The Brandt Files: An Introduction

Going deep on Arkansas's gender court case

I’m a litigator with over ten years’ experience. I love analyzing arguments. I hate scams. Which is why, when I dove into the trial transcripts of Brandt v. Rutledge, the suit against the state of Arkansas for its gender-affirming care “ban,” I was excited to find a deep well of un-scrutinized information. I’ll be scrutinizing it here for you, in a series called “The Brandt Files.” This piece is an introduction to the series. The first installment will be published by the LGBT Courage Coalition. It’s about how both sides in Brandt tried to distance themselves from gay people, but they (we!) kept popping into the picture anyway. 

Thanks for reading!

—UB

Photo by Melody Ayres-Griffiths on Unsplash

Last fall, a spectacle unfolded in a federal courthouse in Little Rock: the country’s first ban on youth gender medicalization was being tested at trial in a case called Brandt v. Rutledge. The plaintiffs challenging the Arkansas state law—trans-identified minors and their families and doctors—were represented by the American Civil Liberty Union, along with the powerhouse corporate law firm Sullivan & Cromwell and local attorneys. 

They beat Arkansas resoundingly. The judge ruled in June 2023 that the ban was unconstitutional because, among other reasons, it treated boys and girls differently (for example, by forbidding mastectomies for girls but not for boys) and it discriminated against “transgender people.”

The judge, James M. Moody, Jr., prefaced his ruling with a section called “Findings of Facts” that laid out his takeaways from the trial. These findings revealed a staunch credulousness toward the plaintiffs’ expert witnesses and an occasional tendency to glow-up their already rosy testimony.

For example, the judge believed a psychiatrist who testified that he had treated thousands of trans-identified patients and none had ever resumed identifying as their sex. Citing an endocrinologist who had testified for the plaintiffs, the judge found that “[a]dverse health effects from gender-affirming medical care are rare when treatment is provided under the supervision of a doctor.” The cited testimony actually referred to the risk of blood clots, not all “adverse health effects.”

The judge wrote off most of Arkansas’ case on the grounds that its witnesses were not credible, provided testimony that was irrelevant, or seemed motivated by religious belief. The psychiatrist Stephen Levine, for example, supposedly “struggles with the conflict between his scientific understanding for the need for transgender care and his faith.” Levine had not testified about his faith; the judge’s finding, which did not cite the record, is genuinely baffling.

The State of Arkansas called as witnesses two “gender affirming” physicians, Janet Cathey and Stephanie Ho, and a third more skeptical psychiatrist, Roger Lew Hiatt, all of whom treated minors in Arkansas. They undermined plaintiffs’ expert witnesses in damning ways, such as by admitting to routinely following defective “informed consent” protocol. Unlike most of the other testimony presented at trial by Arkansas, the judge did not deem these doctors’ perspectives to be irrelevant, non-credible, or unduly influenced by the Lord. He simply did not acknowledge their testimony in his ruling at all, except for some lines from Ho that supported the plaintiffs’ case.

Arkansas’ performance was clumsy. Its cross-examinations were often not pointed enough to box the plaintiffs’ witnesses into uncomfortable positions or force them to contradict themselves. And it relied on conservative Christian witnesses whom the Obama-appointed judge seemed to disrespect—a dynamic they should have prepared for.

But the plaintiffs’ case reeked of fraud. It was built on opaque claims about “gender identity;” doctors peddling miracle cures while insisting that high-quality scientific research into them would be impossible; formulaic success stories that couldn’t be fact-checked; and threat-like insinuations about suicide (like: “not to sound crass, but I’m generally worried that we’re going to lose some kids” if the ban is upheld).

For example, asked why the evidence supporting medicalization was all “low quality” or worse, the psychiatrist Jack Turban responded that institutional review boards “wouldn’t approve a randomized controlled trial [which would yield a higher-quality study] because there would be concerns of the ethics of randomizing people to a treatment group where mental health would get worse when you could give them a treatment that would help.” How would this hypothetical board know that medicalization “would help” if the only evidence for it was low-quality? Has Turban ever sought approval for such a study or was he just speculating? Arkansas didn’t ask.

Most of the trial records are public, including transcripts of witness testimony. These documents are fascinating. They reveal the legal system’s weakness in the face of a polished, sneaky litigant. They also lay bare the ACLU’s playbook for litigating “trans justice,” which it is now deploying across the country as it sues state governments for trying to ban youth gender medicalization and protect girls’ sports. Over the next several weeks, I’ll be posting essays about what these files contain, trying to break down the magician’s flourishes frame by frame.