Discover more from BROADview by Lisa Selin Davis
Brandt Files #9: The ACLU’s Deal with the Doctors
In 2005, ACLU lawyers argued for the first time that trans women were women. Their workplace had a “repressive, communist-like atmosphere.”
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. All the entries are linked on the author’s substack page.
The Brandt trial documents cited in this piece are available on the ACLU’s website.
I’m putting myself in the shoes of an ACLU lawyer the night before the Brandt trial begins.
Taking stock of my case, I see…
I’ve got ominous speculation instead of data to establish why kids can’t wait until 18 to transition.
A foundational concept, “gender identity,” is defined paradoxically.
An expert witness is hawking a theory of how doctors treat trans patients that’s contradicted by witnesses who’ll testify about their real lives, including my own clients.
Another expert witness, a condescending young white guy, has publicly compared women’s sports advocates to Jim Crow racists.
We’re insisting that trans identity is easy to tell apart from gender nonconformity, but two local physicians who provide trans healthcare have testified in depositions that they treat “gender nonconformity.”
My medical witnesses are all saying their drugs make kids feel good in the short term, but I’ve got no one who can rebut the state’s expert witness, a psychiatrist specializing in trans mental healthcare who will testify patients kill themselves at high rates after receiving the treatments for a decade.
An endocrinologist witness, whom I need to persuade the judge that youth gender medicine isn’t “experimental,” is blocking the puberty of patients in their mid-20s.
Just typing this up as a conceit, I’m squirming; I feel like I’m in one of those nightmares where I show up to court naked. It makes me wonder: what were the ACLU lawyers thinking as they litigated Brandt?
Others have told the story of how the ACLU’s priorities tilted toward civil rights during the Trump presidency. You’ve probably also heard the theory that same-sex marriage advocates scurried over to trans litigation after the gay fight was won in the Supreme Court’s 2015 Obergefell decision. Those are narratives about the chase for grants and mega donations. I want to examine the intellectual corruption of the ACLU—the descent into sophistry by high-status attorneys who could’ve just gone out and found another job in 2015. This slide started long before Obergefell. And in the end, the story comes back to money after all.
The Lawyer-Judge Feedback Loop that Whipped Doctors into Ultimate Authorities
As far back as the 1980s, federal courts recognized “transsexualism” as “a serious medical need” when trans-identified males sued prison systems for failing to administer estrogen. Many judges were friendly to the idea of trans people suffering from a “medical” condition, an affinity that advocates no doubt noticed.
In 2005, the ACLU started representing trans clients in discrimination lawsuits. It argued that trans people literally were the opposite sex. They supposedly suffered not from a mental illness but from a body that failed to conform to their “gender identity.” As I pointed out last week, this cosmology was not founded in reality or even psychiatry.
But they made it sound smart. Here’s the ACLU’s 2005 complaint in Schroer v. Library of Congress, an employment discrimination case (emphasis added) in which a job offer was rescinded once the employee made sex change plans clear:
“Gender identity is a person’s internal psychological identification as a man or a woman. ‘Gender dysphoria’ … is a medical condition in which a person’s gender identity does not match his or her anatomical sex at birth. … Medical specialists in gender identity agree that gender dysphoria establishes itself very early … Based on contemporary medical knowledge …”
The phrase “medical specialists in gender identity” was brash. Those specialists are mental health professionals. Many of them do not have medical degrees, including the plaintiff’s own expert witness, a psychologist named Walter Bockting. In the ACLU’s recounting, Bockting testified that it was “well established in the scientific community that gender identity is the most important among the nine factors making up a person’s sex.” The judge found Bockting’s testimony “impressive” and ruled in favor of the ACLU’s client (albeit in a way that avoided nailing down “the proper scientific definition of sex”) ordering a payment to him of almost $500,000.
And so the ACLU continued to flog the word “medical.” Here’s the first paragraph of its public school bathrooms lawsuit in G.G. v. Gloucester County School Board, filed in 2015 (emphasis added):
“G.G. … was designated female at birth but he has a male gender identity. He has been diagnosed by medical professionals as having Gender Dysphoria, which is a serious medical condition characterized by clinically significant distress caused by an incongruence between a person’s gender identity and the person’s assigned sex at birth.”
