Missouri Attorney General Andrew Bailey on Thursday dialed up the temperature in the already heated debate over care for transgender people with an emergency rule mandating “guardrails” to be used by medical and mental health providers who treat transgender patients.
The rule was issued on the same day the Missouri House passed its version of a bill, HB 419, that would ban gender-affirming care for minors. The Senate has already passed a version of the legislation.
In the emergency rule, Bailey cites provisions of the Missouri Merchandising Practices Act — the state’s consumer protection law — as a justification for issuing broad proclamations. The rule, once filed with the secretary of state’s office, would apply to adults and minors in Missouri. If it is not challenged or delayed in a court, it would go into effect on April 27 and expire on Feb. 6, 2024.
The American Civil Liberties Union of Missouri and Lambda Legal, an LGBTQ+ legal advocacy group, said they planned a legal challenge to Bailey’s actions.
“The Attorney General’s so-called emergency rule is based on distorted, misleading, and debunked claims and ignores the overwhelming body of scientific and medical evidence supporting this care as well as the medical experts and doctors who work with transgender people every day,” the groups wrote in a news release. “This rule is a shocking attempt to exploit Missouri’s consumer protection laws in order to play politics with life-saving medical care.”
They added: “This emergency regulation will have a drastically negative impact on transgender youth, compounding the prejudice, discrimination, violence, and other forms of stigma they continue to face in their daily lives. We will defend the rights of transgender people through any necessary legal action, just as we have done in other states engaging in this anti-science and discriminatory fearmongering.”
Missouri Attorney General Andrew Bailey’s power under consumer protection provisions
Bailey issued the order under part of Missouri’s consumer protection statute, which allows the attorney general broad power to issue orders intended to protect Missourians.
“This emergency rule is necessary to protect the public health, safety, and welfare, and also to protect a compelling governmental interest as the attorney general is charged with protecting consumers, including minors, from harm and investigating fraud and abuse in the state’s health care payment system,” Missouri Attorney General Bailey says in the order.
Elad Gross, a St. Louis lawyer who is a candidate for the Democratic nomination for Missouri attorney general in the 2024 election, said the order may not stand up in court.
“It is one that he is putting forth on his own, under the extraordinary powers that’s given to an attorney general under Missouri’s consumer protection laws,” Gross said. “And it is one that … will likely be looked at by any court in some kind of legal challenge with particular scrutiny.”
Gross pointed to Missouri Attorney General Bailey’s recent call for a moratorium on some treatments at Washington University’s Transgender Center at St. Louis Children’s Hospital. The clinic denied the request and has continued to provide care while Bailey is investigating a whistleblower’s allegations of reckless and irresponsible practices at the clinic. Parents and those who have received care at the clinic dispute the allegations.
“It’s one person who is a lawyer who is trying to tell doctors and medical professionals how to do their job,” Gross said, referring to Bailey’s emergency order. “I think that’s why this isn’t written very well or very clearly, because he doesn’t know how to do their job.”
Requirements for transgender health care providers laid out by Bailey’s office
In his proposed rule, Bailey states that “individuals of any age experiencing gender dysphoria or related conditions should be able to and are able to obtain care in Missouri.”
But he asserts that, in recent years, interventions beyond talk therapy have expanded “exponentially” in Missouri. “These include life-altering pubertal suppression, crosssex hormone therapy, and gender transition surgery — all of which pose very serious side effects,” Bailey said.
In a news release accompanying his order, Bailey said an investigation by his office had “uncovered a clandestine network of clinics across the state who are harming children by ignoring the science.” He did not give specifics.
The rule outlines a number of requirements to be met before a provider may provide care beyond talk therapy to a patient of any age. Providers would have to give patients or — in the case of minors — their parents or guardians very specific information about risks associated with gender-affirming care and even use language “materially identical” to what Bailey cites in his order.
The order highlights a decision from Sweden’s National Board of Health and Welfare, which states that the risks of puberty blockers and other hormone therapies “currently outweigh the benefits.” It also points to a different study that was conducted to broaden research in the field, not to make suggestions to physicians about how to provide care, according to the Missouri Independent.
The information that providers would be required to pass on to patients includes some claims that have been made in news reports and are not direct citations of work conducted by researchers or medical professionals.
Along with the notification requirements, patients must undergo at least 15 separate hourly sessions of psychological or psychiatric assessments over no less than 18 months before more advanced treatments can be offered, according to Bailey’s order.
Among other things, providers evaluating a patient for gender-affirming therapy are also required to document and “resolve” mental health comorbidities, screen patients for autism and ensure that patients who are minors are screened for social media addiction at least a year.
Providers would also be required to document things like adverse side effects, both expected and unexpected, of gender-affirming care for at least 15 years after the start of treatments.
Providers who do not follow the procedures laid out in the rule could be subject to a lawsuit from the Missouri attorney general’s office concerning fraudulent practices.
Bailey’s action came closely after House passage of ban on gender-affirming care
Less than an hour before Bailey’s order was issued, the Missouri House passed its version of a ban on gender-affirming care for minors. The bill now heads to the Senate, which has already passed its version of a bill.
The House and Senate versions have some significant differences. The Senate version, SB 49, contains some provisions added as a result of a compromise with Senate Democrats, who filibustered the bill for hours in an attempt to block its passage. Minors already receiving gender-affirming care could continue to do so, and a sunset provision would require lawmakers to reassess the issue after four years. The House version is a more complete ban and does not contain those compromises.
Senate President Pro Tem Caleb Rowden, a Republican from Columbia, said Thursday that the Senate is happy with its version of the bill and he does not expect the body to make any changes. House Speaker Dean Plocher, R-Des Peres, said the same thing regarding the House version.
Lee’s Summit Rep. Keri Ingle, a Democrat who sits on the House committee that heard the bills, pointed to the Republican supermajority in the House and the power that comes with having control over the chamber.
“I think about what I would do with the power that exists on the left side of this room,” Ingle, a social worker, said during debate on the bill. “A supermajority. Guaranteed bill hearings. One session and you have 10 bills hanging on your wall. And this is what you choose to do with that power. For what? For a primary political game? It’s not to protect kids. I can tell you that.”
In a procedural move, a House committee moved the Senate bill a step closer to a floor debate on Thursday, without making any changes. The committee also gave initial approval to a pair of bills that would ban drag performances, or “adult cabarets,” in public or settings where they could be viewed by a person who is not an adult.
And the full House gave first-round approval to a bill that would prevent transgender athletes in public school districts and charter schools, grades six through 12, from participating on teams that align with their gender identity. The restriction would also apply to the state’s colleges. Kansas recently enacted its own sports ban.
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