thank you your honors me please the court my name is joshua block and i represent the plaintiffs g g over the past fifteen years the vast majority of courts have recognized that discriminating against someone because they're transgender is a form of discrimination on the basis of sex under title nine that means it's perfectly fine for schools to have separate restrooms for boys and for girls but they have to let transgender boys and girls use those restrooms too and the only way that can happen is if they're allowed to use restrooms consistent with their gender identity just like every other student schools are allowed to do the school has said that she can use the girls room but it's really impossible to take that claim seriously it makes no sense whatsoever for the board to say it's going to protect student privacy by taking a transgender boy who's on to stop around and has facial hair and a male i d card from the state in place in the girls restroom the record shows that even before g transitioned girls objected to his presence in the restroom because they accurately perceived him to be a boy no one seriously thinks that having she used to grope her at the boy's object when he goes in the boy's restroom  honor is a meaningful fact and that privacy interests can certainly be taken into account but the right ways to do that and they're wrong ways to do that schools can and should have privacy protections for everyone like you're in a stall divider privacy strips on stalls and schools can and should have private restrooms for anyone to use if they want to but schools can't do is banish change gender students from the restrooms entirely because students object to their presence  extremely broad it covers all sex segregated facilities entirely congress recognized that the plain text would prohibit separate restrooms perceptor dormitories that's why they had a specific exception in the tax permitting separate dormitories so you well your honor i think they would use the restroom consistent with their gender identity which is whatever gender they live in currents within all aspects of their lives but but again your honor i think it's important to remember that the structure of title nine is that congress wanted the agency to make these distinctions there's no be a folk you exception in total nine like there is in title seven and that's because the sponsor said that would be too big a loophole and when people asked what about restrooms senator biden say oh don't worry restrooms aren't covered he said the agency can address those questions in its discretion so the entire statute is structured so that the agency draws these distinctions about what sports teams can women try out for what conditions do you need to have separate sex segregated restrooms and the courts don't weigh on their own oh is the volleyball team different than the football team that these are agency policy making questions and the agency is the democratically accountable branch and congress can overrule the agency and has done so in the past but even if no deference applies judge lewis decision in mercer versus duke i extremely important here he interpreted the plain text of a different exception that allowed schools to block women from trying out for all male contact sports and the school argue that means that context courts are exempt and judge l no you have to interpret that regulation narrowly and he said it allows women to be prohibited from trying out but once you're on that team the school can't discriminate against you ben and he said the baseline here is all forms disparate treatment are prohibited unless there's prerogative permission for it and what the regulation the two u e past says is it said you can have separate restrooms you can as have restrooms for one sex if their equipment to restrooms for another sex there are two things that doesn't address it doesn't say you can't sex segregated restrooms but they're not let change gender people use them they have to be able to use one of those restrooms and it didn't say where change gender person should go if their gender identity conflicts with their sexes signed up birth and the reality is that until recently let me ask you to relate this to a locker room situation i know a locker room is not an issue in this case but it's in the policy and it's in the regulation y male and they identified as a female they would go to the female locker room even though they have the gender tale young male is that your answer i've opened showers and you have open spaces that it's a much more exposed environment and not not at gloucester high school a cluster high school you have separate shower and changing areas for all the schools and that's actually part of the virginia department of schools guidelines for how lockers should be set up so i mean there it is important that we're talking about these policymaking questions that locker rooms are different than i when i went to school there different wind from when my parents went to school and these issues can and are addressed on the ground in different ways and it's hard limits is why the question is this sort of these are logically difficult questions sticking with the locker room hypothetical which race point a little more clearly you said that if the person had male genitalia but identified as a female that person should be the psychological and they both make up a person's sex or gender and in most people the person identifies with is an atomic whole arrangement but in some people that's not so so we have  disparity you picked in order to give your answer you pick the psychological identification of the person going into the women's locker room could the school instead of picking the psychological hadn't given its own interpretation not i didn't want to read the regulation well your honor i think on on its face the regulation doesn't answer that i think both of those options for us to elect in the psychological criterion as opposed to th know across the country transgender students use restrooms consistent with their i mean locker rooms consistent with their gender identity no one knows they're transgender in many circumstances a person