Brandt Files #8: Why Not Make a Logical Argument?

For decades, disability law denied protection to people with gender dysphoria. Their lawyers deployed a roundabout theory that won them rights under sex discrimination law instead.

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. Read the introduction to the series here. Brandt trial documents are available on the ACLU’s website. The DSM is discussed in Volume 1 of the transcripts.

This is a photograph of a sick brain vomiting (not defecating).

The Brandt plaintiffs insisted that everyone had a “gender identity,” which was “a person’s deeply felt internal sense of belonging to a particular gender.” This concept was foundational to their case but it was paradoxical. It was also janky—it didn’t help draw clear boundaries around any particular class of people who might be called “transgender.” And it was risky. If the judge didn’t have deep feelings about his own “particular gender,” the whole lawsuit would have been toast.

You don’t need the concept of “gender identity” to define trans people. Instead of arguing they belong to some “gender” that’s star-crossed with their anatomy, you could say they experience distress due to wishing they were the opposite sex. The mental health profession’s term for that is gender dysphoria, as detailed in the Diagnostic and Statistical Manual, 5th edition (DSM-V), which is published by the American Psychiatric Association (APA).

(If you think the APA is problematic, hang on, I’ll discuss it at the bottom.)

The DSM-V defines “gender dysphoric” people in terms of their “experienced or expressed gender,” not gender identity. It doesn’t contend that trans people actually are the opposite sex. And it draws a nice bright line: people either have a gender dysphoria diagnosis or they don’t. So why didn’t the Brandt plaintiffs use this neat definition to explain who trans people are? 

In this post, I’m going to trace the legal environment that trans litigation grew up in. While the ACLU—which represented the Brandt plaintiffs and has been litigating trans rights for decades—would no doubt argue that they reject the “wish they were the opposite sex” framing because it’s inaccurate, I’m pointing out that it would have hobbled them in court. Painting trans people as mentally disabled wouldn’t have gotten them anywhere under the US Constitution or the Americans with Disabilities Act (which covers other “mental impairments”), and it would have jeopardized their claims of sex discrimination.

Mind vs. Body

Before I get into the law, let me make up some terms of my own to describe two paradigms for thinking about trans people: Mind Problem (which tracks the DSM’s definition of gender dysphoria) and Body Problem (which I gleaned from the plaintiffs’ arguments in Brandt). Believers in Body Problem chant “trans women are women.” The Mind Problem camp responds… nervously.

Mind Problem defines a trans person as anyone diagnosed with gender dysphoria. In other words, they have a type of mental disability. What causes distress is the mind’s failure to reconcile with the sexed body. “Gender identity” is just a diplomatic way of talking about the trans person’s belief or feeling that they have the wrong body. It does not define the person’s sex. Mind Problem theory doesn’t dictate how to treat gender dysphoria.

The DSM-IV, which mental health clinicians relied on between 1994 and 2013, backed the Mind Problem view. Its entry for gender identity disorder—the predecessor of gender dysphoria—construed “cross-gender identification” as “the desire to be, or the insistence that one is, of the other sex.” Patients didn’t actually belong to the sex they identified with. (As for treatments, the DSM doesn’t prescribe them for any of the conditions it defines; the APA supports medicalizing gender-dysphoric minors.)

The DSM-V, which clinicians have relied on since its publication in 2013, also backs the Mind Problem view because it does not state that trans people are members of the opposite sex. It defines “gender dysphoria” as “a marked incongruence between one’s experienced/expressed gender and their assigned gender…” Symptoms are still framed in terms of “desire,” for example, “a strong desire to be of the other gender[.]” The DSM-V defines “gender identity” as merely “a category of social identity [that] refers to an individual’s identification as male, female, or, occasionally, some category other than male or female.”

In other words, gender identity is a term that people use to put themselves in a box, not, as per the Brandt plaintiffs, an “innate” characteristic that’s “core to who you are.” The DSM-V describes gender as “assigned,” not sex, and the word gender is not a synonym for sex but rather “is used to denote the public (and usually legally recognized) lived role as a boy or girl, man or woman.” 

