University of Missouri claims immunity in transgender lawsuit

By Columbia Missourian via My Courier-Tribune

Two transgender minors will continue to receive prescribed medication amid a lawsuit with UM System Board of Curators. But action in the lawsuit now rests on the court’s evaluation of the curators’ motion to dismiss the case outright under an 11th Amendment immunity claim.

The suit has been steadily progressing since the complaint was first filed Nov. 16 in a U.S. District Court for the Western District of Missouri. In back-and-forth filings from each party’s attorneys, litigation so far has centered on the curators’ motion to dismiss the case and the plaintiffs’ motion for a preliminary injunction. A preliminary injunction would temporarily stop MU’s policy prohibiting gender-affirming care for pre-existing minor patients.

However, after private conversations between attorneys clarifying the policy, both Boone County minors now have continued access to their prescribed medications while the case progresses. As a result, the plaintiffs plan to rescind the motion for an injunction in the coming days.

The motion, filed Jan. 4, aimed to resolve the issue of medication access for the two boys involved in the suit. According to the original complaint, K.J. and J.C. were set to exhaust their medications by February. K.J.’s medication did run out this month, but MU will permit his doctor to provide prescriptions for the medication he was taking before the ban. J.C. has enough injectable testosterone remaining to reach his 18th birthday this summer and will self-administer the medication for five months until he is no longer affected by the ban. These changes do not resolve the lawsuit but do negate the need for a preliminary injunction for the plaintiffs.

J. Andrew Hirth, the attorney representing J.C. and K.J., said that MU’s clarification is likely limited to K.J.’s specific medical circumstances and that the general policy has not changed. MU did not comment on the clarification of its policy to the plaintiffs.

“I don’t know if the clarification would be helpful to anyone else, because it’s related to other things in his medical records that are not specific to the gender issue,” Hirth said. “I don’t want to suggest that other people who are in the same situation should call their doctor right now to see if they can get things to change, because that is not the case.”

With this move, the court is now left with the question of MU’s immunity claim. It is not clear how long a decision will take.

MU’s motion to dismiss

The lawsuit seeks to bar MU Health Care from refusing medical care to existing minor patients based on their transgender status, asserting that MU’s August policy change violated a provision of the Affordable Care Act related to nondiscrimination. As a public university that receives federal funds, the plaintiffs argue that MU is subject to the act. MU disagrees.

“MU Health Care is committed to following applicable federal and state laws and our request for dismissal in this legal proceeding reflects our position that the plaintiff’s litigation is not supported by law,” said Public Relations Manager Eric Maze, on behalf of MU Health.

The curators filed a motion for complete dismissal of the complaint on Jan. 4. They assert that states are generally immune from civil lawsuits filed in federal court under the 11th Amendment and that this immunity is not waived with discrimination claims related to the Affordable Care Act.

The 11th Amendment explicitly says that no citizen of one state may sue another state in Federal Court. In the early 19th century, this was expanded by the Supreme Court to keep citizens from suing their own state government in federal court. In a 1908 decision, though, the court created an exception. While a citizen cannot bring a lawsuit against a state in federal court, they can bring a suit against a state official, as long as they are suing for non-monetary relief.

MU’s motion to dismiss asserts it is immune from the suit, in part, because the suit has been brought against a state instrumentality, the curators. However, Washington University School of Law professor Greg Magarian isn’t sure if this is the right way to get around the Supreme Court’s exceptions, even though the curators are acting as a collective body.

“Even if the University is right that the plaintiffs should name a different defendant, the court will probably let them correct that technical mistake,” he said, adding that the court would likely dismiss the case without prejudice, allowing the plaintiffs to refile with a different defendant.

“Ultimately, as to the important substance, I think that the University is wrong here,” Magarian said, emphasizing the exception for suits seeking non-monetary relief. “They’re wrong about the important thing that they can in fact be sued for, to essentially stop engaging in this discriminatory conduct.”

The motion to dismiss also tackles another aspect of the complaint. The plaintiffs argue that refusing prescriptions related to gender dysphoria while other minors continue to receive the same medications for other conditions is unlawful discrimination based on sex and disability, as defined within the Affordable Care Act. MU refutes this in its motion to dismiss as well, asserting that the plaintiffs fail to state a claim, “because Plaintiffs’ gender dysphoria is not a ‘disability,’ as defined by Congress in the relevant statutory language.”

Essentially, MU argues that because the complaint does not describe a physical impairment, there is no relevant claim of discrimination on the basis of disability. Disorders like gender dysphoria are not included within the Rehabilitation Act of 1973’s definition of disability because they do not result from physical impairment. This argument is based on earlier definitions of “gender identity disorder” in the Diagnostic and Statistical Manual, which was substantially changed in 2013 and no longer contains this disorder. Gender dysphoria is defined to include physical manifestations.

The motion also argues that there is no claim of sex discrimination and cites a recent decision in the Sixth Circuit, where a Tennessee statute prohibiting providing gender-affirming care didn’t violate the Constitution, as it was not discriminating based on sex — which is usually prohibited — but based on age and disability, which often is permitted.

“The courts have precedent that has been extremely skeptical, most recently of discrimination on the basis of gender identity and sexual orientation,” said Marcia McCormick, professor at the Saint Louis University School of Law. “But there are splits and the trial courts are trying to decide exactly how to handle all of this stuff, especially when the proposals have seemed to be one-sided, relying on sources that are not accepted by the scientific community, for example, or relying on stereotypes.”

The plaintiffs have filed a response to the motion to dismiss and MU’s team has nine days to respond to these comments. Upon this response from the defense, the motion to dismiss will be fully briefed, allowing the court to rule on the jurisdiction issue. Hirth expects that the court will want to rule on the issue relatively quickly, but a timeline for the ruling is not clear.

“I would hope we get an answer within a month, but the court keeps its own schedule,” Hirth said. “So whenever the court issues its ruling, we’ll be waiting for it.”