With the end of the first week of testimony in federal court regarding Arkansas' first-in-the-nation law banning hormone therapy for transgender minors, the parties in the case are now waiting for Nov. 28 and the resumption of testimony, after which they will have to wait again while a federal judge ponders the matter before making a ruling.
The trial began Oct. 17. Plaintiffs in the trial rested their case the following Friday, at which time the defense team put on their first three witnesses before court recessed until the last week of November.
Act 626 of 2021, the Save Adolescents From Experimentation Act, is heralded by state lawmakers and the attorney general's office as a needed protection to keep Arkansas children safe from life-altering medical procedures at a time when they are too young to make such decisions. Opponents of the law say it is a violation of the constitutional rights of children, their parents and their health care providers, and places transgender young people in danger by denying them life-saving gender affirmation care.
Plaintiffs in the case, represented by attorneys from the American Civil Liberties Union, are Dylan Brandt, Parker Saxton, Sabrina Jennen and Brooke Dennis and their parents, Joanna Brandt, Donnie Saxton, Aaron and Lacey Jennen, Shayne and Amanda Dennis, and two physicians who provide health care for transgender teens, Dr. Michele Hutchison and Dr. Kathryn Stambough.
Defendants in the case, represented by a legal team from the state's attorney general's office, are Arkansas Attorney General Leslie Rutledge, Medical Board Director Amy Embry and Medical Board members Sylvia Simon, Robert Breving Jr., John Scribner, Elizabeth Anderson, Rhys Branman, Edward "Ward" Gardner, Rodney Griffin, Betty Guhman, Bryan Hyatt, Timothy Paden, Don Philips, William Rutledge, David Staggs and Veryl Hodges.
An indication of the national attention the lawsuit has drawn are the numbers of business groups and medical associations that have filed amicus -- friend of the court -- briefs on the side of the plaintiffs and the number of states that have joined on the side of the defendants.
The courtroom was filled on the opening day of the bench trial -- presided over by U.S. District Judge James M. Moody Jr. -- with most of the plaintiffs in attendance with their families and supporters, staff from the ACLU of Arkansas and others filling the gallery. At the outset of the trial, because there is no jury, Moody allowed media representatives covering the trial to sit in the jury box to better hear the attorneys and witnesses.
The beginning of the trial last week was marked with tension between Moody and the head of the state's legal team, Arkansas Deputy Solicitor General Dylan Jacobs, who clashed repeatedly over evidentiary issues. Particularly nettlesome was Jacobs' reluctance to agree to stipulations of fact that Moody said should have been ironed out well in advance of the trial's beginning. Another snag was over the court schedule, which Moody said would only allow one week for both sides to present their witnesses, bringing protests from both sides of the courtroom.
Both parties later agreed to resume Nov. 28 for an additional four days of testimony.
When the trial resumes, the state is expected to present testimony from a number of expert witnesses, including Dr. Patrick Lappert, a cosmetic surgeon who practices in Decatur, Ala., and operates a skin care clinic there; Mark Regenerus, a sociologist with the University of Texas at Austin; Dr Stephen Levine, a clinical psychiatrist at Case Western Reserve University School of Medicine in Ohio; and Dr. Paul Hruz, a pediatric endocrinologist in St. Louis who specializes in the treatment of pediatric diabetes.
During last week's proceedings, the admission of transcripts from the legislative hearings that led up to the passage of Act 626 drew an objection from Amanda Land with the attorney general's office on the grounds that the witnesses who appeared before the legislature were not qualified to present expert or medical testimony and that their testimony would be irrelevant to the plaintiff's constitutional claims.
"Primarily it is a relevance objection," she said.
"You're claiming that whoever talked about it wasn't competent for reasons they either weren't qualified, I'm not sure I follow you," Moody said, asking if Land's position was that those who testified before the legislature weren't qualified to offer expert opinions on the matter, what is known as a "Daubert objection," named after a 1993 Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals.
Land said the defense position was that the legislative transcripts posed no relevance to the matters the court is to decide and also objected to the transcripts as hearsay evidence. Moody said he would rule on the motion after reviewing the transcripts.
