JEFFERSON CITY, Mo. — A first-of-its-kind rule placing strict regulations on gender-affirming care for minors and adults in Missouri will not begin on Thursday as previously planned after a circuit court judge issued a stay to consider an effort to stop it altogether.
St. Louis County Circuit Judge Ellen Ribaudo issued a stay in the case until Monday, May 1, so she can consider a motion for a temporary restraining order against the rules.
The American Civil Liberties Union, Lambda Legal and Bryan Cave Leighton Paisner LLP attorneys filed a lawsuit seeking a restraining order on behalf of transgender Missourians and health care providers. They argued that Bailey sidestepped the GOP-led Legislature and acted beyond his authority in attempting to regulate gender-affirming health care under the state’s consumer-protection laws.
Republican Attorney General Andrew Bailey's office defended his unusual emergency rule before Judge Ribaudo on Wednesday.
It was announced just prior to the hearing that Ribaudo would replace Judge Kristine Kerr after Bailey's office filed for a change of judge. Both judges were appointed to the bench by Governor Jay Nixon.
The hearing began at 3:15 p.m.
During the hearing, the American Civil Liberties Union testified that “It’s hard to make medical decisions for other people when you’re not a physician," adding that, “We, in this country, defer to medical professionals, and don’t allow a lone individual to turn back the clock decades on the provision of medical care.”
ACLU lawyer Tony Rothert said the attorney general is "interfering with adults' care, too."
Rothert claimed, “We have provided you a mountain of evidence," and said the dearth of peer-reviewed evidence provided by Bailey does "not amount to that proverbial hill of beans.”
Missouri's Solicitor General Josh Divine, a member of the Federalist Society recently brought onto Attorney General Bailey's team, opened his arguments by saying progressive Scandinavian countries have paused gender-affirming care for trans children and adolescents.
Prior to the hearing on Wednesday, Bailey attempted to get the case moved to federal court. That attempt was denied Wednesday afternoon when Judge Henry Autrey remanded the hearing back to Missouri state court.
“You can’t just file something in federal court because you’d like it to be in federal court," he said Wednesday. "There is this little thing that sometimes bites people in the behind called jurisdiction.”
Bailey has touted the emergency restrictions as a way to shield minors from what he describes as experimental medical treatments, although the regulations apply to health care for adults as well.
Those suing argue Bailey sidestepped the GOP-led Legislature and acted beyond his authority in attempting to regulate gender-affirming health care under the state’s consumer-protection laws.
The rule would “essentially outlaw, on less than two weeks’ notice, virtually all medically-necessary treatment for gender dysphoria in Missouri, treatment that is supported by every major medical association in the United States,” attorneys for the plaintiffs wrote in court filings.
The rule will require people to have experienced an “intense pattern” of documented gender dysphoria for three years and to have received at least 15 hourly sessions with a therapist over at least 18 months before receiving puberty blockers, hormones, surgery or other treatment.
Patients also must first be screened for autism and “social media addiction,” and any psychiatric symptoms from mental health issues would have to be treated and resolved.
Some people would be able to maintain their prescriptions while undergoing required assessments.
Bailey issued the restrictions following an investigation he launched in February into the Washington University Transgender Center at St. Louis Children’s Hospital. The investigation was prompted by a former employee who alleged the center was providing children with gender-affirming care without informed consent, not enough individualized case review and wraparound mental health services. An internal review by the university found no misconduct and determined that the former employee's claims were unsubstantiated.
Bailey’s efforts to crack down on gender-affirming health care come as Republican lawmakers across the country, including Missouri, have proposed hundreds of laws aimed at transgender people. At least 13 states have enacted laws restricting or banning gender-affirming care for minors.
The FDA approved puberty blockers 30 years ago to treat children with precocious puberty — a condition that causes sexual development to begin much earlier than usual. Sex hormones — synthetic forms of estrogen and testosterone — were approved decades ago to treat hormone disorders or as birth control pills.
The FDA has not approved the medications specifically to treat gender-questioning youth. But they have been used for many years for that purpose “off label,” a common and accepted practice for many medical conditions. Doctors who treat transgender patients say those decades of use mean the treatments are not experimental.
Critics have raised concerns about children changing their minds. Yet the evidence suggests detransitioning is not as common as opponents of transgender medical treatment for youth contend, though few studies exist.
Bailey issued this statement following the judge's ruling issuing a temporary stay, "This order merely stays the implementation of our rule so the Court can review the briefing. We will continue fighting for all patients to have access to adequate health care."
While cameras were not allowed in the courtroom 5 On Your Side was able to talk with people outside.
"Gender affirming health care is evidence-based, fact-based and scientifically driven care for a group of individuals that need it," Robert Fischer with PROMO said.
Divine made arguments in court via video call saying, "This is not a ban at all—you can get all of these things but you have to go through talk therapy first. The circumstances that create this emergency don’t go away when a person turns 18."
Geddy Cary-Avery is a transgender woman and said talk therapy is not uncommon in gender-affirming care settings.
"That's not unprecedented in gender care, but it is something that has not been a priority as of late, because what medical professionals have observed is that people who wait for long periods of time to access their care are going to suffer more negative consequences over time," Cary-Avery said.
5 On Your Side's Laura Barczewski asked Cary-Avery, "Are we going to lose lives from this if transgender people can't access their gender-affirming care?"
She responded, "Yes. We are just humans and we're just needing to access care in the same way that other people in society are."
Lambda Legal and the ACLU of Missouri issued the following statement:
“We are grateful for the court’s decision to issue a temporary stay of the implementation of the Attorney General’s so-called ‘emergency rule,’ as it more fully considers our request for a temporary restraining order. No less than the health and well-being of thousands of transgender Missourians is at stake.”
“Gender-affirming care is supported by overwhelming scientific data, decades of clinical experience, and the medical consensus of major medical organizations in the United States. The decision on whether or not to allow the implementation of this rule, which ignores the proven sciences and experience of health care providers, will have an immediate impact on Missourians of all ages and their access to lifesaving medical care. In addition, we believe the twisting of Missouri’s consumer protection law to allow one politician to control and limit health care that has been around for decades puts all Missourians who receive any type of medical treatment in jeopardy, should that treatment become a political issue.”
“While we welcome this temporary relief, we look forward to the judge ultimately preventing this rule from going into effect.”
Yamelsie Rodríguez, the president and CEO of Planned Parenthood of the St. Louis Region and Southwest Missouri, provided the following statement after the judge issued the stay:
“Our patients can breathe a bit easier today now that the court sided with science and medicine over the Attorney General’s ideological transphobia. We will continue to provide the gender-affirming care that more than a thousand patients are relying on. This is a temporary win — not only for our patients but for everyone across Missouri because politicians have no business blocking anyone from the care they want and need. We are optimistic the court will permanently strike down these harmful restrictions and send a message to the attorney general that he has no business regulating people’s health care.
“Today’s order is encouraging, but we know these attacks will keep coming. The Attorney General and his league of ideological fanatics are hell-bent on denying science and evidence to attack the trans community in the same way they’ve attacked people seeking an abortion. But we'll never stop standing with and fighting for our patients — we’re here no matter what.”
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Ballentine reported from Jefferson City, Missouri.