Brandt Files #11: What They Didn’t Argue

Finding meaning in the silences of America’s first gender medicine trial

This post is part of the Brandt Files, a series on the lawsuit in which “trans kids” and their doctors successfully challenged Arkansas’ ban on youth gender medicalization. All the previous entries are linked here.

Brandt trial documents are available on the ACLU’s website. Karasic’s testimony is in Volume 1 of the transcripts, Turban’s is in Volume 2, Levine’s is in Volume 5, and Hruz’s is in Volume 8.

In mid-2022, I decided to steelman the case for trans rights. I’d been indulging in terf-lite content like the podcast Blocked and Reported and J.K. Rowling’s Twitter feed for a few years by then, and I felt that it was time to get serious about understanding the other side.

So I started trawling the internet for reading recommendations. I wanted books that argued for replacing sex with gender identity in law, explained why transwomen were more like women than men, and set forth objective facts showing gender identity theory was rational and should be put into action. But unlike gender-critical people who were always begging everyone to read works of journalism like Trans, Material Girls, Galileo’s Middle Finger, The Abolition of Sex, and Irreversible Damage, “pro-trans” types didn’t refer to much beyond personal testimonials and doofy little articles that smacked of propaganda. (A third category might have been queer theory tracts, but I knew to scroll past those.)

I realized that lacking a public thesis served the trans agenda. When an argument got debunked or proved unpopular, advocates for trans rights could say the movement wasn’t built on that argument–because it wasn’t built on any argument. When I described one of its claims–any of its claims–to friends who supported “trans rights,” they accused me of cherry-picking ridiculous remarks from unrepresentative speakers. Cotton ceiling isn’t canon.

That era of strategic ambiguity is now over.

In the fall of 2022, trans rights proponents—gender doctors, in particular—made their case to end the statewide ban on “gender-affirming care” in a federal courthouse in Little Rock, Arkansas. They are now on record explaining what they believe and why their ideas should be put into action—specifically, by medicalizing kids who say they’re trans and/or have been diagnosed with gender dysphoria. Testimony was provided under oath by witnesses with sterling credentials whom the ACLU’s LGBTQ Project selected and prepped. Trans rights advocates can’t say their arguments were unauthorized. Brandt is canon.

Nor can the trans rights activists claim Brandt didn’t showcase their best evidence or the best possible formulation of their arguments. The judge let their witnesses testify to whatever they wanted, and they were represented by elite lawyers from Sullivan & Cromwell and the ACLU. Why didn’t they present any data showing medicalization prevented suicide? The answer is not “ineffective assistance of counsel.”

If you’ve read the Brandt Files, then you understand the best case for expanding trans rights. I’ve tried to trap the arguments under a metal cage so you can circle them, realize they are frail and malformed, and then, when encountering their ilk in the wild, fearlessly stomp them to death.

There’s one aspect of the case that I haven’t covered yet: the arguments that the parties didn’t make. I’ll address those now.

What the Plaintiffs Didn’t Argue

First:, the concept of “passing” as the opposite sex. The plaintiffs never argued that trans kids should be permitted to medicalize young because it would help them disguise their sex later in life. (Other advocates for youth transition have argued that, in particular the Dutch researchers who pioneered the practice. Sasha Ayad and Stella O’Malley conducted a fascinating interview with some of them on Gender: A Wider Lens.) Instead, they argued that trans kids needed to medicalize young for the sake of their short-term mental health.

I imagine the plaintiffs eschewed talk of passing because no trans person can pass in all settings, and some trans people can’t pass in any settings. So the plaintiffs would wind up arguing that passing is important enough to justify striking down a law, but failing to pass is an OK way to live too. Trans men who are 5-foot-9 need the right to pass, but 5-foot-1 trans men should medicalize too_, even though they can’t pass. Being misgendered at the grocery store is devastating, but it feels fine to have intimate relationships with people who know your sex. (To be fair, one expert for the plaintiffs testified that “not every patient wants to orgasm,” so perhaps they wouldn’t argue that sex is fine for trans people.) The topic of passing is fundamentally gritty and down to earth, where contradictions are easy to spot. The plaintiffs were better off keeping the testimony up in the clouds, floating on abstract concepts like “gender identity” and “alignment[1] .”

