result of the party's agreement plaintiff was the first state prison inmate ever to receive sex reassignment surgery plaintiff was placed in a women's facility c c r created a policy by which inmates may apply for and receive sex reassignment surgery are also created a policy by which transgender inmates may be steve property consistent with their gender identities as a result of this integrated seldom settlement agreement real changes were made that made prison more fair for transgender and maids more and so the court reached the issue the transgender property policy is constitutional under existing precedent because it is rationally related to prison safety and security is this it contracts a breach of contract case and if so why  how does the equal protection claim come into it because as you mentioned the equal protection claims were settled and it's seen that the court only had the each of godric claims before it had equal protection claims apply given in defendant's view this is a breach of contract case and the matter can be decided without ever reaching the constitutional issue that the district court decided you know can you explain what why what the basis for that is for the equal protection claim because the district court just it lee went to the equal protection arguments and i was having trouble understanding what the basis for that was as i understand it in the district court's view  my review of the extensive evidence which is which apparently provided more than just the opportunity to provide comment on the transgender property policy that somehow reject revived her equal protection claim that this view is patently wrong because as you said she did release her fourteenth amendment equal protection claim with respect to the transgender property policy and moreover it's undisputed that she had multiple opportunities to provide comment on the draft policy before it became final she got a copy of the policy before it was submitted to the office of administrative law she met with decision makers at c b c are who are responsible for drafting the policy many times and in person and the policy reserve vised in response to her comments so this term of the settlement agreement meant has been fully active that the settlement agreement also allowed for the district court to retain jurisdiction the settlement agreement yes that's correct although it is important to note this this was a private settlement agreement and it was adjudicate must be contained within the terms of the settlement agreement and the just and the terms of the settlement agreement provided that she would receive sex reassignment surgery that she be placed in a female facility that city star would create a policy by which inmates could apply for and receive gender reassignment surgery and that c c r would create a transgender property policy all of those terms had been executed she added the purpose of the just she just viewed the way several of those policies were implemented implementation was not her term or created under the language it was used in the policy statements there's no dispute that c d c are created a transgender property policy dispute like you just the content of that policy in certain respects right and this goes to the heart of the honor that this question hinges on how we interpret the phrase the opportunity to provide comment as i stated defendants gave the plaintiff multiple opportunities to provide comment on when the question was raised i think it was before the magistrate judge there on the i court a provisional agreement was placed on the record subject to c c r approval and the governor's office approval that transcript of the settlement conference reflects the party's intention to agree but also reflects the fact that they had a provisional agreement subject to further that just to the court's attention so she can ask the court to resolve defendants don't just agree that she has the right to bring disputes to the court's attention to the extent that defendants failed to execute the settlement agreement but the defendants did not fail to execute the settlement agreement they perpetuity with the settlement agreement under any constitutional law the fourteenth amendment for for example she could whenever i'm not made a good point that what we have here is a breach of contra that you're correct that argument did not appear in the party's briefs but i do think it's a reasonable interpretation of that term she was given an opportunity to comment before the prop policies became final multiple opportunities that i noticed already and this is it makes sense does it when agree that it doesn't shed light on what the opportunity to comment should mean because the term opportunity to comment was never used at the settlement conference the parties discussed that the state attorney stated that c r would review and revise its policies to allow transgender inmates property items regardless of gender identity and then plaintiff counsel said that there his understanding was that a process be able process would be in place for the parties to resolve disputes with regard to item and defense counsel said yes that there will be continuing jurisdiction by the district court but the term opportunity to comment was never used so we have to we have to conclude because it doesn't appear in the final agreement that this term was subject to subsequent negotiations and that this right to have the district court adjudicate her fourteenth amendment claim was relinquished by the release of the  property items are provided only to the inmates who are in the institutions and the language is not entirely clear about that and it also wasn't clear to me whether all of the the inmates who have the who are identified under the policy are immediately transferred to have institutions can you explain why there's no breach of the contract on th mates not to devise a methodology by which they'll be housed or what by which they'll be identified and it's also clear that the settlement agreement doesn't prohibit c c r from creating a method by which transgender inmates will be transferred