Brandt Files #10: How Judge James M. Moody, Jr., Disposed of Arkansas

Moody styled his decision as a blow for science against religion. An appeals court is likely to reverse it.

This is our penultimate post about the Brandt trial. If you have any questions that the series hasn’t answered, ask in the comments.

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

The trial documents cited in this piece are available on the ACLU’s website in several files. Witness testimony is in the “trial transcripts.” Volume 1 contains Karasic; Volume 2 contains Sabrina’s father; Volume 3 contains Dylan; Volume 5 contains Levine; Volume 6 contains Regnerus and Lappert; Volume 8 contains Hruz.

Judge James M. Moody, Jr., putting on the robe that his father (right), James M. Moody, Sr., wore when serving as a federal judge (2014).

The Brandt trial took place in Little Rock, Arkansas. Presiding Judge James M. Moody, Jr., a graduate of the University of Arkansas, had been appointed to the bench by Barack Obama. His father was also a federal judge. His ruling, issued in June of this year, made unfounded accusations against the state’s witnesses while crediting almost everything the plaintiffs’ witnesses said. In such a politically-charged case, it’s hard not to see Moody as a team player. 

Up until now I’ve mostly referred to Moody as “the judge,” like he’s some kind of blurry abstraction. Today I’m going to bring Moody into focus.

Religious by Association

Several of Arkansas’ witnesses were linked to the Alliance Defending Freedom, a Christian nonprofit notorious for its campaign against same-sex marriage. Moody wrote in his “Findings of Fact”:

“While there is nothing nefarious about an organization recruiting witnesses to testify for their cause, it is clear from listening to the testimony that Professor Mark Regnerus, Dr. Paul Hruz, and Dr. [Patrick] Lappert were testifying more from a religious doctrinal standpoint rather than that required of experts by [law]. … Their opinions regarding gender-affirming care for adolescents with gender dysphoria are grounded in ideology rather than science.”

This was simply not true. These witnesses did not mention religious concepts except when the plaintiffs’ attorneys harangued them about their faith. Hruz, a pediatric endocrinologist at Washington University in St. Louis, testified about the dangers associated with puberty blockers and cross-sex hormones. Regnerus, a sociologist at the University of Texas at Austin, tried to testify that the apparent professional “consensus” about gender medicalization was an illusion. Lappert, a Florida plastic surgeon, tried to testify that gender dysphoria was a type of body dysmorphia (a mental problem that plastic surgeons are trained to spot), meaning it could not be resolved through cosmetic interventions. I say Regnerus and Lappert “tried to testify” because the judge repeatedly interrupted and hectored them.

Moody ruled that these witnesses weren’t qualified as experts because they lacked experience treating gender dysphoria themselves. This was a bit like rejecting testimony about ballistics in a murder trial because the witness has never killed anyone. Complex trials like Brandt raise a multitude of questions; experts aren’t required to know the answers to all of them in order to answer one of them. 

Ironically, it was the plaintiffs’ witnesses whose testimony was grounded in ideology. Every time they referred to a male child as a girl or a female child as a boy, they were drawing on the ideological principle that the most accurate way to describe someone’s sex is by the “gender identity” they declare. Just because healthcare industry lobbyists support the idea doesn’t make it scientific.

Judge Moody’s Divine Inspiration

Moody’s most arbitrary finding related to Arkansas’ witness Stephen Levine. 

Levine is a psychiatrist who has been treating trans people—that is, supporting them in their transitions—since the 1970s. Levine’s testimony was nuanced. He worried that US physicians were medicalizing youth based on “false assumptions; for example, that [trans identity] is biologically dictated, that it is immutable, that it cures suicidal ideation, and that it makes everyone live happily ever after, you see.” 

But Levine didn’t support Arkansas’ ban on youth medicalization, nor did he oppose youth medicalization per se. Under questioning by the plaintiffs’ counsel, he acknowledged that he was open to referring minors for cross-sex hormones on a case-by-case basis:

“These are very fraught circumstances. I think all of us [providers of trans healthcare] all over the world recognize that we are under very difficult circumstances sometimes. We don’t know what to do and we eventually go along with the patient’s sincere desire to try hormones.” 

