As proponents of gender-affirming care for transgender minors await a Supreme Court ruling in US v. Skrmetti (argued on December 4, 2024), which may decide whether state bans on such care violate the equal protection rights of transgender minors under the 14th Amendment of the US Constitution, the Ohio Court of Appeals blazed a new path on March 18 in Moe v. Yost, a challenge to a recently enacted Ohio ban on such care, part of a bill titled “Ohio Saving Adolescents from Experimentation (SAFE) Act,” holding that the law violated two provisions of the Ohio Constitution. The court of appeals directed the trial court to issue a permanent injunction against its enforcement, in an opinion by Judge Carly Edelstein.
David Yost, Ohio’s attorney general, who is the lead defendant in the lawsuit, announced that the decision will immediately be appealed to the Ohio Supreme Court.
The Skrmetti case involves a Tennessee law banning gender-affirming care for minors. Tennessee and Ohio are both within the jurisdiction of the federal Sixth Circuit Court of Appeals. The Tennessee judge issued a preliminary injunction against the enforcement of the law, which it found to violate the 14th Amendment. A Kentucky federal judge issued a similar ruling, and both cases were appealed and considered together by the 6th Circuit, which reversed the trial judges. The plaintiffs in those cases petitioned the Supreme Court for review, as did the Biden Administration’s solicitor general. The Supreme Court granted the solicitor general’s petition, which raised only an equal protection claim. The Supreme Court’s ruling could be issued later this spring or early in the summer.
At the time this lawsuit was filed in April 2014, the Sixth Circuit had already issued its ruling in Skrmetti. Knowing in advance that a lawsuit filed in federal court in Ohio would confront the Sixth Circuit precedent, and not knowing whether the Supreme Court would agree to review it, the ACLU attorneys representing two transgender youths made the strategic decision to sue in state court, noting that while the Ohio Constitution has equivalents to the federal 14th Amendment, it also goes beyond the federal constitution in protecting individual rights that would be at stake in this case, so their challenge would raise legal issues that were not even addressed in the Sixth Circuit ruling.
The complaint on behalf of Madeline Moe and Grace Goe (pseudonyms to protect the plaintiffs’ privacy) and their parents was filed shortly before the Ohio law was set to go into effect on April 24, 2024. The complaint claimed that the law, which dealt not only with gender-affirming care but also with transgender people’s participation in youth and collegiate sports and with the custodial rights of parents who do not accept or support their minor child’s transgender identity, violated four Ohio constitutional provisions: the “single subject rule,” the “Health Care Freedom Amendment,” the “Equal Protection Clause,” and the “Due Course of Law” provision. The first two claims rely on Ohio provisions that have no equivalent provisions in the federal constitution. The “Due Course of Law” provision is the equivalent of the federal Due Process Clause.
The complaint challenged only the provisions banning gender-affirming care, as these plaintiffs were not interested in sports competition and the adult custody provisions had no relevance to the parents, who supported their children’s gender identity. The plaintiffs’ “standing” to sue was thus limited to the health care provisions.
The case quickly went to trial in the Franklin County Court of Common Pleas in July. The trial judge issued a temporary restraining order to block the health care provisions from going into effect during the trial, but the other provisions of law went into effect as scheduled. The trial court issued its judgment on Aug. 6, 2024, finding no constitutional violations. The restraining order was lifted, and the plaintiffs filed an immediate appeal.
The plaintiffs are both 12 years old, identified at birth as male. Madeline began to experience gender dysphoria by age 6, was diagnosed and began presenting herself as a girl after she completed first grade. After her social transition, alleges the complaint, she went “from a child that has been very distressed and very upset to now being able to express herself as she wanted to be.” She began on puberty blockers in February 2023, and she and her parents discussed with her health care providers starting hormone therapy once she became eligible. Reacting to the state legislature’s passage of the bill, her mother put her on an 18-month waiting list to meet a doctor in Chicago for treatment. If this lawsuit failed, her family was considering moving out of state so that Madeline could get the hormones for gender transition.
Grace, also identified as male at birth, developed symptoms of gender dysphoria as a kindergartener, and her pediatrician made a referral to a gender specialist. After her diagnosis and beginning to socially transition, “her distress ceased and melted away almost instantaneously,” according to her mother’s testimony. At the time of the trial in this case, she had not begun medications but began to experience signs of puberty and was anxious to get started on medical transition. Her parents scheduled her for an appointment with gender-affirming care providers in Michigan and discussed moving there if this lawsuit fails.
As part of their appeal, the plaintiffs sought a preliminary injunction from the Court of Appeals, which the state opposed. The state agreed instead to expediting the plaintiffs’ appeal, and the court agreed to set an early hearing date as the health care provisions went into effect. If the health care provisions violated any one of the four Ohio constitutional provisions, the plaintiffs would win the appeal. The court decided to focus its ruling on two of them: the Health Care Freedom Amendment, which was adopted by public vote in November 2011, and the Due Course of Law provision, which the Ohio Supreme Court equates with federal Due Process, including the theory of substantive Due Process, under which violation of a Fundamental Right is unconstitutional unless the state can show a compelling interest for the challenged law.
