COLUMBUS, Ohio — The Supreme Court of Ohio unanimously rejected a request by the state to narrow a temporary restraining order against Ohio's gender-affirming care ban for trans youth.
Wednesday's decision allows the case to continue in the Franklin County Court of Common Pleas, where a trial is scheduled for July 15.
"This decision was correct," Freda Levenson, ACLU of Ohio's legal director, said in a statement.
"The state's request was egregious. The scope of the temporary restraining order was necessary and appropriate to prevent the constitutional violations and other irreparable harm that would immediately occur if HB 68 were permitted to take effect. Our legal battle will continue until this cruel restriction is permanently overturned."
The ACLU of Ohio filed a lawsuit in the Franklin County Court of Common Pleas on March 26 against the portion of House Bill 68 that prohibits gender-affirming care for transgender youth. The lawsuit said HB 68 violates four sections of the Ohio Constitution — the single-subject rule, the Health Care provision, the Equal Protection Clause, and the Due Course of Law provision.
The lawsuit was filed on behalf of two families whose 12-year-old transgender daughters would lose access to gender-affirming health care.
Franklin County Court of Common Pleas Judge Michael Holbrook issued the temporary restraining order on all of HB 68 on April 16. In addition to preventing transgender youth from starting hormone therapy and puberty blockers, the bill also prevents trans athletes from playing middle and high school sports.
On April 22, Ohio Attorney General Dave Yost filed an emergency motion with the Ohio Supreme Court to try to stop the restraining order — arguing Holbrook "acted beyond the scope of his powers." He also said the injunction is illegal since it applies to all of Ohio, not just the two plaintiffs.
"The state's claim that this was an 'emergency' because it could not enforce an unconstitutional statute was utterly absurd," Harper Seldin, American Civil Liberties Union’s senior staff attorney, said in a statement.
"Far from creating an emergency, the challenged temporary injunction merely maintains the status quo in Ohio — that trans youth be permitted to access life-saving medical care with support from parents and doctors."
HB 68 was supposed to take effect April 24. Ohio Gov. Mike DeWine vetoed HB 68, but lawmakers voted to override his veto.
In two separate concurring opinions, Republican Ohio Supreme Court Justice Pat DeWine and Democratic Ohio Supreme Court Justice Jennifer Brunner took shots at one another.
"Although we deny the relief requested today, this case raises an important issue: Is it appropriate for one judge in a single county to issue a statewide injunction that goes beyond what is necessary to provide interim relief to the parties in the case," Justice DeWine questioned.
"The other concurring opinion in this case offers a full-throated defense of universal injunctions and fulminates against this court ever taking up the issue. Unlike the other concurring justice, I will reserve judgment until we are presented with a case that properly presents the issue and we have had the benefit of adversarial briefing. … This court should address the propriety of the issuance of universal injunctions for the purpose of granting interim relief in an appropriate case."
Justice DeWine was joined by Justices Patrick Fischer and Joseph Deters in his concurrence.
In her own concurrence, Justice Brunner took issue with Justice DeWine's citation of a recent U.S. Supreme Court ruling.
"A stay is not an injunction. The Ohio Constitution, unlike the federal Constitution, has a single-subject rule for legislation that results in multi-subject legislative acts being facially unconstitutional," Brunner wrote. "The very nature of a facial constitutional violation is that the offending law violates the Constitution in every circumstance."
Brunner wrote that if a law that is facially unconstitutional may not be applied to an individual, then it may not be applied to anyone else.
"Similarly, a temporary restraining order based on a substantial likelihood that a law is facially unconstitutional may not be limited to just the parties in the case. Moreover, when the court hearing such a challenge has jurisdiction over the state as a party-defendant, it has the power to enjoin the state from applying the law, regardless of the law’s subject matter."
Brunner then explained why she chose to write her own concurrence in the first place.
"My colleague's concurring opinion is more akin to a political statement than a legal one, which is why I have written this opinion," Brunner concluded.
Gender-affirming care is supported by every major medical organization in the United States. Children's hospitals across Ohio, the Ohio Children's Hospital Association, and the Ohio Academy of Family Physicians all opposed HB 68.
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