 05: Okay, so the statute specifically defines treating gender dysphoria as, and I quote, never necessary to a minor's health. [00:01:43] Speaker 05: Are there any other laws in Idaho that you are aware of that specifically define the purpose of a treatment as never medically necessary? [00:01:51] Speaker 02: I have not squirted the books, but I'm not aware of that. [00:01:55] Speaker 05: And is it Idaho's position that gender dysphoria is not a legitimate medical diagnosis? [00:02:00] Speaker 02: Absolutely not, Jette Alba. [00:02:01] Speaker 02: It's in the DSM-5. [00:02:03] Speaker 02: It's a recognized medical diagnosis. [00:02:05] Speaker 02: But there is a substantial disagreement upon medical professionals about what the appropriate treatment for gender dysphoria is. [00:02:11] Speaker 02: And there are great risks of the medical interventions that plaintiffs are advocating for in this case. [00:02:16] Speaker 06: So let's go back to one of your earlier statements that this only has to do with diagnosis, doesn't have anything to do with sex. [00:02:25] Speaker 06: But this statute, unlike some others, actually uses the words that it's pegged to the child's biological sex. [00:02:35] Speaker 03: Yes. [00:02:36] Speaker 06: How can you say that this is not related to sex? [00:02:41] Speaker 02: for the same reason that the Supreme Court said it in Dobbs, Judge McEwen. [00:02:44] Speaker 02: There, too, Mississippi had a 15-week law that used sex to define who could not have abortions. [00:02:50] Speaker 02: It was limited to women. [00:02:52] Speaker 02: It was a 100 percent disparate impact, and yet the U.S. [00:02:55] Speaker 02: Supreme Court in Dobbs applied only rational basis and held that the regulation of a procedure that only one sex can undergo does not result in heightened scrutiny unless it was mere pretext. [00:03:05] Speaker 02: And that makes sense, because if Idaho were to regulate medicines so that a different dosage went to men and women, no one would say that's sex discrimination. [00:03:13] Speaker 06: Otherwise... Well, this is quite a bit different than Dobbs and the abortion, because in each of these, a child's sex could, at birth, could be male or female. [00:03:24] Speaker 06: And DOBS is a very different thing. [00:03:26] Speaker 06: I don't know of any men getting abortions. [00:03:28] Speaker 06: So it seems to me that this is targeted at gender and sex in a very different way than was talked about in DOBS or the earlier Supreme Court case on pregnancy. [00:03:43] Speaker 02: Judge McEwen, the fact that this can affect men and women makes it an easier case for us to prove there's no sex discrimination than there was in Dobbs. [00:03:50] Speaker 02: In Dobbs, 100% of the people who were affected were women, and yet the court said rational basis applies in that context. [00:03:57] Speaker 02: The fact that medical treatments here apply to men and to women makes this case an easier equal protection analysis, not a harder one. [00:04:05] Speaker 06: Well, in that regard, that's an argument that's often made. [00:04:08] Speaker 06: Well, it applies to both sexes, so it can't be sex discrimination. [00:04:11] Speaker 06: But I thought we overcame that in Loving and also in Bostock, really aimed at this, that it actually doubles the problem. [00:04:21] Speaker 06: It doesn't resolve the problem. [00:04:24] Speaker 02: I'm glad that you raised BOSTIX. [00:04:25] Speaker 02: I wanted to address that specifically, Judge McKeown. [00:04:28] Speaker 02: Men and women in the employment context simply are not comparable to medical treatment for boys and girls. [00:04:33] Speaker 02: In the former, the Supreme Court held that biological difference is irrelevant. [00:04:37] Speaker 02: In the latter, it means everything. [00:04:39] Speaker 02: Again, breast removal for a girl who has cancer versus one who wants to appear to look like a boy, very different reasons for that medical treatment. [00:04:49] Speaker 02: And that's why, unlike hiring and firing in the BOSTIX context, [00:04:53] Speaker 02: The government can regulate procedures based on only one sex. [00:04:58] Speaker 02: So, for example, the state could regulate prostate cancer treatments. [00:05:01] Speaker 02: It could regulate cervical cancer treatments. [00:05:05] Speaker 02: And none of those would be subjected to heightened scrutiny, even though they only apply to one sex to the exclusion of the other sex. [00:05:12] Speaker 02: What's more, Bostick says that discrimination based on transgender status in hiring and firing equals discrimination based on sex. [00:05:20] Speaker 02: But that's not the question here when we're talking about matters of biology. [00:05:23] Speaker 02: The question is whether differentiation based on the benefits and risks of specific medical procedures is transgender discrimination, and it's clearly not. [00:05:32] Speaker 06: So I appreciate your distinguishing of BASTIC, and it's one that's often done in these cases, as you know. [00:05:39] Speaker 06: But in this regard, we have, at least as I understand, [00:05:47] Speaker 06: the landscape that non-transgender minors can get, for example, testosterone. [00:05:55] Speaker 03: Yes. [00:05:55] Speaker 06: And they can get a mastectomy, for example. [00:05:58] Speaker 06: Yes. [00:05:59] Speaker 06: A cisgender individual could get a mastectomy in order to decrease the appearance of breasts or tissue, top tissue. [00:06:12] Speaker 06: So it seems to me that in permitting the treatment there, [00:06:17] Speaker 06: that you are creating a classification that distinguishes between cisgender and transgender. [00:06:26] Speaker 06: Why not? [00:06:27] Speaker 02: Judge McEwen, it's because those are not the same treatments, even though the same procedure is being done. [00:06:32] Speaker 02: So think about the risks. [00:06:33] Speaker 02: If a boy has unusually large breasts and has a breast reduction, he does not lose the opportunity to breastfeed his future children. [00:06:41] Speaker 02: But if a girl gets a mastectomy, she does. [00:06:43] Speaker 02: She loses that forever. [00:06:44] Speaker 02: And there's all kinds of other consequences that she would experience as well. [00:06:47] Speaker 02: In the first instance, the procedure is done to try to help the boy have a healthy body. [00:06:52] Speaker 02: In the second instance, it's to change the person's appearance, and the risk-benefit analysis is different. [00:06:58] Speaker 05: Let me plug on that then. [00:07:00] Speaker 05: If you're saying in the first instance is to help the individual, the child with the excessively large, the young man with the excessively large breasts, and that helps them, [00:07:11] Speaker 05: In the second, the argument would be, well, then it helps individuals with gender dysphoria feel more comfortable. [00:07:17] Speaker 05: They won't have as many mental health issues. [00:07:20] Speaker 05: So there is a benefit to it. [00:07:22] Speaker 05: It's not 100% all the negativities. [00:07:25] Speaker 05: Let's look at the bone density issues. [00:07:26] Speaker 05: Let's look at impacts to fertility. [00:07:29] Speaker 05: There's positives there, too. [00:07:31] Speaker 05: I mean, there was evidence presented that, you know, a lot of these children who are having these issues suffer from depression and all of these other things and that such surgeries actually help them. [00:07:43] Speaker 02: Judge Diablo, the state does not deny that it's possible that there could be help, but undeniably there is also harm. [00:07:49] Speaker 02: And the risk