As Missouri providers halt transgender care for minors, some feel duped by legislative deal

The law allows minors already receiving treatment to continue, but a cause-of-action provision has some facilities abandoning the practice altogether out of fear of future litigation

By: - October 2, 2023 5:25 am

A group protesting MU Health’s cancelation of transgender minors’ prescriptions chants as it walks toward Columbia City Hall (Photo by Annelise Hanshaw/Missouri Independent)

Harry Castilow said his family did “all the things you’re supposed to do” when his teenage son Jay came out as transgender.

Jay began his social transition in 2021 when he was 15, choosing his name and living as a teenage boy. He went to therapy throughout that first year and got appointments with a new primary-care doctor and an endocrinologist, a doctor that specializes in hormones.

When Jay began hormone-replacement therapy a little over a year after coming out, his father could see the change in him.

“It helped him immensely,” Castilow said at a rally in support of transgender rights on the University of Missouri’s Columbia campus Sept. 15.

“I can see my boy. I saw my son,” he said through tears. “We thought we were safe. We were told we were safe. They told us we were safe.”

On Aug. 28, as a law went into effect banning minors from beginning new gender-affirming treatments, Jay’s mom received a call. His doctor at the University of Missouri would no longer treat him.

MU Health stopped providing gender-affirming care for minors when the law went into effect, citing “significant legal liability” in a statement to The Independent. On Sept. 11, Washington University in St. Louis also ceased care for transgender youth that were still eligible to receive care.

Patients, parents and activists say they feel like the statute of limitations provision of the law undermines the compromise worked out this year in the Missouri Senate — that ended Democrats’ filibuster and opened the door for the bill’s passage — to allow transgender minors who were already receiving gender-affirming treatment to continue.

Most say they never saw it coming, assuming that while the new law would bar new patients from getting care, it wouldn’t upend treatments for those already grandfathered in. And some say the provision is reminiscent of laws that for years have targeted access to abortion.

“This is the same kind of issue that we have run into forever with abortion health care, gender-affirming health care and birth control,” Carla Lantz, gender-affirming hormone therapy program director for Planned Parenthood of the St. Louis Region and Southwest Missouri, told  The Independent.

“It should not be a political move to get life-saving care, it just shouldn’t.”

The abortion playbook

As Washington University revoked prescriptions for minors in its Transgender Center at St. Louis Children’s Hospital — which is currently facing an investigation by Missouri’s attorney general — it cited fears of lawsuits.

“Missouri’s newly enacted law regarding transgender care has created a new legal claim for patients who received these medications as minors. This legal claim creates unsustainable liability for health-care professionals and makes it untenable for us to continue to provide comprehensive transgender care for minor patients without subjecting the university and our providers to an unacceptable level of liability,” the university’s Sept. 11 statement says.

Over the last three decades, states have increasingly turned to medical liability laws to restrict abortion access, allowing doctors to be sued for injuries to an “unborn child or mother.”

Missouri was the first state to pass a “trigger ban,” restricting abortions unless the parent’s life is at risk, as the U.S. Supreme Court overturned Roe v. Wade.

Previously, the state required abortion providers to be licensed as ambulatory surgical centers. The legislature passed further restrictions in 2019, like requiring consent from all of a minors’ guardians, which were blocked in court.

The ACLU of Missouri and Lambda Legal have challenged Missouri’s restrictions on gender-affirming care, and a circuit court judge denied the request to block the law prior to its effective date.

In his written response opposing a preliminary injunction, Missouri Solicitor General Joshua Divine cited Dobbs v. Jackson Women’s Health Organization — the decision that overturned Roe v. Wade — on nine occasions.

Attorney General Andrew Bailey, in an amicus brief in support of states with gender-affirming-care restriction, supported Arkansas’ currently blocked ban by also citing Dobbs.

“This is the playbook for abortion care,” Lantz said. “We know how they have a long game that they played to make abortion care something other than health care. But the group that’s under scrutiny right now is trans and gender-expansive folks.”

Madeline Johnson, an attorney based in Platte City with a focus on LGBTQ law, told The Independent she sees “a tremendous amount of overlap” between lawmakers’ abortion and gender-affirming-care policies.

“I see it to be an attempt by religious conservatives to overstep their bounds and control the health, rights and medical treatment of other persons who don’t agree with their faith,” she said.

Missouri’s gender-affirming-care restrictions give patients 15 years or 15 years after their 21st birthday, whichever is later, to file a cause of action against the medical provider.

In Missouri’s medical malpractice lawsuits, patients have two years to file a claim. But this law is very different, Johnson said.

