affected a bodily function of joseph marcy can i ask you just a question and it sounds like we might already be there but just to clarify so you're not relying on the disease prong of the definition that's correct nor the structure piece of the latter half of the disjunction this is only about whether the i v s services affected mr morris these function only function that is our argument here and yes now the government disagrees that there was such an effect gold sides do agree however that what we have here is a statute that's an inbuilt us and that the term should therefore be afforded their plain in ordinary meaning and in fact the government in it briefing has suggested that the parties in the court look to the dictionary to help guide the interpretation and the specific meaning of the term effect in this instance and when we do that we see that that to a fact means to produce an effect or an influence and effect in turn is defined as a state of accomplishment for a film and now that definition of a fact in caps leads perfectly the obvious impact that this procedure had on joseph morrissey it allowed him to accomplish biological reproduction of the otherwise would not have been able to accomplish in the absence of medical intervention there's salute no authority to support your interpretation of the statute i'm not aware of any  sure it's clear that her bodily function was affected well but your honor in that context they were using a surrogate so the embryo of the resulting embryo was not implanted into the female's body and not in that context now the other thing i would say your honor says that regardless of these reported decisions that are cited throughout the briefs we could look to analogous expenses that the iris regularly allows deductible to see that we don't have to have this physical alteration of a structure a function of the body that the government is arguing for here and this is one of the problems with the government's argument is that it's arbitrarily picking an unreasonably narrow definition of the term fact and elevating one form a a fact that for the for the taxpayer well you're right about happen i'm sorry your honor we would say that these other examples did affect the structure function they didn't alter it the way the government is saying and i'll give you two examples off the bat  hearing aids and eyeglasses are to dr bill expenses according to the i r s under publication five o two none of those expenses when when they want a patient puts on eye classes they are not physically altering their eyesight they're not physically altering their eyes it is affecting their eyesight in the exact same way that the idea of procedure here is affecting joe marcy's reproductive function so let me let me kind of test that a little bit because it seems to me that in in human beings anyway the reproductive process requires two parties right a male and a female the males role or function which is the statutory term here is to produce sufficient of sperm but your client was capable of doing that before and capable of doing that after so how is it that his reproductive function not the reproductive process but reproductive function has been altered well it hasn't been altered your honor that's the point is that the government were influenced or changed it has affected it has been affected in in accordance with the definitions that we're talking about here it hasn't been altered but it's been a reproduction has been accomplished his role is in the indispensable in the reproduction and conceiving of a child right but his role this is what i'm sort of getting at even if we were to acknowledge that the reproductive process might have been influenced or changed i don't think that his role or function within that reproductive process has been influenced or changed because his role or function within that reproductive process is to produce and discharge the sperm which he was capable of doing both before and after your honor no doubt i do think that we might be interpreted even the statutory term function a little differently than your honor because when we think about this and we think about what joe morrissey's functions were involved we think about it in the same context as respiration or digestion this is a bodily function we're not talking about the function of  heterosexual intercourse that you can breathe by yourself correct cannot reproduce by yourself reproduction is necessarily a two party thing each party has a role or a function correct your honor and in those instances both parties reproductive functions are affected both the male and female and we're not going to stand up here and dispute that that the sarah get in this case had her body affected certainly she did ok the extent that his body was affected he would be permitted to and in those instances it's true that the i r s disallowed the deduction but those cases are vitally clearly distinguishable from this one in both instances the male taxpayer had previously conceived children through heterosexual intercourse and the courts in both instances were clearly very influenced by that fact but how does that affect the statutory definition i don't know we would say it shouldn't we would disagree with the analysis employed by the courts in those in those cases because they implied that they employed a bu for test but so you're saying not that they're distinguishable but that they're wrong well there are they're both there are factually distinguishable in this court wouldn't have to declare those cases wrongly decided because there are factual distinguishing things to look at here but however the now assessed employed by both courts that there needs to be some sort of preexisting medical condition that but for that condition the expenses what had been incurred is it elevates one half of the statute that jackson use and you asked about earlier over the one that we're relying upon here and one other thing i do want to mention about legion of since we're on it and it and it comes from this court that in that case if you look at the appellate briefing the appellant brief the taxpayer did not devote a single sentence to this deduction because there were a host of the directions involved the government's brief dedicated one sentence to it and in this court's unpublished opinion it disposed of this issue saying that fails to explain what evidence rebuts the decision of the tax court so the only thing i would say to the court in addition on only geno is that this was not a heavily litigated issue and we would we would urge that it should not control what happens here so the underlying issue here is when we take a step back even from the statute and we think about this from a commonsense perspective morsi was the patient and that's why the deduction should be allowed the medical goal was his it wasn't the goal to become a biological parent that was the problem  we have shown that now and since