An Ohio appeals court heard arguments from state officials and attorneys on behalf of two transgender children regarding a recently passed law banning gender-affirming care for minors.
Representatives from the Ohio Attorney General’s Office and the ACLU of Ohio presented their arguments Wednesday to the 10th Circuit Court of Appeals, which will decide whether gender-affirming care should continue to be banned for newborn people in the state until 2023. Draft bill no. 68.
The appeals court heard the case after Republican Franklin County Judge Michael Holbrook ruled that the law could take effect after a hearing that included testimony from doctors and parents who assessed the impact of the law and treatments such as puberty blockers and hormone therapy.
HB 68 was temporarily blocked by the same judge while the case was pending, but in August, Holbrook ruled the law could remain in effect because it “reasonably limits the rights of parents to make decisions about the medical care of their children, consistent with the state’s deeply held legitimate interest in regulating the medical profession and methods of treatment,” according to the ruling.
During oral arguments Wednesday before judges of the Tenth Circuit Court of Appeals, the question arose frequently as to whether the law should be considered a regulation or a prohibition.
“(HB 68) bans an entire category of health care,” said David Carey, an attorney for the ACLU in Ohio.
The state branch of the ACLU is challenging the law on behalf of two 12-year-old transgender girls, one of whom is already on puberty-blocking drugs and the other is meeting with doctors to begin the process. The other, Grace, traveled to Michigan to make an appointment at a clinic in case the treatment at her age is still banned in Ohio, according to Carey.
State Attorney General Elliot Gaiser opposed the ACLU’s claims and the panel’s questions that HB 68 is a ban, arguing instead that the law is a misdemeanor sentencing regulation.
“There is no general right to medical treatment that the state would consider inappropriate,” Gaiser told the appeals court.
The attorney general argued that adults can participate in gender-affirming care because they are able to “effectively consent,” meaning the law cannot be considered a ban on medical care. He also said the regulations are appropriate for gender-affirming treatments, which he said can involve “experimental, off-label use of drugs” and for which the standard of care is “falling apart around the world, month after month.”
Gaiser compared it to restrictions governing the practice of driving.
“It’s like a speed limit, not a total driving ban,” Gaiser said.
Carey cautioned the court against giving credence to the state’s argument that “isolated” cases of “medical malpractice” demonstrate a general lack of standards of care by doctors working with patients in gender-sensitive care.
In support of gender-sensitive care, in conjunction with all other major U.S. medical associations, American Medical Association said that “medical and surgical treatment of gender dysphoria and gender incongruence, determined through shared decision-making between the patient and physician, is medically necessary in accordance with generally accepted standards of medical and surgical practice.”
The AMA has also pledged to “oppose laws and policies that criminalize, prohibit, or otherwise impede the provision of evidence-based, gender-affirming care, including laws and policies that penalize parents and guardians who support minors seeking and/or receiving gender-affirming care.”
Ohio children’s hospitals, which already did not perform gender reassignment surgery on patients under 18, opposed HB 68 as it moved through the legislature.
The other main argument raised in the ACLU’s appeal of a lower court’s decision to allow HB 68 to proceed is that the law violates a provision of the state constitution that says legislation can only address a single subject.
HB 68 originally consisted of two separate bills, one covering gender-affirming care and the other barring transgender youth from participating in sports with the group that aligns with their gender identity. The bills were combined by the Ohio House Public Health Policy Committee in June before being passed by both chambers, even after being vetoed by Gov. Mike DeWine.
“The subject matter of these two bills is health care and sports,” Carey told the court Wednesday. “That’s what it says in the title.”
Carey added that the argument that both issues raised in Bill 68 concern transgender people does not qualify as a matter of dispute from a legal point of view.
Gaiser opposed this, arguing that the measures covered by the bill should be treated as a “three-legged stool” that is entirely related to “transgender” in Ohio.
“All we need to do is address the prevalent social problem of today,” he told the court.
The law is intended to “try to protect vulnerable Ohioans wherever the issue affects them,” which Gaiser said includes preventing children from receiving treatments that would make them “patients for life” and could wait until Ohioans reach adulthood.
“This court should not have given the green light to sterilizing children in Ohio,” Gaiser told the court.
If the appeals court upholds the lower court’s decision, House Bill 68 would continue to be enforced in Ohio, and gender-affirming care would be banned before the age of 18. If the court decides to overturn Holbrook’s decision, enforcement of HB 68 could be halted. In either case, the ruling could be appealed to the Ohio Supreme Court.
