Missouri’s AG Issues ‘Emergency Rule’ Banning Gender-Affirming Care for Most Trans People ‘Of Any Age’
This is an emergency indeed.
The anti-trans floodwaters are rising, and trans people are at risk of getting swept away entirely. If you’re losing count of all the hundreds of anti-trans bills worming their way through legislative bodies across America, you’re not alone. Activists literally had to make a comprehensive map of anti-trans legislation across the USA just to keep track of it all, and even that was outdated within a few days of its creation.
The majority of bills are passing exactly where you’d expect: the Bible Belt. However, even more agnostic states like Ohio are trying on the Bible belt as well, and putting more notches in it with anti-trans policies.
But few policies are as severe as the one in Missouri right now.
Missouri’s Attorney General Andrew Bailey just signed an “emergency rule” that for all intents and purposes bans transitioning, flat out. While it is technically not a complete ban, the stipulations of the bill are so complex that only a razor-thin margin of trans people may be safe from it. For an adult to transition in the state of Missouri, they must have had “persistent and intense” gender dysphoria for three years and must have also received 18 months of therapy. The bill also does not allow people with autism or depression to transition under any circumstances.
This is tantamount to the “eradication” of trans people that the GOP recently called for at CPAC. After all, the emergency itself is a catch-22. The rule says that trans people must suffer through three years gender dysphoria and yet be depression free to be eligible to transition. As a practical matter, what’s the difference between the two states of mind? Gender dysphoria is a primary cause of depression. The term “dysphoria” is a literal synonym for depression. It’s like making a rule that says to be eligible to drink water your mouth must be dry for three days but you can’t feel thirsty. One simply does not exist without the other. In fact, depression is likely to worsen the longer that a person experiences dysphoria.
Banning gender affirming care for depression is like banning tylenol if the patient has a headache, saying the headache must resolve first. pic.twitter.com/ws8e7ZyP1L— Erin Reed (@ErinInTheMorn) April 13, 2023
There are other factors at play here as well. The “no depression” stipulation effectively denies the reality that trans people face every day. Transgender Americans face stigma and hatred on an almost daily basis, and many trans people are at higher risk of homelessness, joblessness, and violence. Even a trans person who has a stable living situation and job is likely to feel depressed due to the state of American politics today. Just recently, a Florida lawmaker referred to trans children as “demons and imps” and “mutants” in front of the entire state House of Representatives. The House was hearing from trans adults and kids as well as LGBTQ advocates, and this lawmaker said this to their faces. Just reading about news stories like this is enough for one’s serotonin to bottom out completely. Honestly, find me a trans person who isn’t battling depression in this day and age. That would be a miracle as far as I’m concerned.
Even more disturbing is the rule’s flat-out ban on autistic people receiving gender-affirming care. Autistic people are six times more likely to identify as trans or non-binary than people who are not on the spectrum. Like the underlying causes of autism itself, the reasons for this are not fully understood. However, by denying trans autistic people the right to receive gender-affirming care, this bill not only pathologizes trans people but autistic people as a whole. This rule is effectively saying that autistic people are “not in the right state of mind” in order to choose for themselves whether gender transition is something they want to pursue. By pathologizing autism in this way, it could lay a legal groundwork that would allow lawmakers to deny rights to people on the spectrum that are separate from gender transitioning.
Although this emergency rule is horrifying, there is a silver lining. The very nature of an “emergency rule” makes it a target for significant legal scrutiny. While an attorney general does have the right to issue and enforce an emergency rule, this does not mean that an emergency rule is the same as a law. After all, an emergency rule is meant to only be issued during a state of emergency and is by definition impermanent. In fact, most emergency rules have a time limit written in, and when that time limit is up, the rule goes away. Other emergency rules do not have a time limit, and can be lifted at the AG’s discretion when they deem the state of emergency to be over. But that doesn’t mean that the Missouri AG can keep the rule in effect indefinitely because he thinks that people seeking gender-affirming care constitutes an emergency.
Emergency rules are subject to legal review and can be challenged in court and struck down if a judge deems that the emergency rule is unjustified or exceeds the scope of an Attorney General’s authority. With regard to this rule, the Missouri AG has done both. The ruling was plainly political in nature, meant to score points with conservative politicians. That isn’t going to hold up in court.
It wouldn’t be the first time that an anti-trans legal stipulation has been rendered effectively moot by legal review. In fact, there are a slew of anti-trans laws in the country that are currently subject to an injunction from a federal judge. What is an injunction? When a law is enjoined, that means that a federal judge has deemed it unjustified or unconstitutional, and has ruled that the law cannot be enforced. This is not the same as the law being repealed. The law is still technically “in effect”, but no one can be prosecuted for breaking it. After further judicial review, the law will likely be repealed. As of now, anti-trans laws in Texas, Arkansas, and Alabama are currently enjoined and therefore unenforceable.
While state laws across America are looking particularly bleak for trans people, there is still hope at the federal level. The Biden administration has publicly condemned anti-trans policies across the United States, and federal judges across the nation appear to concur considering recent enjoinments. The world is changing, trans people and allies refuse to be silenced, and our time in the sun will come.
(featured image: Jeff J Mitchell/Getty Images)
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