[00:00:00] Speaker 00:
We'll begin with Fowler versus Stitt, 23-5080.

[00:00:06] Speaker 00:
Mr. Wren, are you ready?

[00:00:17] Speaker 02:
Good morning, and may it please the court.

[00:00:18] Speaker 02:
Peter Wren on behalf of the appellants.

[00:00:20] Speaker 02:
This case challenges Oklahoma's reversal of a long-standing policy

[00:00:24] Speaker 02:
that previously allowed transgender people to amend their birth certificates for at least a decade and a half without incident.

[00:00:31] Speaker 02:
As the complaint alleges, the state's own officials directly responsible for birth certificates agreed that this prior practice maintained the accuracy and integrity of vital statistics.

[00:00:41] Speaker 02:
But when the governor found out about it, he replaced the head of the agency and took this ability away from transgender people because, in his own words, people are created by God to be male or female.

[00:00:53] Speaker 02:
That one word, unlike any document, can have profound consequences.

[00:00:57] Speaker 02:
When Ms.

[00:00:58] Speaker 02:
Fowler presented identification in the past, outing her as a transgender woman, she was openly denied service on one occasion and attacked with a derogatory slur on another, causing her fear for her safety every time she left her home for months on end.

[00:01:12] Speaker 02:
The government's policy triggers such scrutiny under equal protection and privacy, but the complaint also plausibly alleges that it fails even rational basis review.

[00:01:22] Speaker 02:
As an initial matter, the policy discriminates based on sex, no matter how you look at it.

[00:01:27] Speaker 02:
First, even if you view sex narrowly for purposes of equal protection as nothing more than a person's assigned sex, or what defendants refer to as biological sex, that's still the reason why defendants denied this power than a many birth certificate.

[00:01:43] Speaker 02:
Bostock holds the back to sex discrimination.

[00:01:46] Speaker 02:
Take, for instance, a woman who is not transgender.

[00:01:49] Speaker 04:
Let me stop you first.

[00:01:52] Speaker 04:
What do we do about the fact that in Bostock the decision repeatedly states that it's limited to the context of a Title VII case and we're here on an equal protection claim?

[00:02:05] Speaker 02:
I don't think that that's a valid distinction because Bostock makes clear that it is impossible to discriminate against a transgender person without discriminating against them on the basis of sex.

[00:02:16] Speaker 00:
There's nothing

[00:02:18] Speaker 00:
It says that, and then it explains it.

[00:02:21] Speaker 00:
And the explanation doesn't seem to fit the circumstances here.

[00:02:27] Speaker 00:
How do you translate it?

[00:02:28] Speaker 00:
Do you remember the explanation given by the court in Bostock?

[00:02:31] Speaker 02:
Absolutely, Your Honor, and I do think that the logic transfers over here precisely.

[00:02:35] Speaker 00:
Okay, well explain that.

[00:02:37] Speaker 00:
Explain the logic in Bostock and then translate it to circumstance.

[00:02:41] Speaker 02:
Certainly, and I think it's easiest to understand this at the level of the individual.

[00:02:44] Speaker 02:
So let's take, for example, a woman who is not transgender.

[00:02:48] Speaker 02:
She has access to a female designated birth certificate that she can use to prove who she is when applying for... Go through the Bostock analysis.

[00:02:57] Speaker 00:
Certainly.

[00:02:58] Speaker 00:
Every statement you quoted correctly.

[00:03:01] Speaker 00:
The court explains why that is sex discrimination, why it's gender discrimination.

[00:03:08] Speaker 00:
What's your understanding of what that statement was in Vostok?

[00:03:11] Speaker 00:
I can read it to you if you don't remember it.

[00:03:14] Speaker 02:
Your Honor, I think Vostok essentially holds that if the reason for the adverse treatment that a person has experienced is because of their birth assigned sex, you know that's sex discrimination.

[00:03:26] Speaker 00:
And here, if Ms.

[00:03:27] Speaker 00:
Fowler- That's not what it says.

[00:03:30] Speaker 00:
That may be accurate.

[00:03:32] Speaker 00:
That may be a violation of equal protection.

[00:03:34] Speaker 00:
But what it said is you have two women, one's transgender, one's not, working for a company.

[00:03:41] Speaker 00:
And if they're treated differently because of their birth gender, then that's sex discrimination.

[00:03:52] Speaker 00:
To translate to this situation, you would say, here are two men.

[00:03:59] Speaker 00:
One is transgender.

[00:04:03] Speaker 00:
One was born male and is still male.

