Supreme Court Limits Scope of Injunction Against Idaho's Gender-Affirming Treatment Ban

In Labrador v. Poe, (Sup. Ct., April 15, 2024), the U.S. Supreme Court, in a case generating three separate opinions, but no opinion for the court, discussed three important issues-- the increasing number of cases on the Court's Emergency Docket (sometimes called its "Shadow Docket"); the increasing number of statewide or nationwide injunctions (sometimes called "Universal Injunctions") issued by federal district courts; and the constitutionality of bans on gender-affirming health care for minors. Last December, an Idaho federal district court issued a preliminary injunction barring the Idaho Attorney General and a county prosecutor from enforcing the state's recently enacted Vulnerable Child Protections Act against anyone. It concluded that the ban likely violated the equal protection clause and plaintiffs' parental rights to make medical decisions for their children. (See prior posting.) One reason given by the district court for issuing a statewide injunction was that plaintiffs, to maintain their privacy, were proceeding using pseudonyms, and it would be difficult to fashion an order applying only to plaintiffs without compromising their anonymity. The 9th Circuit issued a brief order affirming the district court.

In the petition filed with the Supreme Court, the state did not contest the granting of an injunction limited to the plaintiffs' obtaining gender-affirming drug treatments for their children. It only challenged the breadth of the district court's preliminary injunction. The Supreme Court, without issuing an opinion for the majority, stayed the district court's order "except as to the provision to the plaintiffs of the treatments they sought."   Justice Gorsuch, joined by Justices Thomas and Alito, issued a concurring opinion, saying in part:

The district court issued this sweeping relief even though, by its own admission, the plaintiffs had failed to “engage” with other provisions of Idaho’s law that don’t presently affect them—including the law’s provisions prohibiting the surgical removal of children’s genitals.... In choosing such an extraordinary remedy, the district court clearly strayed from equity’s traditional bounds.

Justice Kavanaugh, joined by Justice Barrett, filed a concurring opinion, saying in part:

Traditionally, one important factor when this Court decides an emergency application involving a new law is likelihood of success on the merits.  The likelihood of success on the merits factor can pose difficulty, however, because it can require the Court to assess the merits of important cases earlier and more quickly than is ordinarily preferable, and to do so without the benefit of full merits briefing and oral argument.  But when resolving emergency applications involving significant new laws, this Court often cannot avoid that difficulty. It is not ideal, but it is reality. Given that reality, the Court must then determine the best processes for analyzing likelihood of success on the merits in emergency cases.

Justice Jackson, joined by Justice Sotomayor, filed a dissenting opinion, saying in part:

This case presents numerous reasons for exercising restraint.  As explained in Part I below, the State of Idaho’s emergency application asks us to override the decisions of two lower courts based on an issue not clearly implicated and under circumstances where the State does not contest that its law should remain enjoined as likely unconstitutional, at least as applied to the plaintiffs.  As described in Part II, even if today’s application actually involved a “universal injunction,” the emergency docket would not be the place to address the open and challenging questions that that issue raises.

Justice Kagan dissented, without opinion. Chief Justice Roberts did not indicate how he voted.

SCOTUSblog reports at greater length on the opinions.

Vatican Releases Declaration on Human Dignity

 On April 8, the Vatican's Dicastery for the Doctrine of the Faith published a Declaration on Human Dignity, “Dignitas Infinita" (full text).  An introduction to the Declaration by the Prefect of the Dicastery says in part:

The five-year course of the text’s preparation helps us to understand that the document before us reflects the gravity and centrality of the theme of dignity in Christian thought. The text required a considerable process of maturation to arrive at the final version that we have published today.

In its initial three sections, the Declaration recalls fundamental principles and theoretical premises, with the goal of offering important clarifications that can help avoid frequent confusion that surrounds the use of the term “dignity.” The fourth section presents some current and problematic situations in which the immense and inalienable dignity due to every human being is not sufficiently recognized. The Church sees the condemnation of these grave and current violations of human dignity as a necessary measure, for she sustains the deep conviction that we cannot separate faith from the defense of human dignity, evangelization from the promotion of a dignified life, and spirituality from a commitment to the dignity of every human being.

