Ohio’s law (H.B. 68) to protect minors from gender transition procedures and insulate women’s sports may take effect, Franklin County Judge Michael J. Holbrook ruled Tuesday. In finding for the state on four separate issues, the judge wrote, “recourse for those who are dissatisfied with the General Assembly’s determinations must be exercised through their vote as opposed to the judicial system.”
The Save Adolescents From Experimentation (SAFE) Act has finally reached smooth waters after traversing particularly perilous rapids. The SAFE Act overwhelmingly passed both legislative chambers, was vetoed after Christmas by Republican Governor Mike DeWine, and was legislatively ratified again over the governor’s veto.
However, before the law was scheduled to take effect on April 24, the ACLU challenged it in Franklin County Court of Common Pleas, arguing that the law violated the Ohio Constitution on four separate counts, most of which had already been litigated in other contexts. (Franklin County contains Columbus, Ohio, the state capital.) The presiding judge issued a temporary restraining order to prevent the law from taking effect until he had reviewed its legal merits.
In a brief decision of only 13 pages, Judge Holbrook ruled in the state’s favor, even when he seemed reluctant to do so (for instance, by referring to the SAFE Act as “The Health Care Ban.”)
His seeming reluctance may be attributed to the fact that he is an elected Republican judge (although the general election is technically nonpartisan, the parties hold primaries) in a Democratic stronghold. In the 2020 election, Franklin County voted for Joe Biden by nearly a two-to-one margin (64.9% to 33.5%), while in 2022 Holbrook won re-election by only 281 votes out of 360,549 votes cast (50.0%).
The ACLU claimed the law violated the state constitution’s “single subject” requirement because it addressed both gender transition procedures and women’s sports.
However, the Ohio Supreme Court had ruled that “the mere fact that a bill embraces more than one topic is not fatal, as long as a common purpose or relationship exists between the topics.” Consequently, Ohio courts can only strike down a law under the single subject rule if they find “no discernable practical, rational or legitimate reason for combining the provisions in one Act.”
Last month, the Nebraska Supreme Court upheld a law combining regulation of gender transition procedures and abortion from a similar “single subject” challenge on the ground that the single subject was health care.
Holbrook’s ruling complied with the Ohio court’s interpretation. “At first glance, there appears to be a disunity of subject matter,” he wrote. “However, the law compels this Court to conclude that the Act contains a common purpose or relationship; namely, the General Assembly’s regulation of transgender individuals.”
“No matter how abhorrent that may be to some,” Holbrook added, “it is a ‘legitimate subject’ for purposes of the Single Subject Rule under the laws of the State of Ohio at this time. The recourse for those who object is not within the Court but is instead with their vote.”
The ACLU also claimed the law violated the state constitution’s Health Care Freedom Amendment, which prohibits laws that “impose a penalty or fine for the sale or purchase of health care.”
At first, Holbrook appeared to side with those challenging the law, factually, rhetorically, and legally. “The Health Care Ban imposes a penalty upon medical providers who provide gender transition services to minors. Gender transition services constitute ‘health care,’” he wrote.
But then he added, “Notwithstanding the forgoing, the Health Care Freedom Amendment unequivocally provides that its provisions do not affect laws calculated to punish wrongdoing in the health care industry. The State of Ohio has legislated that a medical provider’s provision of gender affirming care constitutes ‘wrongdoing.’”
Holbrook again redirected hostile readers’ anger towards the legislature. “Again, the remedy for those who object to the State of Ohio’s determination of wrongdoing cannot be found within the judicial system but is instead with their vote.”
The ACLU next raised their claim that the SAFE Act violated the Equal Protection Clause. The Ohio Constitution has an Equal Protection Clause which is “to be construed and analyzed identically” to the federal Equal Protection Clause found in the 14th Amendment.
Here, the judge observed the Sixth Circuit’s ruling in L.W. v. Skrmetti, which upheld similar laws in Tennessee and Kentucky. The Department of Justice appealed that ruling to the Supreme Court, and the justices have agreed to hear the case. In the meantime, the Sixth Circuit’s decision is binding precedent for the states in its jurisdiction: Tennessee, Kentucky, Ohio, and Michigan.
Applying the “rational basis” test per Skrmetti (the lowest standard of review), Holbrook found that “The State of Ohio has a legitimate government interest in protecting the health and safety of its citizens,” and the SAFE Act “is rationally related to this interest. It is limited to minors. Moreover, the medical care banned carries with it undeniable risk and permanent outcomes. Indeed, countries once confident in the administration of gender affirming care to minors are now reversing their position as a result of the significant inconsistencies in results and potential side effects of the care.”
Lastly, the ACLU challenged the SAFE Act under Ohio’s Due Course of Law Clause, which parallels the U.S. Constitution’s Due Process Clause as the non-textual locus of parental rights. Again following the Skrmetti decision, Holbrook applied the rational basis test, and the state’s law once again passed.
Having found in the state’s favor on all four counts, Holbrook vacated his temporary restraining order, allowing Ohio’s SAFE Act to take effect.
Joshua Arnold is a senior writer at The Washington Stand.