[00:04:09] Speaker 00:
And they are treated differently, but they're not.

[00:04:12] Speaker 00:
Neither of them can change the sex on their birth certificate.

[00:04:16] Speaker 00:
So where am I goofing there?

[00:04:20] Speaker 02:
Well, in that hypothetical that you laid out, the transgender man would have avoided the injury that he experienced in terms of not having a birth certificate that matches his gender identity if he had been assigned male at birth.

[00:04:32] Speaker 02:
And Vostok makes clear that equal application of a rule doesn't make it neutral.

[00:04:37] Speaker 02:
It was crystal clear that if an employer fires both transgender men and transgender women, it is still discriminated on the basis of sex, even though it hasn't treated one's sex

[00:04:47] Speaker 00:
Better or worse than the other sex?

[00:04:48] Speaker 00:
Right.

[00:04:49] Speaker 00:
But it says that the discrimination against the transgender employee in Bostock was because she, the transgender female, is treated differently because of the gender at birth.

[00:05:07] Speaker 00:
How is there a discrimination between a transgender male and one who hasn't changed gender if neither

[00:05:17] Speaker 00:
can change the birth certificate.

[00:05:20] Speaker 02:
The difference in injury there is that one person has access to a birth certificate that they can use, and the other person does not have access to a birth certificate that they can equally use to prove who they are.

[00:05:31] Speaker 00:
But that's the consequence of the government action.

[00:05:35] Speaker 00:
The government action does not in itself discriminate.

[00:05:39] Speaker 00:
Neither person, the transgender male or the non-transgender male,

[00:05:44] Speaker 00:
can get a certificate changed.

[00:05:46] Speaker 02:
I disagree with that, Your Honor.

[00:05:48] Speaker 02:
I think the government's argument boils down to it is not discriminatory at all for no one to be able to change the sex list on diversity.

[00:05:56] Speaker 02:
That's their argument.

[00:05:57] Speaker 02:
But that's akin to saying that a rule that no one can wear yarmulkes is neutral, or that a law that no one can marry a person of the same sex is neutral.

[00:06:07] Speaker 00:
The yarmulke example is a good one.

[00:06:11] Speaker 00:
It's just not like Boston.

[00:06:14] Speaker 02:
but it isn't Supreme Court precedent.

[00:06:15] Speaker 02:
That example comes from Alexandria versus Brace.

[00:06:18] Speaker 02:
The Supreme Court itself has recognized that there are rules that on their face we know are discriminatory, even if theoretically they could be applied equally to everyone.

[00:06:27] Speaker 04:
That's not, they have to make it neutral.

[00:06:29] Speaker 04:
The difference between facial neutrality and disparate impact, is that the argument you're making here?

[00:06:38] Speaker 04:
That even if the law is facially neutral,

[00:06:43] Speaker 04:
if there's a disparate impact, particularly if you can show a motive of animosity, that then you can meet a test under the equal protection clause.

[00:06:55] Speaker 02:
That's really one way in which equal protection violation can be established.

[00:06:58] Speaker 02:
But I want to be clear that there is disparate treatment on its face here.

[00:07:02] Speaker 02:
And to return to our example of Yonicas, let's suppose that you can imagine some instances in which someone might wear a Yonica for non-religious reasons, perhaps

[00:07:11] Speaker 02:
someone who wants to dress as a rabbi for Halloween, that would convert the rule against randomicas into a disparate impact rule.

[00:07:19] Speaker 02:
It would still on its face be disparate treatment.

[00:07:21] Speaker 02:
And that's the same issue here.

[00:07:22] Speaker 02:
When you ban the sex change designations that this policy bans, it is on its face a facial classification against transgender people.

[00:07:31] Speaker 02:
But you're right, Your Honor, that we do also allege that even if you were to view this policy as spatially neutral,

[00:07:37] Speaker 02:
We do also satisfy the other criteria for showing discriminatory intent because we know that there is, in fact, harm through the denial of certificates that people can equally use when they're transgender.

[00:07:49] Speaker 00:
Let me ask some of the practicalities here.

[00:07:52] Speaker 00:
The governor's executive order on its face simply says you can't do anything with respect to birth certificates that's not allowed by statute.

[00:08:07] Speaker 00:
So if this was allowed by statute before that executive order, and that was certainly the way it was understood by the department, what was changed by the executive order?

[00:08:19] Speaker 00:
Why did it have these consequences when on its face it doesn't change any law?

[00:08:24] Speaker 00:
It says essentially obey the law.

