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ACLU sues to block Missouri rule on transgender health care

Andrew Bailey
Posted at 5:34 PM, Apr 24, 2023
and last updated 2023-04-24 18:34:40-04

JEFFERSON CITY, Mo. — The Missouri ACLU on Monday sued to block new state restrictions on both adults and children seeking gender-affirming health care, which are set to kick in Thursday.

ACLU, Lambda Legal and Bryan Cave Leighton LLP attorneys representing transgender Missourians and health care providers asked a St. Louis County judge to stop the first-of-its-kind rule from taking effect.

They argue that Republican Attorney General Andrew Bailey has no authority to use a state consumer-protection law to regulate gender-affirming care through emergency rule-making.

The rule is "a baseless and discriminatory attempt to limit the healthcare options for transgender individuals, who already face several barriers accessing necessary and life-saving medical care,” said Dr. Samuel Tochtrop of plaintiff Southampton Community Healthcare, in a statement.

Before gender-affirming medical treatments can be provided by physicians, the regulation requires 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. Patients also would first have to be screened for autism and “social media addiction,” and any psychiatric symptoms from mental health issues would have to be treated and resolved.

Some individuals will be allowed to maintain their prescriptions while they promptly receive the required assessments.

“Our regulation enacts basic safeguards for interventions that an international medical consensus has determined to be experimental," Bailey said in a Monday statement. "Rather than ensure that patients are protected by common sense safeguards, these organizations are racing to court in an effort to continue their ideologically-based procedures masquerading as medicine.”

Bailey marketed the restrictions as a way to protect minors from what he describes as experimental treatments when he announced plans to create the rule in March. He applied limits to adults as well in the final rule.

“We have serious concerns about how children are being treated throughout the state. But we believe everyone is entitled to evidence-based medicine and adequate mental health care,” Bailey spokeswoman Madeline Sieren said after the rule was filed April 13.

The rule is an unusual step by Missouri's attorney general, who has limited jurisdiction under state law. The office is responsible for defending state laws, handling felony criminal appeals, and prosecuting financial crimes and consumer fraud.

The lawsuit alleges the rule “is an improper, extra-legislative overreach by an un-elected political appointee” seeking to use the state's consumer-protection law, which plaintiffs describe as “an act purposed on making sure that cars are sold with titles and that hardware stores abide by a warranty on a vacuum.”

If the rule takes effect, doctors who provide gender-affirming health care must first provide a lengthy list of potential negative side effects and information warning against those treatments.

Health care providers will need to ensure “any psychiatric symptoms from existing mental health comorbidities of the patient have been treated and resolved” before providing gender-affirming treatments under the new rule. Physicians also must screen patients for social media addiction, autism and signs of “social contagion with respect to the patient’s gender identity.”

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 are proof 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 and they have their weaknesses.