Moe v. Yost

[Cite as Moe v. Yost, 2025-Ohio-914.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Madeline Moe et al., :

Plaintiffs-Appellants, : No. 24AP-483

(C.P.C. No. 24CV-2481)

v. :

(REGULAR CALENDAR)

David Yost et al., :

Defendants-Appellees. :

D E C I S I O N

Rendered on March 18, 2025

On brief: ACLU of Ohio Foundation, Freda J. Levenson,

Amy Gilbert, David J. Carey, and Carlen Zhang-D’Souza;

American Civil Liberties Union Foundation, Chase Strangio,

Harper Seldin, and Leslie Cooper; Goodwin Procter LLP,

Miranda Hooker, and Jordan Bock, for appellants. Argued:

David J. Carey.

On brief: Dave Yost, Attorney General, T. Elliot Gaiser, Erik

Clark, Stephen P. Carney, and Amanda Narog, for appellees.

Argued: T. Elliot Gaiser.

On brief: Ashbrook Byrne Kresge LLC, Andrew D.

McCartney, James S. Kresge, and Benjamin M. Flowers;

Independent Women’s Law Center, and Sylvia May

Mailman, for Amicus Curiae of the Independent Women’s

Forum.

APPEAL from the Franklin County Court of Common Pleas

EDELSTEIN, J.

No. 24AP-483 2

{¶ 1} Overriding the Governor’s veto1, the Ohio General Assembly banned gender-

affirming pharmaceutical medical care for transgender adolescents diagnosed with gender

dysphoria when it enacted 2023 Sub.H.B. No. 68 (“H.B. 68”). While this law also sought

to regulate other matters concerning transgender persons living in Ohio—including

surgical intervention for minors, participation in youth and collegiate sports, and the

custodial rights of parents who do not accept or support their minor child’s transgender

identity—the primary focus in this case is the constitutionality of the provisions forbidding,

except under very limited circumstances, medical providers in Ohio from prescribing

puberty-delaying medication (gonadotropin-releasing hormone (GnRH) agonists,

commonly referred to as “puberty blockers”) and gender-affirming hormone therapy

(testosterone for transgender boys, and testosterone suppression and estrogen for

transgender girls) to persons under 18 years of age “for the purpose of assisting the minor

individual with gender transition.” R.C. 3129.02(A)(2). 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.

{¶ 2} Before H.B. 68 took effect on April 24, 2024, plaintiffs-appellants, Madeline

Moe and Grace Goe—transgender adolescents living in Ohio with gender dysphoria

diagnoses—by and through their parents (collectively “appellants”) sought injunctive and

declaratory relief from enforcement of the law. They sued defendants-appellees, Ohio

Attorney General Dave Yost, the State Medical Board of Ohio, and the State of Ohio

(collectively “appellees” or the “state”) in the Franklin County Court of Common Pleas

alleging the new law violated various provisions of the Ohio Constitution. Specifically,

appellants contended that H.B. 68 violates the single-subject rule in Article II, Section

15(D); the Health Care Freedom Amendment (“HCFA”) in Article I, Section 21 (“Section

21”); the equal protection clause in Article I, Section 2; and the due course of law provision

in Article I, Section 16.

{¶ 3} Following a trial on the merits of the declaratory action, the trial court

entered a judgment on August 6, 2024 finding the law does not violate any of the

1 See Office of the Governor of Ohio, Veto Message: Statement of the Reasons for the Veto of Substitute

House Bill 68 (Dec. 29, 2023), https://governor.ohio.gov/media/news-and-media/governor-dewine-

vetoes-house-bill-68 (accessed Mar. 11, 2025) [https://perma.cc/LE8D-KKX9].

No. 24AP-483 3

constitutional provisions cited by appellants. For the reasons discussed below, we reverse

and remand this case to the trial court to impose a permanent injunction as to enforcement

of H.B. 68’s provisions banning the use of puberty blockers and hormones “for the purpose

of assisting the minor individual with gender transition.”

I. FACTS AND PROCEDURAL OVERVIEW

{¶ 4} Adopted in January 2024, H.B. 68 was enacted as part of a series of laws

relevant to transgender individuals. R.C. 3109.054 (the “custody provision”) provides

certain rights to parents who are unwilling to accept or support their minor child’s

transgender identity. R.C. 3129.01 et seq. (the “medical care provisions”) prohibit

healthcare providers from prescribing “a cross-sex hormone[2] or puberty-blocking drug[3]

for a minor individual for the purpose of assisting the minor individual with gender

transition,” among other things.4 R.C. 3313.53205 and 3345.562 (the “sports provisions”)

require K-12 schools, state institutions of higher education, and private colleges and

universities located in Ohio to designate separate single-sex teams and sports for each sex

and bans “individuals of the male sex” from participating on athletic teams “designated only

for participants of the female sex.”

{¶ 5} The primary focus of appellants’ facial challenge to the constitutionality of

H.B. 68 is the provision banning medications prescribed to minors with gender dysphoria

“for the purpose of assisting the minor individual with gender transition.” See R.C.

3129.02(A)(2). Section 2(A) of H.B. 68 declares that Ohio “has a compelling government

2 R.C. 3129.01(B) defines “cross-sex hormone” to mean “testosterone, estrogen, or progesterone given to a

minor individual in an amount greater than would normally be produced endogenously in a healthy

individual of the minor individual’s age and sex.” The phrase “hormone therapy” generally means and refers

to the same.

3 R.C. 3129.01(L) defines “puberty-blocking drugs” to mean “Gonadotropin-releasing hormone analogs or

other synthetic drugs used to stop luteinizing hormone and follicle stimulating hormone secretion,

synthetic antiandrogen drugs used to block the androgen receptor, or any drug to delay or suppress normal

puberty.”

4 H.B. 68 also prohibits a physician from performing “gender reassignment surgery on a minor individual,”

R.C. 3129.02(A)(1), and imposes consent and screening requirements on mental health professionals

treating “a minor individual who presents for the diagnosis or treatment of a gender-related condition,”

R.C. 3129.03. These provisions are not challenged in this case.

5 This provision was enacted as R.C. 3313.5319 by H.B. 68 but recodified as R.C. 3313.5320 pursuant to R.C.

103.131.

No. 24AP-483 4

interest in protecting the health and safety of its citizens, especially vulnerable children.”

Section 2 more specifically describes the General Assembly’s findings related to the

purported risks “of gender transition services,” which it concludes “far outweigh any benefit

at this stage of clinical study on these services.” See H.B. 68 at Section 2(O). Though, of

note, the same medications banned by H.B. 68 have been prescribed to children and

adolescents for decades to treat other conditions, including delayed or precocious puberty,

polycystic ovary syndrome, intersex conditions, premature ovarian failure, endometriosis,

and cancer. (See, e.g., Ex. 22 at ¶ 34, 44; Ex. 23 at ¶ 30-31, 33, 69-71.) Indeed,

notwithstanding the purported risks described in Section 2, H.B. 68 does not restrict

healthcare providers from prescribing these same medical interventions to minors for any

other purpose6 or to adults for any purpose, including assisting adults with gender

transition.

{¶ 6} Violations of H.B. 68’s medical care provisions are punishable by

professional discipline and potential civil liability in private suits. See R.C. 3129.05. In fact,

the enforcement provision of Chapter 3129 provides that “[a]ny violation of section

3129.02”—which contains the ban on prescribing puberty blockers and hormones to

minors “for the purpose of assisting the minor individual with gender transition,” R.C.

3129.02(A)(2)—“shall be considered unprofessional conduct.” R.C. 3129.05(A).

{¶ 7} The law took effect on April 24, 2024.

A. Gender-Affirming Care for Adolescents with Gender Dysphoria

{¶ 8} “Transgender individuals have a ‘[g]ender identity’—a ‘deeply felt, inherent

sense’ of their gender—that does not align with their sex assigned at birth.” Edmo v.

Corizon, Inc., 935 F.3d 757, 768 (9th Cir. 2019), quoting American Psychiatric Association,

Guidelines for Psychological Practice with Transgender and Gender Nonconforming

People, 70 AM. PSYCHOLOGIST 832, 834 (2015). (See, e.g., Ex. 23 at ¶ 19-26.)

6 R.C. 3129.04 explicitly exempts these medical therapies from the prohibition set forth in R.C.

3129.02(A)(2) if they are prescribed to treat a minor “born with a medically verifiable disorder of sex

development,” diagnosed with “a disorder of sexual development,” or “[for any condition] that has been

caused or exacerbated by the performance of gender transition services.”

No. 24AP-483 5

{¶ 9} Transgender minors and adults can experience gender dysphoria,7 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. (Ex. 22 at ¶ 27; Ex. 23 at ¶ 25-26; Ex. B at ¶ 41.) The Fifth Edition of the

American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders

sets forth two conditions that must be met for a person to be diagnosed with gender

dysphoria. (See, e.g., Ex. 23 at ¶ 26.)

{¶ 10} First, there must be “[a] marked incongruence between one’s

experienced/expressed gender and assigned gender, of at least 6 months’ duration, as

manifested by at least two of the following”:

1) “a marked incongruence between one’s

experienced/expressed gender and primary and/or

secondary sex characteristics”;

2) “a strong desire to be rid of one’s primary and/or

secondary sex characteristics because of a marked

incongruence with one’s experienced/expressed

gender”;

3) “a strong desire for the primary and/or secondary sex

characteristics of the other gender”;

4) “a strong desire to be of the other gender”;

5) “a strong desire to be treated as the other gender”; or

6) “a strong conviction that one has the typical feelings

and reactions of the other gender.”

Edmo at 768-69, quoting American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders, 452 (5th Ed.2013) (“DSM-5”). (See also Ex. 23 at ¶ 25-27;

Ex. 22 at ¶ 27; Ex. B at ¶ 41-45; Ex. 27 at ¶ 72.)

{¶ 11} Second, the person’s condition must be associated with “clinically significant

distress”—i.e., distress that impairs or severely limits the person’s ability to function in a

7 Until recently, the medical community commonly referred to gender dysphoria as “gender identity

disorder.” (Ex. 22 at ¶ 29; Ex. 24 at ¶ 25.) See also Kosilek v. Spencer, 774 F.3d 63, 68 (1st Cir. 2014), fn. 1.

No. 24AP-483 6

meaningful way and has reached a threshold that requires medical or surgical intervention,

or both. Edmo at 769, quoting DSM-5 at 453, 458. (See also Ex. 22 at ¶ 27; Ex. 23 at ¶ 25-

27.)

{¶ 12} Not every transgender person has gender dysphoria, and not every person

experiencing gender dysphoria has the same medical needs. (See Ex. 23 at ¶ 27.) Being

transgender is not, in and of itself, a mental health condition. (See Ex. 23 at ¶ 27.) But

untreated gender dysphoria can lead to debilitating distress, depression, impairment of

function, substance use, self-injurious behaviors, and even suicidality. (See, e.g., Ex. 22 at

¶ 44, 49; Ex. 23 at ¶ 27, 46, 60, 72; Ex. 24 at ¶ 12-21.)

{¶ 13} The World Professional Association of Transgender Health (“WPATH”), the

leading association of medical professionals treating transgender individuals, and the

Endocrine Society, an organization of more than 18,000 endocrinologists, have published

evidence-based guidelines for the treatment of gender dysphoria, which differ for children,

adolescents, and adults (collectively the “Guidelines”).8 (See Ex. 22 at ¶ 27-35; Ex. 23 at

¶ 27-64; Ex. 24 at ¶ 18-25; Ex. 25 at ¶ 7-46.)

{¶ 14} Given their scientific expertise on the subject, these organizations are

considered the standard-bearers in gender-affirming care.9 (See Ex. 23 at ¶ 27-68; Ex. 22

at ¶ 28-37; Ex. 26 at ¶ 5-11. See generally Ex. 25.) Appellants’ medical experts—who

8 Wylie C. Hembree et al., Endocrine Treatment of Gender-Dysphoric/Gender-Incongruent Persons: An

Endocrine Society Clinical Practice Guideline, 102 J. CLIN. ENDOCRINOL. & METAB. 3869 (2017),

https://academic.oup.com/jcem/article/102/11/3869/4157558 (accessed Mar. 11, 2025)

[https://perma.cc/6KRF-6DLC] (hereinafter “Endocrine Society Guidelines”); Eli Coleman et al.,

Standards of Care for the Health of Transgender and Gender Diverse People, 23 INT’L J. TRANSGENDER

HEALTH S1 (8th Ed. 2022), https://www.tandfonline.com/doi/full/10.1080/26895269.2022.2100644

(accessed Mar. 11, 2025) [https://perma.cc/72BL-MUD5] (hereinafter “WPATH Guidelines”). See

also Brief of Amici Curiae Clinical Practice Guideline Experts in Support of Petitioner and Respondents in

Support of Petitioner, United States v. Skrmetti, No. 23-477 (Sept. 3, 2024),

http://www.supremecourt.gov/DocketPDF/23/23-477/323982/20240903164457972_23-477_Amicus%

20Brief.pdf (accessed Mar. 11, 2025) [https://perma.cc/K36R-ZAMN] (describing the process through

which the WPATH Standards of Care and the Endocrine Society’s Guidelines were developed and continue

to be reviewed and updated).

9 The term “gender-affirming care” is a broad umbrella term that can refer to gender-affirming medical

interventions (e.g., puberty blockers, hormone therapy, and surgical intervention) as well as exploratory

therapy (e.g., social transition) used to treat gender dysphoria. (See, e.g., July 15, 2024 Tr. at 112-13, 219-

20.)

No. 24AP-483 7

provide gender-affirming care, two of whom practice medicine in Ohio10—testified as much

at trial. (See, e.g., July 15, 2024 Tr. at 105-06; July 16, 2024 Tr. at 153-54.) The medical

evidence and clinical experience presented in this case demonstrate that, when provided in

appropriate circumstances, gender-affirming care can meaningfully improve the health

and well-being of transgender adolescents with gender dysphoria by lowering rates of

depression and the severity of other mental health issues, as well as increasing patients’

quality of life. (See, e.g., Ex. 22 at ¶ 44, 51, 66-68; Ex. 23 at ¶ 60, 70, 72-76; Ex. 24 at ¶ 14-

17, 30; Ex. 25 at ¶ 38, 46; Ex. 27 at ¶ 74-75; July 18, 2024 Tr. at 111-14, 118-23.)

{¶ 15} Although the state’s medical experts generally criticized the reliability and

development of the current Guidelines, they did not refute that they are the standard of care

widely accepted by the medical community in the United States. (See, e.g., July 17, 2024

Tr. at 77-96, 122-23, 140-50; July 18, 2024 Tr. at 61-63, 85-88, 115-18, 147-49.) Indeed, the

state’s experts did not identify a different prevailing standard of care for treating minors

diagnosed with gender dysphoria. Rather, its experts expressed concerns about the

sufficiency and quality of the research supporting the Guidelines, the actual

implementation of the Guidelines, and the safety and efficacy of those treatments.11

10 Dr. Sarah D. Corathers is an endocrinologist who treats minors diagnosed with gender dysphoria in Ohio.

(See Ex. 20; Ex. 23; Ex. 26.) At trial, she testified extensively about the standards of care for treating minors

diagnosed with gender dysphoria, the risks and benefits of gender-affirming health care, and her practices

in providing such care. Dr. Corathers is currently Associate Chief of Staff of Ambulatory Medicine at

Cincinnati Children’s Hospital, and has published over 60 peer-reviewed articles on topics including

endocrine disorders and treatments and interdisciplinary care of transgender youth.

Dr. Arman H. Matheny Antommaria is a pediatrician, pediatric hospitalist, and bioethicist. (See Ex. 19; Ex.

22; Ex. 25.) He is currently the director of the Ethics Center at Cincinnati Children’s Hospital Medical

Center and a professor at the University of Cincinnati School of Medicine. As director of the Ethics Center,

Dr. Antommaria provides clinical ethics consultation and works with a variety of medical teams to address

ethical issues that arise in the care they provide, including the transgender clinic and the differences of sex

development clinic. He has also published numerous scholarly articles about medical ethics.

Dr. Jack Turban is a child and adolescent psychiatrist whose work has focused on the treatment of patients

with gender dysphoria. (See Ex. 21; Ex. 24; Ex. 27.) Dr. Turban is an associate professor of child and

adolescent psychiatry at the University of California, San Francisco School of Medicine, where he treats

adolescents and children with gender dysphoria. He also conducts scientific research on the mental health

and treatment of adolescents with gender dysphoria and has published extensively on the subject, including

nine articles in peer-reviewed journals within the past two years.

11For instance, one of the state’s experts, Dr. James Cantor, summarized systematic review studies

produced, and subsequent policy actions taken, by the governments of a handful of European countries,

including England, Finland, Sweden, France, and Norway. (See Ex. A.) Reviews by these governmental

No. 24AP-483 8

{¶ 16} The opinions of the state’s experts relied largely on the practices of a few

European countries that have conducted a systematic review of treatment for gender

dysphoria. (See generally Ex. A; Ex. B; Ex. C.) Some of the national healthcare systems of

entities have generally opined that, given the existing knowledge base regarding gender-affirming care for

minors, caution is warranted. Some countries have altered, to some degree, their approach to gender-

affirming healthcare. Relying on these findings, Dr. Cantor contends that the medical evidence supporting

gender-affirming care’s benefits and safety does not support any strong conclusions about its safety or

effectiveness. While we have no reason to believe that Dr. Cantor’s testimony does not reflect an accurate

summation of the content of the European systematic reviews, Dr. Cantor is a clinical psychologist whose

clinical work is sex and couples’ therapy. (July 18, 2024 Tr. at 25-26.) He is not a physician, has never

practiced as a licensed clinical psychologist in the United States, is not licensed to treat patients under the

age of 16, and has never provided treatments to patients under the age of 16. (July 18, 2024 Tr. at 25-30.)