[00:08:27] Speaker 02:
Well, two points, Your Honor.

[00:08:28] Speaker 02:
First of all, I think the executive order is quite clear in telling the agency you are not allowed to continue to provide these changes that you were previously providing.

[00:08:37] Speaker 02:
The second point is that, as we've alleged in the complaint, the governor's office specifically instructed the agency, do not change the gender markers of transgender men and transgender women who come before you seeking to correct their birth certificates.

[00:08:50] Speaker 00:
But if it was lawful before, couldn't you bring an action against the agency for saying,

[00:08:56] Speaker 00:
You're not doing something that you're lawfully required to do?

[00:09:00] Speaker 00:
And the executive order doesn't change that?

[00:09:04] Speaker 02:
I think we can't rewrite the executive order.

[00:09:05] Speaker 02:
It says what it says.

[00:09:07] Speaker 02:
The basis in what it does is different from the action that it takes.

[00:09:12] Speaker 02:
The action that it takes is to say to the agency, I'm telling you very clearly, you are not allowed to continue doing what you were doing before.

[00:09:20] Speaker 00:
And what language in the executive order says that?

[00:09:25] Speaker 00:
I think it says it... I was surprised when I read the executive order after reading your brief because it doesn't seem to do anything but say obey the law.

[00:09:34] Speaker 00:
It has preamble that you don't like... Fine.

[00:09:38] Speaker 02:
But in terms of the provisions of what it ordered... I think that there is language in the executive order talking about a prohibition against altering or changing the sex or gender on the birth certificate.

[00:09:52] Speaker 02:
But, Senator, apart from that, we've alleged that in terms of how it's enforced, there have been specific communications outside the executive order, to be clear, from the governor's office to the state agency saying, you are not allowed to continue correcting agenda markers.

[00:10:04] Speaker 00:
And that's part of your claim.

[00:10:06] Speaker 02:
That is part of our claim, absolutely.

[00:10:08] Speaker 00:
Now, the second practical thing is, when do they have to use the birth certificate that they can't use the driver's license?

[00:10:17] Speaker 00:
By statute, you can change

[00:10:23] Speaker 00:
gender on the driver's license, which is the typical form of ID.

[00:10:29] Speaker 00:
When did your clients have to use a birth certificate when they could have used a driver's license to accomplish the same thing?

[00:10:37] Speaker 02:
The complaint details a number of instances in which our complainants were required to present their birth certificates because the driver's license was insufficient.

[00:10:45] Speaker 02:
One example of that, for example, is that Mr. Hall was required to present a birth certificate when he wanted to update his tribal identification card.

[00:10:52] Speaker 02:
Other plaintiffs were required to present their birth certificates when interacting with financial institutions and healthcare institutions.

[00:10:59] Speaker 02:
So it may be true that birth certificates are not used as frequently as driver's licenses for purposes of identity, but they are used in critical chapters of life, including, for example, when a person starts a job or enrolls in school or applies for a government program.

[00:11:14] Speaker 02:
And more to the point, the district court recognized that defendants admit

[00:11:18] Speaker 02:
that birth certificates are required to participate in modern life.

[00:11:22] Speaker 02:
And you can find that at Appendix 75.

[00:11:24] Speaker 02:
So there's no question between the parties nor the district court that birth certificates are a hard form of identification.

[00:11:30] Speaker 01:
Counsel, can I ask you about your equal protection claim?

[00:11:34] Speaker 01:
If we were to determine that this is sex-based discrimination, do we have to decide whether transgender Oklahomans also qualify as a quasi-suspect class, or are those essentially two roads to the same destination of height scrutiny?

[00:11:47] Speaker 02:
Those are two roads to the same destination of the height of scrutiny, Your Honor, but I think it's fair to say that there's considerable confusion among district courts in this circuit about whether or not this court's decision and Brown answered the question.

[00:11:59] Speaker 02:
And I think Brown on its face does not do that.

[00:12:01] Speaker 04:
I think Brown does do it.

[00:12:03] Speaker 04:
I mean, it says the Ninth Circuit case maybe needs to be reconsidered, but, and then it goes on and says, but we follow it.

[00:12:13] Speaker 04:
And cases since then have recognized it as following it.

[00:12:17] Speaker 04:
So this panel is really in a difficult position to recognize a quasi class.

[00:12:24] Speaker 04:
And frankly, the Supreme Court hasn't been very receptive to more quasi classifications.

[00:12:31] Speaker 04:
I mean, your fallback argument is you can win on rational basis anyway, right?

[00:12:36] Speaker 02:
That's right.