The items described at length in the fourth section as "grave violations of human dignity" are the drama of poverty, war, travail of migrants, human trafficking, sexual abuse, violence against women, abortion, surrogacy, euthanasia and assisted suicide, marginalization of people with disabilities, gender theory, sex change and digital violence. The document's discussion of gender identity has perhaps created the most controversy. The Document says in part:

It needs to be emphasized that ‘biological sex and the socio-cultural role of sex (gender) can be distinguished but not separated.’” Therefore, all attempts to obscure reference to the ineliminable sexual difference between man and woman are to be rejected: “We cannot separate the masculine and the feminine from God’s work of creation, which is prior to all our decisions and experiences, and where biological elements exist which are impossible to ignore.” Only by acknowledging and accepting this difference in reciprocity can each person fully discover themselves, their dignity, and their identity....

It follows that any sex-change intervention, as a rule, risks threatening the unique dignity the person has received from the moment of conception. This is not to exclude the possibility that a person with genital abnormalities that are already evident at birth or that develop later may choose to receive the assistance of healthcare professionals to resolve these abnormalities. However, in this case, such a medical procedure would not constitute a sex change in the sense intended here.

Asked at a Press Gaggle (full text) about President Biden's reaction to the Declaration, the White House Press Secretary said that it was not the President's role "to litigate internal church policy," but that the President has been clear that it is important to have protections for the transgender community and the broader LGBTQ+ community. 

Vox reports at greater length on the Vatican document.

Florida Appellate Court Disqualifies Trial Judge from Hearing Custody Case Involving Transgender Child

 In H.S., v. Department of Children and Families, (FL App., April 3, 2024), a Florida appellate court in a 2-1 decision ordered a trial judge to recuse herself from hearing a case in which a father is challenging the Florida Department of Children and Families' removal of a child from the father's custody. DCF contends that the father, who is a Christian minister and youth pastor, is abusive toward the child because he does not support the child's gender transition. The appeals court concluded that:

Here, the father's fear that he cannot receive a fair and impartial hearing before the trial judge is well-grounded and objectively reasonable....

To an objectively reasonable person, the trial judge's pre-hearing remarks were antagonistic to the father and his right to direct the child's upbringing and moral or religious training. Those remarks when taken together—referring to the child by female pseudonyms, telling the child that "you are one smart, strong[,] [t]ogether, young lady," and to "[c]hin up, sister"—implied a foregone conclusion, before hearing the father's motion, that the trial judge was supportive of the child's gender transition before adulthood and opposed to the father's reliance upon his moral or religious beliefs to otherwise direct the child's upbringing.

Furthermore, the trial judge's in-camera interaction with the child went beyond mere attempts to establish a rapport with the child.,,, [T]he trial judge verbally expressed an inclination—again, before hearing the father's motion—to order the father to submit to "professional help," "counseling," or "guidance" from DCF in an effort to change his moral or religious beliefs.

Judge May dissented, saying in part:

Here, the trial judge's attempt to speak with a child in a manner that put the child at ease does not demonstrate the judge's predisposition of the pending issue. In fact, trial judges often take special care to speak with children to ensure they are comfortable in court proceedings; the decision to do so is within a trial judge's discretion.

Volokh Conspiracy has more on the case.

Australian State Enacts Elaborate Conversion Therapy Baan

In the Australian state of New South Wales, with assent by the Governor on April 3, the Conversion Practices Ban Bill 2024 became law, effective in April 2025. The new law bans treatments or efforts to change or suppress a person's sexual orientation or gender identity where the treatment or efforts cause substantial mental or physical harm or endanger an individual's life. Violations may be punished with up to 5 years in prison. The law however includes a number of specific examples of both gender-affirming treatment and religious expression that are not prohibited. It provides in part:

A conversion practice does not include— (a) a health service or treatment provided by a registered health practitioner that— (i)  the registered health practitioner has assessed as clinically appropriate ... and (ii) complies with all relevant legal, professional and ethical requirements,

Examples ... [are]  • genuinely assisting an individual who is exploring the individual’s sexual orientation or gender identity or considering or undergoing a gender transition • genuinely assisting an individual who is receiving care and treatment related to the individual’s gender identity • genuinely advising an individual about the potential impacts of gender affirming medical treatment.

(b) genuinely facilitating an individual’s coping skills, development or identity exploration to meet the individual’s needs, including by providing acceptance, support or understanding to the individual, or

(c) the following expressions if the expression is not part of a practice, treatment or sustained effort, directed to changing or suppressing an individual’s sexual orientation or gender identity— (i) an expression, including in prayer, of a belief or principle, including a religious belief or principle, (ii) an expression that a belief or principle ought to be followed or applied.

