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Case number 25-1587.

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Nicholas Talbot et al.

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versus United States of America et al.

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appellants.

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Mr. Mannion for the appellant.

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Mr. Minter for the appellees.

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Good morning, Mr. Mannion.

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Good morning, Your Honor.

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You may proceed when you're... Good morning, Your Honors.

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May it please the court?

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Jason Mannion on behalf of the United States and the federal defendants.

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If I may, I'd like to reserve five minutes for rebuttal.

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In 2018, after months of study by a panel of experts who produced the 44-page Madison report, President Trump's military leaders enacted a gender dysphoria policy that was materially similar to the policy at issue here.

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After a few district courts enjoined that policy, this court vacated one of those injunctions, allowing that 2018 policy to go into effect.

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And the Supreme Court did the same for the other injunctions elsewhere around the country.

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Earlier this year, President Trump's military leaders again enacted a materially similar gender dysphoria policy based in part on that same Mattis report and evoking many of the same justifications that led the Supreme Court to vacate the injunctions in 2019.

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And we ask this court today to follow the Supreme Court's lead in Karnosky and those other cases and to vacate the injunction below.

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When the district court here entered the injunction against the 2025 policy, it made many of the same mistakes that district courts made when analyzing the Madison policy in the first instance.

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And the first one of those was that it treated a gender dysphoria policy as instead a policy that swept more broadly and focused on a person's expressed gender identity.

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But that's not what this policy does.

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This policy, like the policies that every other administration in the last 10 years or so has done, focused on a medical condition and related medical treatments, focused on gender dysphoria, and it focused on medical treatments related to that condition.

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clearly erroneous for the district court to treat this policy as being a broader policy than it was.

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How can you say that when somebody who

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has no medical condition, has never been diagnosed with gender dysphoria, but who has transitioned and who lives in a sex other than their birth sex is explicitly banned by the policy.

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It's clearly banning all transgender persons.

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Well, I disagree with that last part, Your Honor.

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Each of the policies that existed before, and this policy as well, allow people who identify as something other than their sex to serve in their sex.

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This policy allows that.

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So did the Mattis policy.

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So did the Carter policy.

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So did the Austin policy.

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But the Mattis policy importantly grandfathered in

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people who were incumbent service members and who were who were accessioned under the Carter policy.

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and had shown that they were fully able to serve, that they were mentally and physically fit to meet the otherwise trans-neutral military standards.

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And those people were grandfathered under Mattis.

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And Mattis himself made that determination.

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And here there's no such grandfathering.

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So it's a different policy.

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So I agree that there is a difference in the exceptions to the general rule that both of those policies put in place.

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But I don't think that is a difference that has a constitutional dimension to it.

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Well, we're under, I mean, assuming rational basis review,

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It may have a constitutional dimension in the sense of explanation.

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So you said, and there's sort of two questions on the table.

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I don't want to confuse the line of inquiry.

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You said that this is not a transgender ban because it allows people who identify as transgender to serve in their birth sex.

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But the record in the case includes and adopts as a fact finding the supplemental declaration of, I think it's Mr. Brown, Professor Brown or Dr. Brown, who says that the Doe II discussion of

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that category of people, people who may identify as transgender, but eschew entirely any transition.

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He says that is not really a transgender person.

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He said it would be somebody who would, if given the opportunity, would want to transition, not that you're allowing transgender people to serve in the military, if you're allowing people

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serve as long as they don't transition.

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A couple of points about that, Your Honor.

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I mean, first of all, that's quite different than the same expert's view in DOE 2.

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And if you look at the DOE 2 published concurrences from Judge Wilkins and from Judge Williams, you'll see that there was shared agreement about the definitions in that case, in part based on that same expert's view.

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And that expert has since said, no, no, I was misunderstood.

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And that's in the record.

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in this case, it wasn't in the record there, but it is in the record in this case.

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So if we're deferring to a record and to what's currently been done in the military rather than to my colleagues some eight years ago, what's your answer to that?

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So your argument that this is not a ban on transgender service

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is that you can serve as a transgender person as long as you don't serve as a transgender person.

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Is that right?

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No, I certainly wouldn't put it that way.

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I think that

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It's our view that this policy, like each of the policies that preceded it, targets a subset of the category you're talking about.

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It targets the subset that has the diagnosis of gender dysphoria, which

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is marked by that significant clinical distress and the impairment of functioning that applies in social, occupational, and other important areas.

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think each of the policies here have drawn the same type of line.

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It's a line that the Supreme Court allowed us to take in several years ago.

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But I think even if you disagree with me about the scope of

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of the policy here, we think we still survive constitutional scrutiny.

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And that's because we think as an initial matter, rational basis applies even to policies or laws that have a scope that affects all people who identify as transgender.

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And even

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Even if you don't want to adopt that as, I realize there's a circuit split on that issue, even if you don't want to adopt that view as to every policy in every context, the military is different.

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That's the through line through the- Sorry, circuit split on what issue?

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Just on the standard of review that covers policies that affect-

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No, I mean, that affect the category of people who identify as transgender.

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And it's just whether that's rational basis or if you're outside of the military.

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Right.

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Right.

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So outside of the military context, I realize there's a circuit split, but I don't think this court needs to wade into that circuit split in this case because of the military context of this case.

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Mr. Mannion.

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In reviewing a preliminary injunction, we have to review findings of fact for clear error.

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And here the district court found that the government acted with animus.

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So what is your best argument for why that is clear error?

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So I think even if

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Even if you are required to defer to the factual view that there was some animus motivating this decision, I don't think that resolves the legal question of whether you can shortcut the deference that would normally apply to this decision.

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And so I would point the court to Trump v. Hawaii.

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Are you conceding that there was animus?

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Well, I'm not.

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I understood in your question to be that you have to review that as clear error.

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Do you think it was a clear error to find animus?

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I think it's certainly clear error to find that the policy can't be explained by any reason other than animus.

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I think that's apparent on the face of the policy.

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And that's the relevant question.

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The relevant question is whether the policy can be explained by any reason other than animus, or whether there is impossible.

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And where are you getting that from?

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That's from Trump v. Hawaii, primarily.

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But they made a finding that it wasn't the policy there that the third so-called Muslim ban was not, in fact, a Muslim ban.

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because the anti-Muslim tweets were before the president took office.

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And the policy that ensued covered maybe 8% of the world's Muslim population.

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It was done after a careful study by

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global experts in the terrorism that it was trying to attack.

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Here we have something altogether different.

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We have a sitting president issuing an executive order that has animus on its face, not directing anyone, any panel of experts to study the issue, but simply directing the Secretary of Defense to implement

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a ban on transgender, on service by transgender persons, and within a month, the Secretary of Defense doing so with no further study other than the Mattis policy, which itself characterized the terrain at the time as having to, as requiring a lot of prediction

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So we had no, it's a far cry from the situation in Trump v. Hawaii.

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Is it not?

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I mean, I disagree, Your Honor.

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So walk us through that.

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Sure.

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So I mean, I think there are

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A few of the things that you mentioned would have been the exact same arguments that a plaintiff's in Trump v. Hawaii would have made.