Body Problem defines a trans person as someone whose “gender identity” is “incongruent” with the body they were born with (all the quotes in this paragraph are from the plaintiffs’ Complaint). Gender identity defines a person’s sex; it’s not a metaphor or euphemism. The body’s failure to conform to its owner’s gender identity is what makes someone trans. “Being transgender is not itself a medical condition to be cured.” But “some” trans people feel “distressed” by their incongruent bodies, and that “medical condition” is called gender dysphoria. If a trans person seeks treatment for gender dysphoria, then doctors must respond by “aligning” the patient’s gender identity and body. (It’s not clear why alignment is necessary for wellness, since Body Problem theory holds that some trans people don’t suffer gender dysphoria despite their incongruence.) Alignment is pursued by changing the patient’s visible sex traits, as “a person’s gender identity is durable and cannot be altered.” In sum, according to the Body Problem view, if you feel distressed by being trans then your body is a problem to be fixed by the healthcare industry. 

The Brandt plaintiffs objected to Arkansas introducing the DSM-V into evidence. They referred to the DSM-V’s entry for gender dysphoria in their Complaint by paraphrasing it: it was supposedly the condition “resulting from the lack of congruence between [a transgender person’s] gender identity and the sex assigned to them at birth.” This wordsmithing aligned the DSM-V with Body Problem doctrine, as doctrine is durable and cannot be altered.

Disability Doesn’t Go Far Under the U.S. Constitution

If you’re not already familiar with equal protection law, read last week’s Brandt File to understand terms used in this section.

Trans people would have a hard time winning lawsuits under the U.S. Constitution’s equal protection clause if they adopted the Mind Problem paradigm, because that defines trans people as, basically, mentally disabled. Courts look at laws targeting disabled people using “rational basis review,” meaning “there must be a rational connection between the statute's/ordinance's means and goals.”  This almost always leads to the plaintiffs losing. By contrast, where trans plaintiffs can persuade the judge that they were discriminated against on the basis of sex, that unlocks “intermediate scrutiny” and makes their case easier to win.

Technically, trans plaintiffs could make both arguments in the same lawsuit: that the law discriminates against them because of their disability and because of their sex. But the danger is that a disability claim, in many cases, would capture the essence of the trans litigant’s problem better—and if judges realized that, it could lead them to reject the more potent sexism claim. (In the last decade plaintiffs have argued, sometimes successfully, a third theory: that laws illegally discriminate against them based on “transgender status.”)

So advocates might strategically insist that trans identity is something other than a gender dysphoria diagnosis. They can’t do that with Mind Problem. They need a different theory, something with more ingredients. Body Problem fits the bill.

In its discrimination lawsuits, the ACLU doesn’t define trans people simply as sufferers of a mental illness. (The earliest I could find was filed in 2005.) And it maintains in these lawsuits that gender identity is real. Referring to a trans-identified male suing a federal agency for hiring discrimination under the equal protection clause and Title VII of the Civil Rights Act, the ACLU asserted in 2005: 

“Plaintiff is a woman, although Defendant perceived Plaintiff to be a man[.]”

Recall that the DSM has never viewed trans-identified males as women. The ACLU was out on a limb.

The Americans with Disabilities Act Excluded Trans People

The principal federal law protecting disabled people is the Americans with Disabilities Act (ADA). Passed in 1990, its definition of disability seemed to exclude trans people: 

“[T]he term ‘disability’ shall not include … transvestism, transsexualism, … gender identity disorders not resulting from physical impairments, or other sexual behavior disorders[.]”

For decades, lawyers for trans people figured they couldn’t win under the ADA. They championed sex discrimination theories instead. Firms other than the ACLU did this under various statutes as far back as the 1980s. In the 2010s, though, some advocates—not the ACLU—started challenging the ADA exclusion. A federal court in Pennsylvania ruled in their favor in 2017, reasoning that the statute didn’t mean to carve out mental illnesses like gender dysphoria, only identities (like being gay or trans) and conditions associated with harmful behaviors (the statute names “kleptomania”). The Fourth Circuit Court of Appeals ruled similarly in 2022.

So the ADA is now in play: advocates may fight for their trans clients by acknowledging them as mentally disabled. The rights on the table are different than under sex discrimination law, but the point is that the endeavor would keep trans advocates busy.

But by the time of this development, the ACLU had already been pushing Body Problem in its lawsuits for over a decade. And that theory had caught on. The Obama administration took the position that a school treating a trans student according to their sex, instead of their gender identity, was engaged in illegal sex discrimination, and that it was illegal for employers to discriminate by “gender identity.” Over the course of the 2010s more and more trial-level courts, and even some federal appeals courts, recognized trans identity as a “quasi-suspect classification” under the equal protection clause. This argument was so bold that the ACLU had not even bothered making it until the 2010s. 