since there is that significant focus on this notion of the third party surrogate i would point out to the court as well that third party organ donors are regularly allowable deductible expenses and  those instances there are significant invasive procedures performed on unrelated third parties not the taxpayer spouse or dependent of their bodily functions or that's the distinction who's your hon receiving the organ is not the same thing as receiving or you're saying it is no it is and i would be for the woman if she is a taxpayer the spouse no doubt the head they the spouse in that context would have her bodily function affected we don't dispute that and it's there and it's and it's clear but it seems strange to have what we have here directly but it seems strange even in that heterosexual context to to suggest that the male the husband in that instance somehow conceived the child without affecting his biological function of reproduction how is it possible it defies common sense if you're going to conceive naturally both the male and female have their bodies affected and it's critical and it's indispensable good well i think you know what i'm going to say or ask but i guess i'm just not sure that's right that that the males function which is the statutory term here is affected if he is capable of discharging the sperm and sufficient quantities both before and after i just don't think i see how his side of the equation if you will has been affected well because the mere discharge of that sperm is not going to result in reaper in reproduction and he needs medical intervention for that to happen well for the process to run its full course yes but i'm not sure about his role or function within that process yeah well from our perspective it's a simple as this without medical intervention mr morsi could not reproduce he's  homosexual male sexual orientation is an immutable trait he can no more control his sexual orientation than he can his racial background if he's ever going to reproduce it's through i d f the i r s has made the policy choice to  subsidize medically assisted reproduction and the only way for homosexual men like joseph morrissey to participate in that deduction your honors is through i b m it's i b m for bus for him so that they're treated the same  treated the same as the heterosexual males who use ag donors when surrogate you want to release i'm sorry i'm they treated the same no they're not because those heterosexual males have all their alternatives the impact of this of this standard united states in this appeal section two thirteen of the internal revenue code defines medical care to include amounts paid for the purpose of affecting any structure or function of the body and as this court is aware the body in that sentence means the body of the taxpayer the taxpayer spouse or the taxpayers dependent here the taxpayers body including the structures in the functionality of his reproductive system simply was not affected was not altered was not influence that are impacted in the way by the procedures performed on third party egg donors and third party surrogates and those third parties presumably they could maybe did take the d believe in this case mr morsi paid all the costs and so since they didn't pay their costs then they wouldn't take a deduction that if they had then certainly they would be able to go point that i want to be right now but you know these cost they include only medical costs or do they include sometimes just payment for doing that they clue both in the record doesn't make any difference it could make a difference your honor the statute does allow for some costs that are incidental to medical care assuming that the matter it that this set that medical care definition is matt so in that in the case of a female taxpayer who receives a donated egg which we would say is analogous to the organ donations that you ation and is deductible then some of those incidental costs in that in the private letter ruling that was cited were a lot another point that i want to be very clear on because i think there that there the waters have been muddied on this somewhat the ira supplies this statute even handedly it does not allow anyone regardless of sexual orientation regardless of gender even a it does for a female taxpayer so correct so here's what we would say the distinction in in between those two cases are in that in the case of a female taxpayer who receives an ag donated egg into their body that procedure very likely is treatment for a disease but even if not clearly affects the structure function of the body it's it's surgery performed on on the woman that's going to have to have a significant physiological impact on on that female taxpayers body that's not the case here where the only impact are that that occurs is on the bodies of third parties cases that were settled in the context of litigation it resulted in stipulated decisions and and there's just no no legal inference about the irises position can be drawn from those cases in fact the district courts specifically found in its opinion that the i r s has its of its position in this case is consistent with his position in other cases and it's consistent with his position that it outlines in a two thousand  what the irises position is based on a settlement that resulted in stipulated decision is inappropriate including the fact that obviously there are lots of reasons to settle unrelated to the merits also including the fact that we don't you know we're not we can't discuss and shouldn't be able to discuss you know what the government's position regarding settlement in this case is so there's really no basis for comparison and i want to discuss a couple points that that came up one is  conceded at the beginning of his argument we're talking only about the second prong of the of the medical care definition the structure or function of the body prong those those things in other cases like the the sewing pool case in the elevator case those are all under the disease prong of the of the statute and so even so i do want to test a bit sweep the seeming sweep of the statutory language because so if i mean if it's that any amount paid for the purpose of affecting any structure or function of the body is deductible i actually have genuine questions about why my gym membership is not deductible i think other people have those questions your honor i want to know why they've been resolved against i don't understand frankly under the plan language well i think i would concede your honor that under the plain language you've got a better argument there than then mr us does under this statute what what i think has happened that physiological impact but structure there's a change going on to a structure of your body there and that the only thing i would say on that is the irises has defined the term by keeping in mind the ordinary meaning of the term being defined so it's medical care and