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Judge puts short-term pause on HB 68 in Ohio prior to effective date

The Ohio House votes to override HB 68 in January 2024.
Sarah Donaldson
Statehouse News Bureau
The Ohio House votes to override HB 68 in January 2024.

A judge in Franklin County put a short-term pause Tuesday on House Bill 68, a statewide ban on gender-affirming care for trans minors that would have taken effect in less than two weeks, according to court documents.

Attorneys with the American Civil Liberties Union (ACLU) of Ohio and Ohio Attorney General’s Office laid out their cases for and against a temporary restraining order Friday morning in the Franklin County Court of Common Pleas in front of Judge Michael Holbrook—who has set bond in the case at $50,000, according to court documents.

Holbrook wrote in his 15-page ruling that he found the plaintiffs' arguments “more persuasive.”

“Beyond the legal framework addressing the threat to plaintiffs' constitutional rights ... there is little doubt as to the irreparable nature of the actual physical injury to plaintiffs,” he wrote. “There is certainly a point where the changes to the body as a result of the progression of puberty cannot be reversed.”

Filed by the ACLU in March, the original lawsuit seeks to block HB 68 from going into effect on schedule and at all. It is on behalf of two 12-year-old transgender Ohio girls and their families, one from Hamilton County and one from Franklin County, and argues they would lose “critical, medically necessary health care” under HB 68.

The legislation in question blocks trans minors from access to gender-affirming care and from participating in girls’ athletics. HB 68 also bars physicians from prescribing hormones and puberty blockers to minors and creates penalties for those who do. The bill also mandates that K-12 and collegiate teams in Ohio be “single-sex” and enables athletes to bring forth civil lawsuits against any institution that violates that mandate.

But ACLU of Ohio Legal Director Freda Levenson argued Friday that without immediate enjoinment of the soon-to-be law, transition treatments will pause statewide—including for the two girls in the suit, whose identities have been concealed.

“The sad truth is that the plaintiffs will also suffer immediate, very palpable harms,” she said in court Friday.

In a statement following the ruling, Levenson said she was “thrilled and relieved” by the win, but that the legal battle will go on.

Attorney General Dave Yost, in a statement, said he's confident the final ruling will be in the state's favor.

“This is just the first page of the book. We will fight vigorously to defend this properly enacted statute, which protects our children from irrevocable adult decisions,” he wrote.

Erik Clark, with Yost’s office, on Friday questioned the rush. Clark said the court proceedings should play out normally so the state can make its full case for why the new law is necessary.

“We believe that people of goodwill have differing views on how to handle this difficult situation,” Clark said in court Friday. “We believe parents, doctors, children, youth coaches can disagree, and they can disagree in goodwill.”

More broadly, the ACLU of Ohio is arguing that HB 68 goes against the Ohio Constitution by breaking a single-subject rule for legislation and discriminating against trans minors, among other claims. Last June, two individual proposals become one when the Ohio House folded House Bill 6, the single-sex athletics requirement, into HB 68.

“The legislature made no effort even to pretend there was one subject,” Levenson said. “It didn't even bother to come up with a unified title.”

But Clark argued the bill, in its entirety, addresses trans youth issues. Holbrook didn't buy that.

“The very title of the Act references two subjects,” he wrote.

The ACLU has also cited the recently-ratified Issue 1, which codified abortion rights in the state constitution, as something that extends to the potential protection of gender-affirming care.

Clark said doctors don't have the power to wholly self-regulate, under the Health Care Freedom Act or other laws. “In one medical situation, maybe you'll get steroids, in a different situation it may not be okay. Who makes these rules? The legislature, just as they always have,” Clark said.

HB 68 would have taken effect next Wednesday, but this order blocks it for at least two weeks, until Holbrook decides on a preliminary injunction—a more permanent pause as court proceedings play out.

Sarah Donaldson covers government, policy, politics and elections for the Ohio Public Radio and Television Statehouse News Bureau. Contact her at sdonaldson@statehousenews.org.