benefit analysis is different in the two different situations. [00:07:53] Speaker 02: That's why the treatments aren't the same. [00:07:54] Speaker 02: Again, consider a vaginoplasty. [00:07:56] Speaker 02: If you do it on a girl who had some kind of sexual mutilation because of a horrible attack. [00:08:00] Speaker 02: that the benefits and risks to repairing her body are very different than a vaginoplasty for a boy who wants to identify as a girl. [00:08:09] Speaker 02: You can't remotely say that those two things are comparable. [00:08:12] Speaker 05: But I think that misses the point. [00:08:13] Speaker 05: I mean I think there is evidence that shows that gender dysphoria is a big complicated issue for the people who suffer from it. [00:08:22] Speaker 02: Absolutely. [00:08:22] Speaker 02: But that's not taking into account. [00:08:24] Speaker 02: And what Idaho's law does is that a great number of kids who experience gender dysphoria will eventually align their mind with their body and not experience it anymore if there is no intervention. [00:08:34] Speaker 02: Some scientists say 85%. [00:08:36] Speaker 02: That's the endocrinology folks that the plaintiffs cite for their experts. [00:08:42] Speaker 02: And so for those kids. [00:08:43] Speaker 06: I credit your argument that there is some disagreement in this area. [00:08:49] Speaker 03: Yes. [00:08:50] Speaker 06: Absolutely, we look at the record. [00:08:52] Speaker 06: We look at your brief. [00:08:54] Speaker 06: We look at the other brief. [00:08:55] Speaker 06: We look at all the amicus briefs. [00:08:58] Speaker 06: But we're here on an injunction. [00:09:00] Speaker 06: And in that injunction, we had the district court looking at all of this and crediting what you're saying, crediting what the plaintiffs were saying, and then coming out basically saying that, in his view, [00:09:20] Speaker 06: experts with respect to the gender dysphoria referred to by Judge Alba, actually those should be accorded more weight at this stage. [00:09:31] Speaker 06: We would have to completely tip those findings on a clear error review, wouldn't we, in order to reverse the injunction. [00:09:41] Speaker 02: Well, two responses to that Judge McEwen. [00:09:43] Speaker 02: First, it's not a clear error review. [00:09:45] Speaker 02: As the U.S. [00:09:46] Speaker 02: Supreme Court made clear in Gonzales, when you're talking about matters of science, the courts are supposed to defer to the legislature, not second-guess them. [00:09:53] Speaker 02: And you'll recall that Gonzales was an abortion case, and heightened scrutiny applied, and yet still the court deferred to the legislative [00:09:59] Speaker 02: findings of the legislature in that case. [00:10:03] Speaker 02: The other thing that the district court judge did here, which was wrong as a matter of procedure, he painted with a broad brush. [00:10:09] Speaker 02: And he said, I think that the benefits outweigh the risks for all these procedures, and so I'm going to enjoin everything. [00:10:15] Speaker 02: Well, now we have the benefit of the US Supreme Court's order in this case, which limits this to a very small matter, which is natal males who want estrogen. [00:10:25] Speaker 02: And on that particular issue, which the trial court judge did not analyze in any detail, [00:10:29] Speaker 02: The evidence is Legion. [00:10:31] Speaker 02: This is on page 692 of the appendix, all with citations to medical evidence. [00:10:36] Speaker 02: Natal males treated with estrogen have a 36-fold higher risk of stroke. [00:10:41] Speaker 02: Males treated with estrogen have a 22-fold increase in the rate of breast cancer. [00:10:46] Speaker 02: may have an increased rate of prostate cancer, may increase the risk of other cancers, may alter their immune systems and increase the risk of autoimmune disorders. [00:10:54] Speaker 02: And this is the big thing, the Endocrine Society. [00:10:56] Speaker 02: Again, Endocrine and WPATH are their two big organizations. [00:10:59] Speaker 02: One member of the Endocrine Society Guidelines Authoring Committee admitted they had no data, no data, to justify the guidelines allowing doctors to prescribe cross-sex hormones to youth under age 16. [00:11:11] Speaker 02: That's at page 27, note 52 of the Alabama amicus brief. [00:11:15] Speaker 02: So if we're going to analyze the scientific evidence, we need to do what the district court did not do, which is analyze it for the one plaintiff who's left in the case here. [00:11:23] Speaker 02: And if you properly defer to the legislative findings, which you must do, that's what Gonzalez says, that's what other Supreme Court cases suggest, I point you to that Menorah decision from the Seventh Circuit that Judge Posner wrote. [00:11:36] Speaker 02: It's page 17 of our reply brief. [00:11:37] Speaker 02: He talks at length about federal rule 201, [00:11:40] Speaker 02: And it's explanatory comments about the difference between legislative facts and adjudicative facts. [00:11:45] Speaker 02: That applies with full force here, just like it did in Gonzales. [00:11:48] Speaker 02: So when you look at that, at a minimum, there's at least a tie, although I think the scientific evidence is drastically greater in our favor when it comes to risks. [00:11:57] Speaker 02: But even in a tie, that tie has to go to the legislature when you're talking about legislative facts in this context. [00:12:06] Speaker 06: You think we should hold this case for the Supreme Court's review of Skirmetty? [00:12:11] Speaker 02: I was expecting you might say that. [00:12:13] Speaker 06: I'm sure you might have an answer to that. [00:12:15] Speaker 02: If this was just an ordinary case involving monetary damages or something like that, I would say, by all means, we should wait. [00:12:22] Speaker 02: But we're talking about the health of kids that's at risk here. [00:12:25] Speaker 02: And with that injunction in place in the trial court, any other male who comes in and wants estrogen treatments is going to be able to get an injunction from this same judge. [00:12:34] Speaker 02: And so I don't think waiting is an option. [00:12:36] Speaker 02: I think you need to look at the fact that this is a statute that [00:12:40] Speaker 02: differentiates based on medical treatments and the specific risks and benefits and apply rational basis. [00:12:47] Speaker 06: Also, if you slow down a little bit, it would help? [00:12:49] Speaker 02: Of course, Judge McEwen. [00:12:50] Speaker 06: Because there's a lot of information here, and I'm trying to get everything you're saying. [00:12:54] Speaker 02: Yes. [00:12:55] Speaker 02: We have such a short time together. [00:12:56] Speaker 06: And we have a short time, and I know that our presiding judge will be a little lenient given the importance of the matter, but I know you have a lot to say, so it would help me to slow down slightly. [00:13:06] Speaker 06: Absolutely. [00:13:10] Speaker 06: You know, I haven't really heard that as an argument as to why we might not defer and wait for the Supreme Court. [00:13:18] Speaker 06: All you're saying is, well, another person, another individual could come in and then they would get an injunction. [00:13:24] Speaker 06: So instead of having a singular injunction, we're at risk [00:13:29] Speaker 06: of having a cascade of injunctions. [00:13:31] Speaker 06: Is that your rationale? [00:13:32] Speaker 02: That's true, yes. [00:13:33] Speaker 02: And of course, there's also the state's interest in being able to validly enforce its law, which is an ongoing constitutional, federalist harm to