Dylan Brandt, a transgender 17-year-old and one of the plaintiffs in a lawsuit over the state's first-in-the-nation ban on gender-affirming health care for transgender people younger than 18, took the witness stand Wednesday to testify how the care he has received has changed his life and how the threat of withdrawal of that care has affected him.
Brandt's testimony came at the end of the day as the plaintiffs' case neared its end. The state will begin presenting its case on Friday when court reconvenes, after which it will adjourn until late November when the trial resumes for what U.S. District Judge James M. Moody Jr. said will be a final four days to allow the state to put on the rest of its witnesses.
Sparks flew at the beginning of the day as Moody clashed with Dylan Jacobs of the Arkansas attorney general's office as the judge tried to determine when the state would be able to present all of its witnesses. Jacobs said at the outset of the week that the state had prepared for a 10-day trial and had scheduled witnesses for next week but Moody said Monday that only a week was available in the October schedule to hear the matter.
Moody asked Jacobs if it would be possible to get the state's witnesses to the courthouse on Thursday and Friday so the case could be concluded. Otherwise, he said, the state could present three of its witnesses on Friday but would have to wait until the week of Oct. 28 or Nov. 5 to conclude its case.
As Jacobs began outlining the difficulty of getting the witnesses' schedules rearranged, Moody cut him off.
"The answer is yes or no, Mr. Jacobs," he said.
"We're willing to be flexible but we can't make an expert witness available when they're not available," Jacobs said.
"I understand you can't do it this week," Moody said, "but you've got to bring me an option," adding that if Jacobs didn't present a plan to move forward soon, "we're going to proceed Friday with the witnesses you have."
Complicating the court schedule are two trials in Moody's court scheduled for next week and mid-November that have tied up more than four weeks of the calendar.
Laverne Goldsmith with the ACLU pushed to keep going, telling Moody that by streamlining their case, the state was left with two full days. Noting that many of the ACLU attorneys had come from out of state, she said any effort to expedite the proceedings and shorten the length of a return trip to Arkansas would ease the burden on the plaintiffs.
Finally, it was decided the state will put on three witnesses on Friday who, because they are local, can be in court that day, and to put on the remainder of its case the week of Nov. 28.
Moody also threatened to subpoena Republican Rep. Robin Lundstrum, author of the bill that became Act 626, to testify after Amanda Lamb with the attorney general's office balked at accepting depositions into evidence.
"Would you prefer she be subpoenaed live or would you prefer I use her deposition?" Moody asked. "Or do you need to talk to her about that?"
"We'd like to say it's OK to use the deposition," Lamb said. "But we would like to, for the record, maintain our objections."
"You don't get both," Moody said, exasperated. "OK, I'm going to rule right now and I can have her live, or you can declare her unavailable and I'll use her deposition but you can't straddle the fence."
"We'll waive availability," Lamb said, backing down.
"That's all I needed to know," Moody said.
The trial is the first of its kind in the nation to decide the constitutionality of Arkansas' ban on gender-affirming care for transgender teens -- Act 626, the Save Adolescents From Experimentation (SAFE) Act -- which was passed by an overwhelming Republican majority in the state's General Assembly in April 2021 over the veto of Republican Gov. Asa Hutchinson.
In a Washington Post op-ed published April 8, 2021, two days after legislators overrode his veto, Hutchinson said he vetoed the law because it was "overbroad and extreme, and does not grandfather in those young people who are currently under hormone treatment."
On July 21, 2021, Moody granted a motion for a temporary injunction filed by the American Civil Liberties Union on behalf of four transgender patients in Arkansas, their parents and two health care providers. The lawsuit, Brandt et al. v. Rutledge et al., was filed in May 2021, naming Arkansas Attorney General Leslie Rutledge, Arkansas State Medical Board Director Amy Embry and the 14 members of the medical board as defendants. The lawsuit contends the law violates the equal protection and due process clauses of the 14th Amendment and free speech protections under the First Amendment.
Moody's decision was upheld by a three-judge panel on the Eighth Circuit Court of Appeals in St. Louis last August. Rutledge has asked for an en banc review of that decision by the Eighth Circuit, which has not yet happened.
The ACLU filed the lawsuit on behalf of Brandt; his mother, Joanna Brandt; Sabrina Jennen and her parents, Lacey and Aaron Jennen; Brooke Dennis and her parents, Amanda and Shayne Dennis; Parker Saxton and his father, Donnie Saxton; and health care providers Michele Hutchison and Kathryn Stambaugh, on behalf of themselves and their patients.
Dylan Brandt testified about the anxiety and depression he suffered when he reached puberty as his body began changing in ways that clashed with his gender identity and he said coming out to his mother as transgender was like a weight lifted from his shoulders. Hormone replacement therapy, he said, further alleviated his depression.
"My outside finally matches the way I feel on my inside," he said to the court.
Brandt said when he came out as transgender to his mother, she was accepting and supportive, and as he has progressed, he said, his outlook has gotten more positive, but he said not everyone has been as accepting.
"Being a trans kid in a small town in the South, especially with the laws like this going on, people here make it very well known that I'm not welcome," he said. "The majority of people there are great but a small group of people make it very well known they don't want me there."
Stopping his testosterone treatment if Act 626 is put into effect, he said, would be a major setback.
"We'd probably have to leave the state," he said. "It would mean uprooting our entire lives, everything that we have here."
Brandt said although he and his family may move at some point, he hopes he and his younger brother can both finish high school before that happens.
"We're not ready to leave yet," he said. "Being pushed out of a place I've lived my entire life is really hard."
Joanna Brandt described her son as "an exceptional human being," who she said is "wise beyond his years and one of the most emotionally intelligent people I know."
Hutchison, the former medical director of the Arkansas Children's Hospital Gender Spectrum Clinic in Little Rock, testified that the effects of transgender therapy were transformative on the patients she treated. She said most came to her suffering from depression and anxiety and were withdrawn socially. She said many patients had a history of suicidal ideation or self-harming behavior.
"Very rarely did I ever have a patient come in on that first visit talking about their future," she said. "It's really striking how these kids, once they start seeing themselves in their gender and feeling more peace, they start talking about their future."
Hutchison said many of the patients she saw were taking anti-depressants or anti-anxiety medication but after beginning hormone therapy, began improving mentally and emotionally. Still, she said, many patients still struggled with depression at times.
"Being a teenager is hard," she said. "Being transgender is hard. Doing both at the same time is extremely hard."
When House Bill 1570 -- which became Act 626 -- was introduced, she said, the clinic began getting "tons of phone calls" from patients and parents worried about what might happen should it become law. She said the effect on them was devastating.
"I've seen with my own eyes what happens to these kids just with the prospect of care being withdrawn," Hutchison said, adding that if Act 626 does take effect in Arkansas, "I'm not being hyperbolic here when I say I'm seriously worried we're going to lose some kids."
Stambaugh, who replaced Hutchison in July when Hutchison took a job in New Mexico, echoed her predecessor's sentiment. In response to the state's contention that minor patients can simply wait until they turn 18, she said withholding care for those patients makes time a ticking time bomb as their bodies continue to develop in ways that don't fit their gender identity.
"Not every patient would make it to 18," she said.
Testimony resumes Friday at 9 a.m. as the state begins it case in defense of Act 626.
CORRECTION: In an earlier version of this article, Kathryn Stambaugh's last name was misspelled.