Judge Craig Carter, a Wright County judge serving in Cole County for Missouri’s gender-affirming care trial, listens to a nurse practitioner testify on the fourth day of the trial (Annelise Hanshaw/Missouri Independent).
A ruling on Missouri’s restrictions on gender-affirming care is likely to come by the end of the year, with the trial complete and attorneys’ reports due within 30 days.
After a 13-day trial ended last week, Wright County Circuit Court Judge Craig Carter waived closing statements and asked instead for plaintiffs and defendants to submit statements of facts and findings. Both sides presented thick stacks of evidence, with seven approximately five-inch binders sitting on Carter’s bench throughout proceedings.
Without a jury, Carter — who was assigned to preside over the Cole County case — will rule on the constitutionality of the law.
Carter’s questions at the start of the trial sounded like someone becoming familiar with the subject, asking what a nonbinary gender identity means and clarifying definitions.
But in the trial’s final days, his inquiries were more frequent and challenging for witnesses, digging into the arguments and searching for the point in which gender-affirming medication for minors switches from unlawful to lawful.
Gov. Mike Parson signs bills on June 7, 2023, banning gender-affirming treatments for minors and limiting participation in school sports based on gender (Photo courtesy of Missouri Governor’s office).
The trial comes after transgender minors, their families and health care providers challenged the constitutionality of a 2023 law restricting physicians from prescribing gender-affirming medical care to minors. It also bars Missouri Medicaid from covering gender-affirming treatment for adults and restricts prisoners from getting the care in state prisons.
Carter asked many of the questions to the state’s expert witness, Dr. Farr Curlin, a professor at Duke who specializes in medical ethics.
“So tell me your thoughts on the intersection,” Carter asked during Curlin’s testimony last Wednesday. “The state has an interest in preventing people from making life-altering mistakes, and plaintiffs have the right to seek (desired medical care).”
Curlin said the problem lies in children’s inability to consent. Typically, parents consent for their child, whereas a minor’s agreement is labeled assent.
“The norm should be the same norm that is practiced throughout pediatric ethics and it is: Is this intervention in the medical best interest of the child?” Curlin said.
A large piece of the case is whether there is medical consensus on the efficacy of medical transition.
Large medical organizations like the American Academy of Pediatrics, a group founded in 1930 with 67,000 member physicians, support gender-affirming care for minors. Other organizations outside the medical mainstream — like the 700-member American College of Pediatricians which was formed in 2002 — are outspoken against the treatment.
Plaintiffs’ experts reviewed research showing positive effects of medical transition, and people who have benefited from gender-affirming care in Missouri as minors testified. The attorney general’s office, which was defending the law, tried to diminish the testimony of these experts by claiming that because most provide gender-affirming care —either by writing letters of support as a mental health provider or prescribing medication — they financially benefit from ensuring it remains legal.
Plaintiffs waved off these concerns.
Plaintiffs’ attorney Omar Gonzalez-Pagan listens to testimony Thursday afternoon in Missouri’s gender-affirming care trial (Annelise Hanshaw/Missouri Independent).
“Only to the state of Missouri, and without any sense of irony, is actually having experience and expertise a conflict,” Omar Gonzalez-Pagan, an attorney with Lambda Legal, told reporters.
The state’s expert witnesses included physicians who are outspoken about their disapproval of gender-affirming care, though many had never treated a minor for gender dysphoria. During the testimony of Alabama-based plastic surgeon Dr. Patrick Lappert, attorneys showed images of gender-affirming surgeries and detailed the process and risks of infection.
In 2022, a federal court in North Carolina ruled that state health plans excluding gender-affirming care violated the Equal Protection Clause. In that case, the judge tossed out parts of the testimony of Lappert and Dr. Stephen Levine, who also testified last week as an expert for the state of Missouri.
Tom Bastian, spokesman for the ACLU of Missouri, told The Independent in emailed answers the case’s attorneys oversaw that the state’s argument is not sufficient to justify the law. Specifically, he pointed to what he deemed a lack of expertise among the state’s expert witnesses.
