is a look at deliberate indifference claim right it is so let's talk st about the policy which is no longer in effect the freeze frame what we'll call the freeze frame the blanket policy no treatment beyond what you're currently getting ever no matter the circumstances right that was that was once the policy whatever you get on the way in the door is what you get that was once the policy and so is that would you be willing to concede that that in response to an acknowledged serious medical need would you acknowledge right the gender dysphoria qualifies that that is textbook deliberate indifference we're not even going to think about your condition or assessing you individually we're just gonna apply a  policy it is a little bit more nuanced to judge those and because it does when the inmate came to us what was happening was counselling was being provided it wasn't just nothing go away we're not going to talk to you it was just on the hormones and remembered the inmate had received hormones were approximately five to six weeks it was a long period of time so i don't want to say that it is a classic textbook but i'm not arguing the old policy i mean i think that's clear from the record from our arguments are briefs that we're talking about what's happened since hormone therapy has been provided just to provide the foundation the reason i ask the question is it just strikes me that if you acknowledge that dysphoria is and is a serious medical need and even if she is getting some treatment some counselling on the way and if you say we're not going to think about your current condition any further that distracts me is like anti medicine you know it's medicine it seems to me require some individualized assessment and treatment and if you say we don't care about individual circumstances that does seem pretty head in the sand which sounds like deliberate indifference and that's the policy has changed and it is not that policy anymore and that's important judge in this case it's an injunctive case which which must but definition look forward so judge walker in this case couldn't join something that has already  been abrogated and replaced so the focus that i'd like to bring is what is happening now and is that deliberately for so what your argument is that the basically the case is mo that portion of the case i think is certainly moot because the evidence is undisputed that we submitted at the dave is that we're not going to roll back these protections let me just i don't remember what you said in it but what wou have to go through in order to go back to a different policy like to freeze frame policy well we would have to rescind our current policy what would that tell you and it would take an internal review of the policy go through the medical staff who would go through the psychiatric departments and go through the legal and so can a department abrogate a policy it could but the evidence in this case and what i'm telling the county right now is we're not in fact the policy has been even expanded teb afford further protections to transgender inmates currently it's not in other words it's going forward it's not going back to the old policy and the evidence in the record i think is fairly undisputed that we are not rolling back anything that we're doing now unless it's medically you know contraindicated but there's going to be no no effort in that regard  this case to which she was saving counselling at the time of the phrase from she was and and that was through the department corrections in other words if the o c were was providing that counseling that's correct and also she received some type of garments i think it one point she has and where is that i know that you've you've changed that policy but what is the policy now with regard to clothing and other manes by which the plaintiff and those like the playing if would be allowed to adapt and the i guess of them continue their process the policy is very strictly on a case by case it made by inmate basis which addresses the blanket concerned a judge is a man and the generally applicable grooming  policies that are a political for various reasons security among them obviously this is a prison we're talking about are still in place now miss cobain the plaintiff in this case because of judge walker's injunction obviously is not subject to that but as a general matter it's done on a case by case basis and remember in these instances not every transgender inmate is going to say i had to have long hair it's a very me and somewhat complicated area the problem that i have with the department's argument is that judge walker may very specific detail findings confined to mrs kohain and not anybody else he says i'm applying this a good injunction with regard to miss kohei so i'm not establishing any broad policy just for mrs  fact he says there was a reasonable probability that were that you did not establish that there is a reasonable probability that you would not reenact the freeze frame policy and it makes findings erroneous finding although i think only voluntary says sation part of the opinion which is secondary to my main argument that this is simply not deliberate indifference but just on the voluntary says sation we changed the policy and as the case law says that's an unambiguous example of a change of policy what else can we do as a department we changed the policy set can't but what he says he's suspicious about the timing of the changing of the policy and he found that the timing of the change is an attempt to manipulate jurisdiction in order to avoid a liability on the part of the department in this case th make this finding that's one finding that's one of the factors that you take into consideration did you change the policy in order to avoid being found liable in this case he says i make that finding how do we find that time is clearly policy there was no context for that that grievance and in that grievance the response was it seemed to hearken back to the old policy meaning that well we're going to keep you where your own you or whatever your current treatment is and that was simply wrong but there was no other evidence other than that one exhibit i think was as plain as twenty five or twenty six that's all judge walker had to go on he had to say i mean he had several other findings of fact he cites the lack of evidence detailing the tailing him in deliberation about the change which is another factor that you take