Photo by Mercedes Mehling on Unsplash
Silver Flight, Associate Member, University of Cincinnati Law Review
Transgender youth are facing a wave of anti-transgender bills, including many that prohibit gender-affirming medical care. Ohio House Bill 454 is one of these, mandating that “[n]o physician or other medical health care professional shall provide gender transition procedures to any person under eighteen years of age” and “[a]ny provision of gender transition procedures to a person under eighteen years of age shall be considered unprofessional conduct and shall be subject to discipline by the licensing entity with jurisdiction over the physician, mental health provider, or other medical care professional.” The bill prohibits “puberty blocking drugs” and “cross-sex hormones” for minors whose gender identity differs from their sex assigned at birth, but explicitly allows the same procedures used on intersex individuals or those with “a disorder of sexual development.”
The bill states that the “state has a compelling government interest in protecting the health and safety of its citizens, especially vulnerable children,” that puberty blockers are being prescribed “despite the lack of any long-term longitudinal studies evaluating the risks and benefits” of using them for treatment of gender dysphoria, and that “cross-sex hormones” are being prescribed “despite the fact that no randomized clinical trials have been conducted on the efficacy or safety” of hormones used for this purpose.
A very similar law, Act 626 (“the Act”) was passed in Arkansas in 2021. The lawsuit in response to that Act provides insight into how the Ohio bill might be challenged if it becomes law. In 2021, the District Court of the Eastern District of Arkansas issued a preliminary injunction against the Act, based on Equal Protection, Due Process, and First Amendment claims. The case is currently on appeal to the Eighth Circuit Court of Appeals.
II. Equal Protection Clause Argument
A. Discrimination Based on Sex
The plaintiffs in the Arkansas lawsuit, Brandt v. Rutledge, argued that, under the Equal Protection Clause, heightened scrutiny applied to the Act because it discriminated based on sex and because it discriminated based on transgender status.
In Bostock v. Clayton Cty., Georgia, the Supreme Court held that, under Title VII, “it is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex.” The Court gave an example: if an employer fires an employee who was assigned male at birth but now identifies as female, but doesn’t fire an employee who was assigned female at birth and now identifies as female, “the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”
Similarly, the plaintiffs in Brandt argued that the Act discriminated on the basis of sex because it “would permit a girl to receive testosterone suppressants to help align her physical characteristics with her gender identity if her assigned sex at birth was female but not if her assigned sex at birth was male.” Because the ban on medical care turns on the minor’s sex assigned at birth, it discriminates based on sex under the same logic used in Bostock.
B. Discrimination Based on Transgender Status
The plaintiffs also argued that the Act was subject to heightened scrutiny because transgender is at least a quasi-suspect class. As of today, the Ninth Circuit and the Fourth Circuit have held that transgender people constitute a quasi-suspect class. The plaintiffs applied the traditional framework for identifying a quasi-suspect class: “(1) transgender people have historically been subject to discrimination; (2) they have a defining characteristic that bears no relation to a person’s ability to contribute to society; (3) they may be defined as a discrete group by obvious, immutable, or distinguishing characteristics; and (4) they are a minority group lacking political power.”
Following arguments from the defendants that gender identity was not actually immutable, the plaintiffs added that “[c]ourts have explained that the ‘immutability’ consideration is not about whether the trait is strictly immutable but rather whether it is a characteristic one could or should have to change.” The plaintiffs also addressed the defendants’ questioning of the “political powerlessness” prong of the test by showing that the question is not “solely about representation among elected officials, but rather about whether transgender people are ‘in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public.’”
The District Court agreed with the plaintiffs that the Act was subject to heightened scrutiny under the Equal Protection Clause because it discriminated based on sex and because transgender people constituted a quasi-suspect class. The Act failed heightened scrutiny because although the stated objective for the medical care restrictions was to protect children from experimental procedures, the state only banned the procedures for transgender minors, while allowing the use of the same procedures for non-transgender minors.
III. Due Process Clause Argument
The plaintiffs argued that the Act violated the Due Process Clause by interfering with parental autonomy and infringing on their “fundamental right to make decisions regarding the ‘care, custody, and control’ of their children,” including “the right to seek and to follow medical advice to protect the health and well-being of their minor children.”
Although the defendants attempted to frame this as a “fundamental right to access experimental gender-transition procedures,” the District Court agreed with the plaintiffs and held that the parents had “a fundamental right to seek medical care for their children and, in conjunction with their adolescent child’s consent and their doctor’s recommendation, make a judgment that medical care is necessary.”
