The Ohio Supreme Court hears oral arguments this week to weigh the constitutionality of a state law banning physicians from providing gender-affirming medical care to LGBTQ+ youth.
On Tuesday, the state’s highest court is expected to hear from counsel in Moe v. Yost, a case filed by two 12-year-old transgender students and their families who argue that an Ohio statute prohibiting gender-affirming care for LGBTQ+ minors violates the Ohio Constitution — namely, the Equal Protection and Due Course of Law provisions, the latter of which has been viewed as the equivalent of the Fourteenth Amendment’s due process clause.
The petitioners also argue that the state’s gender-affirming care ban violates the Health Care Freedom Act, a constitutional amendment Ohio voters approved at the ballot box in 2011.
Since the inception of Ohio’s gender-affirming care ban, the law has been at the center of multiple legal battles. More recently, in a 56-page majority opinion written by Judge Edelstein, the Tenth District Court of Appeals unanimously struck down H.B. 68 as unconstitutional on its face on grounds that it violates the Ohio Constitution and parents’ fundamental right to care for and make decisions on behalf of their children.
But the Ohio Supreme Court intervened a month later, granting Attorney General Dave Yost’s motion to stay the Tenth District’s ruling as the case proceeded on appeal. Accordingly, physicians in Ohio remain barred from providing gender-affirming care to LGBTQ+ youth.
The parties’ oral arguments may provide the public with a glimpse at how the Court will rule. And whether the Ohio Constitution — unlike the U.S. Constitution — provides such rights to LGBTQ+ youth, their parents, and their medical providers.
What is gender-affirming care, and why did Ohio lawmakers ban it?
In April 2023, Ohio lawmakers introduced H.B. 68, dubbed by its authors as the “Save Adolescents from Experimentation (SAFE) Act,” to prohibit physicians from providing gender-affirming medical care to LGBTQ+ Ohioans under the age of 18 for purposes of helping the minor with gender transition.
Although H.B. 68 contains other provisions — like prohibiting Ohio’s transgender students from playing school sports, banning surgical interventions for LGBTQ+ youth, and regulating the custodial rights of parents who do not accept their child’s transgender identity — at the crux of the challenge before the Ohio Supreme Court is its ban on puberty-delaying medication and gender-affirming hormone therapy.
“The law leaves the same treatments entirely unrestricted if they are prescribed to minors for any other purpose and if they are prescribed to adults for any purpose, including assisting with gender transition,” Judge Carly Edelstein wrote for the Tenth District.
Gender-affirming medical care encompasses a wide range of medical treatments for people diagnosed with gender dysphoria, including puberty blockers, hormone therapy, and, albeit rare for minors in Ohio, surgical intervention.1
Trans and gender non-conforming youth and adults can experience gender dysphoria, which the Tenth District defined, based on expert testimony, as “a medical condition characterized by clinically significant distress resulting from incongruence between a person’s gender identity and sex assigned at birth that has persisted for at least six months.”
“Being transgender is not, in and of itself, a mental health condition,” Judge Edelstein wrote. “But untreated gender dysphoria can lead to debilitating distress, depression, impairment of function, substance use, self-injurious behaviors, and even suicidality.”
Based on the record at trial, the Tenth District determined that gender-affirming care, while not without its risks, is the prevailing standard of care — and viewed as such by a consensus of major medical and mental health associations in the U.S., including but not limited to the American Medical Association, the American Medical Student Association, the American Psychiatric Association, the American Psychological Association, and the National Association of Social Workers.
Before H.B. 68 was enacted, more than 200 Ohioans testified against the bill, including several parents and medical providers who told lawmakers that the decision to prescribe gender-affirming care is an arduous, carefully considered process that is done only with parental consent, a gender dysphoria diagnosis, and at the discretion of a physician.
Some Ohio lawmakers, however, weren’t so convinced about its efficacy.
Rep. Gary Click (R-Vickery), a sponsor of H.B. 68, cited his concerns about minors’ inability to consent to such procedures and the potentially irreversible nature of some gender-affirming care procedures.
“The SAFE Act recognizes that sex change procedures on children is experimental at best and acknowledges that children are incapable of providing informed consent for such risky procedures,” Rep. Gary Click (R-Vickery) wrote in his H.B. 68 sponsor testimony.
Backed by a Republican-majority House and Senate, H.B. 68 became law in December 2023. But in defiance of party lines, Gov. Mike DeWine swiftly vetoed the bill.