The decision in G.G., issued in the trans-identified student’s favor in 2020, dripped with reverence for the healthcare industry:
“To be sure, many of us carry heavy baggage into any discussion of gender and sex. With the help of our amici and [the plaintiff] Grimm’s expert, we start by unloading that baggage and developing a fact-based understanding of what it means to be transgender …”
“Grimm’s expert” was an endocrinologist. As to “amici” (lobbying groups that filed briefs advocating for one side), there was a raft of them backing Grimm. But the decision cited “medical amici” ten times, referring to “Medical, Public Health, and Mental Health Organizations” represented by the major commercial law firm Jenner & Block. Those organizations primarily cited psychology texts, which the court termed “medical.” The unusual expression “our amici” betrayed the court’s bias toward the medical profession—courts don’t normally refer to lobbyists with such affection, if they refer to them at all.
The ACLU filed Brandt soon after the Grimm decision, in 2021. By that point, trans rights advocates and judges had been engaged in a feedback loop for decades: the lawyers called on “doctors” to testify, the judges quoted the experts approvingly, the lawyers doubled down on medical rhetoric, the judges quoted them … And so in Brandt, the ACLU used the word “medical” seven times in the complaint’s second paragraph (emphasis added):
“Since long before the adoption of the Health Care Ban, there has been a well-established medical consensus that certain medical treatments are necessary to treat some adolescents diagnosed with gender dysphoria—a medical and mental health condition characterized by clinically significant distress caused by an incongruence between a person’s gender identity and the sex they were assigned at birth. Medical guidelines recognized by all the major medical associations provide a framework for the safe and effective treatment of this condition. For some adolescent patients with gender dysphoria, puberty-delaying treatment and hormone therapy are medically indicated to alleviate severe distress. Chest reconstruction surgery may be medically necessary for some older adolescents.”
I am a survivor of many legal drafting teams. Normally if you repeat the same word over and over in a single paragraph, a coworker will swiftly redline out most of the occurrences. Exception: when you’ve all decided the word is crucial to framing your case and you are going to repeat it as much as you possibly can.
Meritocracy Gives Us the Leaders We Deserve
The tacky “medical” framework I just laid out is yet another example of the ACLU relying on rhetoric and manipulation to dazzle judges in trans litigation. I imagine some cynics are thinking, Isn’t that what lawyers always do? No! Especially not public interest lawyers who file affirmative lawsuits. These people choose their cases. They take ones they believe have merit, meaning they can score clean wins by marshaling facts and arguing logically. Sure, there might be an inconvenient fact they have to finesse or procedural angles they have to maneuver around creatively, but they don’t fake their central claims. They’re fastidious and conscientious, often annoyingly so. (Disclosure: I work in the field I’m describing.) So why did ACLU attorneys behave so deviantly in Brandt?
The ACLU is a moral authority among progressives throughout the US. Its national office is one of the highest-paying public interest law employers. Its local affiliates, even in big cities, not so much, but the prestige is still there. ACLU attorneys write in The New York Times opinion section and appear on MSNBC. Both the national office and the larger local affiliates tend to hire lawyers who are polished, credentialed, and mouthy, yet appropriate—they earned their place in the liberal firmament by studying and networking. They’re proud that they work at the valorous ACLU and not, for example, at one of the lunkheaded biglaw firms that partner with the ACLU. They say, “I practice civil rights and civil liberties law” the way Harvard grads say “I went to school near Boston.” Maybe they click with maverick doctors at elite hospitals, and uncritically trust them.
And then there’s the LGBTQ project’s Deputy Director for Transgender Justice, Chase Strangio, a Northeastern graduate who started out in civil legal aid and once trashed gay marriage in an Instagram post accompanied by a bathroom-mirror selfie. Say what you will about Strangio, at least he’s salt of the earth. Anyway, he seems to be a true believer, so that’s his excuse. (Strangio is a trans-medicalized female who asks to be referred to as male.)