See also Eknes-Tucker v. Governor of Ala., 80 F.4th 1205, 1217 (11th Cir. 2023) (“On cross-examination,

Dr. Cantor acknowledged that he is not a medical doctor and that he has not provided care to transgender

adolescents under the age of sixteen.”); Koe v. Noggle, 688 F.Supp.3d 1321, 1352 (N.D.Ga. 2023), fn. 28

(crediting Dr. Cantor’s testimony regarding the “content of the international systematic reviews,” but

assigning “less weight” to his medical conclusions due to his lack of relevant medical expertise). The primary

focus of Dr. Cantor’s research has been “the development of atypical sexualities” and he states that the “most

impactful” of his work concerns “MRI and other biological studies of the origins of pedophilia,” as is

indicated by his CV. (Ex. A at ¶ 1-2. See also July 17, 2024 Tr. at 59-60.)

In the view of Dr. Stephen B. Levine—the state’s only expert witness with experience treating patients with

gender dysphoria—there is “far too little firm clinical evidence” concerning therapeutic approaches to

treating gender dysphoria in minors and “a diversity of views among practitioners” as to the appropriate

standard of care. (See Ex. B at ¶ 73.) In his practice, he has provided referral documentation for adult and

minor patients with gender dysphoria to access hormone therapy on a case-by-case basis. (See July 18, 2024

at 104-12.) Dr. Levine does not support a categorical ban of gender-affirming medical care for adolescents

with gender dysphoria. (See, e.g., July 18, 2024 Tr. at 74, 95-98, 110-21.) He generally claimed that some

doctors began “using these hormones for kids who were never cross-gender identified” and otherwise were

treating minors for gender dysphoria without using the appropriate diagnosing standard, addressing other

mental health conditions, or informing patients and their parents about the risks and limitations of the

evidence regarding gender-affirming care. (See, e.g., July 18, 2024 Tr. at 85-103.) However, he offered no

evidence that treatment was being provided this way in Ohio or anywhere else in the United States.

The state’s pediatric endocrinologist expert, Dr. Paul Hruz, testified about his concerns with using hormone

therapy to treat minors diagnosed with gender dysphoria (see July 19, 2024 Tr. at 31-65), though he has

never diagnosed or treated a patient with gender dysphoria (see July 19, 2024 Tr. at 68-71). He also

criticized the quality of evidence supporting WPATH’s standards of care and opined that existing studies

do not adequately demonstrate the benefits of cross-sex hormone therapy. (See Ex. C at ¶ 82-105). On cross-

examination, Dr. Hruz was questioned about an amicus brief he co-authored and submitted to the United

States Supreme Court in Gloucester Cty. School Bd. v. G.G., No. 16-273 (U.S. 2017), a case that did not

concern medical treatment and instead addressed transgender students’ access to school restrooms

consistent with their gender identity. (See July 19, 2024 Tr. at 77-78.) In that brief, Dr. Hruz wrote that

“[c]onditioning children into believing that a lifetime of impersonating someone of the opposite sex,

achievable only through chemical and surgical interventions, is a form of child abuse.” (July 19, 2024 Tr. at

77-78.) In this regard, we note Dr. Hruz has testified in other recent cases involving gender-affirming care,

and his credibility has been substantially questioned. See, e.g., Doe v. Ladapo, 676 F.Supp.3d 1205, 1211

(N.D.Fla. 2023), fn. 8 (“Dr. [Paul] Hruz fended and parried questions and generally testified as a deeply

biased advocate, not as an expert sharing relevant evidence-based information and opinions. I do not credit

his testimony.”).

No. 24AP-483 9

those countries have responded by altering, to some degree, their recommended approach

to gender-affirming healthcare, including the provision of puberty blockers and hormone

therapy to adolescents.12 But none of the European countries discussed by the state’s

experts have gone so far as to categorically ban the use of puberty blockers and hormones,

as H.B. 68 does here. (See Ex. 25; Ex. 27; July 18, 2024 Tr. at 19-25.)

{¶ 17} Thus, while the state’s experts disagree with the prevailing medical

consensus—and it may be true that some physicians and other countries have concerns

regarding the propriety of such treatment for minors—the state did not present, and the

trial court did not find, any contrary evidence-based standards accepted by any

nationally or internationally recognized professional medical groups. (See, e.g., Ex. 22 at

¶ 28-39, 58-67; Ex. 23 at ¶ 36-37, 73; Ex. 24 at ¶ 18-21; July 18, 2024 Tr. at 140 (Dr. Levine

acknowledging there is no such thing as “a psychiatric methodology that’s been proven

effective in changing a person’s gender identity”).) (See generally Ex. 25; Ex. 26; Ex. 27.)

{¶ 18} Several of the state’s experts also criticized the Guidelines for making strong

recommendations based on “low quality” or “very low quality” research-generated

evidence13 and opined that existing studies do not adequately demonstrate that gender-

12 Dr. Cantor’s report makes the following claims: (1) the English National Health Service (“NHS”) has

proposed that puberty blockers be used only “in the context of a formal research protocol” and, according

to its website, are no longer available to children and young people in clinical practice (see Ex. A at ¶ 209-

10); (2) Finland’s health service has restricted puberty blockers and cross-sex hormone therapies to

circumstances when gender dysphoria is severe and other psychiatric symptoms have ceased (Ex. A at ¶ 25)

and, by law, restricts all assessment and treatment for minors regarding gender dysphoria to its two

research clinics (Ex. A at ¶ 211); (3) the “leading Swedish pediatric gender clinic,” the Karolinska Institutet,

has limited puberty blockers and cross-sex hormones to those 16 and older in monitored clinical trials, and

the Swedish Board of Health and Welfare “recommends restraint when it comes to hormone treatment”

and has “limited medicalized treatments for gender dysphoria in minors to clinical research studies

approved by the Swedish national research ethics board” (Ex. A at ¶ 28-29, 212); (4) the Académie Nationale

de Médecine of France has advised providers “to extend as much as possible the psychological support

stage” before turning to hormone treatments (Ex. A at ¶ 30); (5) Norway’s Healthcare Investigation Board

has reviewed its own national policy on providing minors with gender-affirming care and expressed

concerns (see Ex. A at ¶ 31-34, 213); and (6) the “Dutch Protocol” developed in the Netherlands involves

age restrictions on certain treatments and requires “resolution of mental health issues before any

transition” (Ex. A at ¶ 301). The most we can properly say, at present, about the practices of these European

countries is that they reflect a caution that might ultimately prove prudent and might be supported by

particular studies. But we cannot conclude anything further from the mere existence of particular European

practices that are purportedly supported by studies we cannot assess given the limited information about

them in the record before us.

13In the medical research context, the strength of medical or scientific evidence is rated under a

methodological framework known as the Grading of Recommendations Assessment, Development, and

No. 24AP-483 10

affirming medical care improves mental health outcomes in minors diagnosed with gender

dysphoria. (See, e.g., July 17, 2024 Tr. at 123-33, 142-45, 167-76; July 18, 2024 Tr. at 93-

99; Ex. A at ¶ 56-62; Ex. C at ¶ 81-86.) But in many clinical domains—including pediatrics—

clinical recommendations are commonly based on “low quality” or “very low quality”

evidence because randomized controlled trials—which provide “high quality” evidence on

the GRADE scale—may not be feasible or ethical, or otherwise have intrinsic

methodological limitations. (See, e.g., Ex. 22 at ¶ 16-26; Ex. 25 at ¶ 13-36.) Thus, “the fact

that research-generated evidence supporting [gender-affirming medical] treatments gets

classified as ‘low’ or ‘very low’ quality on the GRADE scale does not mean the evidence is

not persuasive, or that it is not the best available research-generated evidence on the

question of how to treat gender dysphoria, or that medical treatments should not be

provided consistent with the research results and clinical evidence.” Doe v. Ladapo, 676

F.Supp.3d 1205, 1221 (N.D.Fla. 2023).

{¶ 19} Based on the foregoing, and on review of the record, we find the Guidelines

published by WPATH and the Endocrine Society are the current prevailing standards of

care for the treatment of individuals with gender dysphoria and, more specifically, that

gender-affirming care is the accepted protocol in the United States for treating gender

dysphoria.14 (See, e.g., Ex. 22 at ¶ 28-39; Ex. 23 at ¶ 27-37; Ex. 24 at ¶ 12-38; Ex. 25; Ex.

26; Ex. 27 at ¶ 4-6, 9-11.) To be sure, the nation’s leading medical and mental health

Evaluation (“GRADE”) on a scale of “very low” to “high.” (See July 16, 2024 Tr. at 143-44; Ex. 22 at ¶ 16-

18.) GRADE assesses the statistical degree of certainty that a particular treatment will have its intended

effect. (See, e.g., Ex. 22 at ¶ 18.) Generally, GRADE categorizes randomized controlled trials as “high

quality” evidence and nonrandomized trials and observational studies as “low quality.” (Ex. 22 at ¶ 19-20.)

The GRADE system also rates the strength of treatment recommendations in clinical practice guidelines as

either “strong” or “weak.” (July 16, 2024 Tr. at 143-45; Ex. 22 at ¶ 24.) It is well-established that clinical

practice guidelines can make strong treatment recommendations based on so-called “low quality” evidence.

(See Ex. 22 at ¶ 21, 24.)

14 See, e.g., Brandt v. Rutledge, 551 F.Supp.3d 882, 891 (E.D.Ark. 2021), aff’d 47 F.4th 661 (8th Cir. 2022).

(“Every major expert medical association recognizes that gender-affirming care for transgender minors may

be medically appropriate and necessary to improve the physical and mental health of transgender people.”);

Edmo, 935 F.3d at 769 (referencing the government’s acknowledgment that “the WPATH Standards of Care

‘provide the best guidance,’ and ‘are the best standards out there’ ”); Noggle, 688 F.Supp.3d at 1350-56

(“[T]here is less daylight than [the state-official] [d]efendants suggest between the prevailing consensus in

the United States—namely, that when indicated under the WPATH standards of care, hormone therapy is

adequately safe and effective—and the approach to the same care elsewhere. Neither the systematic reviews

from Finland, et al., nor critiques of the quality of the evidence supporting hormone therapy, offer an

exceedingly persuasive justification for an outright ban on care.”).

No. 24AP-483 11

organizations—including the American Medical Association, the American Medical

Student Association, the American Psychiatric Association, the American Psychological

Association, the American Family Practice Association, the National Association of Social

Workers, the American Academy of Plastic Surgeons, the American College of Surgeons,

the Health Professionals Advancing LGBTQ Equality, the HIV Medicine Association, the

Lesbian, Bisexual, Gay and Transgender Physician Assistant Caucus, and Mental Health

America—recognize the Guidelines as reflecting the consensus of the medical and mental

health communities regarding the accepted standard of care for treating gender dysphoria

in the United States. See, e.g., Edmo, 935 F.3d at 769; Noggle, 688 F.Supp.3d at 1354-56;

Brandt v. Rutledge, 677 F.Supp.3d 877, 890 (E.D.Ark. 2023), appeal pending, No. 23-2681

(8th Cir. argued en banc Apr. 11, 2024); L.W. v. Skrmetti, 83 F.4th 460, 492-93 (6th Cir.

2023) (White, J., dissenting), cert. granted sub nom. United States v. Skrmetti, No. 23-

477, 144 S.Ct. 2679 (U.S. June 24, 2024). (See, e.g., Ex. 22 at ¶ 28-31; Ex. 23 at ¶ 37, 73;

Ex. 24 at ¶ 12-18; July 15, 2024 Tr. at 107-08, 275-77; July 17, 2024 Tr. at 133-34.)

{¶ 20} And, of note, the trial court did not find otherwise. Nor did it make any

findings as to the credibility of any of the expert medical witnesses who testified at trial in

its August 6, 2024 judgment. Indeed, as discussed more below, the trial court’s decision

finding H.B. 68 constitutional was based on legal conclusions that were largely untethered

to any particular findings of fact. That is to say, the expert medical evidence and testimony

presented at trial ultimately had limited bearing on the trial court’s substantive analysis of

whether H.B. 68 was unconstitutional. Moreover, as several courts in similar cases have

relied on these guidelines, we find support for our decision to consider the constitutional

issues presented in this case by accepting the Guidelines as the prevailing standards of care

for gender dysphoria. See, e.g., L.W., 83 F.4th at 466-68, 483-89 (relying on WPATH and

Endocrine Society guidelines in majority opinion’s analysis); Ladapo, 676 F.Supp.3d at

1212-13 (finding WPATH and Endocrine Society guidelines represent the well-established

standards of care for treatment of gender dysphoria); Edmo, 935 F.3d at 769 (noting most

courts agree that the WPATH guidelines are the internationally recognized guidelines for

treatment of individuals with gender dysphoria); Fain v. Crouch, 618 F.Supp.3d 313, 329-

30 (S.D.W.Va. 2022) (observing the Endocrine Society has published “a clinical practice

guideline providing protocols for the medically necessary treatment of gender dysphoria”);

No. 24AP-483 12

Poe v. Labrador, 709 F.Supp.3d 1169, 1182 (D.Idaho 2023) (noting “the standards of care

published in the WPATH and Endocrine Society guidelines are accepted by every major

medical organization in the United States”); Cordellioné v. Commr., Indiana Dept. of Corr.,

2024 U.S. Dist. LEXIS 173316, *21 (S.D.Ind. Sept. 17, 2024) (“Given the widespread

acceptance of WPATH’s Standards of Care by other professional medical bodies as well as

the National Commission of Correctional Health Care, the court finds that the Standards of

Care are credible and reliable and will rely on them in reaching its conclusions in this

matter.”).

{¶ 21} Relevant to this case are the Guidelines concerning the treatment of

transgender children and adolescents under the age of 18 who have been diagnosed with

gender dysphoria. The Guidelines provide that all youth with gender dysphoria should be

evaluated, diagnosed, and treated by a qualified healthcare professional. Further, the

Guidelines provide that each patient who receives gender-affirming health care should

receive only medically necessary and appropriate care that is tailored to the patient’s

individual needs and is based on the best evidence possible along with clinical experience.15

(See, e.g., July 15, 2024 Tr. at 107-08; July 16, 2024 Tr. at 9-10, 15, 38-45, 80-81, 123-25.)

{¶ 22} At the outset, it is important to note that, in pediatric medicine, minors are

customarily understood to lack the capacity to consent to medical treatment. (See, e.g.,

July 15, 2024 Tr. at 121-23.) Thus, after being counseled on the risks and benefits

associated with a recommended treatment, the minor child’s parents or guardian must

consent to the medical intervention on behalf of the minor child—as generally required with

most pediatric care—while the minor child provides informed assent to proceeding with the

recommended treatment. (See July 15, 2024 Tr. at 121-26; July 16, 2024 Tr. at 31-33; July

18, 2024 Tr. at 97-99; Ex. 22 at ¶ 40-57; Ex. 23 at ¶ 42, 47, 57, 74; Ex. 25 at ¶ 35-45; Ex. 26

at ¶ 10-16, 28-29, 34.) Assent is a lesser standard of informed consent “in the sense that it

means the adolescent understands what has been presented to them as an agreement to go

forward but does not require that they fully understand every degree of risks, benefit[s],

[and] limitation[s]” associated with undergoing the recommended medical intervention.

(July 15, 2024 Tr. at 122.) Importantly, pursuant to the standards of care in pediatric

15 See WPATH Guidelines at S16–S18; Endocrine Society Guidelines at 3872–73.

No. 24AP-483 13

medicine generally and relevant to gender-affirming care specifically, health care providers

will not provide a minor with gender transition services against or without the informed

consent of the minor’s parent or guardian. (See, e.g., July 15, 2024 Tr. at 121-26.) And we

note that nothing in the Guidelines or law requires a physician to prescribe gender-

affirming medical interventions to minors.

{¶ 23} Before puberty16 begins, the Guidelines provide for mental health support

and social transition. (See July 15, 2024 Tr. at 173-74.) Social transition allows a

transgender child to live in accordance with their gender identity by assuming a new name,

using different pronouns, and presenting an outward appearance that conforms with that

identity. (See July 15, 2024 Tr. at 173-74; July 17, 2024 Tr. at 97-99, 107.) The Guidelines

do not recommend any drug or surgical intervention before puberty.17

{¶ 24} “Pubertal onset typically ranges between the ages of 8-12 for people

designated female at birth and between 9 and 14 for people designated male at birth.” (Ex.

23 at ¶ 29.) After a comprehensive assessment to ensure that any intervention is medically

necessary, the Guidelines do contemplate the possibility that, for some transgender

adolescents with gender dysphoria, gender-affirming medications may be indicated,

provided certain criteria are met. (See July 15, 2024 Tr. at 39-40; Ex. 23 at ¶ 31-48; Ex. 22

at ¶ 27-37; Ex. 25 at ¶ 7, 14; Ex. 26 at ¶ 5, 16-20, 44.) Since at least 1998, treatment for

adolescents diagnosed with gender dysphoria has included gonadotropin-releasing

hormone (GnRH) analogues (“puberty blockers”) and hormone therapy. (See, e.g., Ex. 22

at ¶ 27-37; Ex. 23 at ¶ 28-49; July 15, 2024 Tr. at 305-07.) With both, the Guidelines

contemplate close monitoring to mitigate any potential risks.18 (See, e.g., Ex. 23 at ¶ 58-

68; Ex. 26 at ¶ 19, 29-31.)

