The Ohio Supreme Court will decide the constitutionality of a 2024 state law banning gender-affirming medications and non-surgical treatments that are standard care for gender dysphoria. House Bill 68 also bans transgender athletes from competing in girls’ sports, but that isn’t part of the lawsuit argued before the court Tuesday.
Ohio Solicitor General Mathura Sridharan said children don't have a constitutional right to gender-affirming care, and parents don't the right to overrule state law related to it. She was almost immediately interrupted by Justice Pat Fischer asking if parents have rights in these cases.
"Parents have discretion to govern the medical treatment of their children," Sridharan answered. "But again, that right is not unbridled or unlimited."
And she added that lawmakers should be the regulators rather than experts in current research, which can results in conclusions that change over time.
“What is health care in Ohio is defined by the General Assembly, and it certainly touches on a health adjacent procedure," Sridharan said.
Justice Jennifer Brunner asked: "What if the General Assembly says having your tonsils out is not health care? What do we do about it?"
"Even if theoretically the General Assembly were to make a bad decision, like getting rid of tonsillectomies or getting rid of cold medication, there's a democratic process for that," Sridharan responded. "The most important fundamental right we have is a right to the democratic process, and the people speak to their elected representatives who can be voted out when they make mistakes. Not so with expert-driven, confusing standards of care."
Jordan Bock represents the two transgender 12-year olds and their families who sued. Bock said the treatment the state has banned is standard medical care for gender dysphoria, and noted the state has acknowledged gender dysphoria a medical condition.
"We are not disputing that the state has a compelling interest here. This law is not narrowly tailored to meet that interest," Bock said.
Bock said the ban violates the Health Care Freedom Amendment voters approved in 2011, as would be the case with outright bans on other drugs. She argued instead that strict scrutiny needs to be used, requiring the government prove the law is narrowly written to be the least restrictive it can be while achieving a compelling state interest.
"We're not disputing that there are no limits on the parental right," Bock said. "When there is a conflict between the parent and the state, it is strict scrutiny that helps you find that limit."
"There's a recognition that opioids, when they are treating a particular condition that they are appropriate for, can be used in that context. And I think it would be the same analysis," Bock said.
“The regulations that the state referenced for opioids or heroin, those are all permissible under the HCFA. It is a categorical ban on care that is a problem."
The Tenth District Court of Appeals rejected the trial court's ruling upholding HB 68, which is in effect during litigation.
