yeah yeah try it's good to see at this morning the unusual conditions but we're seeming to get this practice down maybe we just conduct all arguments for the rest of time this way although i much prefer to see  we're asking this court to reverse that decision and remain the case down the district court to enter final judgment they were the school board underlying legal issues are the same as the past within that issue concerning whether there's a just just issue a controversy i'll start there that i don't i am not arguing that the transcript issue is moot i am arguing that the application of the restroom policy has been well it seems to me one hangs on the other doesn't it and other words the change of records really flows only if there was a violation of title nine or the equal protection clause as an arrest and i guess what i'm saying is that they're apparently attempting to assert a separate claim for violation i don't know that he would actually claim based solely on the transcript issue and that well we think that's not a viable claim we don't think that is a moot claim because it it i s as as has been pointed out not based on their record policy alone i think so i mean we tried to look at every possible way and even looking at the arguments in the supreme court it is apparent that what they're trying to decide is on the basis of sex and what's the definition of sex and our case our position is it's a binary concept that you have males and and females and in that case there they were discussing in their oral argument the distinction if that's the case then the employer wins if that's not the case then you have a different you have a different discussion the school board policy does not discriminate against graeme on the basis of sex in order for graham to succeed on his claims this court must find his declaration that he changed his gender identity from the male to male entitles him to be treated in all respects as a the evidence however is that graham was not a boy despite chest reconstruction surgery and hormone therapy your main anti mccleon female importantly rather than retaining or identifying an expert to prove his sex change re conditioning care or any other modality further the standards of care of your path and he's other professional organizations do not address transgender student use of restrooms at all back rooms expert testified that what helps one transgender individual context it seems to me you need some form of comparative or is he treated differently than other transgender persons or is he treated differently than boys or is probably impossible under the statute to add a rd category because you don't know how to conduct the analysis it that's exactly right that's our position is it with two categories you know have you knocked it houses you're either being betra treated the same as other females are being treated the same or differently than other males and our position is that this individual having graham because it was sex and i changed was to be treated with the the  behavior we're parents or stereotypes in fact it's the opposite all physiological females no matter how offended or masculine can use the girls restroom were single stall as i say my male i want to ask the question regarding  we'll leave it alone for right now but they set forth those standards and they say that transitioning is an appropriate treatment so what do you do when the transition occurs and  that can be used and transition is one that's the st step then once we determine the treatment has occurred and transition is occur it's not a question for debbie have to tell you where to go it's a question does this person who's now we our position is that the school the school board and the school administration and everybody associated with the schools supported the transition of gavin graham he changed his name they ca pronouns in its testimony on his own behalf and he was treated well unfairly by the staff and the people there so that part was done its sole issue is the restroom no other issue and the reverse and you have a mayo who has transitioned to female law or vice versa and once that occurs you're saying they steal must go to the original  assignment even though they transition not under the gloucester county plan because they're not forced to go back to the original assignment they have available the rd option single stall rest rooms where is as an option just like everyone else does anyone in the school can go where their physiological sex provides or the rd option but they can't go to the other to anyone cannot you know right there transitioning a person transitioning with when this occurred in the fall of two thousand and fourteen he shows up at school and says i want to be identified as male at that point in time there is no physical change that he has undergone in the record or otherwise going out with this policy he begins taking hormone treatments in december of his sophomore year and that is true that since then he has as they have undertaken a hormone treatments and has and chest reconstruction surgery but our position is that does not make him non binary with respect to is this illogical saxon which we're identifying sent simply as the superintendent said as a genitalia as long as that's true and it's still true today who has fully transition what what would it choice be the choice would be either to go to the one for which he is fully transition or to go to the to the alternate one is that correct or not someone who has it you know whereas if  he takes that next step and he does fully transition now his genitalia conforms with it what choice would be for him then i think i said you know how many years ago it was when i was in this court and i say it again today if someone has had genital surgery has had complete sex reconstruction in chains i think they now can go to the restroom consistent with their genitals i think that's what the policy provides so that's like saying a black school is open to anybody and anyone would go to it but you never had a white student to go to one of the schools don't separate but equal i actually went to a school i know what i'm talking about on that you could have it could have happened because sometimes you would know whether or  were black or white it just never happened and i think it's nice to say yeah anybody can go to it but the fact of the matter is absolutely no one unless you tell me otherwise is ever going to that restroom that you would know of not not open their record is not clear that anyone ever used those restrooms they were made available to everyone we know that grimm never use it because he chose not to ever go in that or what why would you think he did not use his  he says he was stigmatized you create a separate referent only just for him you otherwise would not have created anyone except for the fact he's there he's the only one that uses it turns out no one goes there and so if he was a matter of fact and tons of facts you know from a legal perspective maybe it's not but i'm as a matter of fact is it not a stigma to create rush wrong for any particular individual based upon their you created it for him that's that's pretty straight up i mean you may have a good purpose it out that you could outline for but you created it for him right to satisfy the situation here and it was bottle thank you mr block why don't we continue with you thank your honor joshua block on behalf of plaintiff gavin