Brandt Files #7: Our Heroes Scale the Hierarchy of Oppression

Should trans people be a “protected class” under the US Constitution? The fate of youth medicalization laws like Arkansas’ hangs on this question—which is probably headed to the Supreme Court.

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

The trial and appeal documents cited in this piece are available on the ACLU’s website. 

In the coming weeks we’ll dive into the Brandt plaintiffs’ legal strategy and figure out why they chose certain arguments and words. But today we’re going to stay on the surface and look at what they did right out in the open: demand that “transgender people” receive special legal protections.

The 14th Amendment of the US Constitution bans discrimination by the government. Courts use it to crack down on laws that treat people differently based on “suspect classifications” like race, sex, and national origin. Lately, a few courts have added “transgender status” to the list. The plaintiffs in Brandt asked for that treatment, which would essentially force Arkansas to prove that its ban on youth gender medicalization was a good idea—and let the plaintiffs slink away without quite proving it was a bad idea.

(Throughout this post, all the courts and laws I refer to are federal except the medicalization bans being challenged. Those are all state laws.)

Courts decide which “level of scrutiny” they’ll apply to a challenged law depending on what type of discrimination the plaintiff is alleging: race, sex, etc. The levels are all mushy standards that sound alike. I’ll focus on two here: rational basis review (RBR), which goes the easiest on government, and intermediate scrutiny (IS), which is tougher. 

Rational basis review (RBR):

Does the statute further a legitimate state interest, and is there a rational connection between the statute’s means and its goals?

Intermediate scrutiny (IS):

Does the statute further an important government interest and do so by means that are substantially related to that interest?

There is one key difference between these standards: where they place the burden of proof. RBR places it on the plaintiffs, while IS places it on the state.

The Arkansas statute challenged by the plaintiffs banned “gender transition procedures” for minors, so it did basically target trans youth. If IS applied, then Arkansas would have to prove that the ban protected kids, meaning they would need to prove the “care” was dangerous—even as the plaintiffs paraded an expert medical witness willing to downplay the risks and side effects. If RBR applied, then the plaintiffs would have to prove the ban was irrational. 

Cutting to the chase: when courts apply RBR, the government almost always wins.

In Brandt, the judge applied IS because he believed trans people should be a protected class. But he’s the first word in this fight, not the last.

(In Brandt and other gender medicalization lawsuits, plaintiffs have made several legal arguments. I’m focusing here on the one that I think is most likely to drive the outcome of these lawsuits: anti-trans discrimination. The other claims include a doctor’s right to free speech and a parent’s right to direct medical care for their kids.)

The Un-ironic Hierarchy of Oppression

To decide what level of scrutiny to apply to challenged laws—RBR, IS, or the toughest for the state, “strict scrutiny” (SS)—courts look at the alleged victims and where they fit into a model that’s synthesized from decades of Supreme Court decisions:

SS: race, national origin, religion

IS: sex

RBR with a bite (don’t ask): sexual orientation

RBR: disability, age, poverty, any other classification

Trans isn’t listed in this Legal Hierarchy of Oppression, so claims of discrimination against trans people should be reviewed under RBR. But in Brandt, the plaintiffs argued for updating the Hierarchy (which a few courts in other parts of the country had done already). In their post-trial brief, they asserted that when “government differentiates … based on … transgender status, its line-drawing triggers heightened scrutiny.” Relying on the paradoxical term “gender identity,” the plaintiffs defined “transgender person” as “someone with a gender identity that does not align with their sex assigned at birth.” 

This definition covered people who identify as “nonbinary,” “gender fluid,” or “eunuch”; people who are not distressed by their misaligned sex assignments; and people with no interest in disguising their sex. It included gender-critical people like me, too. I can’t say I don’t have a gender identity because the plaintiffs claim everyone has one. So I’m boxed into saying my sex is female and my gender identity is the square root of a negative number—a misalignment rooted in my biology that renders me vulnerable and powerless.