the state of Idaho. [00:13:43] Speaker 02: So in these unique circumstances, I don't think you need to wait for Skirmetty. [00:13:48] Speaker 02: Now, I will pick up on the Scrametti thread because I thought that Judge Sutton's opinion in Scrametti is one that's worth following. [00:13:56] Speaker 02: I mean, the 11th Circuit's decision in the Echnist-Tucker case as well. [00:14:01] Speaker 02: You also know that the 7th Circuit issued an order. [00:14:04] Speaker 02: It wasn't a long one that basically agreed with those. [00:14:06] Speaker 02: But each one of those three opinions adopted the same argument that we're pressing here, that when you're talking about regulating the risks and benefits of medical procedures, you're not classifying by sex or by gender identity. [00:14:20] Speaker 02: We're talking about procedures to help kids with gender dysphoria. [00:14:25] Speaker 02: We're talking about specific treatments. [00:14:27] Speaker 02: And all three of those circuits concluded that rational basis applies, and so you don't even need to get into the science, but if you do, there's deference. [00:14:35] Speaker 06: Do you agree that the parents have a fundamental right under the Fourteenth Amendment as to health care decisions for their children? [00:14:45] Speaker 02: I was going to turn there next, because I think that issue is completely resolved by this Court's decision in pickup. [00:14:51] Speaker 02: There are four principles from pickup that I'll quickly tick off. [00:14:54] Speaker 02: First, parents have no right to choose a specific medical treatment the state has deemed reasonably harmful. [00:15:00] Speaker 02: Second, plenary review, not abusive discretion applies because the district court ruling rests on a premise of law. [00:15:07] Speaker 02: Same here. [00:15:08] Speaker 02: Third, Pickup cites this court's decision in National Association for Advancement of Psychoanalysis for the principle that there is no 14th Amendment right to any specific treatment. [00:15:20] Speaker 02: And here we're talking about a derivative right to that. [00:15:23] Speaker 02: And finally, Pickup says, you can't compel a state [00:15:25] Speaker 02: to accept the plaintiff's view of what treatments are safe and effective for minors. [00:15:30] Speaker 02: That applies full force. [00:15:31] Speaker 06: I wonder about Idaho's view on this because there was an argument, I think it might have been in this courtroom, about the right of a minor to cross state lines and get an abortion. [00:15:48] Speaker 06: without notice to the minor's parents. [00:15:51] Speaker 06: Yes. [00:15:52] Speaker 06: And in that case, I think that the state of Idaho took the position is that the parent had the right to make that health care decision. [00:16:02] Speaker 06: And one could argue that you have the same competing rights in an abortion to have to not to have as you might have here. [00:16:11] Speaker 06: So why hasn't [00:16:13] Speaker 06: I don't take an inconsistent views on this parent's fundamental right. [00:16:19] Speaker 02: Because that case and this case are the converse of each other, Judge McEwen. [00:16:23] Speaker 02: There we're talking about a third party, someone not part of the family, taking a child to get a medical intervention without the parent's permission or without them even knowing about it. [00:16:32] Speaker 02: Certainly every parent has the right to know [00:16:35] Speaker 02: that something's going to happen to their child for purposes of a medical intervention and be allowed to have some say in that. [00:16:40] Speaker 02: In this case, it's a parent who is demanding a medical treatment, just like the parents did in pickup. [00:16:45] Speaker 02: And the court's saying, well, the state gets to make that call. [00:16:48] Speaker 02: Parents don't get to say, well, the best treatment for my kid would be medical marijuana, even though Idaho doesn't allow that for minors. [00:16:54] Speaker 02: Or that the best treatment for my kid would be opioids, even though my state prohibits that after five days use or something like that. [00:17:01] Speaker 02: And the bottom line, what makes this case different from that one, is that we don't constitutionalize medical standards. [00:17:08] Speaker 02: I mean, what if WPATH, and you've seen the documents now, they may do this, 10 years from now takes the exact opposite position. [00:17:15] Speaker 02: If you create a constitutional right, parental or equal protection, to get these treatments, then Idaho can never adjust [00:17:22] Speaker 02: and fix its treatments to match what WPATH says in the future. [00:17:26] Speaker 02: I mean, if that was the standard, it would still be constitutional to have leeches to treat your fever. [00:17:31] Speaker 02: We don't fix medical practice in the Constitution, and this Court should not be the first to do that in Idaho. [00:17:38] Speaker 06: You started on pickup, and I think we interrupted you with questions. [00:17:41] Speaker 06: Would you go back to your comments on pickup? [00:17:44] Speaker 06: Because I'm very interested in how the application of that [00:17:48] Speaker 02: So just to recap, in pickup, you had parents who wanted their child to be able to get so-called conversion therapy. [00:17:54] Speaker 02: And sometimes we think about conversion therapy as electroshock therapy and other things that happened back in the 20s and 30s that have long been discredited. [00:18:02] Speaker 02: But all the parents wanted in pickup for their child in California was talk therapy with a counselor. [00:18:08] Speaker 02: And counselors deal with all kinds of attractions and addiction, whether that be alcohol, drugs, pornography. [00:18:14] Speaker 02: In this case, it was same-sex attraction. [00:18:16] Speaker 02: And the parents said they had a fundamental right under the Fourteenth Amendment Substantive Due Process Clause to get that treatment for their child because they knew better than California what their child needed. [00:18:28] Speaker 02: And this court said, sorry, no way. [00:18:31] Speaker 02: When the state decides that that's [00:18:33] Speaker 02: got the potential to be harmful, then the state's rule controls not the parents' preference. [00:18:38] Speaker 02: And that would be just as true, like I said, with medical marijuana. [00:18:41] Speaker 02: Idaho prohibits lobotomies, which used to be an accepted practice for dealing with some mental health issues. [00:18:48] Speaker 02: You could go on and on and on, that ultimately the states get to make the call in these areas. [00:18:56] Speaker 02: I have one quick question. [00:18:58] Speaker 02: Yes, thank you Judge Hawkins. [00:18:59] Speaker 04: You've asked us to take notice of WPATH information that pertains to this issue. [00:19:08] Speaker 03: Yes. [00:19:09] Speaker 04: That information existed at the time that Idaho enacted SB 71? [00:19:14] Speaker 02: I don't believe it existed until after the enactment, but Idaho got the benefit of those documents because of a subpoena in this case. [00:19:25] Speaker 02: There's a complicated procedural history. [00:19:27] Speaker 02: So I'm going to pause just by saying at the very top that we don't need those documents. [00:19:32] Speaker 02: We just didn't want the court to rule and adopt WPATH standards the way the district court did without knowing that they were out there. [00:19:38] Speaker 04: Here's my question. [00:19:40] Speaker 04: But again, slow down the talk for a minute. [00:19:43] Speaker 02: Of course, Judge Hawkins. [00:19:45] Speaker 04: These documents were available and