Getting the news of Ohio’s gender-affirming care ban was like watching an asteroid hit my home planet. One minute, my home state was passing a ban on gender-affirming care for trans youth. That bill, HB 68, was horrible, but very much in line with the other awful bills being advanced elsewhere. Governor Mike DeWine vetoed the bill, as expected; Ohio’s veto-proof Republican supermajority overrode the veto, also as expected.
In between the veto and the override, the comet struck: DeWine issued an executive order, declaring an “emergency” and mandating that the Ohio Department of Health (ODH) adopt new standards of practice for trans care. Activists on the ground expected those guidelines to be a moderate “compromise” intended to discourage the veto override; instead, they were far more stringent than HB 68 itself, and amounted to a total ban on gender-affirming health care in the state.
Those ODH guidelines required that healthcare providers report every instance of trans-affirming healthcare to the state of Ohio; they required that all transitions be signed off on by a panel of experts including a mental health professional, an endocrinologist and (bafflingly) a bioethicist; they applied all of these rules, indiscriminately, to both children and adults.
“When they dropped those rules that affected adult care, frankly, the whole trans community in Ohio freaked out,” says Maria Bruno of LGBTQ2S+ advocacy and legal aid organization Equality Ohio. “You know, they’re like, ‘Oh my God, I wasn’t even on the list. And now I’m on the list.’” Bruno says trans people in her circle of acquaintances began tapping their contingency plans and making appointments out of state, believing that they would have to move.
National press and mass protest soon followed: Dara Adkison, of volunteer-run trans advocacy organization TransOhio, says, “People across the state of Ohio submitted over 8,000 pages of comments for the Ohio Board of Mental Health Services and over 10,000 pages of comments through the Ohio Department of Health.” On Friday, Feb. 7, the state of Ohio announced that they would be rolling back some of the guidelines, including the demand for bioethicist approval, and—crucially—the restrictions on adult care.
Still, it’s not at all clear that this is a victory. Ohio now has two new sets of rules restricting gender-affirming care—HB 68, which will go into effect in mid-April, bans all trans healthcare for people under 18, and the ODH rules, which, even in their revised form, introduce new hurdles. Last but not least, Ohio has set a new precedent for using gubernatorial powers to indirectly outlaw transition, which other states may follow.
Trans and queer organizers in Ohio have succeeded in beating back the worst of the changes, which is a massive accomplishment, and very much to be commended. Still, this is a pause in the battle, at best. Before it moves forward—and before any other states follow Ohio’s lead—it’s worth looking at exactly how the fight in Ohio is playing out, and how trans people have managed not to lose.
Before we go any further, it’s worth asking why, exactly, the Department of Health guidelines were so disastrous. Some of the rules, like the requirement for a bioethicist’s approval, are so detached from reality as to be flat-out silly.
“That is one that we were particularly confused by, frankly,” says Bruno, of the bioethicist requirement, “because it’s not even something that’s a licensed profession in the state. It’s a very, very uncommon academic venture. There were only a handful of bioethicists in the state at all, let alone ones that would be capable of having contact with every single medical provider in the state.”
More bluntly: it looks as if the people who wrote these rules had no idea how transition care works—and that may have been the case. It’s possible that no one involved in the process had the time or inclination to look up what transition for adults actually entailed, and that they wound up writing a total transition ban more or less by accident.
This is not a heartwarming possibility. If that is what happened, it means that cis people’s power over trans people is so absolute, and their regard for our well-being is so minimal, that people who have no idea how our healthcare even works are being allowed to write the laws and rules that govern it.
Then again, it’s also very possible that the rules were intentionally harmful. As Melissa Gira Grant has written for The New Republic, we’ve seen this kind of thing before—the Ohio trans care rules closely mirror the anti-choice technique of indirectly banning abortion by forcing clinics to adhere to impossibly high standards. Most trans care bans employ sloppy or misleading ideas about what trans healthcare actually is; these guidelines represent an extreme instance, but one in line with the wider trend. We also know that banning transition for adults is a major goal for the right wing. Trans activist and reporter (and sometime Xtra contributor) Erin Reed reported that shortly after the passage of HB 68, the bill’s sponsor, Rep. Gary Click, agreed that banning trans care “for everyone” was “the end game.”
“You know it’s that age-old question,” Adkison says. “Is it intentional sloppiness for the sake of making messy bureaucracy that makes it hard to access healthcare, so they have the benefit of the doubt if they’re like, ‘But we didn’t mean to ban it?’”
