Ohio Supreme Court rejects Yost effort to narrow gender-affirming care ruling

Ohio lawmakers banned certain health care and sports team access for transgender youth, but a judge’s restraining order blocked that law statewide

Credit: Avery Kreemer

Credit: Avery Kreemer

An Ohio Supreme Court vote Wednesday upheld the scope of a temporary restraining order blocking the state’s bans on gender-affirming care for transgender youth and a ban on trans students participating on athletic teams that align with their identity.

In April, Republican Franklin County Court of Common Pleas Judge Michael Holbrook issued a temporary restraining order on House Bill 68, which would have prevented LGBTQ+ minors from accessing care such as hormone blockers, hormone replacement therapy (HRT) and some mental health services. It also would have prohibited trans athletes from taking part in middle and high school sports.

Ohio Attorney General Dave Yost and the State Medical Board of Ohio filed a complaint with the Ohio Supreme Court, requesting the court limit Holbrook’s order only to the families involved in the case in Franklin County, rather than statewide.

Holbrook’s “injunction vastly oversteps those express limitations on the court’s authority,” says Yost’s motion, signed by T. Elliot Gaiser, solicitor general.

All of the justices concurred in the ruling, although Chief Justice Sharon Kennedy concurred only in part and dissented in part. Kennedy would have granted the emergency motion and issued an alternative order.

Some of the justices filed opinions that agreed on the outcome to deny the state’s request, but disagreed on sentiments expressed by their colleagues.

The state failed to make the necessary showing for its motion to make Holbrook narrow the focus of the temporary restraining order, Justice Pat DeWine’s opinion said, adding it still brings up the issue of a single county blocking a law statewide.

“The injunction is very broad,” DeWine’s opinion said.

The two plaintiffs in this case challenged the law on the basis that it will prevent them from taking puberty-blocking drugs, DeWine said, but the temporary restraining order blocks the law in its entirety. The law includes additional provisions banning all kinds of gender-affirming care, including hormone therapies and surgeries, in addition to participation in school athletics.

Justices Patrick Fischer and Joseph Deters concurred with DeWine’s written opinion.

Justice Jennifer Brunner wrote another concurring opinion, but said, “My colleague’s concurring opinion is more akin to a political statement than a legal one, which is why I have written this opinion.”

“If a law that is facially unconstitutional may not be applied to an individual, then it may not be applied to anyone else,” Brunner’s opinion said.

The court’s decision to deny the state’s request to narrow the temporary restraining order allows the case to go forward in Franklin County Court of Common Pleas, where a trial is scheduled for July 15.

The ACLU of Ohio, one of the legal organizations representing two Ohio families whose children are at risk of losing access to gender-affirming medical care, celebrated the ruling, saying its fight will continue.

“The scope of the temporary restraining order was necessary and appropriate to prevent the constitutional violations and other irreparable harm that would immediately occur if H.B. 68 were permitted to take effect. Our legal battle will continue until this cruel restriction is permanently overturned,” said Freda Levenson, legal director at the ACLU of Ohio.

Aaron Baer, president of the Center for Christian Virtue, which supported House Bill 68, expressed frustration with the ruling.

“The high court has handed the keys to the state over to one Franklin County judge, and allowed profit-driven gender clinics to continue their dangerous and deadly experiments on our kids,” Baer said. “There is a long road ahead for this litigation, and we remain confident that the law is on our side.”

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