How conflicting state and federal laws on gender-affirming care put ‘hospitals in a bind’
The families of two transgender boys filed a federal lawsuit against the University of Missouri this month in an attempt to reverse its decision to stop providing gender-affirming care to minors.
University of Missouri Health’s decision was a reaction to a state law that bars minors from beginning gender-affirming care.
By halting the prescriptions of puberty blockers and hormones to minors for gender transition purposes, the plaintiffs argue the university health system unconstitutionally discriminates on the basis of sex and disability status.
“Because the Affordable Care Act prohibits discrimination on the grounds of sex or disability, we have all kinds of protections for various disabilities,” said Jenkins & Kling attorney Nicole Gorovsky. “Some of the legislation in this area has really put these hospitals in a bind.”
An interesting question at the heart of this case, Gorovsky said, is whether gender dysphoria counts as a disability under the Americans with Disabilities Act. If they can demonstrate that, she added, the plaintiffs’ case has a solid path.
“Gender dysphoria is this concept that you don't feel that you were born in the body that you belong in, and the definition of disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities of the individual,” she said.
Patti Williams, attorney and founder of Lex Valorem, said she sees how untreated gender dysphoria could limit one’s daily living.
“If you're transgender and have to undress in a locker room you don't feel like you belong in, it could affect your ability to go to school or [do] various things, so I think they have a better claim than other groups that might try to use that [argument],” Williams said. “But it's not the traditional way courts have interpreted activities of daily living.”
Similar court cases regarding the protection of transgender rights via equal protection claims have not been successful, said Polsinelli Law Firm shareholder Arindam Kar, because the transgender community is not considered a protected class under federal law. That’s despite a 2020 U.S. Supreme Court decision that protects transgender individuals from workplace discrimination.
“There's not a clear basis to have a higher level of scrutiny for laws that impact them — that's been a challenge,” he said. “And the way that states have been really arguing this is, ‘We're not discriminating on sex,’ as they call it, ‘because we're not letting people who were born as boys or girls to get access to the treatment. We're not discriminating on gender — no one can get these treatments.’”
While this is one of many similar cases going up and down the circuit and state courts, Kar added, the ADA disability argument “might be a novel approach to addressing this issue that I have not seen.”
The University of Missouri lawsuit was among multiple subjects taken up on the latest edition of the St. Louis on the Air’s Legal Roundtable. The attorneys also discussed a landmark jury verdict in Missouri that could have huge repercussions for the real estate industry across the U.S. and whether the City of St. Louis owes compensation to a man it accidentally held in jail for eight months after the charges against him were dropped.
“St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is produced by Miya Norfleet, Emily Woodbury, Danny Wicentowski, Elaine Cha and Alex Heuer. Ulaa Kuziez is our production intern. The audio engineer is Aaron Doerr. Send questions and comments about this story to email@example.com.