The Brandt Files #2: On "Gender Identity"

Whatever it is, it's a core part of who you are...and how the judge rules

Photo by Tingey Injury Law Firm on Unsplash

This post is part of the Brandt Files, a series on the lawsuit in which “trans kids,” their families, and doctors 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” in the volumes indicated.

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Even within pro-medicalization circles, the nuts and bolts of trans identity are contested. Is gender immutable or fluid? Socialized or inborn? Here’s how it works according to the Brandt judge:

• “Gender identity” refers to a person’s deeply felt internal sense of belonging to a particular gender. 

• Transgender people have a gender identity that does not align with their birth-assigned sex.

• Gender identity is not something that an individual can control or voluntarily change.

• Efforts to change a person’s gender identity to become congruent with their birth assigned sex have been attempted in the past without success and with harmful effects.

• Although people cannot voluntarily change their gender identity, a person’s understanding of their gender identity can change over time.

Much of the Brandt trial hinged on the young plaintiffs’ “gender identity” because an “incongruous” gender identity is the basis for medicalizing a child. But this crucial term was never meaningfully defined. Though many people insist that their own gender identity is very real to them, in this trial it comes out looking like a bunch of adjectives in search of a noun: not a thing in the world but rather a phrase in a sentence. 

During the trial, medical experts testified that gender identity is “stable,” “core,” “intensely felt,” and “biological” — yet somehow it’s more “stable” after adolescence, it’s “dynamic,” and it “evolves over time,” per psychiatrist Jack Turban, one of the plaintiff’s expert witnesses.

So what is gender identity?

Why Gender Identity Matters in Court

The concept of gender identity can play a role in legal arguments by establishing that “trans people” have an “immutable characteristic” (an opposite-sex “gender identity”) which entitles them to receive special protection from unequal treatment under the U.S. Constitution’s Equal Protection Clause. That didn’t quite happen in Brandt because the judge simply cited another court’s decision to reach that conclusion, rather than reason his way toward it using evidence presented at trial.

Nevertheless, gender identity was the linchpin of the plaintiffs’ case. The term served as a rhetorical device to make scrambling an adolescent’s cosmetic traits sound logical. “Administering the treatment is necessary to align his body with his ______.” Fill in the blank: personality, wildest dreams, favorite color. Or gender identity.

What It's Not

Opposite-sex gender identity is distinct from gender nonconformity (GNC), according to the plaintiffs’ experts. They repeatedly brought up examples of real or hypothetical GNC people who were not trans because their gender identities were aligned with their bodies. For example, Kathryn Stambough (volume 3), the medical director of a youth gender clinic, described a girl who questioned her gender identity but then, after referral to an “affirming therapist … was able to further explore her gender identity and came to the understanding that she was a cisgender female, but leaned tomboy in the way she described herself.” This anecdote was offered as proof that Stambough’s clinic wasn’t “steering young people into being trans.”

Although the plaintiffs’ witnesses emphasized that not all GNC people were trans, they never suggested that not all gender-typical people were “cis.” None of their testimony explained why gender-typical people couldn’t be trans. But I suspect they avoided that subject because a history of “gender diversity” is required, in theory, before an adolescent is permitted to medicalize (and because the notion of gender-typical kids wanting to medicalize — a phenomenon observed by Jamie Reed and Eliza Mondegreen — might discomfit the judge).

But What Is It?

Observing how the plaintiffs used the term gender identity throughout the trial, it seemed to mean, from their perspective, “whatever a person thinks their gender is. If a person thinks they are male, then their gender identity is male.” But they did not set forth this clear (if circular) definition. Arkansas might have defined “gender identity” as “the sex that the person wishes they were.” But Arkansas did not offer this definition, nor did it point out the circularity of the plaintiffs’.

The colorless exchange below (volume 3), between an attorney for the plaintiffs and a plaintiff’s mother, is typical of how the plaintiffs talk about gender identity. It illustrates gender identity’s word-based nature — how it’s just about applying a gender-y term like “male” to yourself. 