medical care has an ordinary meaning and usually simply you know a gym membership that's used just for you know general physical health i mean eating affects definition of a term to limit the scope of that definition you can sort of peek behind the ordinary meaning of the term being define i think i think that can be legitimate i also think in  although you know it goes a little bit there are there are also at least i'm not sure i believe there are also regulations on on those issues or at least some of those issues certainly there i your honor our our submission is that the court doesn't get the level of scrutiny for at least two reasons the first of all this is the standard when this court is set out when evaluating a facially neutral statute which morsi can see that this issue is one that the plaintiff has to be treated differently than similarly said situated persons and number two that the on it will application of the neutral statute was because of for the purpose of discriminating against the plaintiff on a on the protected basis and is that true even if you're on sort of the fundamental right side of the house and equal protection as opposed to the suspect class side of the house i think that there is some confusion in  opponents briefing on that the it's true that fundamental rights can come under equal protection or substantive due process what's not true is that you just sort of mush those analyses together they are so their separate ideas fund a fundamental rights claim is different than a claim that a statue of facially neutral statute violates that it will be technical and on fundamental rights with a really all this all mr morsi is relying on is is skinner which in skin to the supreme court to find a fundamental right not to be subjected to forced sterilization we would submit that it's simply not the case that that right the right not to be subject to force generalization entails a right to be able to well that compelling state interest would be the equal application of of the statute i think but i don't think we need to get there because that that there's the first of all people aren't being treated differently so that the first prong of the equal protection elsewhere you have to comport to somebody who similarly situated has been treated treated less well isn't isn't there and then second of all it's got to be under the equal protection clause we're not talking about it affects test civil rights statute we're talking about equal protection there's got to be an intent to discriminate the only even remotely plausible evidence of an intent to discriminate that mr morsi points to are some unfortunate statements by a single i r s agent who was not the decision maker in the case his his submission was reviewed by a supervisory agent who actually denied that inaction in the first instance and then he he took an administrative appeal and the administrative appeal went forward and and up held the denial of the deduction and so and there's just no evidence that those people who actually were making the decision at the higher level were motivated in any way by an intent to discriminate on the basis of sexual orientation to mr morris they also say that you might infer an intent to discriminate from the refusal here even to allow that or duction for what i'll call them the male side expenses here the fifteen hundred dollars of the male side expenses he does that only answered by judge wilson's earlier observation that that didn't cross the threshold anyway i think that is and i think there's also just no evidence that that that was even presented to the i r s for separate consideration as an initial matter certainly if it came out in the details to play sions that were that were made before the district court but but the government conceded in the district court that that expense that fifteen hundred dollars is allowable expressly conceded that in its stipulations before the district court so so no i don't think but just doesn't cross the seven point five percent threshold in any event and exactly  i think you're honest and i want to i want to talk about first about this this notion of the elevator swimming pools gym memberships let's first to deal with the hypothetical gym membership that this is distinguishable from from circumstances like that because this is an inherently medical procedure or doctors in white lab coats here highly sophisticated procedure involved that created human life regarding the elevator swimming pools and air conditioners those cases if the court reviews them and the court will will observe that the court in those cases never said that we're allowing this that the deduction under the disease prong court was silent on that and we would say this because it satisfies both definitions now this notion about disproportionate treatment and discriminatory purpose i want to go back to this threshold issue because we do think that this is significant circumstantial evidence a discriminatory purpose and here's why there's no doubt that those costs wouldn't have exceeded the threshold the problem the i r s has is that this is a two step analysis under section two thirteen one two we have qualified medical care if the answer is yes does it's a pass a threshold the i r s had to answer the first question in the affirmative for those expenses but it never bothered doing so so when everyone got to the stage of light of asking itself whether or not it's going to pass the threshold instead of just categorically denied all the expenses and you know i have to see here  is as mr morris is lawyer and wonder why now i also want to talk about the practical consequences not just a quick question about that yes you know i think i sort of understand what you're saying but this in the end is a suit on a tax deduction to which i guess at the end of the day you're not entitled right i mean what would be the relief even if you were right that there were some inference of discriminatory intent what would be the relief on in a suit for a tax deduction which you've conceded you're not entitled to your what we would want the court to do is to impute that the i r s is actions there to show that the denial of all the other expenses were motivated by that discriminatory purpose in awarding the complete deduction is what we would say so fundamentally what we were left with in this case or are what we would say are two truisms and frankly sometimes wondering why we're even at this stage and you took this long and the government continues to persist reproduction is a bodily function that's a truism i would think i don't think there's any more dispute the government disputed that at the district court seems to abandon it on appeal and we would say that there is no more fundamental way to impact one's reproductive function than having a child and biologically fathering a child and for those reasons we do believe that the court should reverse the district court