Missouri Supreme Court hears arguments over banning gender affirming healthcare for youth

The parents and children impacted by Missouri’s ban on youth gender affirming healthcare stood before the state’s highest court to argue their case on Sept. 24. The case asks the court to settle several outstanding questions stemming from the legislature’s 2023 ban on the healthcare services.

The law (SB49) blocks doctors from performing surgeries or prescribing hormones or puberty-blocking medications to individuals under the age of 18.

The case was appealed by the plaintiffs — several anonymous minors and their parents on their behalf — from the Circuit Court of Cole County.

The plaintiffs were represented in oral arguments by Nora Huppert of the Lambda Legal Defense and Education Fund in Chicago; the state was represented by Louis Capozzi of the attorney general’s office in Jefferson City.

In their points relied on, the plaintiffs introduced the 10 issues at the heart of the appeal.

These included the assertion that the trial court erred in finding the appellants lacked standing to challenge the Medicaid ban; That it erred in finding appellants failed to properly plead and argue their constitutional challenge to the Medicaid Ban; It erred in denying the parent appellants’ and child appellants due process claim; It erred in denying appellants’ claim that the Act violates the Equal Protection Clause; The trial court erred in denying Appellants’ claims based on its erroneous factual findings; The court erred in admitting and relying on testimony of Drs. Curlin and Lappert because neither satisfies the evidentiary requirements for expert testimony; That It erred in denying facial and as-applied relief because it misapplied the law, in that it erroneously required appellants to demonstrate the Act has no constitutional applications to prevail on a facial challenge and failed to evaluate the as-applied claims on their merits; And The trial court erred in finding that the Act does not violate the “Gains of Industry” Clause.”

“The Act interferes with rights of transgender Missourians that are guaranteed by the Missouri Constitution — rights that every Missourian shares and that are meant to be more expansive and protective than those guaranteed by the U.S. Constitution. The Act interferes, inter alia, with the right of parents to make decisions about medical care for their children; the rights of transgender Missourians, young and old, to autonomy in making healthcare decisions and to both equal rights and equal opportunity under the law; and the right of medical providers to exercise their profession,” the appellants attorneys wrote. “As such, appellants sued to vindicate their rights, as well as those of their patients and members.”

In the appeal, the plaintiffs argued that after a two-week trial, the trial court entered a judgment and order “permeated by legal and factual errors and which reflects little independent judgment, having adopted largely verbatim respondents’ proposed findings and conclusions.”

In the state’s brief, it asserts “as this Court has long recognized, ‘in areas fraught with medical and scientific uncertainties, legislative options must be especially broad.’”

“Appellants ask this Court to strike down the SAFE Act — and to handcuff the General Assembly’s authority to regulate areas ‘fraught with medical and scientific uncertainties.’ Appellants’ primary theory is that the SAFE Act violates the Equal Protection Clause by discriminating on the basis of sex or, in the alternative, transgender status. But this is wrong,” the state said. “As the U.S. Supreme Court and the U.S. Court of Appeals for the Eighth Circuit recently found when analyzing nearly identical laws, the SAFE Act merely employs age- and medical-treatments-based distinctions.”

The plaintiffs countered that the state is ignoring the science by refusing to acknowledge “decades of clinical experience and rigorous study have demonstrated medical treatment for a transgender person’s gender dysphoria (…) is safe and effective.”

“Respondents rely on statements that do not support the challenged conclusions and continue mischaracterizing, exaggerating and outright misstating the record evidence,” the appellants said in a response brief. “Heightened scrutiny applies to appellants’ claims. Yet, under any standard of review, the trial court’s conclusion upholding the Act is against the weight of the evidence.”

At trial the state presented the expert witnesses (as described in the appellants brief): Dr. Stephen Levine, an adult psychiatrist; Dr. James Cantor, an adult psychologist specializing in the study of pedophilia; Dr. John Michael Bailey, a psychology professor who has never held a license to treat patients; Sara Stockton, a therapist; Dr. Daniel Weiss, an adult endocrinologist; Dr. Farr Curlin, a hospice and palliative care physician; and Dr. Patrick Lappert, a retired plastic surgeon.

The plaintiff’s presented: Dr. Aron Janssen, a child and adolescent psychiatrist; Dr. Danielle Moyer, a psychologist; Dr. Daniel Shumer, a pediatric endocrinologist; Dr. Johanna Olson-Kennedy, a pediatrician and adolescent medicine doctor; Dr. Armand H. Matheny Antommaria, a pediatric hospitalist and bioethicist; and Dr. E. Kale Edmiston, a neuroscientist and professor of psychiatry.

As part of their appeal, the plaintiffs argued the court should not have relied on or admitted the testimony of Drs. Curlin and Lappert because they did not meet the evidentiary requirements for expert testimony.

“Appellants’ experts have extensive experience treating, assessing, diagnosing, and/or studying transgender youth and/or adults in clinical settings,” the plaintiffs brief stated. “None of Respondents’ other experts have any experience assessing or treating minors with gender dysphoria.”

In addition to settling the questions presented to the court in the appellant’s points relied on, at the heart of the case is a question of how and if the U.S. Supreme Court’s decision in United States v. Skrmetti, applies to this case.

“The Missouri Constitution recognizes that a law that regulates a medical condition that applies only to one group does facially classify based on that group,” Huppert said during oral arguments. “And so, a law that regulates only treatment for gender dysphoria, facially classifies based on transgender status and thus, the U.S. Supreme Court’s decision in Skrmetti does not constrain the court here. But even if Skrmetti did apply, this case is different because this is a law that targets gender transition and classifies based on gender transition and it is only transgender people who seek gender transition.”

Alternatively, Capozzi urged the court to follow the principles set in Skrmetti and to reject the appellants’ equal protection claims.

“As they must, appellants suggest the Tennessee and Arkansas statutes at issue in Skrmetti and BRANT are somehow different than the SAFE Act,” Capozzi said. “I find this suggestion puzzling in particular; the Arkansas and Missouri statutes are almost identical. The definitions of gender and gender transition are verbatim identical between the two statutes and functionally, all three statutes ban the same procedures.”

Several organizations filed amicus briefs in the case, including family and constitutional law scholars, PROMO Missouri and the National Health Law Program on behalf of the appellants. The American College of Pediatricians, a coalition of 25 states and Do No Harm filed on behalf of the state.

The case is E.N., individually and as next friend and on behalf of her minor child N.N., et al., v. Mike Kehoe, in his official capacity as Governor for the State of Missouri, et al. Case no. SC100933.