Republicans may accidentally help kill Ohio’s ban on gender-affirming healthcare

The Ohio legislature banned gender-affirming care for trans minors last January, and a judge has since blocked it from going into effect while considering its constitutionality. However, a new lawsuit says the ban violates a 2011 state constitutional amendment.

Ohio’s ban on gender-affirming care, H.B. 68, prohibits healthcare providers from doing anything that “aids or abets” minors in accessing gender-affirming medical care. Medical professionals who do provide such care could lose their medical licenses or be subject to civil legal penalties.

Related: Dozens of families flee Ohio after anti-trans health care ban passes

The GOP is “literally killing our children,” one Democrat said, blasting the new legislation.

However, a lawsuit recently filed by the Ohio chapter of the American Civil Liberties Union (ACLU) says that H.B. 68 violates the state’s constitution. The chapter is asking a court to stop the ban from going into effect on April 24.

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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 barred the government from prohibiting 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 banned gender-affirming care for minors and also barred 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 seemingly has 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 different 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.

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