to a prison where they will receive more services this is a very small population and inmates are clustered according to their needs throughout the prison system and transgender inmates are no different and it's clear that there is no prohibition in the settlement agreement so that practice second with respect to identification your question about identification your honor again the purpose of the settlement agreement was not necessarily to create a man a methodology by which transgender inmates would be identified but it does contemplate some sort of identification it does not contemplate self identification the district court did not abuse its discretion in requiring that only medical or mental health personnel should be able to identify transgender and it's because any other result would be absurd the status is transgender it's confidential information in the prison context and custody staff janitorial staff are not qualified to make that determination this property is considered therapeutic for gender just treatment for gender dysphoria and the policy contemplates that inmates will be identified and provided the property in a limited fashion by people with the requisite experience and training going back to the institution for just one minute my question was what if there are many transgender in the gates in say male institutions is that they will not have access to gender appropriate property i'm sorry i fail to answer that question yes the policy provides that inmates will be identified on a case by case basis so all inmates who have been identified as transgender and under the policy should be transferred to have an inmate has no right that to avoid transfer that's just a general rule in the present system however in the supplemental excerpts of record seventeen the policy provides that inmates who cannot be transferred because of other factors on their case factors will be evaluated on a case by case basis and provide a property as needed what does that mean i mean for what reasons would they not be transferred to a fair otherwise qualified  that is meaningless to me so there are other reasons for example an inmate may have enemy concerns and it means that other all the other have institutions and be a unable to be transferred for safety reasons and inmate may be disabled under the a need to remain at a facility that can that for where that has need of the disability need may be met there are several other reasons are these other reasons part of the record in this case  charge your honor women's prison the settlement agreement requires a policy that provides access to property consistent with gender identity but access does not necessarily mean entitlement the just record abused its discretion by requiring r to provide compression tops at state expense no term of the agreement requires c c r to do so and i will note that almost all of the disputed property items are personal property items they are not issued by the state they are property items that inmates may purchase from catalogues and c d c are does not have the discretion to modify them and does not provide them as a rule so these would be the only items among the disputed items that would be provided at state that i had read someplace and i can't remember where mitt for it was  were it was in one of the breeze or something but that the bureau of prisons provides the clothing that they do provide it's manufactured by an inmate system some sort of clothing yes the factory process i mean i'm not sure what it is but i know one of the concerns was that there were so few a transgender males that it would be any fishing for them to produce the tops and that nets why they weren't going to do that is one justification of what i read yeah you're correct your honor that is mine like so i got the impression that if they could do it they would i wouldn't go that far your honor i don't think that i mean what it seems to have suggested and judge i don't judge tiger was concerned about those inmates who couldn't afford you know i used to go to the store to buy offline but they knew they didn't have the money that is one argument that was made below your honor however the arc of the argument which is on appeal and before the court today is whether or not the settlement agreement requires the parties requires defendants to provide their compassion tops and binders at state expense we didn't judge tiger interpret the term axis here tiger did a interpret the term access to mean entitlement but that's a more broader definition than is reasonable and if you said in title meant well it's our position that providing items freely it's at state expense is basically conferring an entitlement as opposed to mere access at some point price might become a barrier and effectively deny access but there good morning ma'am please the court i am schon your camper from transgender law center for plaintiff appellee we're here because my client show quine made an agreement with the state and exchange for giving up her claims to the state agreed to stop discriminating against incarcerated transgender women with regard to their access to certain property items just a court found that the state failed to honor that agreement and that it violated the equal protection clause and doing so  procedure your honor it's in the dispute resolution clause which refers to any disputes under the agreement and says that they will be first brought to the magistrate and then to the district court for formal relief and so given the broadness of that language   opportunity comment opportunity to object your honor the opportunity to comment can't be interpreted to simply mean give us your opinion and then go away  adequately and so the opportunity to comment we feel represents what we envision of the process would be you mentioned specific language of that sentence earlier on or before those policies are final changes they made some revisions but refused to make other revisions and ultimately the state refused to continue meeting and refused to accept the magistrate judges jurisdiction and so  just right in addition to the question about