16 “Puberty is the process of physical changes driven by hormone activation of pulsatile signals from the

hypothalamus in the brain, Gonadotropin Releasing Hormone (GnRH), to stimulate the pituitary gland to

produce Luteinizing Hormone (LH) and Follicle Stimulating Hormone (FSH). Subseq[u]ently, LH and FSH

signal the gonads: ovaries make estrogen and testes make testosterone. Estrogen and testosterone

hormones are in turn responsible for a pubertal growth spurt, and, respectively, breast development and

menarche, or testicular enlargement and sperm production.” (Ex. 23 at ¶ 28.)

17 See WPATH Guidelines at S64, S67; Endocrine Society Guidelines at 3871.

18 See WPATH Guidelines at S110-S127; Endocrine Society Guidelines at 3870-72.

No. 24AP-483 14

{¶ 25} The Guidelines provide that the use of puberty blockers is appropriate for a

minor at the onset of puberty only after a qualified healthcare provider19 conducts a

thorough evaluation20 and determines the adolescent has marked and sustained gender

dysphoria that has worsened with the onset of puberty, no health concerns that would

interfere with treatment, and the capacity to assent to the care.21 (See Ex. 23 at ¶ 37-48, 57;

Ex. 22 at ¶ 40-43; Ex. 25 at ¶ 43-45; Ex. 26 at ¶ 16; Ex. 27 at ¶ 74. See also July 18, 2024

Tr. at 95-96, 111-12 (Dr. Levine testifying he addresses minors and their families on a case-

by-case basis and acknowledging he has written some letters referring minors for hormone

therapy and would continue to do so in extreme circumstances).) Further, a pediatric

endocrinologist or other clinician experienced in pubertal assessment must agree with the

indication for treatment, confirm the patient has started puberty, and confirm there are no

medical contraindications.22 (See, e.g., Ex. 23 at ¶ 42, 47.) The minor patient and their

parents must be informed of the potential risks and side effects of puberty blockers and give

their assent and informed consent, respectively. (See, e.g., July 15, 2024 Tr. at 310, 318-

26; July 16, 2024 Tr. at 5-8, 28-33.)

{¶ 26} Puberty blockers “reversibly suppress[] the hypothalamic-pituitary-gonadal

hormone axis and paus[e] secondary sex characteristic development,” thereby avoiding the

heightened gender dysphoria and permanent physical changes that puberty would cause.

(See Ex. 23 at ¶ 32.) Taking puberty blockers at the onset of puberty can make pursuing

more permanent transition later in life easier. (See July 15, 2024 Tr. at 311-12.) And because

puberty blockers have been used by pediatric endocrinologists for decades to treat

precocious puberty (onset earlier than expected), they have well-known efficacy, risks

(namely, bone mineral density), and side-effect profiles. (See, e.g., Ex. 22 at ¶ 44-57; Ex.

23 at ¶ 30-36, 53-60; Ex. 25 at ¶ 35-36; Ex. 26 at ¶ 13-44; July 15, 2024 Tr. at 314-26; July

16, 2024 Tr. at 5-8.) Moreover, when a patient discontinues their use, the patient resumes

19 See WPATH Guidelines at S49 (specifying the qualifications required of healthcare providers who provide

this care).

20 See WPATH Guidelines at S50 (describing “comprehensive biopsychosocial assessment” that healthcare

provider must conduct before developing a treatment plan).

21 See WPATH Guidelines at S47, S48, S59-S65; Endocrine Society Guidelines at 3876.

22 Endocrine Society Guidelines at 3878, Table 5.

No. 24AP-483 15

endogenous puberty. (See, e.g., Ex. 23 at ¶ 30, 54; Ex. 26 at ¶ 27, 35-36; July 15, 2024 Tr.

at 313-14.) When provided under clinical supervision, the risk of serious adverse effects

from puberty blockers, alone, is exceedingly rare. (See Ex. 24 at ¶ 29-30; Ex. 26 at ¶ 24-41;

July 15, 2024 Tr. at 317-26; July 17, 2024 Tr. at 123-27.)

{¶ 27} The Guidelines also provide that, where the required criteria are met,

hormone therapy may be used later in adolescence to induce puberty consistent with a

patient’s gender identity.23 (See Ex. 23 at ¶ 34-36, 43-47; July 15, 2024 Tr. at 326-29.)

Hormone therapy consists of providing feminizing hormones (estrogen or androgen

suppressants) to transgender girls and masculinizing hormones (testosterone or menstrual

suppressants) to transgender boys, which cause patients to develop physical characteristics

consistent with their gender identity. (See Ex. 23 at ¶ 33-36, 43-48.) Per the Guidelines,

these hormones are only prescribed when a qualified mental health professional has

confirmed the persistence of the patient’s gender dysphoria, the patient’s mental capacity

to consent (or to provide informed assent) to the treatment, and that any coexisting

problems have been addressed.24 (See Ex. 23 at ¶ 46-48; Ex. 22 at 52; Ex. 25 at ¶ 38-45.)

Additionally, a pediatric endocrinologist or other clinician experienced in pubertal

induction must also again agree with the indication and confirm there are no medical

contraindications to sex hormone treatment. (See Ex. 23 at ¶ 47.)

{¶ 28} The minor patient and their parents must be informed of the potential risks

and side effects of hormone therapy and give their assent and informed consent,

respectively.25 (See Ex. 23 at ¶ 47; Ex. 22 at ¶ 52; July 15, 2024 Tr. at 316, 326-32; July 16,

2024 Tr. at 10-11, 15, 22-23, 30-35.) While some of the changes induced by hormone

therapy are partially reversible with discontinued use of the hormones, other changes

induced by hormone therapy can become irreversible after the patient’s secondary sex

characteristics are fully developed. (See Ex. 22 at ¶ 43-48; Ex. 23 at ¶ 47, 55-56; Ex. 26 at

¶ 10, 13, 34-36, 39; July 15, 2024 Tr. at 316-32; July 16, 2024 Tr. at 8-25.) One of the most

significant effects of treatment is the potential loss of fertility. (See Ex. 22 at ¶ 43-49, 53;

23 See WPATH Guidelines at S110-S127; Endocrine Society Guidelines at 3870-71.

24 Endocrine Society Guidelines at 3878, Table 5.

25 See WPATH Guidelines at S43-S65; Endocrine Society Guidelines at 3878-80.

No. 24AP-483 16

Ex. 23 at ¶ 42, 47, 55-57; Ex. 25 at ¶ 38; Ex. 26 at ¶ 10, 13, 34-36, 39; July 15, 2024 Tr. at

249-50, 330-32.) This is why the Guidelines advise delaying gender-affirming hormone

therapy until the adolescent is developmentally capable of understanding this consequence

and assenting to treatment, and specifically require providers to discuss the implications

for fertility and options for fertility preservation with the minor patient and their parents

before beginning hormone therapy.26 (See Ex. 22 at ¶ 44-53; Ex. 23 at ¶ 47, 55-56; Ex. 25

at ¶ 38; Ex. 26 at ¶ 10, 13, 34-36, 39.) Additionally, notwithstanding the risks associated

with taking these hormones, non-transgender— i.e., cisgender27—individuals, including

minors, have been prescribed hormone therapy for delayed puberty and conditions related

to hypogonadism (when the body’s sex glands, or gonads, produce little or no sex

hormones) including Turner syndrome (one or both of a female’s X chromosomes are

missing or partially missing), Klinefelter syndrome (male born with an extra X

chromosome), premature ovarian failure, and sequelae following cancer treatments. (See,

e.g., Ex. 22 at ¶ 48, 53; Ex. 23 at ¶ 30-35, 64, 71; July 16, 2024 Tr. at 20-24, 93-94; July 19,

2024 Tr. at 25-26, 45-46.)

{¶ 29} The state’s experts expressed concern about the combined effects of using

puberty blockers as soon as puberty starts and then beginning gender-affirming hormone

therapy shortly thereafter. (See, e.g., July 17, 2024 Tr. at 123-27.) But, as explained above,

the Guidelines require medical providers to inform minor patients and their parents of

these risks. Moreover, medical care providers use medical screening tools and surveillance

laboratory tests to monitor the safety of hormone levels and other risks, as indicated, before

and while a minor is using puberty blockers and hormones to assist with gender transition.

(See, e.g., July 15, 2024 Tr. at 313, 328-30; July 16, 2024 Tr. at 9-38; Ex. 23 at ¶ 55-61.) Of

course, we acknowledge that there are risks attendant to treating minors with puberty

blockers and hormones, including legitimate concerns about not just the physical effects of

such treatment, but that an adolescent entering puberty may not be well-equipped to

evaluate and fully appreciate those risks. But risks are associated with many forms of

medical treatment, if not most. Indeed, the risks associated with using puberty blockers or

26 See WPATH Guidelines at S43-S65; Endocrine Society Guidelines at 3878-80.

27 “People whose sex designated at birth aligns with their gender identity are cisgender.” (Ex. 23 at ¶ 22.)

No. 24AP-483 17

hormone therapy to treat other types of medical conditions in minors—including potential

infertility and bone health concerns—are comparable to the use of these same treatments

in minors with gender dysphoria. (See, e.g., Ex. 22 at ¶ 48, 53; Ex. 23 at ¶ 64.)

{¶ 30} Customarily, it is the patient (and, for minor-patients, their parents) who, in

consultation with their doctor, weighs the risks and benefits of recommended treatments—

including non-treatment—before choosing a course of care to pursue. Although gender-

affirming care is the accepted treatment protocol for treating children and adolescents with

gender dysphoria and the WPATH Standards of Care and Endocrine Society Guidelines

are—and have been for decades—widely accepted as the prevailing standards of care, the

Ohio General Assembly categorically banned gender-affirming care for minors in Ohio by

enacting H.B. 68.

B. The Present Controversy

{¶ 31} Appellants are Madeline Moe, Grace Goe, and their parents. Both families

have been permitted to proceed under pseudonyms given the nature of this litigation. (See

May 22, 2024 Agreed Protective Order Allowing Pls. to Proceed Pseudonymously.)

{¶ 32} Madeline Moe is a 12-year-old transgender girl28 whose gender dysphoria

over a period of years made her feel she was trapped in the wrong body and wish she could

die and be reborn as a girl. (July 16, 2024 Tr. at 248-51.) At age six, Madeline attempted

to cut her wrists with a kitchen knife, prompting her parents, Michael and Michelle Moe, to

seek psychological therapy for her shortly thereafter. (See July 16, 2024 Tr. at 250-52.)

Madeline continues receiving psychological therapy to date. (July 16, 2024 Tr. at 251-55.)

Madeline was diagnosed with gender dysphoria and began presenting herself publicly as a

girl after she completed first grade. (July 16, 2024 Tr. at 254-66.) Once Madeline made

this social transition, she went “from a child that had been very distressed and very upset

to now being able to express herself as she wanted to be.” (July 16, 2024 Tr. at 258.) In

February 2023, after extensive assessment and consideration of risks and benefits with her

doctors—and the informed consent of her parents—Madeline received a puberty-blocker

implant to pause the onset of male puberty. (See July 16, 2024 Tr. at 266-68.) Madeline

28 A transgender girl or women is a person who was assigned male at birth but identifies as female. (See,

e.g., Ex. 23 at ¶ 23.)

No. 24AP-483 18

and her parents also discussed with her treating providers the possibility of beginning

hormone therapy once Madeline becomes eligible. (See July 16, 2024 Tr. at 269-73.) In

response to the enactment of H.B. 68, Madeline’s mother placed Madeline on an 18-month

waitlist to meet a doctor in Chicago for treatment, and the Moe family has considered

moving away from their home state of Ohio. (See July 16, 2024 Tr. at 271-74.)

{¶ 33} Grace Goe is also a 12-year-old transgender girl whose gender dysphoria prior

to and during her kindergarten year caused Grace to be in “a constant state of desperation,”

“thinking about death so that she could be who she knew herself to be.” (July 15, 2024 Tr.

at 27, 45.) Upon referral of Grace’s pediatrician, the Goe family met with Dr. Leibowitz of

the THRIVE Gender Development Program at Nationwide Children’s Hospital during the

second half of Grace’s kindergarten year. (July 15, 2024 Tr. at 31-32.) Following

subsequent appointments, Dr. Leibowitz diagnosed Grace with gender dysphoria. (July 15,

2024 Tr. at 34-35.) Grace’s mother, Gina Goe, testified that once Grace began to live as a

girl publicly, “[h]er distress ceased and melted away almost instantaneously.” (July 15,

2024 Tr. at 39.) She described Grace today as “a thriving, happy, healthy person.” (July 15,

2024 Tr. at 44-45.) At the time of the July 2024 trial, Grace was in a stage of social

transition and had not been prescribed any medications related to gender-affirming care.

(July 15, 2024 Tr. at 36-40, 47.) However, as she has entered adolescence, Grace has grown

increasingly anxious about puberty. (See July 15, 2024 Tr. at 47-55.) Ms. Goe expressed

concern that if Grace had to undergo male puberty, “[s]he would not feel able to live in this

world authentically and freely to be herself.” (July 15, 2024 Tr. at 47.) While the Goe family

has consulted with an endocrinologist to plan for Grace to begin taking puberty-delaying

medication when the time is appropriate, the enactment of H.B. 68 now forbids Grace from

receiving this gender-affirming care in her home state of Ohio. (See July 15, 2024 Tr. at 47-

61.) 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. (See July 15, 2024 Tr. at 60-63.)

{¶ 34} Madeline Moe, Grace Goe, and their parents commenced a civil action

against Ohio officials responsible for enforcing H.B. 68 in the Franklin County Court of

Common Pleas on March 26, 2024, before the new law took effect in April. In addition to

seeking a declaration from the trial court that H.B. 68 violates the Ohio Constitution in

No. 24AP-483 19

several respects, appellants also sought injunctive relief from the state’s enforcement of the

new law. In support of its requested relief, appellants contended that H.B. 68, as a whole,

violates the single-subject rule in Article II, Section 15(D) and alleged that the provision

banning physicians from prescribing puberty-delaying medication and hormone therapy to

minors “for the purpose of assisting the minor individual with gender transition,” R.C.

3129.02(A)(2), violates the HCFA adopted by ballot initiative and referendum as Article I,

Section 21, the equal protection clause in Article I, Section 2, and the due course of law

provision in Article I, Section 16. Appellants did not make any claims challenging the new

law as violating the United States Constitution.

{¶ 35} Over the opposition of appellees, the trial court entered a temporary

restraining order on April 16, 2024 enjoining appellees from enforcing any provision

created by H.B. 68 pending resolution of the merits of appellants’ claims. A five-day trial

on the merits of the declaratory action commenced on July 15, 2024, at which time

testimony and evidence from numerous fact witnesses and medical experts were presented

by both appellants and appellees. The testimony and evidence relevant to appellants’ state

constitutional challenges is more thoroughly summarized and discussed within our

analysis of each assignment of error.

{¶ 36} The trial court ultimately found the law did not violate any of the state

constitutional provisions cited by appellants. The court memorialized its limited factual

findings and the rationale underlying its legal conclusions in a final judgment in favor of

appellees entered on August 6, 2024. And, having declared H.B. 68 constitutional in all

relevant respects, the trial court vacated the temporary restraining order previously issued.

{¶ 37} Because H.B. 68 went into effect on April 24, 2024, appellees are now able to

enforce all provisions of the new law, including the provisions banning Ohio medical

providers from prescribing medical interventions to transgender youth, as enacted in

Chapter 3129 of the Ohio Revised Code.

{¶ 38} Appellants timely appealed from the August 6, 2024 judgment and, before

the record was filed, moved this court for an injunction pending appeal. Although opposing

injunctive relief while this case is pending, appellees moved to expedite this case on

August 12, 2024, which we granted on August 14, 2024. Briefing on the merits followed.

No. 24AP-483 20

II. ASSIGNMENTS OF ERROR

{¶ 39} Appellants assert the following four assignments of error for our review:

[I.] THE TRIAL COURT ERRED IN ENTERING

JUDGMENT FOR [APPELLEES] ON APPELLANTS’

CLAIM UNDER ARTICLE II, SECTION 15(D) OF THE

OHIO CONSTITUTION (THE SINGLE-SUBJECT

RULE), AS H.B. 68 COMPRISES AN UNNATURAL

COMBINATION OF PROVISIONS, AND FAILS TO

“CLEARLY EXPRESS[]” A SINGLE SUBJECT IN ITS

TITLE.

[II.] THE TRIAL COURT ERRED IN ENTERING

JUDGMENT FOR [APPELLEES] ON APPELLANTS’

CLAIM UNDER ARTICLE I, SECTION 21 OF THE OHIO

CONSTITUTION (THE “HEALTH CARE FREEDOM

AMENDMENT,” OR “HCFA”), AS H.B. 68

UNLAWFULLY “PROHIBIT[S]” AND/OR “IMPOSE[S]

A PENALTY … FOR” THE SALE OR PURCHASE OF

GENDER-AFFIRMING MEDICAL CARE.

[III.] THE TRIAL COURT ERRED IN ENTERING

JUDGMENT FOR [APPELLEES] ON APPELLANT’S

CLAIM UNDER ARTICLE I, SECTION 2 OF THE OHIO

CONSTITUTION (THE EQUAL PROTECTION

CLAUSE), AS H.B. 68 FACIALLY CLASSIFIES ON THE

BASIS OF SEX, AND THE [STATE] HAS FAILED TO

DEMONSTRATE THAT H.B. 68 IS NARROWLY

TAILORED TO SERVE A COMPELLING STATE

INTEREST.

