Andrea Kennat

What to know about attacks on trans rights in Ohio

On January 5, 2024, Ohio Governor Mike Dewine signed an executive order to ban gender-affirming surgery for minors in the state of Ohio. Executive Order 2024-01-D adopts Ohio Administrative Code (OAC) rules Sections 3701-59-06 and 3701-83-60 to outlaw gender-affirming surgery for adolescents under 18 years of age.

However, in addition to this executive order, DeWine proposed rules that, as of February 7, 2024, have not been officially approved and gone into effect. These proposed rules would strictly regulate gender-affirming healthcare, to the point where it is unlikely that any Ohioan would be able to receive this treatment if they have not already begun. The proposal includes: Patients must receive approval from a psychiatrist, an endocrinologist, and a bioethicist — bioethicists are now not required; be 21 — now 18 — years of age or older; and receive at least six months of counseling before beginning to medically transition.

On February 7, the Ohio Department of Health issued revised proposals in which the age was lowered from 21 to 18 years of age for gender affirming care, and erased the requirement of a medical ethicist.

Dewine did not respond to requests for comments on his decisions.

February 28, 2023

State Representative Gary Click (R-Vickery) introduced House Bill 68 (HB 68). HB 68 would ban gender-affirming care for minors — including puberty blockers and hormone replacement therapy — and ban transgender girls from playing in girls’ sports in the state of Ohio.

June 21, 2023

The Ohio House passed HB 68 along party lines.

December 12, 2023

The Ohio Senate passed HB 68 along party lines. 

December 29, 2023

Governor Mike DeWine received the bill six days later and vetoed it in the 10-day limit.

DeWine wrote after the veto, “Parents are making decisions about the most precious thing in their life, their child, and none of us should underestimate the gravity and difficulty of those decisions.” He then went on to describe his ideas for proposed rules regarding gender-affirming healthcare.

January 5, 2024

A week later, DeWine signed the Executive Order 2024-01-D, banning gender-affirming surgeries for minors in the state of Ohio, effective immediately. 

January 10, 2024

The Ohio House overrode Dewine’s veto. 

January 24, 2024

The Ohio Senate voted the bill into law. 

April 24, 2024

HB 68 goes into effect on April 24, 2024.

House Bill 68

HB 68 begins by announcing that parents have the ultimate indisputable right in making decisions for their children, except when it comes to that child’s gender. In this case, parents are not allowed to “refer to and raise their child” in a way that affirms a child’s non-cisgender identity (Section 1).

Under HB 68, any and all forms of gender-affirming medical care would be outlawed for minors. There is an exception for children and adolescents who have already begun to transition. If a minor has begun to transition and forcible detransition would cause them harm, the minor may continue their treatment of puberty blockers or hormone replacement therapy. It is unclear whether a minor who is on puberty blockers may begin hormone replacement therapy

There is an exception for minors who are intersex.

HB 68 bans transgender girls and women from playing in girls’ and women’s sports. There is no restriction on transgender players on co-ed or mixed-gender sports teams. 

As of 2023, there are only six openly trans girls who play sports in Ohio. This is a tiny subpopulation of Ohio, yet will be greatly affected by this bill.

State Representative Demetriou for the Kent area voted for HB 68, and State Senator Sykes voted against it.

DeWine’s Veto

DeWine began his veto message by saying that HB 68 is “not in the best interest of Ohioans.” He wrote that after speaking with families who have had children medically transition, he believes that vetoing the bill “is about protecting human life.”

Ken Ditlevson, the director of Kent State University’s LGBTQ+ Center, said that this veto was a surprise. The fact that DeWine spent a lot of time meeting with families of young transgender people was a sign of a good leader. Ditlevson said, “It was an amazing approach…for leaders.”

However, DeWine agreed with multiple provisions of HB 68, including banning gender-affirming surgery for minors, and said his administration will create supplemental rules to the Ohio Administrative Code.

Next, the governor wrote that as there is not much comprehensive data surrounding transgender people, he would direct organizations to draft rules to require “relevant agencies” to report all transgender people seeking healthcare to medically transition — regardless of age — to the General Assembly and to the public. This idea poses a risk to trans Ohioans, no matter how much effort goes into anonymizing the information. It may be easy to find out who is seeking such care in many small counties. 

The last of DeWine’s veto message describes restricting “pop-up clinics” from providing gender-affirming care for minors and adults. 

DeWine’s Executive Order

On January 5, 2024, DeWine signed Executive Order 2024-01-D, meant to go into effect immediately. The order  says the governor invokes his right to create, sign and enforce executive orders. He then mandated the Ohio Administrative Code be updated immediately to prohibit performing, or referring resources to, gender-affirming surgeries for minors.

Unlike HB 68, the executive order goes into effect immediately. As of January 5, gender-affirming surgeries for minors are banned, but not all gender-affirming care.

Much of the content of these updates are definitions of key terms, like “gender transition,” and all the types of medical facilities that now cannot perform gender-affirming surgeries for minors. The executive order itself only explicitly bans gender-affirming surgeries for minors in Ohio — it does not include any of the proposals outlined in DeWine’s veto message.

DeWine’s Proposed Rules

As of February 7, 2024, the proposed rules are not law, and are not legally-binding for anyone. These are neither legislation nor an executive order. These are merely suggestions for future law.

The proposal begins with defining terminology throughout the document. Next, it says that a healthcare provider may only diagnose and treat gender dysphoria — except for surgery as part of the treatment — after meeting the requirements of: approval from a board-certified psychiatrist, agreement from a board-certified endocrinologist, a treatment plan approved by a “medical ethicist,” informed consent, and a detailed de-transition plan.

As of the February 7 edits, a medical ethicist is no longer required to consult transgender patients who want to medically transition.

The suggested rules would make it difficult for clinics and hospitals to be able to legally provide gender-affirming care. These rules would create more hoops for trans people to jump through just to begin receiving care.

Additionally, anyone under the age of 18 — as of the February 7 revisions — is prohibited from beginning to medically transition, unless the individual undergoes at least six months of counseling and significant mental health evaluation.

The proposal reiterates the prohibition of gender-affirming surgeries for minors in the state of Ohio. This forbides “direct and indirect” referrals — healthcare workers cannot tell minors where they can obtain gender-affirming care.

Healthcare facilities that provide gender-affirming services to minors would be mandated to annually report to the state their compliance to these rules.

The same exceptions for intersex individuals and those who need gender-affirming care for other medical reasons still apply in DeWine’s proposal. Additionally, adults and minors under 18 years-old are still permitted to continue their transitions, so long as they began their transition before these rules go into effect.

Reactions

According to Ditlevson, Kent State’s LGBTQ+ Center has been asked many questions in all the confusion of HB 68, the veto, DeWine’s executive order and the proposed rules. However, these rules will not stop the Center from continuing to exist and being a place of support for the LGBTQ+ community. “Our center will continue to be here as a resource for students, faculty, staff and community members . . .  we will continue to offer resources,” Ditlevson said.

He further emphasized the importance of community for LGBTQ+ Ohioans amid all the uncertainty of rapidly changing legislation. “Right now, [it is] extremely difficult when people’s identities and personal beings are being attacked, and it’s not a great place to be, so we need to stand together. It’s really important that folks that are part of the LGBTQ+ community and allies stand together, because we are much stronger together when we’re able to stand in unison against hateful bills.”

He concluded, “we see you, and we hear you, and we stand in solidarity with you.”