[00:12:37] Speaker 02:
Two responses, Your Honor, and that I hope to reserve the balance of my time for a bottle.

[00:12:40] Speaker 02:
The first is that I think Judge Henry's opinion in Brown was very carefully worded.

[00:12:44] Speaker 02:
And it said that we are not reaching this issue in this case because the plaintiff's pro se allegations are too confused to allow proper analysis.

[00:12:52] Speaker 02:
That is not the language of court that is deciding an issue once and for all.

[00:12:56] Speaker 02:
It's the language of the court that recognizes that it doesn't have the tools to decide an issue.

[00:13:00] Speaker 02:
Moreover, Brown specifically recognized that ongoing research into gender identity would be relevant to answer the screening question.

[00:13:08] Speaker 02:
And in the last 29 years since Brown, there have been major advances in the understanding of gender.

[00:13:14] Speaker 02:
But the second point that I would make, Your Honor, is that it's incredibly important for this court to apply faithfully the same suspect class factors that are applied to any group that comes before the court invoking heightened screening.

[00:13:27] Speaker 02:
I'll reserve the balance of my time for a moment.

[00:13:29] Speaker 02:
Thank you.

[00:14:02] Speaker 03:
Good morning.

[00:14:04] Speaker 03:
Audrey Weaver for Defendants of Palace may please the court.

[00:14:08] Speaker 03:
Biological sex is not a meaningless label.

[00:14:11] Speaker 03:
The Supreme Court has confirmed that sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.

[00:14:20] Speaker 03:
The question before this court today is whether Oklahoma violates the Constitution by permanently recording that biological sex on the certificate of birth.

[00:14:29] Speaker 03:
It does not.

[00:14:30] Speaker 03:
Wait, wait, wait.

[00:14:31] Speaker 00:
There's nothing to prevent the state from keeping the original birth certificate.

[00:14:40] Speaker 00:
What the plaintiffs want is something they can carry with them that amends it.

[00:14:48] Speaker 03:
What the plaintiffs want is to erase the biological sex on the birth certificate and supplant it with a gender identity designation.

[00:14:56] Speaker 04:
You have the original birth certificate.

[00:14:59] Speaker 04:
You retain

[00:15:00] Speaker 04:
the original birth certificate.

[00:15:02] Speaker 04:
They want an amended birth certificate that matches their driver's license and matches their current gender.

[00:15:12] Speaker 04:
What's the big deal?

[00:15:14] Speaker 03:
Well, Oklahoma law has a policy now that the sex designation on the birth certificate means a biological sex designation.

[00:15:22] Speaker 03:
So that's the policy.

[00:15:23] Speaker 03:
So any change to that that reflects something other than biological sex, whether it's amended or original,

[00:15:29] Speaker 03:
makes that inaccurate because it no longer reflects biological sex.

[00:15:33] Speaker 03:
It's transformed into something that Oklahoma has said it is not.

[00:15:38] Speaker 03:
And in order to show an equal protection violation here, plaintiffs have to allege some kind of intentional discrimination.

[00:15:45] Speaker 01:
Would you agree, though, that the Oklahoma state action and policy here specifically is targeted at Oklahomans who now identify with the sex or gender that was not assigned to them?

[00:15:57] Speaker 03:
No, not at all.

[00:15:58] Speaker 01:
It's not targeted.

[00:15:59] Speaker 01:
So who else does it impact?

[00:16:01] Speaker 03:
It impacts everybody.

[00:16:02] Speaker 03:
And that's because everybody has a biological sex.

[00:16:05] Speaker 03:
And according to the complaint, which this court has to take as true, everyone has a gender identity.

[00:16:10] Speaker 03:
That's paragraph 20.

[00:16:12] Speaker 01:
So the fact... But the complaint also talks about how a cisgender person would have no desire, need, or intention to ever go change or amend their birth certificate.

[00:16:21] Speaker 01:
So again, even though it may be the policy facially neutral or

[00:16:26] Speaker 01:
have equal application it really only impacts a certain group who I think the record in the complaint alleges the governor and other Oklahoma officials were unequivocal about that specifically who they were targeting.

[00:16:40] Speaker 01:
Am I reading that wrong?

[00:16:41] Speaker 03:
Well that doesn't affect the operation of the law in the face of the law which contains no distinction whatsoever to any person.

[00:16:48] Speaker 03:
There's nothing on the face of the law that says transgender people cannot amend

[00:16:53] Speaker 03:
any other group or individual can amend.

[00:16:55] Speaker 03:
So it is facially neutral.