[IV.] THE TRIAL COURT ERRED IN ENTERING

JUDGMENT FOR [APPELLEES] ON APPELLANTS’

CLAIM UNDER ARTICLE I, SECTION 16 OF THE OHIO

CONSTITUTION (THE DUE COURSE OF LAW

CLAUSE), AS H.B. 68 INFRINGES ON THE

FUNDAMENTAL RIGHT OF PARENTS TO SEEK

APPROPRIATE MEDICAL CARE FOR THEIR

CHILDREN, AND THE [STATE] HAS FAILED TO

DEMONSTRATE THAT H.B. 68 IS NARROWLY

TAILORED TO SERVE A COMPELLING STATE

INTEREST.

No. 24AP-483 21

III. ANALYSIS

{¶ 40} In this case, appellants argue H.B. 68 is unconstitutional on its face under

four separate provisions of the Ohio Constitution.

{¶ 41} We begin with the principle that “[t]he Ohio Constitution is a document of

independent force,” which means that “state courts are unrestricted in according greater

civil liberties and protections to individuals and groups” under our own state’s constitution.

Arnold v. Cleveland, 67 Ohio St.3d 35 (1993), paragraph one of the syllabus. Indeed, “state

constitutions are a vital and independent source of law.” State v. Gardner, 2008-Ohio-

2787, ¶ 76, citing William J. Brennan, Jr., The Bill of Rights and the States: The Revival of

State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. REV. 535 (1986). This

principle has long been recognized and repeatedly emphasized by the Supreme Court of

Ohio. See, e.g., Direct Plumbing Supply Co. v. Dayton, 138 Ohio St. 540, 545 (1941) (“[I]t

is well to remember that Ohio is a sovereign state and that the fundamental guaranties of

the Ohio Bill of Rights have undiminished vitality.”); Simpkins v. Grace Brethren Church

of Delaware, 2016-Ohio-8118, ¶ 60-62 (Lanzinger, J., concurring in judgment only)

(summarizing greater protections the court has found in the Ohio Constitution).

{¶ 42} It is axiomatic that “we are not bound to walk in lockstep with the federal

courts when it comes to our interpretation of the Ohio Constitution.” State v. Smith, 2020-

Ohio-4441, ¶ 28. Thus, coextensive provisions under the Ohio and United States

Constitutions do not foreclose the possibility that “[i]n some circumstances, rights afforded

to people under the Ohio Constitution are greater than those afforded under the United

States Constitution.” State v. Hackett, 2020-Ohio-6699, ¶ 26 (Fisher, J., concurring). See

also Smith at ¶ 28 (“[E]ven if the provisions were initially understood to provide

functionally the same protections, we are not bound to mirror subsequent United States

Supreme Court decisions delineating the scope of the protection.”). At the same time, there

should be “compelling reasons why Ohio constitutional law should differ from the federal

law” when the language of the Ohio and United States Constitutions are coextensive. See,

e.g., State v. Wogenstahl, 75 Ohio St.3d 344, 363 (1996).

{¶ 43} In a facial challenge to the constitutionality of a statute, the claimant “must

establish that there exists no set of circumstances under which the statute would be valid.”

See, e.g., Harrold v. Collier, 2005-Ohio-5334, ¶ 37, citing United States v. Salerno, 481

No. 24AP-483 22

U.S. 739, 745 (1987). “The fact that a statute might operate unconstitutionally under some

plausible set of circumstances is insufficient to render it wholly invalid.” Id. at ¶ 37. See

also Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 2009-Ohio-5030, ¶ 13,

citing Arbino v. Johnson & Johnson, 2007-Ohio-6948, ¶ 26 (“In order for a statute to be

facially unconstitutional, it must be unconstitutional in all applications.”); State v. Daniel,

2023-Ohio-4035, ¶ 61 (Brunner, J., dissenting), quoting State v. Grevious, 2022-Ohio-

4361, ¶ 48, 68 (DeWine, J., concurring in judgment only) (advising courts “to avoid reciting

the inapposite beyond-a-reasonable-doubt standard when considering constitutional

challenges” because it “ ‘is an evidentiary standard that is poorly suited to the legal question

whether a legislative enactment comports with the Constitution’ ”). If a statute is found to

be unconstitutional on its face, it may not be enforced under any circumstances. See, e.g.,

Wymsylo v. Bartec, Inc., 2012-Ohio-2187, ¶ 21.

{¶ 44} In determining the constitutionality of a law, we must presume the statutes

enacted by the General Assembly are constitutional. See R.C. 1.47; Ohio Pub. Interest

Action Group, Inc. v. Pub. Util. Comm., 43 Ohio St.2d 175, 183 (1975), quoting State Bd. of

Health v. Greenville, 86 Ohio St. 1, 20 (1912). “[D]oubts regarding the validity of a

legislative enactment are to be resolved in favor of the statute.” State v. Gill, 63 Ohio St.3d

53, 55 (1992). Only if it “clearly appear[s] that the law is in direct conflict with inhibitions

of the constitution” will we declare it unconstitutional. Ohio Pub. Interest Action Group,

Inc. at 183, quoting Greenville at 20.

{¶ 45} As always, we “must look to the particular statutory language at issue, as well

as the language and design of the statute as a whole” to ascertain the plain meaning of the

challenged law. State v. Turner, 2020-Ohio-6773, ¶ 18, quoting K Mart Corp. v. Cartier,

Inc., 486 U.S. 281, 291 (1988). We “must be careful not to exceed the statute’s actual

language and speculate about hypothetical or imaginary cases.” Wymsylo at ¶ 21, citing

Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450

(2008).

{¶ 46} Facial constitutional challenges to state legislation involving questions of

statutory interpretation are reviewed de novo. See, e.g., State v. Pountney, 2018-Ohio-22,

¶ 20; Newburgh Hts. v. State, 2022-Ohio-1642, ¶ 18, quoting Put-In-Bay v. Mathys, 2020-

Ohio-4421, ¶ 11.

No. 24AP-483 23

{¶ 47} In this case, appellants “are not directing a challenge toward those parts of

H.B. 68 that prohibit surgical procedures” and have not claimed they would be adversely

affected by enforcement of H.B. 68’s sports or custody provisions. (See, e.g., Aug. 22, 2024

Appellants’ Brief at 1, 71; July 24, 2024 Pls.’ Rebuttal to Defs.’ Closing Brief at 1; July 15,

2024 Tr. at 7; Mar. 26, 2024 Compl. at ¶ 10-12; Aug. 6, 2024 Findings and Jgmt. Entry at

2.) As such, unless otherwise indicated, our analysis below is limited to H.B. 68’s ban on

puberty blockers and gender-affirming hormone therapy as available treatments for minors

diagnosed with gender dysphoria in Ohio (the “prescription ban”). We begin our analysis

by addressing appellants’ second and fourth assignments of error, which we conclude—

given the remedy sought and harms alleged in this case—render appellants’ first and third

assignments of error moot.

A. Second Assignment of Error: Health Care Freedom Amendment

(Article I, Section 21 of Ohio Constitution)

{¶ 48} In their second assignment of error, appellants argue the medical care

provisions of H.B. 68—specifically, the prescription ban set forth in R.C. 3129.02(A)—

unconstitutionally prohibit transgender minors from receiving health care, in violation of

Article I, Section 21 of the Ohio Constitution.

{¶ 49} In November 2011, Ohio’s electorate voted to add Section 21 to Article I of the

Ohio Constitution as part of a ballot initiative known as the HCFA.29 It provides:

(A) No federal, state, or local law or rule shall compel, directly

or indirectly, any person, employer, or health care provider

to participate in a health care system.

(B) No federal, state, or local law or rule shall prohibit the

purchase or sale of health care or health insurance.

(C) No federal, state, or local law or rule shall impose a penalty

or fine for the sale or purchase of health care or health

insurance.

29 See, e.g., Ed Meese and Jack Painter, Ohio’s Battle for Health Care Freedom, POLITICO (Nov. 7, 2011, 4:55

AM), https://www.politico.com/story/2011/11/ohios-battle-for-health-care-freedom-067727 (accessed

Mar. 11, 2025) [https://perma.cc/4PK6-U298]; Ohio Issue 3, State Cannot Compel Healthcare

Participation Amendment (2011), https://ballotpedia.org/Ohio_Issue_3,_State_Cannot_Compel_

Healthcare_Participation_Amendment_(2011) (accessed Mar. 11, 2025) [https://perma.cc/G43Y-BK9W].

No. 24AP-483 24

(D) This section does not affect laws or rules in effect as of

March 19, 2010; affect which services a health care

provider or hospital is required to perform or provide;

affect terms and conditions of government employment; or

affect any laws calculated to deter fraud or punish

wrongdoing in the health care industry.

(E) As used in this Section,

(1) “Compel” includes the levying of penalties or fines.

(2) “Health care system” means any public or private entity

or program whose function or purpose includes the

management of, processing of, enrollment of

individuals for, or payment for, in full or in part, health

care services, health care data, or health care

information for its participants.

(3) “Penalty or fine” means any civil or criminal penalty or

fine, tax, salary or wage withholding or surcharge or

any named fee established by law or rule by a

government established, created, or controlled agency

that is used to punish or discourage the exercise of

rights protected under this section.

Article I, Section 21 of the Ohio Constitution.

{¶ 50} At issue in this case is the effect of Section 21(D) on the health care freedom

protections guaranteed by Sections 21(B) and (C).

{¶ 51} R.C. 3129.02(A)(2) prohibits physicians from prescribing puberty blockers

and hormone therapy to minors “for the purpose of assisting the minor individual with

gender transition,” even though such practice is widely accepted as the prevailing standard

of care in the United States for treating gender dysphoria. R.C. 3129.05(A) further provides

that prescribing these medications to minors to treat gender dysphoria “shall be considered

unprofessional conduct” “subject to discipline by the applicable professional licensing

board.” In most instances, that would be the State Medical Board of Ohio, appointed by the

governor with the advice and consent of the senate, which has broad authority to “regulat[e]

the practices of medicine and surgery,” including the power “to take disciplinary action[]”

No. 24AP-483 25

under R.C. 4731.22.30 See R.C. 4731.01; R.C. 4731.20. See also R.C. 4731.05 (empowering

the State Medical Board of Ohio to make such rules and regulations, subject to and in

accordance with Chapter 119, pertaining to the practice of medicine as may be necessary to

carry out the purposes and enforcement of Chapter 4731).

{¶ 52} Appellants argue the prohibition contained in R.C. 3129.02(A) violates both

Sections 21(B) and (C) because it prohibits Ohioans from purchasing a specific category of

medical care by imposing a penalty or fine on healthcare professionals who provide it. The

state contends such ban is permitted by Section 21(D) because the medical care provisions

at issue are “laws calculated to . . . punish wrongdoing in the health care industry,” which

are not subject to the protections provided by Sections 21(B) and (C). The premise that

adhering to widely accepted treatment protocols can be considered “wrongdoing in the

health care industry” is borne out by the Ohio General Assembly’s declaration that doing so

“shall be considered unprofessional conduct.” See Section 21; R.C. 3129.05(A). Compare

R.C. 4731.22(B) (specifying reasons for disciplinary action by the State Medical Board of

Ohio, including “[f]ailure to maintain minimal standards applicable to the selection or

administration of drugs, or failure to employ acceptable scientific methods in the selection

of drugs or other modalities for treatment of disease” and “[a] departure from, or the failure

to conform to, minimal standards of care of similar practitioners under the same or similar

circumstances”).

{¶ 53} In interpreting the language of a constitutional provision ratified by direct

vote, like the HCFA, we must consider how the language would have been understood by

the voters who adopted the amendment. State v. Fisk, 2022-Ohio-4435, ¶ 6, citing

Centerville v. Knab, 2020-Ohio-5219, ¶ 22, citing Castleberry v. Evatt, 147 Ohio St. 30, 33

(1946). In so doing, “[w]e generally apply the same rules of construction that govern the

interpretation of statutes.” Fisk at ¶ 6, citing State v. Jackson, 2004-Ohio-3206, ¶ 14. We

begin with the plain text and, presuming the voters were aware of the laws in existence at

30 See also R.C. 4723.06(A)(1) (“The board of nursing shall . . . [a]dminister and enforce the provisions of

[Chapter 4723], including the taking of disciplinary action for violations of section 4723.28 of the Revised

Code, any other provisions of [Chapter 4723], or rules adopted under this chapter.”); R.C. 4732.17

(specifying basis under which the state board of psychology may take action against an applicant for or a

person who holds a license to practice psychology); R.C. 4757.36 (providing for disciplinary action by the

applicable professional standards committee, as described in R.C. 4757.04, of the counselor, social worker,

and marriage and family therapist board created by R.C. 4757.03).

No. 24AP-483 26

the time they voted to adopt the constitutional amendment, consider “ ‘how the words and

phrases would be understood by the voters in their normal and ordinary usage.’ ” State v.

Yerkey, 2022-Ohio-4298, ¶ 9, quoting Knab at ¶ 22, citing District of Columbia v. Heller,

554 U.S. 570, 576-77 (2008). See also Fisk, 2022-Ohio-4435 at ¶ 6, citing Knab at ¶ 22,

citing Castleberry at 33.

1. Gender-Affirming Care is Health Care Protected by Section 21

{¶ 54} At the outset, we reject the state’s suggestion that Section 21 does not cover

“health care” itself but, rather, only “preserve[s] freedom in the market for buying (or

refusing to buy) licensed health care or insurance.” (Emphasis added.) (See Appellees’

Brief at 44-46.) True, “health care” is not defined in the HCFA. But to agree with the state’s

interpretation, we would have to either add language (“licensed”) that does not exist in the

constitutional provision or ignore the language (“health care or health insurance”) that

does. We decline to do either.

{¶ 55} The rules of statutory construction prohibit such a reading of the statute. See,

e.g., In re Certificate of Need Application for Project “Livingston Villa,” Cuyahoga Cty.,

2017-Ohio-196, ¶ 38 (10th Dist.), quoting Columbia Gas Transm. Corp. v. Levin, 2008-

Ohio-511, ¶ 19 (“[w]hen interpreting a statute, ‘[c]ourts may not delete words used or insert

words not used’ ”); In re Application of Columbus S. Power Co., 2016-Ohio-1608, ¶ 49

(“[b]ut in construing a statute, we may not add or delete words”); Hulsmeyer v. Hospice of

Southwest Ohio, Inc., 2014-Ohio-5511, ¶ 23 (“court[s] must give effect to the words used,

making neither additions nor deletions from words chosen”). Rather, when the meaning

of a provision is “clear, unequivocal, and definite, then statutory interpretation ends, and

the court applies the statute according to its terms.” Livingston Villa at ¶ 38, citing

Columbia Gas Transm. Corp. at ¶ 19, and Hubbell v. Xenia, 2007-Ohio-4839, ¶ 11.

{¶ 56} On review, we conclude that by using the disjunctive “or” to separately

reference both “health care” and “health insurance,” Sections 21(B) and (C) plainly and

unambiguously provide Ohio citizens a right to their freedom of choice regarding both.

Prohibiting the purchase or sale of health care (or imposing a penalty or fine for the sale or

purchase of health care) ultimately impinges on access to health care. Had Ohio’s

electorate merely intended for the HCFA to preserve their freedom to buy (or not buy)

No. 24AP-483 27

health insurance, then “health care” would not be included in Sections 21(B) and (C). And

if “health care” was intended to mean something more limited or specialized than that

phrase is commonly understood, it would have been defined in Section 21(E) or described

using an appropriate adjective (e.g., “licensed health care”).

{¶ 57} When defined in the Ohio Revised Code, “health care” has been given its

commonly understood meaning: “[A]ny care, treatment, service, or procedure to maintain,

diagnose, or treat an individual’s physical or mental condition or physical or mental health.”

See, e.g., R.C. 1337.11(G) (durable power of attorney for health care); R.C. 2135.01(G)

(juvenile mental health treatment). See also R.C. 3795.01 (assisted suicide). That

definition is consistent with the relevant dictionary definitions of “health care.” See, e.g.,

Cambridge Dictionary Online, https://dictionary.cambridge.org/us/dictionary/english/

health-care (accessed Mar. 11, 2025) [https://perma.cc/NV26-3AGS] (defining “health

care” as “the services provided by a country or an organization that involve caring for

people’s health and treating people who are ill” and “the providing of medical services”);

Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/

health%20care (accessed Mar. 11, 2025) [https://perma.cc/6V9R-YH22] (defining “health

care” as “efforts made to maintain, restore, or promote someone’s physical, mental, or

emotional well-being especially when performed by trained and licensed professionals”).

{¶ 58} We find no basis to deviate from the plain and commonly understood

meaning of “health care” in our construction of the HCFA or otherwise find that this phrase

would have been understood by the voters to mean something different than its normal and

ordinary usage. As such, we find Sections 21(B) and (C) guarantee Ohio citizens the right

to access health care, subject to, of course, the exceptions provided for in Section 21(D).

{¶ 59} And, on review, we conclude the record supports the trial court’s finding that

“[g]ender transition services constitute ‘health care,’ ” which has not been challenged or

otherwise contested by the state on appeal. (See Aug. 6, 2024 Findings and Jgmt. Entry at

¶ 17.)

2. Section 21(D) Does Not Permit the Prescription Ban Imposed by H.B. 68

{¶ 60} Before addressing the merits of this claim, we first note that Madeline Moe

and Grace Goe have not expressed a desire or plan to undergo surgery as part of their

No. 24AP-483 28

treatment for gender dysphoria and none of the appellants have raised a challenge to the

law’s surgery provision. Accordingly, our analysis of this assignment of error is limited to

the issue of whether R.C. 3129.02(A)(2)—the provision banning physicians from

prescribing “a cross-sex hormone or puberty-blocking drug for a minor individual for the

purpose of assisting the minor individual with gender transition”—facially violates the

HCFA. Moreover, because appellants are not asserting a right to sell health care, our

analysis of this issue is limited to appellants’ right to purchase—i.e., access—puberty

blockers and hormones in order to assist minors with gender transition services that have

been consented to by the minors’ parents or guardians.