Levine said little about religion. Analyzing why some states were passing age restrictions on gender medicine, he testified: 

“I as a physician, talk about the ethics in its relationship to science. But people who aren’t … talk about this in terms of God … So I think there is an element of religious values being played out in various state [legislatures] as well.”

Arkansas later asked Levine if it was “necessary for a person to have specifically religious values in order to oppose gender transition.” Although the plaintiffs did not object to the question, Moody slammed the Arkansas attorney before Levine had a chance to answer for asking Levine “to talk about whether or not people can or can’t oppose in a general sense transgender treatment.” The attorney seemed to struggle to reformulate his question as Moody kept cutting him off. Finally the attorney asked whether Levine’s views were based on science and Levine said they were. 

Otherwise the trial record doesn’t contain clues about Levine’s religion.

Yet Moody concluded in his “Findings of Fact” that Levine “struggles with the conflict between his scientific understanding for the need for transgender care and his faith.” 

Moody cited Levine’s testimony where it supported the plaintiffs’ argument and ignored the rest. He never stated whether he had qualified Levine as an expert, but he implied he had by citing some of Levine’s opinions (only experts may testify to their opinions). The reason to reject Levine’s other, unquoted opinions must have been that they were unreliable, meaning, they strayed outside the bounds of rigorous, rational analysis.

How did Moody determine when Levine was testifying reliably versus when he was speaking in tongues? Moody didn’t say, but he appeared to be drawing on his God-given knowledge that all arguments for youth gender medicalization are rooted in science, and all arguments against it are not.

Common Sinners

Arkansas called two detransitioners, Billy Burleigh and Laura Smalts, to testify about their experiences. They told moving, stunning stories. The plaintiffs then badgered each in turn about their religious inspiration for detransitioning, with Moody overruling Arkansas’ objections. Moody ultimately found their testimony “irrelevant” in part because “they both detransitioned as a result of a religious experience[.]” They belonged to Christian churches–hardly an irrelevant theology in Arkansas.

The trial record contains some testimony that I don’t have, either because it was sealed to protect the minors’ medical privacy or because the court relied on the witnesses’ depositions rather than having them appear at trial. These witnesses were Amy Embry, who spoke for the Arkansas State Medical Board to defend the point that doctors can regulate themselves; Rhys Branman, a doctor whose testimony seemed to overlap with Embry’s; and Robin Lundstrom, a legislator who championed the medicalization ban. Lundstrom’s role in the plaintiffs’ case wasn’t spelled out, but in a footnote to their Proposed Findings of Fact they claimed she “made clear that she believes gender-affirming medical care is inconsistent with her personal faith,” and quoted her calling medicalization “a joke and waste of time.” As a clownish flaneur myself, I condemn Lundstrom’s remarks.

Why Judge Moody Used Religion as a Smear

So Moody wrote off six of Arkansas’ witnesses as religious nuts. (As to three others, the physicians Janey Cathey, Roger Lew Hiatt, and Stephanie Ho, he simply ignored them.) His justification was so shoddy that at first I assumed he was indulging an anti-conservative bias. But that’s not it. After all, he knows that the sexologist Stephen Levine is not some homophobic Jesus freak. More likely, he was indulging a pro-ACLU bias. Moody decided ahead of time that he wanted to exclude Arkansas’ expert witnesses so it would be easier to draft a decision striking down the medicalization ban. Under the Federal Rules of Evidence he could do that by finding their testimony wasn’t based on science. What else might it be based on? Religion.

That would explain why Moody lunged to shut up Levine when he was about to explain non-religious objections to medicalization. Moody planned all along to paint a picture in his Findings of Fact in which all opposition to gender medicine was based in religion. Levine was about to puncture that illusion–and Arkansas would have quoted this neat rebuttal in its brief to the Eighth Circuit Court of Appeals.

