The 10th District Court of Appeals has ruled the state cannot enforce a ban on gender-affirming care for minors. The decision comes after a three-judge panel from that court ruled that part of House Bill 68 unconstitutional last month, and the full court rejected a request for a stay from Attorney General Dave Yost. And he plans to take it to Ohio’s highest court.
The American Civil Liberties Union of Ohio has fought the law all along. ACLU of Ohio legal director Freda Levenson said this ruling “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," Levenson said.
Ban was thrown out, but still effectively stands
The law has been in the courts since Republican lawmakers overrode Gov. Mike DeWine’s veto last year. It was upheld in August after a trial in Franklin County Common Pleas Court, and was appealed to the 10th District.
Levenson said even though this ruling makes it clear the ban on gender-affirming treatment is not constitutional, medical professionals are reluctant to provide care because a change has not been made at a lower court level.
Franklin County Common Pleas Court Judge Michael Holbrook was instructed to issue an injunction on the ban after the three-judge panel threw it out last month, but Levenson said he hasn't.
“We're waiting for the trial court judge to actually enter the injunction that would remove the unconstitutional impediment of HB 68. The judge has been under order to do that for over two weeks now, but he still hasn't acted," Levenson said.
Levenson said if the lower court judge doesn't comply with this order either, trans kids might still find it is difficult to receive care because doctors and hospitals are reluctant if the status of the law hasn't formally been changed.
"It's really disappointing, and you can't blame the institutions for being very cautious. They want to do the right thing and be compliant with the law. So it's certainly not on them that they have not been able to provide care," Levenson said.
Case continues on to Ohio’s highest court
In the meantime, the state has announced it will appeal to the Ohio Supreme Court.
"This fight is far from over – and until it is, there’s no sense in toggling the law on and off like a light switch,” Yost wrote in a statement.
Yost said his office believes the law remains in effect at the state moves forward with its legal challenge in front of the state's high court.
“We look forward to showing once again that the legislature acted properly in enacting this constitutional law, which protects our children from irreversible medical decisions. I remain confident that the law will be upheld," Yost said.
The makeup of the Ohio Supreme Court changed with November's election. All but one Justice on that court is a Republican.