{¶ 61} In determining whether H.B. 68’s medical care provisions violate Sections

21(B) and (C) of the HCFA, we must consider the interplay between Section 21(D) (“[t]his

section does not affect . . . any laws calculated to deter fraud or punish wrongdoing in the

health care industry”) and R.C. 3129.05(A) (declaring that providing gender-affirming

medications to minors “shall be considered unprofessional conduct”). More broadly, we

must evaluate whether—or to what extent—Section 21(D) permits the General Assembly to

pass legislation that conflates, obfuscates, or otherwise subverts the rights conveyed by

Section 21(B) and (C) through the citizens’ ballot initiative.

{¶ 62} Adopted in 1851 and amended in 1912, 1918, and 1953, Article II, Section 1 of

the Ohio Constitution (“Section 1”) vests the legislative authority of the state in a bicameral

General Assembly, subject only to other constitutional limitations. In 1912, Ohio electors

also adopted the initiative (proposal of laws and constitutional amendments) and

referendum (rejection of laws enacted by the General Assembly) amendment to Section 1,

thus reserving to the people the right to propose, adopt, or reject legislation and

constitutional amendments by initiative and referendum. See, e.g., State ex rel.

LetOhioVote.org v. Brunner, 2009-Ohio-4900, ¶ 19. As adopted, Section 1a of Article II

provides:

The first aforestated power reserved by the people is designated

the initiative, and the signatures of ten per centum of the

electors shall be required upon a petition to propose an

amendment to the constitution.

No. 24AP-483 29

{¶ 63} Shortly after the initiative and referendum amendment was adopted, the

Supreme Court explained its significance:

Now, the people’s right to the use of the initiative and

referendum is one of the most essential safeguards to

representative government. . . . The potential virtue of the “I.

& R.” [initiative and referendum] does not reside in the good

statutes and good constitutional amendments initiated, nor in

the bad statutes and bad proposed constitutional amendments

that are killed. Rather, the greatest efficiency of the “I. & R.”

rests in the wholesome restraint imposed automatically upon

the general assembly and the governor and the possibilities of

that latent power when called into action by the voters.

State ex rel. Nolan v. ClenDening, 93 Ohio St. 264, 277-78 (1915).

{¶ 64} “The power of initiative must be liberally construed, and the General

Assembly cannot diminish that power.” State ex rel. Ohio Liberty Council v. Brunner,

2010-Ohio-1845, ¶ 56, citing State ex rel. Hodges v. Taft, 64 Ohio St.3d 1, 4 (1992). And,

“[i]t is axiomatic that ‘[t]he Constitution is the superior law.’ ” Yerkey, 2022-Ohio-4298 at

¶ 28 (DeWine, J., dissenting), quoting State ex rel. Campbell v. Cincinnati S. R. Co., 97

Ohio St. 283, 309 (1918). This means “that a constitutional provision trumps a legislative

enactment.” Yerkey at ¶ 28 (DeWine, J., dissenting), citing Marbury v. Madison, 5 U.S.

137, 138 (1803).

{¶ 65} To determine whether H.B. 68’s prescription ban violates the HCFA, we must

first determine the meaning of “wrongdoing in the health care industry” in Section 21(D),

which narrows the right conferred by Sections 21(B) and (C). Significantly, “wrongdoing”

is not defined in the constitutional provision.

{¶ 66} Appellants posit that, when reading “wrongdoing” in conjunction with the

context in which it appears—preceded by “fraud” and followed by “in the health care

industry”—“the term ‘wrongdoing’ most naturally refers to specific instances of misconduct

within the medical profession[,] for example, negligence, malpractice, failure to obtain a

patient’s informed consent, false billing, practicing medicine without a license, or other

No. 24AP-483 30

actions committed in the course of providing care.”31 (Appellants’ Brief at 53.) In contrast,

the state contends that Section 21(D)’s reference to “wrongdoing in the health care

industry” should be construed as “reserv[ing] to the General Assembly the power to identify

and prohibit medical procedures that it considers wrongdoing or bad medical practice, even

if some citizens or doctors disagree.” (Aug. 29, 2024 Appellees’ Brief at 44.) We find the

state’s position is belied by the fundamental principles embedded in our state constitution

and the plain meaning of “wrongdoing.”

{¶ 67} The mere absence of a definition for a relevant term in a challenged provision

does not render its meaning ambiguous. Rather, applying the same rules of construction

that govern the interpretation of statutes—as we must, see Fisk, 2022-Ohio-4435 at ¶ 6,

citing Jackson, 2004-Ohio-3206 at ¶ 14—we ask whether there is a plain and ordinary

meaning of the term. In so doing, we may rely upon dictionary definitions to establish the

ordinary, everyday meaning of “wrongdoing” as used in Section 21(D). See, e.g., Andrews

v. Tax Comm. of Ohio, 135 Ohio St. 374, 376 (1939); Alexander v. Buckeye Pipeline Co., 53

Ohio St.2d 241, 245-48 (1978).

{¶ 68} “Wrongdoing” is defined as “evil or improper behavior or action” and “an

instance of doing wrong.” Meriam-Webster Dictionary Online, https://www.merriam-

webster.com/dictionary/wrongdoing (accessed Mar. 11, 2025) [https://perma.cc/YS46-

KNHV]. See also Cambridge Dictionary Online, https://dictionary.cambridge.org/us/

dictionary/english/wrongdoing (accessed Mar. 11, 2025) [https://perma.cc/42WF-2HMT]

(defining “wrongdoing” as “a bad or an illegal action”). We find these dictionary authorities

provide ample support for appellants’ contention that, as used in Section 21(D), “ the term

‘wrongdoing’ most naturally refers to specific instances of misconduct within the medical

profession.” (See Appellants’ Brief at 53.)

31 Appellants alternatively suggest that “wrongdoing” in Section 21(D) “could refer to conduct that was

already unlawful at the time the HCFA was enacted.” (Appellants’ Brief at 53.) We do not find this proposed

interpretation compelling, as it fails to account for its application to conduct that was unlawful when Section

21(D) was passed in 2011—for instance, marijuana possession for medical purposes—but is generally lawful

today in the state of Ohio. We are also reticent to construe “wrongdoing” in terms of what that meant in the

past, as such construction may fail to account for the prevailing standards of care accepted by the

professional medical community of the present day. See, e.g., R.C. 4731.055 (setting conditions for

prescribing opioid analgesics or benzodiazepine drugs in 2013 and 2015 after Section 21 was adopted by

ballot initiative in November 2011).

No. 24AP-483 31

{¶ 69} Under the state’s proposed interpretation, the freedom to choose health care

guaranteed by Section 21 is narrowed to nothing more than the right to receive health care

subject to the policy preferences of the General Assembly. Indeed, it is the state’s

contention that Section 21(D) authorizes the legislature to narrow Ohioans’ constitutional

freedom to choose health care by enacting legislation that declares it “unprofessional

conduct” for a physician to follow the widely accepted protocols and prevailing standards

of care across the United States when treating a medical condition. We disagree.

{¶ 70} While some parents may decline to permit their minor children to receive this

type of care—as is their right—and members of the Ohio legislature may personally disagree

with providing this type of care to minors, it is the constitutional right of Ohio citizens to be

free to decide whether they receive health care services recommended by medical

professionals and widely accepted by the professional medical community as the

appropriate treatment protocols for an appropriately diagnosed medical condition. This

case does not present the need to define the outer edges of “wrongdoing in the health care

industry.” Suffice it to say that acting in accordance with the prevailing standards of care,

following widely accepted treatment protocols, and providing medical interventions in

accordance with the practice guidelines published by leading professional groups that

reflect the consensus of the professional medical community32 does not fall within the plain

meaning of “wrongdoing in the health care industry” contemplated by Section 21(D).

32 See, e.g., Brief of Amici Curiae Clinical Practice Guideline Experts in Support of Petitioner and

Respondents in Support of Petitioner, United States v. Skrmetti, No. 23-477 (Sept. 3, 2024),

http://www.supremecourt.gov/DocketPDF/23/23-477/323982/20240903164457972_23-477_Amicus%

20Brief.pdf (accessed Mar. 11, 2025) [https://perma.cc/K36R-ZAMN]; Brief of Amici Curiae American

Academy of Pediatrics and Additional National and State Medical and Mental Health Organizations in

Support of Petitioner and Respondents in Support of Petitioner, United States v. Skrmetti, No. 23-477

(Sept. 3, 2024), http://www.supremecourt.gov/DocketPDF/23/23-477/323964/20240903155151548_23-

477%20tsac%20Brief%20of%20Amici%20Curiae%20AAP%20et%20al..pdf (accessed Mar. 11, 2025)

[https://perma.cc/6K84-LZSL]; Brief of Dr. Erica E. Anderson, PhD, and Dr. Laura Edwards-Leeper, PhD,

as Amici Curiae in Support of Petitioner and Respondents in Support of Petitioner, United States v.

Skrmetti, No. 23-477 (Sept. 3, 2024), http://www.supremecourt.gov/DocketPDF/23/23-477/323992/

20240903172206889_23-477tsacDrEricaEAndersonPhD.pdf (accessed Mar. 11, 2025)

[https://perma.cc/JUK3-5WT4]; Brief of Amici Curiae 17 Healthcare Providers in Support of Petitioner

and Respondents in Support of Petitioner, United States v. Skrmetti, No. 23-477 (Sept. 3, 2024),

http://www.supremecourt.gov/DocketPDF/23/23477/323963/20240903154806825_23-477_United%

20States%20of%20America%20v.%20Skrmetti_Amicus%20Brief%20of%2017%20Healthcare%20Provid

ers%20in%20Support%20of%20Petitioners.pdf (accessed Mar. 11, 2025) [https://perma.cc/Q5GN-

EEXF]; Brief of the American Psychological Association and Other Leading Mental Health Organizations

No. 24AP-483 32

{¶ 71} Every Ohio elected official takes an oath to follow the laws and the

Constitution of the State of Ohio. Having taken an oath to uphold the Ohio Constitution,

the members of Ohio’s state legislature are under constitutional mandate to accord the

benefit of all constitutional rights to Ohio citizens. See Article XV, Section 7 of the Ohio

Constitution. Notwithstanding this oath, the officers of the state failed to obey the state

constitution’s demand by enacting legislation that denies some Ohio citizens enjoyment of

their right to choose to receive health care that follows the widely accepted guidelines and

treatment protocols of the professional medical community in the United States. We are

duty-bound to secure the enjoyment of this right to all who are deprived of it by state action.

See, e.g., Article XV, Section 7 of the Ohio Constitution; R.C. 3.23.

{¶ 72} In enacting H.B. 68, the legislature has categorically prohibited appellants

from accessing treatment protocols in accordance with the standards of care and guidelines

widely accepted in the professional medical community to treat gender dysphoria in

minors, see R.C. 3129.02(A)(2), by subjecting medical care providers who follow accepted

medical practices to professional discipline for “unprofessional conduct,” see R.C.

3129.05(A).

{¶ 73} This is not to say that the HCFA guarantees Ohioans the right to receive any

treatment alleged to be “health care.” However, there is no question that the treatments at

issue here are, in fact, “health care.” (See, e.g., Aug. 6, 2024 Findings and Jgmt. Entry at

7.) Nor do we conclude that the Ohio legislature lacks the ability to appropriately regulate

the practice of medicine in accordance with the prevailing standards of care, federal law, or

the laws of this state. Rather, the scope of our decision is limited to the narrow issue

presented here: whether the Ohio legislature can categorically ban Ohio citizens from

receiving recommended medical care from a qualified medical care provider that is

consistent with the existing evidence, diagnosis guidelines, and standard practices accepted

by the professional medical community.

as Amici Curiae in Support of Petitioner, United States v. Skrmetti, No. 23-477 (Sept. 3, 2024),

http://www.supremecourt.gov/DocketPDF/23/23-477/323885/ 20240903123631640_23-477%20

Amicus%20Brief%20of%20American%20Psychological%20Association%20et%20al..pdf (accessed Mar.

11, 2025) [https://perma.cc/9NR6-4BMC]; Brief for Amici Curiae Expert Researchers and Physicians in

Support of Petitioner, United States v. Skrmetti, No. 23-477 (Sept. 3, 2024),

http://www.supremecourt.gov/DocketPDF/23/23-477/323851/20240904161709482_23-477%20

Amicus%20Brief.pdf (accessed Mar. 11, 2025) [https://perma.cc/8QBZ-LK4S].

No. 24AP-483 33

{¶ 74} That the state may disagree with an individual family’s informed decision to

act in what they believe is in their child’s best interest—or, more broadly, take issue with

the prevailing consensus of the professional medical community regarding the appropriate

standards of care for minors diagnosed with gender dysphoria in the United States—has no

bearing on our analysis under the HCFA. “ ‘The regulation of constitutionally protected

decisions . . . must be predicated on legitimate state concerns other than disagreement with

the choice the individual has made. . . . Otherwise, the interest in liberty protected by the

Due Process Clause would be a nullity.’ ” (Emphasis in original.) Cruzan v. Dir., Missouri

Dept. of Health, 497 U.S. 261, 313-14 (1990) (Brennan, J., dissenting), quoting Hodgson v.

Minnesota, 497 U.S. 417, 435 (1990).

{¶ 75} Use of puberty blockers and hormone therapy to treat minors appropriately

diagnosed with gender dysphoria by a qualified medical professional, in accordance with

the treatment protocols established by the Guidelines, is the prevailing standard of care

accepted by the professional medical community in the United States. Thus, there is no

question that appellants’ right to purchase this type of medical treatment is protected by

Sections 21(B) and (C). It is likewise self-evident that healthcare provided in accordance

with prevailing standards of medical care does not fall within the punishment-of-

wrongdoing exception contemplated by Section 21(D). The Ohio legislature is free to

“punish wrongdoing in the health care industry” by enacting laws that, for instance,

establish the necessary qualifications of medical care providers who diagnose or treat a

minor with gender dysphoria, specify a process to ensure informed consent, require (as the

Guidelines already do) the consent of a minor’s parent or guardian for treatment, or

otherwise regulate the professionals providing such care in a manner consistent with the

concerns expressed in Section 2 of H.B. 68 without eliminating completely the right to

access gender-affirming care (where appropriately indicated). (See also Separate Opinion

at ¶ 143-45.) But the General Assembly cannot simply declare any type of health care to be

“wrongdoing” and swallow up the right enshrined in the Ohio Constitution by direct vote

of Ohio’s citizens.

{¶ 76} For these reasons, we find that R.C. 3129.02(A)(2), as enacted by H.B. 68, is

unconstitutional on its face and sustain appellants’ second assignment of error. Further, as

No. 24AP-483 34

articulated in the well-reasoned separate opinion, we agree R.C. 3129.02(A) is an

unreasonable exercise of the state’s police powers.33 (See Separate Opinion at ¶ 165-78.)

{¶ 77} While appellants’ second assignment of error broadly relates to “Ohioans’

right to make their own individual health care decisions” under the HCFA (see Appellants’

Brief at 45), it is unclear from our review of the record and the parties’ briefing whether the

minor-appellants and parent-appellants are asserting their rights collectively or

independent from each other. (See Separate Opinion at ¶ 179-80.) Nonetheless, because

our resolution of this assignment of error ultimately turns on what “wrongdoing” is

understood to mean in Section 21(D), we do not believe it is necessary to distinguish

between who is asserting the right since a minor’s access to healthcare is, under most

circumstances, effectuated through the informed consent of their parents or guardian. See,

e.g., In re Guardianship of S.H., 2013-Ohio-4380, ¶ 12-16 (9th Dist.) (observing the

constitutional rights of children are generally exercised by parents); Hodgson v.

Minnesota, 497 U.S. 417, 483 (1990) (Kennedy, J. concurring in part, dissenting in part)

(“The common law historically has given recognition to the right of parents, not merely to

be notified of their children’s actions, but to speak and act on their behalf.”). Indeed,

children generally access their rights through their parents. See, e.g., Parham v. J. R., 442

U.S. 584, 621 (1979) (Stewart, J., concurring in judgment only); Bellotti v. Baird, 443 U.S.

622, 633-34 (1979); In re Gault, 387 U.S. 1, 13 (1967); State v. Bode, 2015-Ohio-1519, ¶ 23-

24. And it is undisputed that, even before H.B. 68 took effect, minors could not receive

puberty blockers or hormone therapy without the informed consent of their parents.

Because decisions about the type of healthcare a minor receives generally require parental

involvement and consent, we believe it is prudent to next address appellants’ fourth

assignment of error, alleging a violation of parents’ fundamental right to direct and control

the upbringing of their children.

33 Appellants did not argue in their briefing that the enactment of R.C. 3129.02(A) constitutes an invalid

exercise of the state’s police powers. In any event, we believe the separate opinion’s police-powers analysis

further supports our conclusion that H.B. 68’s prescription ban violates the HCFA.

No. 24AP-483 35

B. Fourth Assignment of Error: Due Course of Law (Article I, Section 16

of the Ohio Constitution)

{¶ 78} In their fourth assignment of error, the parent-appellants allege H.B. 68’s

prohibition on minor children receiving puberty blockers and hormone therapy violates

their substantive due process right to direct the medical care and upbringing of their

children under Ohio’s Due Course of Law Clause. We again note that Madeline Moe and

Grace Goe do not allege H.B. 68’s prohibition on surgery will affect their treatment for

gender dysphoria. Thus, appellants lack standing to challenge that provision of the law and

have not attempted to do so. Accordingly, our analysis of this assignment of error is limited

to the issue of whether R.C. 3129.02(A)(2)—the provision banning physicians from

prescribing “a cross-sex hormone or puberty-blocking drug for a minor individual for the

purpose of assisting the minor individual with gender transition”—facially violates the Ohio

Constitution’s due-course-of-law guarantees.

