apartment of children and famil good morning thank you your honor i may please the court when miss hood filed her complaint in this case five years ago she asked for a gender dysphoria policy that conform to professional standards so that she could receive dysphoria that has been her consistent request including in her response to the two thousand and sixteen show cause order but no court has ever ruled on the merits of her claim that defendants have failed to provide a gender dysphoria policy that conforms to the professional medical standard my concern about it is that at the time she filed the complaint there was no policy that's correct and  that the department has sent adopted one right yes and it does not appear to me that the complaint attacks that policy and that and that  she would she made to pleading that would do that that would would challenge the policy as unconstitutional explain in what manner i is but it seems to be the sort of thing that would require a new complaint because the facts have changed i disagree with that your honor in a couple of different ways first of all in her complain transsexual and gender nonconforming people by the defendants in conjunction with the world professional association for transgender health standards of care seventh version i recognize that but what is missing is any description whatsoever of how the policy that has since been adopted fails to conform to that and i think in her response to the district court show cause order she points out the ways in which it does not conform to those standards and does not meet the reasonable professional judgment standard in particular the policy completely bars any sort of real life experiences so she cannot dress as a woman she cannot use a woman's name and she cannot identify as a woman and that's completely different from the world professional association for transgender health standards in addition it does not permit counseling until she reaches phase two of her treatment for her sexual disorder and those two things are completely unconnected is another i'm sorry but is there any reason why we shouldn't with orders to allow the district court or to have the district court allow the opportunity for an amendment i think that that would make sense certainly the district court has a very long record with this case it's  pending for five years and so i think allowing her to put the allegations that are in her response to the show cause order into an amended complaint would make sense and as we argued with instruction i mean whether it was it is a new civil action or whether it's an opportunity to amend the current complaint it seems to me that we don't have a dispute about the new policy  framed by the plate ngs if the response to the motion to show cause is read as a motion to amend the complaint then i think there are the factual allegations even then it would be a motion for leave to a file an amended complaint and as you know that would need to be that motion would need to be accompanied by a proposed amended complaint which we don't have i mean that's that's really doing a lot of construing that's true your honor but if she was pro se at the point that she was responding to this show cause order and the other thing is that she was in this position because f c c c didn't pass this policy until three weeks before trial after the case had dragged on for five years three weeks before trial they file a motion for summary judgment saying oh by the way we passed a policy  and so her response to that her response to the motion to show cause was was it was hastily done because it had to be i mean there was a trial date set and so to the extent that it is not as cleanly polished as it should have been not only should this court take into account her pros they status but that essentially falls on the defendants because they were the ones who waited until three weeks before trial to all  sudden come up with this new policy and i think that's what really makes this case so similar to passion which involved the f c c c also and coming in passing a new policy and then the district court that had had the peshitta case for all of those years didn't rule on the constitutionality of the new policy and so here mr hood had put forth in her response to the motion to show cause the same issues that the path in their amicus brief point out has problems with the new policy that f passed and as i mentioned before there is the the the policy says no real life experiences and it doesn't allow for reasonable professional medical judgments and so it's not even clear who who adopted this policy i mean it's an f c c c policy but it's not clear that any young bird professional judgment was ever exercised because the defendants never said who passed this policy who decided that this policy was medically appropriate and young burger requires reasonable professional judgment footnote thirty by people who are experts in the field and there's nothing in this record to indicate that the that the policy that ended up getting passed by f c c c was the exercise of reasonable medical judgment exercised by experts in the field of gender d show cause as a motion to amend but if we become remand with instructions to to allow amendment mean is that is that any difference to you knowing it do you care one way or the other  if if it gets back with the ability to amend no i think either way would would work for us but i think it has to go back to the district  court your point judge pryor i think the one thing that's clear from what she asked for in her complaint is that this this case was not moot at the point when it was dismissed complain about the absence of a policy certainly was yes but her comments what her complaint was there wasn't a policy at the time she complained about the absence of one they now have one and it seems to me that that yes that the no policy at all but she would didn't just ask for a policy she asked for a cup policy that complied with the constitution and that surely we don't have any pleading th attacks the new policy and explains how it fails to do that i think the response to the show cause order does your honor because she points out the ways in which it does not comply with the constitutional standard  and all the way through her pleading she talks about the young burke standard and she talks about the fact that nobody is providing though the reasonable professional judgment and she says that in her complaint as well i think about it though is that  it's really either way so if the original complaint whether we construed this as a motion for leave to man i'm concerned about how you know what the burden we put on district courts and  and and having to make that kind of construction of pro se pleadings i don't know i'm not sure what the real danger is here if she were to have to file a new complaint with and in a new civil action it's going to be the same result right no and here's why first of all this complaint had been this case had been going on for five years there was a history to this case and the district court had obviously spent a lot of time with this case working on it and so recreating all of that from scratch this is now a district court that understands all of these issues the judge magnusson only dealt with the fine i mean judge magnusson was the one who dismissed it as moot but judge still had this case for a very long time very well be clear to me that her response to the order to show cause could would fairly alert a district judge oh this should be construed a motion for leave to amend a complaint under any of our precedents your honor i think