Brandt Files #1: Don't Say Gay at the LGBTQ Rights Trial

How Both Sides Distanced Themselves from Gay People in the Trial Over Arkansas' Gender Medicalization Ban

This post is part of a series on the lawsuit Brandt v. Rutledge, in which “trans kids” successfully challenged Arkansas’ ban on youth gender medicalization. Read the introduction to the series at BROADview.

You may have noticed that a lot of gay people are gender-nonconforming in the clothes they wear, the careers they pursue, and the sex of the people they sleep with. As documented by Hannah Barnes, this nonconformity (and the shaming and isolation that go with it) leads some gay youth today to question their “gender” and adopt trans identities. Detransitioners and trans people have explained how being gay sparked their desire to medicalize. And it’s not just a recent trend. Decades ago the sexologist Ray Blanshard identified homosexuality as one of the two transsexual typologies. Trans rights activists acknowledge the link between same-sex attraction and trans identity by flogging the moniker “LGBTQ.”

But in the Brandt trial, the plaintiffs told a story in which trans identity had nothing to do with being gay. At the same time, the legal team – which included the American Civil Liberties Union and powerhouse corporate law firm Sullivan & Cromwell – invoked concepts that were developed during the struggle for gay rights based on evidence related to gay people. For its part, Arkansas (represented by staffers from the state attorney general’s office) failed to highlight the connection between trans and gay even when doing so would have helped its case.

And so the trial conjured an alternate reality in which short-haired lesbians and bearded transmen stared past each other, no flash of recognition, and all the detransitioners were straight Christians.

Nothing Gay to See Here

As far as I know, none of the plaintiffs or witnesses called by either side were gay.

Trans teens were presented as nonsexual. We learned many intimate details of the teen plaintiffs’ lives, but not who they dated or wanted to date. When the plaintiffs’ expert witnesses testified about trans teens in general, they portrayed the teens as uninterested in sex. 

Arkansas called two detransitioners to testify about their experience. One was a woman married to a man; the other was a man married to a woman.

Gays did sometimes crop up in witness testimony. For example, Stephen Levine, a psychiatrist who had been treating trans patients since the 1970s, spelled out the gay-trans connection: 

“The natural history of strong cross-gender identity is to develop a homosexual or bisexual orientation in adolescence and adult life. … What we're really doing here [by affirming cross-sex identification in children] is interfering with the natural development of homosexual orientation.”

This point could have served Arkansas’ case, but Arkansas did not ask follow-up questions. Its post-trial brief did not mention it or any other testimony about gay people.

Photo by Aiden Craver on Unsplash

Tomboys and Trans Boys Look Nothing Alike

Trans identity is distinct from gender-nonconformity, according to the plaintiffs’ expert witnesses, and the two phenomena never get tangled up. 

Psychiatrist Jack Turban described “birth-assigned females who maybe were tomboys for lack of a better phrase, birth-assigned females who were cisgender but have what you might consider a masculine interest.” For these girls, if they didn’t declare a trans identity then “of course, it wouldn't be appropriate for patients like that to receive gender-affirming medical interventions.” What if a girl like this declared “I think I’m a boy because I’m masculine” – would clinicians affirm her gender identity as a boy? Arkansas didn’t ask.

Psychiatrist Dan Karasic testified that kids treated for gender issues in the 1970s were different from “trans kids” today. The earlier cohort included “feminine boys” who were “never transgender identified to begin with.” These “pre-gay” boys ended up in clinics only because their parents were seeking treatment for them. Today’s kids treated for gender issues are a different species from yesterday’s because they say they are trans. As with Turban, Arkansas didn’t poke holes in this distinction – or ask whether homophobic parents might still roam the Earth, seeking out “medical treatments” for their feminine sons.

An Arkansas-based gender doctor named Stephanie Ho testified differently from the out-of-state experts.

Lawyer: What do you call the gender-related condition for which you prescribe hormones?

Ho: I call it gender nonconformity.

That was in a deposition. At trial Ho backpedaled, insisting she’d misspoken and meant to say “gender dysphoria.”

Likewise, the Director of Transgender Health at Arkansas’ Planned Parenthood affiliate, Janet Cathey, testified in a deposition that she sometimes treated patients who did not have gender dysphoria, but rather were gender-nonconforming. She retracted this statement at trial, saying the exchange had been “confusing.”

So perhaps gender-nonconformity and trans identity do get tangled up occasionally. But just by doctors, not by children.

Find-Replace

In two instances the plaintiffs took social science research about gay psychology, deleted the word gay, and replaced it with trans.

Conversion Therapy

It’s never been proved that mental health professionals can change a patient’s sexual orientation. The attempt to do so is called “conversion therapy.” Great stigma is attached to it because it doesn’t work and can make gay patients miserable.

The plaintiffs’ expert witnesses testified that gender identity couldn’t be changed through therapy, and that the attempt to do so could make trans people miserable. This was an important point because it convinced the judge that for gender-dysphoric teens, there was no viable alternative to medicalization. But gender identity is not the same thing as sexual orientation. For one thing, sexual orientation exists. Levine, the veteran gender psychiatrist, referred to this instance of find-replace as “a great unscientific leap.”

Minority Stress

According to the minority stress model, the reason gay people are more vulnerable to certain pathologies, like anxiety, is because they belong to a persecuted minority group. Researchers developed this theory over decades of studying gays and lesbians. Lately trans rights activists have claimed that the body of research applies to “trans people” too. The effect is to fend off any inquiry into why trans identity correlates with traits like suicidality, autism, and internet addiction. Just as gay people are born healthy and then warped by contact with a bigoted society, so too are trans people born healthy (incorrect gonads notwithstanding).

Karasic was asked why “anxiety, depression, and suicidality are common among adolescents with gender dysphoria[.]” He noted their dissatisfaction with their appearance and concluded, “there’s also what’s sometimes called minority stress, the discrimination that transgender people might suffer even from their own family or from school or peers as well as society at large.” I’d like to know which studies establish that, and how we can know that mental health problems don’t lead some people to identify as trans. But Arkansas didn’t ask.

Why did this happen?

One of the plaintiffs’ lawyers was Chase Strangio, the Deputy Director for Transgender Justice at the ACLU. In the middle of the Brandt trial, which took place across eight days in the fall of 2022, Strangio posted to Instagram: 

“A significant part of my career has (begrudgingly) been devoted to marriage-related litigation. I find it disappointing how much time and resource went into fighting for inclusion in the deeply flawed and fundamentally violent institution of civil marriage.… the political capital that went into passing [a federal law protecting same-sex couples] means capital lost somewhere else - for voting, abortion, trans people, student loans.”

The Plaintiffs’ lawyers didn’t deal honestly with the subject of homosexuality because they don’t care whether gay kids in Arkansas get conned into questioning their “gender” and medicalizing. The ACLU — which tags Brandt as “LGBTQ Rights” on its website — prioritizes “trans rights” over gay people. 

As for Arkansas’s lawyers, their motivations are less clear because they didn’t post any incendiary rants on Instagram. But their choice of witnesses provides clues. At least some were linked to the Alliance Defending Freedom, a group known for its opposition to gay marriage. And several of Arkansas’ witnesses, including both detransitioners, were devout Christians.

I don’t know for sure why Arkansas dropped the ball on homosexuality, but their case would have been stronger if they hadn’t. As government agencies all over the country find themselves litigating “trans justice” against the ACLU, they’d better not make the same mistake.