Restraining order issued for transgender care rule

An emergency rule that sought to limit medical interventions for transgender Missourians is on hold for two weeks after a St. Louis County judge found a challenge to the regulation likely will succeed.

In a May 1 order, Judge Ellen Ribaudo noted several potential problems with the emergency regulation that Missouri Attorney General Andrew Bailey announced last month, including that it doesn’t give clear guidance to medical providers and that it relies on an untested use of the state’s consumer protection laws.

“The Court finds that the Plaintiffs have met their burden regarding their likelihood of success on the merits, as this is novel use of the Attorney General’s power to promulgate emergency rules under the Missouri Merchandising Practices Act that has never previously been subjected to judicial scrutiny and may impermissibly invade a function reserved to the legislature,” Ribaudo wrote.

The rule originally was set to take effect April 27, but the judge entered a stay last week to review the briefing before ruling on a formal temporary restraining order. The TRO is set to expire on May 15; a hearing on a preliminary injunction is scheduled for May 11.

The regulation would set requirements on gender transition interventions, such as puberty-delaying treatment and hormone therapy. Among other things, it would require a lengthy series of psychological or psychiatric sessions and would require that symptoms from “existing mental health comorbidities” of people with gender dysphoria be resolved.

Southampton Community Healthcare, an LGBTQ-focused medical provider, along with the families of several adolescents who identify as transgender and doctors who treat them, sued to stop implementation of Bailey’s regulation. Represented by the ACLU of Missouri, the Lambda Legal Defense and Education Fund and several attorneys from Bryan Cave Leighton Paisner, they argue that the regulation is arbitrary and capricious, leaving it unclear what treatment can be provided. Violation of the rule is a class E felony.

They also argue that Bailey is improperly relying on his office’s authority under the MMPA, which they argue is meant to prohibit fraudulent sales or advertisements and doesn’t cover medical practices.

Bailey has argued that gender transition interventions are “experimental” and have irreversible consequences for minors. However, Ribaudo noted that the new rule would also apply to adult transgender patients.

“The invocation of the MMPA as authority to implement the Emergency Rule for the explicit purpose of prohibiting or limiting medical care to patients of any age presents an issue of first impression for the courts,” she wrote.

The case is Southampton Community Health et al. v. Bailey, 23SL-CC01673.