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The fact that the policy at its genesis was surrounded by campaign comments or by tweets from relevant officials that were characterized as displaying animus.

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The initial genesis of the policymaking in Trump v. Hawaii included comments on the face of some of the initial documents.

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Those were tweets, not an executive order by a sitting president in Trump v. Hawaii.

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So it was certainly at least tweets.

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And so I apologize if I misstated anything there.

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There too, you had a claim that early on in the process that there was animus being shown to a protected group of people and that that bled through throughout the entire policymaking process and infected the entire policymaking process.

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By the time we got to the Supreme Court, the Supreme Court

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You know, it looked at those comments.

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I think it's fair to say it was even critical of those comments as maybe not showing the level of tolerance or respect that some might want them to show.

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But still, the Supreme Court said, we are not analyzing just the comments of one particular president.

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We are analyzing the power of the presidency itself.

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And the Supreme Court said, even if

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that there's some indication of animus or you're in the process.

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The relevant question is whether the policy can be explained by anything other than animus or whether it's impossible to discern a legitimate basis.

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All right.

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I mean, the district judge in her opinion at Addendum 48 has a detailed seven point distinction between

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the so-called Muslim ban that the Supreme Court sustained in Trump versus Hawaii and the ban at issue here.

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Trump versus Hawaii, the ban was patiently neutral, here it's not.

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Trump versus Hawaii, there were months and numerous working groups that were, there was months of time that passed from the

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pre-inauguration, Muslim ban tweets, and the policy in Trump v. Hawaii.

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And here, the transgender ban tweet of Hegseth and Trump right after the Hegseth policy issue.

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But more importantly, the executive order itself was really not separated by any study, any time, any deliberation.

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the executive order wasn't separated from the policy that ensued with multiple iterations and fine tuning of the ban in Trump v. Hawaii with one iteration of the ban here.

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There's just a lot of daylight.

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So are there other cases that you would say support the prerogative of the military when it's entitled to deference

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to act with animus against a group?

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I can't recall off the top of my head whether the Supreme Court's other military deference cases included allegations of animus or not.

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But I would like to just return to that comparison that you were describing.

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I mean, certainly as an initial matter, for the reasoning of a decision to apply, not all the facts need to be the same.

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But I think

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One of the critical things that Judge Reyes

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One of the critical errors in that description that you just read to me is that this policy built on months of study.

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This policy built on expert review as well.

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Sure, that had occurred when President Trump was president the first time.

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But it is just not the case that this was a starting from scratch policy in as quick of a time

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This built on months of study, 40 page policy that came from expert review, from interviews with service members who identified as transgender, interviews with their commanders.

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You're talking about the MADIS.

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That's right.

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The MADIS study.

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Yes.

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The Mattis policy, as I mentioned, said that there was an absence of experience.

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And so at that time, it was necessary to be predictive.

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And my question is, why we have nothing in the record?

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about the experience under the Austin policy that the military has had for four years of transgender people joining and transgender people serving openly.

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I mean, some of the concerns that are raised in Mattis are

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presumably been wrestled with by the military in that period.

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And we're given no information about what's been done.

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Privacy, fairness concerns that are mentioned.

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There's nothing offered by the government about whether and how those issues prove to be problematic.

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Nothing.

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So it's our view that on rational basis review, that there's not a requirement for the government to produce evidence to show that a policy is rationally related to a legitimate government objective.

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How do we assess whether it's rational?

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We don't assess if the evidence is Z and the government says A, that's not relevant to our assessment under rational basis review where the military is involved.

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So in the rational basis review context, I think you look at the reasons given by the government and you assess whether those are rationally related to the objective the government's trying to pursue.

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And here, I think that this policy easily passes rational basis review.

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So if the military said people with

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red hair are just too fragile and vulnerable.

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We are going to kick them all out of the military, and we are going to not allow any of them ever to join.

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And we have no evidence of that.

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But we think they're a threat to military preparedness, to unit cohesion, and too costly.

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And so we're just going to kick them out.

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That is rational enough under military deference?

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Well, I don't think you need to find what the outer edges of rationality are in order to uphold this policy.

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I don't think so either.

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I don't think so either.

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Because this policy relies on a condition that is marked by severe clinical distress or impaired functioning in occupational and other important settings.

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clearly for a condition like that, particularly when viewed under the deferential lens that you're required to review the military's assessment of risk and their judgment about risk tolerance, if there are mental conditions that will impair someone's ability to function in the military, or that the military could rationally judge would impair that, then that's

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That's more than enough to satisfy rational basis review.

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And that's evidence that the transgender people who, that all transgender people covered by this ban or any of them poses kinds of risks.

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The evidence in the record is what?

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So I don't think we put evidence in the record, or we didn't put evidence in the record about these particular plaintiffs, or whether these particular plaintiffs.

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No, I'm talking about any transgender people in the military, because there have been thousands of them now.

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There are thousands of them now.

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And so what I'm just wondering about, because, for example, I hear you, and I've read the record, and so I know that it does say, as you just said, that gender dysphoria can be associated with depression and suicidality,

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things that would be and are actually already of concern, and appropriately so, to the military when it's choosing who it can bring on board.

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And I think, as your brief said, 70% of the people in the eligible age group are not

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eligible to join the military because the standards are really demanding.

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So I understand that.

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I guess the question is, if the concerns are with depression or suicidality, there already are standards that would screen someone out for those things.

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So I think, yes, it's true that there are standards in place that address some of the components that are associated with.

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But someone who had gender dysphoria 10 years ago and went through a transition and has been stable for the ensuing nine years and is living and presenting in the world as a sex other than their birth sex,

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That person who's highly skilled, strong, who's patriotic, who wants to serve in the military.

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That person is banned by this policy.

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Why?

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Oh, yeah, I think.

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The military invoked multiple reasons here that interact.

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But even if you don't think one of those stands alone, there's not a constitutional requirement that each individual reason and profit would be enough standing alone to justify a policy.

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It's just that there be a rational connection.

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And it can be a tenuous rational connection, presumably, because we're in the context, on my hypothesis, of no heightened scrutiny and a high degree

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of deference to the judgment of military leadership and military experts.

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So there doesn't have to be a tight fit.

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And so even if even a particular individuals within the group may have had periods of stability, may be totally functional in a military setting, the condition is still one that is marked by that significant clinical distress, that impairment of functioning and occupational and other settings.

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Mr. Randy, I have a question related to Judge Pillard's questions, which is that even if the government's policy passes scrutiny, what about the decision to categorically treat everyone in this class, to choose administrative separation for all the service members who fail to meet the new criteria?

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Should the military be required to take an individualized determination?

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And is the decision not to make individualized determinations some indication that it is treating people the same based on their transgender status?

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This is one thing to set the criteria.

[00:24:26] Speaker 04:
And then it's another thing how the military or the government chooses to implement those criteria.

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So I'm asking I guess about the implementation is the implementation.

[00:24:34] Speaker 06:
And I don't think the implementation here is nearly as unusual as my friends on the other side suggest a recent.

[00:24:45] Speaker 06:
additional example of the military making a categorical judgment to send, a categorical medical judgment to send soldiers and service members through the administrative process that you're describing would have been the COVID-19 vaccines there to the military.