into consideration he says that when any evidence the tailing in the liberation of the change that's one of the things we look to change the policy and it is continuing to do exactly what that policy says there's evidence in the record that department created an entirely separate place and housing unit just to just to make the diagnosis on these things so blotto progress had been made factually but but to me your honor before we would even need to get to the voluntary sation doctrine you judge walker even assuming his facts are true what we're doing cannot constitute deliberate indifference under any stretch of any case found from the circuit or anywhere ok hang on one second know you want to get there so badly will give you the time that you need to get there but i've still got to move next question it seems to me there might be two slightly different buckets here the freeze frame policy to the extent that the district court's injunction enjoins a policy that no longer exists that you have repealed and that as judge cooper says you have to jump in and sort of move heaven and earth to reinstitute that seems pretty moot to me and we've said time and time again that when government actors repeal policies that you know we sort of give them  e with hormone therapy that now absent the freeze frame policy is for like an individual ised thing right but so what guarantee do we have that you won't go back on giving the h t we have we have the affidavit were submitted by the chief medical director of the entire department said we're not but you sort of see my point right the mcness inquiry is slightly different with respect to freeze frame policy because there you get all this tailwind from our case law that says where you've repealed the policy and replaced it we're going to give you the benefit of the doubt now we're talking about an individual ised in creates a little bit tougher because you don't get the same tailwind is that right that that is that is right and i would suggest that there's nothing to sit in the record that would indicate that we are planning on and that would be is the rebuttable presumption in our favor yes so to judge coolish point on the individual ised treatment what would you have to do in order to reverse course and say now we're taking you off the h t what would have to happen immediately transgender inmates don't need or ask for hormone therapy but so she has as you know it's an individual basis which makes it very difficult for me to could it be ironically be a blanket policy or matter what her medical team have to say we've changed our mind like we were basically unanimous that she needed h t that was a medical necessity and now we've changed our mind she does exactly this is causing great harm to the plaintiffs now  there are various side effects don't pretend to be a doctor they're very serious that those were shown product one instant the problem is that judge walker found that those affidavits were they said we're not go reinstitute the frank freeze frame policy he made a specific factual finding find those affidavits not credible so i mean we have to say well that finding  clearly erroneous and i don't see how we say that's clearly erroneous because he conducted the credibility of valuation he's a district judge he conducted the credibility of valuation he made a five finding  so you've got to convince me that's clearly erroneous that's a pretty heavy burden to overcome it is it is absolutely which is why i wanted to focus on the legal side and this is give the judge those factual what we're doing to day for this court to understand why not the deliberate indifference analysis was so erroneous mean to me that it would be no standard whatsoever if judge walker's standard is in place but i  those standards deliberate indifference that were deliberate means something that the department has to know what it is doing this is today we're talking about it test you know what it is doing it has to know that it is by what it is doing is causing the wanton infliction of pain and then still do it so this is not a a standard that is even a can to state court medical malpractise this is a it is a standard  this court has said is an extremely low bar and the law is crystal clear that as long as some treatment is being provided deliberate indifference is not family and the only exception to that some treatment department knew of her gender dysphoria diagnosis her continued requests for hormone treatment herself harm her suicide attempts and still delayed treatment for two years i find that treatment is medic the treatment that they now agree is medically necessary it did delay was that the delay in getting the inmate to an outside  was quote dubious and quote flipbook and it included quote and in the lighten comments that served as quote red flags i mean this is a this is a strong order he entered it and think there's no doubt about that your honor and i think it is an order that frankly is unfair given he's talking about dr whalen who came on the stand and said exactly what he thought testified differently than cohen's and the cord can credit the testimony of her experts over your experts can and the court credited our expert quite quite explicitly so maybe i'm confused but i thought that the colloquy the you're now having with judge wilson was about hormone therapy and your response would be to say we're giving it to her and we're not going back on it that piece of the case is moot now let's talk about social transitioning and with respect to social transitioning there's this split of opinion among everybody who looked at her her own medical team said that's not medically necessary the only person i can tell in the case that he said that is medically necessary is her own hired expert that that's precisely right because the things we're doing satisfy the deliberate indifference standard we're providing hormone therapy we're using gender appropriate pronouns which are expert and ms cohen's expert said is the most satisfying think one can do we're also providing a bra we're providing housing in the most safe effective way possible and do help so it is difficult for the department to understand doing all of these things that can see it really help the plaintive at the same time we're somehow being deliberately indifferent and inflicting wanton pain on the planet the only thing that we did not do was allow an exception for a long hair and makeup and it is