An Ohio appellate court heard testimony Sept. 6 in a lawsuit that will determine the constitutionality of the state’s ban on health care for transgender youth.
Ohio House Bill (HB) 68 passed the state legislature in January after Republican lawmakers voted to override Gov. Mike DeWine’s veto. HB 68 also bans transgender girls and women and transfeminine people from competing in girls and women’s sports from kindergarten through college.
Attorneys with the American Civil Liberties Union (ACLU) of Ohio challenged the bill, claiming it violates the rights of transgender Ohioans under four separate sections of the state’s constitution.
After an Ohio common pleas court judge ruled in favor of the ban in August, ACLU attorneys appealed the decision.
On Wednesday, the case appeared before a panel of judges in Ohio’s Tenth District Court of Appeals, where ACLU of Ohio’s deputy legal director David Carey argued on behalf of plaintiffs Moe and Goe – both transgender minors whose health care would be interrupted by the law.
Does HB 68 violate the Ohio Constitution?
The plaintiffs claim HB 68 violates the state’s constitution under four separate sections, including the “single subject rule.”
According to the single subject rule, legislation must pertain to a single, identifiable subject in order to prevent the legislative process of logrolling, in which lawmakers trade votes in order to ensure two unrelated bills pass.
“It would be difficult to imagine a more flagrant example of logrolling than HB 68,” Carey told the panel of judges.
Initially, the healthcare ban and the sports bans appeared before lawmakers as two separate bills, both of which failed to pass independently.
When the bills were reintroduced in 2023, they sat dormant after being assigned to separate committees.
Once combined, “[The bills] were suddenly passed, quickly and decisively,” Carey told the court. “So quickly that the legislature didn’t get around to changing the title. They just stapled them together and called it a day.”
“The state can’t evade the single subject rule just by being vague about what the subject is,” he added.
Attorneys for the state have argued the single subject pertains to “children and their families.” However, the section of the law that bans transgender girls and women from competing in women’s sports also applies to adults.
‘Another form of sex discrimination’
The lawsuit also alleges that HB 68 violates Ohio’s Healthcare Freedom Amendment, which prevents the general assembly from outlawing entire categories of health care.
Further, Carey argued, the law makes an outright sex classification, regulating certain types of health care based on a person’s sex assigned at birth.
“HB 68 sets its boundaries of its prohibition based on conformity to expected characteristics of the person’s sex,” he said.
“It prohibits medications that would alter or remove features that are ‘typical’ for the individual’s biological sex. It does not prohibit medication for the opposite purpose; to enhance features that are typical of the person’s birth sex,” he added. “That is another form of sex discrimination.”
State cites unreliable research
The state’s representative, Solicitor General Elliot Gaiser, repeatedly cited unreliable research regarding transgender youth.
Throughout the hearing, Gaiser described health care for transgender people as “experimental.”
At least one judge pushed back on Gaiser’s language, prompting state attorneys to admit that gender-affirming health care has not been legally classified by a trial court as “experimental” treatment.
Gaiser also repeated a highly disputed claim that 80% of transgender youth cease to identify as transgender as they age into adulthood – a concept researchers call “desistance.”
In recent years, the nearly 15-year-old study that birthed the unreliable statistic has been widely used to support anti-transgender legislation.
The study has been criticized by other researchers, and likely misidentifies non-binary, agender and gender fluid people, whose health care needs and gender presentation may change over time.
Gaiser also provided medically inaccurate information regarding long-term fertility rates among transgender people, falsely claiming that puberty blocking medications and hormone replacement therapies “sterilize” transgender youth.
While little research exists on long-term fertility among transgender people, current studies suggest there is a wide range of fertility outcomes among transgender adults – likely dependent on the dose and duration of hormone replacement therapies and influenced by unrelated health and genetic factors.
Overall, the state’s argument rests heavily on the Cass Report – a widely criticized 2024 review commissioned by National Health Service (NHS) England regarding gender-affirming health care for transgender youth.
Since its publication in April, the Cass review has become central in anti-transgender litigation across the United States.
In July, professors at Yale Law School and Yale School of Medicine published a white paper both criticizing and clarifying the report:
“The [report] will likely be cited by states attempting to ban gender-affirming care, but, in fact, it does not recommend a ban on medical care for transgender youth.”
Leaving Ohio for health care
While Ohioans await a decision from the court, transgender youth and their families said they are preparing for a difficult legal outcome.
According to Carey, plaintiff Madeline Goe – whose family goes by a pseudonym in the case – will have access to a puberty-blocking medical implant until February 2025.
After the implant is removed, Goe may choose to pursue hormone replacement therapy.
“Puberty does not arrive according to a clock,” Carey said. “The family has visited a Michigan clinic to establish a relationship with a new health care team in the event she can no longer continue receiving care in the state of Ohio.”
In addition to an outright ban on puberty blocking medications and hormone replacement therapy, the law also bans primary care physicians from discussing transgender-specific health care with minors or providing outside referrals.
Should the appellate court uphold the court’s initial decision, transgender Ohioans under 18 will be unable to legally access most forms of health care.
Regardless of the panel’s decision, both parties have implied they intend to appeal the ruling – meaning the case will likely appear before the Ohio Supreme Court. According to reporting by WOUB Public Media, the Court’s four Republican justices have each expressed support for the legislation.
However, the court’s political alignment could shift in the coming months, with three seats up for partisan election in the upcoming 2024 general election. 🔥
Ignite Action
- To register to vote or to check your voter eligibility status in the state of Ohio, click here.
- To find contact information for your Ohio state representative, click here.
- To find contact information for your Ohio senator, click here.
- If you are a young LGBTQ+ person in crisis, please contact the Trevor Project: 866-4-U-Trevor.
- If you are an transgender adult in need of immediate help, contact the National Trans Lifeline: 877-565-8860
Know an LGBTQ+ Ohio story we should cover? TELL US!
Submit a story!
