Missouri Restricts Gender-Affirming Care

Author: Robert S. Teachout, XpertHR Legal Editor

April 24, 2023

Individuals in Missouri will have to undergo therapy before seeking gender-affirming care under an emergency rule issued by the state attorney general.

In announcing the emergency rule, Missouri Attorney General Andrew Bailey stated that, because gender transition interventions are experimental and have significant side effects, state law already prohibits performing such procedures in the absence of substantial guardrails ensuring informed consent and adequate access to mental health care.

The rule, which covers individuals of any age, applies to "Covered Gender Transition Intervention" care (that is, providing puberty-blocking drugs, cross-sex hormones or surgery) for the purpose of transitioning gender, decreasing gender incongruence or treating gender dysphoria.

To be lawful, medical providers offering covered gender-affirming treatments must first provide specific informed-consent disclosures. Among other information, patients must be told that the use of such drugs for gender transition treatments are considered experimental and are not approved by the Food and Drug Administration, and the drugs' potential risks and side effects.

Prior to starting treatment, patients seeking covered gender transition treatments must undergo at least 15 hour-long sessions of therapy over the course of at least 18 months. Treating medical providers would have to certify that Individuals with any mental health issues, including depression and anxiety, have been treated and such issues resolved.

The emergency rule takes effect April 27, 2023, and expires February 6, 2024.

At the same time, the Missouri legislature is acting on legislation that would restrict gender-affirming care for minors under 18 years of age. Both the House and Senate have passed different versions of a bill that would ban certain medical procedures for transgender minors. The bills have to be reconciled and repassed by each chamber before they can be sent to the governor.

As more states consider legislation affecting gender-affirming care, employers need to be prepared to respond to employees' concerns. Just as with the Supreme Court's Dobbs decision on abortion, employees already are signaling that they will not work in states with such laws and rules, impacting the talent pool.

Employers should address employees' and other internal stakeholders' questions and concerns about how such laws and regulations will impact workplace policies, benefits and other terms and conditions of employment. Employers also should remind concerned employees of any support that is available, such as mental health resources through an Employee Assistance Program and health benefits.

In addition, just as employers provided benefits to support post-Roe abortion care following the Supreme Court's Dobbs decision, employers should think strategically about whether and how to provide trans-affirming benefits to employees affected by bans on gender-affirming medical care.