Q. Was it determined that Dylan had a persistent consistent gender identity?

A. Yes. And he had so for several years at that point.

Q. Do you remember approximately from what age?

A. So, as I recall, Dylan had expressed to me that he had first identified as a male at around age 10 or so.

Even in the mouths of passionate trans-identified kids, gender identity seems like an abstract notion. A father described his son’s revelation:

“So then she explained that she’s always felt like there was something different about her, that she never really knew what it was, but she had time to just reflect and think about it. And she later told us about how she was playing Animal Crossing at the time, which was kind of popular if everybody remembers that, and she changed her character from male to female and just said she felt overwhelming sense of joy and started to realize her identity.”

Did the Judge Buy … That?

In his ruling, the judge made a “Finding of Fact” about gender identity:

“‘Gender identity’ refers to a person’s deeply felt internal sense of belonging to a particular gender. (Tr. 24:11-15, ECF No. 219 (Karasic)). It is a ‘core part of who you are.’ (Tr. 266:6-11, 267:11-15, ECF No. 219 (Adkins)).” (The notes in parenthesis are citations to the trial transcript.)

I pointed out before that the plaintiffs seemed to be defining “gender identity” in a circular way. But in the judge’s formulation something else is going on, because the plaintiff’s expert witness, Deanna Adkins, a pediatric endocrinologist, actually defined “gender” and “gender identity” as separate concepts (volume 2):

Q. So the term “gender” and the term “gender identity,” do you see those two things as being the same concept or different?

A. I see them as different. 

Not only are the concepts different, they are opposite. One is formed by extrinsic forces while the other is intrinsic. Adkins continued:

“Gender can be relative to social and all of that with regard to, you know, how the community reacts around you. But your gender identity is something that’s a core part of who you are.”

The judge didn’t overlook this testimony. In fact, he cited this passage in the definition I quoted above. That he would stumble into a contradiction when defining gender identity is no surprise, since the idea of an inherent quality that hinges on a social construct (or else on biological features that one does not possess) is paradoxical. 

It’s worth noting that the judge’s paradoxical definition of “gender identity” matches the one proposed by the plaintiffs in their “Proposed Findings of Fact” verbatim, including citations. (That document, filed after trial, laid out the positions the plaintiffs wanted the judge to adopt as his own.) So it’s possible the judge copied and pasted this foundational point. My guess is that he couldn’t make sense of gender identity, and rather than think through what that meant about the plaintiffs’ case — that it was based on nonsense — he outsourced this crucial piece of analysis to the party he wanted to win.

Interestingly, the definition paraphrased rather than quoted Dan Karasic, a psychiatrist called in as an expert witness by the plaintiffs. Karasic had testified: “Gender identity is a deeply felt sense of being male, female or another gender.” The plaintiffs’ attorneys, and then the judge, merely referred to a “particular gender.” This gloss could be read as an act of nonbinary erasure.

The judge didn’t address whether gender identity was “biological,” a term the plaintiffs’ witnesses had used repeatedly, and which the plaintiffs included in their Proposed Findings. For example, according to the psychiatrist Jack Turban (volume 2), “one has a core biologically determined gender identity.” Perhaps the judge noticed that these same witnesses also testified about “aligning” the “body” with a person’s gender identity, suggesting that gender identities are not part of the body, that is, not biological. (Arkansas’ expert witness, the psychiatrist Stephen Levine (volume 5), described the search for a biological basis for trans identity and concluded that scientists had found no such thing.)

The parties also sparred over whether gender identity changed over time or stayed the same. To justify medicalizing a minor, the latter almost has to be true. And yet there are people walking around in the world saying they are “gender fluid.” Turban, who has written about “dynamic gender presentation,” handled the issue in two ways. First, he distinguished gender identity itself, which is as stalwart as styrofoam, from “the language that people apply to their gender identity and how they conceptualize it” which “can evolve over time.” Second, Turban conflated gender-fluid people with detransitioners and claimed they were “a small population.”

Citing Karasic, the judge found that “for most people gender identity is stable over their lifetime.” I don’t know what to make of the idea that an ethereal paradox coaxed to the surface of consciousness by an Animal Crossing avatar can be “stable.” He might as well have found that “Santa Claus does not give better presents to rich kids.” Insofar as gender identity exists, the judge got it wrong.

Read the previous installment of this series at LGBT Courage Coalition. It’s about how both sides in Brandt distanced themselves from gay people – but they kept popping into the picture anyway.