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separated groups of people based on a medical judgment that their refusal to take the vaccine would have impacts on military readiness, et cetera.

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And they did that through the same administrative separation policy that's at issue here.

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And that itself is also not unique.

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The military uses this administrative separation procedure for a number of reasons, including reasons that also touch on medical bases as well.

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And so I don't think that there's any sign here based on the procedure at the back end that there's animus or irrationality in the way that the government is treating the issue.

[00:25:52] Speaker 05:
Can I ask you about that?

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On the front end, there are these very rigorous requirements, failure to satisfy or disqualifying 75% of eligible people.

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And they cover seemingly modest conditions like asthma and so on.

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So what happens, put aside all the transgender stuff, just in general, what happens on the back end when

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There is a service member serving who discovers some, is found to have some condition that would have been disqualifying at the accession stage.

[00:26:40] Speaker 05:
Is it a discretionary judgment by a military board?

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Is it administrative separation?

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How does the military handle that?

[00:26:52] Speaker 06:
I don't know if I have a complete answer to that, and maybe I will when I get back on rebuttal, but it's my understanding that many conditions, I don't know if it's all conditions, but at least many conditions do go through a more individualized process.

[00:27:12] Speaker 02:
Is there any condition, medical condition, other than

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gender dysphoria or transgender status that doesn't go through a medical evaluation board.

[00:27:30] Speaker 03:
If you develop depression, if you develop allergies, if you turn out to have OCD that was undiagnosed when you joined, anything that you're aware of that

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is routed through an automatic separation rather than a medical evaluation.

[00:27:57] Speaker 06:
I don't know if one off the top of my head.

[00:27:59] Speaker 06:
I can't say with certainty that there aren't.

[00:28:00] Speaker 03:
There's not identified in your brief.

[00:28:02] Speaker 06:
I don't believe so.

[00:28:04] Speaker 03:
Or anywhere in the record that you

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that the government participated in developing?

[00:28:09] Speaker 06:
Not that I'm aware of, Your Honor.

[00:28:11] Speaker 03:
Was the government given a full opportunity to participate in the development of the record below?

[00:28:15] Speaker 06:
Yes, Your Honor.

[00:28:16] Speaker 06:
We had the option to present witnesses if we wish to do so.

[00:28:21] Speaker 03:
So I'd like to hear about irreparable harm, but just since we're into the likelihood of success on the merits,

[00:28:31] Speaker 03:
The motion for stay characterizes that 2021 MSARA study as having found that nearly 40% of service members with gender dysphoria were non-deployable over a 24-month period.

[00:28:47] Speaker 03:
And that seemed important to me as something that you were relying on.

[00:28:53] Speaker 03:
I looked at the report itself.

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And it actually doesn't say that there

[00:29:00] Speaker 03:
non-deployable for a 20-month period, it says at some point during the two-year period of analysis, there was some non-deployable days.

[00:29:14] Speaker 03:
And in fact, that very report generally doesn't have bases of comparison, but it does choose to look at people with suppression for some of the factors as a basis of comparison.

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the transgender people did better in terms of both deployability, consistency of availability to deploy, and remaining tenure of service than people with depression.

[00:29:50] Speaker 03:
So the notion that this shows

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the need for this particular bar and this particular process seems not as strongly supported by that MSARA report as the brief suggests.

[00:30:05] Speaker 03:
And I'd be interested in your response on that.

[00:30:08] Speaker 06:
Well, I hope our brief didn't misquote the report.

[00:30:12] Speaker 03:
It does mischaracterize it.

[00:30:13] Speaker 03:
As far as I can tell, that's why I'm asking for your response.

[00:30:17] Speaker 06:
Well, and if it does, I apologize to the court.

[00:30:21] Speaker 06:
I think your description of the report is correct.

[00:30:26] Speaker 06:
Judge Ray is focused on that same point as well.

[00:30:32] Speaker 06:
But this AMSARA report doesn't stand alone or anything close to it.

[00:30:37] Speaker 06:
This report is one of multiple sources, the most important of which, I think, is that MATIS policy that we started off the argument discussing.

[00:30:51] Speaker 03:
Does the accession policy or only the retention policy bar persons with symptoms consistent with gender dysphoria but no diagnosis?

[00:31:05] Speaker 06:
So both policies have that same scope and I can

[00:31:14] Speaker 06:
points you to a record site to support that.

[00:31:17] Speaker 06:
That's the addendum 198 to 199.

[00:31:22] Speaker 06:
The initial policy, I think, is less clear on that point.

[00:31:25] Speaker 06:
But there was subsequent guidance that linked the standards for accession and retention together.

[00:31:33] Speaker 06:
I also want to point out that footnote two of an additional guidance that we added

[00:31:44] Speaker 06:
in support of our motion to stay the injunction gives the definition of that phrase your honor was just referring to and it's not it's not just any symptoms it's symptoms that would be sufficient to to support a diagnosis under the DSM-5.

[00:32:02] Speaker 05:
On the waiver standards as I read it the waiver for members who are already serving

[00:32:13] Speaker 05:
is more difficult to get than the waiver for accession.

[00:32:20] Speaker 05:
Because both have this directly supports war fighting capabilities requirement.

[00:32:30] Speaker 05:
And then the accession standard is full stop there.

[00:32:33] Speaker 05:
And the retention standard has these three other elements, 36 months and so on.

[00:32:40] Speaker 05:
What sense does it make to

[00:32:43] Speaker 05:
make it harder at the retention stage than at the accession stage.

[00:32:53] Speaker 05:
Get in or stay in.

[00:32:54] Speaker 05:
I think, Your Honor, maybe looking at the initial policy, perhaps, that- Looking at, sorry, I don't have an app site, but it's- I think it's what you just- Memo at four and six, pages four and six of the operative memo.

[00:33:10] Speaker 06:
Well, since the initial memo was issued, there have been some different guidances that have clarified the scope.

[00:33:17] Speaker 06:
And so I would point this court to, in our addendum, pages 198 and 199 to an additional guidance document that links these requirements, the 36 months of stability, for example, as being the same for a session and for retention.

[00:33:35] Speaker 05:
On all of these elements that I mentioned?

[00:33:38] Speaker 05:
Yeah, each of those three.

[00:33:40] Speaker 05:
That's right.

[00:33:43] Speaker 03:
And on the symptoms consistent with, how would that be implemented?

[00:33:50] Speaker 03:
There are how many million active service members?

[00:33:58] Speaker 06:
I believe a couple million.

[00:33:59] Speaker 03:
I don't know the exact number.

[00:34:11] Speaker 03:
So the government, it's 1.3 million service members.

[00:34:17] Speaker 03:
This government is going to review the medical records of all of them to identify those who have a current diagnosis or history of or exhibit symptoms consistent with gender dysphoria.

[00:34:30] Speaker 03:
That's the plan.

[00:34:33] Speaker 06:
I don't have additional color that I can offer this court about how that will be implemented.

[00:34:37] Speaker 03:
But if a basis for exclusion is if you have symptoms consistent with, then you just wait and see whether some fellow service member observes something that they think is consistent with gender dysphoria, or how is that going to be implemented?