“None of the state’s purported expert witnesses practice in this field, except for one, and the one who does agrees that medical interventions for gender dysphoria can be appropriate for some patients,” Bastian wrote. “Plaintiffs’ doctors, their experts and every major medical organization in the United States all agree that, in certain cases, gender-affirming medical care can be medically necessary to treat gender dysphoria in adolescents and adults.”
Another expert called by the Missouri attorney general’s office last week was John Michael Bailey. He received skepticism from Carter after it was revealed that he believes convicted child molester Jerry Sandusky is innocent. Bailey has been criticized for a retracted research article on gender dysphoria in adolescents and was the subject of an investigation by Northwestern University after he demonstrated a sex toy in an extracurricular lecture.
The Independent sent questions to the attorney general’s office, including asking about criticism of its expert witnesses, but did not receive a response.
Four people who had once identified as transgender but stopped treatment, known as “detransitioners,” also testified last about their regrets. Only one of the four received medical care in Missouri, and he was an adult when he began his transition.
Missouri Attorney General Andrew Bailey attends a February 2024 press conference with former University of Kentucky swimmer Riley Gaines as he outlined efforts to limit opportunities for transgender Missourians, including in girls sports and in health care (Photo submitted).
“The adults that were in the room that should have been protecting them failed to do so,” Attorney General Andrew Bailey said in a podcast late last month before the trial began.
The state also introduced academic articles describing the evidence behind gender-affirming care for minors as “too limited,” both in cross-examination and through their witnesses’ testimony.
Carter asked if the law could be peeled back if research showed treatments’ success. The state’s restrictions on puberty blockers and cross-sex hormones for minors is set to expire in August of 2027 — though lawmakers have publicly discussed removing the sunset clause.
“Are you saying the kids don’t have a choice until we get further evidence showing the efficacy of these treatments?” Carter asked Curlin, the Duke medical professor. “If the studies show that this treatment is efficacious, then where do wind up?”
“It’s not just, is it efficacious?” Curlin said. “Is it efficacious, and is it reliable enough and substantial enough to warrant the risks that these treatments bring?”
“What if the drug companies come out tomorrow and say, ‘You can take this drug, and it is absolutely reversible,” Carter asked.
Curlin said the “treatments are absolutely counter to the well-working of this patient’s health.” The medications and surgeries are not ethical in a body that is functioning well, he said.
The state repeatedly presented talk therapy as an option to treat gender dysphoria, which is distress arising from one’s body not matching gender identity.
Plaintiffs said therapy alone will not treat many cases of gender dysphoria, making medication medically necessary.
On the first day of the trial, a young man testifying under the name John Doe told the court that therapy was not enough for him. His first therapist said he was “going through a phase,” and his dysphoria only worsened.
A second, affirming therapist helped him as he began to dress more like himself at the age of 7, he said. His fear only worsened as puberty approached, and he attributes his thriving social life and success in college to his access to medication.
“It felt like once I started to receive (testosterone) shots, my overall was uphill from there,” he said. “The confidence I gained from having my body reflect who I am and what I was feeling was impactful throughout my entire life.”
Doe’s mother also testified later in the trial.
Carter noted there was “heartfelt testimony on both sides” from parents, asking about the issue of parental rights when the state withholds a type of care from their child. He discussed the Right to Try Act, which allows patients to access experimental medications for life-threatening conditions.
He also looked at the release of the COVID-19 vaccine, which had an accelerated clinical trial phase in order to give the public access sooner. The vaccine could potentially serve as a precedent of giving access to a medication without longitudinal testing.
Carter’s ruling is unlikely to be the last, with similar cases in other states appealing all the way to the U.S. Supreme Court. He noted the likelihood of an appeal, saying he would accept exhibits to add to the case’s file for future courts to look at, though they would not determine his ruling.
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