Because the Act violated a fundamental right, it was subject to strict scrutiny. However, the court held that it would not even survive rational basis review, because it allowed “the same treatments for cisgender minors that [were] banned for transgender minors as long as the desired results conform[ed] with the stereotype of the minor’s biological sex.”
IV. First Amendment Argument
Finally, the plaintiffs argued that the Act violated the First Amendment right to Free Speech by violating doctors’ rights to refer patients, restricting physicians’ speech, and being neither viewpoint nor content neutral. The District Court agreed, explaining that “‘the creation and dissemination of information are speech’” and that the “ban on referrals by healthcare providers [was] a regulation of speech.” Additionally, the court found that the Act was “a content and viewpoint-based regulation because it restrict[ed] healthcare professionals only from making referrals for ‘gender transition procedures,’ not for other purposes,” and therefore was subject to strict scrutiny.
Finding that the plaintiffs were likely to succeed on the merits of their Equal Protection, Due Process, and First Amendment claims, and that plaintiffs would suffer irreparable harm if the Act was not enjoined, the District Court entered a preliminary injunction against the Act, preventing its enforcement until the litigation of the case is over. The defendants have appealed to the Eighth Circuit, writing that the District Court created a new suspect class and a new fundamental right.
The Eighth Circuit should take this opportunity to follow the trends in the law toward recognizing transgender people’s rights to be free from discrimination, and to help put a stop to the hundreds of anti-transgender bills being introduced in the U.S.
Like Arkansas’ Act 626, Ohio House Bill 454 may violate the Fourteenth and First Amendments. It prohibits certain medical procedures only when they are used for affirming the gender of transgender minors, while specifically allowing the procedures to affirm the genders of cisgender minors. This undermines the legislature’s stated purpose of protecting children from unsafe procedures. If the legislature really believed these procedures were too dangerous to be used, they would prohibit them for all minors, and not just for transgender minors.
The bill also violates parents’ rights to care for their children by prohibiting medical treatment even when the treatment is supported by the child, the parent, and the child’s doctors. This is an improper intrusion by the state into the parents’ right to care for their child. Finally, the bill infringes on the free speech of the doctors by prohibiting referrals for treatment, and it is a content-based and viewpoint-based restriction of speech. Ohio House bill 454 faces strong constitutional challenges.
The bill also faces challenges from medical professionals, LGBTQ+ organizations, and the U.S. Department of Justice. Medical professionals agree that gender-affirming care is necessary for transgender youth. Transgender youth face disproportionate mental health challenges, and a recent survey by the Trevor Project found that 85% of transgender and nonbinary youth reported that their mental health has been negatively impacted by recent news about issues that impact the transgender community and the wave of anti-transgender legislation. Additionally, on Transgender Day of Visibility 2022, the U.S. Department of Justice issued a letter to all state attorneys general, writing that prohibiting gender-affirming medical care to transgender youth may infringe on both Equal Protection and Due Process rights. With all of these challenges, if Ohio House Bill 454 becomes law, it will face strong opposition and will likely be struck down as unconstitutional.
 Meredith Deliso, “Catastrophic” Number of State Bills Target Transgender Youth, Advocates Say, ABC News (Mar. 7, 2021), https://abcnews.go.com/US/catastrophic-number-state-bills-target-transgender-youth-advocates/story?id=76138305 (“[a]t least two dozen” bills covering sports bans, and sixteen states that had considered or were considering prohibiting gender-affirming health care for trans youth); Britni de la Cretaz, Hate Groups Are Making It Easier Than Ever to Introduce Anti-Trans Bills, them. (Feb. 25, 2021), https://www.them.us/story/hate-groups-easily-introducing-anti-trans-bills (writing that hate groups are making templates for anti-trans legislation); Matt Lavietes & Elliott Ramos, Nearly 240 Anti-LGBTQ Bills Filed in 2022 So Far, Most of Them Targeting Trans People, NBC News (Mar. 20, 2022).
