retroviral drug cocktail has just come in the market so there aren't any prisoners in the united states move yet had that medicine administered to them and yet science to this really gives you a shot at not dying from aids is it your position that because it hadn't been tried yet the state had no obligation to administer that medication only one of the the legal context asking you seem to think that specific means medical procedure by medical procedure i don't see that in the law and so what i'm trying to get at is  patently obvious that this drug was a factor that there was nothing about the present context that affected then you might have in that speech drug context one of those rare ok so you're saying that it's medical procedure by medical procedure in the first group of cases that if if you haven't been given antiretroviral drugs in the past then there's no right to do that if you if there hasn't  been you know a vaccine for some sort of you know for measles and you can't require that all your prisoners get vaccinated for measles but so you're basically on a procedure by procedure theory unless inmates so if it's not that under no circumstance no way no how is anybody that you know would otherwise be in need of sex reassignment surgery ever going to get it i thought your point was that on this of fact on that which you might win on a trial of course but you might lose not all your honor if you look at a required appendix a piece right with the district court found was that the only factual dispute that would be a trial was worried if we go to the more specific level judge talking about i'm worried about disputed issues in fact and i'm also worried about the what people are calling the blanket ban which whether that's about equal protection and whether it's not the eighth amendment i suppose it's an issue that she can never satisfy until she's seventy years old the one year living as a woman outside the prison context criterion because she lives in the prison so in her case as a practical matter it's a never know what our expert discussed was that in the current context we have no ability to it's a thirteen month delay i mean i'll give you breast cancer it develops very slowly prostate cancer develops very slowly so by disease you know you may say thirteen months is fine if you've been diagnosed with a prostate cancer problem in your prisoner but context in order to subject an official to personal game just liability we needed something on point and what was the case law that the financier had when they were considering this decision they had no supreme court on point on denial of sex or s qualified immunity is that it would be under the case law beyond debate that it's unconstitutional really at the time station with me it was not beyond debate where the first circuit and bank was completely wrong where there is there was no court of appeals constitutional rights what is important to note is that this is a deliberate indifference kicks so that the plaintiff would need to have evidence allegations that this was deliberate that the decision not to provide such reassignment surgery was not anyone even if arguably mistaken a process of a medical judgment but rather that contrary to the claims of medical judgment that this was spite or something else like that or she or there is absolutely nothing like what the defendant necessity of sex reassignment surgery it's actually impossible to have a deliberate indifference finding out against that factual backdrop first of all i think there's evidence in the record that suggests the medical community is medical judgment was exercised in this case we have the defendant's testimony that they just don't do sex reassignment surgery in the wisconsin department of corrections without building on this court's decision in roe v a layoff from two thousand and eleven before any of the events in the case took place that the absence of professional judgment can be shown with evidence that no minimally competent professional would have responded in the way that the defendants didn't hear the district court way that we can review anyway at this point correct you're right there is conflicting evidence in the record you would agree certainly i was born is a big fan she keeps in the defense repeat this about seventy five times in their brief social experiment and says that it cannot review the district court's determinations about whether any disputed fact exists and so this court takes it as it comes from the district court so you're saying that one of those facts is that sex reassignment surgery  in this case from damages liability because they cannot have been deliberate deliberately and different in different to something about which you're arguing there is a dispute of fact in the medical community especially on at the medical protocols that everybody except and applies universally across the country you've got somebody who questions that but you don't dispute that they are medically accepted and applied across the country and they c i disagree with your characterization of the case i think the facts show that what the defendants brought forth facts that they followed were in this report and that they actually cited medical judgment the pla the necessary move at this point i mean just just to be clear because you would lose for sure if ten doctors said it's a good idea and another five doctors said no it's a bad idea the defendants are entitled certainly not if they're not a risk of damages if they choose to go with the five doctors but i understood you to be saying that everything to just judge except that everybody the only responsible medical thing even though it's not done very often there is other evidence when defining qualified immunity and when framing the right issue we have to look at the appropriate treatment for the particular case and if you're there is sufficient facts in the record to suggest that the defendants never exercise medical judgment and here at this posture we don't have to resolve that factual dispute we just have to recognize as the district court did that there is a factual dispute about the exercise of medical judgment and you would agree if they did exercise medical judgment then campbell can't prevent all that's beginning at that's a loss on the merits they're entitled to exercise medical judgment against a backdrop received any obviously sex the same surgery or further interventions and so are all even if we accept that the defendant followed osbourne's report they they they did not provide what osborne said was honor there is reference at least in dr orioles expert report and there may be evidence elsewhere in the record that talks about the long term risk of hormone therapy also refer the court to the noise worthy of your beard decision from the northern district of california where that was had issue campbell here has some risk of blood clots she has a family history that's also documented in the oriel expert report so those t surgery and that statement that the district court made about the blanket ban that was just talking about the written policies not talking about the defendant's testimony for example we have dr greer or mr greer saying that we just don't do sex reassignment surgery that any complex surgery there is at least a reasonable inference from which a jury could find that that's not what they meant and when you add all those statements together i think it's pretty clear at least for the of going to trial and again under how do you use that goes to subjective intent and the defendants in their brief talked about how the district court allegedly converted what should be a subjective standard of deliberate indifferen done in beauty salons and so on you don't have to go to a doctor for it is that some evidence that their decision not to give s r s is motivated on hostility to s r s as opposed to medical consideration i'm not sure i entirely understand your honour's question just saying that they're not giving or electrolysis one standalone clane your opponents are opposing it by saying it's not medical so they'd have a label for it just says that these are not currently permitted i don't anticipate they will be available at separate appendix page three with my remaining time i want to reiterate that we are here in the middle of a case a case that has gone on for a long long and the practical reality is that no matter what prevails here we're going to go back to district court with no further discovery the trial of a single substantive claim which makes this case uni and comparable to scott the lacy in short there's not going to that no minimally competent medical professional professional would deny those her but the expert opinion campbell to do so certainly fulfill the no minimally competent professional standard even if they don't use that exact phrase so we have to accept that it's a fact right now obviously if there were trial it would be contestable and so if no minimally competent medical professional would say no then medical judgment relying on one which is the same expert that was relied upon in the first circuits and big decision returning often goes all over the country doing this is a matter of fact i'm not sure if that's a plus or minus but that's what business we are here in qualified immunity and we had the only court of