Second, the plaintiffs did not argue that the purpose of medicalization was to help trans patients achieve "gender euphoria" or “embodiment goals,” even though the latter is a popular construction among gender doctors, including one of the plaintiffs’ expert witnesses. I think they avoided that because it would make the procedures sound like a want rather than a need. This would undermine their argument that kids couldn’t wait until age 18. It would also foul up their “medical” framing, because Americans tend to think of medical care only in terms of treating illness rather than promoting health.

Third, the plaintiffs’ experts and lawyers didn’t claim that gender identity had to do with being masculine or feminine. Rather, it was entirely about saying the words “I am female” or “I am male” (don’t get me started about nonbinary erasure). But the trans kids’ parents testified at length about their children’s sex-atypical interests and style. So the plaintiffs had it both ways: in their briefs, they adhered to a pure “say the words” theory of trans identity, which headed off any charges that they were espousing gender stereotypes. But they put out an alternative story through the mouths of their parent witnesses, which played to the common sense notion that trans boys should be masculine and trans girls, feminine.

Finally, the plaintiffs did not argue that some kids need to medicalize in order to become more sexually attractive to themselves. In fact, they didn’t mention auto-gynephilia at all.

(Yes, I’m messing with you.)

What Arkansas Didn’t Argue

There are three points Arkansas didn’t establish that I hope other states could make in their own battles to defend youth gender medicalization bans.

First, the states should knock the rainbow halo off the gender doctors’ heads. Their industry preys on gay kids. As I detailed in Brandt File #1, Arkansas ceded territory that rightfully belonged to it, and failed to attack certain important claims, because it wasn’t attuned to the homophobia and sneaky gay-trans conflations of the plaintiffs’ case. Arkansas also failed to introduce the judge to a gay detransitioner. Since the Brandt trial, gender-critical gay voices have grown louder and more gay detransitioners have stepped forward. I hope we see more gayness in the courtroom soon.

Second, the states need to demonstrate the havoc that hormone therapy can wreak on a body. It’s a crucial point; if it weren’t for medical harms and irreversible changes, a lot of liberals like me would be open to the idea of kids experimenting. But Arkansas’ expert endocrinologist, Paul Hruz, didn’t drive home the dangers. His testimony was cautious and mild.

This may have reflected his natural temperament. It’s also worth noting that Hruz has long worked in the endocrinology department at Washington University in St. Louis, which was running its own pediatric gender center at the time of trial (it gained notoriety a few months later when LGBT CC’s Jamie Reed blew the whistle on it, and has since shut down). This suggests Hruz knows a bunch of youth gender clinicians. Finally, Hruz has administered puberty blockers himself to treat precocious puberty. Putting it all together, Hruz did not make a strong agent for the message that puberty blockers and high doses of cross-sex hormones are treacherous. I hope other states are able to recruit expert witnesses to testify about IQ drops, chafing from clitoral growth, prolapsed uteruses, painfully withered vaginas, brain fog, sexual dysfunction, liver damage, obesity, and more.

Third, states should grill gender doctors on genital surgery. The Arkansas statute covered every form of medicalization, and the plaintiffs challenged it wholesale. But at trial the plaintiffs only fought for hormone therapy and mastectomies—not penectomies, castration, orchiectomies, vaginoplasties, phalloplasties, or hysterectomies, which they claimed were rarely performed on minors. Arkansas didn’t pressure them on that point. This let the plaintiffs avoid difficult questions.

If the plaintiffs didn’t want to talk about genital surgeries then they should have stipulated to let that part of the ban stand. In the absence of such a stipulation, Arkansas should have asked all the plaintiffs’ expert witnesses whether they supported genital surgeries for minors. If not, why not? The kids were all carefully screened before they got the first shot of cross-sex hormones, weren’t they? Having the wrong genitals causes distress, doesn’t it? And we can’t let kids endure distress, can we? If the witnesses said they did support youth “bottom surgery,” then they should have had to answer pointed, excruciatingly-worded questions about why.