To fulfill criteria that appellate courts had used to grant other groups the status of a “suspect class,” the plaintiffs asserted of “transgender people”:

1. They have historically been subject to discrimination;

2. They have a defining characteristic that bears no relation to their ability to contribute to society;

3. They may be defined as a discrete group by obvious, immutable, or distinguishing characteristics; and

4. They are a minority group lacking political power.

Considering how sketchily the plaintiffs defined “transgender people,” you can’t make any generalizations about them. But #3 is a particular stretch. “Discrete group”? Suicidal kids, autogynephilic men, nonbinary guys macking on queer girls, and lesbians going through a divorce don’t share “obvious, immutable, or distinguishing characteristics.” Indeed, the plaintiffs in their post-trial brief did not explain how this criterion fit trans people. Their passage on #3 began, “There is no requirement that a characteristic be immutable in a literal sense …” and remained focused on shoring up that sub-point. (If the states up their game on gender identity then eventually we’ll see an ACLU defense begin, “There is no requirement that a characteristic exist in a literal sense…”)

The Brandt plaintiffs didn’t present much evidence about why trans people should be a protected class, instead mostly citing decisions from other courts and law review articles to support each element of the claim. That’s why this post, sadly, doesn’t quote any freewheeling testimony from imperious expert witnesses.

In his Conclusions of Law, the judge cited a 2020 ruling in Grimm v. Gloucester County School Board, the ACLU’s landmark public school bathroom victory, as authority for applying IS. That decision, issued by the Fourth Circuit Court of Appeals (which covers southeastern states, including Virginia), didn’t bind him because Arkansas is in the Eighth Circuit.

Circuit Splatter

Trans people have only been seeking “suspect class” status (or “quasi-suspect class,” a term for groups that receive IS but not SS) for about the last decade. The appeals courts are still sorting out where they stand, and the ones that have ruled so far scurried off in different directions.

In the last several months, two appeals courts have ruled on medicalization bans: the Sixth Circuit (ruling on Tennessee’s law) and the Eleventh Circuit (Alabama’s). In both cases, the appeals courts allowed the bans to go into effect while the plaintiffs’ challenges to them were litigated. They both explained that based on the evidence they’d reviewed so far, it seemed that RBR should apply to the “transgender discrimination” claims—not IS. The Sixth Circuit noted that “the bar for recognizing a new quasi-suspect class … is a high one,” and opined that medicalization seemed like an issue that should be decided by legislatures rather than by courts. These appeals courts could rule differently in the future, especially if plaintiffs present compelling evidence at trial that trans people should be a “suspect class.” But so far, the Sixth and Eleventh Circuit aren’t buying it.

By contrast, the Fourth Circuit (in Grimm) and the Ninth Circuit, which covers western states including California, have found that transgender people are a quasi-suspect class.

The Eighth Circuit dodged the question in 2022 when it decided an early-stage motion in Brandt. Without addressing the “anti-trans discrimination” claim, it ruled that IS should apply because the ban treated boys and girls differently—it discriminated by sex in that, for example, it allowed boys to have breast tissue removed but not girls. This misconstrued the statute, which specified that it banned this procedure in girls only when the purpose of the operation was “gender transition.” 

Giving trans plaintiffs IS through the backdoor of sex discrimination is something that several courts have done over the last few decades. For example, if a female is evicted after growing a beard on testosterone, the court may find that the landlord discriminated against that person for having an atypical appearance as a woman. It can be a sensible approach. But in the case of medicalization bans, relying on sex discrimination law would be a cop-out. Persecuting someone for their gender-nonconforming appearance really is a form of sexism that non-trans people experience all the time. Barring kids from taking risky drugs for the purpose of permanently changing their sex-related appearance? That problem is unique to kids who identify as trans. 

Arkansas is appealing Brandt, so the Eighth Circuit will answer roughly the same questions again soon. (The trial court judge’s choice to apply IS won’t matter to the Eighth Circuit.) This time it should squarely address the claim of anti-trans discrimination since the matter has been fully litigated and is likely headed to the Supreme Court.

Supreme Non-Predictions

If you’re wondering how Bostock v. Clayton County, the 2020 Supreme Court decision that protected gay and trans workers from employment discrimination, fits in: it was decided under a federal statute, not the equal protection clause of the Constitution. So it doesn’t bind lower courts in the gender medicalization cases, and it doesn’t constrain the Supreme Court’s eventual ruling on those. But it is a reminder that a lot of conservatives, especially ivy leaguers, are sympathetic to what the ACLU calls “LGBT rights.” John Roberts and Neil Gorsuch, both right-wing justices, sided with the liberals in Bostock.

I’ve never liked predicting how the Supreme Court will rule because it involves peering into the souls of nine dim, pampered grade-grubbers who get too much attention already. I’ll just say I think judges of all political stripes tend to be conformist and behind the times, so I hope the gender medicalization cases take a while to reach them.

This is the seventh entry in The Brandt Files. Find past entries on the author’s profile page.