Medical Care and Legislation Continue to Intersect Over Transgender Therapies for Minors

The continuing nationwide discussion over transgender rights—specifically reassignment and gender affirmation medical treatment—has found its own time of debate in Missouri. Recent Missouri state legislative proposals aim to control medical care providers’ prescription of hormone replacement therapy or “puberty blocking” medications (two commonly endorsed methodologies for gender treatment in the transgender population) as well as gender reassignment surgery. While few surgeons will perform the latter on minors, pharmaceutical intervention is generally endorsed as a safe treatment by the American Academy of Pediatrics.

State Initiatives

In March 2021, the state of Arkansas became the first state to pass legislation that not only threatened the revocation of a healthcare provider’s license in the event that the provider prescribed hormonal treatment to—or performed gender reassignment surgery on—transgender minors, but also exposed those providers to civil liability for compensatory, injunctive, or declaratory relief in claims brought by a minor (through a parent or next friend) alleging actual or threatened violation of the law.[1] The highly controversial legislation, titled the “Arkansas Save Adolescents From Experimentation (SAFE) Act,” was passed over Gov. Asa Hutchinson’s veto, but on July 21, 2021, the USDC Eastern District of Arkansas, Central Division, issued injunctive relief suspending effect of the Act. Although USDC Judge Jay Moody did not issue a written opinion, he indicated from the bench that to pull care from current patients receiving therapy would cause them irreparable harm. His comments echoed those by Gov. Hutchinson, who criticized Arkansas lawmakers for not providing a mechanism for transgender minors to continue treatment that had already been started.[2]

From that date until the date of this post, 15 additional states have begun considering, introducing, or are in the process of passing similar proposals that would penalize healthcare providers administering gender care to minors.[3] These pieces of legislation would either criminalize healthcare providers who provide gender-affirming care to minors or subject them to discipline from state licensing boards.

When similar legislation failed to pass the legislature in Texas, the State created its own workaround via an opinion letter issued by state Attorney General Ken Paxton. The letter, issued pursuant to a request by state Representative Matt Krause, stated that allowing minors to receive gender transition care (such as puberty blockers, hormone therapy, and surgery) is “child abuse” under state law.[4] In turn, Texas Governor Greg Abbott issued his own letter to Jaime Masters, Commissioner of the Texas Department of Family and Protective Services, directing Masters to “conduct a prompt and thorough investigation of any reported instances of these abusive procedures in the State of Texas.”[5] Taking it  a step further, Abbott called upon all mandatory reporters (such as healthcare providers and educators) to report any knowledge of such treatment, reminding them of potential criminal penalty for failing to do so.[6] Abbott also noted similar reporting requirements and criminal penalties for members of the general public, including even the parents of a child receiving such treatment.[7]

On March 30, 2022, Arizona took the prohibition of this care a step further. Arizona Gov. Doug Ducey signed legislation that not only prohibited administration of transgender hormone treatment, but made no exception for it even in an emergency context.[8]

In its own proposed legislation, Missouri appears to be merging several states’ models for restriction of gender care treatment for minors. Missouri Senator Mike Moon has introduced Senate Bill 843 (titled the “Missouri Save Adolescents from Experimentation (SAFE) Act”) that proposes to include in its definition of “abuse” the “… coerc[ion of] a child who is under eighteen years of age to undergo any surgical or hormonal treatment for the purpose of gender reassignment.”[9] In addition to prohibiting such treatment, it also penalizes any healthcare provider who administers any surgery or hormone therapy for gender care to a minor, with potential revocation or rejection of his or her license by the appropriate state licensing board.[10] These healthcare providers are presumably also subject to escalating criminal felony charges, depending on if a conviction is a first or subsequent offense.[11]

Response to this proposed legislation has been swift, particularly from the medical community. Pediatricians from the Gender Pathway Services of Children’s Mercy Hospital in Kansas City and the Transgender Center of St. Louis Children’s Hospital have expressed frustration with the legislation, citing the conflict between the Bill’s prohibitions and the American Academy of Pediatrics’ guidelines for gender hormone care.[12] Similarly, the American Academy of Child and Adolescent Psychiatry and the American Medical Association have denounced the legislation.[13]

