Updated May 4 with new delay
A judge’s order that temporarily stopped Missouri Attorney General Andrew Bailey’s restrictions on transgender health care has been extended another two months.
Both parties agreed on Thursday to push back their next court appearance until July 20, meaning Bailey’s rule won't take effect until at least then. The attorney general's office says the new date worked best for the judge and both parties.
Original story from May 1:
A St. Louis County judge on Monday put a statewide emergency rule that would limit health care for transgender Missourians on hold for at least another two weeks.
Circuit Judge Ellen Ribaudo granted a request from the Missouri chapter of the American Civil Liberties Union, Lambda Legal and their plaintiffs to extend the pause on the rule from Attorney General Andrew Bailey, originally scheduled to go into effect April 27.
If the rule is allowed to take effect, the health care providers and patients who sued the state “will be subjected to immediate and irreparable loss, damage or injury if the Attorney General is permitted to enforce the emergency rule, and its broad, sweeping provisions were implemented without further fact-finding or evidence,” the judge wrote. “At a minimum, without further court action, plaintiffs (the current patients) are at high risk of having their medical care interrupted.”
The judge set another hearing for May 11.
The temporary restraining order is not a final decision on whether the emergency rule will go into effect. Instead, it keeps the status quo in place while the court considers the merits of the case. A judge can grant a temporary restraining order when plaintiffs demonstrate they would be irreparably harmed unless the order is issued.
Bailey’s emergency rule, which applies to minors and adults, would require providers to ensure new patients had resolved any mental health problems, had been screened for autism and had exhibited three medically documented concurrent years of gender dysphoria before receiving care, among other requirements. It would expire in February.
Bailey has argued he can issue the emergency rule on transgender treatments as such health care is experimental, a claim transgender patients and health care professionals dispute. Bailey cited the Merchandising Practices Act, which protects consumers against unlawful business practices, as a justification for the emergency rule.
Lambda Legal, the ACLU and Bryan Cave Leighton Paisner late last month filed a lawsuit on behalf of some transgender patients, their families and health care providers to block the emergency rule from taking effect.
“Today's ruling marks a win for transgender Missourians over an unprecedented attempt by the Attorney General to unilaterally legislate and harm their right to self-expression, bodily autonomy, and access to lifesaving health care,” said Gillian Wilcox, deputy director of Litigation for the ACLU of Missouri. “As was clear from the beginning, the Attorney General’s claim of an emergency was proven an untruthful and dangerous attempt to get involved in individual and family medical decisions, showing that he will attack the very people he is supposed to serve and protect.”
Representatives from Bailey’s office said they were still confident the rule would eventually go into effect.
“We remain confident in our position, because the court even acknowledged that it deferred its consideration of the science until a later date,” spokeswoman Madeline Sieren said. “Our six pages of endnotes speak for themselves: These procedures are experimental. We will continue to fight for all patients to have access to adequate health care.”
Age-appropriate gender-affirming care is supported by several medical organizations, including the American Medical Association and the American Academy of Pediatrics.
Another of the rule’s provisions requires providers to gain “informed consent” from both new and existing patients by providing them with 23 references to studies and statements about the risks of receiving surgeries, hormones and puberty blockers.
If allowed to go into effect, the rule could hurt transgender people already receiving hormones or other gender-affirming healthcare, Ribaudo wrote in her decision. The court “was unable to find citation or specific sourcing in any of the 23 listed items” the emergency rule requires, other than information that has come directly from the attorney general’s office, she wrote.
Medical providers and their patients are put at risk of medical negligence when they obtain the informed consent from patients, because it’s not clear if the disclosures are medically supported, the judge wrote.
Ribaudo also wrote that the plaintiffs were likely to succeed on the merits of their case. Bailey’s use of the Merchandising Practices Act to issue emergency rules has never been tested in court, she wrote, and may “impermissibly invade a function reserved for the legislature.”
