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Judge blocks Missouri attorney general’s attempt to halt gender-affirming care

The order found that the "novel use" of the Merchandising Practices Act to regulate health care “may impermissibly invade a function reserved to the legislature.”

CLAYTON, Mo. (CN) — A Missouri judge on Monday paused for at least two more weeks an emergency order issued by Missouri Attorney General Andrew Bailey that would have blocked transgender patients from seeking care for at least 18 months.

St. Louis County Judge Ellen Ribaudo issued a stay until May 15.

“Through their affidavits and declarations, plaintiffs have met their burden to show that they 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,” she wrote in the 10-page order.

The decision is in response to a lawsuit filed April 24 by Lambda Legal, ACLU of Missouri and Bryan Cave Leighton Paisner LLP challenging an emergency order issued by Bailey.

"We are immensely gratified by today’s ruling, which strikes a blow against this outrageous attempt to ban gender-affirming care for broad categories of transgender people of all ages,” said Nora Huppert, staff attorney at Lambda Legal, in a statement. “We will continue to fight for our clients and for all transgender people in Missouri until this dangerous and unprecedented policy is set fully aside, and we will not be deterred by any attempt to shield this policy from the scrutiny of Missouri’s courts.”

Bailey, a Republican, became the first state attorney general to attempt to limit gender-affirming care when he announced the emergency regulations on March 20. The restrictions, which apply to both minors and adults, include an 18-month waiting period, 15 hourlong psychiatric assessment sessions and a requirement that any mental conditions are “resolved” before Missouri doctors can provide gender-affirming care.

The regulations would require both minors and adults who are currently undergoing gender-affirming treatments to immediately stop receiving the care until the requirements of the order are met.

Led by Southampton Community Healthcare, a group of plaintiffs filed suit in St. Louis County Court asking a judge to issue an injunction against the order. They claim Bailey overstepped his authority in attempting to implement the order, which uses the Missouri Merchandising Practices Act as its basis. That statute is primarily used to regulate fraudulent business practices.

The 37-page lawsuit states that “volumes of empirical evidence and decades of clinical experience demonstrate that medical care for the treatment of gender dysphoria, also known as gender-affirming care, is medically necessary, safe, and effective for both transgender adolescents and adults with gender dysphoria.”

The plaintiffs claim the order puts them at risk for irreversible harm to their health and well-being. The lawsuit noted the high number of suicide attempts by transgender people and stated that gender-affirming care has been shown to have a positive impact on mental health.

“At a minimum, without further court action, plaintiffs (the current patients) are at high risk of having their medical care interrupted for an unknown length of time; once the Rule goes into effect, they may lose access to medical care through their current providers until such time as the provider can come into compliance with the Rule’s requirements,” Ribaudo wrote.

The judge noted that the plaintiffs met their burden of showing a likelihood of success, “as this is novel use of the Attorney General’s power to promulgate emergency rules under for the Missouri Merchandising Practices Act.” She noted that such a use of the MMPA “may impermissibly invade a function reserved to the legislature.”

Ribaudo continued that even if patients are grandfathered in, both they and their physicians are still required to adhere to the informed consent part of the order that creates a risk of ethical violations because it would require the use of unsourced medical information without being able to find out if that science is medically supported.

“This creates both an ethical risk and a practical risk to the medical treatment plaintiffs; the healthcare providers can be sued for medical negligence for giving unsourced medical advice couched as ‘informed consent,’ which may or may not fall below the standard of care that they were required to give under the terms of this Emergency Rule, whether or not they agree with it,” Ribaudo wrote.

Bailey was undeterred by the ruling.

“We remain confident in our position because the court even acknowledged that it deferred its consideration of the science until a later date,” a spokeswoman for his office said in an emailed statement. “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.”

The emergency order was announced after Bailey called for a moratorium on the use of puberty blockers and hormone therapy at St. Louis Children’s Hospital's Washington University Transgender Center while his office investigates claims by former case manager Jamie Reed that patients were rushed into treatments and parents were not properly informed about the nature of the treatments.

Gender-affirming care has become a hot button topic in Missouri, where the state’s Republican-dominated Legislature is working to pass bills outright banning the care to minors.

Ribaudo issued a temporary restraining order Wednesday to give her more time to review the arguments, capping a flurry of legal activity that occurred just hours before the order was to go into effect.

Bailey’s office filed to remove the case to the Eastern District of Missouri. After a hearing Wednesday afternoon, U.S. Circuit Judge Henry Autrey, a George W. Bush appointee, ruled that the federal court did not have jurisdiction and remanded it back to St. Louis County where an emergency hearing was held before Ribaudo late Wednesday afternoon.

A preliminary injunction hearing is scheduled for May 11 to hear further arguments.

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