[00:16:57] Speaker 04:
But even if it's facially neutral, if it has a disparate impact, and you can show that, as Judge Frederico has pointed out, it was targeted at transgender Oklahomans, you meet one of the prongs for an equal protection claim, don't you?

[00:17:15] Speaker 04:
I mean, we're just on a motion to dismiss here.

[00:17:18] Speaker 03:
Right.

[00:17:18] Speaker 03:
So in order to show a disparate impact, which

[00:17:22] Speaker 03:
They would also have to show a discriminatory purpose.

[00:17:25] Speaker 04:
But again, I think we've got some pretty good evidence of the discriminatory purpose as they've alleged in their complaint, which we have to take as true.

[00:17:36] Speaker 03:
Well, I would point the court here to the personnel administrator of Massachusetts versus Phoenix case.

[00:17:41] Speaker 03:
And there, there was a Massachusetts law that gave preference to a group of military veterans that was 98% male.

[00:17:47] Speaker 03:
So clearly, a disproportionate impact on women there.

[00:17:50] Speaker 03:
And the court said, that's not enough.

[00:17:52] Speaker 04:
When we're talking about- But it didn't have the governor of Massachusetts saying, I'm doing this because I want to prevent women from getting jobs.

[00:18:03] Speaker 03:
The governor's statement here does not raise any plausible inference of animus whatsoever.

[00:18:08] Speaker 03:
There are two different things that are a non-invidious purpose behind that.

[00:18:13] Speaker 03:
Enforcement of the law.

[00:18:14] Speaker 03:
There is no law that allows for the amendment.

[00:18:17] Speaker 03:
And also a recognition of the binary biological nature of sex.

[00:18:21] Speaker 00:
But the reason one could infer a discriminatory purpose is it's hard to see what it accomplishes.

[00:18:33] Speaker 00:
Your case, it seems to me,

[00:18:39] Speaker 00:
I'm surprised it wasn't cited, but I mean, there they threw out the Colorado amendment to the Constitution because it said, the amendment seems inexplicable by anything but animus toward the class it affects.

[00:18:56] Speaker 00:
And how do you respond to that here?

[00:19:02] Speaker 00:
None of the explanations for what this accomplishes seem to hold up.

[00:19:06] Speaker 00:
So give it a try.

[00:19:08] Speaker 03:
Yes.

[00:19:08] Speaker 03:
OK.

[00:19:08] Speaker 03:
So let's go to the state interests here that are rational and legitimate.

[00:19:12] Speaker 03:
There is an interest in the integrity and accuracy of vital statistics.

[00:19:15] Speaker 03:
We've already talked about that.

[00:19:16] Speaker 04:
You keep the original birth certificates.

[00:19:19] Speaker 04:
The accuracy of your vital statistics is completely within your control, just like when an adopted child goes back and changes their birth certificate

[00:19:31] Speaker 04:
to show their adoptive parents rather than their birth parents, Oklahoma hangs on to the original one that, for vital statistic purposes, shows the birth parents.

[00:19:42] Speaker 04:
What's the difference?

[00:19:44] Speaker 03:
So here, when we're talking about, we also talk about uniformity.

[00:19:48] Speaker 03:
So the fact that this sex designation, we want it to mean the same thing for everybody, and that's biological sex.

[00:19:53] Speaker 03:
That's another interest.

[00:19:55] Speaker 03:
And why is recording biological sex important?

[00:19:58] Speaker 03:
Because there are times when the state can constitutionally legislate based on the physical differences between men and women.

[00:20:05] Speaker 04:
In fact, this court has... Well, and again, you have the original birth certificate.

[00:20:10] Speaker 04:
And all you need to do is rely on the original birth certificate for any legislation that you want to do.

[00:20:17] Speaker 04:
Your next argument is about sports.

[00:20:20] Speaker 04:
And yet your own statute doesn't look at birth certificates.

[00:20:23] Speaker 04:
It relies on an affidavit of the person to say, what was my sex at birth?

[00:20:30] Speaker 04:
So your reasons and reality aren't meshing.

[00:20:35] Speaker 03:
Well, the fact that Oklahoma law doesn't currently require somebody to disclose their birth certificate doesn't mean that it's not a ready and easily way of verifying biological sex in other circumstances.

[00:20:46] Speaker 04:
And there is Oklahoma law that relies on- Again, why can't they use the original birth certificate that they keep on file?

[00:20:54] Speaker 03:
Well, the question is not whether the Oklahoma law is something that's wise or something that is perfectly drawn or whether- It's whether it's rational.