who is a male to female transgender person often the male anatomy as deeply shameful they're not going to be that's not something that trans kids are going to want to do everything they have a sense of privacy to and i think you did try this dichotomy between e gender or one sex physical operads so to speak reproductive organs and so forth and identifies with the other that that divergence creates a problem now your answers say the school should be focusing on the psychological what the what the person identifies with as opposed to what person is physical and that to me is and i'm just wondering where gives you the basis to make that interpretation under the statute a well yeah well you know i'm i'm all i'm saying is that what someone's physical body is also very much affected by their their hormones and that there are there are that that is a real life physical component but on this what what gives me the right to say they should use gender gender identity instead sex is signed up birth you know what basis drafter saying that you know that's what the department of education says based on its expert agency status it's the one that is a policy making energy it's the democratically accountable branch and if anyone disagrees with the school disagrees with them they can follow a rule making petition congress can overrule them but that in the will i've got a rule right or mean that says a recipient may provide separate toilet locker room and shower facilities on the basis of sex but such facilities provided for students of one section of the comparable sex so providers of the other sex and that that's the regulation so the regulations as the school can make a decision based on sex and have separate celebes and that your argument i gather is that here we have sex is a complex word and includes both the physical and the psychological and when you have it different the question is what is the doesn't actually address it in the default is it's perfect it that that's the given nurse is in favor of the person in forcing title nine you need an affirmative exception the fact that the regulation is silent cuts against the school precedent saying it gets heightened scrutiny we don't disagree but it's also suspect class but i don't think you need to find an independent suspect class status all right thank you mr klock you have some time on wanted to hear more on the equal protection cline and preserve that for trial you're asking us to make a ruling before the district court analyzes that i guess based on it seems to me that trial judge based on both the fact that the title nine was dismissed and he got into the balancing of the hardships in deciding that there was a player could not carry the burden  of discretion standard clear error with respect to the facts and de novo on the wall so we have the if we talk first the argument primarily at the lower level was that we should win as a matter of law both on title mine and on equal protection but in getting into the balance of hardships what i understood the court to say and and this is what's on the record is that this plaintiff is a is a female who has a gender  dysphoria condition and identifies male and had significant distress well before anything having to do with restrooms ever came out and continued to have that distress and that there was an insufficient are the facts in support of the point of side of that amounted to three paragraphs and the psychologist report and the self serving declaration of the plaintiff about the concerns that he had on the other hand on the other side was the denial of the a limb and their injunction change the status quo did it i don't know that it change the status quo i think i think that the  well surely you must know it the young man gee the point of had been using the restroom and that's after this quote after they passed the resolution he was no longer allowed to use the red so the naleo of the people in their injunction change the status quo it did ok i don't quite understand that i thought this is just on the facts i thought that the school adopted a policy which is a challenge here yes and built three restrooms unisex bathroom restrooms correct and that the policy is the status quo they changed earlier they had him using the men's restroom and then because of complaints they conducted our meetings and adopted the policy which is at issue here in the policy said that the person using common restrooms will follow their biological makeup and anybody can use the unisex restroom or so and that's the challenge now that's the judge davis is right that the anti before the policy was he was using the bathroom but the policy was not prompted by the lawsuit was it that was changed in the lawsuit rather bright the policy existed before the lawsuit that the the the policy what occurred with the policy is this the policy is a statement of existing situation which is we have two sets of restrooms we have female restrooms to be used by people the female sex we have male russians are used by  male individuals of the male sex and then we have a third alternative that we have developed that is available for all students and that's one of the important facts in the cases it's not the policy itself doesn't say that but the point it has pled as a seven week said hugh the on this record the concerns that were raised and we go to your president and this court in terms of dealing with the right to bodily privacy that's the concern because the question is did the policy in any way discriminate and the answer is it did not and it did not because it put people in the same situation had always been and which was  parents of students about the their privacy interests of their students and that was the privacy interest was the primary concern of the school board in enforcing the existing policy i come back to the denial of the political injunction change the status quo in a way that actually ignores your client's effort to address the students who were concerned the poor address that concern by creating these private restrooms and so any of those students whose parents came to the board seeking redress now have access to the privacy that they claim