that morning your father's in may please the court my name is steven o'brien and it's certainly my pleasure to have been appointed by the court to represent the nestle and gibson also known as scotland gibson before this court this morning present certainly on a day to support miss gibson's section one thousand nine hundred three claim below she had to satisfy two elements first element that she had a serious medical need as explained in the briefs the state does not contest that point with respect to ms gibson that her gender dysphoria is a serious medical need that's page eleven of the supplemental brief and so the remaining element that ms gibson had to prove to get by summary judgment below was deliberate indifference to her care by the texas state correctional facilities before you get to that deliberate indifference prong and i just want to confirm that the understanding that you refer to your brief as a supplemental brief but actually it's it's the substituted brief we don't look at it gibson's pro se brief that's that's history same with the estates initial brief all we're looking at is your brief the state's response and was on a very sparse record the state moved for summary judgment they introduce three exhibit number one they introduced gibson's grievance records at the prison number two they introduced gibson's medical records at the prison number three they introduced the policy for dealing with transgender health care issues which is texas department of criminal justice policy e g fifty one dot eleven the state introduced no evidence of the rationale behind the adoption of that policy that's critical because to section one thousand nine hundred three claim made by gibson is tied to her allegation that under that policy she is not allowed to be evaluated for potentially medically necessary part of her treatment for gender dysphoria that's where i have a question because it's my understanding on and this is a sparse record and i'm not certain at times whether reference in the briefs is too once in the record or what they wish had been in the record but i understood again i'm certainly subject to being wrong that dr green familiar with that fact mr sullivan may be able to correct me in any event whether whether he was rich she was referred or not the record does seem clear that she has never had an evaluation for s r s the sexual reassignment is well i understand but if it is but at least it's not as cut and dried if dr green requested or referred for s r s evaluation i don't know what might have happened after that but it might not be as cut and dried as you're presenting in you corrects me when he gets up in his argument i'll be happy to address that in rebuttal i don't think that's our fact pattern i think our fact pattern as demonstrated by the record particularly the three different affidavit submitted by gibson which is another part of the evidence on summary judgment is that she repeatedly requested an evaluation for s r s and was told that it would not be done because the policy did not provide for s r s as a potential treatment the is the  record does the record reflect whether any prison has ever how often prisons have provided us arrest to inmates the record does not reflect that you so in terms of deliberate indifference the the prison has provided mr gibson with substantial hormone treatment isn't that right that's correct i mean i i have a hard time seeing how that rises to the level of deliberate indifference because as you noted the deliberate indifference standard doesn't require that the maximum medical treatment or the best possible medical treatment be provided even assuming that it's deemed to be necessary that's correct your honor and so what we have here is not a question of alternative treatment or an optimal treatment versus a generic treatment when you look at the past standards which are the only standards out there in the world for transgender health when you look at the d s m which is been recognized by the supreme court as authoritative in more versus texas and others both of those recognize that in some cases the key word some cases  can be medically necessary that's the issue that needs to be evaluated here with an evaluation of gibson or whether she is one of those cases that s r s might be medically necessary it is absolutely true your honor and the texas department of criminal justice is to be commended for moving forward with its policy from the time of prayer when judge barksdale was on the union to today where they do give hormone therapy but if on the graduated by point i mean i'm i'm interrupting a big skis and that you can get back to your train of thought but it seems to me that that's the essence of a deliberate indifference that doesn't it doesn't appear here that is to say it can't be the case that the prison authorities just don't care or ha paid no attention or are completely disparaging of any kind of complaint here they've taken substantial and unusual steps to take care of the  issue how can that be deliberate indifference in any common sense meaning of the term it's not deliberate it's a difference that at thirty thousand foot general level your honor but it is deliberate indifference if it ignores the people on the far end of the spectrum those small class of cases for whom s r s is quote medically necessary in the way it is just my understanding was from the briefs that the record reflects that there is is no longer a threat of suicide as  fair representation i don't believe that's anywhere in the brief your honor it is true that the record reflects and we've candidly admitted that escapes and has gotten some relief from our hormone therapy however her affidavits make it very clear that she believes she needs to be evaluated for s r s that she believes her symptoms on are ongoing and that's reflected by the affidavits and in fact also by the medical records in the grievances filed in the case but he but he no longer claims that he isn't that right