the fact that she was first of all she could have filed a motion for leave to amend because she hadn't amended her complaint before but but of more importance i think this case just falls squarely within passion because it was it's procedurally very very very similar it's a district court that had a long record with a particular case f c c c comes in after the plaintiff has complained about the original policy as violating her first amendment rights or his first me apologized and then at c c c passes a new policy and the district court ruled on the constitutionality of the old policy can i ask a question about that didn't she ask for more in her relief and simply a new policy i mean i thought she also asked for treatment for herself and a declaration that she would have been out had they allowed her treatment yet as a bunch of other things in are those things moot as a result of the enactment of the policy no none of those are moot and so there's so she asked for treatment for herself in two thousand and fifteen the district court essentially said that she had alleged deficient facts that she had gender dysphoria that she had been completely denied treatment and that there was deliberate indifference from that denial of treatment the only reason the district court denied relief was because it mistakenly read her complaint to be asking only for hormonal treatment and the district court said that ms hood was not entitled to treatment of her choice but she as asked for as you point out many other things in her complaint including declaratory relief and the triad of treatment real life experiences and all of the other forms that are set forth in the path standard no first amendment claim lost in the most recent session of the term of this records that i think that's accurate and i was just wondering about the packing ham versus north carolina case and whether you thought that had any impact on on misfit's case it was the sex offender internet case and so there was a first amendment close not this first amendment climb but yes and i think in particular the fact that this is somebody who has been civilly committed so she is not she's not a prisoner and the fact that this is such expressive such expressive speech by her allowing her to identify herself as who she is i think is brings this case within packing him thank you it does seem to me that if we thought the district court was right about but the district court did not or when it failed to construe them her response to the motion to show cause as a motion to amend the district court at least for  dismissing it with prejudice yes i would be a jurisdictional problem and that would not be a dismissal with prejudice is that right that's exactly right and so you had asked earlier whether she could just come in and file another complaint i would only only if it's without prejudice that's correct thank you mr wils good morning may it please the court trial court's decision in this case was properly decided and the reason why it was properly decided is it was because hood's complaint sought constitutional liability not against the medical professionals who actually made treatment and diagnostic decisions for good but rather high level government officials who do neither the crime and we guard to ask you a question about your read brief you  say you talk about miss hood's argument that the government didn't meet its burden of articulating in supporting a legitimate reason for not allowing the first amendment not that's certainly true so i made that argument the context of when the court made that decision was that the motion to dismiss phase so the court was actually looking at the record and what was in the four corners other record and so for the defendants at the time to proffer argument to move forth a burden that there was a legitimate governmental reason as to the first amendment policy that was not in existence in the record at all but the trial court probably soon there was so my argument was not to say that there is not a requirement on the government to have you know requirements and you know they are charged with the care of hood so that's not to go in that direction at all i is have you had an opportunity in the record to articulate florida's governmental interest and not allow this had to go by erica or so and so the record is it's  fairly well developed with regard to for the trial court to make those rulings that and used in the case to walk through the reasons why there was a reasonable rational legitimate government reason  where where did you state that well it was i gree your honor wasn't well developed in our motion to dismiss but i believe that the record and the arguments rough for it at the time does allow the  where we are in the record is that i i can only tell you that it probably be in the motion to dismiss your honor and it was just a short paragraph i can't cite to this specific area right now on that but i do believe that the record does contain everything before the court so as it would allow it to just to to look at that issue and to be able to render an opinion as it properly did because it made in to reach that argument the court actually had to construe hood's argument first amendment argument that is because it wasn't actually stated and so the court went and inferred that all of his or all the hoods expressions as far as name clothing hygiene are feminine products those are all inferred by the court as to stating expression under the first men and this is the florida civil commitment center for how many people are healthier right now it's it can house up to sixty eight hundred your honor and it did it runs average around four fifty to five hundred and miss has been there all be in not uninterrupted since contract with the the civil commitment center requires housing for women and is that right or do you know or i do know that answer you know i can elaborate in that florida doesn't have and as we know the civil commitment senate we're talking about is an all male facility and so as regards to females that fall within the sexually violent predator program designation there is an alternate or another place in which females would be housed and treatment would be provided and that place exists yes your honor is actually the south florida hospital in the miami area and that's why you don't know whether any women have been committed there through this program as there have been women committed throughout romero is that right ok but is that in the record no it's not in your yard ok so i mean if i understand your argument it's that the claims there are a set of claims that are allege against two state defendants two official defendants but no allegation of how those individuals high ranking officials personally participated in any violation against  hood and that in so far as the new policy is concerned the complaint about the absence of a policy is moot because of the existence of that new policy a new complaint would have to be filed  to challenge that new policy come out right yes your i'd certainly agree with that but but the district court was wrong was it not to dismiss the claim about the isn't it i grieve that your honor yes not an adjudication on the merits i agree that you wanted to but leading into the the trial bill issue that was designated as a bench trial only on the issue of the formulat issue if you're right that that triable issue that remaining tribal issue is moot at the claim is moot then you don't dismiss that with prejudice right and i would agree with that your honor which is what the district court did and the court definitely did but in light