[00:00:00] Speaker 01:
We have six cases on our docket this morning, five for oral argument.

[00:00:04] Speaker 01:
We'll start with 23-5110, Poe versus Drummond.

[00:00:18] Speaker 03:
Good morning, Your Honors, and may it please the Court.

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My name is Omar Gonzalez-Pagan, and I'm representing the plaintiffs in this case, five transgender adolescents from Oklahoma.

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and their parents are guardians.

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Since the state enacted and has enforced Oklahoma Senate Bill 613, the health and well-being of these transgender adolescents is in danger.

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They currently face irreparable harm.

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And the rights of their parents have been interfered with in an unconstitutional way.

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The district court below erred in denying the motion for a preliminary injunction because it applied the wrong

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standard.

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Here, plaintiffs are likely to succeed on their claims because the law at issue discriminates on the basis of sex and cannot be justified under Haydn's scrutiny.

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It further classifies facially on the basis of sex and transgender status, and it was enacted with the purpose of enforcing gender conformity

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and to single out for disparate treatment transgender youth in Oklahoma.

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What is more, it interferes with the constitutional right, the fundamental right of parents, to direct the medical care of their children following the advice of medical professionals, a right that this court has recognized in Jepson.

[00:01:52] Speaker 00:
Do you agree that what you're asking is to extend the constitutional right beyond where it exists now?

[00:01:59] Speaker 03:
No, Your Honor.

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I believe that this court in Jepson and the Supreme Court in Parham define the contours of the fundamental parental right at issue.

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Those contours are to direct the medical care of children and to do so following the advice of medical professionals.

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In speaking of that right in Jepson,

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The court was speaking of the substantive due process right to direct medical care.

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And in Parham, the Supreme Court was defining the rights and prerogatives of adults and children and spoke of that plenary right of parents.

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What if the child wants the care and the parent doesn't?

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The child's out of luck under your rule?

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If the child wants the care and the parent doesn't, there would be no interference with a parental right.

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Not only that, but how care is provided.

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It requires the informed consent of parents and the informed consent of adolescents.

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So the parent rules over the child?

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In most circumstances, yes.

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Well, is there a circumstance where that wouldn't be so?

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And if so, describe it.

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There may be circumstances in the abstract where a parent denied medical care to a child.

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I'm talking about our world, this case, with the gender treatment.

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In this case, in order to access care, both under the standard of care but also under the law, parental consent is required in order to obtain the care.

[00:03:34] Speaker 01:
So there are laws that prohibit certain treatments for adults.

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Would that

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law of supply to a minor not be allowed because the parent can decide, even though the government could keep an adult from having certain care.

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You're saying it could not prevent a child from having that care if the parent wants it.

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No, Your Honor.

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That would be one of the limiting principles of the contours of the right of issue.

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The care has to be widely accepted and available.

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Here, this is care that is not otherwise unlawful.

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It is not prohibited for adults.

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And the services and procedures, in fact, are not even prohibited for other minors.

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It is only prohibited in the terms of the stature when the perception of the minor, of his or her gender or sex, differs from their birth sex.

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This is not the case of a non-widely available treatment that a parent is trying to obtain.

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The opposite.

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It is widely available treatment both legally and in terms of acceptability within the medical community.

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that is otherwise being prohibited and banned by the state because it is being provided to affirm a transgender minor's identity.

[00:04:51] Speaker 01:
Let me ask you about your equal protection argument.

[00:04:54] Speaker 03:
Yes.

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This is a real difficult issue because you have kids who are suffering greatly.

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and you don't want to do permanent harm to them.

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And each side thinks it's preventing permanent harm to the child.

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You've got the group you represent who think that if the child does not get this sort of surgical and hormonal treatment before 18, then there will be terrible psychological damage to the child.

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And on the other side, you've got people who think if you give this treatment, surgical or hormonal, to children, that they may never be able to have children themselves.

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And even if they change their mind, if they change their mind.