[00:21:03] Speaker 00:
It's whether it's rational.

[00:21:04] Speaker 00:
That's up for grabs.

[00:21:07] Speaker 00:
Well, the rationality- Yeah, explain.

[00:21:09] Speaker 03:
When we go to the rationality, so let's look maybe at BRAE versus Alexandria Women's Health Clinic.

[00:21:16] Speaker 03:
there was an argument that abortion, because it only impacts women, has to target and invidiously discriminate against women.

[00:21:23] Speaker 03:
And the court rejected that there, and they said there's common and respectable reasons other than animus.

[00:21:28] Speaker 03:
And that's exactly the same thing here.

[00:21:30] Speaker 03:
There's common and respectable reasons why the state might want to permanently record some of these biological sex, whether they need it at some point in the future.

[00:21:38] Speaker 04:
But you do permanently record their biological sex, absolutely.

[00:21:43] Speaker 04:
There are really good reasons why Oklahoma would want to have accurate records of people's sex at birth.

[00:21:50] Speaker 04:
And they do.

[00:21:51] Speaker 04:
And nothing about having an amended birth certificate changes that.

[00:21:56] Speaker 04:
That's the irrationality that we're struggling with.

[00:22:00] Speaker 03:
Well, again, when we're talking about whether it's unconstitutional, that's a significantly high burden.

[00:22:05] Speaker 03:
And I think that goes to the question of whether this is wise.

[00:22:08] Speaker 03:
What's the harm in a different policy?

[00:22:09] Speaker 03:
But we have to look at the policy that Oklahoma adopted here.

[00:22:13] Speaker 03:
And it's not irrational to want to keep all the documents the same, to want to consistently have the sex designation being the same thing.

[00:22:19] Speaker 01:
But, counsel, how would you respond to the plaintiff's argument here that if you want accurate vital statistics, you should allow the amendment?

[00:22:28] Speaker 01:
Because, as Judge McHugh has said, the original is still on file with the state of Oklahoma.

[00:22:32] Speaker 01:
It gets amended to reflect the fact that this Oklahoma citizen has

[00:22:36] Speaker 01:
gone through transition and now is a different gender.

[00:22:39] Speaker 01:
Aren't you harming the interest you're saying that you're trying to protect by not allowing these amendments?

[00:22:45] Speaker 03:
No, because again the purpose is to record the biological medical determination that's made at birth and that is an objective fact that's noble at birth and that does not change.

[00:22:55] Speaker 03:
The physician has a duty to certify the facts of birth, including the medical information, and that is a determination that's made at birth on the birth certificate.

[00:23:04] Speaker 01:
But if it only matters at birth, then why allow Oklahomans to change birth certificates for adoption, or parentage, or name changes, or any other reasons?

[00:23:11] Speaker 01:
Why just sex?

[00:23:13] Speaker 03:
Yeah, so that goes to the objective and noble quality of the information there.

[00:23:19] Speaker 03:
It's immutable, and it makes rational sense.

[00:23:21] Speaker 04:
Parents at birth are immutable.

[00:23:24] Speaker 04:
My adoptive mother is immutable.

[00:23:28] Speaker 04:
You have one woman give birth, and you allow me to amend my birth certificate to put my adoptive mother.

[00:23:35] Speaker 04:
How is that different than the immutable sex at birth?

[00:23:40] Speaker 03:
So that's a policy determination that Oklahoma's made that when we're talking about the parents, we want it to record the parent-child legal relationship.

[00:23:50] Speaker 03:
And that can change.

[00:23:51] Speaker 03:
Adoption can change it.

[00:23:52] Speaker 03:
Paternity can change it.

[00:23:53] Speaker 03:
So again, it makes rational sense for the state to treat that differently because we want that to reflect the parent-child relationship.

[00:24:01] Speaker 04:
Explain for me the rational sense of allowing Oklahomans to modify their driver's license to reflect their current gender, but not to modify their birth certificate to do the same.

[00:24:14] Speaker 03:
I think that actually highlights why this policy is so rational and not invidious against transgender people as a class because this is a different document.

[00:24:24] Speaker 03:
This is a document that's more of a permanent record.

[00:24:27] Speaker 03:
This is something that even though there are circumstances we allow you to change, it is not regularly changed.

[00:24:33] Speaker 03:
When you talk about a driver's license, you have to renew it frequently.

[00:24:36] Speaker 03:
There's different information on it.

[00:24:37] Speaker 03:
You carry that in your pocket.