available to the state of Idaho at the time of the preliminary injunction hearing. [00:19:51] Speaker 02: They were produced. [00:19:53] Speaker 04: Yes or no? [00:19:54] Speaker 02: Yes. [00:19:55] Speaker 04: Did you bring them to the attention of Judge Windmill? [00:19:58] Speaker 02: Because they had not been reviewed, the answer is no. [00:20:01] Speaker 04: Oh, you didn't bring them to the attention of Judge Windmill at that time? [00:20:04] Speaker 02: Correct. [00:20:05] Speaker 02: It took more than six months to review the 100,000 pages. [00:20:08] Speaker 04: The likelihood is this case is going to go back to district court to refine the injunction to meet the requirements of the Supreme Court, correct? [00:20:17] Speaker 02: Yes, correct. [00:20:18] Speaker 04: Can you bring that to the attention of Judge Windmill at that time? [00:20:21] Speaker 02: We tried to bring that to the attention of Judge Windmill before we brought it to this court, and he refused to consider the documents. [00:20:27] Speaker 04: Well, now you have the Supreme Court saying you need to take a look at and adjust the preliminary injunction to meet at least temporarily these standards. [00:20:36] Speaker 04: Why not take the opportunity to ask him again? [00:20:39] Speaker 04: All he can do is say no, and if he says yes, you're back in business. [00:20:44] Speaker 02: We will certainly ask him again. [00:20:48] Speaker 02: But this court and the district court don't need the WPATH documents in order to rule in Idaho's favor. [00:20:53] Speaker 02: That's the point that I want to make clear. [00:20:55] Speaker 04: You forgive us if we're a little bit concerned that you're talking about documents that have existed for some time and just now you're telling us about them. [00:21:04] Speaker 02: Yeah, so briefly, Judge Dawkins, just to give you the picture. [00:21:07] Speaker 02: Idaho gets the documents. [00:21:08] Speaker 02: It's more than 100,000 pages. [00:21:10] Speaker 02: It took Idaho's attorneys more than six months to get through those documents. [00:21:14] Speaker 02: When they did, they went back to the plaintiff's attorneys, who had previously said that they would agree to a protective order in this case so that they could be produced to the court. [00:21:22] Speaker 02: And they went back on that agreement and said they wouldn't. [00:21:24] Speaker 02: And so then we went to the district court. [00:21:26] Speaker 02: And he waited several months before we came to this court because the oral argument was getting close. [00:21:31] Speaker 02: So, is it an ideal process? [00:21:33] Speaker 02: No. [00:21:34] Speaker 02: Idaho did do the best that it could in the circumstances. [00:21:37] Speaker 02: Do you need those documents? [00:21:38] Speaker 02: No, I don't think you do. [00:21:40] Speaker 06: I understand that, because it would be extraordinary on appeal to supplement the record, and I think everyone's acknowledged that. [00:21:46] Speaker 06: I just don't understand why, on a third-party subpoena, that the state needed to review these documents before they were turned over. [00:21:56] Speaker 02: Well, certainly for relevancy and to be able to present arguments about why the documents disproved what the expert's position was in this case about WCAT. [00:22:05] Speaker 06: Why not? [00:22:05] Speaker 06: I don't know. [00:22:07] Speaker 06: I spent 25 years in the trial court. [00:22:09] Speaker 06: And when you sent out a subpoena and the documents came back, everybody got access to the documents. [00:22:15] Speaker 06: And then you make it's relevant, it's not relevant, it should be under this protective order or that. [00:22:20] Speaker 06: So I just didn't understand. [00:22:21] Speaker 06: Maybe you can explain to me why [00:22:23] Speaker 06: these are kind of embargoed for that period of time without the other side seeing them when they're not your documents, meaning the state of Idaho, but they're third party documents. [00:22:34] Speaker 02: Right. [00:22:34] Speaker 02: But what I understood Judge Hawkins to be asking is- Well, this is a separate question. [00:22:38] Speaker 02: Well, connected. [00:22:39] Speaker 02: Why not turn them over to the court? [00:22:40] Speaker 02: And I don't believe that trial practice is usually that when you get hundreds of thousands- Not to the court. [00:22:45] Speaker 06: I'm saying to the other side. [00:22:47] Speaker 02: Oh, to the other side. [00:22:48] Speaker 02: I'm not aware why they didn't get those documents. [00:22:50] Speaker 06: OK. [00:22:50] Speaker 06: Because to me, that's what was extraordinary about these motions that are flying around is, as I said, if you subpoena third-party documents, they're not your documents. [00:22:59] Speaker 06: They're third-party documents that come to a party in response to a third-party subpoena. [00:23:04] Speaker 06: And then normally, those get turned over, and then you can argue about it. [00:23:07] Speaker 06: But here, and one of the reasons they didn't go to the [00:23:12] Speaker 06: district court, I guess, is because they were kind of embargoed in the state's review process. [00:23:17] Speaker 02: Correct. [00:23:18] Speaker 06: Okay. [00:23:20] Speaker 02: Thank you. [00:23:21] Speaker 02: All right. [00:23:21] Speaker 02: I will, I realize I'm out of time, but if you would grant me a few minutes for rebuttal. [00:23:25] Speaker 02: Thank you, Judge Villalba. [00:23:26] Speaker 05: Not a problem. [00:23:28] Speaker 05: Okay. [00:23:28] Speaker 05: Let's get Mr. Strangio. [00:23:34] Speaker 05: All right, Mr. Strangio, as I mentioned, it's my understanding that you are going to allow six minutes of your argument time for counsel from the US Department of Justice. [00:23:43] Speaker 01: That is correct. [00:23:43] Speaker 01: Thank you, Your Honor. [00:23:44] Speaker 01: Good morning. [00:23:45] Speaker 01: I'll just roll with this microphone. [00:23:51] Speaker 01: There is a button. [00:23:52] Speaker 04: There's a button down there. [00:23:53] Speaker 04: Yeah. [00:23:54] Speaker 04: She can help you with it. [00:23:55] Speaker 04: Oh, yes. [00:23:56] Speaker 04: Thank you. [00:23:56] Speaker 04: Thank you. [00:23:56] Speaker 04: Thank you. [00:23:58] Speaker 01: Good morning, Your Honors. [00:23:59] Speaker 01: Thank you. [00:24:00] Speaker 01: May it please the court, Chase Strangio, on behalf of the plaintiff's appellees. [00:24:06] Speaker 01: Idaho's HB 71 categorically bans a range of medical treatments that are united solely based on the fact that they allow an adolescent to live in a way that Idaho considers inconsistent with their birth sex. [00:24:21] Speaker 01: This ban on medical treatment classifies based on both sex and trans status and triggers heightened equal protection scrutiny for at least three independent reasons. [00:24:32] Speaker 01: First, HB71 classifies based on sex on its face. [00:24:36] Speaker 01: By prohibiting treatment if and only if that treatment is inconsistent with a person's birth sex, HB71 makes a person's sex a but for a cause of the law's disparate treatment. [00:24:49] Speaker 01: Second, by classifying based on the incongruence between a person's perception of their sex and their birth sex, HB71 facially classifies based on transgender status. [00:25:01] Speaker 01: Having a perception of one's sex that differs from one's birth sex is the very definition of being transgender, and under this court's precedence, a proxy classification for transgender status triggering height and equal protection scrutiny. [00:25:16] Speaker 01: And third, in addition to the