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And they're very worried about that.

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Why, though, does either side

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Why is either side being sexist about that?

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But they're both very worried about the children and want them to be better.

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So why is that?

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That's a very debatable issue, as we've heard.

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There are medical people who disagree on this.

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But why is that a sex discrimination issue?

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So taking the question out of space, Your Honor,

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a sex-based classification facially.

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Of course, the state has the ability to regulate the provision of medical care, but it cannot do so on suspect or quatsa-suspect lines.

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When they do so, they must justify that gender-based classification.

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And here, this is not a situation in which particular procedures or services are being prohibited writ large.

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This is a situation in which the provision of puberty-delayed medication

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with similar risk to other minors is being prohibited when it is only provided to affirm a minor's transgender identity.

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Going to the question of this being a difficult issue, parents are grappled with this issue.

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One need only read the declaration of Brandon Bo's parents to realize that the parents struggle about what the right decision is.

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But ultimately, it is for the parents

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along with the adolescent and the providers to make that decision, not for the state to interfere with those private medical decisions and decide that for this group of people, they are not allowed to be able to make those important private medical decisions, and that they're not allowed to obtain medical care that is otherwise permitted to others, notwithstanding similar risk

[00:07:56] Speaker 01:
You said it's sex discrimination on its face, but if you state it in terms of you should not be able to make irreparable changes to a minor's body by certain treatments that can do that, why is that?

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The changes are different depending on the

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body of the particular child.

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If the child has female organs, then that's different from if the child has male organs.

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But why is that?

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I mean, it's stated in a sex neutral manner, is it not?

[00:08:44] Speaker 03:
No, Your Honor.

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It is both stated and operates entirely based on sex.

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In order to determine whether a treatment is banned, one must determine and consider

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of the minor and whether their identity is consistent or not with their birth sex.

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That operates completely on sex-based lines.

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Just to give an example, consider plaintiff Brandon Bow.

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Brandon is a transgender male.

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He was assigned female at birth.

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He requires and needs testosterone, has obtained testosterone as treatment for gender dysphoria.

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It was deemed medically necessary by his providers.

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His parents considered it carefully with him.

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They provided informed consent and assent.

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He, under the law 613, is not able to obtain that treatment.

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But if you had Joe Smith, who was a fine male at birth... But it's not... It doesn't define...

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the child to say the child has different sex characteristics, different sex organs.

[00:10:02] Speaker 01:
There can never be a distinction between male and female based on their sex organs, and that's what we're talking about.

[00:10:12] Speaker 01:
There's a statement in the recent decision of Dobs

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which I think you just wrote off without really addressing, the regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a mere pretext, et cetera.

[00:10:36] Speaker 01:
And that's what we're talking about.

[00:10:37] Speaker 01:
You can't remove the testicles from a woman.

[00:10:44] Speaker 03:
Well, Your Honor, just to be clear, most of the care that we're talking about does not in any way involve general surgery.

[00:10:49] Speaker 01:
So I just want to be definitively on the record on that.

[00:10:53] Speaker 01:
OK.

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I think you don't have standing to challenge that in the statute.

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Is that right?

[00:10:59] Speaker 03:
No, Your Honor.

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We would argue that here it's a facial classification.

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But I'm just informing the court that general surgery is not something that is performed by minors.

[00:11:07] Speaker 01:
But the hormone treatment can do this also.

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The hormone treatment may have an effect on fertility.

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It is not as sterilization as the state would posit it is.

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In fact, many people who obtain hormone treatment, if they want to obtain a child, either cease the treatment to go through and be able to obtain a child or to go through fertility preservations.

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It is not a guarantee nor a certainty that there will be fertility in any event.

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But in any event, those are risks that are discussed with the parent and the adolescent as they are making that decision.

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Many other medical treatments impair or affect fertility, including cancer treatment for minors.

[00:11:57] Speaker 00:
To follow up with Judge Hartz's comment and try to get us back to that, I'm looking at Judge Sutton's opinion in LW, and here's what I need help from you.