(4) To avoid doubt, the following are examples of what does not constitute a conversion practice under this section— (a) stating what relevant religious teachings are or what a religion says about a specific topic, (b)  general requirements in relation to religious orders or membership or leadership of a religious community, (c) general rules in educational institutions, (d)  parents discussing matters relating to sexual orientation, gender identity, sexual activity or religion with their children.

The law also sets out an elaborate civil complaint structure. Unlike most statutes passed by U.S. jurisdictions, the Australian law appears to apply to adults as well as to minors. Law & Religion Australia reports on the new law.

Appeals Court Upholds Preliminary Injunctions Against Texas Treating Gender-Affirming Care as Child Abuse

In Abbott v. Doe, (TX App., March 29, 2024), a Texas state appellate court upheld a trial court's preliminary injunction against the state's Department of Family and Protective Services and its Commissioner. The preliminary injunction barred these defendants from taking investigative or enforcement action based on the state Attorney General's Opinion, the Governor's letter and Statement by the Department implementing it that deemed many of the procedures used to treat gender dysphoria to be child abuse. (See prior posting.) The court, concluding that the trial court had not abused its discretion in entering the injunction, said in part:

The injuries Appellees allege, and that the injunction redresses, are that the application or threatened application of the allegedly invalid rule announced in the Department Statement interferes with or impairs the Doe Parents’ right to make imminent decisions about their child’s medical care, Mary’s guarantee of equal rights and equality under law, and Appellees’ rights to due process because the rule is unconstitutionally vague.  See Tex. Const. art. I, §§ 3, 3a, 19....

The temporary injunction specifically precludes the Department from taking action against Appellees based on the rule announced in the Department Statement, which references the Governor’s Directive and the Attorney General’s opinion....  The temporary injunction remedies Appellees’ injuries because it temporarily reinstates Department policies and procedures for screening reports and conducting investigations as they existed prior to February 22, 2022....  At that time, the Department would have applied the same policies and standards to a report concerning gender-affirming medical care as to any other case of suspected child abuse....  Before February 22, 2022, the Department had no rule that categorically deemed the provision of gender-affirming medical care presumptively abusive or required investigation and a disposition for every report of gender-affirming medical care without regard to medical necessity....

In Muth v. Voe, (TX App, March 29, 2024), a second case upholding two temporary injunctions issued by a different state trial court, the appellate court said in part:

We hold that at a minimum the Families have established a probable right to relief on their claim that the Department Statement is an invalid rule because it is a rule within the meaning of the APA and it was adopted without following proper rulemaking procedures.  This claim is sufficient to support the trial court’s temporary injunctions.

Reuters reports on the decision.

White House Statements Trigger Partisan Religious Controversy

The confluence this year of the dates for Easter and for the international Transgender Day of Visibility has resulted in an unusual religious controversy.  President Biden issued a Proclamation (full text) designating today as Transgender Day of Visibility, saying in part:

Transgender Americans are part of the fabric of our Nation.  Whether serving their communities or in the military, raising families or running businesses, they help America thrive.  They deserve, and are entitled to, the same rights and freedoms as every other American, including the most fundamental freedom to be their true selves.  But extremists are proposing hundreds of hateful laws that target and terrify transgender kids and their families — silencing teachers; banning books; and even threatening parents, doctors, and nurses with prison for helping parents get care for their children.  These bills attack our most basic American values,,,,

As reported by NBC News, this, along with the terms of a White House Easter Egg design contest for youths from National Guard families has sparked criticism from numerous Republican politicians. The flyer (full text) calling for youths to submit their Easter Egg designs includes in the lengthy instructions the following:

The Submission must not contain material that promotes bigotry, racism, hatred or harm against any group or individual or promotes discrimination based on race, gender, religion, nationality, disability, sexual orientation or age....

The Submission must not include any questionable content, religious symbols, overtly religious themes, or partisan political statements....

A statement yesterday (full text) from the Trump campaign called Biden's Proclamation "blasphemous" and said in part:

Sadly, these are just two more examples of the Biden Administration’s years-long assault on the Christian faith. We call on Joe Biden’s failing campaign and White House to issue an apology to the millions of Catholics and Christians across America who believe tomorrow is for one celebration only — the resurrection of Jesus Christ.