the property items you have other there are other breach of contract issues there i had a rose that you brought to the  were any question about whether miss point had a right to dispute the exclusion of particular property items the question is resolved by the state's counsel's remarks on record in open court when he was asked the specific question would there be a process and he replied yes there would be a process when there were disputes over specific excluded items and there would be a part of the continuing the court's continuing jurisdiction they were viewed by counsel and then brought to the court so they're arguing that th terms i guess we're not the end included in the actual settlement agreement so we're superseded by itself i'm sorry so any agreement that was suggested in the before the magistrate judge was then superseded by the agreement which i guess has an integration clause that's their argument that is their argument your honor is used in the dispute resolution clause and so applying the california rule that evidence was submitted for the purpose of interpret in the contract the state wants to claim that this is a separate agreement  but it's not we have the dispute resolution cause and that has to mean something and and not only have to mean something well meaning something i think we agree that it means something right whether it effects the exact issue you want to argue here that's right and and it does because this was the exact question that was posed to defense counsel and defense counsel responded in the affirmative  my is identified pursuant to the regulations they are then transferred to a institution and absent one of these special circumstances and then would have access to the property items if what the state said is correct so it's important understand the state's transfer hub policy predates this lawsuit predates this agreement it's not it is sort of separate issue and the state's framing would lead  transfer after someone has been diagnosed with gender dysphoria that is not the same group of people who are covered by this agreement and by the property policy so the agreement uses the very broad language transgender or experiencing symptoms of gender dysphoria see to see ours own definitions in their gender dysphoria management policy make clear that those are two different concepts and the phrase not transferred is that what you're saying well that's essentially what we're saying except i would i would strike the word diagnosis your honor because the there may be several symptoms that lead up to a diagnosis and what we're saying that's that's the group of people who have access to property items in our you explaining that inmates who are identified as having symptoms of gender dysphoria are not transferred to the institutions is is that what you're explaining yes your honor so people with a formal gender dysphoria diagnosis are people who will be transferred are transferred to the transgender hub  institutions people who may have some symptoms but not qualify for a full diagnosis do not qualify under the hub policy but do qualify under the property policy so inmates identified by medical or c d c are personnel as having symptoms of gender dysphoria may not be transferred to the hub and may not have access to property is that how you're interpreting that as that's how their policies currently are aligned ok thank you yes if i the are you saying they have to be transferred no your honor what we're saying is that the property the transmitter property policy must be applied to that person in your hypothetical regardless of what prison you don't care whether they're transferred to the hob or not all you care about is whether they have access to the property that's correct your honor the judge had sometimes no access but they're actually provided the property i'm sorry in some cases that they're actually provided the property they don't have to buy it themselves i'm so sorry your honor i missed last part of your intimate let's just tiger said that they had to make the property available you get an equal protection argument in this because this is a contract with a state government that in part require them to stop discriminating against incarcerated transgender people and so we don't see this as this client having revived her equal protection claim but rather under this agreement once this policy which facially discriminates on the basis of sex and gender identity was in front of united states district court judge the only standard that he had to evaluate at the only standard that the supreme court has allowed to evaluate such policies that discriminate in such ways is the intermediate scrutiny standard and so applying intermediate scrutiny this report found the state's justifications for these various exclusion s did not rise to meet that standard and the state also wants us to consider constitutional issues though because the state says that turner should be the standard for reviewing for reviewing their property policy but turner has never been applied to sex discrimination and there has never been an exception to intermediate scrutiny for sex discrimination and this was the courts the supreme court same reasoning in the johnson case when it said that strict scrutiny was not trumped by the turner standard that there had never been an exception to strictures or contracts disagreement say anything at all about providing the kind of standard that would be applied in the district courts evaluation it doesn't your honor and then he just i'm sorry it doesn't say and it doesn't say anything about applying any kind of standard it's just a court will play a particular standard when evaluating you need to speak brought to the court's attention right and left but that vacuum and seeing a policy that other than interpreting the agreement correct and having the agreement and  requiring in the background that the state's actions are constitutional there there is no exception to the bill of rights or other constitutional requirements for one state's answer and two contracts and so the district court here facially discriminatory