law's facial sex and trans status classifications, HB 71 was passed in part because of its adverse effects on the ability of transgender adolescents to live in accordance with their birth sex. [00:25:31] Speaker 01: By design and effect, it enforces Idaho's preference for gender conformity. [00:25:37] Speaker 01: For all these reasons, this law must be tested under heightened scrutiny, and none of the appellant's arguments for applying rational basis can be squared with this court's precedent and the Supreme Court's precedent. [00:25:49] Speaker 05: So let me ask you this, counsel. [00:25:52] Speaker 05: I noticed that Pickup versus Brown wasn't addressed in major detail in the briefings on your end or your side. [00:26:01] Speaker 05: How does the argument that there is a fundamental right for parents to obtain these treatments for their children survive in light of the Pickup holding? [00:26:10] Speaker 01: So, Your Honor, I think that the way in which to understand this case and pick up together is possibly an articulation of the burden that was not done in the way I would have done it in pick up. [00:26:25] Speaker 01: So here you have a law that categorically bans medical treatment for minors, but that treatment is available for adults. [00:26:35] Speaker 01: And so the fundamental right as the Supreme Court has articulated it in Parham is the right to direct the medical care of one's minor child. [00:26:43] Speaker 01: The burden on that right here, and I would say analogously in Pickup with all candor, but it was not articulated this way and the due process discussion in Pickup is very, very minimal, that the burden is the [00:26:58] Speaker 01: In essence, what has happened is the government, in all other contexts, trusts and expects parents to weigh the risks and benefits of treatment that are available for adults. [00:27:07] Speaker 01: In the parental context, it's the parent who consents to the treatment for the minor. [00:27:10] Speaker 01: And so it is the ban on the treatment that is available to adults but banned only for minors that burdens that right. [00:27:16] Speaker 06: And then I think Idaho says, well, it may burden the right, but there's not an absolute right, particularly if the state has made either a legislative or other finding [00:27:28] Speaker 06: that there's harm in the treatment. [00:27:30] Speaker 01: Well, Your Honor, I think that goes to the application of scrutiny. [00:27:33] Speaker 01: So the question, when the right is burdened, you get to the application of, I would say, a heightened scrutiny. [00:27:40] Speaker 01: If you look at, for example, Troxel, which deals with the parental right, the court sort of identifies this as a heightened scrutiny. [00:27:47] Speaker 01: And I think somewhere between heightened scrutiny and strict scrutiny applies. [00:27:50] Speaker 01: And that's where you get to the question of whether or not the burden is justified. [00:27:54] Speaker 01: And coming back to, if I could, to the equal protection claim, because I think my friend on the other side was confusing in his discussion, the question of whether a classification exists that's suspect or quasi-suspect that triggers heightened scrutiny with its application. [00:28:11] Speaker 01: Because we heard a lot about, well, these are different treatments with different risks and different benefits. [00:28:17] Speaker 01: And that is a question for the application of heightened scrutiny. [00:28:22] Speaker 01: That does not change the existence of the classification on the face of the statute in this case. [00:28:28] Speaker 06: Where does, well, he mentions two cases that I'm sure both he and you are prepared to deal with. [00:28:35] Speaker 06: And one is Bostic, says, well, that really doesn't apply in this context. [00:28:38] Speaker 06: And then second, Gonzales, where we need to defer to the legislature. [00:28:44] Speaker 01: So I think Bostock does apply. [00:28:47] Speaker 01: I also think you could recognize these as trans status and sex classifications without Bostock. [00:28:52] Speaker 01: It's right in the face of the statute as I was discussing, but in terms of the applicability of Bostock and Bostock's conclusion that to classify or discriminate based on [00:29:03] Speaker 01: trans status is to do so based on sex, that Bostock was reasoning that based on sort of two principles, sex being a but for cause, which we have discussed a little bit is the same here, and that the disparate treatment based on sex, which is also present here. [00:29:22] Speaker 01: Now, this court has already recognized [00:29:26] Speaker 01: that Bostock is not limited to Title VII. [00:29:28] Speaker 01: So this is already a different case than Scrametti, than Echnist-Tucker, Doe v. Snyder. [00:29:35] Speaker 01: This court has sent the case back down because the district court's reading of Bostock was too narrow, applied the reasoning from Bostock to the Equal Protection Clause in Hecox. [00:29:43] Speaker 01: So I think in the Ninth Circuit, Bostock has already been applied outside the context of Title VII. [00:29:49] Speaker 01: Then with respect to Gonzalez v. Carhart, which is a due process case, [00:29:54] Speaker 01: And my friend on the other side referenced the medical and scientific uncertainty language from Gonzales v. Carhartt. [00:30:02] Speaker 01: It does not stand for the proposition that when a government action classifies based on trans status or sex and has to apply heightened scrutiny, [00:30:12] Speaker 01: that somehow fact-finding by the district court is not deferred to. [00:30:16] Speaker 01: And in fact, Gonzales V. Carhart says that where individual constitutional rights are at stake, the court has an independent duty to review those. [00:30:26] Speaker 01: So I think that [00:30:28] Speaker 01: The other side is mixing up a number of different doctrines and I sort of want to continue to tease them out because first is the question of what is the classification in this statute and it's a sex classification and a trans status classification and that means that heightened scrutiny applies. [00:30:45] Speaker 04: Would your position be the same if HB 71, this hypothetical obviously, were aimed at children five and under? [00:30:56] Speaker 01: If the law prohibited medical treatment for the same purpose, to affirm a gender different than one's birth sex, the classification would still be a sex and trans status classification. [00:31:09] Speaker 01: I think then the question is, would that prohibition survive the requisite heightened scrutiny, which would be a fundamentally different question, in part because the record shows, and it's not disputed, that there are no medical treatments provided [00:31:22] Speaker 01: to individuals for purposes of treating gender dysphoria prior to puberty. [00:31:27] Speaker 01: So the classification is the classification. [00:31:29] Speaker 01: Then the question is, when it's then applied, and this is an important distinction from Gonzales v. Carhart, which the test under equal protection heightens scrutiny is, does the sex, or in this case sex and trans status classification, substantially advance an independent, important governmental interest? [00:31:49] Speaker 01: And the government's burden is to show that the line they've drawn advances an important interest. [00:31:55] Speaker 01: And here they have failed to do that. [00:31:57] Speaker 01: But going back to Judge Hawkins' question, it's important, this is why it's so important, to separate out the classification question, what level of scrutiny applies, with its