difficult for any medical doctor or any court to say that long hair and makeup are so medically necessary that to do neither them is deliberately indifferent and a violation of the th amendment prohibition on cruel and unusual punishment so what the courts to focus on the legal argument we're making because jeff it was you're right i judge walker's order we tried the case with him i know where he is on this unfortunately i do not think he is where the law is on this the th circuit the th circuit the st circuit have all said in the context of a sexual reassignment surgery case that the path standards that judge walker allowed on are not binding on these departments and if all of those cases say they're already providing hormone therapy and mental health counseling and in so doing you cannot meet the standard of deliberate indifference and let's let we're doing as well i got them but there was a period of time that you were not providing the hormone therapy isn't that correct that is correct during that period of time then could he did judge if his opinion is based on that could that not support a finding of deliberate indifference as to that it could only to a moot and a and render me i know what happens if we go back before judge walker pretty clear on that but i do think the law is very very different than how he enunciate it so if i had any  good morning and may it please the court my name is daniel tilly and i represent the plaintiff raincoat in this case the district court's order in this case is the only thing preventing serious ongoing psychological harm to ms kohain and the core issue here is social transition and it involves a straightforward application of th amendment law so when you say the core issue is social transitioning or are you it sounds like sort of willing to move on beyond the h t she's getting it policy has been amended we kind of trust the b o c that they're not going to go back on h t and so now we need to be looking forward toward the s t that she's not getting the thought what i'm saying i do intend to address the volunteers the station issue i can do it now if that's neither way i just want to kind of figure out if there was any common ground not that so the core issue is social transition and ms cohen has been living and presenting herself to the world as female since she was fourteen wearing women's clothing hairstyles make up using pronouns with her family and it's cool adopting a feminine name changing her name and the district court talked about the dios he's conduct in prison the district court judge walker said defendant is forcing ms cohen to live our lives as a man in ways that those seemingly to some strike at the heart of what it means to be perceived as a man or a woman and we can show numerous and numerous instances of significant harm to ms going indios to custody for example  link up the suicidal thoughts or tendencies or attempts to the transitioning aspect of the case but the only really core linkage that i could ever find was between suicide attempts or  to the denial m h t like you know they're not giving me my h t and so i'm going to hang myself but i never saw they're not giving me s t social transitioning stuff and therefore i'm going to hang myself is there is there clear evidence of that linkage there is ok so me one of them was in october fourteen when she attempted to hang herself and it was because of the confiscation of makeshift bra's and female underwear that was discussed it trial testimony page thirty three to thirty five also in her declaration three dish one it page five paragraph seventeen there was a discharge summary that documented that as well she also in january th teen she attempted to remove her testicles following an officer threatening to confiscate  female undergarments and cut her hair and again there is documented evidence of that trial testimony day one at thirty six there was also an emergency rec room record that reflected the laceration in plain of self report i'm upset because officer asked me to take off my bra as they cut my testicle there was another officer reporting that there was a conflict over stuffing her shirt to make breasts there have been numerous incidents involving dress and behavior conflicts this is from officials at the d n c writing these notes there was a time when she attempted to south castrate by using a rubber band as  of course are tied to social transition and she talked about the trauma of the forced haircuts she said you know when she tried to for a trial she she was going to have her hair trimmed up to look nice she said the feel of the clippers and the sound of it made me have a total panic attack she called up hyperventilated she said it's the worst most degrading makes me feel like just the lowest of the low extremely depressed i have severe anxiety of this ever happening again every single time it's been a nightmare of an experience there are also times in and seventeen when she tried to cut off the blood neck and that also was related to an attempt to cut her hair and plainest expert dr brown he talked about the long term effects of this of course there's the suicidal ideation of course there's the attempts at s there's other harms as well that play out over time he talked about depression general inability to function he said she would possibly be be put in and out of their psychiatric unit for psychiatric care he talked about really uncontrolled and unmanageable anxiety it's important to note that the de sees expert in this case agreed the d o sees expert dr levine agreed that if she was unable to get access to the hair and clothing that she seeking she would be quote vulnerable to a cutie compensation this is from the d o c s expert he said she would quote have a suicidal haitian and crisis that's from his trial testimony page four o three in the deposition at one hundred and sixty five dollars this was all tied to the lack of treatment for gender dysphoria including her need for access to social transitions she made this clear in her grievances she made it clear in the conversation she's had many many conversations and she testified to that in all her interactions with mental and medical mental health and medical professionals and b o c custody and dr browne referenced in the trial testimony his trial testimony the breadth of the records here he said i mean i had hundreds of pages of the medical records administrative records disciplinary ports you