Missouri to implement statewide limitations on transgender healthcare
New regulations will require doctors to inform patients of the risks of transgender treatments.
Missouri Attorney General Andrew Bailey has issued new emergency regulations, which take effect on April 27, to sharply limit the provision of medical assistance with gender transition, including the prescribing of puberty blockers and cross-sex hormones, as well as sex reassignment surgery.
The new regulations were made in an unusual way, by using existing consumer protection law. Missouri’s Merchandising Practices Act (MPA) prohibits deceptive practices generally, like the Australian Consumer Law. Anyone engaging in such unlawful deceptive practice is guilty of a Class E felony, which is punishable by a maximum of four years imprisonment.
Bailey used powers under the MPA and Missouri administrative procedure law to make emergency regulations, which are allowed in Missouri where an administrative agency is aware of an ‘immediate danger to public health, safety or welfare.’ As an emergency rule, these regulations will expire in February 2024, unless renewed.
Bailey cited a variety of sources to argue that current practices in transgender health are ‘experimental’ and deceive and endanger patients, including various scientific papers, the practices of Swedish and British medical bodies, and guidance from the World Professional Association for Transgender Health. Bailey also cited a whistleblower disclosure to his office claiming that transgender medicine was not being provided in a way consistent with medical best practice.
Under the new regulations, doctors must now inform patients of 23 specific points that Bailey lists in Section 2(B) about gender dysphoria and transgender treatments, including mentioning that puberty blockers are not approved by the Food and Drug Administration, before the anyone can consent to treatment. This relies on principles of informed consent. Patients under 15 must have quarterly consent from parents for any ongoing treatment, although this is reduced to twice per year for children between 15 and 18.
Doctors are also forbidden from prescribing blockers or hormones or undertaking surgical intervention unless the patient has exhibited gender dysphoria for three years, and received at least 15 hourly therapy sessions over 18 month. The patient must also resolve all psychiatric symptoms from other mental health conditions she may have, be screened for autism and other ‘mental health comorbidities,’ checked to see if the dysphoria is a sign of social contagion.
Patients already receiving these medical interventions may continue to receive them only if the provider promptly initiates all the assessments and checks required by the new rules.
These strict regulations are anticipated to pose a major obstacle to the provision of care, possibly even essentially ending such provision. This is due to the legal risk now involved for doctors providing such care. The attorney general has set up a facility for Missourians to report doctors violating such rules.
The rule is certain to be challenged in court. The Missouri chapter of the American Civil Liberties Union has announced they will be taking legal action to judicially review these new rules.
In Missouri, unlike in Australia, the Attorney General is ordinarily directly elected rather than selected by the government from among its party members in Parliament. However, because there was a vacancy in the office due to a resignation, Bailey was put in office as an interim appointment by the governor.
Although it is expected that Bailey may renew these regulations in February 2024, legal challenges and the election in November 2024 means that is it is unclear whether these regulations will continue in the long-term.
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