the next case on the calendar is william ordered to their similarly situated male counterparts simply because they're women claims are requesting that this court reversed the district court the nile of the request for plimer injunction for three reasons st the district court wrongly held that planets are required to meet the higher mandatory standard when plans request is simply to reinstate the status quo and therefore more properly analyzed under the prohibitory standard nd the district court made several factual and legal errors in holding that women and men are given substantially equivalent benefits and housing conditions and finally although the district court correctly held that intermediate scrutiny applies to plaintiff's claims the court did not undergo the demanding and searching analysis the intermediate scrutiny requires turning to the standard the status quo for preliminary injunction purposes at the last uncontested status between the parties here that's clearly when the women were in the powder units and given substantially equipment benefits of the men received however our position is we me either the manager or prohibitory standards will turn to the merits and i think perhaps the most telling error in the dish of course decision was their failure to really appreciate or even analyze the stark differences and housing conditions that women women do not male cells have a desk so they can sit and write letters home to their family women do not and perhaps most important point most importantly women are held in open bar cells which means if they have to use the the facility to have security but also give the inmates some semblance of privacy men's men's units also have air conditioning multiple cable television and also men have significantly more freedom of movement in the women's unit there is just a small hallway about six feet wide with about three or four tables on it men have an attached recreation yard they have a small room to do video calls they have many tables where they can play games with other men  women are confined simply to a small hallway basically and then i'd any kind of real freedom of movement other than walking up and down the hall women also do not have access to make food or access to thomas or food because they are to deny things such as a microwave hot and cold water regularly they don't have access to the same entertainment benefits or exercise benefits men have women are given two hours of recreation a day which is off their unit men have regular access on their own unit to recreation arts they can come and go as they please into that recreation yard recreation yard which includes exercise equipment which the women a small recreation yard that they get to go for two hours a day does not also men have better access to visits when during this time of a coven one thousand visits to the jail are obviously stopped men get access to free video visits with their famil women who are trust you do not get that benefit at all could you mind addressing the exhaustion issue let's say assume for the moment that we agree with you that that the pod units are superior on a yes runner exhaustion is dependent burden to prove they have to prove detailed in the remedies and we and our papers have shown that women have regularly tried again and again and again to file complain to address these obvious inequities between the units and obvious inequities between the privileges they receive and they have received no response and got nowhere with the grievance process the district correctly found or held that there is are there issues a job well if you're burden to show that there's a likelihood of success and if you haven't exhausted then you're not going to succeed right whether whether you get whether there's a dismissal of the complaint is beside the point if you're not going to succeed in the long run didn't mean that that's what your progression will likely go to success right right right but we did show your honor that now there are at least issues affect whether or not they were they were available i don't think we have to show beyond respect to the benefits i think appeared to me that there was an issue of fact as to whether or not the plaintiffs were discouraged from bringing grievances about assignment you know housing assignment but they brought complaints about various other of the conditions you talked about and those were all resolved one thing another on a the defendant submitted i think nine or ten complaints that that were resolved but there is evidence in the record from declarations from women who submitted significantly more complaints than the jail has unanswered complaint or grievance so if a complaint isn't answered and the jails on policies which we turn to when analyzing whether someone exhausted or not doesn't provide for a next step then they may have done everything they could i think this court recently held and hayes i think a month ago or a few weeks ago certainly at the end of the process and in the docs context i'm here the same rationale would apply the women did everything they could they didn't receive an answer therefore they have exhausted their ministry remedies and we start going to question because we're dealing with an issue of gender discrimination not waiting to hear you saying that men and women should be on the same floor and should be in the same pot now there on our argument is they should be giving substantially equivalent benefits and services gender if men fall below a certain number then they go in then they are sent to the linear units would that be a discriminatory policy if those men who are the same classification as the women or whoever else are being compared to are denied the same benefits as you know the other class then i guess it would be discriminatory your view is that everybody has to get the same so if there's a new prison a brand new prison that was built and it's bigger more different facility right there this is the exact same facility where women are housed in what this dependence on paper is recognised as a start we different housing unit which is for you know inmates who need severely restricted housing right inmates are i think in their paper think in their policies it's like difficult to handle inmates in the that's where they put women without any evidence that women are more difficult to handle than men they can't simply put women small dank units because you know their women basically what they are doing and they're dying them privacy their nine them equal access