Emergency rule seeks to limit access to certain procedures for transgender Missourians

Attorney General Andrew Bailey is relying on a law intended to prosecute fraudulent business practices to attempt to enact new regulations on transgender care for children and adults

By: - April 13, 2023 2:16 pm

Missouri Attorney General Andrew Bailey speaks Jan. 20 to the Missouri chapter of the Federalist Society on the Missouri House of Representatives chamber (Annelise Hanshaw/Missouri Independent).

Missouri Attorney General Andrew Bailey released details of an emergency rule Thursday seeking to make it harder for transgender children and adults to access certain medical procedures, calling them “experimental” and arguing they need “substantial guardrails.” 

The rule, once filed with the Secretary of State, would be in effect from April 27 to Feb. 6, 2024.

Citing the Missouri Merchandising Practices Act — a law intended to prosecute fraudulent business practices — Bailey’s office prescribed a multi-faceted disclosure and screening process for physicians offering gender-affirming care.

The attorney general’s rule mandates that anyone receiving puberty blockers, cross-sex hormones or gender-transition surgery must first receive 15 hourly sessions with a psychologist or psychiatrist over at least 18 months.

The rules also include a provision that bars physicians from prescribing puberty blockers or cross-sex hormones unless a patient has three “most recent, consecutive years” of medical documentation showing gender dysphoria.

Otherwise, health care providers in Missouri that prescribe the medications to those without years of documentation could face a lawsuit from the attorney general alleging fraud.

“I will always fight to protect children because gender transition interventions are experimental,” Bailey said in a press release Thursday. 

Shira Berkowitz, senior director of public policy and advocacy for LGBTQ advocacy organization PROMO, said Bailey’s office is “stating that they know better than not only all of the major medical professional associations, but also all practitioners following these guidelines and caring for patients.”

Critics of the proposed rule ‐‐ including Lambda Legal and the American Civil Liberties Union of Missouri — are already promising to sue.

Tony Rothert, director of integrated advocacy for the ACLU of Missouri, told The Independent this provision goes beyond the scope of the Missouri Merchandising Practices Act.

He said the law “typically is used to try to stop scams that are taking advantage of Missouri citizens.”

“Defining what (patients) have to do to get rid of that [mental health concern], that’s getting into the practice of medicine,” Rothert said.

“This is trying to fit everyone into one box, and that is not how medicine is practiced and it’s not how the law regulates medicine traditionally,” he said.

House Minority Leader Crystal Quade, minutes after Bailey released the emergency rule’s language, accused the attorney general of trying to create law through the rules process.

“These doctors are already doing exactly what they’re supposed to be doing and what every standard of care of every medical association in our country tells them to do. That is what they are doing,” she said. “It’s really fascinating that our attorney general thinks he is a lawmaker and that he can tell doctors how better to do their jobs.”

Bailey’s emergency rule was released the same day the Missouri House approved its version of legislation that would ban patients under the age of 18 from accessing gender-affirming care. The House version differed from one passed by the Senate last month that allowed patients already receiving care to continue treatment.

Families dispute whistleblower’s allegations against St. Louis transgender center

The sponsor of the House bill Rep. Brad Hudson, R-Cape Fair, said he has been coordinating with the attorney general’s office on his legislation.

The rule’s “emergency statement” says the attorney general’s enforcement is necessary because gender-affirming care has “increased immensely in use very recently.”

His office is currently investigating allegations of malpractice at the Washington University Transgender Center at St. Louis Children’s Hospital, a hub for gender-affirming care for Missouri’s youth. The allegations accuse the center of not addressing patients’ mental health conditions prior to treatment and not getting informed consent of patients and their parents. 

Patients and families told The Independent their experiences do not match these allegations.

Planned Parenthood filed a lawsuit challenging the attorney general’s investigation of Planned Parenthood’s gender-affirming care services, labeling the inquiry “politically motivated.”

Three days after announcing the emergency rule in a press release, the attorney general’s office opened a tip line for “reports of questionable gender transition interventions.”

The office did not return a call from The Independent requesting how staff is handling the verification of any complaints coming through the tip line.

The attorney general’s order revolves around the belief that “gender transition interventions are experimental” — a statement widely debated in academic articles.

The use of puberty blockers for gender dysphoria has been documented since the mid-nineties, but some label the medications’ use as experimental because it is prescribed off-label, a 2020 editorial in the International Journal of Transgender Health says.

Informed consent

House Minority Leader Crystal Quade, D-Springfield, said the attorney general is trying to legislate through the rule process (Annelise Hanshaw/Missouri Independent).

The attorney general’s emergency rule orders a 20-point disclosure, including positions from government agencies in the U.S. and European countries.

In one point, the order requires physicians to disclose that Sweden’s National Board of Health and Welfare declared in 2022 that, for minors, “the risks of puberty suppressing treatment with (puberty blockers) and gender-affirming hormonal treatment currently outweigh the possible benefits.”

The summary cited by the emergency order continues to suggest that gender-affirming care be given to minors “in exceptional cases” and advocates for more research.

The emergency rule also cites a 2018 study by Lisa Littman that was conducted to form a hypothesis — not draw enforceable conclusions. The author writes that her study should be used to form further research and inform clinicians.

“​​This study’s findings did not demonstrate the degree to which the onset of gender dysphoria symptoms may be socially mediated or associated with a maladaptive coping mechanism,” Littman’s study concludes.

The study was performed via an online survey given to parents of transgender children; just 2.4% of respondents answered that they believed that their child was “correct in their belief of being transgender.”