Either way, says Adkison, the idea of using gubernatorial power as a way of advancing trans care bans without having to go through the legislature is new, and sets a bad precedent for the rest of the country: “It definitely felt like a floodgate was unlocked,” they say. “We saw immense glee from some really horrible state legislatures on a very public scale. What that glee represents for our lives in the future? It’s still to be found out.”
Whether you attribute these recent developments to malice or incompetence, there’s a pretty simple solution for both: don’t pass laws restricting other people’s healthcare. This sentiment has substantial backing from the Ohioan public, as proven by its recent history. This past November—despite the Republican supermajority—a ballot initiative to enshrine abortion and contraceptive access in the state constitution passed with 57 percent support.
“Given that the main theme of that was ‘government, stay out of our doctors’ offices,’ our whole position has been we have made clear that politicians play no role in our health system,” Bruno says. “This is less about everyone becoming a medical professional in order to understand gender-affirming care, and much more about appropriate boundaries. You just have to have the humility to say, ‘I am not a doctor, I am a politician, and therefore I should not be deciding what a standard of care looks like.’”
That abortion vote points to something else too: Ohio’s Republican supermajority, like many red states throughout the country, depends to a substantial degree on gerrymandering. The priorities of the people are not reflected in the priorities of the legislature. Frankly, the average Ohioan is much less obsessively transphobic—and a lot more trans-affirming—than the average member of Ohio’s legislature, and the quick backlash to the ODH guidelines seems to have brought that point home.
“When you think about public sentiment, we are making gigantic strides,” Bruno says. “We saw during this campaign to veto HB68 a tremendous groundswell that I don’t know that we could have expected even two years ago, if this bill had been pushed.” Newspaper editorial boards weighed in against the care ban; Bruno says that “some of the most prominent businesses in the state” were placing calls to DeWine directly, registering their opposition to it. For a state like Ohio—where there are lots of struggling towns in the red Rust Belt and, conversely, lots of economic growth in relatively progressive university towns and city centres like Columbus—there is an incentive to make sure the state is not seen as hostile to young people and college-educated workers. “They’ve made it possible to very clearly and explicitly and effectively make the argument that this is leading to instability. This is leading to a climate where young workers don’t want to come here. At some point there really is an economic cost to this kind of extremism.”
Adkison agrees that “the general populace of Ohio is very different from our legislature,” and suggests that, if the ballot initiative made it possible for Ohioans to work around their legislature’s anti-abortion bias, there’s a chance that it could do the same for trans rights. “There are people in the process of getting together ballot initiatives that maybe we’ll see in the fall, maybe in a different year, that would include trans healthcare access,” they say. “I do think that if it was a ballot initiative, it would go through. There was such overwhelming support for the abortion one, in parts of the state where people wouldn’t expect it, but that is what Ohio actually is.”
It’s not just Ohio. After several years of obsessive culture war, there’s a mounting pile of evidence that transphobia loses elections. The right wing’s obsession with trans kids strikes many voters, including many Republicans, as extreme and off-putting. The average American does not want to go to war with Walt Disney to ensure that it will be illegal for AMAB children to wear Elsa costumes on Halloween. After a string of high-profile embarrassments—the disappointing midterm results, or the implosion of Ron DeSantis’s presidential hopes—even some Republican politicians are beginning to distance themselves from “anti-woke” messaging. It doesn’t make their politics any less harmful, or even any less bigoted (polls show that Republicans who don’t care for the war on woke still respond to racist dog whistles like “law and order” and “securing our borders,” for instance) but it does mean that using trans people as a piñata has hit the point of diminishing returns.
Adkison is adamant that the rollback of the ODH guidelines is not a victory. “At the end of the day, the rules are unnecessary and harmful to begin with,” they say. “So even taking out a lot of the teeth, they still do a lot of harm.” Trans people should not be reported to the state every time they receive healthcare— but they will be. Trans youth should be able to access healthcare—but they can’t. TransOhio is still fighting those guidelines, which are still open for comment. The rules pertaining to mental health services are being evaluated by the Department of Mental Health and Addiction services. The ODH rules have been submitted to the Common Sense Initiative office (which can be contacted through the instructions at the DHMA link above) and then to the Joint Committee for Agency Rule Review (JCARR) where concerned parties are also encouraged to send comments through email.
Maybe one day, we’ll be able to restrict away the gerrymandering, re-enfranchise every voter, restore a truly representative democracy to the United States, but until then, what we have is our voices. The work, in Ohio and elsewhere, still consists of speaking up, one comment at a time.
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