Ohio’s Gender-Affirming Care Ban for Minors Survives Trial Court

An Ohio law that will force transgender minors to go out of state to seek puberty-blocking drugs and cross-sex hormones to treat gender dysphoria doesn’t violate various provisions of the state’s constitution, a trial judge said Tuesday.

Transgender adolescents and their parents had standing to challenge the state’s gender-affirming care ban, Judge Michael J. Holbrook, of the Ohio Court of Common Pleas for Franklin County said. But they failed to show that the provision violates the Ohio Constitution’s single-subject rule or a provision that gives citizens freedom to make their own health-care decisions, nor does it violate the equal protection and due process clauses, he said.

Freda Levenson, Legal Director at the ACLU of Ohio, called the decision a “devastating” loss and said, in an emailed statement, that the plaintiffs will immediately appeal.

Ohio Attorney General Dave Yost (R) applauded the decision, according to a statement on his website provided by Communications Director Bethany McCorkle.

“This case has always been about the legislature’s authority to enact a law to protect our children from making irreversible medical and surgical decisions about their bodies,” McCorkle said. “The law doesn’t say ‘no’ forever; it simply says ‘not now’ while the child is still growing.”

The US Supreme Court will weigh in this term on whether similar laws in Tennessee and Kentucky pass muster under the US Constitution.

Franklin County is home to the state’s capital city of Columbus.

Validity Presumed

State laws generally are afforded a presumption of constitutionality, and the evidence produced by the plaintiffs didn’t overcome that presumption on any of the various grounds, Holbrook said in issuing a declaratory judgment for the state.

The Ohio Constitution regulates procedures for adopting and amending laws and, most notably, provides that no bill “shall contain more than one subject,” Holbrook said. The law at issue not only bans certain gender-affirming care for minors, it also bars transgender athletes from competing on school sports teams that match their gender identity, the plaintiffs said.

“At first glance, there appears to be a disunity of subject matter,” the judge said. But the law has a “common purpose or relationship"—the regulation of transgender individuals, he said. This is a “legitimate subject” for the single-subject rule, no matter how “abhorrent” some people may find it, he said.

The Ohio Constitution protects citizens’ “freedom to choose health care and health coverage,” Holbrook said. This provision, however, doesn’t affect laws intended to protect against wrongdoing in the health-care industry, and lawmakers have said that medical providers’ provision of gender-affirming care to minors constitutes wrongdoing, he said.

Holbrook held that transgender people aren’t a suspect class and that the law was subject to rational basis review for purposes of determining if it violated the equal protection clause. Ohio has a legitimate governmental interest in protecting its citizens’ health and safety, and the ban is rationally related to that interest, he said.

The law is limited to minors, and the banned medical care carries undeniable risks and permanent outcomes, Holbrook said.

Holbrook said he also couldn’t overlook the state’s “competing critical role” in regulating health, safety, and welfare when considering if the law violated the parents’ fundamental due process right to direct their children’s care. Using a rational basis test, he concluded that the ban reasonably limited the parents’ rights, consistent with Ohio’s “deeply rooted legitimate interest” in regulating medical care.

Ohio in January joined nearly half of the states in banning gender-affirming care for minors after lawmakers overrode Gov. Mike DeWine’s veto of HB 68. The law was set to take effect in April, but Holbrook temporarily blocked its enforcement while an American Civil Liberties Union lawsuit was pending.

The American Civil Liberties Union, the ACLU of Ohio, and Goodwin Procter LLP represent the plaintiffs. The Ohio Attorney General’s Office represents the state.

The case is Moe v. Yost, Ohio Ct. Com. Pl., No. 24CVH03-2481, 8/6/24.