policy in front of it and determined that the only standard that was available for its review was the intermediate scrutiny standard i have a  and contract issues you're putting all your eggs in the basket on the cause dispute resolution and not in the clause about opportunity to co opportunity to comment has been appeared to him and then all that's left is the dispute resolution clause right and the state's obligation to revise its policies which the district court found it had failed to do adequately but that the how did an obligation to revise its policies to stop discriminating against transgender people with regard to their property access the state also had an obligation to allow this client to comment on the specific language before those policies were finalize and they did she has a dispute over the head she said it should be written this way or revised in this way they said no this is it we listen to you here's our final and she's upset and so she under the ice i understand what your client has i guess the state says well the just resolution is disputes over the interpretation of the implementation of the contract and so you have to point december each of contract it isn't  dispute over everything that your client might be dissatisfied with other words your kind couldn't really bring again a new equal protection claim so help me understand how you're interpreting the scope of that is a is it limited to implementation of the contract and interpretation of the contract or is it is it anything your are if any disputes under the agreement so what is under the agreement mean the violation of the agreement or just something that's related to the agreement or what's your interpretation it includes the c r s obligation to make new policies and clue to those policies themselves so it so it relates to and again see the c r agree that this dispute resolution clause included the exclusion of particular property items and so given given that their counsel made that promise in court on the record the district court appropriately admitted that expense of evidence to understand the parties intent and contracting and when a district court looks extrinsic evidence not weigh ins decision did as a district court in this is over the complaint would be dismissed with prejudice and no one else could come along in the future to try to enforce the agreement is that a fair statement i think that's a fair statement your honor it's over if the district court's order were affirmed and c c r changed its policies to honor its obligation to revise those policies adequately as the district court found that yes your honor in the case would be dismissed anyone else who had trouble with those policies would be left to bring so your client would not have this continuing role as by plaintiff's reading all disputes in perpetuity may be brought to the district court or that's what we've just been discussing and defendants don't just get that some future plaintiff may be able to bring a claim concerning the terms of the property policy but ms quien released and  dismissed all of her claims concerning her equal protection claims concerning the terms of the property policy so if they're saying that the complaint eventually will be dismissed i guess i think it's a complaint it's not just as at this point no it's not your honor and i have to say that's the first time i've heard plaintiff's counsel make that statement it is not has not been clear to me and it has not been clear to defendants under what circumstances it is quien plaintiff would deem the property policy big deal the property is considered therapeutic for gender dysphoria and property is tightly controlled in the present environment understand so the property has the policy it allows only the property that which it's believed will be safe in a limited and controlled this clothing in a non setting it's a problem the corrections problem because they don't have a hub the it's acceptable to accept say  a handicapped of individual or they don't have a adequate facilities to be able to separate but put somebody in a prison where there is not an opposing gang member that's that's correct your honor and that's a reasonable point to be made but the question before the court today is whether or not the settlement agreement allows her to dictate this dispute and to impose a requirement that the policy apply be on the ha t in may take and if as having of gender dysphoria this is from the settlement agreement are not transferred to the institutions and therefore don't have access to property is that correct that's what the opposing counsel says that evidence is in the record your honor it wasn't presented to the district court it may be correct however the policy does provide that inmates will be evaluated on a case by case basis it's also important to recognize the policy provides for identification once the party people become known to c d c are c d c our endeavors and makes every effort to transfer them to how well is it the case that there are in maids who have been identified as having symptoms of gender just for you who would not be given access to property items i mean that's the plain language of the so men agreement if they are to be given access to property items again i'm not aware of those cases and it's not in the record ok evidence cannot be admitted to contradict a written agreement and clearly this process that the district court entered into by which the property policy was jacketed to constitutional scrutiny is in contradiction with the release of the settlement agreement by the under this plan of said and her argument that the constitutional issues were probably before the court because there was a settlement agreement concerning the state by that answer protests and the state has no incentive to enter into settlement agreements  hundred eighty three lawsuits because the constitutional and issues will remain before the court in perpetuity this court should give effect to the final finality of the settlement agreement and particularly with reference to the integration cause in the nor are modifications waiver and