Hearing over Missouri’s ban on gender-affirming care focuses on withheld documents

The Cole County Courthouse in Jefferson City (Annelise Hanshaw/Missouri Independent)

Attorneys representing transgender minors and health care providers squabbled with the Missouri Attorney General’s Office Wednesday over thousands of documents both sides say are being wrongfully withheld.

At its core, the case seeks to determine whether the state’s ban on gender-affirming care for minors is lawful. The lawsuit was filed by the families of three transgender minors, Southampton Healthcare, two of Southampton’s providers and two national advocacy organizations, saying the ban could have “extremely serious, negative health consequences” for transgender youth.

The attorney general filed a counterclaim alleging Southampton Healthcare, which provides gender-affirming care, did not fully disclose risks when treating transgender youth.

A trial is scheduled for late September, and attorneys are in the process of deposing witnesses. The deadline to send responsive documents to the other party passed, but both plaintiffs and defendants were unhappy with how much the other side has willingly turned over.

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Wright County Circuit Court Judge Craig Carter, who is stepping into Cole County Circuit Court for this case, said it would take time to rule on each exception the parties found to requests for discovery.

Jim Lawrence, an attorney for the plaintiffs, argued that the state has withheld documents citing exceptions not backed by state law.

Lawrence told the judge the parties would “be here until next week” if he were to explain every document he is requesting. He displayed a powerpoint with a chart of the objections from the attorney general’s office and the corresponding evidentiary requests.

Peter Donahue, assistant attorney general for special litigation, said the state went through a “burdensome” process of reviewing 100,000 documents that matched search terms in investigatory requests and spent $25,000 taking the time to narrow the lot to what is relevant and not deemed protected — which ended up being 2.6% of those files.

“If the state reviewed 100,000 (documents) and only 2,600 are relevant… That is an impossible fact to digest,” Lawrence said. “That doesn’t pass the smell test.”

Included in the state’s objections were documents protected by “gubernatorial privilege,” Lawrence said. This impacted almost half of the requests for production issued to the office of Gov. Mike Parson.

Gubernatorial privilege, Lawrence argued, doesn’t exist. He said there isn’t legal precedent in Missouri for it.

The idea of an executive privilege was discussed during the attorney general’s investigation of former Gov. Eric Greitens , with many dismissing the excuse as illegitimate.

“They are asking you to be the first court in the state of Missouri to declare gubernatorial privilege,” Lawrence told the judge.

Donahue said he hadn’t seen the privilege successfully invoked in Missouri, but it was “widely recognized across the nation.”

“We are just talking about communications between the governor and his close circle,” Donahue said. “This is not a unique concept in the gubernatorial process.”

Carter asked what types of documents have been withheld from discovery under gubernatorial privilege. Lawrence listed off a handful of examples, including “policies and procedures related to enforcement of the act.”

“Even if (gubernatorial privilege) does exist, it wouldn’t apply to all that,” he said.

Donahue said the objection was an “add-on privilege” for some of the documents, where another exception would have already protected the information from disclosure.

Lawrence tossed an arm up at the admission, then folding his arms and furrowing his brow.

“His argument really goes to why we are here today,” he said. “If you are asserting a privilege and withholding information based upon a privilege, you have to put that.”

It is written in the privilege log, Donahue said. A privilege log is a file that describes the documents withheld and the privileges asserted to protect them.

Lawrence also took issue with claims of attorney-client privilege that protected Jamie Reed, a witness in the case and whistleblower following her work at the Washington University Transgender Center at St. Louis Children’s Hospital. Reed’s affidavit alleging quick “medicalization” of transgender minors launched the attorney general’s investigation of gender-affirming care and was a main talking point when lawmakers discussed a ban for minors.

The attorney general isn’t Reed’s lawyer, Lawrence said, so his office shouldn’t argue attorney-client privilege for documents related to her.

Plaintiffs subpoenaed Reed separately and received a letter she sent to the attorney general. That letter should have also been sent by the attorney general’s office responsive to the investigative requests, but plaintiffs didn’t get it, Lawrence said.

Other exceptions include external communications allegedly withheld as work product and many documents sealed under investigative privilege.

Lawrence said they did not receive the responses the public gave to a tip line the attorney general opened to report complaints about gender-affirming care, but that information was compiled for outside sources. Indeed, St. Louis Public Radio requested the responses in a Sunshine Request and received the compilation a year later.

Donahue also argued Southampton was withholding documents. He said he received informational pamphlets from Southampton but wanted medical records of four or five patients that received gender-affirming care as minors.

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The judge questioned why he needed these particular documents.

“These documents are relevant to our counterclaim that plaintiffs have been inaccurate about the types of harm that can come from these treatments,” Donahue said.

He argued gender-affirming care providers weren’t always truthful — a claim patients have disputed when their care is questioned.

“It essentially amounts to snake-oil salesmanship, if true,” he said.

He wanted to get access to records showing what doctors have discussed with patients and letters of support from mental-health professionals, which he said sometimes have “irregularities.”

Complaints from the attorney general’s office about these letters have led to the investigations of 57 health professionals , putting their licenses at risk. As of early May, 16 cases were open in the probe by the Department of Professional Registration.

Jason Orr, another attorney representing plaintiffs, said the state may ask Southampton’s physicians questions but can’t ask for patients’ private records.

“Southampton does not have the ability to waive their doctor-patient privilege, and in fact, they are required to exercise it on their behalf,” he said.

There are currently four cases open between healthcare providers and the attorney general where providers are fighting requests to hand over medical records .

Southampton’s patients are not the plaintiffs in the case at hand, Orr said.

Plaintiffs PFLAG and GLMA, two advocacy organizations, have not been complying with requests for documents, Donahue argued.

He said he hasn’t received anything from the two organizations, despite the deadline already passing.

Orr said the request led to 20,000 documents that attorneys are “working in good faith” to narrow down and deliver. He hoped for it to be ready by the end of the week, complaining that the request was sent one month before the deadline.

“This was an issue that was created in part by defendants’ timing,” he said.

At the start of the hearing Wednesday, Solicitor General Josh Divine mentioned a federal case that may change their proceedings.

The U.S. Supreme Court agreed Monday to hear a case on Tennessee’s ban on gender-affirming care for transgender minors.

There are additional claims in the case before Carter, Orr said.

Carter said to keep him updated if the case will be affected.

“We’re going to keep marching on until we hear something different,” he said.

Half of U.S. states have a restriction on gender-affirming care for minors, with litigation blocking some states’ bans.

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