English transcript

classification. And so to the extent that you

have an individual who says what is happening

in this law is that it is treating someone who

is transgender but who does not have, because

of the medical interventions and the things

that has have been done, who does not have the

same threat to physical competition and safety

and all of the reasons that the state puts forward.

That's actually a different class, says this

individual. So you're not treating the class

the same and you're not... how do you respond

to that?

In other words, the as-applied challenge essentially

redefines the class or one could think of it

as that. And so what's wrong with that, number

one, and how do you square that with our holdings

in Caban, which Lehr later described in this

way. In other words, Lehr suggested that Caban

was establishing that as-applied challenges

of this nature do exist. Certainly the... take

the second question first. Caban says nothing

about as-applied. I know that Lehr says later

this was an as-applied case. But simply reading

Caban, it does not say that. It simply applies

intermediate... No, I understand, but that...

those two cases were in juxtaposition with one

another and Lehr comes out the way it does distinguishing

Caban on the basis that it's an as-applied challenge

and we in Lehr have a facial challenge. And

it's basically the same facts. So if those...

if you're right, that... those two cases can't

come out the way they do. I don't think so,

Your Honor. Again, Lehr was actually briefed

as a standing argument of maybe you might be

able to argue that this law is overbroad, but

you individually are not in the overbroad part

and therefore you don't get to challenge it.

The Court didn't use standing language, like

express standing language in the opinion, but

that is the logic of the opinion. Mr. Hurst,

there's another way to think about the case

your friends on the other side posit and that

is that...