application. [00:32:06] Speaker 01: And then you look at the record. [00:32:09] Speaker 01: I wanna get to the application of heightened scrutiny, but I do quickly wanna address the Dobbs-Geduldig argument that has come up. [00:32:18] Speaker 01: Under Dobbs and Godoldig, this law triggers heightened equal protection scrutiny for the three reasons that I identified. [00:32:25] Speaker 01: It's a facial sex classification, it's a facial trans status classification, and it was passed in part because of its adverse effects on transgender adolescents. [00:32:34] Speaker 01: Dobbs and Godoldig, in essence, stand for the proposition that you can't deny benefits to someone because they're a man or because they're a woman, but concluded that denying benefits based on pregnancy and Godoldig, classifying based on abortion, is not the same as denying benefits because of sex. [00:32:52] Speaker 01: So that's what the decision stood for, that it wasn't a facial sex classification. [00:32:58] Speaker 01: Here, HB71 does exactly, when we're talking about the sex classification, what Dobbs and Godoldig say does trigger heightened scrutiny. [00:33:06] Speaker 01: In each application, it denies benefits because someone either has a birth sex of male or a birth sex of female. [00:33:13] Speaker 01: So Pam Poe could access medical treatment to affirm a female gender identity, but for her assigned sex of male. [00:33:23] Speaker 06: That is how the- Does that differ from Godoldig, where only women [00:33:28] Speaker 06: Or in this case, if you would say just a trans person can't have, you can have the pregnancy differential. [00:33:37] Speaker 01: So I think it's a different analysis with respect to the sex classification versus the trans status classification. [00:33:44] Speaker 01: So focusing on the sex classification first, which I think is importantly distinct from the trans status one. [00:33:52] Speaker 01: as you, Your Honor, alluded to earlier, a medical treatment or a series in this case of medical treatments that is limited to one sex. [00:34:00] Speaker 01: In order to determine whether or not treatment is prohibited, Idaho bases that determination on an individual's birth sex and whether the treatment is inconsistent with it. [00:34:10] Speaker 01: So if Pam Poe goes to the doctor with, let's say, a person designated female at birth, but they both have a female gender identity and they both have distress, let's say, because they're [00:34:22] Speaker 01: have masculinizing impacts of some aspect of their puberty, it's the treatment to feminize their appearance is only prohibited for Pampoe, not the person with a sex designated of female at birth, because Pampoe's sex designated at birth is male, and Idaho considers the treatment inconsistent with that sex. [00:34:45] Speaker 01: So it is but for her sex that the treatment is prohibited. [00:34:49] Speaker 06: Let me ask you about what's now in front of the court, because we have a dramatically narrowed injunction that applies only to the plaintiff here, correct? [00:35:03] Speaker 06: Correct. [00:35:04] Speaker 06: And that individual plaintiff, as I understand it, isn't seeking surgery. [00:35:10] Speaker 06: That's correct. [00:35:11] Speaker 06: At this state. [00:35:14] Speaker 06: Does that affect how we look at the district court's factual determinations and what's in front of us? [00:35:25] Speaker 06: Or are we looking at Poe and nobody else, or are we looking broader? [00:35:33] Speaker 01: So your honor, with respect to the classification in the statute, that's a legal question and it remains. [00:35:39] Speaker 01: And then the question of the individual PAMPO at the center of this case, I still think the factual findings with respect to the medical care, and this is important because the district court found that the risks of this treatment are comparable to the risks of many other forms of medical treatment that parents routinely consent to on behalf of their [00:36:00] Speaker 01: minor children. [00:36:01] Speaker 01: That's relevant to the tailoring of this law, and that's the question. [00:36:05] Speaker 01: Can the government show a close means and fit between this categorical prohibition on a range of treatments and an interest in protecting children? [00:36:16] Speaker 06: I hear what you're saying. [00:36:18] Speaker 06: It doesn't quite get to my question, though. [00:36:20] Speaker 01: Sorry. [00:36:21] Speaker 06: My question relates to Poe, who isn't seeking surgery. [00:36:28] Speaker 06: but is seeking other medical care. [00:36:32] Speaker 06: Is that the injunction that we're reviewing on appeal, or are we reviewing an injunction that goes to all range of medical treatment to treat gender dysphoria? [00:36:47] Speaker 01: So you're reviewing the injunction that applies to her. [00:36:51] Speaker 01: So it's an injunction with respect to the medical treatment that she's receiving, which is the estrogen and the testosterone suppression. [00:36:59] Speaker 01: So that is the injunction. [00:37:01] Speaker 01: I think the factual findings still remain relevant because the legal analysis under equal protection [00:37:08] Speaker 01: is whether or not the line that the government has drawn substantially advances an important governmental interest. [00:37:14] Speaker 01: And it's important to recognize the lack of the close means and fit between what they say they're doing, protecting children, and what they've done, which is categorically and criminally prohibited a range of treatments because those treatments allow individuals to live in a way that is inconsistent with their birth sex. [00:37:35] Speaker 06: Should we, I'll ask you the same question that I asked. [00:37:40] Speaker 01: Should we wait? [00:37:40] Speaker 06: In Idaho, and that is, should we wait for Skirmetty? [00:37:44] Speaker 01: So, Your Honors, I think that this may be the one area where we agree. [00:37:48] Speaker 01: And I think that there is value in, [00:37:55] Speaker 01: answering the question about the constitutional rights, the critically important constitutional rights that are at stake here for Pam Pope, for the rest of this circuit, because these are laws that cause significant, significant harm to adolescents. [00:38:13] Speaker 06: I understand that, but I'm reading the certified question or the granted question to the Supreme Court, which looks like a pretty comparable statute. [00:38:25] Speaker 06: out of Tennessee. [00:38:27] Speaker 06: So you're saying we should decide it now because there's some kind of psychic or other harm that's floating out there by virtue of the law? [00:38:41] Speaker 01: Oh, so no, Your Honor, I didn't mean that necessarily. [00:38:43] Speaker 01: I mean, I think that there's the concrete injury to Poh, and then there's the constitutional injury to Poh, and there's the clarification of the law. [00:38:57] Speaker 01: I will also say that the Supreme Court did not grant the due process question, so that's independent. [00:39:04] Speaker 01: And I would, coming back to, and I see that I am over time, and if I could just have [00:39:09] Speaker 01: one or two more minutes before I turn it over to the United States. [00:39:14] Speaker 01: In addition to the lack of the due process question, there is the fact that I think that one of the reasons this is a law that triggers heightened scrutiny is that it was passed, as I mentioned, because of and not just in spite of its adverse effects. [00:39:28] Speaker 01: on transgender adolescents' ability to live in accordance with their gender identity. [00:39:34] Speaker 01: And that is a