i do not see that anywhere in the record your honor i believe that there has been a period of time now for sure three years or more where gibson has not attempted suicide but the affidavits reflect that she still does have suicidal thoughts and she still doesn't want to castrate because of her gender dysphoria i frankly would tell you that you know it may be that she realizes she has a case winding its way through the court system that's given her some comfort and there's nothing in the record to reflect that her suicidal tendencies are suicidal thoughts are gone back to the question of deliberate indifference or honor it's it cannot be the case that if  a soon with me if there is a four part standard of care mental health counseling real life experience hormone therapy s r s and if that's a graduated spectrum of care and some some people with gender  fixed by the first step some are fixed by the second step some are fixed by the third step but there is a category of patient who is not fixed by those first three steps and the leading authorities say that or that category of patient that is not fixed s r s is medically necessary it cannot be the case that the state knowing that can adopt a policy that says well we understand that there's some people maybe only a few in prison who need s r s to be cured we're not going to take care of them because we did enough through the first three steps for your brief i think the knowledge is at least i think the reply brief acknowledges that the first circuit has rejected his argument the first circuit has rejected that argument and post aleppo arguably the tenth circuit has rejected it in drooling so i guess my question is if it's medically controversial in massachusetts which is that i think the subject of the of bonkers how is that deliberate indifference in texas if you read kosilek closely and i'm sure your honor has the court goes out of its way at the end of the opinion to emphasize that it's dealing with these unique facts it's not foreclos disagree with you about i think it would be it would be fair to say the first circuit says it recognizes w pat as an authoritative medical standard but it doesn't recognize it as having universal consensus it doesn't agree with everything in it it's not perfect for sure you are closer look though the most important thing about kosilek is toward the end of the opinion the first circuit recognizes that in terms of medically necessary there were conflicting opinions before the court that's what should happen in this case kosilek was evaluated she was evaluated for whether s r s would cure her gender dysphoria some of the professionals said it would some of the professional said it wouldn't that's the kind of record that's important for the eighth amendment because the eighth amendment violation the eighth amendment claim in this case no it is it is the state just going to say the same thing it's medically controversial here's the coast like record no i don't think so and the reason is and this is where i think the district court got off a little bit and it's the second point of its summary judgment ruling talking about  the question right now it's summary judgment is not whether w path is so compelling that it means gibson wins the question on summary judgment is simply whether there is enough in the record to create a genuine issue of material fact for some fact finder to address more thorough your briefs concede that you will fail to present any evidence that anybody agrees with you about and it's page twenty one of your so i don't think that's correct your honor  is universal acceptance correct universal we've never said that it's universally accepted in point of evidence like many points of evidence that come before the courts on summary judgment that a reasonable fact finder could look at gibson situation and say her gender dysphoria has not been cured by the first three legs of the treatment mental health counseling real world experience a hormone she's still suffering and her affidavits make very clear that she is necessary that's backed up by the d s m which says the same thing the d s m of course is cited in in the policy by texas and texas also cites the past and so they've endorsed them to a certain extent but a reasonable fact finder could find with the benefit of those authorities gibson's symptoms are not cured but how does a reasonable fact finder get past the undergrads to johns hopkins or the doctors who testified in the cosima case  that path didn't have a genuinely rigorous medical scientific process it was kind of politically motivated i'm not saying that's true but you do that that's part of the cost of opinion well i get past that that's absolutely correct judge hope that we're not moving for summary judgment we're not asking the court below to rule in our favor we're simply saying there's enough there that without a medically without a medical evaluation of whether s r s is medically necessary for gibson there's an issue for  trial and that evaluation that s r s evaluation may tell us things that are important to the proper resolution of this case may tell us things that witnesses at trial would do differently because of gibson's own peculiar circumstances was based on a trial record complete trial record that's what needs to happen here it needs to be an individualized medical decision she needs to keep still needs to be evaluated and then we could take the next step that would be different on remand here that didn't happen  well gibson's own particular situation might be different in closer look as i said earlier the first circuit found that there were complete thing opinions by the medical professionals on whether s arrest would cure her symptoms kosilek by the way had never tried to harm herself and she had found some joy from the hormone therapy here gibson's situation her drastic picture the things she's gone through might create a very different record but might not minute to a doctors could evaluate