know documentation of clear distress we have documentation of ligature marks on the neck remaining at least two days so let me just ask you this question i try to keep track of all of the various doctors in the case of those who have treated her those who have come into litigation purposes johnson team is johnson and ribeiro group they're all right they say social transition is not medically necessary they don't say that and the judge m factual finding that they did not say that they use words some of them rivera and johnson will use that phrase medically necessary not medically necessary but they make clear in their testimony other parts of the deposition that are not cited where they say that the life or death now of course life or death that's not  not medically necessary because he doesn't consider mental health needs to be medically necessary he says medical means the body and in prisons you have meant medical departments you have mental health departments but he says medical department that's a medical necessity mental health department that's something else of course in case law mental health needs can be medically necessary he just doesn't use that terminology similarly dr levine he doesn't use the phrase medical necessity he uses different language so they might some folks do say sure not medically necessary but it that in their mind it's because she's not going to die if i don't provide it of course in case law is replete with examples of things that are medically necessary it's not medically necessary to treat someone's broken foot there's a case from this court saying if you delay for hours and treat the broken front that's deliberate indifference there was medical necessity there obviously you're not going to die if you don't treat a broken foot so the judge made specific factual findings judge wilson read one of them another one is what's clear from the treatments team's testimony is that everybody knows miss cohen has harm herself and attempted suicide but still nobody has requested any exceptions to the clothing grooming policies  a nd factual finding the mental health team never evaluated whether mr cohen has a medical or mental health need for access to female clothing and grooming standards despite her persistent requests because they believe defendants security policies prohibit such treatment a rd factual finding the treatment team failed to make this assessment despite their shared knowledge that treatment for gender dysphoria in include social transitioning and the failure to treat can lead to self harm and suicide for factual finding experts on both sides clothing counseling grooming policy question what is it that you're asking are pointing out to us that still i know she's getting the hormone therapy ok and i know you wanted to continue you want to injunction contin what else is it that she is not receiving that you believe you are maybe receiving only because the injunction that you feel like if the injunction goes away she lose she would lose the aspects of the injunction she would lose the long hair the makeup and the access to female undergarments i don't think so i mean she would lose at least that i mean if the court were are saying as they are exhibit she could lose the whole i can you talk just a minute about t that but shouldn't the judge have made a finding specifically as required under the statute before an injunction dealing with really let's talk about the s t d because that seems to be the thing that's more we're at risk right now which in your brave i don't need you to do that ok well so the necessity the whole opinion of course is about necessity and there really drawn of course it only applies to the plaintive on the centers of means it's only doing what the district court what the  said they would do if deemed medically necessary they have said if it's required if it's if there's a finding of medical necessity made we will provide the care so you can say that it's going beyond the public safety needs of the prison do you find any weight in the fifty yoshi's contention that some of the s t d issues would be counter to good security issues in the prison or do you believe that the  prison should be required to set up different housing units completely for different individuals depending on how they then i don't have an opinion on the housing point but with respect to security they who were fifty five or older so if she felt safer there they apparently thought she was safer there she'd been a lot of different environments there's different ways folks can accommodate safety the important thing is here they've said they can do it you can look at that thirty six testimony he says medical and if it's necessary we'll figure it out we'll accommodated their security experts said the same thing so not just the thirty six not just the security expert dr whalen said the same thing if i find medical necessity it's going to deal with that so there's really not a fight now there was a lot of litigation a lot of depositions around security but then ultimately the conclusion that they came to was if it's medically necessary will provide it and i would by the court just to take yes for an answer from the d n c when you have a thirty six saying we will do this that's really all we can say now it might you know we'd be having a different conversation perhaps a very interesting conversation if they were saying no even of medical necessity even if medical medically necessary we know we can't do it there it's too high risk then this would be a different case would be having a very interesting conversation about all the things that we did to get in the case that's just not the circumstances we're in right now where they're saying if it's medically necessary which there's been a factual finding of then we will provide the care what what from the estee standpoint what distinguishes this case is getting some treatment but not everything he or she wants and the courts there seem to say there's a genuine dispute among the experts among the scientists the doctors who have weighed in whether or not this further treatment is necessary and dust no deliberate indifference so if we most of these cases frankly are bought brought by folks who are pro se who obviously can't afford experts can't afford to do depositions can't afford to really explore all the issues that need to be explored with respect to costs like it's important to note that that's a surgery