to their families the same privileges that men have and that that's the discrimination that's happening here they are denied the same recreation time all just because there are women and there are fewer and because and because job populations are free with it doesn't mean that there's not going to be more women there tomorrow or the next it just doesn't deal with the underlying discrimination that women are facing their day today of proof that applied it was the heightened standard for mandatory injunction versus a prohibitory injunction that overlays the other three reasons for a firm and based on the elements of a problem an area injunction either for certainly there has been no allegation at any point that the women privileges benefits or housing has fallen below minimum standards at any point so what we're discussing here are whether benefits privileges and housing between general custody men in general custody women are sufficiently different to establish discrimination or unequal treatment based on a level that at all times a minimum standard that can i w here plans council would argue would be returning back to the pod but we would submit different it would be moving from the linear housing units they are in now now to the planners were put into the certainly here you have four to five months passing between the time there was would be described as a just you and certainly where they've been house and so to decline but the status quo would aptly applied the situation and the facts that were in north american soccer although it does outline the standard of the law as well for those reasons your honour's i would submit the higher standard replies the st reason that your your honour's pointed out with the failure to establish that there had been exhaustion under the p l o or a now the defendant acknowledged that normally given that it's an affirmative defense we do bear the burden but as eight they did not do so the court went through the records they found that all of the complaints in grievances that had been submitted by the defendant had been resolved to the inmate satisfaction by their own injunction now the district court below may rule in favor they may rule in the plaintiffs but certainly given the record that mr court had at the time that this motion was adjudicated it certainly could not decide that there was a likelihood of success on the merit the patient to find that the preliminary injunction should be granted your honour's i would just based on the balance of our papers i would submit that there was the alleged differences in the housing benefits and privileges it also had before the declaration of chief who were budded all of those claims of differential treatment things like water was provided after the inmates complained about it meaning hot and cold water three times a day it was established that t v s after they were complained about were provided computer tablets were as opposed to the pod units would you agree i would certainly agree fundamentally now to the degree of which i might disagree but certainly there are differences yes of course provided the court with evidence that it has endeavored to provide all of the amenities that the man has that the women were renting that did your honors i apologize for that it was my time or i would just briefly because my time is the given that there is no finding a reputable harm based on it all kinds there is a finding or there is no out of any benefits privileges or housing falling below minimum standards that there was no reputable harm and lastly the public interest would not be served because the court should not interfere with the court with the present administration of their procedures especially while in compliance with the commission of corrections your honour's if you please go ahead so in terms of whether this treatment whether certain putting the women in the linear units is related to illegitimate and i mean the explanation is that it's easier to supervise and there security reasons to put in the in the linear as opposed to a pod because it's harder to secure the pod or it is harder to ensure security in a pod when there are fewer people on it that strikes me as completely  logical and maybe i'm missing something but why is it easier to maintain security on a pod with thirty five men than on a pod with a dozen  space that person could go off by themselves or with another person and not be a very i'm having difficulty why it wouldn't be a rather simple solution just to block off part of the part of the pod unit if which really is a red herring if the case is about comparing general custody women to general custom and not to do the minimum standards on the comparison of the benefits and privileges they receive which we've shown that the men receive significantly more in our house  significantly better housing conditions than the women turning to the exhaustion argument the district court didn't promise its likelihood of success determination even in part on failure to exhaust it was a separate section and there's nowhere  the proffered security concerns are just based off one line and one declaration of which the defendant said they had a number of reasons for moving the women but they cited only one and that it was more difficult to supervise a small number of women than a large number of inmates which they have no further evidence that that is supported anywhere there's no documentation there's no she was there it didn't go through her analysis of why or talk about past experiences of why that is the case and that really fails to meet the demanding and searching analysis that is required under intermediate through they do it just one passing line in the declaration  and that one passing line is insufficient to me intermediates for me and if it's a court may just ask you you aren't challenging the importance of separating the general and close custody prisoner so the  thing that started off this whole controversy you're not suggesting that there was anything improper about wanting to respond to this corrections finding that the women should not be  house together no matter what their their status right absolutely not running the state commission ordered the jail to you know separate the classifications and you know they have to comply with that i mean it are our qualms with how was discriminatory and if there's no further questions will rest on our brief and ask this court reversed the district court and remand for a for the proceedings thank you thank you best nicely argued