[00:12:06] Speaker 00:
As he says under each law, which was Tennessee and I forget which, no minor may receive puberty blockers or hormones or surgery in order to transition from one sex to another.

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Such an across-the-board regulation lacks any of the hallmarks of sex discrimination.

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It does not prefer one sex over the other.

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In other words, it's not as though males are allowed to have it and females aren't or vice versa.

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Everybody is barred from having it.

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And I think that's what Judge Hartz is getting at is the difference is the anatomical difference.

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It's not something that's an invidious sex discrimination.

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So help me to understand why Judge Sutton is wrong when he says that.

[00:12:51] Speaker 03:
Yes, Your Honor.

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And so returning to the point about DOS and just Sutton's opinion, LW,

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This is entirely different from Dov's reveration of the rule announcing a dolt egg.

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The question was, are you pregnant?

[00:13:07] Speaker 01:
No, no, no.

[00:13:09] Speaker 01:
If you want to limit that language to the one source, the one case that involved it, you can try that.

[00:13:17] Speaker 01:
But the language is broader than that.

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Yes.

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The language encompasses this case, does it not?

[00:13:24] Speaker 03:
No, Your Honor, because here no procedure

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is banned for everybody.

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That is what was an issue in dogs, and that is the coverage that was an issue in gedaldic.

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Here, it is not banning the provision of hormones for everybody.

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That would be a different situation.

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That would be akin to dogs, or that would be akin to gedaldic.

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Here, it is the provision of that care solely for a particular group when the minor has an identity inconsistent with their birth sex that determines whether the care is being provided.

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It operates by considering the birth sex of the minor, but it is also written in sex-based terms beyond simply describing a procedure or diagnosis.

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In fact, there's no diagnosis included in Senate Bill 613.

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And when it speaks to when procedures are banned, it speaks to procedures that would lead to changes that are inconsistent with one's birth sex, or that would lead to masculinization or feminization

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that would be typical of the opposite sex.

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Those are the terms of the statute and how it operates.

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Separate and apart from that, Your Honor, the court in Dawes held, and that is the law of the land, and in Getolde, that pregnancy was not a proxy or a facial classification when it came to sex.

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Here, gender transition and the ability to transition is

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closely correlated with being transgender than it is that proxy.

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And it is a facial classification in that sense.

[00:15:03] Speaker 01:
Which sexist is a proxy for?

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It's not invidious between people who are male at birth and people who are female at birth.

[00:15:16] Speaker 01:
It's not invidious in distinguishing them.

[00:15:19] Speaker 03:
Well, Your Honor, it is in that it distinguishes for

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you already see that almost my time is up, that it does distinguish between somebody being assigned a particular sex, somebody being born with particular sex, a birth sex of male or female, and being able to access treatment if it is deemed consistent with that treatment.

[00:15:39] Speaker 03:
Just because there is equal application of the ban, that doesn't excuse that it is a sex-based classification.

[00:15:47] Speaker 03:
As this court stated in

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free the nipple, all gender-based classifications are subject to high-density screening.

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And in fact, in that case, the majority noted that there may be physical differences that are at play that sometimes may justify the treatment.

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But it doesn't always justify the disparate treatment.

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If anything, it doesn't go to whether high-density screening applies.

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It goes to whether it is justified.

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Here, that is not the case.

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You want to see that my time is up?

[00:16:17] Speaker 03:
Way up?

[00:16:20] Speaker 00:
And free the nipple, men and women were treated differently.

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Here they're not.

[00:16:29] Speaker 03:
Well, they are in the sense that a birth assigned male can obtain testosterone, but a birth assigned female cannot.

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And not only that, there is the reality that

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Ultimately, the equal protection clause, as with Title VII, focuses on the individual and whether sex is being taken into account.

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That is what is happening here.

