The Ohio legislature outlawed gender-affirming care for trans minors in January, but a judge has stopped it from being enforced while considering its constitutionality. However, a new lawsuit claims the ban goes against a 2011 state constitutional amendment.
Ohio’s prohibition on gender-affirming care, H.B. 68, prevents healthcare providers from doing anything that assists minors in accessing gender-affirming medical care. Medical professionals who provide such care could lose their medical licenses or face civil legal penalties.
However, the Ohio chapter of the American Civil Liberties Union (ACLU) recently filed a lawsuit stating that H.B. 68 violates the state’s constitution. The chapter is asking a court to prevent the ban from being enforced on April 24.
In 2011, state Republicans sought a constitutional amendment to limit the effects of the Affordable Care Act (ACA). The ACA, a 2010 federal law also known as “Obamacare”, required Americans to purchase healthcare or face a financial penalty. In response, state Republicans successfully encouraged voters to support Issue 3, a constitutional amendment that prohibited the state government from “compelling” people “to participate in a healthcare system.”
The amendment also prohibited the government from forbidding or imposing any penalty upon the purchase or sale of health care or health insurance. This amendment, now located in Section 21 of Article I of the state constitution, seemingly contradicts the state’s ban on gender-affirming care, the Ohio ACLU argued in its lawsuit, because the ban prohibits the purchase of “health care” and imposes penalties upon the provision of such care, trans journalist Erin Reed noted.
Additionally, the Ohio ACLU says that H.B. 68 also violates a state constitutional provision known as the “single subject rule.” The rule states that no bills may cover more than one subject, but H.B. 68 outlawed gender-affirming care for minors and also prohibited trans girls from playing on sports teams matching their gender identity.
“This rule exists to prevent ‘logrolling’ of unrelated issues, ensuring that each matter can be debated individually” in the state legislature, Reed explained. But healthcare law appears to have little to do with laws governing school sports participation, the Ohio ACLU argues in its suit.
The ACLU also says the bans deny trans children and their families constitutional rights to due process and equal protection under the law, since they treat cisgender children differently from trans children.
Ohio Gov. Mike DeWine (R) vetoed H.B. 68, but the Republican-led legislator overrode his veto. Nevertheless, DeWine stood by his veto, saying, “I continue to believe it is in the best interests of children for these medical decisions to be made by the child’s parents and not by the government.”
Courts will likely decide on the constitutionality of the state’s ban. “While federal courts in the 8th and 9th Circuits have blocked these bans, they have been permitted to take effect in several states within the jurisdictions of the 6th, 7th, and 11th Circuit Courts,” Reed noted. Ohio is located within the 6th circuit.