1. Substantive Due Process

{¶ 79} The Due Course of Law Clause in Article I, Section 16 of the Ohio Constitution

guarantees every person the right to a “remedy by due course of law” “for an injury done

him in his land, goods, person, or reputation.” Since 1887, the Supreme Court has equated

Ohio’s Due Course of Law Clause with the Due Process Clause of the Fourteenth

Amendment to the United States Constitution.34 See, e.g., State v. Aalim, 2017-Ohio-2956,

¶ 15, citing Adler v. Whitbeck, 44 Ohio St. 539, 569 (1887). But see Bode, 2015-Ohio-1519

at ¶ 23-24 (departing from that general rule and holding that Ohio’s Due Course of Law

Clause affords juveniles a broader right to counsel than that afforded by the Due Process

Clause of the United States Constitution). Thus, unless there is a compelling reason to

separately analyze the federal and state constitutional provisions, Ohio courts generally

look to decisions of the United States Supreme Court to give meaning to Ohio’s Due Course

of Law Clause. Aalim at ¶ 15.

34 The state acknowledges that “[b]ecause the federal due-process-of-law provisions have been interpreted

to confer substantive rights, the Due Course of Law Clause has been interpreted to do the same.” (Appellees’

Brief at 73.) At the same time, the state preserves—but does not make—the argument that, under its original

understanding, Ohio’s Due Course of Law Clause conferred no substantive rights. (Appellees’ Brief at 73,

citing State v. Aalim, 2017-Ohio-2956, ¶ 40, 45-48 (DeWine, J., concurring).) In any event, because this

issue is not properly before us, we do not address the merits of that contention at this time.

No. 24AP-483 36

{¶ 80} The United States Supreme Court’s “established method of substantive-due-

process analysis has two primary features.” Washington v. Glucksberg, 521 U.S. 702, 720

(1997). First, the court has “observed that the Due Process Clause specially protects those

fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s

history and tradition’ . . . and ‘implicit in the concept of ordered liberty,’ such that ‘neither

liberty nor justice would exist if they were sacrificed.’ ” Id. at 720-21, quoting Moore v. E.

Cleveland, 431 U.S. 494, 537 (1977) (plurality opinion), and Palko v. Connecticut, 302 U.S.

319, 326 (1937). Second, the court has “required in substantive-due-process cases a ‘careful

description’ of the asserted fundamental liberty interest.” Id. at 721, quoting Reno v. Flores,

507 U.S. 292, 302 (1993). The court has cautioned against using the Fourteenth

Amendment to define new fundamental liberty interests without “concrete examples

involving fundamental rights found to be deeply rooted in our legal tradition.” Id. at 722.

{¶ 81} The legal standard for reviewing an alleged due process violation is either

rational basis review or strict scrutiny. See, e.g., Arbino, 2007-Ohio-6948 at ¶ 49, citing

Morris v. Savoy, 61 Ohio St.3d 684, 688-89 (1991), and Sorrell v. Thevenir, 69 Ohio St.3d

415, 423 (1994); Glucksberg, 521 U.S. at 720. When a law restricts the exercise of a

fundamental right, the strict-scrutiny test is used. State v. Lowe, 2007-Ohio-606, ¶ 18,

citing Glucksberg at 721. However, if the challenged law does not impact a fundamental

right, a court applies rational basis review. Id., citing Glucksberg 722.

2. Infringement on a Fundamental Right

{¶ 82} “Fundamental rights are those liberties that are ‘deeply rooted in this

Nation’s history and tradition.’ ” Lowe at ¶ 19, quoting Moore at 503. In a series of cases,

the United States Supreme Court has expanded the application of the Due Process Clause

beyond the specific freedoms identified in the Bill of Rights. Id.

{¶ 83} In this case, the parent-appellants claim H.B. 68’s prohibition on prescribing

puberty blockers and hormone therapy for minors diagnosed with gender dysphoria

violates Ohio’s Due Course of Law Clause because it interferes with their fundamental right

to direct the medical care of their children. The state contends, however, that the parent-

appellants describe this claimed right with excessive generality, and maintains that, for

strict scrutiny to apply, the parent-appellants must instead establish either (1) “a

No. 24AP-483 37

fundamental right to direct a child’s gender transition,” or (2) “a broader right to direct a

child’s healthcare even when the State has barred the particular practice the parents seek.”

(Appellees’ Brief at 74.)

{¶ 84} Among liberty interests the United States Supreme Court has specifically

recognized as protected by the Due Process Clause of the federal constitution is the

fundamental right of parents to “make decisions concerning the care, custody, and control

of their children.” Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion). Indeed,

it is well-established that parents have an “essential” and “basic civil right” to raise their

children and a “fundamental liberty interest” in the care, custody, and management of their

children. See, e.g., Meyer v. Nebraska, 262 U.S. 390, 399, 401-03 (1923) (recognizing the

right of parents to “establish a home and bring up children” and to “control the education

of their own”); Pierce v. Soc. of Sisters, 268 U.S. 510, 534-35 (1925) (recognizing parental

right “to direct the upbringing and education of children under their control”); Wisconsin

v. Yoder, 406 U.S. 205, 232 (1972) (recognizing the “primary role of the parents in the

upbringing of their children is now established beyond debate as an enduring American

tradition”); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“[i]t is cardinal with us that

the custody, care and nurture of the child reside first in the parents, whose primary function

and freedom include preparation for obligations the state can neither supply nor hinder”);

Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“[i]t is plain that the interest of a parent in the

companionship, care, custody, and management of his or her children ‘come[s] to this

[c]ourt with a momentum for respect lacking when appeal is made to liberties which derive

merely from shifting economic arrangements’ ” (citation omitted)); Quilloin v. Walcott, 434

U.S. 246, 255 (1978) (the Supreme Court has “recognized on numerous occasions that the

relationship between parent and child is constitutionally protected”); Parham, 442 U.S. at

602 (“[o]ur jurisprudence historically has reflected Western civilization concepts of the

family as a unit with broad parental authority over minor children”); Santosky v. Kramer,

455 U.S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents

in the care, custody, and management of their child”); Glucksberg, 521 U.S. at 720 (“[i]n a

long line of cases, we have held that, in addition to the specific freedoms protected by the

Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right[]

. . . to direct the education and upbringing of one’s children.”).

No. 24AP-483 38

{¶ 85} The fundamental right of parents to make decisions concerning the care,

custody, and control of their children is “perhaps the oldest of the fundamental liberty

interests” recognized by our courts. Troxel, 530 U.S. at 65-66 (2000) (plurality opinion).

See also In re Murray, 52 Ohio St.3d 155, 156-57 (1990). Among other things, this includes

the right to select, within reason, whether and what type of medical care a child will receive.

See, e.g., Parham at 604 (observing that parents “retain plenary authority to seek

[institutionalized] care for their children, subject to a physician’s independent examination

and medical judgment”) (emphasis added); In re Willmann, 24 Ohio App.3d 191 (1st Dist.

1986), paragraph three of the syllabus (holding that “[t]he ‘religious faith’ of the parents of

a sick child, as firm and clear as that faith may be, does not permit the parents, under the

law of this state and the nation, to expose the child to progressive ill health and death”); In

re Guardianship of S.H., 2013-Ohio-4380 at ¶ 37 (ordering chemotherapy over parents’

objections when a minor’s condition is immediately life-threatening). See also R.C.

2151.011(B)(21) (defining “[l]egal custody” in context of juvenile matters to mean “a legal

status that vests in the custodian the right to have physical care and control of the child and

to determine where and with whom the child shall live, and the right and duty . . . to provide

the child with . . . medical care, all subject to any residual parental rights, privileges, and

responsibilities”); Juv.R. 2(X) (the same).

{¶ 86} Parents are presumed to act in the best interests of their children. Parham,

442 U.S. at 602. When making medical decisions on behalf of a child, a parent is required

to exercise his or her maturity, expertise, and judgment to weigh a treatment’s risks against

its potential benefits. Indeed,

[a parent’s duty includes] a “high duty” to recognize

symptoms of illness and to seek and follow medical

advice. The law’s concept of the family rests on a presumption

that parents possess what a child lacks in maturity, experience,

and capacity for judgment required for making life’s difficult

decisions. More important, historically it has recognized that

natural bonds of affection lead parents to act in the best

interests of their children. 1 W. Blackstone, Commentaries *

447; 2 J. Kent, Commentaries on American Law * 190.

...

No. 24AP-483 39

That some parents “may at times be acting against the interests

of their children” as was stated in Bartley v. Kremens, 402

F.Supp. 1039, 1047-1048 (ED Pa. 1975), vacated and

remanded, 431 U.S. 119 (1977), creates a basis for caution, but

is hardly a reason to discard wholesale those pages of human

experience that teach that parents generally do act in the

child’s best interests. . . . The statist notion that governmental

power should supersede parental authority in all cases because

some parents abuse and neglect children is repugnant to

American tradition.

Nonetheless, [the Supreme Court] ha[s] recognized that a state

is not without constitutional control over parental discretion in

dealing with children when their physical or mental health is

jeopardized.

...

Simply because the decision of a parent is not agreeable to a

child or because it involves risks does not automatically

transfer the power to make that decision from the parents to

some agency or officer of the state. The same characterizations

can be made for a tonsillectomy, appendectomy, or other

medical procedure. Most children, even in adolescence, simply

are not able to make sound judgments concerning many

decisions, including their need for medical care or treatment.

Parents can and must make those judgments.

(Emphasis in original and added.) Parham at 602-03. See also In re Guardianship of S.H.

at ¶ 15-16.

{¶ 87} The Parham court recognized, for instance, parents’ right to have

“tonsillectom[ies], appendectom[ies], or other medical procedure[s]” performed on their

children. Id. at 603. These examples suggest the Supreme Court understood a parent’s

fundamental right to direct the medical care of their child as referring to the category of

well-established medical treatments subject to medically accepted standards and a

physician’s independent examination and medical judgment. The Parham court further

recognized that a state’s invocation of risks associated with a particular type of medical care

does not, standing alone, justify a state’s decision to prohibit parents from deciding their

children should receive that treatment. See id. at 602-03.

No. 24AP-483 40

{¶ 88} Parham involved a controversial and unpopular treatment for children:

involuntary commitment to a state mental hospital. The specific issue in the case involved

the child’s procedural due process rights—namely, whether the child had a right to a

hearing before commitment. But to resolve that question, the United States Supreme Court

had to first determine whether a parent has the right to commit their child.

{¶ 89} In making that determination, the court drew on a long line of precedent

speaking generally to parents’ liberty interest in raising their children as they see fit,

including Meyer, 262 U.S. 390, Pierce, 268 U.S. 510, and Yoder, 406 U.S. 205.

Emphasizing the long tradition of granting parents in the United States broad control over

their children, the Parham court concluded that parents’ fundamental right to direct their

children’s upbringing encompassed the narrower right at issue: the right to seek a

particular form of medical treatment for their children, subject to and informed by a

physician’s independent examination and medical judgment. Parham, 442 U.S. at 602-04.

{¶ 90} Although Parham ultimately resolved a procedural due process question, it

also necessarily decided the contours of parents’ authority to make medical decisions for

their children in the context of deciding the procedural question. Accord L.W., 83 F.4th at

511 (White, J., dissenting) (“Clearly, . . . Parham was expounding the substantive due-

process right of parents to direct their children’s medical care, although the discussion was

in the context of addressing the minor plaintiffs’ procedural due-process claims.”). See also

Kanuszewski v. Michigan Dept. of Health and Human Servs., 927 F.3d 396, 419 (6th Cir.

2019), quoting Troxel, 530 U.S. at 72 (“[P]arents’ substantive due process right ‘to make

decisions concerning the care, custody, and control’ of their children includes the right to

direct their children’s medical care.”). As such, we conclude that parent-appellants enjoy a

fundamental right to seek a specific form of health care for their children, subject to a

physician’s independent examination and medical judgment, which would include the

gender-affirming medical care banned by H.B. 68.35 And as an inferior court, we lack the

power to narrow a fundamental right the Supreme Court has recognized.

35 We recognize the Sixth Circuit Court of Appeals, in a split decision, concluded otherwise when it analyzed

the federal Due Process Clause in L.W., 83 F.4th 460. We respectfully believe the Sixth Circuit’s overly

narrow framing of the fundamental right at issue precipitated the wrong result in its analysis of the

substantive due process challenge presented in that case. We are not obligated to parrot that analysis. See,

No. 24AP-483 41

{¶ 91} Here, the trial court acknowledged “that parents have a fundamental liberty

interest in the care, custody, and management of their children.” (See Aug. 6, 2024

Findings and Jgmt. Entry at 10.) Significantly, the trial court did not accept the state’s

contention that the fundamental right asserted by the parent-appellants in this case must

be more narrowly defined as, for instance, the right to access the specific medications at

issue, including puberty blockers and hormone therapy, for their children. Nor did the trial

court conclude that a parent’s right to seek a particular form of medical treatment for their

children, subject to a physician’s independent examination and medical judgment, was not

encompassed in the fundamental right to direct and control the upbringing of their

children. Instead, the trial court invoked Glucksberg, 521 U.S. 702, to ultimately

conclude—without really explaining why—H.B. 68’s provision banning gender-affirming

medications did not violate the parent-appellants’ substantive due process rights under

rational basis review. (See Aug. 6, 2024 Findings and Jgmt. Entry at 10-12.)

{¶ 92} At issue in Glucksberg was whether the liberty interest protected by the

federal Due Process Clause “extend[ed] to a personal choice by a mentally competent,

terminally ill adult to commit physician-assisted suicide.” Glucksberg, 521 U.S. at 708.

Observing that “[t]he history of the law’s treatment of assisted suicide in this country has

been and continues to be one of the rejection of nearly all efforts to permit it,” the

Glucksberg court determined that its “decisions lead us to conclude that the asserted ‘right’

to assistance in committing suicide is not a fundamental liberty interest protected by the

Due Process Clause.” Id. at 728.

{¶ 93} By contrast, the parent-appellants in this case do not allege a new category of

fundamental rights. Rather, they assert a long-recognized and well-established

fundamental liberty interest protected by the federal Due Process Clause and Ohio’s Due

Course of Law Clause: the right of parents to make decisions concerning the care, custody,

and control of their children. See, e.g., Parham, 442 U.S. at 602-03; Troxel, 530 U.S. at

e.g., Bode, 2015-Ohio-1519 at ¶ 13-28; Aalim, 2017-Ohio-2956 at ¶ 14-21; Jeffrey S. Sutton, 51 Imperfect

Solutions: States and the Making of American Constitutional Law 174-78 (2018) (cautioning state courts

against a lock-step approach when interpreting a state constitutional counterpart to the United States

Constitution). And, we decline to do so here, particularly given the health care freedom protections

independently guaranteed by Sections 21(B) and (C) of the Ohio Constitution.

No. 24AP-483 42

65-66 (plurality opinion); Harrold, 2005-Ohio-5334 at ¶ 40. The right at issue in

Glucksberg was not the same, even at the highest level of abstraction.

{¶ 94} Thus, contrary to the trial court’s finding without analysis, Glucksberg has

little bearing on this case. True, the Glucksberg court said the right to refuse unwanted

medical treatment is not equal to “a right to assistance in committing suicide.” Id. at 725-

26. But, that point has no import here. Physician-assisted suicide was never expressed as

a form of “health care” in Glucksberg. And, unlike comfort care, as described in R.C.

3795.03, physician-assisted suicide is not considered health care under Ohio law. See, e.g.,

R.C. 3795.02; R.C. 3795.04; R.C. 4731.22(B)(36); R.C. 4730.25(B)(23); R.C.

4723.28(B)(33); R.C. 4761.09(A)(23); R.C. 4731.97(H); R.C. 2133.12(D); R.C. 2133.24(A).

In contrast, there is no dispute the gender-affirming care at issue in this case is “health

care.” Indeed, the trial court explicitly found that “[g]ender transition services constitute

‘health care’ ” (Aug. 6, 2024 Findings and Jgmt. Entry at 7), and the state has not challenged

the propriety of that finding on appeal.

{¶ 95} The state hyper-narrowly describes the asserted right at issue, in

contravention to the fundamental right recognized by Parham and its progeny. As for the

trial court, it failed entirely to engage in any analysis regarding the extent of that right. The

parent-appellants are not required to show a right to a particular treatment or a

particular provider. Rather, the question is whether the state has proven that the

treatment it seeks to regulate—minors’ access to a treatment available to adults for the

purpose of treating gender dysphoria and to minors for any purpose other than “assisting

the minor individual with gender transition,” see R.C. 3129.02(A)(2)—falls outside the

fundamental right recognized in Parham. See, e.g., United States v. Stevens, 559 U.S. 460,

468-71 (2010) (placing the burden on the government to show the speech it is attempting

to regulate is unprotected); New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1,

18 (2022) (placing the burden on the government to show that the challenged regulation

falls outside the scope of the Second Amendment right).

{¶ 96} To be sure, the state’s proposed framing of the fundamental right would

render it largely meaningless. Indeed, if this right was narrowly defined as the right to seek

a specific medical treatment that is “ ‘deeply rooted in this Nation’s history and tradition’ ”

(Appellees’ Brief at 74, quoting Aalim, 2017-Ohio-2956 at ¶ 16), the entirety of modern

No. 24AP-483 43

medicine would fall outside of the scope of a parent’s right to control their children’s health

care, as no such medical treatment could be shown to be deeply rooted in our nation’s

history and tradition. Indeed, it would be impossible for any historical discussion of

puberty blockers or gender-affirming hormone therapy to have informed the meaning of

the federal Due Process Clause (ratified on July 9, 1868) or Ohio’s Due Course of Law

Clause (adopted in 1851 and amended in 1912) because puberty blockers and hormones

were not discovered, isolated, and synthesized for clinical use until the 20th century.36 The

same is, of course, true of all modern medicine.