The Health Care Freedom Amendment prohibits the government from compelling any person to participate in a health care system, from prohibiting the purchase or sale of health care or health insurance, or from imposing a penalty or fine for the sale or purchase of health care or health insurance. It specifically does not affect laws or rules that were already in effect when it was presented to the public for approval, “affect which services a health care provider or hospital is required to perform or provide, affect terms and conditions of government employment, or affect any laws calculated to deter fraud or punish wrongdoing in the health care industry.”
The state argued that the amendment had no relation to this case, and, in any event, that as the legislature had decided that providing gender-affirming care to transgender minors was not appropriate, the penalties imposed on health care providers who provided such a service could be punished as” wrongdoing.” The statute is enforced by imposing penalties on the health care providers.
The state argued that gender-affirming care is not “health care” and thus not covered by the amendment, but the court quickly disposed of this argument. The court decided that the performance of gender-affirming care has been provided according to established standards of care for gender dysphoria recognized by the health care profession through its professional associations, and could not be considered “wrongdoing” on the part of the providers.
Noting that neither of the plaintiffs had expressed any desire to submit to gender-affirming surgery, the court limited its ruling to puberty blockers and cross-sex hormones.
“Under the state’s proposed interpretation,” wrote Judge Edelstein, “the freedom to choose health care guaranteed by Section 21 is narrowed to nothing more than the right to receive health care subject to the policy preferences of the General Assembly,” with the state arguing that by labelling the performance of gender-affirming care “professional misconduct” it was effectively narrowing the constitutional rights of Ohioans. The court would not agree to this, declaring that “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.” A family’s “informed decision to act in what they believe is in their child’s best interest has no bearing on our analysis under the HCFA.”
Turning to the Due Course of Law provision, the court relied heavily on US Supreme Court cases under the 14th Amendment on the rights of parents to “make decisions concerning the care, custody, and control of their children.” The court observed that the parents in this case “assert a long-recognized and well-established fundamental liberty interest protected by the federal Due Process Clause and Ohio’s Due Court of Law Clause: the right of parents to make decisions concerning the care, custody, and control of their children.” The court dismissed the state’s argument that the recency of gender-affirming care treatment would leave it outside the scope of a fundamental right, as “no such medical treatment could be shown to be deeply rooted in our nation’s history and tradition. Indeed,” continued the court, “it would be impossible for any historical discussion of puberty blockers or gender-affirming hormone therapy to have informed the meaning” of the federal and state due process requirements. “The same is, of course, true of all modern medicine,” asserted Judge Edelstein.
“It is axiomatic that we must view constitutional rights at a level of generality sufficient to ensure ‘the basic principles’ that define our right ‘do not vary’ in the face of ‘ever-advancing technology,’” the judge said.
She continued, “As such, we decline to hold that parents’ fundamental right to direct their children’s medical care is limited to those treatments existing as of 1851, 1868, or 1912. Circumscribing this fundamental right in the manner suggested by the state would obliviate any constitutionally protected right for a parent to seek for their children, without state interference, medical innovations of the 20th and 21st centuries that are accepted as the standard of care by the relevant medical communities, including noninvasive fetal heart monitoring, penicillin, insulin, organ transplants, the polio vaccine, and congenital corrective heart surgery.”
The court found that it would be “unreasoned to suggest that whether or not a parent has a fundamental right to direct and make decisions about their minor children’s medical care is limited to 19th century medical treatments.” And the court emphasized that the state’s approach would be “disastrous for all parents seeking access to modern medical care for their children.”
Thus, unlike the trial court, the court of appeals applied strict scrutiny to the prescription ban and found that the state had failed to prove that it had a compelling interest or that the law was appropriately focused to achieve that interest. Of particular note was that puberty blockers and hormones are routinely prescribed for both minors and adults for a variety of medical conditions, and the legislature singled out only minors’ gender transition for prohibition. The court proclaimed that it was not turning a “blind eye” to the risks of such treatment, only to note that the requirements of care in diagnosis and of informed consent remained and that all medical procedures pose risks of negative side effects. Even if the concerns voice by the state were “substantiated,” wrote Judge Edelstein, “it is difficult to see how they justify a categorical ban on puberty blockers and hormone therapy for minors diagnosed with gender dysphoria.
One member of the court, Julia Dorrian, agreed that the challenged provision was unconstitutional, but only as to the Due Course of Law holding, as it applied to the rights of parents. She did not need to take a position on plaintiffs’ other three legal theories, since violation of any single constitutional right would provide grounds for reversing the trial court and ordering a permanent injunction against enforcement of the health care provisions of the statute.
The plaintiffs-appellants are represented in this case by the ACLU of Ohio Foundation and the national ACLU. David J. Carey of the ACLU of Ohio Foundation argued before the court of appeals.