The ACLU website uses the term LGBT on some pages and on others, LGBTQ. When referring to someone’s job title here, I use whichever permutation is on their staff bio page. What are queer rights, anyway? I think it’s that thing where college kids get extra time on exams if their Mom pays a doctor to say they have ADHD.
For months I kept asking myself, How could any self-respecting lawyer base a lawsuit on a paradoxical premise, or call a witness to craft a false impression that steroids have no side effects? Finally I realized the people who litigated Brandt are so much more than lawyers. Leslie Cooper, a deputy director in the LGBT & HIV Project, has spoken about using litigation to move public opinion on trans issues. Employing the Hebrew term for “repairing the world,” Cooper said, “I feel like a lot of our work serves the purpose of tikkun olam. We still have a long way to go to heal the world in terms of how LGBT people have been treated and continue to be treated.” The director of the LGBTQ & HIV project, James Esseks, has promised to “create a culture where discrimination against LGBTQ people is unfathomable.” These ambitions are grandiose and, to people like me who compulsively make fun of queer folks, threatening. You can’t achieve them by lawyerly means like eliciting honest testimony and engaging in logical analysis.
The ACLU rewards its trans rights crusaders. It elevated Strangio to the title of Deputy Director despite his atypical credentials. And around early 2020 it promoted Ria Tabacco Mar, one of its LGBTQ project staff attorneys, to be Director of its Women’s Rights Project. Soon afterward she addressed a student group at NYU Law, her alma mater, which was bestowing an award on her:
“I like to think that I’m not leaving the LGBTQ movement. I’m just working on it from a different platform. All too often we’ve seen so-called feminist groups … espouse anti-trans views under the mantle of feminism. Anyone who is truly a feminist understands the fight for gender justice includes all of us.”
I think ACLU attorneys got comfortable making illogical arguments propped up by rhetorical tricks that were more honorable but less sophisticated than hypnosis because these arguments helped them win. They won lawsuits. They won jobs. They won awards (so many awards).
The Dawn of Trans
When the ACLU debuted its position that trans women were women in 2005, the organization was going through a period of turmoil. The next few paragraphs are adapted from a 2007 New York Magazine story.
In 2001, Anthony Romero took over the ACLU. He was a gay, 35-year old Latino plucked from the Ford Foundation, where he’d managed grants to the ACLU and schmoozed its soon-to-retire executive director. A week after he started,
Saudi Arabia terrorists attacked the US. Congress passed the Patriot Act with bipartisan support, the Bush administration trampled civil liberties, and the ACLU’s coffers exploded. By 2007, annual donations were more than double the 2001 budget and the ACLU had become “by far the world’s largest public-interest law firm.”
In the early years of Romero’s reign, staffers described a “repressive, communist-like atmosphere.” He abandoned civil liberties principles to score grants and surveil underlings. Board members accused him of being a remorseless liar who screamed at dissenters. But the board didn’t oust him because, according to one insider’s theory:
“Romero has flooded so much money into the ACLU system that committed civil libertarians are loath to sideline him for any reason.”
Cash has always been Romero’s calling card. In 2005, his decision to name a building after a donor alarmed board members, one of whom suggested he made the ACLU look like it was “for sale.” Wendy Kaminer, an ACLU board member at the time, claimed he “skillfully cultivated gazillionaire donors who made seven- and eight-figure gifts whose patronage effectively replaced board oversight[.]” (Kaminer’s 2009 book argues with overwhelming force that Romero is scum; she has since attacked the ACLU’s trans rights advocacy.) In 2020, he responded to staff who were struggling to deal with a volatile, nasty department head by reminding them he had more important things to do than meet with them:
“You know, it’s year-end, I bring in a bunch of money at the year-end. You want me to keep my donor appointments, right?”
Romero still leads the ACLU today. He has presided during an era when billionaires donate lavishly to the cause of LGBT rights, and he's made sure his organization gets a piece of the loot. For example, in 2021, Jon Stryker donated $15 million to the ACLU’s LGBTQ project. Stryker is an heir to the med tech company Stryker Corp. At least one other med tech billionaire, Jennifer Pritzker, also funds the ACLU’s trans work.