graham gloucester county school board passed a policy whose only purpose and only effect was to remove gavin from the boy's restroom and place them in separate alternative facilities that no other student was required to use the undisputed evidence showed that the separate facilities were not merely different they were equal for two independent reasons the st is what judge when alluded to they were stigmatizing and humiliating and what's key here is that gavin feelings of humiliation were checked of leave reasonable from the standpoint of a person in his position under all the circumstances this isn't simply you can't claim something as stigmatizing just because you feel like it there's also an objective prong and everything we know from the facts of this case everything we know about the medical and miki have said everything we know about the experience of transgender individuals and everything we know about our public accommodations laws shows that it's stigmatizing to be excluded from the facilities that everyone else uses especially when the cited reason for the exclusion is that the school board suspects other people will be uncomfortable with their mere presence there that is inherently stigmatizing the nd independent reason why these separate facilities were on equal was that as a practical matter they were inadequate and difficult to access now either of those independent reasons would be a basis for affirming the district court i think that in order for  following not of knowledge as to too well he during the course of events here he had physical traits as a male and identifying traits as a female and based on that he has made an election to identify as to be treated as a male but that combination is different from somebody who is physically male and identifies as male and it seems to me we have to figure out how to conduct the analysis under title nine your argument is that this discriminates but i'd qualifies mentally as a boy because he identifies there but we have this this stage in which there is a basis for distinction because his physical makeup  is distinct and of course title mine recognizes that doesn't it it authorizes the discrimination in the between the sexes in with respect to buy through locker rooms showers and  residences on campus right well i disagree that it operated discrimination it operate that way says it may provide separate distinct and other words that's the that's the exception i mean i i don't know if we're going to get into an argument what that means in the statute but it's pretty clear to me that the statute makes an exception for residences bathrooms locker rooms and and showers and it with the idea that men and women or different sexes male and female will be the institution can separate them there was clearly nothing in the record to suggest that congress wanted an act that was thinking of transgender persons now we have this transgender situation and i want i'm wondering how we conduct the analysis it seems to isn't this better for congress to handle because it it doesn't work as chief justice roberts noted it clearly you try to conduct the analysis and it falls apart because  there's there is no definition there is no definition in the dictionaries at the time and i've been able to not find any in the dictionaries today and other words it's all related to the physiological makeup there is this transgender status but my whole point is that congress didn't address that and now you're asking us to try to fit this discussion classification into a statute that didn't to support it and we don't know who to be that compared to yours well your honor i think that what the supreme court says in harry's funeral will be very informative on whether discriminating against someone because they're transgender is discrimination on the base i think that's a good point yes but assuming that harris rules are way i think the question is how does the statutory prohibition on discrimination interact with the restroom regulation and now when congress wanted to create an exception in new how to do it so explicitly it said the prohibition on discrimination shall not apply to things like vocational schools or father daughter dances or fertility and sororities there is no statutory exception thing the prohibition on discrimination shall not apply to restrooms you have a regulation that just says you can provide separate restrooms but it doesn't override the prohibition on discrimination except just to clear the statute on its face says you can make separate treatment between the sexes for residential facilities for cyclists and have and they regulation extends to treat facilities as the bedrooms the bathrooms the locker rooms in the showers but i think that supports my argument because the have to it has to be analyzed under height scrutiny so tell me how you get there so pretty equal protection claims i think there's two different reasons why this discrimination is high and scrutiny  the st is that you know as the court and i may be in the th circuit and carnacki recognize discriminating against someone because they're transgender satisfies all the criteria the supreme court looks to when evaluating something for heightened scrutiny transgender people have a history of discrimination being transgender doesn't affect one's ability to contribute being transgender marks you out for different treatment and i think the history of the past four years shows that transgender people are politically powerless and vulnerable group in addition this is plainly discrimination based on gender and we've been focusing a lot on the meaning of sex under title nine and title seven when we are interpreting the th amendment the equal protection cla doesn't mention sex so this isn't the same sort of statutory interpretation analysis this is about discrimination based on gender which is the term the supreme court has used since after front the arrow so i think that it is inherently built on a gender classification and in addition to that it is structured in a way that singles out gavin for different treatment because everyone else you can either can construe it as different treatment from other boys because he doesn't conform to the school's expectations of who should be a boy despite the fact that virginia law recognizes him fully as a boy despite the fact that he uses now restrooms everywhere he goes including in this courthouse i think dispositive realities on the that everywhere gavin goes except for gloucester high school he is recognized the boy interacts with the world as a boy uses men's restrooms without any incident but when he walks through the doors of gloucester high school and only in gloucester high the factual thing what is just different you've got a set of someone different you treat it what's wrong with that and that has an appeal except not to the law because the law on the title nine deals with sex and when you're dealing with pricewaterhouse the question then becomes is how do you just limit the definition of sex just to physical characteristics and pricewaterhouse does not do that and neither does a title seven even allow for discrimination based upon sex but it doesn't require it and the supreme court has even said in itself that legislative intent you know it in terms of the original legislative intent is not is not a controlling weight break in these cases i mean that was true in an article case and in same sex type cases that that