{¶ 97} It is axiomatic that we must view constitutional rights at a level of generality

sufficient to ensure “the basic principles” that define our rights “do not vary” in the face of

“ever-advancing technology.” Moody v. NetChoice, LLC, 603 U.S. 707, 733 (2024), quoting

Brown v. Ent. Merchants Assn., 564 U.S. 786, 790 (2011). See also Carpenter v. United

States, 585 U.S. 296, 305 (2018); quoting Kyllo v. United States, 533 U.S. 27, 34 (2001) ;

United States v. Rahimi, 602 U.S. 680, 692 (2024), quoting Bruen at 30 (“The law must

comport with the principles underlying the Second Amendment, but it need not be a ‘dead

ringer’ or a ‘historical twin.’ ”); Vidal v. Elster, 602 U.S. 286, 328-29 (2024) (Sotomayor,

J., concurring in the judgment) (opining that “hunting for historical forebears on a

restriction-by-restriction basis is [not] the right way to analyze the constitutional question”

in a First Amendment case and expressing a reluctance “to go further down this precipice

of looking for questionable historical analogues to resolve the constitutionality of

Congress’s legislation”).

{¶ 98} As such, we decline to hold that parents’ fundamental right to direct their

children’s medical care is limited to those treatments existing as of 1851, 1868, or 1912.

36 See, e.g., John A. Russell, Fifty Years of Advances in Neuroendocrinology, 2 BRAIN & NEUROSCIENCE

ADVANCES 1-20, available at https://journals.sagepub.com/doi/pdf/10.1177/2398212818812014 (accessed

Mar. 11, 2025) [https://perma.cc/N469-VSMF]; Juan Roa & Manuel Tena-Sempere, Unique Features of a

Unique Cell: The Wonder World of GnRH Neurons, 159 ENDOCRINOLOGY 3895–3896 (2018), available at

https://doi.org/10.1210/en.2018-00870 (accessed Mar. 11, 2025) [https://perma.cc/Q65S-Y6MY]; Meet

Zandawala, et al., The Evolution and Nomenclature of GnRH-Type and Corazonin-Type Neuropeptide

Signaling Systems, 264 GENERAL & COMPARATIVE ENDOCRINOLOGY 64-77 (2018), available at

https://doi.org/10.1016/j.ygcen.2017.06.007 (accessed Mar. 11, 2025) [https://perma.cc/G93C-BNUF];

Eberhard Nieschlag & Susan Nieschlag, Testosterone Deficiency: A Historical Perspective, 16 ASIAN J.

ANDROLOGY 161-68 (2014), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3955324/

(accessed Mar. 11, 2025) [https://perma.cc/7ZCA-HT6K].

No. 24AP-483 44

Circumscribing this fundamental right in the manner suggested by the state would obliviate

any constitutionally protected right for a parent to seek for their children, without state

interference, medical innovations of the 20th and 21st centuries that are accepted as the

standard of care by the relevant medical communities, including noninvasive fetal heart

monitoring, penicillin, insulin, organ transplants, the polio vaccine, and congenital

corrective heart surgery.37 Particularly given the enduring research, advancements,

discoveries, and ever-evolving science that is typical in the field of medicine, it is

unreasoned to suggest that whether or not a parent has a fundamental right to direct and

make decisions about their minor children’s medical care is limited to 19th century medical

treatments.

37 The concept of noninvasive fetal heart monitoring, specifically through fetal electrocardiography (ECG),

was first described in 1906; however, the method for calculating fetal heart rate (FHR) non-invasively using

the successive R waves from an ECG was not developed until 1958. Thus, “[i]ntermittent observations of

fetal heart sounds (auscultation) became standard clinical practice by the mid-20th century.” See Gari D.

Clifford, et al., Noninvasive Fetal ECG Analysis (Aug. 1, 2015), available at

https://pmc.ncbi.nlm.nih.gov/articles/PMC4164169/#R13 (accessed Mar. 11, 2025)

[https://perma.cc/D9HY-Q6GZ]. Penicillin, the first antibiotic to be discovered, was accidentally found in

1928, though the first human trial did not take place until 1941. See, e.g., Robert Gaynes, The Discovery of

Penicillin–New Insights After More Than 75 Years of Clinical Use (May 2017), available at

https://pmc.ncbi.nlm.nih.gov/articles/PMC5403050/ (accessed Mar. 11, 2025) [https://perma.cc/43WH-

9AJM]. The hormone insulin was successfully isolated for the first time in 1921, and by 1923, it was widely

available in mass production. See, e.g., Ignazio Vecchio, et al., The Discovery of Insulin: An Important

Milestone in the History of Medicine (Oct. 23, 2018), available at https://pmc.ncbi.nlm.nih.gov/

articles/PMC6205949/ (accessed Mar. 11, 2025) [https://perma.cc/B6S3-6S29]. The first successful organ

transplant was a kidney transplant performed in December 1954. See, e.g., Kristen D. Nordham and Scott

Ninokawa, The History of Organ Transplantation (Oct. 19, 2021), available at

https://pmc.ncbi.nlm.nih.gov/articles/PMC8682823/ (accessed Mar. 11, 2025) [https://perma.cc/J4HW-

4CHX]. After the poliovirus was successfully cultivated in human tissue in a laboratory in 1948, the first

successful polio vaccine was invented in the early 1950s and, in the next ten years, mass immunization

programs were implemented throughout the world. See, e.g., Davide Orsini, et al., The History of Polio

Vaccination with “Sabin’s OPV” 60 Years After Its Introduction in Italy: An Unforgivable “Delay”

(Mar. 31, 2024), available at https://pmc.ncbi.nlm.nih.gov/articles/PMC11066819/ (accessed Mar. 11,

2025) [https://perma.cc/W4VC-C6SG]; Mayo Clinic, History of Polio: Outbreaks and Vaccine Timeline,

https://www.mayoclinic.org/diseases-conditions/history-disease-outbreaks-vaccine-timeline/polio

(accessed Mar. 11, 2025) [https://perma.cc/7B6C-62HY]. The first congenital cardiac corrective surgery

was performed in 1938, opening up the possibility of subsequent surgical correction of various other lesions,

which previously were considered to be untreatable. Mohsin Yahya Murshid and Ahmed Abdelrahman

Elassal, Evolution of Surgical Repair of Patent Ductus Arteriosus – A Historical Timeline (Aug. 19, 2022),

available at https://pmc.ncbi.nlm.nih.gov/articles/PMC8445144/ (accessed Mar. 11, 2025)

[https://perma.cc/8F3R-RNFM]; Allen B. Weisse, Cardiac Surgery (2011), available at

https://pmc.ncbi.nlm.nih.gov/articles/PMC3231540/ (accessed Mar. 11, 2025) [https://perma.cc/CZL6-

72G9] (“Well into the first decades of the 20th century, medical opinion held that any surgical attempts to

treat heart disease were not only misguided, but unethical.”).

No. 24AP-483 45

{¶ 99} Holding otherwise would not just be detrimental for the parents of

transgender minors. It would be disastrous for all parents seeking access to modern

medical care for their children. Surely, the force of this fundamental right is not handcuffed

to the 19th century medical practices of bloodletting, purging, and the rampant prescribing

of alcohol, cocaine, and opiate-based medicines.38 Thus, we cannot, in good conscience,

depart from the reality of scientific development and limit the scope of parents’ exercise of

this fundamental right to the world as it was nearly two centuries ago. Departure as such

would be tantamount to jettison from common sense and logic.

{¶ 100} On review of the record before us, we find a minor’s access to puberty

blockers and hormone therapy to treat gender dysphoria—as recommended by an

independent medical provider and given with the informed consent of their parents, assent

of the minor, and in accordance with the prevailing standards of care—is the type of medical

decision parents have a fundamental interest in making on behalf of their children.

Significantly, too, the trial court did not find otherwise. Indeed, the trial court’s factual

finding—that “[g]ender transition services constitute ‘health care’ ” (Aug. 6, 2024 Findings

and Jgmt. Entry at 7)—places the treatment at issue in this case squarely within Parham’s

fundamental right. Thus, the state’s argument that the type of health care implicated in

this case should somehow fall outside of that right is not compelling.

38 See, e.g., Harvard Countway Library: Center for the History of Medicine, Medical Treatment in the

Nineteenth Century, https://collections.countway.harvard.edu/onview/exhibits/show/apothecary-

jars/nineteenth-century-treatment (accessed Mar. 11, 2025) [https://perma.cc/37UW-9D92]; Andrew M.

Knoll, The Reawakening of Complementary and Alternative Medicine at the Turn of the Twenty-First

Century: Filling the Void in Conventional Biomedicine, 20 J. CONTEMP. HEALTH L. & POL’Y 329 (2004)

(tracing the development of medicine and its evolution into the scientific and technological profession of

modern biomedicine); Brian Monnich, Bringing Order to Cybermedicine: Applying the Corporate

Practice of Medicine Doctrine to Tame the Wild Wild Web, 42 B.C. L. REV. 455, 467-68 (2001) (observing

that doctors’ archaic medical procedures during the nineteenth century—including bloodletting, purging,

and administering heavy dosages of mercury or quinine—“were not very successful, and sometimes even

dangerous”); David Herzberg, Entitled to Addiction?: Pharmaceuticals, Race, and America’s First Drug

War, 91 BULL. HIST. MED. 586 (2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5679069/

(accessed Mar. 11, 2025) [https://perma.cc/93XJ-6NZN]; Kara W. Swanson, Food and Drug Law as

Intellectual Property Law: Historical Reflections, 2011 WIS. L. REV. 331, 341-42; Chester N. Mitchell,

Deregulating Mandatory Medical Prescription, 12 AM. J. L. AND MED. 207, 218-22 (1986). See generally

Michael Worboys, Practice and the Science of Medicine in the Nineteenth Century, 102 ISIS 109-15 (2011),

https://www.journals.uchicago.edu/doi/epdf/10.1086/658660 (accessed Mar. 11, 2025)

[https://perma.cc/XT9B-BYG9]; John Harley Warner, The Therapeutic Perspective: Medical Practice,

Knowledge and Identity in America, 1820-1885 (1986).

No. 24AP-483 46

{¶ 101} For similar reasons, the state’s contention that its decision to ban a particular

type of treatment when used for a particular purpose by minors should preempt parents’

fundamental liberty interest in directing the care of their children is likewise not persuasive

given the facts and circumstances of this case. Again, use of puberty blockers and hormones

to treat gender dysphoria is the prevailing standard of care accepted by a consensus of the

medical community in America. Ohio law does not prohibit transgender adults from using

these treatments. And, when used for any purpose other than “assisting the minor

individual with gender transition,” minors in Ohio can be treated with puberty blockers or

hormones for other medical conditions. See R.C. 3129.02(A)(2). Significantly, Parham did

not purport to qualify parents’ fundamental right to direct the medical care of their children

with a state-law limitation. Nor would such limitation make sense. Otherwise, all

fundamental rights would be meaningless if they could easily be limited by the enactment

of a law that encroaches upon that right.

{¶ 102} Based on the foregoing, we conclude that parents have a fundamental right

to seek medical care for their children, which naturally includes the right of parents to, “in

conjunction with their [minor] child’s consent and their [medical providers’]

recommendation, make a judgment that such medical care is necessary.” Brandt, 551

F.Supp.3d at 892-93, aff’d 47 F.4th 661 (8th Cir. 2022). See also Ladapo, 676 F.Supp.3d

at 1220 (finding that plaintiffs were likely to succeed on the merits of their claim that

Florida’s ban violated parents’ rights under the federal Due Process Clause).

{¶ 103} At this point, it should be noted that the question before us is not what the

correct course of treatment is for an adolescent with gender dysphoria. Rather, the

question is whether use of puberty blockers or hormone therapy to treat a minor—in

accordance with the accepted standards of care outlined above and with the informed

consent of the minor’s parents—falls within the ambit of “medical care” a parent has a

fundamental right to make decisions about. While the parental right to autonomy in this

decision-making is not limitless and the state offered some evidence that puberty blockers

and gender-affirming hormones pose certain risks, the uncontradicted record evidence is

that at least 22 major medical associations in the United States endorse these therapies as

well-established, evidence-based treatments for gender dysphoria in minors. (See, e.g., Ex.

22 at ¶ 28-31; Ex. 23 at ¶ 37, 73; Ex. 24 at ¶ 12-18.)

No. 24AP-483 47

3. Application of Strict Scrutiny

{¶ 104} Having found that H.B. 68’s prescription ban infringes on parents’

fundamental right to direct the medical care of their children and authorize treatment for

gender dysphoria with puberty blockers and hormone therapy subject to medically

accepted standards, we conclude strict scrutiny applies. Thus, the trial court erred in

reviewing the parent-appellants’ due course of law claim under rational basis review.39

{¶ 105} State action that limits the exercise of fundamental constitutional rights is

subject to the highest level of judicial review—strict scrutiny—and will be upheld only if it

is narrowly tailored to advance a compelling governmental interest. See, e.g., Harrold,

2005-Ohio-5334 at ¶ 39, citing Sorrell, 69 Ohio St.3d at 423, and Chavez v. Martinez, 538

U.S. 760, 775 (2003). Of course, the state has a compelling interest in “safeguarding the

physical and psychological well-being of a minor.” Globe Newspaper Co. v. Superior Ct.,

457 U.S. 596, 607 (1982). At issue, then, is whether H.B. 68’s complete ban on the

prescription of puberty blockers and hormones to assist minors with gender transition—

which unequivocally burdens parents’ exercise of their fundamental right to direct the

medical care of their children—is narrowly tailored to promote the state’s compelling

interest in protecting children.

{¶ 106} The trial court did not address this issue because, as explained above, it

erroneously reviewed H.B. 68’s prescription ban under the rational-basis standard. (See

Aug. 6, 2024 Findings and Jgmt. Entry at 10-12.) Indeed, the trial court failed to adequately

grapple with parents’ fundamental right to direct the medical care of their children, as its

analysis of appellants’ due course of law claim almost exclusively focused on the state’s

power over medical treatment in general without any meaningful contemplation of that

fundamental right. (See Aug. 6, 2024 Findings and Jgmt. Entry at 10-12.) Therefore, we

must examine the record to determine whether it supports a finding that categorically

prohibiting access to puberty blockers and hormones “for the purpose of assisting the

39 Under the rational basis test, the law must be rationally related to a legitimate governmental interest in

order to be constitutional. See, e.g., O’Brien v. McGraw, 2011-Ohio-3826, ¶ 8 (10th Dist.), citing Heller v.

Doe, 509 U.S. 312, 320 (1993). More precisely, the Supreme Court has held that under the less stringent

rational basis standard, the challenged law must “ ‘bear[] a real and substantial relation to the public health,

safety, morals or general welfare of the public’ ” and not be “ ‘unreasonable or arbitrary.’ ” Arbino, 2007-

Ohio-6948 at ¶ 49, quoting Mominee v. Scherbarth, 28 Ohio St.3d 270, 274 (1986), quoting Benjamin v.

Columbus, 167 Ohio St. 103 (1957), paragraph five of the syllabus.

No. 24AP-483 48

minor individual with gender transition,” as provided in R.C. 3129.02(A)(2), is narrowly

tailored to advance a compelling state interest. Arbino, 2007-Ohio-6948 at ¶ 49, citing

Morris, 61 Ohio St.3d at 690.

{¶ 107} We recognize “[t]he Court has given state and federal legislatures wide

discretion to pass legislation in areas where there is medical and scientific uncertainty.”

Gonzales v. Carhart, 550 U.S. 124, 163 (2007). And we bear in mind the deference

generally owed to legislative findings. But “the normal rule that courts defer to the

judgments of legislatures ‘in areas fraught with medical and scientific uncertainties’ ” does

not settle the issue presented here because a parent’s right to direct the medical care of their

children is a fundamental constitutional right. Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215, 274 (2022), quoting Marshall v. United States, 414 U.S. 417, 427 (1974).

Thus, such findings are not entitled to “dispositive weight” because we retain “an

independent constitutional duty to review factual findings where constitutional rights are

at stake.” Gonzales at 165.

{¶ 108} Here, H.B. 68 categorically prevents parents from following the

recommendations of qualified medical professionals and choosing to treat their children’s

gender dysphoria with puberty blockers and hormone therapy. As already described above,

the record establishes that many minors with gender dysphoria will face significant risks to

their health and well-being if those treatments can no longer be provided: prolonging of

their gender dysphoria and causing additional distress and health risks, such as depression,

post-traumatic stress disorder, and suicidality. (See, e.g., Ex. 22 at ¶ 44, 51, 66-68; Ex. 23

at ¶ 60, 70, 72-76; Ex. 24 at ¶ 14-17, 30; Ex. 25 at ¶ 38, 46; Ex. 27 at ¶ 74-75.) The testimony

of parent-appellants confirmed they have made the decision to access gender-affirming

care for their children after discussions with and observations of their children, thorough

research, counseling, and consultation with a doctor. And, the Guidelines widely accepted

by the professional medical community support—though certainly do not mandate—a

decision by a reasonable minor patient and parent, in consultation with properly trained

practitioners, to use puberty blockers at or near the onset of puberty and to use hormones

later, even when fully apprised of the current state of medical knowledge and all attendant

risks. So long as a parent adequately cares for his or her children, “there will normally be

no reason for the State to inject itself into the private realm of the family to further question

No. 24AP-483 49

the ability of that parent to make the best decisions concerning the rearing of that parent’s

children.” Troxel, 530 U.S. at 68-69 (plurality opinion). Yet, in enacting a categorical ban

on the use of puberty blockers and hormones “for the purpose of assisting the minor

individual with gender transition,” the Ohio General Assembly has done precisely that in

R.C. 3129.02(A)(2).