case number one number two the court specifically talked about the social transition that was being provided in that case into the shore social trenches and that's well outside the bounds of what's being discussed in this case and the court cited that number one as  medical care and number two cited at it as talked about the substantial way in which the provision of that treatment alleviated the harm of the gender dysphoria so close like is its own case about something that's not about what we're talking about even so wasn't that will mean there was some aspect of treatment being denied cosa like right and and then maybe i'm misremembering and feel free to correct me but i thought the court said with respect to the stuff not being granted the reason we're not concluding that there's deliberate indifference is that there's like a genuine debate among the doctors who have thought about this whether or not this is necessary a genuine debate in the case about which is sort of what we have here i don't think so actually it's important because so the plants expert thinks this care is medically necessary the treatment team there was a factual finding that of things well supported that found that they actually did make a term determination and that instead deferred to security interests and then dr levine he agrees again that she will be vulnerable to a cutie compensation so he doesn't talk in the language that court's docket doesn't say medical necessity in that sense but he his comments fulfill any definition of medical necessity his comments say it's asian or suicidal ideation christ if not provided we're not in a case where this is actually a dispute between experts where you have well here's a qualified prediction practitioner on the dio sea side saying no i don't you know we don't need this and we have a plaintiff expert who just disagrees this is not a simple disagreement case a mere disagreement case this is it everyone actually either didn't make a determination or those who did agree that it's medically necessary and in cause like i would say also i mean the court you know it was they acknowledged again that the social transition was actually providing some amount of care and they they just didn't agree that there was sufficient harm from not providing surgery that was a separate inquiry if i could go back to the prison litigation reform act and the requirements that the injunction be narrowly drone and the least intrusive necessary to correct that the federal right you're not saying that the order entered by judge walker lacks sufficient factual findings to satisfy that need and that narrow as the intrusiveness requirements are you know we're find are clearly erroneous yes well i mean you have to find that necessity was clearly erroneous number one but i'm talking about factual findings to support these requirements are there in the order the factual finding is that so on the need question whether it's necessary to to to correct the violation of the federal right so the necessary part would be is the is the care medically necessary and so if the in that and the judge did make a factual finding medical necessity on the narrowly drawn part it only applies to plaintiffs i mean it's you can call it a factual fine you can call it inherent in the issuance of the order it's an injunction that specifically and confused about whether or not there are or are not whether whether there is a genuine factual dispute about the necessity of estee i thought that i had read the record to understand that her medical team in house medical team and said s t is not medically necessary but your friend tells me that's in fact not quite right they did in other parts of the depositions not cited to you in the briefs they actually said at worst neutral and at best it might be medically necessary and your guy even said that she is subject to you know sort of real harm if she's not given the stuff so what's the truth of that factual issue the truth of the medical team the dr johnson who was the head of that team flat out without any questions  department could do to be psychologically pleasing to the point of so he said without any question or ambiguity however that it was not medically necessary for ms cobain to have long hair and wear make up can flat out said that and he even said what you were doing and he listed each of the things i think it's on but age for thirteen of the record nd he listed all the things we were doing and said without question that constitutes adequate care so we very much have a difference of opinion in dr brown who authored the path standards that say there are political in prison but at the same time under cross examination said well not very much as aware of the acute mental distress that could come from a true deliberate and different case he never said that at all he said the opposite i should be treating broken legs but i can definitely understand that mental does not just mean physical what he said is is  you can't it can't be medically necessary to have long hair because plenty of women have short hair plenty of women do not have that need or desire to wear make up so what we're doing that in this he doesn't say that in his or her but anything she wants she gets you don't say that he relies on specific factual findings that there are certain things that the medical only her experts said that the things that she wants or medically necessary and all of our staff and experts said it is not and the case law is fairly clear when you have a disagreement you can honest disagreement about it a very fluid area of medicine it cannot be deliberately indifferent because you can't prove the subjective awareness from the officers that would know something yet do it anyway and so finally i would think despite any factual  finding the overall arching impression one gets of judge walker's order is he just downplays to prison setting it we're in a prison here and i think it doesn't take a great leap of common sense to say heavily feminizing a prisoner in a male prison is not a good idea for security concerns so those are all ways they are you can't take security away but the things we're doing or have been recognized over and over hormone therapy counseling pronoun usage if you're doing these things in these things it minutely from miss co hanes own testimony help and we are trying to help the we can't be deliberately we're going to take one more case and then take a recess