Ohio Court Is Latest to Back State Bans on Gender-Transition Treatments for Minors, as Supreme Court Prepares To Hear Landmark Tennessee Case

A key loss for transgender rights advocates in a county court in Ohio this week could presage what’s to come from the United States Supreme Court next term when the justices hear an appeal from the Biden Administration that seeks to help overturn the wide swath of state bans on medical gender transitions for minors.In a decision issued Tuesday, Judge Michael J. Holbrook of the Franklin County Court of Common Pleas Civil Division upheld his state’s ban on gender-transition treatment for minors, ruling that the law was in keeping with both the Ohio and the United States Constitution. Judge Holbrook deemed that Ohio had a “deeply rooted legitimate interest” in regulating medical practices and that the ban “reasonably limits” the rights of parents to make medical decisions for their children in this context. He deferred to the GOP-controlled Ohio legislature’s assertion that gender-transition treatment for minors “is experimental.” Crucially, Judge Holbrook ruled that the state’s ban did not violate the Equal Protection clause of the U.S. Constitution’s 14th Amendment. To back his conclusion on this point, he cited a September 2023 decision from the Sixth Circuit of the United States Court of Appeals, which rejected a challenge to Tennessee’s ban brought by a Nashville family.Representatives of the American Civil Liberties Union, which brought the Ohio case on behalf of two transgender adolescents and their families — and which also waged the challenge to the Tennessee law in the 6th Circuit — expressed dismay over the ruling.“We are particularly appalled the court claims the ‘regulation of transgender individuals’ is a legitimate subject for the legislature under the state constitution,” an ACLU senior staff attorney, Harper Seldin, said in a statement. An Ohio state representative, Gary Click, a Republican who marshaled the ban through the state legislature, praised the judge’s decision. He said in a statement that pediatric gender-transition treatments, “including dangerous drug interventions and surgeries, are a failed experiment that has been harming children around the world.” The judgment in Ohio could be a preview of what’s to come from the highest court in the land as nationwide litigation over pediatric gender medicine follows a swift and consequential crescendo. The Supreme Court has agreed to hear the Biden Justice Department’s complaint regarding the Tennessee ban during its forthcoming term, focusing narrowly on the equal-protection question. A decision is expected next spring. The ACLU said it intends to swiftly appeal the Ohio decision. Ohio’s governor, Mike DeWine, a moderate Republican, sought middle ground on the combustible political issue of pediatric gender-transition treatment after the state legislature, which is dominated by conservatives, passed a ban of such medical practices in December. Mr. DeWine engaged in a listening tour of stakeholders throughout the state. And upon announcing his veto of the ban just before the new year, he proposed a raft of new regulations of such medical practices. But his plea for compromise fell on deaf ears; the legislature’s Republican supermajority overrode his veto in January.The Ohio law bans the prescription to those under age 18 of puberty blockers and cross-sex hormones to treat gender dysphoria — defined as distress over the misalignment of gender identity and biological sex — as well as gender-transition surgeries for minors. Nationally, such surgeries are rare and are mostly double mastectomies, but were swiftly becoming more common during the years leading up to states broadly banning them. Ohio is among 24 states to have passed bans on gender-transition treatments and surgeries since 2021; two additional states ban only such surgeries. These bans are now embroiled in litigation in both state and federal courts, with mixed outcomes The Biden Justice Department has been supporting efforts to block the laws. The Ohio law also restricts participation in girls and women’s sports to biological females.In March, the ACLU and the law firm Goodwin Procter sued the state of Ohio, seeking to overturn the ban on medication-based gender-transition treatment. The following month, Judge Holbrook issued a temporary restraining order, blocking the law from going into effect. Judge Holbrook’s tidy, 12-page decision in favor of the state broke down into four key points. He found that the law did not violate: a state law that limits the scope of laws to a single subject; a state law barring restrictions on the purchase or sale of health care; the state and U.S. constitution’s equal protection clauses; and the state and U.S. constitution’s guarantees of due process.He vacated the restraining order, putting the law immediately into effect. However, minors