A three-judge panel for the Ohio Tenth District Court of Appeals ruled that gender-affirming care for minors constitutes an essential medical treatment for trans youth and that the ban on gender-affirming care is in violation of a state constitutional amendment. Originally passed by Republicans to undermine Obamacare, the amendment is now being used to prevent federal or state intervention in denying any form of essential healthcare.
The ban on gender-affirming treatment in Ohio started in January of last year when Ohio legislatures approved H.B. 68. The bill did two things: ban hospitals from providing gender-affirming treatments to trans minors and ban trans girls from participating in girls’ sports.
Related
Republicans passed an amendment to curtail Obamacare. It just backfired in a surprising way.
They wanted to make a statement about access to health care, but they didn’t think it would end up helping trans youth.
Gov. Mike DeWine (R), despite signing an executive order around that time banning hospitals from performing “gender-affirming surgeries on minors,” attempted to veto H.B. 68, only for the Republican majority to override him.
Insights for the LGBTQ+ community
Subscribe to our briefing for insights into how politics impacts the LGBTQ+ community and more.
Subscribe to our Newsletter today
DeWine stated his reasoning as follows: “Were I to sign House Bill 68, or were House Bill 68 to become law, Ohio would be saying that the state, that the government knows better what is medically best for a child than the two people who love that child the most: their parents.”
Two families of transgender youth, represented the ACLU of Ohio and the law firm of Goodwin Proctor, filed a suit against the ban. Judge Michael J. Holbrook of Franklin County issued a temporary restraining order blocking the enforcement of the ban when it comes to pharmaceutical treatments. Disappointedly, that same judge would later reverse his decision and uphold the ban.
“Make no mistake–this fight is not over,” Harper Seldin, senior staff attorney with the ACLU, said in a statement at the time.
Indeed, the fight was not over. In a smart move, the plaintiffs argued that gender-affirming treatment be considered essential medical treatment, pointing to the numerous medical studies proving its effectiveness in treating gender dysphoria and improving the mental health and well-being of transgender adolescents. For that reason, they argued, it should protected under Ohio’s Health Care Freedom Amendment.
The amendment was passed in 2011 and was pushed by the state’s right wing, with help from the Ohio Liberty Council, Ohio Right to Life, and then-state Sen. Bob Peterson (R) as an attack on the Affordable Care Act (Obamacare). In doing so, they inadvertently gave Ohioans broader constitutional protections around healthcare because the amendment prohibits any law from banning “the purchase or sale of health care or health insurance” or even imposing a fine on such purchases.
The state responded to this argument by saying that gender-affirming care doesn’t qualify as health care. They relied on the testimony of anti-trans medical “experts,” but the judges looked at the so-called experts’ credentials and found them to be unreliable state witnesses.
Dr. James Cantor, as described in the ruling’s notes, “is not a physician, has never practiced as a licensed clinical psychologist in the United States, is not licensed to treat patients under the age of 16, and has never provided treatments to patients under the age of 16.”
Dr. Paul Hruz had a history of anti-trans advocacy. Citing his testimony in a transgender bathroom ban case, he stated: “Conditioning children into believing that a lifetime of impersonating someone of the opposite sex, achievable only through chemical and surgical interventions, is a form of child abuse.” The court also found that “he never diagnosed or treated a patient with gender dysphoria.”
Dr. Stephen Levine, the state’s sole witness, did have experience in this field. However, he testified that he does not support a categorical ban on gender-affirming treatment and provided no evidence that such care was unsafe. With the state’s only expert failing to justify the ban, the decision to rule gender-affirming care as a protected form of essential health care was made.
Freda Levenson, legal director at the ACLU of Ohio, celebrated the decision: “Today, we celebrate this win not only for our brave plaintiffs but for all LGBTQ+ Ohioans and their families. This win restores the right of trans youth in Ohio to choose vitally important health care, with the support of their families and physicians. We are gratified by the Court’s decision, which soundly rejects this interference of politicians with Ohioans’ bodily autonomy. Although this litigation will likely not end here, we remain fervently committed to preventing this egregious bill from ever again taking effect. The path towards protecting the rights and civil liberties of trans Ohioans goes on, and we will continue to hold the torch.”
Subscribe to the LGBTQ Nation newsletter and be the first to know about the latest headlines shaping LGBTQ+ communities worldwide.