Ohio may continue to enforce a law protecting minors from gender transition hormones while the state appeals an adverse ruling. The Ohio Supreme Court on Tuesday granted the state an emergency stay (legal jargon for “pause”), which the state sought in conjunction with its April 3 appeal.

On March 18, a three-judge panel of Ohio’s Tenth District Court of Appeals ruled (in Moe v. Yost) that the state’s Save Adolescents from Experimentation (SAFE) Act was “unconstitutional on its face,” based on an overly broad conception of parental rights. The panel remanded the lawsuit back to the county trial court, where they instructed Judge Michael Holbrook to issue a permanent injunction against the law.

Ohio Attorney General Dave Yost (R) on March 25 asked the appellate court to stay its ruling while his office appealed, “so there is no confusion as the case heads to the Ohio Supreme Court,” he said. “This fight is far from over — and until it is, there’s no sense in toggling the law on and off like a light switch.”

However, the full Tenth Circuit rejected the request for a stay on April 3, and Yost filed a notice of appeal with the Supreme Court on the same day.

In his request for a stay, Yost emphasized an unusual procedural disagreement. “The parties disagree on the trial court’s power to act, so this Court should act now to resolve any uncertainty,” he urged. The state argued that “the trial court in this case will have no jurisdiction to enter any injunction once the state files its notice of appeal” (cleaned up). “The appeals court did not purport to enter its own injunction, as it merely instructed the trial court to do so on remand. … Thus, since the trial court cannot do so now, the law remains in effect, because the trial court had ruled in the State’s favor last year.”

On the other hand, the ACLU, which brought the legal challenge, “have said that the trial court may act to impose an injunction, even with an appeal pending here,” Yost summarized. “We’re waiting for the trial court judge to actually enter the injunction that would remove the unconstitutional impediment of HB 68,” ACLU of Ohio legal director Freda Levenson told WOSU, a local NPR affiliate. “The judge has been under order to do that for over two weeks now, but he still hasn’t acted.”

Perhaps the judge had a different understanding of the law. “The trial court will need guidance,” Yost suggested, “so to avoid any confusion on a matter of such great importance, the State urges the Court to grant a confirmatory stay to give clarity to parties and non-parties alike — as well as to settle ongoing confusion about the important question of how appeals and stays work under Ohio appellate procedure.”

In addition to this procedural clarification, the attorney general’s office made three other arguments, with only a brief discussion of the merits of the law. First, a stay would provide the least amount of confusion. “The appeals court sensibly declined to impose an injunction pending appeal last year, so it makes sense to stay the course until the case is over,” they argued. “Changing that status quo now, especially when the change might turn out to be temporary, benefits no one.”

Second, they argued that the Supreme Court would likely hear their appeal, no matter the outcome, because both sides “agree that this is an issue of exceptional importance to the people of this State.”

Finally, the state argued that they would likely prevail on the merits of the law, because “the Ohio Constitution does not, under the Health Care Freedom Amendment or the Due Course of Law Clause, create a constitutional right to use chemicals on children to transition their sex or gender.” The state offered only a brief discussion of the merits because it would argue the case at length in future filings.

In a brief order, the Ohio Supreme Court granted the emergency stay, allowing the law to go into effect while the appeal proceeds. The court delivered this order without elaboration, meaning it is impossible to know whether they were persuaded by the variety of procedural arguments or whether they even considered the merits of the case itself.

Even for this bare-bones order, the state supreme court was divided by a surprisingly close 4-3 margin. Members of the Ohio Supreme Court are chosen in partisan elections, and Republicans currently hold a 6-1 majority. However, Chief Justice Sharon Kennedy (R) and Justice Pat Fischer (R) joined Justice Jennifer Brunner (D) in opposing the court’s decision to grant a stay.

Despite the GOP’s dominance in the state, Ohio has a trend of Republican officials being taken in by parental rights-based arguments against the SAFE Act. In 2023, Governor Mike DeWine (R) vetoed the SAFE Act after Christmas, citing parental rights as his rationale. Within weeks, however, the Ohio legislature overrode the veto by overwhelming margins.

This means that the outcome of Ohio’s ultimate appeal remains in doubt. The Tenth District’s adverse ruling was likely a foregone conclusion, given the predominantly Democratic composition of that court, which represents one of Ohio’s few progressive bastions. But the fact that the Ohio Supreme Court is predominantly Republican does not guarantee that it will recognize the need to protect children and the irrelevance of the parental rights gambit.

At least for now, however, the Ohio Supreme Court has left the SAFE Act in place. And “that means,” said Yost, “the SAFE Act protecting minors from irreversible sex-change treatments remains the law of Ohio.”