[00:34:58] Speaker 06:
The best that I know, and it's not a complete answer, is that it will be based on review of medical records.

[00:35:03] Speaker 06:
But I don't know in what pattern or how that will happen.

[00:35:09] Speaker 03:
And how about for people who are seeking to enlist?

[00:35:15] Speaker 06:
I don't know the answer off the top of my head.

[00:35:16] Speaker 06:
I'll try to have one for you on rebuttal.

[00:35:19] Speaker 03:
Can you tell us about the government's

[00:35:24] Speaker 03:
time of irreparable harm.

[00:35:25] Speaker 03:
I mean, we're here not on the merits.

[00:35:28] Speaker 03:
We're here because the government has requested the extraordinary relief of a stay pending appeal and consideration of the preliminary injunction.

[00:35:41] Speaker 03:
And the government comes when it has a

[00:35:46] Speaker 03:
a claim that it will be irreparably harmed if it has to wait for the court to rule in due course.

[00:35:53] Speaker 03:
So what is the irreparable harm?

[00:35:57] Speaker 06:
Yes, so my first point on that is I think that the Supreme Court necessarily did determine that there was irreparable harm from the government not being able to implement the 2018 version of this policy when it also stayed in junctions against the government being able to do so.

[00:36:18] Speaker 06:
I think the main injuries that we have are both the general injury and the inability to enforce what we believe to be a valid policy, but I think it's heightened in this context because of the military context.

[00:36:38] Speaker 06:
a core area of presidential power.

[00:36:40] Speaker 06:
This is something where the military has determined that this policy will increase the readiness and effectiveness of the military.

[00:36:50] Speaker 06:
And in fact, that not being able to enact it would be harmful to the military.

[00:36:53] Speaker 06:
And so we think all of those add up to the irreparable harm that we're invoking here.

[00:37:01] Speaker 03:
So I think you said the government has determined

[00:37:08] Speaker 03:
that the policy will impair military readiness and unit cohesion.

[00:37:17] Speaker 03:
And so the government, the current,

[00:37:26] Speaker 03:
Leadership in the Department of Defense has a judgment that it hasn't shared with the court that the military's readiness and unit cohesion suffered over the four years of a different policy.

[00:37:44] Speaker 06:
I mean, so the evidence in this space has been characterized as being only like low to moderate level of reliability.

[00:37:53] Speaker 06:
And so there's.

[00:37:55] Speaker 03:
I understand that that also struck me as I understand the low to moderate.

[00:37:58] Speaker 03:
That's because you can't do double blind studies ethically with something like transgender stuff.

[00:38:05] Speaker 03:
So there are case studies.

[00:38:08] Speaker 03:
There's clinical observation.

[00:38:10] Speaker 03:
There's all the ability to track people, to work with them, people like Dr. Brown, who have worked with not just with transgender people, but transgender people in the context of the military for many decades.

[00:38:26] Speaker 03:
So there's low to moderate in a technical sense.

[00:38:28] Speaker 03:
But my understanding is really that the high is reserved for double blind.

[00:38:33] Speaker 03:
Do you have a different understanding of that?

[00:38:37] Speaker 06:
I don't know either way on that, Your Honor, but I have two responses, if I may.

[00:38:42] Speaker 06:
First, in this context, as in many other national security contexts, there's always a large amount of predictive judgment.

[00:38:52] Speaker 06:
The Supreme Court referred to it as prophecy in Hawaii v. Trump.

[00:38:55] Speaker 06:
But there's always a large amount of taking the available data,

[00:39:02] Speaker 06:
predictive judgments on top of that.

[00:39:04] Speaker 06:
And the Constitution does not preclude different military leadership from having different risk tolerances in the face of uncertainty.

[00:39:15] Speaker 03:
Absolutely not.

[00:39:16] Speaker 03:
I agree.

[00:39:16] Speaker 03:
I agree.

[00:39:17] Speaker 03:
And the question is, has the Department evaluated the risks given the large body of the most relevant

[00:39:32] Speaker 03:
evidence, which is how has the military worked when a different policy from the one the current administration prefers was in place?

[00:39:41] Speaker 03:
That seems like right there you go and say there's this problem, this problem, this problem, this problem.

[00:39:47] Speaker 03:
That is, I mean, you don't need much, but it's striking to me that the government apparently has not studied that.

[00:40:00] Speaker 06:
And I can't point you to a place in the record that shows that the government has, but I don't believe there's a constitutional requirement for the government to do that before enacting.

[00:40:12] Speaker 03:
Specifically, no.

[00:40:13] Speaker 03:
But there is a constitutional requirement of non-arbitrary decision making.

[00:40:20] Speaker 06:
And our argument today that the military relied on an extensive policy from fairly recently, and also relied on other more recent pieces of data in reaching the decision it made.

[00:40:36] Speaker 06:
I don't think rational basis requires anything more than that.

[00:40:42] Speaker 05:
Can I ask, is there a difference between the class

[00:40:48] Speaker 05:
The people afforded relief, the class of people afforded relief here and the class of people protected by the injunction in the Ninth Circuit.

[00:41:02] Speaker 06:
Not that I'm aware of.

[00:41:04] Speaker 06:
I do have one.

[00:41:05] Speaker 06:
Sorry, go ahead.

[00:41:06] Speaker 06:
Oh, sorry.

[00:41:07] Speaker 06:
I do have one update that I think may be relevant to the court.

[00:41:11] Speaker 06:
And that is, of course, the Ninth Circuit denied our stay motion quite recently.

[00:41:14] Speaker 05:
I'm aware of that, which is leading to my next question, which is, can you tell us anything about

[00:41:21] Speaker 05:
the government's plans or pace for seeking Supreme Court review?

[00:41:27] Speaker 06:
Yes.

[00:41:27] Speaker 06:
I'm authorized to tell you that the government is going to seek a stay of the shelling that is going to do so imminently.

[00:41:33] Speaker 06:
I can't give you an exact date, but it will be very quickly, very soon.

[00:41:39] Speaker 06:
And I think that may well be quite relevant to the court's analysis as well.

[00:41:44] Speaker 05:
Do you think there are any

[00:41:47] Speaker 05:
differences in the questions presented at the stay stage in this case versus that one?

[00:41:56] Speaker 06:
Not in a way that I think would reduce the Supreme Court's decisions relevance here.

[00:42:01] Speaker 06:
The Ninth Circuit injunction, as I understand it, was based on additional claims as well.

[00:42:08] Speaker 06:
I think due process and First Amendment.

[00:42:10] Speaker 06:
So I believe there are additional claims

[00:42:12] Speaker 05:
Uh in in that case, but equal protection claims here I believe yes present there.

[00:42:17] Speaker 03:
Yes, your honor All right, we've kept you up longer than your assigned time and you will have your The five minutes that you want to thank you your honor if you want.

[00:42:30] Speaker 03:
Thank you Thank you Um We have council mentor

[00:42:39] Speaker 00:
Good morning, your honors.

[00:42:40] Speaker 00:
May it please the court?

[00:42:41] Speaker 00:
Shannon Minter on behalf of the appellees.