While some trans rights advocates embraced ADA litigation, they did so while holding fast to the Body Problem framework. It was popular among federal judges and democratic politicians–so what if it didn’t make sense?

Disability Arguments Work for Trans Prisoners

In 2002, the ACLU argued its client, a male prisoner seeking estrogen, suffered a “mental disorder characterized by extreme disgust with one's anatomical sex and a feeling of being trapped in a body of the wrong sex.” It did not contend that this trans-identified male inmate was a woman.

What changed between that brief in 2002, and the Schroer complaint in 2005? In the former case, the ACLU was not arguing discrimination but rather cruel and unusual punishment (by denial of cross-sex hormones) under the Eighth Amendment to the US Constitution. The Mind Problem construct did the job. But in the 2005 lawsuit, the ACLU was arguing employment discrimination. It could have won by claiming Schroer was discriminated against as a non-stereotypical man, but I suspect it was using the case to demo Body Problem. Also, if there were any ideological donors lurking in the wings, seeing the “trans women are women” formulation in a lawsuit would probably have thrilled them. (Trans-identified male litigants had argued before that they were women, but they typically cited their physical traits like neutered crotches—not their feeling of being female.)

In later discrimination cases, the ACLU stuck with Body Problem. But in a 2014 Eighth Amendment challenge on behalf of Chelsea Manning, it didn’t claim Manning was literally a woman. Nor did it warp the DSM-V as it did in Brandt. Instead it quoted the DSM-V to describe trans people as having “a strong desire” to be “the other gender.” While it did partake of some gender woo (“the innate sense of being male or female”), it was fundamentally relying on a Mind Problem framework. That must have seemed like the smoothest path to securing Manning’s access to hormones.

In recent years, the ACLU has leveled up its work on behalf of trans-identified male prisoners. It no longer seeks merely to secure “medical treatment” for them, but also to house them with women. It now claims these males are women and avoids quoting inconvenient language from the DSM-V (scroll to the bottom of that page to download the complaint). Interestingly, the ACLU leaves this campaign off its "criminal justice reform for LGBTQ people" page and I can’t find any of the related lawsuits among the 55 prisoners’ rights cases it showcases. It might be running this project through its local affiliates, like the New York Civil Liberties Union, but that doesn’t explain why it doesn’t link to the lawsuits as it does for other local-affiliate cases.

Body Problem Escapes the Courtroom

Today the Body Problem theory prevails inside and outside of the courtroom. Most liberals and educated Americans don’t refer to trans identity as a mental illness because that’s “stigmatizing” or even bigoted. In Brandt, for example, Arkansas’s attorneys didn’t challenge the plaintiffs’ definition of transgender people, and didn’t dispute that “gender identity” existed as something “core to who you are.” It merely pushed back on the claim that gender identity was “immutable.”

The ACLU might argue that Body Problem beat Mind Problem in the court of public opinion because it’s correct. But the ACLU itself hasn’t consistently stood for the idea that trans women are women, and the DSM never has. More importantly, I repeat, that argument is based on an illogical premise. 

Perhaps Body Problem won because it had good lawyers.

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

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On Psychiatry

Just because I cited the DSM in this post doesn’t mean I respect the APA. I highlighted the plaintiffs' divergence from the APA's DSM because they treated publications by every other group that lobbies for doctors, such as the Endocrine Society and the American Medical Association, like the Ten Commandments. They even cited the APA’s guidance for treatment of gender dysphoria. That made their shunning of the APA’s diagnostic manual inconsistent and their motive for doing so worth probing.

Why does the DSM take a heretical (i.e., reasonable) approach to gender identity? According to Robert Whitaker's 2010 expose of psychiatry, Anatomy of an Epidemic, the DSM's raison d'etre when its third edition was published in 1980 was to make psychiatry seem systematic and science-y, to help the profession brand itself as superior to psychologists who don’t hold medical degrees (see chapter 13). The head of the task force that produced the DSM-III promised it would serve as “a defense of the medical model as applied to psychiatric problems.” Its revisions since then have kept the same programmatic format. I wonder if the DSM’s drafters are leery of “innate senses” in ways that authors in less defensive medical disciplines are not. I’m thinking of the Endocrine Society, which has claimed since 2017, to the horror of evolutionary biologists, that sex is “imprecise.”

Anatomy of an Epidemic is a thrilling read. While it doesn’t cover gender issues, it describes how doctors medicate children for other psychological conditions that are nebulously defined, possibly transient, or iatrogenic. I came away contemplating whether estrogen and testosterone were the new Ritalin and Prozac.