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Not only does it operate on the basis of sex, it focuses on the individual and determines whether their sex, birth sex, is consistent with their identity in order to access treatment.

[00:17:09] Speaker 03:
That is also the definition of being transgender, which

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I would argue and rely on our briefs is independently subject to heightened screening separate apart from sex.

[00:17:21] Speaker 01:
Thank you, counsel.

[00:17:22] Speaker 03:
Thank you.

[00:17:22] Speaker 03:
Your Honor, if I may, if I could have the temerity to reserve one or two minutes for rebuttal.

[00:17:30] Speaker 01:
We'll see.

[00:17:30] Speaker 01:
Thank you.

[00:17:35] Speaker 01:
The purpose of counsel is to show temerity.

[00:17:37] Speaker 01:
There's no problem with that.

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Whether we abide your wishes is something different.

[00:17:44] Speaker 02:
Thank you, Your Honors, and may it please the court.

[00:17:46] Speaker 02:
My name is Gary Gaskins.

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I represent the Oklahoma Attorney General, Gintner Drummond, and the other state defendants in this case.

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At the council table with me is Zach West with the Oklahoma Attorney General's office, and Craig Bouchon, who is a private attorney representing the OU Health Defendants.

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I will be the only one speaking for the appellees today.

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Last year, Oklahoma joined about 19 other states.

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in enacting laws preventing doctors from providing physically healthy children, powerful cross-sex hormones, and surgeries for the sole purpose of treating gender dysphoria.

[00:18:23] Speaker 02:
So far, the Sixth and Eleventh Circuits have reversed preliminary injunction grants.

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The Eighth Circuit affirmed an injunction grant, but recently agreed to hear the summary judgment appeal in Bunk.

[00:18:34] Speaker 01:
They did?

[00:18:34] Speaker 01:
We tried to check that.

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How recently was that that they voted to unbunk that?

[00:18:38] Speaker 02:
I believe it was October.

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Similar to the claimants in the Sixth Circuit LWV Scrametti case, the plaintiffs here do not argue that the original fixed meaning of the due process or equal protection guarantees covers their claims.

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As a result, I think the Scrametti court's framing of the issue is appropriate here.

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Specifically, Judge Sutton in Scrametti said that this, quote, prompts the question whether the people of this country ever agreed to remove debates of this sort

[00:19:12] Speaker 02:
over the use of innovative and potentially irreversible medical treatments for children from the conventional place for dealing with new norms, new drugs, and new public health concerns, the democratic process.

[00:19:26] Speaker 02:
And the answer to that question is no.

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The district court in Scrametti, or the district court quoting Scrametti, held that we look to democracy to answer pioneering public policy questions, meaning that federal courts must resist the temptation

[00:19:42] Speaker 02:
to invoke an unenumerated guarantee to substitute their views for those of the legislatures?

[00:19:48] Speaker 01:
Well, we're not going to ignore the equal protection clause.

[00:19:52] Speaker 01:
And there are a couple of points made by the opposing council I'd like you to address.

[00:19:58] Speaker 01:
So you can use testosterone to treat males for certain things, but you can't use testosterone if it's to help for gender transformation.

[00:20:10] Speaker 01:
Why is that not a sex discrimination?

[00:20:14] Speaker 02:
Well, I think first under the Equal Protection Clause, right, equal protection really keeps governmental decision makers from treating persons differently who are on all relevant respects alike.

[00:20:26] Speaker 02:
And so in the example there, those are different treatments.

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Those are different treatments.

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So I don't know if the boys and the girls are necessarily similarly situated when they're seeking

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testosterone or estrogen.

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I'd also point out that the FDA has not approved these drugs for those purposes.

[00:20:52] Speaker 01:
Well, that might be a justification for treating them differently, but okay, I just wanted to get your response to that, but I'm not sure the fact that the FDA hasn't approved the drugs for this purpose.

[00:21:07] Speaker 01:
addresses the classification issue.

[00:21:12] Speaker 02:
Right.