statute-specific inquiry about this statute and its intended effects. [00:39:43] Speaker 01: And so I think that each statute should be considered on its own terms and that it triggers heightened scrutiny for that reason, and that the government has not met its burden based on the record that was before the district court. [00:39:55] Speaker 01: I know we talked a little bit about the extra documents. [00:40:00] Speaker 01: I will, unless your honors have specific questions for us, rest on our briefing in that regard. [00:40:06] Speaker 01: But I do just want to quickly come back to Pam Poe. [00:40:08] Speaker 01: There is a young woman at the core of this case, and she, like many other individuals, experienced tremendous life-saving benefit from this treatment. [00:40:18] Speaker 01: And the district court made factual findings to that point about the benefits of this care. [00:40:25] Speaker 06: And maybe I'll come back to my question. [00:40:29] Speaker 06: If we limit it only to Poe and Poe's requested treatment, is that the appropriate construct on appeal now, having gone up to Supreme Court and back, and that we just have Poe in the case? [00:40:48] Speaker 01: Yes, Your Honor. [00:40:49] Speaker 01: We accept that that is the current injunction. [00:40:51] Speaker 01: It is limited to her parents. [00:40:52] Speaker 01: Right. [00:40:53] Speaker 01: Yes. [00:40:53] Speaker 01: They are the only family to whom the injunction currently applies. [00:40:58] Speaker 01: And that is the question on appeal. [00:40:59] Speaker 01: I still would contend, as we've been discussing, that the rest of the factual findings are relevant to the analysis of the lack of close means and fit between a felony categorical ban on treatment with no exceptions and a purported interest in protecting children. [00:41:13] Speaker 06: With the injunction in effect, is there evidence in the record as to whether treatment has proceeded? [00:41:23] Speaker 01: Treatment has proceeded for Poe? [00:41:25] Speaker 01: Yes. [00:41:26] Speaker 01: Well, it is not in the district court record because the decision was prior to January 1st, which was the effective date of the law. [00:41:37] Speaker 01: But the injunction is in place, and she has the protections of the injunction. [00:41:42] Speaker 01: All right. [00:41:42] Speaker 01: Thank you. [00:41:42] Speaker 01: Yeah. [00:41:43] Speaker 05: All right. [00:41:43] Speaker 05: Thank you, counsel. [00:41:44] Speaker 05: Thank you. [00:41:46] Speaker 05: Ms. [00:41:46] Speaker 05: Hecker? [00:41:55] Speaker 00: Good morning, your honors, and may it please the court, Elizabeth Hecker for the United States. [00:41:59] Speaker 00: I'd like to just start out if it's OK with the court just presenting the United States position and also then move on to address some of the specific questions that the court has asked. [00:42:09] Speaker 00: Under this court's binding precedent, HB 71 warrants heightened scrutiny under the Equal Protection Clause. [00:42:16] Speaker 00: No court has held that laws like these survive this demanding review, and this court should not be the first. [00:42:25] Speaker 00: HB 71 warrants heightened scrutiny on two grounds. [00:42:28] Speaker 00: First, as this court squarely held in Karnosky and Hecox, laws that discriminate against transgender individuals are entitled to heightened scrutiny because transgender people themselves represent a quasi-suspect class. [00:42:44] Speaker 00: It cannot be seriously disputed that Idaho passed a statute specifically to deprive transgender minors of a treatment that it allows for other purposes. [00:42:54] Speaker 00: The statute also warrants heightened scrutiny because it relies on sex-based classifications, and it does so in three ways. [00:43:01] Speaker 00: First, it conditions the legality of certain medical treatments on a minor sex assigned at birth. [00:43:08] Speaker 00: To know if a treatment is legal or illegal, you have to know the minor sex assigned at birth. [00:43:13] Speaker 00: This is a facial sex classification. [00:43:17] Speaker 00: Second, as the Supreme Court held in Bostock, laws that differentiate based on transgender status are necessarily a form of discrimination based on sex because they discriminate against individuals identified as one sex at birth and another today. [00:43:33] Speaker 00: And this court recognized the same in HECOX. [00:43:37] Speaker 00: And finally, this law disadvantages minors based on their gender nonconformity, which this court has recognized, again, in HECOX, is a form of sex discrimination. [00:43:46] Speaker 00: It says to minors, you can have this medically necessary treatment as long as you're not using it to look like a sex other than the one you are assigned at birth. [00:43:58] Speaker 00: Hecox discusses this as well. [00:44:01] Speaker 00: The state has failed entirely to show, as is its burden, that it has a legitimate interest in banning these treatments. [00:44:08] Speaker 00: As the district court specifically found, the treatments at issue here, when provided in accordance with the WPATH and Endocrine Society guidelines, are safe, effective, and medically necessary for some adolescents. [00:44:23] Speaker 00: These findings were grounded in the testimony and are reviewed for clear error. [00:44:28] Speaker 00: I'd like to point out, Your Honors, with respect to the discussion that Mr. Bursch spoke with the Court about with respect to the clear error difference in legislative findings. [00:44:42] Speaker 00: In Lotta v. Otter, [00:44:43] Speaker 00: in this court's decision in 2014 regarding the ban on same-sex marriage that I believe was Nevada and Idaho had passed. [00:44:53] Speaker 00: This court said, unsupported legislative conclusions as to whether particular policies will have societal effects of the sort of issue in this case, determinations which often, as here, implicate constitutional rights have not been accorded deference by the Supreme Court. [00:45:12] Speaker 04: arguments I hear you making seem to be addressed [00:45:17] Speaker 04: as if the Supreme Court's intervention, if you will, didn't exist. [00:45:23] Speaker 04: So I have the same question I think both of my colleagues do, and that is, what injunction are we looking at? [00:45:30] Speaker 04: There is no question we will have to send this case back to the district court to comply the injunction with the requirements of the US Supreme Court. [00:45:41] Speaker 04: So is that what we're looking at or the broader issue? [00:45:45] Speaker 00: So, Your Honor, I think that certainly you're looking at, so there's a bit of a difference between kind of the merits of the case and the findings and the findings of law and the injunction itself. [00:45:54] Speaker 00: This court's determination that this law is entitled to heightened scrutiny will still matter regardless of the scope of the injunction. [00:46:02] Speaker 00: This court's findings with respect to the effectiveness of this care still matter regardless of the scope. [00:46:08] Speaker 00: And this court's findings with respect to the WPATH and Endocrine Society guidelines still matter, regardless of the scope of the injunction. [00:46:17] Speaker 00: And I want to just specifically zero in here on heightened scrutiny. [00:46:22] Speaker 00: The courts in Skirmetty and Echnice Tucker, the case that is going out to the Supreme Court, both upheld these laws only on rational basis standard. [00:46:31] Speaker 00: I believe this court's holdings in Hecox and Karnosky [00:46:35] Speaker 00: foreclose that finding. [00:46:38] Speaker 