of that to the court was looking at and as this court has held like in low center that there was no reason to allow an amendment because it would have been futile  why couldn't there be an amendment that wouldn't be futile it really goes to the crux of the hood naming the different the government officials as the defendants because the government if if the claim is remained we're still left with two high level government officials who are you believe they have and as you can hood's own words when he filed his pretrial narrative good actually came out and said the only reason that the complaint was filed against former secretary wilkens and former minist was because they occupied these positions at the time it's good is not trying to bring a direct individual claim against those two gentlemen or their position in the trial court correctly found that to be true and that the complaint was certainly forward of any individual actions in the act any factual allegations directed either to so that's why the court went through its well in so far though as the department now has a policy and if good were to challenge that policy as violating good's constitutional rights would or would not be bringing official capacity claims against  high ranking officials of the department who are responsible for that policy and actually you could end up with with that at that juncture your honor but i don't know why that's futile then well i in this case with the court allowed the case to be remanded based on the facts of the case and based on what you've pointed out is that this policy hasn't then it can work in allowed to be remanded i don't understand what you're saying i'm sorry liable for want of a policy that's not necessary created for them it's created by an independent corporate entity who runs the florida civil commitment center this policy seal twenty seven it's clearly  f misheard wants to get this issue before a court who should see well you can develop faxed to easily find good could sue the partment children's families i'm not going to deny that the department children family certainly has legal oversight of the operation of florida still a commitment center but we recognize that civil commitment center is operated in and run by an independent corporate entity and then in a minute corporate entity has the expertise the medical expertise to psychosis to where you might and you might see the center as a relief defended at least but ultimately the decision to adopt the policy is not the senator's decision right that's missing correct you know the center predators so does the department of children and families then what if the department of children and families completely disagrees with the policy is there no recourse that it has must just live with that policy and i've mentioned to be quite a large and that that's this that wasn't raised on the below but but that statute provides specific authority for the adoption of rules and that specific authority provided by the florida legislation is directed at the department of children's with regard to the formation policies of the multi disciplinary team and the multidisciplinary team actually goes to when you have the process of a person being released from prison and they have timelines to determine whether or not you know they're safe for society and in this case good was deemed to be a sexually violent predator so that's the multi disciplinary team that's being referred to there but the actual day to day operations of florida's civil commitment center is run by an unpaid an operator so i'm not saying that you can run into a set of factual issues that department would disagree and i don't know all too many what that outcome would be but the point being with with h  they're speculative at this point so just to be clear the well if there is a disagreement between the civic authorities yes and d c s d c not clear i would have to say the d c if would have to defer medical treatment related decisions that are made by policies of florida's core cork to them what about security decisions so the security is run by the independent operators well same for that i'm talking same for that the state of for would have to defer so the civil commitment and i would have to agree with that  because the corps corps they do run and you know the security or the security related issues so but i'm not saying that's an easy decision well to me that's that's right i think where you would have to end up and with the department then not the right standard is a what the court did in its motion to dismiss it first it it did overlay its deliberate indifference at the moment standard with the younger fourteenth standard so the court talked about the application the younger and so doing so it recognized as this court had put out in lavender the contours are controlled so when the court went through that malice this down through the respondents theory or recognizing that the individual there with their lack individual allegations let me just get a more direct way i mean because it is a civil detain a not a prisoner it's not a deliberate and different standard is that i mean it we have to look at the professional judgment behind the policies but because of her status right so but there in this case there were no individual factual allegations to determine a professional judgment and writ large i mean yes yes ok no i would disagree with that so so the court was left with the issue of the eighth amendment and the fourteenth amendment overlay and it looked at the that are simply committed and so the court went through that respondent superior analysis and ultimately found that who could fail to raise factual allegations that there was an awareness are subjected to awareness on the part of that there was a serious risk of harm to it and the court went further to look into the record to say even if that's you know up a lack of policy in and of itself as unnecessary you know show that there is a risk a substantial harm so that's how the court got to that and analyze that part but it overlay that entire part though with the fourteenth amendment discussion so that it would go ahead and move and actually dress young bergan with the recognition that civil committees do have you know more considerate treatment mr wilson thank you thank you don thank you d c i has custody of ms hood they have the responsibility for ensuring that she gets treatment for serious medical conditions and to the extent that the florida civil commitment center adopt a policy that does not comply with the constitution and b c f approves that policy is the one that has the obligation the constitutional obligation to ensure that she gets the treatment so d c f was the proper defendants here and the district court in its two thousand and fifteen opinion concluded that there was a serious medical need here or that she had alleged sufficient facts for that and that there was that that the defendant's here by providing absolutely no treatment at all to ms hood had violated her constitutional rights as as i mentioned the that the one error was in saying that she had not asked for any relief except treatment of her choice and in her complaint she asked for many other forms of relief returning to the policy that now is in place we would ask this court to remain and for the district court to consider the constitutionality of that new policy and letting ms hood her complaint to challenge the constitutionality of a c c c's hastily adopted policy that she had not had the chance to challenge except in her response to the motion to show cause or the order to show cau thank you thank you