[00:21:12] Speaker 02:
There's a difference between giving boys testosterone and giving girls testosterone.

[00:21:20] Speaker 02:
I thought that the district court found that the facial distinction made here is between adults who are ready to make life-altering decisions and minors, at least in the eyes of the legislature, are not.

[00:21:35] Speaker 02:
The distinction is not sex.

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The distinction is age.

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And the distinction is the medical condition.

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The district court found that, for example, the hormones, when used to treat endorphin disorders, the treatment protocols bring the patient's body back to the hormonal states.

[00:21:57] Speaker 02:
They would have been in but for the disorder.

[00:22:01] Speaker 02:
If they're used for some other purpose,

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If a girl is being given testosterone, that's not bringing her motor stage back to where they would be but for whatever disorder.

[00:22:16] Speaker 02:
So I think the law is making a distinction between the age and the medical condition that is being treated.

[00:22:26] Speaker 01:
To switch a bit from equal protection to due process, you say the legislature doesn't think

[00:22:32] Speaker 01:
that minors are able to make these very significant decisions in their life.

[00:22:36] Speaker 01:
But there are a lot of decisions that minors, that are made for minors that have that effect, from schooling to religion to other things like that.

[00:22:49] Speaker 01:
Why isn't the parent who does have that ability and in our society is allowed to exercise that

[00:22:59] Speaker 01:
authority in many ways, why does that not answer the problem of a child making this decision?

[00:23:07] Speaker 02:
Well, I guess I'd first start off with the DOPS court emphasized that health and welfare laws are entitled to a strong presumption of validity.

[00:23:15] Speaker 01:
We already talked about... We're talking about specifically in the context of minors now.

[00:23:20] Speaker 02:
I understand.

[00:23:20] Speaker 02:
So I would first point out to this court in the Rutherford v. United States case that this court held in a term, millennial cancer,

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patient did not have a right to take whatever treatment they wish, regardless of whether the FDA regarded the medication as effective or safe.

[00:23:38] Speaker 02:
Abigail Williams for Better Access to Development Drugs, V. E. von Eschbach from the DC Circuit in 2007 said, there's no fundamental right deeply rooted in this nation's history and tradition of access to experimental drugs for the terminally ill.

[00:23:53] Speaker 02:
So a terminally ill person is not entitled to take drugs that are

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otherwise not authorized by law.

[00:24:01] Speaker 02:
I'm not sure how the parents of this situation would be able to overrule the federal government or a state that decides to ban such drugs.

[00:24:15] Speaker 00:
Well, so much depends on the standard of review.

[00:24:18] Speaker 00:
And I'd ask opposing counsel about if boys and girls are treated the same, even though the drugs are different, why would that be an equal protection violation

[00:24:29] Speaker 00:
One answer to that might be looking, and I understand it's a Title VII case, but looking at Justice Gorsuch's language in Bostock, where he says even though men and women are being treated the same, the man aspired for being too effeminate, the woman aspired for being too masculine, that still is a sex classification.

[00:24:52] Speaker 00:
Why does that not travel?

[00:24:54] Speaker 00:
Why could we not say the same thing here?

[00:24:56] Speaker 02:
I think, I mean, I do know that Judge Gorsuch

[00:24:59] Speaker 02:
has previously, in his concurring opinion in Students for Fair Visions, said that the difference between the Title VII language and the Equal Protection constitutional provision, that such a differently worded provisions should mean the same thing as implausible on its face.

[00:25:19] Speaker 02:
So I think the author of the Bostock decision came out and said that that's not what they meant in Bostock

[00:25:30] Speaker 01:
One thing to say that different language might have different consequences.

[00:25:34] Speaker 01:
There are exceptions in Title VII for significant business reasons, for example.

[00:25:44] Speaker 01:
But in terms of whether you're making a distinction based on gender, shouldn't that analysis be the same under Title VII and under Equal Protection Clause?

