Lawsuit Update: Arkansas Doesn't Contest the "Facts" at the Eighth Circuit

Apparently the sexologist Stephen Levine really does struggle with his faith

Today the Eighth Circuit Court of Appeals heard oral argument in the matter of Brandt v. Griffin, which was America’s first (and so far only) trial on a pediatric gender medicine (PGM) ban. The state of Arkansas lost that trial against a team of kids, parents, and gender doctors represented by the ACLU and Sullivan & Cromwell, among other counsel. (I’ll refer to that whole side as “the gender doctors.”)

Arkansas accepted all the factual determinations that the trial court judge made, for example about what gender identity is and whether the trial witnesses were qualified as experts. It simply argued that the judge should have evaluated the PGM ban like any other law, not one that discriminated by sex.

The gender doctors argued that the PGM ban discriminated by sex.

While both sides made other points in their briefs, they seem to have identified sex discrimination as the most important idea to highlight during their face time with the judges.

Today’s argument took place in St. Louis before ten Eighth Circuit judges. I listened on an audio feed that was open to the public. The mp3 is now available on the court’s website.

Background

In 2021, Arkansas became the first state in the US to ban PGM. The gender doctors promptly sued in federal court. The case is named after one of its kid plaintiffs, Dylan Brandt.

Brandt went to trial in the fall of 2022 in a federal courthouse in Little Rock. Judge James Moody, Jr., ruled for the gender doctors in June 2023.

It was a sweeping victory. Moody found that the PGM ban violated the rights of “transgender” kids, their parents, and their doctors; he found that gender identity was “a person’s deeply felt internal sense of belonging to a particular gender;” he found that the gender doctors’ witnesses were experts in whatever they felt like testifying about, and the state’s witnesses all lacked credibility or didn’t testify based on science because they were religious — even the sexologist whose religion had never come up. (Stephen Levine “struggles with the conflict between his scientific understanding for the need for transgender care and his faith.”)

Moody cribbed much of his decision from the gender doctors’ filings.

After I learned in March that the ACLU had engaged in deceitful “judge shopping” in its Alabama PGM lawsuit, I questioned whether its lawyers or Moody himself had finagled Brandt onto his docket.

Arkansas dropped the ball in a number of ways during trial, especially when it came to challenging the gender doctors’ expert witnesses — the crux of the case. I felt sympathy for the small team of government lawyers because they were outgunned by the ACLU and Sullivan & Cromwell.

The gender doctors relied on emotional blackmail, appeals to authority, and deception to make their case. They engaged in so many gross shenanigans that it took me 12 posts to document the worst of it. Here’s an index.

Arkansas appealed its loss to the Eighth Circuit Court of Appeals. That court agreed to hear it “en banc,” meaning all the circuit’s judges are weighing in and if anyone wants to appeal their decision, the next stop is the US Supreme Court.

The state’s brief called out Moody’s weird treatment of its expert witnesses.

The Biden Administration filed a brief on behalf of the gender doctors. The court agreed to let its lawyer (from the Department of Justice) have a turn at oral argument.

Arkansas Narrows the Issues

Appearing for Arkansas today was Dylan Jacobs, the state’s deputy solicitor general. He served on the Brandt trial team along with a few other lawyers in the state’s office of the Attorney General.

Oral argument is unpredictable. The judge(s) might blast you with questions the whole time (“hot bench”) or they might sit back and listen. I prepare by (1) outlining an opening statement that I’ll deliver until a judge interrupts me and (2) scripting out key points that I’ll hit when there’s a break in the action or when they’re relevant to a judge’s question.

Jacobs delivered a cursory opening. The case, he said, was about whether the US Constitution “compels states to allow life-altering gender transition procedures to be performed on minors.” He pointed out that two other federal appeals courts had upheld PGM bans (the 6th and 11th Circuits — at preliminary stages of the lawsuits). Then he invited questions. Later there were awkward silences that neither he nor the judges seemed excited to fill. This is hardly malpractice but it suggests a lack of eagerness.

A judge said it seemed, based on testimony at trial, that gender medicine was the “only form of care” available for “a certain number of people.” She noted there was “a broad range of facts you’re not contesting” and asked whether she had that right.

Jacobs: Correct, we don’t challenge any factual findings that the district court made here.

Jacobs argued that the factual record supported the state’s position because some detransitioners testified about their change of gender identity (meaning the state was justified in trying to protect minors from similar regret). He did not champion the testimony of any of the state’s medical witnesses, like the reformist gender doctor Stephen Levine. Jacobs couldn’t do that because he wasn’t challenging the judge’s finding that Levine’s testimony was all based on his struggle with his faith (except where it supported the gender doctors’ case … seriously).

There are some points that Arkansas can’t dispute because its lawyers didn’t object at trial (or dropped their objection after Moody bullied them). But Moody’s gonzo evaluations of the state’s witnesses were fair game. Challenging them would have opened the door to fighting against a number of his factual findings that were contradicted by Levine and other witnesses.

I don’t mean to condemn Arkansas’ strategy. There’s absolutely stuff I don’t know which is informing it. But listening to oral argument gave me the same feeling I had when I read the Brandt trial transcripts: there’s no killer instinct here. These guys are holding back. This time around, I don’t think lack of resources is the problem.

Passion of the Gender Doctors

The ACLU’s Chase Strangio argued for the gender doctors. She focused on the idea that the PGM ban discriminated by sex because the treatments vary depending on the patient’s sex. It’s a tiresome, semantic argument with some caselaw supporting it but also a lot on the other side. As I’ve explained, we all know PGM bans aren’t motivated by sexism.

One judge pressed Strangio about the Supreme Court’s Eighth Amendment jurisprudence. This referred to the idea that adolescents’ brains aren’t fully developed, so it’s cruel to punish them as if they’re adults. If we protect kids in the context of criminal punishment, why not also protect them when it comes to drugs and surgeries?

Strangio responded that the trial record shows transition regret is “extremely rare.” And she was right. That’s what the trial record shows. The testimony came from Jack Turban. Judge Moody found it to be a fact.

The DOJ lawyer recited a tedious argument about sex discrimination that added nothing except a reminder to the court that her client, the professional-managerial class — excuse me, I mean the “United States of America” — stands with gender doctors.

The Forecast

The 8th Circuit might rule for Arkansas despite everything because it’s dominated by Republican appointees and Arkansas happens to be right. That could mean sending the case back to the trial court with the instruction to review the PGM ban under a more generous standard — because it doesn’t discriminate by sex and transgender people are not a “suspect class.”

Or the court could uphold Moody’s ruling. This would suck for the other PGM lawsuits percolating around the country. The ones within the Eighth Circuit would be bound by it. The cases proceeding outside the Eighth Circuit would be haunted by it. Since Brandt will be the first federal appeal on the subject to be decided after a full trial, other judges will be influenced by the ruling.

The bottom line is we don’t want Brandt going to the Supreme Court because the trial record is terrible. The forces of reason are proceeding with more panache in similar lawsuits around the US — for example, L.W. v. Skrmetti in federal court in Tennessee, and Noe v. Parsons in Missouri state court. But none are even scheduled for trial yet. It’ll be a while before they’re ripe for Supreme Court review.

Hopefully if Arkansas loses today’s battle, it won’t appeal.

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This post was lightly edited on Sept. 29, 2024.