Federal Responses

This trend has not escaped notice at the federal level. Most recently, Assistant Attorney General Kristen Clarke, of the U.S. Justice Department’s Civil Rights Division, reinforced federal nondiscrimination obligations afforded to transgender youth. In her letter to all states’ Attorneys General, Clarke noted that such legislation may implicate potential violation:

“… [of the] Equal Protection and the Due Process Clauses of the Fourteenth Amendment… The Equal Protection Clause requires heightened scrutiny of laws that discriminate on the basis of sex and prohibits such discrimination absent an “exceedingly persuasive” justification… Because a government cannot discriminate against a person for being transgender “without discriminating against that individual based on sex,” state laws or policies that discriminate against transgender people must be “substantially related to a sufficiently important governmental interest.”[14]

Clarke further noted that “…many federal statutes require recipients of federal financial assistance to comply with nondiscrimination requirements as a condition of receiving those funds,” citing the Affordable Care Act, the Omnibus Crime Control and Safe Streets Act of 1968, Section 504 of the Rehabilitation Act of 1973, and Title IX of the Education Amendments of 1972.[15] Enforcement of the state legislation in question across the country certainly appears to be fraught with potential federal challenge as they may intersect with federally financed programs that provide medical or medically adjacent care to transgender youth.

The Takeaway

Clearly, this area will continue to be an issue sparking extensive debate across the United States, including in the state of Missouri. How Missouri proceeds with its own legislation will no doubt be affected or at least influenced by how these multifront challenges unfold.

[1] Ark. HB1570, Act 626 (April 6, 2021); §20-9-1504.

[2] https://www.cnn.com/2021/04/05/politics/asa-hutchinson-arkansas-transgender-health-care-veto/index.html; see also https://www.npr.org/2021/04/06/984829976/gov-asa-hutchinson-on-vetoing-a-bill-banning-gender-affirming-care-for-trans-youth

[3] Alabama (S.B. 5/H.B. 150, and S.B. 184/H.B. 266), Arizona (S.B. 1138, S.B. 1045, S.B. 1130, and H.B. 2608), Georgia (H.B. 401), Iowa (H.F. 193), Kansas (H.B. 2210), Kentucky (H.B. 253/S.B. 84), Louisiana (H.B. 570), Missouri (H.B. 2649 and S.B. 843), North Carolina (S.B. 514), Ohio (H.B. 454), Oklahoma (S.B. 583, S.B. 676, and H.B. 3240), South Carolina (H.B. 4047), and Tennessee (S.B. 657/H.B. 578 and H.B. 2835/S.B. 2696). See Legislative Tracker, Freedom for All Am., https://freedomforallamericans.org/legislative-tracker (last visited Mar. 15, 2022); Legislation Affecting LGBT Rights Across the Country, ACLU (Mar. 14, 2021), https://www.aclu.org/ legislation-affecting-lgbtq-rights-across-country.

[4] https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0401.pdf; see also TEX. FAM. CODE § 261.001(1)(A).

[5] https://gov.texas.gov/uploads/files/press/O-MastersJaime202202221358.pdf

[6] Id.; see also TEX. FAM. CODE § 261.001(1)(A)–(D) (defining “abuse”); §§ 261.101(b), 261.109(a-1).

[7] Id. at §§ 261.101(a), 261.109(a); 261.301(a)–(b).

[8] https://azgovernor.gov/sites/default/files/sb1138_sb1165_signing_letter.pdf; see also AZ S.B. 1138.

[9] See MO. S.B. 843, introduced January 5, 2022; SCS Voted Do Pass S Seniors, Families, Veterans & Military Affairs Committee

[10] Id.

[11] Id.

[12] https://www.kcur.org/politics-elections-and-government/2022-02-09/missouri-bill-would-revoke-license-of-doctors-who-prescribe-gender-affirming-hormones-for-children

[13] https://news.yahoo.com/justice-department-warns-states-against-225200353.html?fr=sycsrp_catchall

[14] https://www.justice.gov/opa/press-release/file/1489066/download?utm_medium=email&utm_source=govdelivery

[15] Id.; see also 42 U.S.C. § 18116, 34 U.S.C. § 10101, et seq., 29 U.S.C. § 794, and 20 U.S.C. § 1681, et seq., respectively.

  • Amanda M. Mueller

    Amanda M. Mueller focuses her practice on cases involving complex litigation matters, including:

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