they need and want to the first aspect i understand of course point first aspect of a permanent injunction is whether john i'm not suggesting definitively that that's an inconsistent or contradictory but but the judge wants to hear more of this case and yet by denying the plenary injunction the judge change the status quo ante the standard for when there's a at least there's a hint of an inconsistency i understand what the word your honour's suggesting and there i understand it inconsistency that you're that you're concerned about the question is whether or not the point is likely to pursue succeed most issues it would actually claim since he ruled on the title mind clean our position was and is that all students are treated the same there are two choices restrooms associated with their sex and single star restrooms transgender is not a suspect class none of the case law that plaintiffs rely on from the pricewaterhouse area deals with a situation similar to this and none of the all that case deals with is nonconforming behavior and then some type of employment action primarily undertaken against someone who is a male who wasn't acting in a male manner and therefore was was punished so the likelihood of success on the on equal protection clause is not strong and the question is whether the gloucester county school board policy providing separate rushed rooms plus single store restrooms for all students serves a governmental interest in protecting the safety and privacy of the students if we get past our initial point which is there never was any discrimination and there never was any discrimination because the same policy was in existence from the beginning which is always in the boardroom girls in the girls room and here's a third option it would be discrimination to say gee you can't go in the girl's room that would be consistent with the pricewaterhouse set of facts you're to mask when you can't go into girls room that would have been something that we couldn't do so the notion on the other side of the case that you've remained you've kept that a lot i don't think the school board had a choice i think you have to allow this individual to use the girls room if he so chooses so your argument is rooted in this notion that some sex equals male and female of course that's your position but this is two thousand and sixteen this is two thousand and sixteen yes sir and so the question is as just suggested what is the meaning of sats in the year two thousand and sixteen our position is that the meaning of sex is the based on the person's genitalia based on their natal sex based on what they were born with could it change you have expert evidence in the record no expert evidence in the record the judge didn't even require you to come forward with anything where we you've seen the record the record is pretty sparse on these points and again you're going to be able to find a reputable psychologist or neuroscientists or psych psych psychiatry has to support your position that in two thousand and sixteen all sex is is biology i don't i don't regard i do i haven't looked into that because we're nowhere near that in this case i don't think it matters i think a reason it doesn't matter is the question is whether or not this policy as implemented violates title nine or violates obviously we would argue that it is not entitled to deference at the words sex is not ambiguous i might mean what it means yes or sanction yes i think that we still have a chance to win the case under that even if you give it deference on the basis i don't i don't think i know and i don't and the progeny of pricewaterhouse i thought we were well past the notion that sex terms of discrimination law means no more and no less than  well again i thought we were concerned about the stigmatising affects of stereotypical approaches to gender roles and if you talk about gender roles it's impossible to talk about not talk about gender identity isn't it yes and the point is though that those cases in the pricewaterhouse itself and the cases that follow it what they what you're dealing with is a situation where say two masculine female to famine and male and you're dealing with you cannot discriminate on that and yes that is the law there's no question about that but that's not this situation our situation here is it is a school board with children from k through twelve age six to age eighteen they have a policy of allowing girls in the girls room and boys in the boys room and in their wisdom provide a third option for anyone who is uncomfortable going to either spot and the question is does that violate the equal protection clause or does that violate i don't mind it does not and that's as our bear our most significant argument is that very simply that that point and i don't think if you start getting into these complicated where are we today in two thousand and sixteen i think that's some other case that somewhere down the road the question is today on these facts with this scenario with the concerns are those pricewaterhouse those are adults in the workplace that's a different scenario this is children in a school system and the right of privacy of children in the school system is much more significant than it would be for the bathroom in this courtroom for instance but and that matters and if so this school system the question is whether or not what they decided to do violate either i don't mind or equal protection argument is very simply that did not and that's that's our best argument that's our main point coming here before this court today i guess my concern is you may be right but again i'm sort of animating legal action and play here but down here on the ground the way people were living with each other and the way the school was being operated without any complaints a good while at least and i'm not sure there were any complaints by the students to the school officials that this came from the parents the record is that at the school there was no there were no incidents there were no everyone else everything remained the same in the sense of there was a boys room in the girls room and you had those two options and gigi and everyone else