The survey was advertised to participants via four websites. Three of those websites displayed “cautious or negative views” about gender-affirming care or transgender youth.

Academics questioned Littman’s methodology, and the journal that published the original study “re-reviewed” the work. Littman wrote a revised version with “a series of corrections;” the Attorney General cites the updated version.

The emergency rule writes that the study suggests many individuals ‘incorrectly believe themselves to be transgender and in need of transition’ because of social factors. But, Littman’s study only proves that there could be more research on such social factors.

“We have looked towards WPATH (World Professional Association for Transgender Health) to see if they have evidence of ‘social contagion,’” said PROMO’s Berkowitz. “Both them and our organization are unaware of any scientific study of this nature.”

Health care centers could fulfill the disclosure requirements in the order by providing patients, and guardians if the patient is a minor, the 20 warnings via written and oral communication. The emergency rule also requests disclosure on a provider’s website.

The rule requires providers to track adverse effects for at least 15 years, even though the order itself will expire in February. 


Missouri lawmakers hear testimony on legislation seeking to ban certain medical procedures for transgender minors in February 2022 (Annelise Hanshaw/Missouri Independent).

The emergency rule says it is fraudulent for a health care provider to not screen for certain conditions. Some, the attorney general’s office specifies, must be resolved prior to gender-affirming treatment.

WPATH, which sets standards for gender-affirming care, advises that children beginning medical transition should have several years of gender-dysphoria symptoms prior to receiving cross-sex hormones.

The emergency rule requires three years of medical documentation of gender dysphoria for puberty blockers and cross-sex hormones.

Three years of documentation would often look like three years in therapy — a burden Berkowitz said is not necessary for most transgender children.

“Most youth who are transgender don’t need ongoing therapy for the fact that they are transgender, unless there are additional mental health issues in these children,” they said. “This would place a high level of burden on transgender youth to be able to access care, and need it sooner in their timeline of entering puberty.”

Puberty blockers work by delaying hormonal changes, so adolescents usually begin the blockers as they enter an early stage of puberty. The five-year requirement could cause many transgender adolescents to miss this window of time.

The rule, in addition to requiring the 15 assessments with a psychologist or psychiatrist and years of documented gender dysphoria, says “mental health comorbidities” must be “treated and resolved.” It does not define what “resolved” means in this context.

The attorney general’s order also requires physicians to “ensure the patient has received a comprehensive screening to determine whether the patient has autism.” It does not state whether transgender people who are autistic would be ineligible for treatment.

Studies have noted a link between those who identify as nonbinary or transgender and autism. A 2020 article in Nature Communications found that “transgender and gender-diverse individuals” are three to six times more likely to be autistic.

“It is true that neurodivergent folks can also have gender dysphoria and require treatment for gender dysphoria; those two things are not mutually exclusive,” Colleen McNicholas, chief medical officer of Planned Parenthood of the St. Louis Region and Southwest Missouri, said.

Planned Parenthood provides gender-affirming care at its clinics for those 16 and older, Planned Parenthood Great Plains’ director of communications Anamarie Rebori Simmons said.

“Medical professionals do have processes by which we evaluate people’s ability to make informed decisions about their health care, and there’s no reason to believe that (gender-affirming care) would be any different,” McNicholas said.

Having autism or other diagnoses doesn’t automatically make someone unable to consent to their own medical treatment. In extreme cases, courts appoint someone to make those decisions, but individuals are otherwise presumed to be able to make their choices, the ACLU’s Rothert said.

“People have more than one thing going on, and so it’s not even necessarily determinative of whether or not there should be care,” he said. “We let doctors make those decisions together with their patients.”

He has noticed one other area where governmental agencies regulate who can consent to treatment: abortion. Otherwise, most medical decisions are between patients and their physician.

McNicholas told reporters after Bailey announced the impending rule that it reminded her of political campaigns against abortion providers.

“These tactics were perfected with abortion but have and will continue to be used to attack other rights,” she said.


The emergency order also requests an annual screening for social-media addiction and wants physicians to ensure patients are free from social-media addiction or compulsion for at least six months prior to treatment.

The emergency rule grants an exception for those who are intersex or are diagnosed with precocious puberty. Those who have already begun treatment must “promptly seek to initiate the treatments and assessments” in the emergency rule, such as screening for social contagion.

You cannot wean off of gender affirming care,” Berkowitz told The Independent. “Weaning off puberty blockers would instigate youth beginning puberty according to the hormones their bodies create on their own. This would force kids to transition into a gender they do not know themselves to be and will cause detrimental mental health risks.”

“If weaning youth off of hormone-replacement therapy, their bodies will be forced to detransition,” they said.

Berkowitz told reporters that barring access to gender-affirming care has large risks.

“Access to this care has been cut has contributed to depression, socialized social isolation, self hatred, and the risk of self harm and suicidal behavior among our youth,” they said.

Some families are threatening to leave the state if they can’t access their child’s medication, Berkowitz said.

“Parents are facing an all out ban on being able to access the health care that their children need, that their children deserve to thrive,” they said. “They’re afraid, scared, angry over not being able to care for their children.”

Rothert said the ACLU of Missouri is watching the emergency order “very closely.”

“We are concerned,” he said, “especially for those who are [currently] undergoing treatment.

Correction: This story has been updated to reflect the most recent WPATH standards of care and clarify a lawsuit.


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Annelise Hanshaw
Annelise Hanshaw

Annelise Hanshaw writes about education — a beat she has covered on both the West and East Coast while working for daily newspapers in Santa Barbara, California, and Greenwich, Connecticut. A born-and-raised Missourian, she is proud to be back in her home state.