Republican Anti-Obamacare "Healthcare freedom" Amendment Ohio May Help Overturn Trans Ban

In a new lawsuit filed by the ACLU, attorneys argue that a constitutional amendment promoted by Republicans in 2011 against the Affordable Care Act may actually overturn a trans healthcare ban.

Public Domain, Carol M. Highsmith's America, Library of Congress, Prints and Photographs Division.

A new lawsuit filed by the ACLU of Ohio alleges that the ban on gender-affirming care, passed into law earlier this year, violates multiple provisions of the Ohio state Constitution. This action comes in the wake of a decision by the 6th Circuit Court of Appeals, under which Ohio falls, that dismissed federal constitutional concerns regarding bans on gender-affirming care for transgender youth. This latest legal challenge, however, focuses on the Ohio state Constitution and is filed in an Ohio Court of Common Pleas. According to the recently released filing, attorneys argue that a state constitutional amendment, passed by Republicans in 2011 to prevent the implementation of the Affordable Care Act (Obamacare), may, in fact, make the ban on gender-affirming care for transgender youth unconstitutional.

In 2011, Republicans in Ohio voiced concerns that the Affordable Care Act would limit healthcare choices. Misinformation about "death panels" became widespread nationally. At the same time, there was controversy over whether individuals could retain their doctors under the new federal healthcare program. In reaction, Ohio Republicans and the local Tea Party, a then-active anti-Obamacare movement within the Republican Party, advocated for a constitutional amendment to prohibit penalties related to the purchase of healthcare or health insurance. The amendment was approved by popular vote and took effect shortly thereafter.

The amendment reads as follows:

(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.

Now, in the latest lawsuit filed by the ACLU, attorneys argue that the new gender affirming care ban for transgender youth set to go into effect on April 24th violates these constitutional protections in the state. In the lawsuit, attorneys argue that “gender-affirming care, including the prescription of puberty-delaying medication and/or hormone therapy to minor patients where appropriate in the judgment of a physician, is ‘health care’ within the meaning of Article I, Section 21.” They argue that the law imposes penalties and prohibits the purchase of health care, rendering it unconstitutional.

Attorneys cite major medical organizations and healthcare guidance to argue that gender-affirming care constitutes healthcare. They note that all major medical organizations in the United States endorse gender-affirming care as medically necessary. These include the American Academy of Pediatrics, the Endocrine Society, and the World Professional Association for Transgender Health, among others. Additionally, the federal Department of Health and Human Services has issued several memos defining gender-affirming care as healthcare. Should a judge concur, they could rule that prohibiting gender-affirming care for transgender youth and penalizing doctors violates the constitutional amendment against "imposing a penalty or fine" for the "sale or purchase of health care."

This is not the first instance where Republican legislation could lead to overturning a ban on transgender care in a state. In Montana in 2023, Republicans enacted a "right to try" act, aimed at ensuring access to unproven COVID-19 treatments such as ivermectin and hydroxychloroquine as well as any other experimental or non-approved treatment. A Montana judge, in a 2023 ruling, found that specifically banning gender-affirming care on the baseless assertion that it is "experimental," while simultaneously permitting experimental COVID-19 treatments, was overtly discriminatory. For this and additional reasons, the state court judge decided that the ban on gender-affirming care in Montana should be blocked as likely unconstitutional.

The ACLU lawsuit in Ohio claims several violations of the Ohio Constitution. It argues that the bill infringes upon the "single subject rule," which mandates that no bill in Ohio should encompass more than one subject. This rule exists to prevent "logrolling" of unrelated issues, ensuring that each matter can be debated individually. Within the state legislative debate over the bill, many Republicans sidestepped discussion of the gender-affirming care ban, focusing instead on the sports-related portion of the bill. At times, the debate seemed disjointed, as if Republicans were addressing two separate pieces of legislation. The intent behind single subject rules is to avoid such scenarios. Given that the Ohio trans ban includes provisions on transgender participation in sports, which bears little relevance to the legal status of transgender healthcare, the ACLU contends that the ban contravenes the Constitution. The ACLU also alleges due process and equal protection violations.

The state lawsuit follows mixed outcomes in federal courts regarding bans on gender-affirming care. While federal courts in the 8th and 9th Circuits have blocked these bans, they have been permitted to take effect in several states within the jurisdictions of the 6th, 7th, and 11th Circuit Courts. This situation complicates federal challenges for attorneys in Ohio, as Ohio falls under the jurisdiction of the 6th Circuit, which has allowed such bans to be implemented.

It is unknown when the judge will rule on the lawsuit, but the filing asks for a quick resolution given that the gender affirming care ban is set to go into effect on April 24th of this year. Attorneys ask for a temporary restraining order and/or a preliminary injunction barring the state AG from enforcing the legislation as well as the state medical board from imposing penalties on doctors providing gender affirming care.