Certiorari Denied in Case of Anorexic Transgender Teen Placed Under State's Care

The U.S. Supreme Court today denied review in M.C. v. Indiana Department of Child Services, (Docket No. 23-450, certiorari denied, 3/18/2024) (Order List). In the case, an Indiana state appellate court upheld the removal to state custody of a 16-year-old transgender child who was suffering from anorexia. The teen's parents, because of their Christian religious beliefs, refused to accept their child's transgender identity. The appellate court also upheld an order barring the parents from discussing the child's transgender identity during visitation.  (See prior posting.)  USA Today reports on the Supreme Court's action.

Court Upholds Kansas Law Requiring Biological Sex at Birth on Driver's Licenses

 In State of Kansas ex rel. Kobach v. Harper, (KS Dist. Ct., March 11, 2024), a Kansas state trial court, in issuing a preliminary injunction, rejected challenges to a Kansas law that requires driver's licenses to reflect a person's "biological sex, either male or female, at birth." The court said in part:

The crux of Intervenors’ constitutional argument is that requiring KDOR to display a licensee’s sex at birth on a driver’s license and in the KDOR database violates Section 1 of the Kansas Constitution Bill of Rights. Section 1 says: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” ...

[The Kansas Supreme court decision in] Hodes said Kansans have the right to control their own bodies. It did not say Kansans have a fundamental state constitutional right to control what information is displayed on a state-issued driver’s license. And the Intervenors’ testimony at the hearing was that producing a driver’s license indicating a sex different than their expressed gender did not result in physical violence, verbal harassment, loss of employment, loss of benefits, refusal of service, or negative interaction with law enforcement. Rather, Intervenors testified about feeling embarrassed, humiliated, or unsafe if someone gave them a puzzled look, hesitated, or questioned their identity when looking at their driver’s license. They testified to the discomfort of airport security pat downs that are a universal feature of modern travel. K.S.A. 77-207 does not violate any right to personal autonomy under Section 1....

Finally, Intervenors assert that K.S.A. 77-207 deprives them of equal protection of the law .... The rules are the same for identifying each person who seeks a driver’s license. Similarly situated people are not treated differently under the statute, thus there is no equal protection violation.

AP reports on the decision.

Student Sues School Board Alleging Gender Affirming Policies Violate Her Rights

Suit was filed earlier this week in a Virgina state trial court by a high school student challenging Fairfax County School Board regulations (full text) that support transgender students.  The complaint (full text) in Doe v. Fairfax County School Board, (VA Cir. Ct., filed 3/4/2024), alleges in part:

... FCPS Regulation 2603.2 and its application unconstitutionally violates the Petitioner’s sincerely held philosophical and religious beliefs by compelling her to refer to “[s]tudents who identify as gender-expansive or transgender [] by their chosen name and pronoun ....  

... [They] further unconstitutionally violate the Petitioner’s philosophical and religious beliefs by compelling her to share a restroom with a biological male. 

... [They] unconstitutionally discriminate against the Petitioner on the basis of her sex by requiring her to use a private restroom to remain consistent with her beliefs while allowing a biological male to use the female restroom... [and by permitting] a biological male to feel safe and comfortable by having full access to any restroom of his choice while not allowing the Petitioner to feel safe and comfortable by using the restroom of her biological sex....

... FCPS has knowingly and blatantly violated the Petitioner’s rights by forcing her to accept the ideological viewpoint of the government and the claimed rights and privileges of other students. 

America First Legal issued a press release announcing its filing or the lawsuit. FFXNow reports on the lawsuit.

Christian Employers Protected from Requirement to Provide Insurance for Gender Transition Procedures

 In Christian Employers Alliance v. U.S. EEOC, (D ND, March 4, 2024), a North Dakota federal district court enjoined the Department of Health and Human Services from enforcing the Affordable Care Act, and the EEOC from enforcing Title  to require the Christian Employers Alliance or its present or future members to provide their employees insurance coverage for gender transition procedures. The court said in part:

... [I]f CEA had to comply with these mandates, its members would have to violate their sincerely held religious beliefs which is an impermissible exercise under the First Amendment and RFRA. ...