While Moody mostly used religion to ding witnesses, there was one time when he cited it neutrally. This was also the only point in the plaintiffs’ case when a witness referenced religion: Sabrina’s father said his family prayed over the decision to medicalize (they also Googled about it, but Moody didn’t quote that part). I think Moody was playing up the father’s folksiness to bolster the authenticity of his (Moody’s) position. That’s a move we’ve all seen preening authority figures make before.

In some posts, I’ve pointed out that a ridiculous finding by Moody was actually copied and pasted from the plaintiffs’ Proposed Findings of Fact (about plaintiffs' expert witnesses, gender identity, and suicide). That mostly wasn’t the case when it came to religion. The plaintiffs only raised the argument against the detransitioners’ testimony. 

Perhaps Moody, like normie libs all over the country, sincerely believes the only possible motive for opposing “trans rights” is religion. If that’s the case, I have no sympathy for him. He wouldn’t believe that if he’d honored his judicial oath of impartiality by listening to the state’s witnesses.

Bring in the Appellate Judges

The law protects trial court judges’ findings of facts from second-guessing by appeals courts:

“Findings of facts … must not be set aside unless clearly erroneous, and the reviewing [appeals] court must give due regard to the trial court's opportunity to judge the witnesses’ credibility.”

Moody tried to exploit this power by chucking Arkansas’ case on the grounds of invented “facts” and trollish credibility concerns. The Eighth Circuit should find that projecting made-up spiritual angst onto expert witnesses is clearly erroneous. (Moody’s refusal to qualify the state’s witnesses as “experts” in anything at all because they did not inject minors with cross-sex hormones should be reviewed as a “conclusion of law,” not a finding of fact, and not protected by the “clearly erroneous” standard.)

The Eighth Circuit recently decided to review Brandt “en banc,” meaning all 11 judges on that bench will participate, rather than just a panel of three. It’s a sign that they’re taking the case seriously and don’t plan to rubber-stamp Moody. Only one of those 11 judges was appointed by a Democratic president. The parties haven’t filed their briefs yet; oral argument could happen in early 2024.

Lawsuits over medicalization bans are proceeding now in over a dozen states. Some of them, like Missouri and North Dakota’s, are within the Eighth Circuit, so their judges will be bound by its ruling in Brandt (meaning, for example, that the Eighth Circuit will decide for them whether trans people are a suspect class). Judges in other parts of the country won’t be bound, but they’ll pay attention to the ruling to see which way the wind is blowing and get ideas for how to analyze their own cases. If the Eighth Circuit calls out Moody’s sins and delivers a smackdown, its words will reverberate nationwide.

I’ve expressed cynicism about federal judges in the past, but I’m now optimistic about Brandt’s fate. Along with the tea leaves from the Eighth Circuit and the brokenness of Moody’s reasoning, I’m thinking about the preliminary rulings that came out of the Sixth Circuit and Oklahoma in the last month. Not only did they reach the right result, but they were confidently drafted. These judges understood the issues and didn’t seem afraid of being called transphobic or anti-science. With each new decision that lays out a clean argument against youth medicalization, exposing a buffoon like Moody requires less courage.

Patiently Awaiting Journalism

The media’s coverage of Moody’s decision in June of 2023 was shallow. Here’s The New York Times:

“Judge Moody, who was overwhelmingly confirmed by the Senate in 2014, repeatedly cited the scientific evidence outlined by the law’s opponents, as well as the hours of testimony from doctors and transgender children and their families that described the painstaking decision-making process before beginning transition care.”

The Associated Press quoted the decision instead of analyzing it:

“‘Rather than protecting children or safeguarding medical ethics, the evidence showed that the prohibited medical care improves the mental health and well-being of patients and that, by prohibiting it, the state undermined the interests it claims to be advancing[.]’”

Even many conservative and heterodox outlets failed to report on the decision’s infirmities; I’m not aware of any that noted Moody’s bizarre characterization of Levine. I hope the Eighth Circuit spoon feeds the story to journalists by issuing a withering reversal. But I’m bracing myself for the inevitable: The New York Times will describe that court as dominated by Republican appointees.