gibson for us or us and say it's not going to cure you and then we're done  i'll check on him also when a state takes deliberate reasonable steps to address a prisoner's condition there can be no i'm in violation since no specific treatment is mandated by the constitution and this is especially true with the state is merely declining to offer an experimental controversy and treatment that's not workable in the present context first the state's treatment policy is not repugnant to the constitution a gibson relied here at the summary judgment stage on the path guidelines to make this argument but that fails for five reasons highlighted throughout the kosilek opinion but one as we've a fourth in our brief they're not mandatory on the state even the a p a has acknowledged that that there has to be room for states to to have policies second they're not universally accepted  that's clear three they're flexible and even by their own terms then can be adapted to state law for they're not workable in the present context and finally at the summary judgment hearing as i understand it you didn't present evidence of why they're not workable or while there are safety concerns the truth the truth that correct that's correct while we're talking about it here we're dealing with one summary judgment proceeding one summary judgment record  so you are with as we noted in our brief we were offering those rationales to the court you know that's fine if you had evidence to support it that's the problem we have with this record that there's no safety concerns shown there's no discussion of this lifestyle experience it takes a year why that wouldn't work in prison etc we've got a we've got a big case riding on a mighty thin record  was going to be this was something that the state had to do or that it was a reason that it would be repugnant to the cop conscience for the state not to do it the plaintiff didn't do that because the only thing you're saying the plaintiff is responsible for the state's burden to braise these institutional concerns and safety concerns and pain logical concerns it would if the if the plaintiff had raised anything that brought those to light it would be  don't see gibson making an argument that you lost or you're going to defenses and that's all that's president has i'd say to me two things hasn't made that argument and again i think the reason that we've offered kind of additional explanation in our brief is just for the court to have any alternative basis to affirm in this case the district court the i think it corrected for us to have an alternative basis to apply there has to be something in the record that allows that in the record your honor or i think in publicly available documents or in even within so the past guidelines hear themselves available available documents were supposed to take judicial notice yes you got it well or in this case the guidelines that were offered by the plaintiff themselves kind of set for that we show that there you wouldn't be able to have for instance a real life experience that went on is controversy and so if if this procedure is controversial in itself then there would be no grounds for saying that it would be repugnant to the conscience in order for the state to not offer   you know the treatment that is provided doesn't have to be the best that's the money can buy that's mayweather it doesn't have to cure whatever is going on that's norton that wasn't addressed in in the plaintiff's reply brief so match medicare and medicaid just one of the rope roads hundred pardon my ignorance to do medicare and medicaid provide for us i don't believe so i think there's been some some back and forth on that and i know that  at least in california there was some debate on whether or not the state was going to have to to do that under under their medicaid medicare programs but i don't believe as as just kind of nationwide i don't believe that it does my understanding of the record but you can correct me if i'm wrong is that mr gibson is asking to live and be assigned to a female prison is that is that right i don't recall if he isn't specifically asking for that  we that would probably be part of the s r s evaluation and treatment protocol because i mean that that that would be i thought that the records show that even if it doesn't mean that that would be a that is required by the by the medical guidelines for for for reassignment surgery isn't it to get to live in that kind of gesture i meant that you would live it works out yes i mean that you would live as the opposite gender i mean but by definition  going to allow that it's a prison right and that's correct your honor or is that is that your position i'm not trying to state your that that is that is correct and i think that's what the the other circuits you know first second because like the tenth i believe in the rosati case that they may have they were going to remained in that case because it had been a physician assistant had made an initial determination that the patient was eligible for challenge right to the stage yes your honor so wouldn't a facial challenge wouldn't wouldn't wouldn't mr gibson have to show that there is no set of circumstances in which the state's policy would be would be valid that that's correct  honor and which why maybe it helps answer judge park stills line of questioning that we were offering some rationales for again what the state believes here and what the first circuit upheld summary judgment record to that effect that's correct and just at the at the stage that it was that given the evidence that had been put forward then that was not necessary to introduce into the record result of case that california is the first state to have allowed that you have to know when i don't know when i could tell you when there was not a case was it was i was i think just a few years ago it said yeah and it cited in the briefs i guess what i'm wondering is we're talking about here is not you know not standard