While protecting the right of transgender patients to access crucial healthcare and protecting workers from sex discrimination is certainly a compelling interest, the Defendants here have done nothing more than identify a broadly formulated interest in an attempt to justify the general applicability of the government mandates....  Even if the Court were to accept the Defendants’ purpose for the mandates as a compelling interest, the Defendants failed to provide any evidence showing this policy was the only feasible means to achieve its compelling interest....

Just The News reports on the decision.

LGBTQ+ Support Group Fights Texas AG's Demand for Information

Suit was filed this week in a Texas state trial court by PFLAG, a national support group for LGBTQ+ individuals and their families, seeking to set aside civil investigative demands from the Texas Attorney General's Office. PFLAG contends that the demands from the AG's Office indicate that the Attorney General is seeking to identify Texas families that are seeking gender-affirming care for their transgender adolescents. The investigative demands were issued under the Texas Deceptive Trade Practices Act.  The petition (full text) in PFLAG, Inc. v. Office of the Attorney General of the State of Texas, (TX Dist. Ct., filed 2/28/2024), alleges in part:

The goal of the OAG in serving these Demands is neither to enforce Texas law, nor to protect Texas consumers under the DTPA. These Demands are a clear and unmistakable overreach by the OAG in retaliation for PFLAG successfully standing up for its members, who include Texas transgender youth and their families, against the OAG’s, the Attorney General’s, and the State of Texas’s relentless campaign to persecute Texas trans youth and their loving parents. While that retaliation is itself a reason to set aside the Demands, PFLAG is entitled to a temporary restraining order and temporary and permanent injunctive relief because the Demands violate PFLAG and its members’ rights to freedom of petition, speech and assembly and to be free from unjustified searches and seizures, are contrary to the OAG’s authority under the DTPA, and impermissibly seek to evade the protections afforded to PFLAG as a civil litigant. 

In 2022, PFLAG successfully obtained temporary injunctive relief shielding its member families from the Texas Department of Family Protective Services’ (“DFPS”) operationalization of Governor Greg Abbott’s directive to investigate families of transgender youth who receive gender-affirming medical care for the treatment of gender dysphoria—a directive based on the Attorney General’s non-binding opinion claiming that necessary, evidence-based gender affirming medical treatment for transgender youth is per se “child abuse” under Texas law....  And in 2023, PFLAG successfully obtained a temporary injunction at the district court enjoining enforcement of Senate Bill 14 ... which seeks to prohibit the provision and state funding of gender-affirming medical care for the treatment of gender dysphoria of transgender adolescents.....

Through the OAG’s own actions, discovery has been stayed in both [cases].... But through these Demands, the OAG seeks to circumvent the normal discovery process along with its attendant protections, and in so doing, seeks to chill the ability of PFLAG and its members to exercise their free speech and associational rights and avail themselves of the courts when their constitutional rights are threatened.

ACLU issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

7th Circuit Reinstates Indiana Ban on Gender Affirming Care For Minors

In K.C. v. Individual Members of the Medical Licensing Board of Indiana, (7th Cir., Feb. 27, 2024), the U.S. 7th Circuit Court of Appeals stayed a preliminary injunction against Indiana's ban on non-surgical gender transition procedures for minors. The preliminary injunction was granted by an Indiana federal district court in June 2023 (full text of district court opinion). The 7th Circuit issued its Order lifting the injunction, saying that an opinion will follow. In a press release, the ACLU called the 7th Circuit's action "a heartbreaking development for thousands of transgender youth, their doctors, and their families." Indiana Attorney General Todd Rokita, in a post on X (formerly Twitter) said in part: "We are proud to win this fight against the radicals who continue pushing this horrific practice on our children for ideological and financial reasons." Indy Star reports on the case.

