Is new Missouri rule a ‘ban’ on transgender adults? It imposes major health care access barriers

As legislatures nationwide debate bills targeting transgender communities, Missouri has taken a novel approach to limit access to gender-affirming care. 

On April 13, Missouri Attorney General Andrew Bailey issued an emergency rule that significantly restricts which transgender adults and minors can access gender-affirming care.

The rule requires patients to have a year and a half of therapy, three consecutive years of "medically documented, long-lasting, persistent and intense," gender dysphoria, and have all symptoms from mental health issues "treated and resolved."

An emergency rule can be applied when a Missouri agency "finds that an immediate danger to the public health, safety, or welfare requires emergency action," or its urgent implementation is "necessary to preserve a compelling governmental interest."

Bailey said the threat of "gender transition intervention" fits those requirements. An emergency rule does not need to pass the state Legislature to take effect, but is subject to judicial review. 

The American Civil Liberties Union and Lambda Legal, an organization focused on civil rights for LGBTQ+ people, released a joint statement promising to take "any necessary legal action" against the rule. But barring legal challenge, the rule will take effect April 27.

Activists were alarmed, describing the numerous restrictions outlined in the bill on Twitter and writing, "Missouri AG just essentially banned gender affirming care for most trans adults via emergency rule."

The emergency rule does not ban all care, but experts and physicians say it imposes enough barriers that fewer patients would qualify. Confusion about the bill’s scope adds to the uncertainty.

In March, Bailey said he would use emergency rules to address gender-affirming care. Such health care is generally defined as any social, emotional or physical care that centers, encourages and supports a person’s gender identity; it can range from use of a patient’s gender pronouns to medication to surgery. 

Bailey’s initial announcement focused specifically on care for minors and was similar to other legislation being enacted around the country. But the rule he unveiled three weeks later applied to Missourians of all ages. 

Under the legislation, providers must ensure that:

• "All psychiatric symptoms" from other mental health conditions must be "treated and resolved."

• The patient has, for the past three consecutive years, "exhibited a medically documented, long-lasting, persistent and intense pattern of gender dysphoria."

• The patient has received a "full psychological or psychiatric assessment," totaling 15 hourly sessions over 18 months. 

• The patient has been screened for autism.

• The patient is not experiencing "social contagion" as it relates to their gender identity. It did not offer more detail.

The rule lets patients who are receiving treatment to continue to do so as long as they "promptly" begin working to comply with the emergency rule’s standards.

It’s unclear how many adults would be disqualified or restricted from accessing care under these new standards, but experts say the number of patients eligible for care will drop.

Meanwhile, Missouri legislators are deliberating over bills that would ban gender-affirming care for minors.

Studies have found that transgender people tend to have higher rates of mental health diagnoses than the general population.

A 2019 Swedish study of people diagnosed with "gender incongruence" were three times as likely to be prescribed antidepressants and anti anxiety medications. Another study found that 58% of all 10,270 transgender patients had at least one psychiatric diagnosis. And the 2015 U.S. Transgender Survey found that 48.3% of transgender adults had seriously contemplated suicide in the past year and 40.4% had attempted it sometime in their lives.

Research suggests that social stigma, discrimination, and anti-transgender bias could be driving these higher rates, and there is growing evidence that gender-affirming care can improve mental health and well-being.  

To qualify for care under Missouri’s new policy, people must have mental health-related symptoms "treated and resolved," a standard that experts say is confusing and not always achievable. 

"’Resolved’ is unnecessarily rigid and excessive as a threshold for offering gender-affirming care," wrote Dr. Carl Fleisher, psychiatrist and medical director at the Boston Child Study Center in Los Angeles in an email to PolitiFact. 

Gender dysphoria, a diagnosis now required to qualify for gender-affirming care in Missouri, can itself contribute to other mental health problems, such as anxiety and depression. 

"That may mean a young person experiencing clinically significant distress due to being trans may be deprived of the very treatments needed to treat the distress," said Dr. Colleen McNicholas, chief medical officer of Planned Parenthood of the St. Louis Region and Southwest Missouri. (Bailey is investigating care offered through the clinic, and Planned Parenthood has sued in response to block access to the clinic’s records.)

PolitiFact did not hear back from Bailey’s office about what having symptoms "treated and resolved" would mean.

In cases in which patients aren’t blocked from care because of mental health issues, the new rule’s 18-month mandated waiting period could significantly delay care.

For people not formally diagnosed with gender dysphoria, that timeline to wait for gender-affirming care stretches to three years. This is especially significant because a 2013 French study found that transgender people were at the "greatest risk of attempted suicide between when they plan to access medical care and when they are able to do so." Other data shows the suicide rate is higher among people who want to access care, but can’t.

Trans people are also less likely to access regular health care services, polling shows, making documentation of dysphoria over three consecutive years difficult.

It’s unclear how some of the rule’s other provisions will apply.

For example, patients must be screened for autism, but it is unclear whether not being screened would bar them from care. Research has found higher rates of autism among the transgender population, but experts are still exploring the cause. 

The rule also mandates providers to check for evidence of "social contagion" or a "social media addiction," which both lack clear definitions and are hard to quantify and measure. 

Bailey’s office did not respond to our questions on these matters.

"Most providers have referred this to their lawyers and are trying to figure out what this means," said Dr. Christina Roberts, a pediatrics professor at the University of Missouri-Kansas City School of Medicine. 

PolitiFact was unable to get more clarity from Bailey’s office about how this rule will play out once it’s in effect. But with days to go until it is scheduled to become reality, some transgender residents were considering leaving the state.