The new law defines harm as infertility caused by the puberty blockers or cross-sex hormones. Fertility is uncertain when patients receive cross-sex hormones, and medical providers are instructed to refer patients for fertility counseling prior to prescribing hormone-replacement therapy.

This section exempts itself from the part of the state law which outlines medical malpractice proceedings. Patients who are harmed, as defined in this ban, can be awarded a minimum of $500,000 with no maximum, and the burden of proof is on the medical provider to give “clear and convincing evidence.”

Typically, patients are limited to the cost of their expenses and up to $400,000 for noneconomic damages, and the plaintiff is responsible for proving malpractice.

Johnson said, as written, patients grandfathered into the law would be able to raise a cause of action.

Sen. Mike Moon, R-Ash Grove, told The Independent the cause-of-action provision was intentionally written to include those who are continuing their prescriptions written prior to the law’s effective date.

“Even though these kids might be well meaning and even though the medical personnel might be well meaning, there could be some harmful impact,” he said.

He’s talked with activists who have regretted transition surgeries, called “detransitioners.” Two out-of-state activists spoke at a press conference hosted by Moon during the legislative session.

Moon initially wasn’t in favor of a clause allowing children to continue puberty blockers and cross-sex hormones, he said. Then, after talking to an activist who said she quit hormones “cold turkey” to ill effect, he thought it was important for patients to have a chance to taper off their medication.

But transgender teens and their families didn’t think this clause was a chance to ween off their health care, it was an opportunity to continue their transition.

Ill effects

May Hall, a transgender student at the University of Missouri, told those gathered for the Columbia rally that she feels like she’s lying when she comforts younger trans kids.

“It’s going to be okay,” she says. But she’s scared too.

She’s watched committee hearings in the Capitol, feeling unheard by lawmakers. But it hurt to see her university backstab her community, she said.

Paul Harper, a member of Columbia LGBTQ+ nonprofit The Center Project’s parent group, said some parents weren’t alerted of MU Health’s cancellations until they saw it reported in the media.

“I have personally heard more than a dozen in the past few weeks frantic to ensure that they’re children get the care they need,” Harper, who serves on Columbia Public Schools Board of Education, told protesters.

Lantz has also been fielding phone calls from anxious parents.

Planned Parenthood of the St. Louis Region and Southwest Missouri’s clinics have been seeing more patients for gender-affirming care since the law was announced. It only provides cross-sex hormones to those 16 and older, and minors must have parental consent.

The law bans minors from beginning cross-sex hormones or puberty blockers, but those who have already begun treatment may continue.

So between the law’s passage and its effective date, Planned Parenthood of the St. Louis Region and Southwest Missouri saw more patients beginning care.

“We have heard so many stories of people saying that they’ve thought about (a medical transition) for a long time and have wanted to do it, but now they feel like the clock is running out,” Carla Lantz, gender-affirming hormone therapy program director, said. “They had to get established with care or they wouldn’t have the option to do that.”

For some, it is a financial burden to be forced to start their medical transition now.

“I’ve seen some folks that have been trying to manage their transition themselves with internet-prescribed medications or what they can get from other friends sharing medication,” Lantz said. “So it’s a really dangerous spot.”

Most of the patients receiving hormone therapy at Planned Parenthood of the St. Louis Region and Southwest Missouri are adults, she said.

Planned Parenthood of the Great Plains, which operates in Columbia and the Kansas City region, didn’t have any minors prior to the law and will not take minors that have been turned away from current providers, a spokesperson told The Independent.

The attorney general’s office identified three other providers of gender-affirming care for minors in Missouri and sent them warning letters of the new law.

Children’s Mercy in Kansas City sent a statement to KSHB-TV saying it was “complying with the new law” but has otherwise not announced an operational change.

AIDS Project of the Ozarks, in Springfield, did not respond to a request for comment about the law.

Southampton Community Healthcare, which provides gender-affirming care in St. Louis, is a plaintiff in the ACLU of Missouri’s lawsuit against Missouri’s restrictions. On Friday, Bailey filed a counterclaim against Southampton Healthcare, alleging it provided transgender care to minors without a “comprehensive mental health assessment.”

The attorney general cited the Missouri Merchandising Practices Act, a law used to prosecute fraudulent business practices like telemarketing scams. The ACLU of Missouri and Lambda Legal, which represent Southampton, called Bailey’s countersuit a “desperate overreach.”

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Annelise Hanshaw
Annelise Hanshaw

Annelise Hanshaw writes about education for the Missouri Independent. A born-and-raised Missourian, she is proud to be back in her home state.