[00:42:45] Speaker 00:
The government has a high burden here and it has not met any part of it.

[00:42:50] Speaker 00:
We just heard the government has not alleged any concrete irreparable harm.

[00:42:54] Speaker 00:
It would suffer.

[00:42:56] Speaker 00:
especially between now and the time of this appeal being decided just by maintaining a status quo that has been in place for almost 10 years now and hasn't shown that keeping that in place for a few more weeks is going to cause identified literally no specific concrete harm.

[00:43:12] Speaker 00:
They certainly can't show that a stay would not substantially injure the plaintiffs here and the thousands of other transgender service members who face what this court referred to in seeing as a particularly heinous

[00:43:24] Speaker 00:
brand of discharge.

[00:43:25] Speaker 00:
They're going to be labeled unfit for service for a reason that has no relationship to their ability to do their job.

[00:43:33] Speaker 00:
The government can't draw a strong likelihood of success from the merits here.

[00:43:36] Speaker 00:
I mean, the district court found that the government failed to present any evidence to support not the Mattis plan from seven years ago, but the policy that they have actually now put into place, which actually much more similar to the original ban from 2017 and the

[00:43:54] Speaker 00:
District Court's findings on that are not clearly erroneous.

[00:43:58] Speaker 00:
The government hasn't even made a serious effort to suggest they are.

[00:44:02] Speaker 03:
Counsel, you said that the government has a high burden here.

[00:44:06] Speaker 03:
What are you referring to?

[00:44:07] Speaker 03:
My sense is the government has actually quite a markedly low burden.

[00:44:14] Speaker 00:
It's seeking an emergency stay pending appeal that they have to show a concrete, irreparable harm

[00:44:23] Speaker 00:
there's not going to be substantial harm to the other parties and a strong likelihood of successful and merits.

[00:44:29] Speaker 03:
I mean, the plaintiffs here, you know, they're- You're not assuming a heightened constitutional review.

[00:44:34] Speaker 00:
Not at all.

[00:44:35] Speaker 03:
Well taken.

[00:44:36] Speaker 03:
Of course, the state standard is a hybrid.

[00:44:38] Speaker 03:
Mr. Minter.

[00:44:40] Speaker 05:
So just starting with likelihood of success, there's usually a wide chasm between rational basis and heightened scrutiny.

[00:44:50] Speaker 05:
But here,

[00:44:52] Speaker 05:
With the military, you don't quarrel with the proposition that just for framing level of scrutiny, the most relevant cases are Goldman and Rosker, the military deference cases.

[00:45:06] Speaker 05:
And in order to prevail on the merits, you need to overcome the deference doctrines in those cases.

[00:45:16] Speaker 00:
We do not quarrel with that, Judge Casas.

[00:45:19] Speaker 00:
I do think the government has drastically overstated.

[00:45:23] Speaker 00:
Understood.

[00:45:24] Speaker 00:
But yes, we're in a middle.

[00:45:26] Speaker 05:
You get some degree of review and maybe it's rational basis plus or whatever it is, but those are the cases that lay out the framework.

[00:45:36] Speaker 00:
No question that yes, and then we do think the district court here gate properly deferred to the government the importance of the the asserted interest and took that very seriously as she should have.

[00:45:48] Speaker 04:
Mr. Minter, if I can ask you about the remedy here so so the district court imposed effectively a universal injunction on this policy going beyond any relief to these particular plaintiffs.

[00:46:03] Speaker 04:
So even putting aside the constitutional question, isn't the government likely to succeed on challenging this remedy, the universal injunction at issue here?

[00:46:15] Speaker 04:
I mean, the Supreme Court has indicated in a number of cases that these injunctions go beyond the authority of the federal courts.

[00:46:24] Speaker 00:
You know, Judge Rao, I don't think so because for a few reasons, but here,

[00:46:30] Speaker 00:
The very nature of the injury, I mean, this is one of those cases where the injury alleged resides directly in the categorical nature of the policy itself, which declares that transgender people as a group lack the virtues of honesty, discipline, selflessness, integrity, that as such they have to be purged from the military based on because they're transgender and because the government has this very negative view of

[00:46:58] Speaker 00:
what it means to be a transgender person.

[00:47:01] Speaker 00:
So I think that the key principle in terms of the scope of the relief is that it should be geared towards the nature of the injury.

[00:47:11] Speaker 00:
So I don't know how one corrects a categorical.

[00:47:13] Speaker 04:
There's no class certified here, right?

[00:47:15] Speaker 04:
I mean, it's still part of the role of the federal courts to address individual harm.

[00:47:20] Speaker 00:
Absolutely, it's just that the nature of the harm inflicted on every single individual transgender person is a group-based harm.

[00:47:27] Speaker 00:
I mean, they're being categorized negatively by the government based on their membership in a group.

[00:47:33] Speaker 00:
And just as a sort of practical human reality matter, I just don't see how it would work if the relief is limited only to these individual plaintiffs, then they're being sent forth to

[00:47:47] Speaker 00:
be deployed that could be deployed anywhere or or just assigned anywhere in the world and what what are they they're going to be serving as an exception to a policy that declares them by virtue of their identity to be categorically unfit.

[00:48:03] Speaker 00:
They're going to have to disclose that to the people they're working with, to be like, hey, I'm a plaintiff in this case.

[00:48:09] Speaker 00:
Otherwise, I would be subject to administrative separation.

[00:48:12] Speaker 00:
I don't know how one functions effectively.

[00:48:15] Speaker 04:
Just understand how you think about the

[00:48:20] Speaker 04:
the definition of a person who is transgender.

[00:48:23] Speaker 04:
Because this policy allows people who identify as transgender but are not seeking, who are not diagnosed with gender dysphoria, who are not seeking to transition anyway, those people who are transgender are allowed to serve.

[00:48:38] Speaker 04:
And the district court, I don't believe, made any kind of finding as to a definition of transgender person

[00:48:45] Speaker 04:
that would exclude individuals like that.

[00:48:49] Speaker 04:
And two judges of this court, just a few years ago, I think about five years ago, Judge Wilkins and Judge Williams recognized that transgender is a broad category and that there are people who are transgender who do not have gender dysphoria and who do not seek to transition.

[00:49:06] Speaker 04:
So does the categorical nature of your argument depend on a different definition, transgender persons?

[00:49:14] Speaker 00:
Yeah, I think the record this time around is very clear about what transgender means.

[00:49:20] Speaker 00:
And I do believe that the judge did make findings confirming that, based on the expert testimony of Dr. Brown and of the plaintiffs themselves, that in this case, it is clear that a transgender person is someone who lives in a sex different than their birth sex or would do so if they were able to.

[00:49:40] Speaker 00:
I think Judge Wilkins, in his concurrence in DOE 2,

[00:49:44] Speaker 00:
I think he just noted that there was some confusion in the record about that.

[00:49:49] Speaker 00:
And that was one of the things he said would be cleared up in further proceedings in the district court.

[00:49:56] Speaker 04:
Did the district court find that there could not be a transgender person who meets these criteria or just that it was unlikely?

[00:50:04] Speaker 04:
I mean, I don't believe that the district court defined transgender persons.