 Kerith J. Conron, Kathryn K. O’Neill, Luis A. Vasquez & Christy Mallory, Prohibiting Gender-Affirming Medical Care for Youth, Williams Institute (March 2022), https://williamsinstitute.law.ucla.edu/publications/bans-trans-youth-health-care/ (covering 15 states that have passed or are currently considering bills denying gender-affirming medical care to transgender youth). On March 30, 2022, Arizona also passed a bill prohibiting gender-affirming medical care to trans youth. Devan Cole, Arizona Governor Signs Bill Outlawing Gender-Affirming Care for Transgender Youth and Approves Anti-trans Sprots Ban, CNN (March 30, 2022), https://www.cnn.com/2022/03/30/politics/arizona-transgender-health-care-ban-sports-ban/index.html.
 H.B. 454, 134th Gen. Assemb., Reg. Sess. (Oh. 2021) https://ohiohouse.gov/legislation/134/hb454.
 Id. at 8-9.
 Id. at 10.
 Id. at 6.
 “Intersex” refers to individuals who are born with sex characteristics that differ from typical binary notions of male and female bodies.
 H.B. 454, 134th Gen. Assemb., Reg. Sess., at 8 (Oh. 2021). The bill also prohibits gender-affirming surgeries for minors.
 Id. at 1.
 Id. at 2.
 Id. at 2-3. Note that the criticism is that there have been no randomized clinical trials on the use of these hormones for the treatment of gender dysphoria, while the bill allows the same hormones to be used to treat other conditions. Facing similar language in an Arkansas Act, the plaintiffs in Brandt v. Rutledge pointed out that a lot of medicine is developed without randomized clinical trials because it may be unethical to use them. For example, randomized clinical trials are used when it is not known whether the treatment is better than a control of no treatment, and because health care providers already know that this treatment is better than no treatment, it would be unethical to knowingly give some transgender youth worse treatment or withhold treatment from them. Complaint for Declaratory and Injunctive Relief at 35, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. May 25, 2021) (No. 4:21-cv-00450-JM). Additionally, the plaintiffs in Brandt highlighted that there are no randomized clinical trials of surgery on intersex children, and yet the Act, like Ohio’s bill, explicitly allows them, despite “significant ethical concerns raised by performing such procedures on infants too young to participate in the decision-making process.” Id. at 36.
 Ark. Code Ann. § 20-9-1501 to § 20-9-1504 (West).
 Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. 2021).
 U.S. Const. amend. XIV, § 1. “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Supreme Court case law has held that laws that discriminate based on sex are subject to a heightened, intermediate level of scrutiny.
 Complaint for Declaratory and Injunctive Relief at 41, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. May 25, 2021) (No. 4:21-cv-00450-JM).
 42 U.S.C.A. § 2000e-2 (West). Title VII of the Civil Rights Act of 1964 is a federal statute that prohibits employment discrimination on the basis of an “individual’s race, color, religion, sex, or national origin.” Id.
 Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1741 (2020). Because Bostock involved a federal statute, it is not yet clear whether the Court will use this same logic for discrimination based on sex under the Fourteenth Amendment of the U.S. Constitution.
 Opposition to Defendants’ Motion to Dismiss at 23, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. June 30, 2021) (No. 4:21-cv-00450-JM).
 Karnoski v. Trump, 926 F.3d 1180, 1200 (9th Cir. 2019).
 Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 610 (4th Cir. 2020), as amended (Aug. 28, 2020), cert. denied, 141 S. Ct. 2878 (2021).
 Opposition to Defendants’ Motion to Dismiss at 17, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. July 16, 2021) (No. 4:21-cv-00450-JM).
 Defendants’ Combined Brief in Opposition to Plaintiffs’ Motion for Preliminary Injunction; and Reply in Support of Defendants’ Motion to Dismiss at 4-7, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. July 9, 2021) (No. 4:21-cv-00450-JM).
 Reply Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction at 39, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. June 30, 2021) (No. 4:21-cv-00450-JM). But see, Jessica A. Clarke, Against Immutability, 125 Yale L.J. 1, 32-33 (2015) (illustrating objections to this type of immutability, including that it “masks questionable moral judgments about the blameworthiness of traits” and “reinforces stereotypes about the identities it protects.” Id.); Silver Flight, Comment, Gender: The Issue of Immutability, Univ. Cin. L. Rev., Nov. 12, 2021, https://uclawreview.org/2021/11/12/gender-the-issue-of-immutability/ (arguing that transgender equality should not depend on the mutability or immutability of gender and that immutability is not a requirement for suspect class categorization).