already on gender-transition treatment are generally grandfathered in. Judge Holbrook showed deference to the Sixth Circuit decision regarding Tennessee’s law, deeming that the Ohio ban on pediatric gender-transition treatment did not constitute sex discrimination under the Equal Protection Clause because such bans “treat similarly situated individuals evenhandedly.” The Tennessee attorney general successfully argued to the Sixth Circuit that his state’s ban does not apply differently to boys versus girls, and thus does not constitute sex discrimination.Sex is what’s known as a suspect classification under the Equal Protection Clause, and laws infringing upon the rights of suspect classes are subject to so-called strict scrutiny. Under Ohio’s constitution, without that heightened level of legal scrutiny, laws need only not be “clearly arbitrary and unreasonable” to satisfy the equal protection clause. (The U.S. Constitution prompts a comparable legal test.) Judge Holbrook found that the Ohio ban cleared that low legal bar, given what he stated was “a legitimate government interest in protecting the health and safety of its citizens.” A spokeswoman for Ohio’s Republican attorney general, Dave Yost, Bethany McCorkle, said in a statement: “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. The law doesn’t say ‘no’ forever; it simply says ‘not now’ while the child is still growing.” A professor of constitutional law at the South Texas College of Law, Houston, Josh Blackman, further said, “With regard to due process, the court found that the state has a strong interest in protecting the health and welfare of children.” The ACLU of Ohio’s legal director, Freda Levenson, couched the decision in dire terms. “This loss is not just devastating for our brave clients,” she said in a statement, “but for the many transgender youth and their families across the state who require this critical, life-saving health care.”The only study to assess the veracity of this widely repeated claim that such treatment is indeed associated with a lower rate of suicide death, conducted in Finland and published in February, found no such evidence. While suicide deaths are indeed elevated in youth with gender distress, the Finnish study and another in the United Kingdom found that such deaths are nevertheless rare. A half–dozen systematic literature reviews — the gold standard of scientific evidence — of the evidence base behind pediatric gender-transition treatment have found it wanting and largely inconclusive. In response to such findings, the health authorities in five European nations, most recently the U.K., have reclassified such treatment as experimental and sharply restricted access among minors.Such dramatic turnabouts overseas have begun to influence American litigation, including in the Ohio case. After stating in his decision that “the medical care banned carries with it undeniable risk and permanent outcomes,” Judge Holbrook wrote in his decision: “Indeed, countries once confident in the administration of gender affirming care to minors are now reversing their position as a result of the significant inconsistencies in results and potential side effects of care.”A constitutional law expert at the Ethics & Public Policy Center in Washington, DC, Edward Whelan, said: “Judges are discovering that the evidence in support of transgender interventions on kids is very weak.” In contrast to outright bans in American states like Ohio, those five European nations still allow for clinical trials of pediatric gender-transition treatment — research that might help answer important outstanding questions about its safety and efficacy. Should Ohio’s ban ultimately stand, the nation would lose a major research hub at Nationwide Children’s, which is headquartered in Columbus and has a reputation for a relatively cautious approach to prescribing gender-transition medications to children. Mr. DeWine, for one, was apparently impressed by their methods. Meanwhile, all major American medical associations support children’s access to such medications. Many of these organizations, including the American Academy of Pediatrics and the American Medical Association, have come out in full-throated support of efforts to overturn state bans.Ms. Levenson said the ACLU was resolute in maintaining its fight against the Ohio law. “While this decision by the court is a genuine setback,” she said, “it is not the end of the road in our fight to secure the constitutional rights of transgender youth, as well as all Ohioans’ right to bodily autonomy.”The conservative-dominated Supreme Court, however, could deal a devastating blow to the ACLU’s hopes when it issues its decision in the Tennessee case.

Ohio Court Is Latest to Back State Bans on Gender-Transition Treatments for Minors, as Supreme Court Prepares To Hear Landmark Tennessee Case

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