[00:50:10] Speaker 04:
in a way that couldn't meet, that there couldn't be at least some people who identified as transgender who could meet the government's criteria.

[00:50:19] Speaker 00:
Well, I believe she did.

[00:50:21] Speaker 00:
She did, I believe.

[00:50:23] Speaker 00:
Well, I'm so sorry.

[00:50:24] Speaker 00:
I don't have the opinion in front of me.

[00:50:27] Speaker 00:
But she is particularly in her discussion of the waiver and whether the waiver would be available to any transgender person.

[00:50:39] Speaker 00:
That's one of the places where she refers back to the testimony of Dr. Brown and explains that she can't imagine how such a person should exist.

[00:50:51] Speaker 04:
She can't imagine it.

[00:50:52] Speaker 04:
That's not a finding or a definition provided by the court.

[00:50:56] Speaker 00:
I do think the record is very clear.

[00:51:01] Speaker 00:
Yeah, she says virtually no one can meet all those criteria and notes that, you know, the plaintiffs for their part do not.

[00:51:10] Speaker 04:
Yeah, I think what we can say is that remedy isn't just for these plaintiffs.

[00:51:14] Speaker 04:
It's for everybody who identifies.

[00:51:17] Speaker 00:
Yeah, I think what was transgender.

[00:51:18] Speaker 00:
Yeah, I think what can we can accurately say is that the record in this case is clear that a transgender person

[00:51:26] Speaker 00:
is the definition that I just read or stated, and that the government did nothing, offered not a shred of evidence to rebut that in any way, shape, or form, and that the district court credited that definition and understood that based on the criteria in the HECSAT policy that anybody who wishes, who has transitioned, takes, taken steps to transition, wishes to transition,

[00:51:54] Speaker 04:
is not going to be able to serve, and that is- And that there are no transgender people who are outside of that category.

[00:52:04] Speaker 04:
All transgender persons wish to transition.

[00:52:06] Speaker 04:
Is there a finding to that effect in the record?

[00:52:09] Speaker 04:
I do- I did not see that finding in the record.

[00:52:15] Speaker 03:
So maybe, I heard you say you didn't have the district court's opinion in front of you,

[00:52:23] Speaker 03:
But in her footnote one, she says, defendants concede the term that it uses.

[00:52:33] Speaker 03:
Those were the gender identity that diverges from their biological sex as transgender persons.

[00:52:40] Speaker 03:
Those were the gender identity that diverges from their biological sex.

[00:52:48] Speaker 00:
And I believe the language in which she's taking from the policy is actually

[00:52:52] Speaker 00:
express gender identity different from their birth sex, which I think does incorporate an element of it's not just a silent subjective identification inside your own head, but something that you are communicating to the world.

[00:53:12] Speaker 00:
Let me put it this way.

[00:53:13] Speaker 03:
I think this is also really the focus of the brown supplemental George

[00:53:19] Speaker 03:
Brown's supplemental declaration where he's responding to the Doe II reliance on his definition.

[00:53:30] Speaker 03:
He says in his previous declaration, he defined transgender individual as a person who has a gender identity that is different from the sex they were assigned at birth.

[00:53:42] Speaker 03:
And then he says he wants to clarify that it isn't tenable to

[00:54:01] Speaker 03:
be transgender and be disabled from living in accordance with the gender identity different from your identity at birth.

[00:54:10] Speaker 03:
He said he was describing individuals who live or who would live if permitted.

[00:54:17] Speaker 03:
in accordance with that gender identity.

[00:54:20] Speaker 03:
And he said, I did not mean to suggest there are transgender people who have a gender identity different from their birth sex who do not wish to be able to live consistent with their gender identity.

[00:54:35] Speaker 03:
So I guess what that's saying to me is

[00:54:43] Speaker 03:
Dr. Brown says that it would be unstable and risky and not really meaningful to a person who's transgender to say, you can remain in the military as long as you deny and suppress that you internally experience yourself as transgender.

[00:55:09] Speaker 00:
Yes, thank you.

[00:55:10] Speaker 00:
Yes, I mean, I'm looking particularly at at 430 and paragraph 13 of his supplemental declaration when he said I did not mean to suggest.

[00:55:19] Speaker 00:
There are transgender people who have a gender identity different than their birth sex who do not wish to be able to live.

[00:55:25] Speaker 00:
Consistent with their gender identity and there is no contrary evidence from the government in the record about that.

[00:55:34] Speaker 04:
What about in the Mattis report that found that only some 900 of almost 9000 transgender service members had been diagnosed with gender dysphoria.

[00:55:44] Speaker 04:
And that, you know, the Rand report, which said only a small fraction of people service members who identified as transgender would utilize transition related health care.

[00:55:56] Speaker 04:
So it seems like there is evidence in the record that there are transgender service members.

[00:56:02] Speaker 04:
who do not use transition-related care and who are not diagnosed with gender dysphoria.

[00:56:09] Speaker 04:
And those transgender individuals could continue to serve under this policy.

[00:56:15] Speaker 04:
I mean, that's evidence from actual service members.

[00:56:19] Speaker 00:
Well, Dr. Brown does address that.

[00:56:22] Speaker 00:
And again, at 431 and paragraphs 18 and 19,

[00:56:26] Speaker 00:
where he says those statistics should not be misinterpreted to suggest that many transgender individuals have no desire to live in accordance with their gender identity.

[00:56:35] Speaker 00:
He talks about the different ways of transitioning.

[00:56:38] Speaker 00:
Social transition is often the most critical aspect of transition for many transgender individuals, which is not encompassed in the statements you were reading.

[00:56:49] Speaker 04:
Even accepting all that may be true, that doesn't mean some transgender individuals

[00:56:55] Speaker 04:
couldn't or would not want to continue to serve in their biological sex and remain in the military.

[00:57:04] Speaker 00:
Just quickly add in paragraph 19, he says, data about transgender individuals' desire to transition, taken in the context of a person facing hostility, social opprobium, or negative consequences if they transition, which would be the case for people serving in the military prior to 2016, should not be interpreted to mean there are transgender people who do not wish to live

[00:57:24] Speaker 00:
consistent with their gender identity.

[00:57:28] Speaker 00:
So I do think that is what the record suggests.

[00:57:32] Speaker 00:
That is the medical consensus and understanding.

[00:57:36] Speaker 00:
It's consistent with the testimony from actual transgender individuals in this record from our plaintiffs.

[00:57:45] Speaker 00:
And yeah, I don't think that is, this time around, very well established in the record.

[00:57:57] Speaker 05:
Can I ask you a question about the history of these policies?

[00:58:05] Speaker 05:
The first change in policy was under Secretary Carter, and then the policy shifted back under Secretary Mattis.

[00:58:14] Speaker 05:
And each of those secretaries did a lot of inquiry.

[00:58:22] Speaker 05:
The policy then from Mattis to Austin shifted again.

[00:58:29] Speaker 05:
Did Austin do independent inquiry, or did he just rely on Carter?

[00:58:38] Speaker 05:
The reason I ask is, I saw something, the district court made a reference to the effect that Austin convened

[00:58:48] Speaker 05:
working group.