[00:24:40] Speaker 03:
So the fact that Oklahoma may say, hey, you guys can change your sex on your driver's license,

[00:24:44] Speaker 03:
But when it comes to the birth certificate, we want a permanent record there of your biological, physical sex.

[00:24:50] Speaker 03:
That makes sense because these are two different documents.

[00:24:53] Speaker 03:
And one is more permanent and is supposed to reflect the permanent nature of the facts at birth, which do not change.

[00:25:00] Speaker 03:
Now, going back to the discrimination here, this law does not treat anybody differently.

[00:25:05] Speaker 03:
It also doesn't condition any benefits, burdens, privileges, liabilities.

[00:25:10] Speaker 03:
All it does is record somebody's biological sex at birth.

[00:25:14] Speaker 03:
This is not a differential treatment.

[00:25:16] Speaker 03:
This is not something that treats men differently than women.

[00:25:21] Speaker 03:
All it does is recognize the biological sex.

[00:25:24] Speaker 03:
So this is, and when we have differential treatment, it's a touchstone of equal protection.

[00:25:29] Speaker 03:
And without that differential treatment, a log does not discriminate.

[00:25:33] Speaker 04:
Well, what about if you have disparate impact and animus?

[00:25:38] Speaker 04:
Well, again, that still is not a differential treatment here because... Well, is it a grounds for equal protection claim?

[00:25:45] Speaker 03:
Yes, if you can show disparate impact and an ambiguous purpose.

[00:25:49] Speaker 03:
But that's, again, a very high bar.

[00:25:51] Speaker 03:
And I'd like to return maybe to the Yarmulke example and the Bray v. Alexandria Health Clinic because there the court explains that there are some activities that may be such an irrational object of disfavor that to ban them or to modify them when only one group is engaged in it

[00:26:08] Speaker 03:
is going to be evidence of invidious discrimination.

[00:26:11] Speaker 03:
That's not the case here.

[00:26:13] Speaker 03:
There are a lot of rational reasons why a state... That's what I'm still not seeing.

[00:26:18] Speaker 00:
Give me one thing that the state can't do that it wants to do that would be prevented by allowing a transgender adult to change

[00:26:31] Speaker 00:
sex on an amended birth certificate.

[00:26:35] Speaker 00:
I'm not aware of any, but I could be missing something.

[00:26:40] Speaker 03:
Well, again, this goes to, it has to be so irrational that nothing but animus could illustrate the motive behind it.

[00:26:48] Speaker 00:
That's not... Well, wouldn't you infer that if there's no purpose that you can identify that's satisfied by this requirement that you can't change?

[00:26:59] Speaker 03:
Right, so the purpose is we've already been over the uniformity of the sex designation, the accuracy of the records permanently that are supposed to be recorded, and also, again, using that at some point... We've gone over those things, and they don't make sense when you can keep the original birth certificate.

[00:27:17] Speaker 03:
Well, again, we're looking at whether the policy is unconstitutional.

[00:27:20] Speaker 03:
Is it unconstitutional to say we want it permanently to record biological sex?

[00:27:26] Speaker 04:
It's unconstitutional to say that that is your rationale when that rationale makes no sense.

[00:27:33] Speaker 04:
And here you have an accurate record.

[00:27:37] Speaker 04:
with the original birth certificate.

[00:27:40] Speaker 04:
So when you say, oh, we can't allow these amendments because we won't have an accurate record, we sit here and we go, hmm, there's a disconnect there.

[00:27:48] Speaker 04:
What could be the reason for this?

[00:27:51] Speaker 03:
It still is not going to be accurate if it's amended to reflect anything other than biological sex.

[00:27:57] Speaker 03:
When Oklahoma has said, we wanted to record biological sex because we don't want different documents floating out there that have inconsistent and conflicting information.

[00:28:05] Speaker 03:
This is something that maybe somebody will want to rely on when they're talking about privacy interests in bathrooms, when they're talking about maybe separating inmates based on sex.

[00:28:15] Speaker 04:
That's something that- All you have to do in those contexts is say,

[00:28:19] Speaker 04:
We will only look at your original birth certificate.

[00:28:22] Speaker 04:
Now you may have other issues that arise from that, but it doesn't interfere with your ability to do that.

[00:28:28] Speaker 03:
And respectfully, I think that goes back to the standard that we don't have to show that this is a perfect law.

[00:28:35] Speaker 03:
We don't have to show it's most narrow means.

[00:28:37] Speaker 03:
We just have to show that it's rational and it's important interest.