[00:25:56] Speaker 02:
Well, again, we're having to talk about it.

[00:25:57] Speaker 02:
I think it goes back to under Equal Protection

[00:26:00] Speaker 02:
you have to see whether the persons that are being treated differently are of all relevant respects alike.

[00:26:09] Speaker 02:
And here, both boys and girls under the age of 18 are being treated the same.

[00:26:14] Speaker 02:
They are both not permitted to receive this same sort of treatment.

[00:26:20] Speaker 02:
And one thing that I think we haven't even, it hasn't been broached yet, but one of the treatments that's at issue in this case is the puberty blockers.

[00:26:30] Speaker 02:
And the exact same puberty-blocking drug is given to boys and girls.

[00:26:34] Speaker 02:
In the same dose, apparently.

[00:26:36] Speaker 02:
Same dose.

[00:26:37] Speaker 02:
So, at least as it relates to the puberty blockers, any claim that that is a sex-based discrimination, I think, it's not supported by the facts.

[00:27:01] Speaker 02:
And I would also just point out that, again, that Dobbs made clear, as we previously talked, that absent pretext, the regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny.

[00:27:16] Speaker 02:
Therefore, the fact that boys and girls receive different hormones or have to cut off different body parts to transition from one sex to another does not result in heightened scrutiny.

[00:27:27] Speaker 02:
And just thinking about, you know,

[00:27:30] Speaker 02:
possible absurd results if we were to say today that this is sex discrimination.

[00:27:36] Speaker 02:
One thought that I had is let's go to the states that allow these treatments.

[00:27:42] Speaker 02:
And let's say that we have a government hospital and we have a governmental doctor and the hospital and this governmental doctor treats patients suffering from gender dysphoria.

[00:27:55] Speaker 02:
And the hospital puts in place a policy that says

[00:27:59] Speaker 02:
if you're going to treat gender dysphoria with hormones, only boys, only biological boys can receive estrogen and only biological rules can receive testosterone.

[00:28:10] Speaker 02:
Truly, such a policy would not be presumptively unconstitutional.

[00:28:18] Speaker 02:
Such a policy shouldn't be subject to high security.

[00:28:21] Speaker 02:
Just like Oklahoma's law, that sort of policy simply takes into account the

[00:28:27] Speaker 02:
differences between the sexes that we've come to celebrate in this country.

[00:28:39] Speaker 02:
And I'd also point out, going to the Godaldig case, that this idea that maybe boys can receive testosterone for some sort of recreational purpose and girls are not allowed to do that.

[00:28:56] Speaker 02:
I do question

[00:28:57] Speaker 02:
One, whether that would justify a standard of care, which Oklahoma puts an affirmative burden on doctors to follow a certain standard of care, or risk their license, or lawsuits, or whatever.

[00:29:09] Speaker 02:
But even if that were something that was happening, the Gadaldi-Bialo case from 1974 said, the U.S.

[00:29:19] Speaker 02:
Supreme Court said, this court has held that consistently with equal protection clause, a state may take one step at a time addressing itself

[00:29:28] Speaker 02:
to the phase of the problem which seems most acute to the legislative mind, the legislature may select one phase of one field and apply a remedy there, neglecting the others.

[00:29:39] Speaker 02:
The equal protection clause does not require the state must choose between attacking every aspect of a problem or not attacking the problem at all.

[00:29:48] Speaker 02:
So even if that were something that were happening where boys were getting prescribed testosterone for recreational purposes, which, you know,

[00:29:56] Speaker 02:
probably doping in some circles.

[00:30:00] Speaker 02:
The fact that Opal's law doesn't ban that doesn't make it an equal protection violation under Goodall-Dick.

[00:30:06] Speaker 00:
Well, as Judge Hartz noted, what makes this case difficult is whatever is decided, there will be some minor children who are injured.

[00:30:15] Speaker 00:
If we say, yes, you're correct, you win, there will be some transgender children who will be harmed by that, who would have been better served to have had the treatment

[00:30:26] Speaker 00:
Why is it not better to leave that with the parents rather than the state?