[00:58:50] Speaker 05:
And unless I missed it, the site was actually to Carter's working group.

[00:58:56] Speaker 00:
Your Yes, sir.

[00:58:57] Speaker 00:
I believe that is correct.

[00:58:58] Speaker 00:
I do think after Austin relied on Carter relied on the Carter working group, although then I do believe they undertook to flesh out and create

[00:59:11] Speaker 00:
the entire new policy that he was putting into place.

[00:59:16] Speaker 00:
I do believe that there was a lot of study and meeting and something that one could also refer, you know, accurately, I guess, refer to as a working group.

[00:59:27] Speaker 00:
But that, yeah, that was to implement that new policy, sort of put more meat on the bones.

[00:59:42] Speaker 03:
Do you have anything that you wanted to add about the animus?

[00:59:49] Speaker 03:
And I guess I'm interested in how the district court's finding of animus and the evidence of animus in this case and the lack of any challenge by the government to the finding is clearly erroneous.

[01:00:07] Speaker 03:
How that interacts with rational basis review

[01:00:13] Speaker 03:
and in particular in the military context?

[01:00:19] Speaker 00:
Well, there are, yes, I think what's so important and striking about this policy is that it does something that is just so extraordinarily unusual, what you just don't see ordinarily

[01:00:42] Speaker 00:
Now in this day and age, the government openly, just with complete transparency, expressing animosity towards a group of people and openly relying on that as a justification for a policy.

[01:00:59] Speaker 00:
And this is that rare case where we do have that.

[01:01:05] Speaker 00:
And I think the

[01:01:06] Speaker 00:
district court properly noted that, that unlike, I mean, of course there is a whole line of cases under rational basis review where the government has said, even if we're not dealing with a group that has an established right to heightened scrutiny, if there's a policy that singles out a group

[01:01:31] Speaker 00:
for disfavor treatment, that's something that the court, even under rational basis review, is going to take a careful look at.

[01:01:40] Speaker 00:
But usually you have to, to some degree, infer that.

[01:01:44] Speaker 00:
And here, as the district court noted, no inference is required because it's stated repeatedly over and over again that being transgender is incompatible with

[01:01:58] Speaker 00:
honesty, selflessness, discipline, integrity, and that expressing

[01:02:05] Speaker 00:
what's referred to as a false gender identity is incompatible with high ideals of military service and that's just a recurrent theme.

[01:02:16] Speaker 03:
I'm assuming and accepting the district court's finding of animus and asking sort of where does that leave the government.

[01:02:24] Speaker 03:
Mr. Mannion said that on this record you can't say that there was only animus behind this

[01:02:33] Speaker 03:
policy that it can't be explained by any other reason.

[01:02:37] Speaker 03:
And I'm not sure whether he's proposing that if there is another reason, if it's a not healthy test, or how one looks at that.

[01:02:47] Speaker 03:
And I'm curious what your view is on that.

[01:02:50] Speaker 03:
I understood.

[01:02:52] Speaker 00:
Yeah, sorry, Judge Pollard.

[01:02:55] Speaker 00:
Yeah, no, as the district court pointed out,

[01:02:59] Speaker 00:
Like every single case where the court has found animus, the government has put forward an alternative legitimate justification so that we know that cannot be enough.

[01:03:07] Speaker 00:
In Roemer, they said it was saving resources.

[01:03:10] Speaker 00:
In Moreno, it was fraud.

[01:03:11] Speaker 00:
In Cleburne, it was safety and disruption to the neighborhood.

[01:03:14] Speaker 00:
So obviously, if just a mere assertion of what would be a legitimate consideration can't be enough where the court has previously found animus.

[01:03:22] Speaker 00:
I think here, I mean, what that triggers, the obligation when the court finds

[01:03:28] Speaker 00:
animus what that triggers on the part of a court.

[01:03:31] Speaker 00:
It is going to take a careful look at whatever asserted justification the government asserts and determine whether it kind of holds up under scrutiny.

[01:03:40] Speaker 00:
I mean, this court in Singh, even though it was applying heightened scrutiny, it actually found that the policy there wasn't even rational just by looking at the government's other practices, the government's inability to explain why it was treating this one group of people not extending

[01:03:57] Speaker 00:
opportunities for exemptions to them that extended to other people.

[01:04:00] Speaker 00:
And so I think the same sort of thing applies here.

[01:04:03] Speaker 00:
The government here said, no, no, this is just a medical policy.

[01:04:09] Speaker 00:
Yes, there's the animus, but we have this other legitimate consideration going on here.

[01:04:14] Speaker 00:
But then I think the district court properly took a careful look at that.

[01:04:19] Speaker 00:
And the problem with that justification, aside from the language,

[01:04:23] Speaker 00:
which is, I mean, we don't talk about people with diabetes or heart conditions being dishonest or undisciplined.

[01:04:29] Speaker 00:
I mean, that alone is just a big flag that this is not just an ordinary medical policy.

[01:04:34] Speaker 00:
But then there's other provisions, and Judge Pilar, you've been alluding to them, that don't have anything to do with a medical condition.

[01:04:41] Speaker 00:
You have to serve in your birth sex.

[01:04:42] Speaker 00:
That's not related to a medical condition.

[01:04:44] Speaker 00:
You can't express a gender identity that's divergent from your birth sex.

[01:04:52] Speaker 00:
Even in sort of the mechanics of the policy itself, you can't have done anything to pursue a sex transition.

[01:04:59] Speaker 00:
And that's either or either to get treatment for gender dysphoria or to pursue a sex transition.

[01:05:04] Speaker 00:
So none of that is related to a medical condition.

[01:05:06] Speaker 00:
But then I think one of the most striking things here is that there's no other medical condition

[01:05:13] Speaker 00:
know whether that shunts a person automatically into administrative separation.

[01:05:18] Speaker 00:
I mean, for literally every other medical condition, you go through a medical review process and trying to determine, are you still able to do your job?

[01:05:26] Speaker 00:
So that's just every indication is that this policy is not set up in a way that would make any sense if it really were about worrying about medical issues and medical concerns.

[01:05:43] Speaker 00:
So I think all of that is entirely appropriate under a rational basis review.

[01:05:47] Speaker 03:
You don't dispute at all, do you, that military readiness, unit cohesion, cost, those are all valid military interests that are unquestionably accepted, that we the court must unquestionably accept.

[01:06:06] Speaker 00:
We do not dispute that.

[01:06:07] Speaker 00:
No, I think that part of what

[01:06:11] Speaker 00:
the analysis was, is to determine whether, I mean, this, yeah, when a court is confronted with a military policy that does what this policy does, which is single out a group for disfavor treatment, they're going to look, well, is this based on sort of a considered professional judgment?

[01:06:29] Speaker 00:
Is there evidence supporting it?

[01:06:31] Speaker 00:
And does the policy further those interests?

[01:06:36] Speaker 00:
It's very hard under even just ordinary rational basis review to understand how, given that the military has set up mechanisms to screen people or fitness to serve, and if they have any kind of medical condition, there's a process already set up to determine, well, can you still do your job?

