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

Lawyers representing transgender minors and health care providers sparred Wednesday with the Missouri attorney general’s office over thousands of documents that both sides say were improperly 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 Southampton providers and two national advocacy groups. They said the ban could have “extremely serious, negative health consequences” for transgender youth.

The attorney general has filed a counterclaim alleging that Southampton Healthcare, which provides gender-affirming care, failed to fully disclose the risks in treating transgender youth.

A trial is scheduled for the end of September and attorneys are preparing to testify. The deadline for sending responsive documents to the other party had passed, but both plaintiffs and defendants were unhappy with how much the other party had willingly turned over.

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Wright County Circuit Court Judge Craig Carter, who is moving to Cole County Circuit Court for the case, said it would take time to rule on any exceptions the parties found to discovery requests.

Jim Lawrence, an attorney for the plaintiffs, argued that the state withheld documents invoking exceptions not supported by state law.

Lawrence told the judge that the parties would “be here until next week” if he explained every document he requested. He showed a PowerPoint overview of the attorney general’s office’s objections and associated evidence requests.

Peter Donahue, assistant attorney general for special litigation, said the state went through an “arduous” process of reviewing 100,000 documents matching search terms in investigative requests and spent $25,000 taking the time to limiting the number to what is relevant and not considered protected – which ultimately amounted to 2.6% of those files.

“If the state has 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.”

The state’s objections also included documents protected by “governmental privilege,” Lawrence said, affecting nearly half of the production requests made to Gov. Mike Parson’s office.

Governor’s privilege, Lawrence argued, does not exist. He said there is no legal precedent for it in Missouri.

The idea of ​​executive privilege was discussed during the Attorney General’s Investigation into Former Gov. Eric Greitenswith many dismissing the excuse as illegitimate.

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

Donahue said he had not yet seen the privilege invoked successfully in Missouri, but that it was “widely recognized across the country.”

“We’re just talking about communication between the governor and his inner circle,” Donahue said. “This is not a unique concept in the governorship.”

Carter asked what types of documents could not be discovered due to governor’s privilege. Lawrence listed a handful of examples, including “policies and procedures relating to the enforcement of the law.”

“Even if (governmental privilege) existed, it wouldn’t apply to any of this,” he said.

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

Lawrence threw an arm up at the shot, then crossed his arms and frowned.

“His argument is really about why we are here today,” he said. “If you claim a privilege and withhold information based on a privilege, you should say so.”

It’s in the privilege log, Donahue said. A privilege log is a file that describes the documents retained and the privileges granted to protect them.

Lawrence also objected to claims of attorney-client privilege that protected Jamie Reed, a witness in the case and whistleblower after her work at the Washington University Transgender Center at St. Louis Children’s Hospital. Reed’s statement claiming that transgender minors are rapidly “medicalizing” kicked off the Attorney General’s investigation into gender affirming care and was an important topic of conversation at the time lawmakers discussed a ban for minors.

The attorney general is not Reed’s attorney, Lawrence said, so his office cannot argue for attorney-client privilege over documents relating to her.

The plaintiffs separately subpoenaed Reed and received a letter that she sent to the attorney general. That letter also should have been sent by the attorney general’s office in response to the investigative requests, but prosecutors did not receive it, Lawrence said.

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

Lawrence said they had not received the responses the public provided to a tip line the attorney general opened to report complaints about gender-affirming care, but that information had been collected for outside sources. Indeed, St. Louis Public Radio asked for the responses in a Sunshine Request and received the compilation a year later.

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

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The judge wondered why he needed these specific documents.

“These documents are relevant to our counterclaim that plaintiffs were inaccurate about the types of harm that could result from these treatments,” Donahue said.

He argued that gender-affirming healthcare providers were not always honest – an assertion patients have disputed when their care is questioned.

“If it’s true, it’s essentially like selling snake oil,” he said.

He wanted access to files detailing what doctors had discussed with patients and to statements of support from mental health professionals, which he said sometimes contained ‘irregularities’.

Complaints from the Attorney General’s Office about these letters are led to the investigations of 57 health professionals, putting their licenses at risk. At the beginning of May, 16 cases were open in the Professional Registration Department’s investigation.

Jason Orr, another attorney representing the plaintiffs, said the state can ask questions of Southampton doctors but cannot ask for patients’ private information.

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

There are currently four ongoing cases between health care providers and the Attorney General where the health care providers are fighting requests to turn over medical records.

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

Plaintiffs PFLAG and GLMA, two advocacy groups, have failed to comply with requests for documents, Donahue argued.

He says he has not received anything from the two organizations, despite the deadline having already passed.

Orr said the request has resulted in 20,000 documents that attorneys are trying to refine and deliver “in good faith.” He hoped it would be ready by the end of the week and complained that the request was sent a month before the deadline.

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

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

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

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

Carter said to keep him informed if this affected the case.

“We’ll keep marching until we hear otherwise,” he said.

Half the US states have limits on gender-affirming care for minors, with lawsuits blocking some states’ bans.