[00:30:30] Speaker 02:
Well, I mean, again, with the Dobbs decision, health and welfare laws are given a strong presumption of validity.

[00:30:38] Speaker 02:
I think Judge Sutton, in the Scrametti case, I think directly addressed this where he said, given the high states of these nascent policy deliberations, the long-term health of children facing gender dysphoria, sound government usually benefits from more rather than less debate, more

[00:30:56] Speaker 02:
rather than less input, more rather than less consideration of fair-minded policy approaches.

[00:31:02] Speaker 02:
To permit legislatures on one side of the debate to have their say while silencing legislatures on the other side of the debate under the Constitution does not further these goals.

[00:31:11] Speaker 00:
I don't recollect, and I may be mistaken, I don't recollect Judge Sutton's opinion address the due process, though.

[00:31:20] Speaker 02:
Yeah, I don't have that recollection as well.

[00:31:24] Speaker 02:
And going back to the idea that the law references sex, I think that circuit judge Broussher's concurring opinion, and I guess Tucker did a great job of picking apart the allegation that laws like Oklahoma's discriminated based on sex.

[00:31:44] Speaker 02:
Judge Broussher said that the law doesn't distribute benefits or burdens between men and women, or arguably use sex as a proxy for other interests.

[00:31:52] Speaker 02:
He went on to say, another way to think about it, an injunction against the enforcement of Alabama's law, under equal protection principles, will not equalize burdens or benefits between boys and girls.

[00:32:03] Speaker 02:
It will not require the government to treat boys and girls the same.

[00:32:06] Speaker 02:
It will merely force Alabama to either ban puberty blockers and hormones for all purposes, or allow them for all purposes.

[00:32:14] Speaker 02:
Accordingly, Oklahoma's law, just like Alabama's, doesn't discriminate against facts.

[00:32:19] Speaker 02:
It's simply making distinctions between age and a medical condition.

[00:32:26] Speaker 02:
And the state of Oklahoma does have compelling justification for this sort of distinction.

[00:32:35] Speaker 02:
As we pointed out, there's many things that we don't allow children to do that we allow adults to do.

[00:32:48] Speaker 02:
I know there's a debate on both sides on this, but can I finish my summary?

[00:32:54] Speaker 01:
Finish the thought.

[00:32:55] Speaker 01:
He's took a little extra time, but don't drag on.

[00:32:58] Speaker 02:
Sure.

[00:32:58] Speaker 02:
Thank you.

[00:33:00] Speaker 02:
So, I mean, there's debates on both sides about the efficacy of these treatments, but there are known potential side effects of these drugs, including causing the child to be permanently sterile

[00:33:16] Speaker 02:
cardiovascular issues, issues with bone and brain development.

[00:33:22] Speaker 02:
So certainly the state of Oklahoma has an interest in regulating these sort of treatments, especially when we're talking about minors.

[00:33:31] Speaker 02:
The law doesn't even allow it to contract.

[00:33:34] Speaker 00:
How does the child's informed consent fair on all of the problems?

[00:33:39] Speaker 00:
I'm assuming that although they're detailed in the briefs, they may not be detailed in the doctor's office.

[00:33:48] Speaker 02:
that the facial distinction made is between adults who are ready to make life-altering decisions and minors who, at least in the eyes of the legislature, are not.

[00:33:56] Speaker 02:
There's many areas of the law where we say that children, even if they want to enter into a contract and they're given informed consent of what they're doing, the law still doesn't ratify such a decision.

[00:34:13] Speaker 01:
Thank you, counsel.

[00:34:14] Speaker 02:
Thank you.

[00:34:22] Speaker 01:
And then I may have some questions after that.

[00:34:24] Speaker 03:
Thank you, Your Honor, I appreciate it.