Court Upholds Maine's Law Barring LGBTQ Discrimination by Christian School Receiving State Funds

In Crosspoint Church v. Maikin, (D ME, Feb. 27, 2024), a Maine federal district court refused to enjoin application of the state's educational antidiscrimination laws against a private Christian school. In 2022, the U.S. Supreme Court struck down Maine's exclusion of sectarian schools from its tuition payment program to out-of-district schools when districts do not operate their own public high schools. (See prior posting.) While that litigation was in progress, Maine's legislature amended its civil right laws to now bar schools that receive public funds from discriminating on the basis of sexual orientation or gender identity. In rejecting the school's challenges, the court said in part:

The Court concludes that Crosspoint is not entitled to a preliminary injunction.  With this said, the Court acknowledges that Crosspoint is raising important legal questions.  Despite the plaintiffs’ hard-fought and significant victory at the United States Supreme Court in Carson, the Maine Legislature and the Maine Attorney General have largely deprived Crosspoint and similar religious schools of the fruit of their victory.  Crosspoint essentially argues that the Maine Legislature’s enactment of statutes that prohibit discrimination on the basis of sexual orientation and gender identity is a form of state-enforced, secular religion.  Yet, the Maine Legislature has the authority to define protected classes under its antidiscrimination laws.  The rub comes when the Maine Legislature’s view of the categories of people meriting protected status conflicts with sincerely held beliefs of members of religious communities.  This is a tension as old as the nation itself.  Although it has done its best to set out, analyze, and decide these difficult constitutional issues, the Court also recognizes that this case poses novel constitutional questions and has attempted to frame its opinion as a prelude to a challenge to the Court of Appeals for the First Circuit for a more authoritative ruling....

Wisconsin Legislature Passes Parental Bill of Rights; Governor Promises Veto

On Tuesday, the Wisconsin Senate gave final legislative passage to AB 510 (full text), known as the Parental Bill of Rights. The bill gives 16 different rights to parents and guardians of school children.  Among these are the right to determine a child's religion; the right to determine the names and pronouns used for the child at school; the right to notice when a controversial subject will be taught or discussed in the child's classroom; and the right to opt the child out of a class or instructional materials based on religion or personal conviction. The Wisconsin ACLU criticized the bill, saying in part:

This bill disguises classroom censorship as parental rights, enabling politicians to require the forced outing, misgendering, and deadnaming of trans and nonbinary students. It also inhibits educational instruction on race, gender, sexual orientation, and other important topics that impact all of us.

According to a report on the bill by The Center Square, Governor Tony Evers has said he will veto the bill.

Mother Sues School for Socially Transitioning Her Daughter

Suit was filed yesterday in a New York federal district court by the mother of a middle school student who contends that her free exercise and due process rights were violated when the school began to socially transition her daughter by using a masculine name and plural pronouns in referring to her without informing the mother of the school's action.  The complaint (full text) in Vitsaxaki v. Skaneateles Central School District, (ND NY, filed 1/31/2024), alleges in part:

233. Mrs. Vitsaxaki was raised in a Catholic household, but after marrying Mr. Vitsaxakis, joined the Greek Orthodox Church...

262. Mrs. Vitsaxaki’s free-exercise rights include the right to raise her children in accordance with her religious beliefs and the right to direct her children’s education and upbringing consistent with her religious beliefs, including on identity, sex, gender, and fundamental questions of existence like how her children should identify themselves.... 

263. By referring to Jane with a masculine name and incorrect pronouns without notifying Mrs. Vitsaxaki or seeking her consent and by concealing these actions from Mrs. Vitsaxaki, Defendants substantially burdened Mrs. Vitsaxaki’s ability to exercise her religion....

266. During the three-month (at a minimum) period that Defendants were concealing from Mrs. Vitsaxaki the actions taken to socially transition Jane, Mrs. Vitsaxaki was unable to exercise her religion by choosing to educate Jane in an environment that would not have undermined her religious beliefs.

ADF issued a press release announcing the filling of the lawsuit.

Florida Official Rules That Changing Gender Marker On Driver's License Constitutes Fraud

In a January 26 Memorandum (full text), the Executive Director of the Florida Highway Safety and Motor Vehicles Department has rescinded the rule allowing transgender individuals to change the gender marker on their driver's licenses.  He ruled that gender reflected on one's driver's license must reflect one's sex as "determined by innate and immutable biological and genetic characteristics." The Memorandum went on to say:

[M]isrepresenting one's gender, understood as sex, on a driver license constitutes fraud ... and subjects the offender to criminal and civil penalties, including cancellation, suspension, or revocation of his or her driver license....

Newsweek reports on these developments. 