then received the third option that's available i think the courts argument would be stronger if the school had not given the third option because i think that you would be then saying you have to go back you have to go to the girl's room and they're not saying you have to use and you can go to the girl's room but you also have this other option so i think for that reason it remained what remained in place was not really a substantial change from the original situation but there's no stigmatizing impact on anyone but eugene in using what you refer to as the third option the the third option of if suppose people were pro transgender use of the boys room and that was the policy and people who started using that then there might be a stigmatizing interest oh you're against the french gender people you're  you're somebody who's who's uncomfortable with that i mean that's i mean that's could be a potentially stigmatizing interest but again we're you know be on the record talking about those types of things and our major point is that the question is whether or in my understanding of what the position would be read the his work file logic he shall be limited to corresponding biological genders is what is what it says and i would say if you change your biological sex then you would be allowed to use the restroom your new biological sex but reading this that would seem to suggest to me now my understanding is that that surgery really no expert believe me but the surgery involves a series of surgery it's not a surgery it's a series of surgery so when does one become a biological i don't know whatever i don't know the answer that question and so how would this policy apply to someone who was in the course of that surgical therapy to i don't know i don't know you don't i don't i don't know how  would be as i would be speculating on what the school board how they would interpret their part they didn't discuss not to mind if it takes you so not part of the regular expert input into the there's nothing in the record about expert input there is  honor two important points i want to clear up one is the notion that boys who are objecting to g s presence we have no idea what these complaints were they've never been shown to us describe to us or to the court and from looking at the school board meetings the vast majority of complaints are about people worried that in the hypothetical future some boy could pretend to be a girl and go into the lockers locker rooms so the notion that these complaints were coming from boys who are uncomfortable with g is not it's certainly not in evidence on the piano motion for one thing a second point i wanted to make is in this goes to this issue of what the school board knew and some of these harder line trying questions this was something being handled by administrators on the ground who didn't see a problem and what the school board did is they imposed a categorical rule saying regardless of the specific facts regardless of the situation on the ground school administrators never have the power to do anything but with the school board policy says so this wasn't this wasn't like a step by step incremental approach gee didn't come to the school board saying i want you to pass a new policy saying all change gender kids should use the restrooms consistent with their gender identity no exceptions you know the school board withdraw which is first thing because today the best learning tells us that you know the principal is the c e o and everything you read these days is what we need in public education are strong principles and this principle was doing this principal had to situation and control the school operating from all that appears in the record in a really great way and then some kind of top down imposition comes along and disrupts what the principal was managing in a very it's not a disruption issue it is solely a privacy issue so there wasn't actually some crisis on the ground there wasn't a mass walkout from the boys restrooms you know stuff was working until the school board came involved and your honor i was so talked about these you know the school providing these extra privacy options they announce that six days before the second school board meeting and obviously haven't been able to depose anyone but my understanding is that they were hoping that would head off the problem but then sixty days later after you know parent after parent or random community person after in a community person threaten to vote the board out of office you know what had previously been  were even installed and they were in oh if you look at the board meetings it was never about gee it was always about this will open the door to some future sexual predator could come in  their hypothetical concerns that we know from the administrators amicus brief from school districts across the country from l a to kentucky never actually materialise and no one is saying that there's plenty of room for policies that ask for some sort of confirmation that this is really someone sincerely held gender identity she had a carrier letter from his doctor confirming this no one is suggesting a top down solution the other way but in the department of education can always obviously issue guidance too but what the district court ruled here is that the regulations that the regulations mean that she automatically loses and we're not saying the regulations mean he automatically wins we're saying title nine means you can't be treated differently on the basis of sex and there's not an exception in the regulations that authorizes it but certainly there's room for additional guidance and plenty of model policies for school boards to look at as well very briefly this issue of adults versus schools title nine is broader than title seven jackson versus birmingham says that in schools have a special it's also important for transgender students to you know we know from you know plyler that a denial of unequal education has lifelong consequences that can be far worse than denial of a job so the importance of education cuts in our benefit not theirs  if your honour's don't have any further questions that's all i have for today thank you