medical insurance case or medicare case this is cruel and unusual punishment is it possible for something to be cruel and usual when to deny something as cruelty is cruel usually when it's only recently been provided for the first time in history you see i'm getting out yes i do is a constitutional case i think it's certainly a factor right so when one looks at deliberate indifference the state has to be aware of the risks and they have to act and in disregard of that part of deciding whether it's medically necessary maybe the evolving consensus of the evolving standards of decency of plastic under a commitment law so it may be that more time will lead to a clearer sense of things i don't think that means though that the state gets one free bite at the apple i think in this case the only way out of this case that i can see is if the state were to determine if this court were to rule that s r s for gibson was not medically necessary if it's medically necessary by definition medically necessary means it needs to happen in order to take care of this medical need if it's medically necessary something has to be done about it at least there has to be an evaluation for it but is it medically necessary when it's so hotly contested it can be sure i  mean the first diagnosis of a problem controversial diagnosis can be but that but that's an issue for a fact finder right that's an issue for a trial like and co select like in fields fields they dealt with a hormone therapy problem but we're not asking that gibson wins we're not asking that gibson gets s r s we're saying there's enough here to go forward on that line address the fact that this is the facial challenge these of the what the state was required to put into the record it's a facial challenge and an as applied challenge it's been that way throughout facially the state is correct that there be more requirements to tune negative its unconstitutionality in every respect and as applied to simply as applied to gibson and that's really what we're focusing on here but we're really this retains really comes down to is the simple proposition whether gibson should get an evaluation to determine whether s medically necessary to cure her gender dysphoria that's all not whether she should get s r s in that context the state then of course can raise the security concerns it wants to but i think those concerns are a little bit overblown judge barksdale and i know you asked about them directly because the state is already dealing with this problem we're not opening a pandora's box here by saying once you allow s r s you're going to have to deal with transgender inmates across mixed genders in your prison people are already being arrested and incarcerated every day who are transgender and they're now in the prisons and once again you know this is not a philosophy class and i'm not being sarcastic counsel i'm just saying i suppose i'm sort of from the old school that think it's not evidence we really don't talk about it appropriately the whole point of building the record i think it is your honor and i'm just trying to follow on the thread of the state argued that it raised some of these concerns because  broader concern for a facial challenge than if they raised them i thought it was fair game to respond right well and i thought you had basically said we're not worried about facial we're worried about how the plan but there is one other piece of summary judgment evidence in the record account on the motion for summary judgment and articulation by the spokes person for the texas department of criminal justice that s r s was not allowed because it was viewed as quote an elective close quote surgery that piece of evidence never taken into account by the judge and ruling on summary judgment on this sparse record it's particularly important because if that's the rationale that the state used to adopt this policy that's not a rationale that gibson's concerns of medical necessity are already taken care of elsewhere that's a different condition and that concern echoes throughout the states briefs that needs to be explored below the district judge didn't recognize it didn't address that on summary judgment then after granting summary judgment in the unusual posture the judge barksdale noted said that motion is now denied well that motion should have been considered in the course of the way through summary judgment not tonight afterwards i thank you for talking if i may just want or what you mean the fact this may or may not be rel having this case so i think with all due respect i think that principle is not really relevant to this case this case that the best thing that could happen in this case would be for gibson to be treated like any other inmate with a medical condition her condition treated evaluated and taken care of under the eighth amendment regardless of the maybe unusual posture in which a condition arises i guess i'm getting at is you've got the first circuit and perhaps others questioning the  credibility of path you've got a decade decades long understanding at least as a constitutional matter according the supreme court that that sex is a beautiful seems like you have a pretty steep hill to climb to prove that well all of that should be ignored and it's now cruel and unusual not grass around us today and twenty eighteen i think you raise a good point to tell and it would take me on a long philosophical discussion we could have maybe over a couple of beers some time but so sexism mutable but treatment of sexual conditions medically necessary to cure a patients ills is not immutable that's not the same thing and so it may be that there are all sorts of rules that says whatever happens to gibson we're not going to ever call  pleasure for thank you and we appreciate your willingness to take the appointment and we also very much appreciate the contribution of the university of virginia school of law  clinic your case is under submission and the court will take a brief recess