Much of the plaintiffs' case was buttressed by expert testimony from specialists in pediatric gender dysphoria, including a California psychiatrist with three decades of experience in the field who served on the committee that established WPATH standards of care in 2011 and 2021 that are used extensively in treating gender dysphoria.
Dr. Dan Karasic testified to the protocols for diagnosing gender dysphoria, standards of care established by the World Professional Association for Transgender Health and the consequences of individuals with gender dysphoria receiving improper care or no care at all. He said people suffering from gender dysphoria often suffer elevated rates of depression or anxiety and are prone to suicidal ideations, attempts or self-mutilation.
Pediatric endocrinologist Dr. Deanna Adkins described the use of puberty blockers and hormonal therapy to treat gender dysphoria and the process of evaluating patients and their families, and she stressed that all therapies are individualized to the patient. She said surgical interventions such as feminizing vaginoplasty for transgender females and masculinizing phalloplasty for transgender males are not recommended for minor patients and are not performed at Duke.
Dr. Armand Antommaria, a bioethicist and pediatric hospitalist with Cincinnati Children's Hospital, described the research that has gone into treatments for gender dysphoria and the process of consent that combines caregivers, parents or guardians and pediatric patients to ensure such patients are truly suffering from gender dysphoria rather than some other condition. He said that Act 626, should it be allowed to go into effect, would present a critical ethical dilemma for caregivers.
"Health care providers have an obligation to benefit their patients," Antommaria said. "The act puts health care providers in the untenable position of not potentially providing medically indicated treatment to patients that they believe would result in benefit to the patient, or violating the act and potentially losing their license and the ability to practice medicine and benefit other patients."
Regarding the contention of lawmakers that such treatments are experimental or dangerous, Antommaria said treatments used today have undergone rigorous review by WPATH and the Endocrine Society, both of which have established the standards of care and guidelines followed by providers in the U.S. and much of the world. Even though risks are associated with treatment for gender dysphoria, he pointed out that those risks "are not categorically different than the risks associated with other treatments for other conditions."
On Tuesday and Wednesday, Donnie Saxton, Aaron Jennen, Amanda Dennis and Joanna Brandt testified, describing the moments their children came out to them as transgender, the signs they realized that for years had been leading up to those revelations and the process they followed in making sure their children received care for their gender dysphoria. Testimony Wednesday by Dylan Brandt, who described his experiences as a transgender teen, provided the finale to the plaintiffs' testimony.
Asked how Parker took the news of the legislation, Saxton said its effect on his son was devastating.
"I'm not sure if I'm supposed to use the words he said," Saxton said.
"I expect we've heard it all before," Moody said, drawing an appreciative laugh from Saxton.
"He said, 'I feel like we've done all this for nothing,'" Saxton said, "and he went right back to the deep, dark place he had been."
Saxton described sleeping on a sofa in the living room of his home during Parker's darkest days before beginning hormone therapy. He nearly broke down in tears as he described the fears he had for his son.
"I just didn't know," he said. "He's a loving soul but you never know when someone is that far down."
Joanna Brandt described how she learned her son, Dylan, now 17, was transgender when he wrote a letter to her at 13 that he had his brother give to her. She said she was immediately supportive but that she tried to temper Dylan's impatience to start the transition process with caution as she tried to learn all she could about gender dysphoria. She described several milestones in her son's journey, such as the first time she took him shopping for boy's clothes.
"That was so affirming for him," she said. "He was so incredibly happy. He felt loved and affirmed."
She said there had been no negative side effects to Dylan's testosterone therapy since beginning it at Arkansas Children's Hospital two years ago and she tearfully described the transformation he had experienced.
"I compare it feeling like he had been holding his breath for years," she said. "He was finally able to exhale and relax."
Dylan, a high school junior in the small western Arkansas town of Greenwood, said he hasn't experienced universal acceptance and has had to deal with bullying by others at school, but was unequivocal that interrupting his transition is not a consideration.
"My outside finally matches the way I feel on my inside," he said to the court.
All four families testified that if Act 626 is allowed to go into effect, they will either travel out of state to continue their children's care or they will move to a state were such care is not at risk.