{¶ 109} The various claims underlying the state’s arguments that H.B. 68 protects

children and safeguards medical ethics do not explain why only gender-affirming medical

care—and all gender-affirming medical care for minors—is singled out for prohibition.

Notably, the Ohio General Assembly did not ban treatment for adults and minors alike;

rather, it banned treatment for minors only, irrespective of the wishes of the minors or their

parents in consultation with their medical providers. The General Assembly prohibited

medical care providers from prescribing puberty blockers and hormones to minors for the

specific purpose of assisting with their gender transition. If the state’s concerns about the

propriety of prescribing gender-affirming medications to minors were genuine, the state

would prohibit 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. The state’s

choice to allow the same treatment for cisgender minors as long as it is not “for the purpose

of assisting the minor individual with gender transition,” R.C. 3129.02(A)(2), therefore

undermines its contention that the challenged provisions are aimed at protecting children

from “experimental” treatment and the longer-term, irreversible effects that may be

associated with some aspects of that treatment.

{¶ 110} We do not, however, turn a blind eye to the risks that can be associated with

minors’ use of puberty blockers and hormones. Indeed, as with virtually all medical

procedures and therapies, we acknowledge that treatment for gender dysphoria carries with

it the risk of negative side effects and concerns amongst some in the medical community

about its efficacy, particularly in minors. Most notably, there are legitimate concerns about

the combined effect puberty blockers followed by gender-affirming hormone therapy can

have on a minor’s fertility and sexuality. (See, e.g., Ex. 22 at ¶ 43-49, 53; Ex. 23 at ¶ 42, 47,

55-57; Ex. 25 at ¶ 38; Ex. 26 at ¶ 10, 13, 34-36, 39; July 15, 2024 Tr. at 249-50, 324-25, 330-

32; July 16, 2024 Tr. at 13-15, 34-35, 96-116, 170-72; July 17, 2024 Tr. at 125-30; July 19,

2024 Tr. at 45-53, 72.) We recognize that a child entering puberty may not be well-

No. 24AP-483 50

equipped to evaluate these risks and parents may not always make the best decisions for

their children. But those risks are present with all minor patients.

{¶ 111} The General Assembly also did not prohibit transgender adults from

accessing gender-affirming medical care. It is difficult to understand why our legislature

believes adults are equipped to make decisions about gender-affirming medical care for

themselves but not for their minor children. Indeed, what is striking about R.C. 3129.04 is

not that it addresses medical treatments with both risks and benefits to minors, but that, in

categorically precluding minors and their parents from choosing to receive these widely

accepted gender-affirming medical treatments, the statute expropriates the right to make

such a decision to the state. Worse, too, the state has made the same decision for everyone

without regard to any individual patient’s unique circumstances and in contravention of

the prevailing standards of care for treating gender dysphoria.

{¶ 112} We also acknowledge the risk of misdiagnosis, though the Guidelines’

requirements for careful analysis by a qualified doctor and a multi-disciplinary team should

minimize its occurrence considerably. (See, e.g., July 15, 2024 Tr. at 98-100, 117-23, 236-

47, 309-12, 326-27; July 16, 2024 Tr. at 118-20; July 17, 2024 Tr. at 137, 144, 175-76;

July 18, 2024 Tr. at 21-23, 138-40.) Moreover, the absence of objective tests to confirm

gender identity or diagnose gender dysphoria does not present a risk that is unique in the

mental health field, as many mental health conditions are routinely diagnosed without

confirmation by objective testing. (See, e.g., July 15, 2024 Tr. at 98-100; Ex. 27 at ¶ 5.) And,

as with any medical treatment, there is always the potential for regret.40 (See, e.g., Ex. 22

at ¶ 55-57; Ex. 23 at ¶ 68; Ex. 24 at ¶ 26-30; Ex. 27 at ¶ 48-62; July 15, 2024 Tr. at 176-83;

July 16, 2024 Tr. at 129; July 18, 2024 Tr. at 124-29.)

{¶ 113} The existence of risks of the kind presented here undoubtedly calls for caution

in treating minors with gender dysphoria. They do not, however, beget a one-size-fits-all

40 Notably, the state’s expert, Dr. Levine, represented in his report that “[r]ecent studies have varied in rate

of regret from zero (de Vries et al, 2024) to 30% (Roberts et al, 2022).” (Ex. B at ¶ 141.) However, the Roberts

study Dr. Levine cites was not a study of regret but, rather, a discontinuation of hormone therapy. (See

July 15, 2024 Tr. at 176-83; July 16, 2024 Tr. at 129; July 18, 2024 Tr. at 124-29.) As Dr. Levine

acknowledged on cross-examination, people stop hormone therapy for a number of reasons and there is no

study showing an actual regret rate of 30 percent in persons who began taking hormones for gender

dysphoria. (See July 18, 2024 Tr. at 128-29.) At most, evidence in the record suggests “that [regret] occurs

but not that it’s common.” (July 15, 2024 Tr. at 182.)

No. 24AP-483 51

prohibition of widely accepted medical treatments for minor patients and parents who have

chosen, in consultation with their doctors and multi-disciplinary team, to treat their

children’s gender dysphoria diagnosis with puberty blockers or hormones in appropriate

circumstances and in accordance with the prevailing standards of care. While the state has

identified legitimate reasons for regulation in this area, the designated evidence does not

demonstrate that the extent of H.B. 68’s regulation—prohibiting transgender minors of all

ages from using puberty blockers and hormones—was closely tailored to uphold those

interests.

{¶ 114} To be sure, the state does not even argue on appeal that it has no less

restrictive means than a categorical ban to advance its interest. Instead, the state generally

summarizes its experts’ concerns about the effectiveness of medicalized transition for

minors and absence of reliable evidence on whether gender dysphoria will resolve without

lifechanging medical interventions. (See, e.g., Appellees’ Brief at 8-13, 23, 52-54.) The state

fails to explain, however, why the purported uncertainty expressed by some medical

providers “about the wisdom of medically ‘transitioning’ children” or its concerns about the

efficacy of treating minors diagnosed with gender dysphoria with puberty blockers and

hormones given the “profound lifetime effects” of such treatment leaves the state without

more tailored alternatives to a categorical ban. (Emphasis in original.) (Appellees’ Brief at

23.)

{¶ 115} Indeed, the state’s position relies heavily on the efforts of European countries

to restrict or regulate gender-affirming care for minors with gender dysphoria, and the

state’s experts cite approvingly to those restrictions and regulations through their

testimony and reports. (See, e.g., July 15, 2024 Tr. at 144-56; July 18, 2024 Tr. at 39-40,

116-20; Ex. 25 at ¶ 27-34; Ex. 27 at ¶ 38-41.) In the state’s view, the risks and uncertainties

identified in systematic reviews conducted by some European countries gives the state

unfettered discretion to choose how to regulate gender-affirming medical care for minors—

and their parents’ fundamental right to make choices regarding this care—up to, and

including, a broad prohibition for all. But, none of the countries referenced in the reports

of the state’s experts have taken Ohio’s broad, aggressive stance fully banning all gender-

affirming care for minors diagnosed with gender dysphoria. (See, e.g., July 15, 2024 Tr. at

144-56; July 18, 2024 Tr. at 39-40, 116-20; Ex. 25 at ¶ 27-34; Ex. 27 at ¶ 38-41.) And, if

No. 24AP-483 52

anything, this evidence demonstrates that “lesser, more exact restrictions may achieve the

[legislature’s] desired results.” See, e.g., Seven Hills v. Nations, 76 Ohio St.3d 304, 309

(1996). Thus, the state’s reliance on those reviews does not achieve the “close means-end

fit” strict scrutiny requires. See, e.g., Sessions v. Morales-Santana, 582 U.S. 47, 68 (2017).

{¶ 116} Although not emphasized by the state on appeal, we also believe it is worth

commenting on the notion suggested by the state’s witnesses that some doctors are

encouraging minors to receive gender-affirming care without adequate consultation or

otherwise in a manner that fails to comport with the prevailing standards of care. The

state’s evidence on this point consists of general statements about matters beyond its

witnesses’ personal knowledge (see, e.g., July 18, 2024 Tr. at 115-16, 141-43, 146-49 (Dr.

Levine expressing general concerns about clinicians providing “rapid access to endocrine

care” without comprehensive evaluation and psychotherapy)), or pertains to medical care

received outside of Ohio (see, e.g., July 19, 2024 Tr. at 109-10, 117-18 (Chloe Cole testifying

about undergoing a double mastectomy at age 15 under the care of a California doctor but

acknowledging she has never received any gender-affirming care in Ohio)). Significantly,

however, the record before us does not support any notion that medical providers in Ohio

failed to follow the prevailing standards of care before H.B. 68’s prescription ban took

effect.

{¶ 117} But, even if these concerns could be substantiated, it is difficult to see how

they justify a categorical ban on puberty blockers and hormone therapy for minors

diagnosed with gender dysphoria. To the extent the state claims medical providers may be

failing to treat their patients in accordance with the applicable standards of care by

diagnosing without sufficient evaluation, pushing treatments on minor patients, failing to

secure adequate informed consent, or otherwise, Ohio law already mandates informed

consent and consultation protocols, see R.C. 2317.54, and provides for discipline of medical

care providers who fail to conform to minimal standards of care, see, e.g., R.C.

4731.22(B)(6). The State Medical Board of Ohio is already tasked with regulating the

ethical considerations as well as the duties of the healthcare community in the treatment of

gender dysphoria and similar circumstances. And, as Governor DeWine suggested in his

veto message, less restrictive means could address the concerns expressed by the Ohio

legislature and the general aims of H.B. 68, including imposing data collection and

No. 24AP-483 53

reporting requirements, prohibiting unqualified medical providers from providing gender-

affirming pharmaceutical medical care, and banning minors under the age of 18 from

receiving any gender-affirming surgical procedure.41 Of course, we do not address today

whether these—or any other—potential regulations of gender-affirming care for minors

would be constitutionally appropriate. Rather, the availability of these types of regulations

merely affirms our conclusion that H.B. 68’s categorical ban lacks the narrow tailoring

necessary to pass constitutional muster.

{¶ 118} The testimony of parent-appellants confirmed they have made the decision

to access gender-affirming care for their children after discussions with and observations

of their child, thorough research, counseling, and consultation with a doctor. So long as a

parent adequately cares for his or her children, “there will normally be no reason for the

State to inject itself into the private realm of the family to further question the ability of that

parent to make the best decisions concerning the rearing of that parent’s children.” Troxel,

530 U.S. at 68-69 (plurality opinion). Indeed, as Governor DeWine observed in his

prepared press conference statement explaining his decision to veto H.B. 68:

This bill would impact a very small number of Ohio children.

But, for those children who face gender dysphoria and for their

families, the consequences of this bill could not be more

profound.

Ultimately, I believe this is about protecting human life. Many

parents have told me that their child would be dead today if

they had not received the treatment they received from an Ohio

children’s hospital. I have also been told, by those who are now

grown adults, that but for this care, they would have taken their

life when they were teenagers.

What so many of these young people and their families have

also told me is that nothing they have faced in life could ever

prepare them for this extremely tough journey. Parents are

making decisions about the most precious thing in their life --

their child -- and none of us should underestimate the gravity

and the difficulty of those decisions.

41 See Office of the Governor of Ohio, Veto Message: Statement of the Reasons for the Veto of Substitute

House Bill 68 (Dec. 29, 2023), https://governor.ohio.gov/media/news-and-media/governor-dewine-

vetoes-house-bill-68 (accessed Mar. 11, 2025) [https://perma.cc/LE8D-KKX9].

No. 24AP-483 54

These are gut-wrenching decisions that should be made by

parents and should be informed by teams of doctors who are

advising them. These are parents who have watched their child

suffer, sometimes for years, and who have real concerns that

their child may not survive to reach adulthood. While the

child’s care team informs their decisions, it is the parents who

are living with that child who know their child better than

anyone else in the world.

These are horribly, horribly difficult situations. There are crisis

situations for that child and for that child’s family. Families are

basing their decisions on the best medical information they can

get. The decision to move forward should only be reached if the

child, the child’s parents, and the medical team all agree that

this is the right decision.

Were I to sign House Bill 68 or were House Bill 68 to become

law, Ohio would be saying that the State -- that the government

-- knows better what is medically best for a child than the two

people who love that child the most -- the parents. While there

are rare times in the law -- in other circumstances -- where the

State overrules the medical decisions made by the parents, I

can think of no example where this is done, not only against the

decision of the parents, but also against the medical judgment

of the treating physician and the treating team of medical

experts.

See Office of the Governor of Ohio, Statement as Prepared for House Bill 68 Press

Conference (Dec. 29, 2023), https://governor.ohio.gov/media/news-and-

media/governor-dewine-vetoes-house-bill-68 (accessed Mar. 11, 2025)

[https://perma.cc/CCN9-Q2N2].

{¶ 119} Yet, by enacting a categorical ban on the use of puberty blockers and

hormones “for the purpose of assisting the minor individual with gender transition” in R.C.

3129.02(A)(2), the General Assembly has engaged in its own cost-benefit analysis

concerning the efficacy of puberty blockers and hormone therapy relative to their risks,

supplanting the role of parents, who are presumed to act in the best interests of their

children. E.g., Parham, 442 U.S. at 602. Most remarkable about the challenged provision

is not that it addresses medical treatments with both risks and benefits but that it arrogates

to the state the right to make the same decision for all parents without consideration of any

No. 24AP-483 55

minor child’s individual circumstances or the recommendations of any treating medical

provider.

{¶ 120} Again, the question put to this court is not what the correct course of

treatment is for an adolescent with gender dysphoria. Rather, it is whether H.B. 68’s

prescription ban is narrowly tailored to the state’s articulated interest of protecting children

from allegedly dangerous medical treatments. Based on the present record, we conclude it

is not. To the contrary, H.B. 68 is severely underinclusive in that it categorically

prohibits only a limited segment of minors from using puberty blockers or hormones, while

leaving these medical therapies available for all other minors, who would face the precise

risks the state contends H.B. 68 is intended to protect against. At the same time, H.B. 68’s

prescription ban is gravely overinclusive in that it fails to consider its impact of

preventing parents from exercising their fundamental right to choose a treatment for their

children’s gender dysphoria diagnosis and corresponding symptoms in accordance with

medical advice and the prevailing standards of care. Such a sweeping and inflexible ban on

parents’ ability to access medical care for their children is not narrowly tailored to advance

the state’s articulated interest: the protection of children.

{¶ 121} Based on the foregoing, we find the state failed to meet its burden of showing

that H.B. 68’s categorical prescription ban is narrowly tailored to advance the state’s

compelling interest in protecting children so as to survive strict scrutiny. (See also Separate

Opinion at ¶ 140-46.) As such, we find that H.B. 68’s categorical prohibition on prescribing

puberty blockers or hormone therapy to minors “for purposes of assisting the minor

individual with gender transition” in R.C. 3129.02(A)(2) facially violates Ohio parents’ right

to substantive due process.42

42 Other than generally asserting that it has a right to “set the menu” of lawful health care, the state did not

substantively argue in its brief that H.B. 68’s prescription ban is a valid exercise of the state’s police powers.

(See Appellees’ Brief at 74-75.) In any event, we believe the separate opinion’s determination that H.B. 68’s

prescription ban is a clearly erroneous unreasonable exercise of the state’s police powers because it

interferes with parent-appellants’ fundamental right to care for their children “beyond the necessities of the

situation” and is not impartial further supports our conclusion that H.B. 68’s prescription ban is

unconstitutional. (See Separate Opinion at ¶ 147-64.)

No. 24AP-483 56

C. First and Third Assignments of Error: Single-Subject Rule (Article II,

Section 15(D) of the Ohio Constitution) and Equal Protection (Article I,

Section 2 of the Ohio Constitution)

{¶ 122} Appellants contend in their first assignment of error that H.B. 68 is

unconstitutional, as a whole, because it violates the one-subject rule of Article II, Section

15(D) of the Ohio Constitution. At the same time, appellants have maintained throughout

the pendency of this case that they “are not directing a challenge toward those parts of H.B.

68 that prohibit surgical procedures” (Appellants’ Brief at 1) and have never claimed any

harm in relation to H.B. 68’s sports or custody provisions.

{¶ 123} Because our resolution of appellants’ second and fourth assignments of error

accomplishes the requested relief for appellants’ stated harm—a declaration that R.C.

3129.02(A)(2) is unconstitutional—appellants’ first assignment of error is moot under

App.R. 12(A)(1)(c).

{¶ 124} We likewise find appellants’ third assignment of error—arguing that R.C.

3129.02(A) unconstitutionally interferes with the minor appellants’ right to equal

protection, in violation of Article I, Section 2 of the Ohio Constitution—is rendered moot by

our resolution of appellants’ second and fourth assignments of error.

IV. CONCLUSION

{¶ 125} Having sustained appellants’ second and fourth assignments of error,

rendering moot appellants’ first and third assignments of error, we reverse the August 6,

2024 judgment of the trial court and declare H.B. 68 unconstitutional on its face. We

therefore remand this case to the trial court to impose a permanent injunction as to

enforcement of H.B. 68’s provisions banning the use of puberty blockers and hormones “for

the purpose of assisting the minor individual with gender transition.”

Judgment reversed; cause remanded;

motion for injunction pending appeal dismissed as moot.

MENTEL, P.J., concurs.

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