case so i think we're dealing with here is really a fundamental determination of what is a term sex mean in the context of title non and doesn't go beyond the construction that's in pricewaterhouse you know dealing with someone who like graham who in two thousand and twenty has the bail ability of home on therapy double mastectomy presents himself in a male as a male in every way diagnosed with a mental condition and it is probably a fact that someone going into a restroom to determine does he presents the physical characteristics the film school characteristics go beyond the possession of the genital genitalia which is just a reality if someone looks like a meal no one questions that person from going into a male's room if someone looks like a female no one does that unless it becomes apparent there's something that looks like it's not there so i'm you know in terms of the law and  nine it really comes down to how we look at the word sex and when we look at it in the context of pricewaterhouse the question becomes is it limited to physical characteristics or is it in a situation as prim here who has demonstrated do want to and you do want to do when you do it stacks you do want to import intent of congress when you think is ambiguous but the trouble of course is as we approach it was difficult for us as judges and those who look at these cases is how do we look at these cases and cast aside of the difference between the person who was in a meeting when they were having a meeting and who's yelling out is of sin it is to him and saying these are unreal things to a person who inherently you kind of feel those things but you would never say them and so i think that's kind of where we're going with this case and why this is a difficult case for us right now is because there is that tension between what we all have come to believe is what should happen and the modern reality of they've always been individuals who exhibit different gena gender identity tennis is outside of what biological may have been assigned to them and genitalia kennie well i think i think they say the policy doesn't prohibit him from doing so but you saw that i don't think my friends with willing to actually go that far i think the argument here is reminiscent of the argument that laws prohibiting  graham aleck did not to go to the women's bathroom the policy of gloucester school would be that that's the bathroom that he would go to because of his  given a classification which he disagreed with which was we're separating our bathrooms on the basis of physiological sex and there he he basically felt uncomfortable there and wanted to go to the boys and of course that's brought on this lawsuit because question is whether they have to let him go to the boys based on his choice based on  identification as opposed as the elegy your honor i think the assertion that the school says that he technically like you the girl's room to show the underlying irrationality of their policy the policy is supposed to separate separate student on physiological effect characteristics but under the board policy a transgender woman with typically female braff would be going to the men's restroom and under the board policy a transgender boy who might you know if he had hormone blockers in hormone therapy  could be a lot of back a little it would seem to me a lot more females would be complaining then males if it made if someone came in with a beard to use that women's restroom i'm not understanding and maybe i'll ask knowledge of whether someone is transgender or not a little more than that it's a little more than that because i mean this is an arbitrary act the example comes up and it's a current example we don't have here but how about and that happened up in connecticut recently in the and the transgender woman won the race and the question is this is the policy of separating physiologically and then how about the locker rooms where they take showers more than just this arbitrariness that you're climbing but you're on ari could agree that people are taking showers in the locker room every contact in which that they've actually been litigated it has shown that transgender students are using locker rooms without where the showers were open i played college sports we came afterwards and we all everybody saw everybody naked now that still is an existing situation you can hypothesize away the facts and say there's no criteria because everybody has a cubicle and everybody has a changing room but that that isn't always the case number one and that's not part of the policy the policy is based on the fact that there are some differences that make a difference and the competition for instance a sports is going to be a big debate because now the male who grew up to age fourteen as a male and now identif e mail wants to compete with female sports everybody knows that there's a problem there even the military academies have different standards for males and females in terms of physical pushups and plucks and all these other criteria so the locker room question this isn't as applied challenge to the rest room part of this policy we could we could down into the possibilities of other things that that's not before us it's not  now and you know while it would be interesting to devon to it and that's what i mean historically how do we divorce our minds from all the things that we can think of the conjure as to what we traditionally have come to accept is the way things should be done from the reality of modern science i mean even in the track instance if modern science went to the place that it would completely physical logically change a person to a female as though you've never been a male how would that hamil i don't know that's not one for dealing with an as applied challenge to the rest room part of this policy and if we don't last we can find there then then we're going to be in never never land discussing things that could plea i do want to say that we actually tried to develop fact about how the policy would apply to locker room and opposing counsel wouldn't let the witness answer the question because the counsel said this is just about restroom any questions about locker room and so i think we're not dealing with hypothetical fact we're taught equal protection depends on the facts on the ground in an individual case so how someone might be treated in a different situation under different fact i don't think i can control for me though well i think we've been through it mister that i would like to have a clarification that under his present situations already you maintain that i'm assuming you so even that and keep in mind he still has female genitalia but everything else looks like a man you know you would permit that so under the policy the answer is yes he would be allowed to use to to use the ladies room and the pricewaterhouse have any effect here correct there's no decision of the school board and we would argue the statute and the regulations is based on this binary concept there are men and there are women when it comes kitchen shaking hands and yes we spiritually we shake hands with you we appreciate the arguments they're very helpful and you both did a wonderful job and we wish you well i hope we return i made the situation where maybe this could be a permanent arrangement i personally very much miss being with council in the court room and coming down and greeting counsel and i hope at least that's my personal hope