[00:28:40] Speaker 03:
And this is a policy decision that the state should be allowed to make.

[00:28:44] Speaker 03:
There's nothing in the constitution that requires the state of Oklahoma to erase sex on a birth certificate, biological sex, when it's decided that that's what it wants to do.

[00:28:54] Speaker 03:
That's a rational policy, and this court should affirm the district court's dismissal because there's no set of facts that can support a plausible claim for relief.

[00:29:02] Speaker 01:
Counsel, I know your time's about up, but one more question.

[00:29:04] Speaker 01:
Does the state of Oklahoma recognize transgender persons as

[00:29:08] Speaker 01:
existence of a classification at all.

[00:29:10] Speaker 01:
In other words, do you dispute American Medical Association and others who use diagnostic criteria for gender dysphoria?

[00:29:17] Speaker 01:
Does this even exist at all?

[00:29:19] Speaker 03:
As far as in the clause, I suspect classification.

[00:29:22] Speaker 03:
Just in general.

[00:29:24] Speaker 03:
I don't think there's any dispute that transgender people exist, sure.

[00:29:28] Speaker 01:
But it's just sort of a status or recognition, medically or legally.

[00:29:32] Speaker 03:
Yeah, there's no dispute about that here, and I think plaintiffs have defined transgender as being a gender identity that differs from the assigned sex at birth, and we don't have any factual dispute with that.

[00:29:43] Speaker 04:
Well, and it's a motion to dismiss, but we have to take it as true.

[00:29:46] Speaker 04:
Right, yes.

[00:29:48] Speaker 00:
Thank you, counsel.

[00:29:49] Speaker 04:
Thank you.

[00:29:57] Speaker 02:
There are two ways to establish an equal protection violation.

[00:30:00] Speaker 02:
One is through a facially discriminatory classification, and another is a neutral law that's nonetheless motivated by discriminatory intent with disparate impact.

[00:30:10] Speaker 02:
I want to be clear that both of those grounds are established based on factual allegations in the complaint.

[00:30:16] Speaker 02:
In other words, this is a facially discriminatory policy

[00:30:21] Speaker 02:
because that is what exactly the complaint has alleged.

[00:30:24] Speaker 02:
The executive order made very clear that it was targeting people who have a need to change the sex system on their birth certificate.

[00:30:31] Speaker 02:
That is transgender people's class, and that's not disparate impact.

[00:30:35] Speaker 02:
But as I think this court has made clear, there is also ample factual allegations to establish that there was discriminatory intent here.

[00:30:43] Speaker 02:
based on the fact that transgender people are, of course, harmed by the government's policy.

[00:30:48] Speaker 02:
And all the other factors that show you that there's discriminatory intent, like departure from unusual procedures, for example, and the language that was used around the time of the policies adoption also points in favor of this class being targeted.

[00:31:01] Speaker 02:
But I think it's important for this court to make clear that both of those grounds are established by the complaint when, if we are fortunate enough to go back on remand, the district court will need to set out, well, what are the elements in standard

[00:31:13] Speaker 02:
pieces of evidence that plaintiffs will have to ultimately deduce to prove their case.

[00:31:17] Speaker 02:
So we would ask this court for making both points clear in its decision.

[00:31:21] Speaker 01:
Counsel, can I ask one question about your informational privacy claim?

[00:31:25] Speaker 01:
In your brief, you talk about the expectation of privacy and the deeply personal and private and intimate information of the transgender status.

[00:31:36] Speaker 01:
But I'm wondering when that attaches, meaning

[00:31:40] Speaker 01:
The gender dysphoria diagnosis, as I recall, has a certain period of time, say six months before, while someone's exhibiting certain characteristics before that diagnosis would be made.

[00:31:51] Speaker 01:
Does that expectation of privacy attach only if there is a medical diagnosis of gender dysphoria before that, and sort of how you draw those lines?

[00:31:59] Speaker 02:
I don't think that it attaches at the point of a medical diagnosis.

[00:32:03] Speaker 02:
this court's precedents have never drawn the line quite that finely.

[00:32:07] Speaker 02:
It's instead asked the question, well, is this information highly personal and intimate?

[00:32:12] Speaker 02:
And a person's transgender status clearly meets that criterion, regardless of whether or not they've had a medical diagnosis of gender dysphoria.

[00:32:21] Speaker 00:
Thank you, counsel.

[00:32:22] Speaker 00:
Thank you.

[00:32:22] Speaker 00:
Case is submitted.

[00:32:24] Speaker 00:
Counselor excused.