Ohio Legislature Overrides Governor's Veto of Bill on Transgender Health Care and Sports Participation

The Ohio Senate yesterday voted 24-8 to override Governor Mike DeWine's veto of HB 68, the Saving Adolescents from Experimentation (SAFE) Act. The Ohio House of Representatives two weeks ago voted 65-28 to override. The bill, which will now become law, bars physicians from performing gender reassignment surgery or prescribing cross-sex hormones or puberty blockers to minors. It also prohibits transgender women from participating on women's athletic teams in schools that participate in interscholastic athletics and in public and private colleges. (See prior posting.) WCMH News reports on the Senate's vote and says that a court challenge to the legislation is expected.

Certiorari Denied In Transgender Bathroom Case

Yesterday, the U.S. Supreme Court denied review in Metropolitan School District v. A.C., (Docket No. 23-392, certiorari denied 1/16/2024) (Order List). In the case (A.C. v. Metropolitan School District, (7th Cir., Aug. 1, 2023)) the U.S. 7th Circuit Court of Appeals-- invoking Title IX and the Equal Protection Clause-- affirmed an injunction issued by an Indiana federal district court ordering a school to grant a transgender boy access to boys' rest rooms. ACLU issued a press release on the Supreme Court's action.

Ohio Adopting Administrative Rules on Gender Transition Treatments

 As previously reported, last month Ohio Governor Mike DeWine vetoed a bill which prohibited physicians from performing gender reassignment surgery or prescribing cross-sex hormones or puberty blockers to minors, and prohibited transgender women from participating on women's athletic teams in schools that participate in interscholastic athletics and in public and private colleges. However, in his veto message he urged the Ohio Department of Health to adopt rules to carry out part of what the vetoed legislation provided-- a ban on gender transition surgeries for minors and rules to prevent pop-up clinics for treating gender dysphoria. On January 5, the Department of Health published a draft of rules (full text) to carry out the Governor's proposal.  The Health Department's Release describes the rules:

The emergency rules filed today:

• Prohibit health care facilities, including ambulatory surgical facilities, and hospitals from performing gender surgeries on minors.

The draft rules proposed for public comment:

• Obligate the Department of Health to report deidentified data to the General Assembly and the public every six months.
• Set forth quality standards for those hospitals and ambulatory surgical facilities that wish to treat gender-related conditions.

On January 5, Governor DeWine signed an Executive Order (full text) allowing the Department of Health to adopt on an emergency basis without the usual comment procedures its proposed rules banning gender transition surgeries on minors and setting quality standards for facilities that treat gender dysphoria.  Under Ohio law, the emergency rules will be effective for 120 days. (It should be noted that there is a slight discrepancy in the rule numbers set out in the Health Department's Release and those set forth in the Governor's Executive Order.)

Ohio Governor Vetoes Ban on Gender Affirming Treatments for Minors and Women's Sports Provisions: Proposes Administrative Alternatives

 Ohio Governor Mike DeWine today vetoed HB 68 which prohibited physicians from performing gender reassignment surgery or prescribing cross-sex hormones or puberty blockers to minors, and prohibited transgender women from participating on women's athletic teams in schools that participate in interscholastic athletics and in public and private colleges. (Full text of Governor's Veto Message, his prepared Statement at a News Conference, and a video of his lengthy News Conference on the veto.) Focusing only on the ban on treatment of minors, the Governor said in part:

Were I to sign Substitute House Bill 68 or were Substitute House Bill 68 to become law, Ohio would be saying that the State, that the government, knows what is best medically for a child rather than the two people who love that child the most, the parents...

I have listened to the concerns the Legislature ... and agree that action is necessary regarding a number of issues raised.

I believe we can address a number of goals in Substitute House Bill 68 by administrative rules that will have a better chance of surviving judicial review and being adopted....

I adamantly agree with the General Assembly that no surgery of this kind should ever be performed on those under the age of 18. I am directing our agencies to draft rules to ban this practice in Ohio.

I share with the legislature their concerns that there is no comprehensive data regarding persons who receive this care, nor independent analysis of any such data. I am today directing our agencies to immediately draft rules to require reporting to the relevant agencies and to report this data to the General Assembly and the public every six months. We will do this not only when patients are minors, but also when the patients are adults.

I also share with the legislature’s concerns about clinics that may pop up and try to sell patients inadequate or even ideological treatments. This is a concern shared by people I spoke with who had both positive experiences and negative experiences with their own treatments....

Therefore, I am directing our agencies to draft rules that establish restrictions that prevent pop-up clinics or fly-by-night operations and provide important protections for Ohio children and their families and for adults.