00: It forecloses a rational basis test on this case. [00:46:42] Speaker 00: And I think that this is the reason, not only is heightened scrutiny important and remains important regardless of the scope of the injunction, but this court's opinion in this case, when it comes down, will be able to inform the Supreme Court when deciding scrimmety, which it ultimately will do. [00:46:59] Speaker 06: the court will have... I know that they've always asked for our opinion on how they should resolve their cases but you know of course we're always honored if they do. [00:47:09] Speaker 00: Yes, Your Honor, I think that it will be very important, because I think that this case and this particular law and laws like this are so clearly entitled to heightened scrutiny review. [00:47:22] Speaker 00: And I believe that that was a major, major flaw of the Skirmede and Neknis-Trucker opinions. [00:47:28] Speaker 00: As Mr. Strangio alluded to, both of those opinions repeatedly conflated the two steps of the equal protection analysis. [00:47:37] Speaker 00: They essentially said that these laws are not entitled to heightened scrutiny because they serve different purposes. [00:47:43] Speaker 00: But that's not what determines whether a law is entitled to heightened scrutiny. [00:47:46] Speaker 00: What determines whether a law is entitled to heightened scrutiny is, is it a sex classification or does it discriminate based on some other protected class? [00:47:56] Speaker 00: That is step one. [00:47:58] Speaker 00: If those standards are met, then it is entitled to heightened scrutiny. [00:48:02] Speaker 00: And the purpose of the law goes to the second step. [00:48:05] Speaker 00: Both the Skirmetty opinion of the Sixth Circuit and the Eleventh Circuit's opinion in Agnes Tucker conflate these two steps. [00:48:12] Speaker 00: That is absolutely something that Supreme Court could use some help with, Your Honors. [00:48:16] Speaker 00: And I believe that this court could really provide that help. [00:48:20] Speaker 00: And the Supreme Court should be considering this on a heightened scrutiny standard. [00:48:24] Speaker 00: I see my time is up. [00:48:25] Speaker 00: If the court has any more questions, I'm happy to answer them. [00:48:28] Speaker 05: Thank you, counsel. [00:48:29] Speaker 00: Thank you. [00:48:30] Speaker 05: All right, Mr. Burch, I will give you an additional three minutes for rebuttal. [00:48:35] Speaker 02: Thank you, Judge De Alba. [00:48:36] Speaker 02: May it please the court. [00:48:38] Speaker 02: I quickly conferred with my co-counsel about the WPATH documents. [00:48:42] Speaker 02: The reason they were not immediately provided to the other side is because they were under a protective order, and we needed to have a protective order in this case in order to produce them, and the parties weren't able to agree on that. [00:48:52] Speaker 02: Next point, which is the crux of this argument, this statute does not classify based on sex or transgender status because it's not about who seeks treatment, but about the benefits and risks of the treatments requested. [00:49:05] Speaker 02: And when I listen to their equal protection arguments, it's difficult for me to follow. [00:49:10] Speaker 02: And the United States argument right there at the end really tied it up in a bow. [00:49:13] Speaker 02: She said, is it a sex classification? [00:49:16] Speaker 02: If yes, then heightened scrutiny applies. [00:49:18] Speaker 02: Well, that's the exact argument that the Supreme Court in Dobbs rejected. [00:49:22] Speaker 02: There's no question that the Mississippi 15-weeks law classified based on sex and the court supplied rational basis review. [00:49:29] Speaker 02: Another way to look at this [00:49:32] Speaker 02: for plaintiff's counsel say that Idaho had a law that said they would only reimburse natal men who identify as men for prostate cancer treatment, and the same law was in place for women. [00:49:43] Speaker 02: They would say that that violates equal protection and heightened scrutiny applies because a woman who identifies as a man or a woman who identifies as a woman would not be eligible for prostate cancer treatment coverage. [00:49:55] Speaker 02: But that's not how equal protection works. [00:49:57] Speaker 02: Equal protection asks whether there's a benefit or a burden that was imposed on one side or the other in a way that the other side can't get at it. [00:50:04] Speaker 02: And no woman, no matter how she identifies, can get treated for prostate cancer. [00:50:10] Speaker 02: Biology matters. [00:50:11] Speaker 02: And that's what the US Supreme Court said in Dobbs and in Godoldig. [00:50:15] Speaker 06: So do you speak to sex? [00:50:17] Speaker 06: What about transgender status? [00:50:19] Speaker 02: Well, the exact same thing would apply. [00:50:21] Speaker 02: Even if it was a 100% overlap, and it's not, I can explain that, you would still have to ask whether there was a benefit that was being denied simply because of the status as opposed to the medical consequences. [00:50:34] Speaker 02: But I want to even push back on the premise. [00:50:38] Speaker 02: Let's say that you have someone who gets the transition treatments and then realizes they were a mistake and that it's harmful, and so they de-transition. [00:50:45] Speaker 02: They're called a de-transitioner. [00:50:47] Speaker 02: Well, for them, [00:50:49] Speaker 02: the plaintiffs would say, that person was never trans. [00:50:53] Speaker 02: And so that means that even non-trans people can be churned down for these treatments, and therefore, there's not a one-to-one relationship. [00:51:00] Speaker 02: And if they're wrong, and that person was trans, but now they're not, that proves that these treatments aren't always necessary, which is what the abundance of science says. [00:51:10] Speaker 02: Now, related to that, the United States makes this nonconformity point, but it's not a stereotype [00:51:15] Speaker 02: that the same treatment has different risks and benefits for males and females depending on the diagnosis. [00:51:20] Speaker 02: Again, for you to rule in their favor, you have to say risks and benefits are the same when a girl gets a mastectomy for cancer versus gender transition. [00:51:29] Speaker 02: Finally, even if heightened scrutiny applies and you defer to the district court, which you shouldn't under Gonzalez, at pages 11 and 12 of the district court opinion, he says that these procedures benefit only some of those who have gender dysphoria. [00:51:42] Speaker 02: That means many, maybe even most, don't benefit, and that's reason enough for Idaho to prohibit the treatments. [00:51:50] Speaker 02: I do want to address the scope of relief because Judge McKeon and Judge Hawkins both mentioned that kind of towards the end there. [00:51:57] Speaker 02: So as far as your injunction is concerned, it is of course limited to the plaintiff by what the Supreme Court said. [00:52:02] Speaker 02: but there are only facial claims in this case. [00:52:04] Speaker 02: So you're not analyzing this in an as applied manner to the plaintiff, but only facial. [00:52:09] Speaker 02: We respectfully ask that you do not require Idaho to use children as medical experiments. [00:52:16] Speaker 02: Thank you. [00:52:17] Speaker 05: Okay. [00:52:18] Speaker 05: Thank you, counsel. [00:52:19] Speaker 05: Uh, the matter is now submitted and this concludes our arguments for this morning. [00:52:24] Speaker 05: We'd like to get again, thank all counsel and our court staff. [00:52:28] Speaker 05: The court will now stand in recess.