“Were I to sign Substitute House Bill 68 . . . Ohio would be saying that the State, that the government, knows what is best medically for a child rather than the two people who love that child the most, the parents,” DeWine wrote in his veto message.
Gov. DeWine’s veto, however, was short-lived. The General Assembly gathered enough support to override his veto, and in April 2024, H.B. 68 once again became law — making Ohio the 23rd state in the nation to ban gender-affirming care for trans youth.
Two transgender students sue to block H.B. 68’s implementation
Seeking to block H.B. 68 from taking effect, two 12-year-old transgender girls, under the pseudonyms Madeline Moe and Grace Goe, and their families filed suit in Franklin County.
Diagnosed with gender dysphoria at a young age, both girls saw noticeable improvements in their mental and physical health after their doctors prescribed gender-affirming medical care. For instance, once Goe started to live as a girl publicly, her mother testified at trial that “[h]er distress ceased and melted away almost instantaneously.”
Without access to such care, however, Goe’s mother testified she fears her daughter will not be able “to live in this world authentically and freely to be herself.”
“As a result, the Goe family have scheduled appointments for gender-affirming care with providers in Michigan and have discussed the possibility of moving to another state to access care,” Judge Edelstein wrote.
Franklin County Common Pleas Court Judge Michael Holbrook, however, wasn’t swayed by the plaintiffs’ arguments. Instead, the trial court held in a 13-page opinion in August 2024 that the state of Ohio has a “deeply rooted legitimate interest in the regulation of medical profession and medical treatments.”
Since the General Assembly determined that gender-affirming care is “experimental,” with its risks far outweighing any benefits, the trial court concluded that Ohio legislators were well within their discretion to enact H.B. 68.
On appeal, the Tenth District in March 2025 reversed Judge Holbrook’s opinion. The Tenth District found H.B. 68 to be “underinclusive” in that it categorically prohibits gender-affirming care for only a limited segment of youth who use puberty blockers or hormones to treat gender dysphoria — while leaving such care available for non-LGBTQ+ youth.
“If the state’s concerns about the propriety of prescribing gender-affirming medications to minors were genuine, the state would prohibit the use of puberty blockers and hormone therapy for all patients under 18 irrespective of the type of medical condition they are being used to treat,” Judge Edelstein wrote from the majority.
The Tenth District also characterized H.B. 68 as “gravely overinclusive” in that it fails to consider its effect of violating parents’ “fundamental right to choose a treatment” for their child in accordance with a physicians’ advice and the prevailing medical standards of care.
“Such a sweeping and inflexible ban on parents’ ability to access medical care for their children,” Judge Edelstein wrote, “is not narrowly tailored to advance the state’s articulated interest: the protection of children.”
Although the Tenth District acknowledged the risks that can be associated with adolescents’ use of puberty blockers and hormones — as is the case with almost any medical care, the court added — Ohio law already has guidelines and mandatory steps before a physician is able to provide such care.
State of Ohio argues no fundamental right to gender-affirming care exists
Appealing the Tenth District’s ruling to the Ohio Supreme Court, Attorney General Dave Yost argued on behalf of the State that H.B. 68 can stand on grounds that the Ohio Constitution provides no fundamental right to gender-affirming medical care.
“As the Sixth Circuit explained, ‘[t]his country does not have a ‘deeply rooted’ tradition of preventing governments from regulating the medical profession in general or certain treatments in particular, whether for adults or their children,’” Yost wrote.
Because no fundamental right exists, Yost argued that the Court need only apply a rational basis standard of review — meaning that the State must only show that H.B. 68 is “rationally related to a legitimate government interest.”
Contrary to the consensus of U.S. medical providers, Yost cited the trial testimony of three doctors to support the notion that gender-affirming care carries more risks than benefits.
Just as the Sixth Circuit determined in L.W. v. Skrmetti in 2023 — and U.S. Supreme Court late affirmed two years later in United States v. Skrmetti — that Tennessee’s ban on gender-affirming care for LGBTQ+ youth was constitutional under the U.S. Constitution, Yost argued such bans are constitutional under the Ohio Constitution, too.
“If the evidence is good enough for Tennessee, it is good enough for Ohio,” Yost wrote.
Petitioners, on the other hand, argue that the facts in Skrmetti regarding Tennessee’s statutory ban are distinguishable from Ohio’s ban, and that Ohio’s Constitution provides more protections than the U.S. Constitution.
Oral argument in Moe v. Yost is expected to begin at 9 a.m. on Tuesday, March 24, and will be livestreamed on the Court’s website.