Appellate court strikes down Ohio gender-affirming health care ban

In a sweeping March 18 decision, the Ohio’s Tenth District Court of Appeals has ruled unconstitutional the state’s ban on gender-affirming health care for transgender youth.

Ohio House Bill (HB) 68 passed the state legislature in January 2024 after Republican lawmakers voted to override Gov. Mike DeWine’s veto. The bill also bans transgender girls and women and transfeminine people from competing in girls and women’s sports from kindergarten through college.

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, ACLU attorneys appealed the decision.

The case appeared before a panel of judges in the appeals court. ACLU of Ohio Deputy Legal Director David Carey argued on behalf of plaintiffs Moe and Goe – two 12-year-old transgender girls whose health care has been interrupted by the law.

“We reverse the August 6, 2024 judgment of the trial court and declare H.B. 68 unconstitutional on its face,” the court’s decision reads.

The appellate court sent the case back to the trial court and imposed a permanent injunction on HB 68’s ban on the use of puberty blockers and hormones ‘for the purpose of assisting the minor individual with gender transition.’”

On Jan. 28, President Donald Trump issued an executive order declaring that it is the policy of the United States not to “fund, sponsor, promote, assist, or support” gender-affirming health care for transgender people under the age of 19.

In response, a handful of hospitals across the country complied with the order in advance, halting gender-affirming care for transgender youth. After a federal judge granted a preliminary injunction against the order on March 4, hospitals in Arizona and Virginia resumed providing care for minors.

The testimony from parent-appellants confirmed they made the decision to access gender-affirming health care for their children after consulting with a multidisciplinary health care team, extensive observation, thorough research and counseling.

According to the appellate court’s decision, so long as a parent adequately cares for his or her children, “there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”

Appellate court findings

Writing for the majority, Judge Carly Edelstein issued a pointed and often scathing opinion of both the state’s position on and legislature’s passing of HB 68 specifically as it applies to banning puberty blockers and gender-affirming hormone therapy.

In HB 68, lawmakers asserted that healthcare practitioners could be accused of “wrongdoing” for providing gender-transition services. The appellate court rejected this definition and the legislature’s “power to identify and prohibit medical procedures that it considers wrongdoing or bad medical practice, even if some citizens or doctors disagree.”

“We find the state’s position is belied by the fundamental principles embedded in our state constitution and the plain meaning of ‘wrongdoing,’” the appellate court wrote.

Health care freedom

The decision repeatedly referenced the Health Care Freedom Amendment (HCFA), a constitutional amendment approved by Ohio voters in 2011 that established that no federal, state or local law shall prohibit the purchase or sale of health care or health insurance.

In several sections, the decision concluded that gender-transition services constitute health care and that HB 68 violated the will of the voters by banning medically approved practices.

“While some parents may decline to permit their minor children to receive this type of care — as is their right — and members of the Ohio legislature may personally disagree with providing this type of care to minors,” the decision stated, “it is the constitutional right of Ohio citizens to be free to decide whether they receive health care services recommended by medical professionals and widely accepted by the professional medical community as the appropriate treatment protocols for an appropriately diagnosed medical condition.”

The opinion concluded that HB 68 denied Ohio parents’ right to due process, by attempting to declare this type of health care as wrongdoing because it is “modern.”

Parents’ rights

“The uncontradicted record evidence is that at least 22 major medical associations in the United States endorse these therapies as well-established, evidence-based treatments for gender dysphoria in minors,” the decision read.

The opinion lambasted the state’s position that denigrated gender-affirming care as being “modern” and said that such a conclusion would lead to parents only having a fundamental right to “treatments existing as of 1851, 1868, or 1912.”

“Surely, the force of this fundamental right is not handcuffed to the 19th century medical practices of bloodletting, purging, and the rampant prescribing of alcohol, cocaine, and opiate-based medicines,” the opinion read.

Court criticizes Ohio General Assembly

Additionally, the decision harshly criticized the state’s choice to ban access to puberty blocking medications like gonadotropin-releasing hormone (GnRH) agonists for transgender minors while allowing cisgender minors access to the same prescriptions, so long as the prescription is not “for the purpose of assisting the minor individual with gender transition.”

The court said the state’s double standard “undermines its contention that the challenged provisions are aimed at protecting children from ‘experimental’ treatment and the longer-term, irreversible effects that may be associated with some aspects of that treatment.”

In an unexpected criticism, the court also reproached members of the Ohio General Assembly directly for “supplanting the role of parents, who are presumed to act in the best interests of their children.”

The court also found that HB 68 directly violates Ohio parents’ right to due process, allowing the state “to make the same decision for all parents without consideration of any minor child’s individual circumstances or the recommendations of any treating medical provider.”

Swift reactions

LGBTQ+ advocates immediately praised the decision.

“Today is a great day for trans youth, justice, and the people of Ohio,” said Dara Adkison, executive director of TransOhio. “It is proof of a system under attack but not destroyed by ignorant hatred. We don’t know what the future holds, but today it is once again legal in Ohio to receive and provide most gender-affirming care at any age, in alignment with international best practices”

Dr. Scott Leibowitz, a child and adolescent psychiatrist and board member-at-large for the World Professional Association for Transgender Health, said that the ruling recognizes that the Ohio families impacted by HB 68 have been through enough “needless suffering.”

“Gender-affirming care for minors is not only life-saving, but significantly improves the quality of life for those who need it,” Leibowitz told The Buckeye Flame. “Guidelines exist to protect the integrity of the decision making process. These important complex decisions should be left to the health professionals and families, not politicians.”

Attorney Dave Yost released a statement indicating the state’s intention to appeal the decision.

“This is a no-brainer – we are appealing that decision and will seek an immediate stay,” Yost said. “There is no way I’ll stop fighting to protect these unprotected children. Ohio’s elected representatives properly passed legislation protecting children from irreversible chemical sex change procedures, and the trial court upheld the law. But now the Tenth District Court of Appeals has just greenlighted these permanent medical interventions against minors.” 🔥

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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
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