Lawsuit seeks to block Missouri attorney general restrictions on transgender health care

Missouri Attorney General Andrew Bailey’s emergency rule blocking access to certain medical procedures for transgender children and adults faces a lawsuit seeking to block implementation days before it is scheduled to go into effect.

The American Civil Liberties Union of Missouri and Lambda Legal filed the lawsuit Monday in St. Louis County calling Bailey’s rule “an attempt to legislate behind closed doors.”

The 46-page lawsuit asks the court to block Bailey’s emergency order “to protect Missourians,” including five plaintiffs who would be harmed if it is allowed to be enacted as scheduled Thursday.

Bailey published an initial press release March 20, announcing an emergency rule to “protect children.” The final language, released April 13, would impact transgender adults and children by setting barriers to access gender-affirming care.

The hurdles include 15 psychiatric visits spanning not fewer than 18 months and three consecutive years of gender dysphoria. Any mental health conditions should be “treated and resolved,” the order also states.

The lawsuit notes that an emergency rule can only last 180 calendar days or 30 legislative days. With Missouri’s legislative session coming to a close, the April 27 effective date allows the rule to stand 285 days.

But lawyers for the plaintiffs argue that Circuit Court Judge Kristine Kerr should block Bailey from enacting the rule. 

The plaintiffs include two transgender children whose plans for gender-affirming care would be halted under Bailey’s order. This could force the children to undergo puberty as the gender they do not identify with, causing depression.

“Taking away puberty-delaying treatment or denying hormone treatment may harm transgender minors forever,” the lawsuit says. “There is no ‘undo’ button for puberty when it conflicts with your gender identity.”

The first plaintiff, an eighth-grade girl with the initials R.S., says the attorney general’s rule would bar her from continuing her medical plan.

R.S. had her first appointment at the Washington University Transgender Center in May 2021 and was diagnosed with gender dysphoria in September 2021. As her peers began to show signs of puberty, her gender dysphoria intensified, the lawsuit says.

She received a puberty-blocking implant to keep her from developing characteristics counter to her gender identity in January 2022. She removed the implant in March and had a plan to preserve her fertility, including beginning cross-sex hormones in a few months.

But now, the emergency rule would block her from beginning cross-sex hormones unless she began treatment right away, potentially sacrificing her fertility.

She has ADHD and anxiety, so under the emergency rule, she anticipates never being able to receive the cross-sex hormones she desires unless she starts taking them now.

Another plaintiff — A.F., a 13-year old transgender girl — has plans to start cross-sex hormones this summer. But she has mental health conditions and would not be eligible to start treatment under the emergency rule’s provisions.

“A.F.’s parents view the emergency rule as the greatest threat to her mental health,” the lawsuit says. “When asked how that makes her feel, she stated she ‘would not want to be on this planet anymore.’”

Logan Casey, a 36-year-old transgender man, also worries his  ADHD diagnosis may block his access to  gender-affirming care.

Bailey’s order also requires a screening for “social contagion,” which Casey worries might conflict with his job as a LGBTQ+ researcher.

“[Casey] is worried that his work as a researcher frequently focusing on LGBTQ+ people and interconnections with other transgender people will be weaponized against him in order to deny him access to a medically necessary medication that he has taken for more than a decade,” the lawsuit says.

Other plaintiffs include Kelly Storck, a licensed clinical social worker, and Southampton Community Healthcare — both which serve transgender Missourians during their transitions.

The lawsuit alleges the rule would make providers choose between following the attorney general’s orders or doing what they think is best for their patients. Southampton would have to discontinue care for some clients, under the order’s provisions.

“Without access to gender-affirming care, many of Ms. Stork’s clients will endure serious mental health consequences including a ‘very real risk of death by suicide,’” the lawsuit says. 

The petition says this risk of harm is part of the reason why the court should block the rule.

“The denial of medical treatment for gender dysphoria will lead to the development of physical and physiological characteristics that may be irreversible, undesirable, or necessitate otherwise-avoidable medical interventions in the future, such as surgery,” it says.

The plaintiffs’ lawyers also argue the rule is “unconstitutionally vague.”

The rule says providers can continue a prescription “so long as the person or health organization promptly seeks to initiate the treatments and assessments called for by these subparagraphs.”

It also doesn’t define what “treated and resolved” means in regard to mental health conditions.

“Would this require a person with existing depression caused by gender dysphoria to somehow cure their depression before receiving the gender-affirming care necessary to treat and resolve their depression? That is nonsensical — further demonstrating the lack of study, understanding, and thought that went into crafting the rule,” the lawsuit states.

The attorneys also argue that the Missouri Merchandising Practices Act, which Bailey is using for the emergency rule, does not cover health care.

“The emergency rule is an improper, extra-legislative overreach by an unelected political appointee, who purports to distort and weaponize the MMPA, an act purposed on making sure that cars are sold with titles and that hardware stores abide by a warranty on a vacuum, in order to dictate what medical care is available to adults Missourians,” the lawsuit says.

It also argues there is no emergency. Gender-affirming care has been practiced for decades, it states, with the World Professional Association for Transgender Health issuing its first standards of care in 1979.

“The rule fails to explain how medical care that has existed for decades now suddenly constitutes an emergency demanding immediate non-legislative action,” the petition says.

Lambda Legal and the ACLU of Missouri announced their intention to file the lawsuit earlier this month.

Bailey gave the following comment in response to the lawsuit: “Our regulation enacts basic safeguards for interventions that an international medical consensus has determined to be experimental. 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.”