[01:06:56] Speaker 00:
They screen for the sort of collateral issues that the government

[01:07:02] Speaker 00:
says are associated with transgender people with elevated risk of suicidality, for example.

[01:07:07] Speaker 00:
I mean, there's already mechanisms set up to screen for that.

[01:07:10] Speaker 00:
So it seems like literally, just in a very fundamental way, like the only thing that you accomplish by having this categorical ban is you're excluding people who otherwise are qualified, who have already proven they're qualified and that they can do the job.

[01:07:27] Speaker 00:
And I don't think that is not rational.

[01:07:36] Speaker 03:
All right, thank you, Council.

[01:07:41] Speaker 03:
And we'll hear again from Mr. Manning for the government.

[01:07:50] Speaker 06:
Thank you, Your Honors.

[01:07:51] Speaker 06:
Just a couple brief points.

[01:07:54] Speaker 06:
I'd like to start with Judge Rao's question about the scope of the injunction and the likelihood of success on that point as well.

[01:08:03] Speaker 06:
Even if this court thinks that, given the stay posture, that a stay is inappropriate as to the plaintiffs here,

[01:08:12] Speaker 06:
we do agree that, or we do believe that the, that we have a high likelihood of success on the scope of the injunction.

[01:08:21] Speaker 03:
And what's your best, I think you mentioned this in a sentence or so in your brief, your best place for that.

[01:08:30] Speaker 06:
So I think that we,

[01:08:37] Speaker 06:
I don't have my brief in front of me, so I'll rely on the cases we cited there.

[01:08:42] Speaker 06:
But more broadly, Judge Ray has invoked two reasons why a universal injunction would be necessary here.

[01:08:52] Speaker 06:
Her first reason was just a fear of follow-on complaints.

[01:08:56] Speaker 03:
I'm sorry, I may have misspoken.

[01:08:58] Speaker 03:
Did you make this argument in your brief?

[01:09:02] Speaker 06:
We did make the argument towards the end of our brief there on the scope of the injunction.

[01:09:09] Speaker 06:
It's not very fleshed out, given word limits.

[01:09:13] Speaker 03:
It says, right, there's just a phrase, at a minimum, stay the injunction as it pertains to the policy regarding accession.

[01:09:23] Speaker 03:
Oh, and stay the universal scope, but there isn't any citation.

[01:09:28] Speaker 03:
I guess that's why I was in my mind to ask you.

[01:09:30] Speaker 04:
There's a whole there's a whole section here.

[01:09:32] Speaker 04:
The injunction is over broad on page 26.

[01:09:35] Speaker 04:
I was short section, but it's all.

[01:09:39] Speaker 06:
Yeah, and I agree it's a short section.

[01:09:41] Speaker 06:
I think we fully may preserve that argument here.

[01:09:45] Speaker 06:
And Judge Ray is worried about the possibility of future litigation.

[01:09:52] Speaker 06:
Of course, the whole point of the critique of universal injunctions is that they shortcut the normal process where litigation can be brought, where law can percolate.

[01:10:04] Speaker 06:
It ups the stakes for each individual case.

[01:10:07] Speaker 06:
And so I think that I think what you pointed to there, the fear of me to complaints is.

[01:10:15] Speaker 06:
I mean, that's the problem with the scope of the injunction.

[01:10:17] Speaker 06:
That's not.

[01:10:18] Speaker 03:
So this is an issue, I think, that's pending in Trump versus Casa, Casa of Maryland, on the birthright citizenship issue.

[01:10:26] Speaker 03:
So we'll get some guidance from the Supreme Court.

[01:10:31] Speaker 03:
And there's one context on the question of universal injunctions.

[01:10:36] Speaker 03:
I agree.

[01:10:36] Speaker 06:
And so if the court

[01:10:44] Speaker 06:
You know, so we have more full arguments that we will certainly make on this when we have more space in our briefs, but we do believe that we have a high likelihood of success on the scope of the injunction as well.

[01:11:00] Speaker 03:
When you say that, I mean, there's a medley of arguments sort of in that last page and a half.

[01:11:08] Speaker 03:
When you say you have a likelihood of success on the scope of the injunction,

[01:11:11] Speaker 03:
you're referring to the notion that you think you're likely to succeed, that the injunction should be narrowed to these individual plaintiffs.

[01:11:19] Speaker 06:
Yes, Your Honor.

[01:11:21] Speaker 06:
Because courts have a constitutional authority to resolve cases and controversies, because of the equitable powers and the traditional limitations set in here in those equitable powers, because of the Article III hierarchy where

[01:11:36] Speaker 06:
Typically, it is the Supreme Court that has nationwide say on something where district courts are resolving that.

[01:11:43] Speaker 06:
So we weren't able to flesh that out in as much detail as we hope to in future briefing.

[01:11:51] Speaker 06:
But I did want to raise that.

[01:11:55] Speaker 06:
I also want to briefly talk about the AMSERA report and the, Judge Pillar, your question about the statement about trans-identifying individuals being able to stay in service longer.

[01:12:11] Speaker 06:
It also says at Addendum 172 that having a longer in-service time does not equate to deployability.

[01:12:20] Speaker 06:
And it acknowledges that trans-identifying service members have a much higher

[01:12:26] Speaker 06:
rate of disability evaluation for psychiatric and other disability and mental health issues.

[01:12:31] Speaker 03:
It's interesting to me because that seemed, it was a higher rate of change in disability evaluations, but this period that was being examined was the period when immediately after the Carter policy was announced.

[01:12:48] Speaker 03:
So you would imagine people would be seeking

[01:12:52] Speaker 03:
you know, psychological consultation over their condition and potential preparation for transition.

[01:13:03] Speaker 03:
So these are like rates of maybe four times a year going to see a counselor.

[01:13:07] Speaker 03:
When you're an incumbent service member, if you have depression or adjustment issues, are you allowed to, without threatening your status in the service, go to see a counselor?

[01:13:23] Speaker 03:
Psychotherapy?

[01:13:25] Speaker 06:
I have a guess.

[01:13:27] Speaker 06:
I don't have it.

[01:13:27] Speaker 06:
I cannot tell you that with certainty.

[01:13:30] Speaker 03:
So if you developed depression or, I mean, I presume you would if you had PTSD from combat service and you're still in, the service is not disabling, but you want to see somebody to talk about it.

[01:13:43] Speaker 06:
I believe that to be true.

[01:13:44] Speaker 06:
I just don't, I can't tell you that with certainty.

[01:13:47] Speaker 06:
So at the end of the day, the military has very high standards for who can join the service.

[01:13:54] Speaker 06:
Most people cannot do so.

[01:13:55] Speaker 06:
It's not a stigmatizing thing to those people for not being able to do so.

[01:14:00] Speaker 06:
And as I started, this court and the Supreme Court allowed the Mattis policy to go through several years back.

[01:14:08] Speaker 06:
And we'd asked this court to allow this policy, which is materially similar, to go through as well.

[01:14:12] Speaker 06:
Thank you, Your Honors.

[01:14:13] Speaker 03:
Thank you.

[01:14:14] Speaker 03:
Thank you all very much.

[01:14:16] Speaker 03:
And the case is the stay application submitted.