[00:34:28] Speaker 03:
Your Honor, just briefly, I think the Justice Corp's statement in South Bay Pentecostal is pretty instructive here.

[00:34:37] Speaker 03:
Just because this involved medical treatment doesn't mean that the judiciary cannot scrutinize the law issue and that should not leave the field.

[00:34:49] Speaker 03:
At the end of the day, Senate Bill 613

[00:34:51] Speaker 03:
represents an unrivaled and unprecedented invasion of a private decision-making of parents, their children, and their doctors.

[00:35:00] Speaker 03:
It invades their homes and doctors' offices, and imposes extreme harms.

[00:35:07] Speaker 03:
It does so discriminatorily and in violation of fundamental protections guaranteed by the 14th Amendment.

[00:35:14] Speaker 03:
We ask this Court to order the issuance of a preliminary injunction and to prevent further

[00:35:22] Speaker 03:
Thank you.

[00:35:24] Speaker 01:
I have a question.

[00:35:25] Speaker 01:
It's the dog that didn't bark today.

[00:35:27] Speaker 01:
I was surprised.

[00:35:31] Speaker 01:
I think the most concerning thing about the briefs

[00:35:37] Speaker 01:
was the statements that, look, all the major medical associations in this country favor this.

[00:35:48] Speaker 01:
So the science is settled, and you need to just follow the science.

[00:35:52] Speaker 01:
And then you see that in Britain, they stopped this.

[00:35:55] Speaker 01:
Denmark, which was the first to try this type of treatment, is putting on the brakes.

[00:36:01] Speaker 01:
Other European countries are.

[00:36:05] Speaker 01:
Is it fair to say that that's off the table now?

[00:36:07] Speaker 01:
That's just not an issue that's being raised that we have to do this because the science is settled by all the medical associations in this country?

[00:36:18] Speaker 03:
No, Your Honor.

[00:36:19] Speaker 03:
A couple of points.

[00:36:20] Speaker 03:
First of all, I don't believe Denmark in any way has put any restrictions on this care.

[00:36:26] Speaker 03:
The state points to three or four examples of countries that have in nationalized health care systems restricted some of this care to clinical

[00:36:34] Speaker 01:
And that, in any event, permits... Are you contending that the science is settled on these issues?

[00:36:47] Speaker 03:
Your Honor, I believe that it is settled that there are benefits to this care and that there is harm to not providing this care.

[00:36:56] Speaker 03:
As with all science of medicine, we do not know everything.

[00:37:00] Speaker 03:
And more science and more study is important and necessary.

[00:37:05] Speaker 03:
What Senate Bill 613 does is completely stop the development of that knowledge.

[00:37:11] Speaker 03:
It absolutely prohibits and makes it unlawful to provide this care under any setting.

[00:37:17] Speaker 03:
I think, if anything, the state's examples of other intersections.

[00:37:22] Speaker 01:
The FDA does that all the time.

[00:37:23] Speaker 01:
They say you can't use this drug until you've proved its safety and efficacy.

[00:37:28] Speaker 01:
There's nothing remarkable about a statute that would do the same thing.

[00:37:33] Speaker 03:
The state here doesn't allow for that, Your Honor.

[00:37:36] Speaker 03:
And in any event, those examples, I think, illustrate that what the state did here is not in any way tailored to the interests that they purport to present.

[00:37:50] Speaker 01:
Thank you.

[00:37:50] Speaker 03:
Thank you.

[00:37:51] Speaker 01:
Thank you, Council.

[00:37:52] Speaker 01:
I'd like to thank everybody in the audience for behaving.

[00:37:55] Speaker 01:
It was very nice.

[00:37:55] Speaker 01:
We had a sort of argument that

[00:38:02] Speaker 01:
is standard in this court, and I hope for those who aren't lawyers here, you can appreciate the way we try to solve problems in this venue.

[00:38:13] Speaker 01:
So, case is submitted and counsel are excused.

[00:38:16] Speaker 01:
I guess we'll need a minute.