 Reply Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction at 41, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. June 30, 2021) (No. 4:21-cv-00450-JM) (quoting Windsor v. U.S., 699 F.3d 169, 185 (2d Cir. 2012), aff’d sub nom. United States v. Windsor, 570 U.S. 744, 770 (2013)).
 Brandt v. Rutledge, 551 F. Supp. 3d 882, 889 (E.D. Ark. 2021).
 Id. at 891.
 U.S. Const. amend. XIV, § 1. “No State shall . . . deprive any person of life, liberty, or property, without due process of law.”
 Complaint for Declaratory and Injunctive Relief at 4, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. May 25, 2021) (No. 4:21-cv-00450-JM).
 Opposition to Defendants’ Motion to Dismiss at 34, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. June 30, 2021) (No. 4:21-cv-00450-JM) (quoting Troxel v. Granville, 530 U.S. 57, 66 (2000)).
 Brief in Support of Motion to Dismiss at 33, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. June 16, 2021) (No. 4:21-cv-00450-JM).
 Brandt v. Rutledge, 551 F. Supp. 3d 882, 892 (E.D. Ark. 2021).
 Id. at 893. “Cisgender” refers to someone whose gender identity matches their sex assigned at birth.
 Complaint for Declaratory and Injunctive Relief at 44-45, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. May 25, 2021) (No. 4:21-cv-00450-JM).
 Brandt v. Rutledge, 551 F. Supp. 3d 882, 893 (E.D. Ark. 2021) (quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011)).
 Brief of Defendants-Appellants at i, Brandt v. Rutledge, No. 21-02875 (8th Cir. Nov. 15, 2021). They also wrote that the court “subjected any state law to strict scrutiny that regulates the treatments for which medical pactitioners may provide referrals.” Id. They defined the substantive due process right as a “fundamental right to unsafe, experimental gender-transition procedures.” Id. at 22.
 See, Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 607 (4th Cir. 2020) (holding that school bathroom policy prohibiting transgender male student from using the boys’ bathroom was unconstitutional sex-based discrimination and holding that “transgender people constitute at least a quasi-suspect class”); Karnoski v. Trump, 926 F.3d 1180, 1200-01 (9th Cir. 2019) (holding that transgender people constitute at least a quasi-suspect class and classification based on transgender status should receive intermediate scrutiny); Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. Of Educ., 858 F.3d 1034, 1048 (7th Cir. 2017) (holding that transgender students can bring sex-discrimination claims under both Title IX and Equal Protection Clause because “[b]y definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth”), abrogated on other grounds as recognized by Ill. Republican Party v. Pritzker, 973 F.3d 760, 762 (7th Cir. 2020); Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (holding that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination”); Smith v. City of Salem, 378 F.3d 566, 577 (6th Cir. 2004) (holding that a transgender plaintiff could support a claim of sex discrimination under the sex stereotyping theory under both Title VII and the Equal Protection Clause).
 Trisha Korioth, Pediatricians Say State Bills Would Harm Transgender Youths, American Academy of Pediatrics News (Mar. 9, 2021), https://publications.aap.org/aapnews/news/12780/Pediatricians-say-state-bills-would-harm; AMA to States: Stop Interfering in Health Care of Transgender Children, American Medical Association (Apr. 26, 2021), https://www.ama-assn.org/press-center/press-releases/ama-states-stop-interfering-health-care-transgender-children; APA Resolution on Supporting Sexual/Gender Diverse Children and Adolescents in Schools, American Psychological Association (Feb. 2020), https://www.apa.org/about/policy/resolution-supporting-gender-diverse-children.pdf.
 Victoria A. Brownworth, New Poll Shows LGBTQ Youth Mental Health Negatively Impacted by Anti-Trans Bills, Philadelphia Gay News (Jan. 10, 2022), https://epgn.com/2022/01/12/new-poll-shows-lgbtq-youth-mental-health-negatively-impacted-by-anti-trans-bills/; Issues Impacting LGBTQ Youth, The Trevor Project (Jan. 2022), https://www.thetrevorproject.org/wp-content/uploads/2022/01/TrevorProject_Public1.pdf.
 Justice Department Reinforces Federal Nondiscrimination Obligations in Letter to State Officials Regarding Transgender Youth, The United States Department of Justice (Mar. 31, 2022), https://www.justice.gov/opa/pr/justice-department-reinforces-federal-nondiscrimination-obligations-letter-state-officials. View the letter at https://www.justice.gov/opa/press-release/file/1489066/download.