What the Judge Didn’t Buy

If you're curious about what the least persuasive claim in the gender doctors' case is, I have the answer.

The complaint alleged: “Although the precise origin of gender identity is unknown … There is a general medical consensus that there is a significant biological component to gender identity.” Some of the expert witnesses testified to something like this. Here’s the psychiatrist Jack Turban answering the question, “So your testimony is that gender identity is determined by biology?”:

“That there’s a strong biological determinant, yes, there have been genetic studies that suggest a strong inheritable component of trans identity. And as I mentioned, there’s this core biological basis on which our gender identities are built, but the language that we apply to that and the ways in which we describe it and conceptualize it can evolve over a lifetime.”

The psychiatrist Dan Karasic testified:

“[T]here are certain hormonal or hormone receptor conditions that affect the hormonal milieu in utero or afterwards that change the ratio of people who are transgender. So there are some biological basis, but we really don’t know[.]”

Stephen Levine, a psychiatrist testifying for Arkansas, threw cold water on the biology claim. He walked the court through the scientific literature in detail and concluded regarding neurology:

“[S]o I would say that as of today, we have no right to think that this is—that the brain structures of transgender identifying teenagers are distinctly different and we cannot say this is the prelude, the neurophysiologic or neuroanatomical prelude to future gender identity–gender dysphoria.”

And regarding hormonal influence:

“Well, there’s been a lot of speculation over the years whether … is it something caused by prenatal hormones, and for years that has been investigated. We’ve never made any progress to demonstrate that it’s a hormonal phenomenon[.]”

Levine also testified that gender dysphoria was not a “medical genetically derived problem” according to European health authorities.

In the end, the plaintiffs’ biology claim was apparently too sketchy even for Judge Moody, who generally played the role of their cis-het ally. He politely ignored the false note, not referring to the biological basis of gender identity in his Findings of Fact. This should make the gender doctors nervous. A judge who’s more on-task might query what other “consensus” beliefs of the medical profession are simply articles of faith.

If you encounter a TRA spouting mumbo jumbo about prenatal hormones or brain structures influencing gender identity, point out that the ACLU and Sullivan & Cromwell couldn’t convince an Obama-appointed judge of that.

How The Gender Doctors Cover Holes in their Argument

The trans rights movement has not staked its fortunes on logic or evidence ever since it adopted the maxim that trans women are women. Instead, over the past decade or so it has soared on the wings of prestige. Not only did institutions like the White House, MSNBC, Netflix, Boston Children’s Hospital, and the NCAA carry it forward, but also community leaders like teachers and social workers. Many who zealously “affirm” kids hold positions of prestige in their town. Perhaps they see a chance to ally themselves with the government, the media, celebrities, and elite lawyers and doctors.

In Brandt, I think the gender industry won a lawsuit it should have lost because of the prestige of the medical profession, the ACLU, and the gay marriage movement whose semiotics it appropriated. Outside the courtroom, I think many US liberals refrain from questioning youth gender medicalization because they want to stay in sync with the smart set. If liberal New York Times columnists started arguing that injecting teen girls with high doses of steroids hurts their health, support for youth medicalization would crumble–even though everyone already knows that.

The opposite of prestige is stigma. Aside from touting the prestige of their allies, the trans rights activists’ favorite strategy is snickering about “terfs.” The Brandt plaintiffs implied that parents who doubted their kids’ declarations of trans identity had bad relationships with them, referred to alternatives to medicalization as “conversion therapy,” and insinuated that detransitioners were weak-willed trans people who had caved to pressure from Jesus. In other words, they wielded stigma as a tactic of persuasion.

The lesson I’m drawing from Brandt is to remain vigilant against prestige and stigma. When someone rattles off the list of bold-faced names who support their position, or mocks the skeptics who don’t, that person isn’t arguing the merits of their case. Listen to what they’re not saying.

This is the 11th entry in The Brandt Files, and the last one about the Brandt trial. All the previous entries are linked here.

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