When NYM asked Romero about same-sex marriage in 2007, as the ACLU was fighting for it, he responded, “I’m not interested in the concept of marriage.” For all the furor about Romero disregarding free speech and employee autonomy, he apparently never made Strangio take down that 2022 Instagram post deriding marriage as “fundamentally violent” (Strangio did remove a notorious 2020 Tweet that implied he wanted to ban the gender-industry expose Irreversible Damage). The ACLU’s role in the gay equality movement now looks, in hindsight, like donation-bait.
In 2005, ACLU attorneys were answering to a leader who prioritized money and scorned basic decency. They still are. And most of today’s staff were hired under his regime.
The Arkansas Child Represented by the ACLU
Brandt is still active because Arkansas appealed its loss. One of the ACLU’s clients is named Brooke. At the time of trial in fall 2022, Brooke was a fifth-grade boy who liked to write stories, draw, and play Roblox with his sister. His mother testified that when Brooke was in second grade, a photographer mistook him for a girl. Brooke’s mother asked him how he felt about it and he said “happy.” From that moment on, Brooke’s parents pretended that he was a girl. His mother wasn’t surprised by Brooke’s “gender identity” because he liked princesses and feminine clothing::
“This was, you know, when we all discovered Frozen the movie. And so anything to have an Elsa ponytail. And so she would often take a t-shirt … and wrap it around her head and put a ponytail holder on it … so she made blond hair.”
Now that Brooke was growing up, he was not so easygoing and “happy” about gender. His mother testified that Brooke fretted to her and her husband:
“She worries about getting an Adam’s apple … She’s worried about [starting puberty] … especially now that she is starting to see some development and changes happening. She has expressed to both of us this isn’t what she wants and it makes her very anxious and scared.”
Because they prevailed at trial, Brooke’s parents and endocrinologist are now free to treat Brooke’s anxiety by administering puberty blockers to him. This might permanently impact his bone and brain development. If, after several years of stalled maturity, he continues to say he is female, they’ll offer him cross-sex hormones in order to grow breasts and hips. (Almost everyone who takes puberty blockers goes on to cross-sex hormones.) This therapy may cause him to develop brain fog. His doctors will likely suggest castration and vaginoplasty as part of his gender-affirming care. If he chooses the latter and is short on penile tissue (because his puberty was blocked), surgeons will use patches of his stomach lining or bowels to create a pseudo-vagina. This surgery poses a risk of death; if he survives, Brooke may need to wear pads in his underwear for the rest of his life due to “secretions” that are “constant.”
Brooke may never experience orgasm. A decade or so after starting on estrogen he’ll have a risk of stroke almost ten times what it otherwise would be, plus (if he undergoes “bottom” surgery) a risk of suicide that’s twenty times higher. Perhaps he will declare he is not female after all, and look back at his Brandt-era self as an “effeminate boy” who saw transition “as a way out of [his] homosexuality.”
The risks of medicalizing at a young age are worth it because Brooke would be distressed by puberty (I’m channeling the ACLU again). There is no chance that growing into a man would make him realize he was comfortable being seen as male, just like being mistaken for a girl made him realize he was comfortable being seen as female. The reason we know that is that he has a female gender identity, which we know because he is happy to be seen as female. This sense of his gender comes from within, and tells Brooke that he belongs to the group of people who have a female body (but only the female-bodied people who have female gender identities, not the ones who have male or nonbinary gender identities). Medical professionals can’t say where, in a male body, the female gender identity resides, but they know it’s in there if the male says he is female–unless his understanding of his gender identity is evolving. In conclusion, Brooke’s puberty must be stopped.
Brooke has 19 attorneys, including Cooper, Esseks, and Strangio. If any of them ever waver in their conviction that Brooke’s parents and endocrinologist should be permitted to block his puberty, I suppose they tell themselves it’s not their place to second-guess medical professionals. But even if those doctors have the best of intentions, they’re not experts in rooting out logical fallacies.
This is the ninth entry in The Brandt Files. Find past entries on the author’s profile page.