Ohio Stands for Children and against Gender Activists

I n Ohio, a child can’t buy alcohol or tobacco. A child can’t enter a legally binding contract under the law — it’s void and unenforceable. Generally, a child cannot give informed consent for medical treatment. Something as simple as a tattoo is off-limits without parental consent.

A child can’t vote, with or without parental consent.

There’s a simple, commonsense reason for these laws: Children have little life experience, can be swayed quickly in decisions, and often demonstrate poor judgment. Their minds are still developing in important ways. That’s not a character flaw; it’s the normal process of growing up. While it’s happening, we protect children as a class by creating laws — laws that apply to children, not adults. But in its new challenge to Ohio’s law prohibiting transgender medical interventions for children under age 18, the American Civil Liberties Union claims this unremarkable truth is somehow unconstitutional.

The ACLU’s position is unsupported in law or common sense, and Ohio’s law will eventually be upheld. Although we can and will defend this law based on the constitution, Ohio will also supply evidence and challenge the Left’s prevailing mythology regarding what it euphemistically calls “gender-affirming care.”

Ohio’s law, passed over Governor Mike DeWine’s veto on January 24, does not apply to adults — after all, it’s a free country. The law merely joins a long line of time-tested legal protections for kids on things like buying alcohol and tobacco, voting, and tattoos, among others.

But these protections for children are even more important when the decisions are irreversible. After all, a decision to use tobacco today is not a decision to use tobacco habitually. A contract can be canceled. But some children subjected to medical interventions of this nature have both later regretted it and carried irreversible effects from it.

The ACLU counters that H.B. 68 violates equal-protection principles. Essentially, the organization argues that transgender children have immutable characteristics and that those characteristics have resulted in historical discrimination. But it will have to prove these assertions in court with live testimony subject to cross-examination, not merely pronounce them.

States have long defended their democratically enacted laws by arguing constitutional and legal principles. When it is necessary to prove facts, one or both sides typically submit “declarations” from experts, on which the court then relies.

In this case, Ohio will not rely solely on declarations in a paper-thin record. We will present the evidence the plaintiffs wish to ignore. We will challenge their experts. They will have to prove their contention that these therapies are not irreversible, with permanent changes. They will be pressed on their claims that the prohibited procedures are safe. They will be required to prove that the procedures’ effect on mental health is worth any of the risks. And the State will prove that this area of medicine is incomplete. Indeed, European countries with more experience than the United States are retreating from the approach supported by the ACLU. There will be a fulsome evidentiary record for the court.

Not every case requires such an aggressive approach. This one does, and Ohio will not concede the ground.

The plaintiffs also argue that they are being discriminated against based on gender — that certain hormone therapies are prohibited based on their gender. Testosterone will not block the onset of puberty in a male.

This argument was already addressed in the U.S. Court of Appeals for the Sixth Circuit. This may be part of the reason the ACLU brought the case in state court instead of federal court. Chief Judge Sutton’s opinion for the Sixth Circuit found that a Tennessee law similar to Ohio’s was unlikely to violate the equal-protection clause. In his words, laws like those in Tennessee and Ohio are “equally applicable to all minors, no matter their sex at birth.”

Of course, promoting therapy to change gender is at odds with the plaintiffs’ earlier argument that gender is an immutable characteristic subject to increased constitutional scrutiny. But that’s why we have trials, and why cross-examination, evidence, and argument are important.

All who suffer from gender dysphoria, especially children, deserve to be treated with compassion and dignity. We should assume that the families of those children want the best for them. Which is precisely why a growing number of nations, and more than half the states, have passed laws protecting children from irreversible, adult medical decisions for which they are ill-prepared. As in Ohio, these laws reflect the consensus of the people of their states. They ought to be defended and upheld against the assault of lawfare practitioners who would substitute their elite judgment for that of the duly elected representatives of the people.