An Ohio appellate court heard arguments from both the state and attorneys for two transgender children on a recent law banning gender-affirming care for minors.
Representatives from the Ohio Attorney General’s Office and the ACLU of Ohio presented their arguments to the Tenth District Court of Appeals on Wednesday, as the court decides whether gender-affirming care should continue to be prohibited for young people in the state, via 2023’s House Bill 68.
The court of appeals was presented the case after Republican Franklin County Judge Michael Holbrook ruled that the law could go into effect following a trial that included testimony from medical professionals and parents on the impacts of the law and treatments like puberty blockers and hormone replacement therapy.
HB 68 was temporarily blocked by the same judge while the case went on, but in August, Holbrook said the law could continue, saying it “reasonably limits parents’ rights to make decisions about their children’s medical care consistent with the state’s deeply rooted legitimate interest in the regulation of the medical profession and medical treatments,” according to the ruling.
Whether the law is considered regulation or prohibition came up frequently during oral arguments on Wednesday before the Tenth District Appeals Court judges.
“(HB 68) is prohibiting an entire category of medical care,” said David Carey, attorney for the ACLU of Ohio.
The state chapter of the ACLU is arguing against the law on behalf of two 12-year-old transgender girls, one of whom is already using puberty-blocking medication, and another who is meeting with physicians about the starting the process. The latter girl, Grace, has traveled to Michigan to have appointments at a clinic there in case treatment continues to be banned at her age in Ohio, according to Carey.
The state’s representative, Solicitor General Elliot Gaiser, argued against claims by the ACLU and questions from the panel of judges that HB 68 appeared to be a ban, arguing that the statute is a regulation that addresses the need for punishment for wrongdoing.
“There’s no general right to medical treatment that the state has decided is wrongdoing,” Gaiser told the appellate court.
The solicitor general argued that adults are able to participate in gender-affirming care because they are able to “effectually consent,” which means the law can’t be considered a ban on medical care. He also said regulations are appropriate for gender-affirming treatments, which he said can involve “experimental, off-label drug use” and for which the standard of care is “crumbling across the world, month by month.”
Gaiser likened it to restrictions that regulate the practice of driving.
“It’s like a speed limit, it’s not like a total ban on driving,” Gaiser said.
Carey cautioned the court not to buy arguments from the state that “isolated” incidents of “malpractice” represented a general lack of a standard of care by physicians who work with patients on gender-affirming care.
In supporting gender-affirming care along with all other major U.S. medical associations, the American Medical Association has said “medical and surgical treatments for gender dysphoria and gender incongruence, as determined by shared decision making between the patient and physician, are medically necessary as outlined by 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’s children’s hospitals, which already did not perform surgical gender-affirming treatment on patients younger than age 18, opposed HB 68 as it moved through the legislature.
Another main argument made in the ACLU’s appeal of the lower court decision allowing HB 68 to go forward is that the law violates a provision of the state constitution that states legislation can only cover one subject.
HB 68 was originally two separate bills, one covering gender-affirming care and another that barred 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 subjects of these two laws are health care and sports,” Carey told the court on Wednesday. “It says so right there in the title.”
Carey went on to say the argument that both matters dealt with in House Bill 68 have to do with transgender individuals doesn’t count as a subject in legal terms.
Gaiser pushed back, saying the measures dealt with in the law should be treated as a “three-legged stool,” all of which tie back to “transgenderism” in Ohio.
“The fact that this deals with a common social issue in society right now is all that it needs to do,” he told the court.
The law is unified in “trying to protect vulnerable Ohioans wherever this issue affects them,” which Gaiser said includes keeping children from receiving treatment that will make children “patients for life” and could wait until the Ohioans are of legal age.
“This court should not green-light the sterilization of Ohio’s children,” Gaiser told the court.
If the appellate court upholds the lower court decision, House Bill 68 will continue to be enforced within Ohio and gender-affirming care will be banned before the age of 18. If the court chooses to overturn Holbrook’s decision, enforcement of HB 68 could be stopped. In either decision, the ruling could be appealed to the Ohio Supreme Court.
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