The ongoing public comment period for administrative rules Ohio Gov. Mike DeWine drafted related to gender transitions in the state has already brought opposition from Democratic lawmakers and various advocacy groups.
DeWine proposed new rules related to gender-affirming care, even as he vetoed House Bill 68, which prohibits all gender-affirming care for minors in Ohio. The Ohio House issued a rebuke, overriding the veto earlier this month and setting the stage for the Ohio Senate to make a move on override next.
An emergency rule was filed by the DeWine Administration on Jan. 5 that prohibits “health care facilities, including ambulatory surgical facilities, and hospitals from performing gender surgeries on minors,” according to a letter from the Ohio Department of Health announcing the emergency rule and draft rules still under consideration. No Ohio children’s hospital was performing gender-affirming surgery on patients under 18 before the rule was created.
That emergency rule is not up for public comment, and has already taken effect.
The additional draft rules were created by the Ohio Department of Health and the state Department of Mental Health and Addiction Services.
The ODH rules, filed as a draft on Jan.5, would “obligate the Department of Health to report deidentified data to the General Assembly and the public every six months” and “set forth quality standards for those hospitals and ambulatory surgical facilities that wish to treat gender-related conditions.”
The draft rules proposed by Ohio’s mental health and addiction services department lay out the process by which a provider can diagnose and treat a “gender-related condition” or “provide gender transition services, other than surgical services,” which includes “informed consent from the patient and, if the patient is a minor, the patient’s parent or legal guardian.”
The protocol also requires that a “comprehensive mental health evaluation and counseling over a period of not less than six months,” occur before diagnosis of a “gender-related condition” or access to gender transition services is given.
Ohio Senate Democrats, including Minority Leader Nickie Antonio, Hearcel Craig, Kent Smith, Catherine Ingram, Paula Hicks-Hudson, Bill DeMora and Vernon Sykes, sent a letter of opposition to the ODMHAS on Jan. 18, saying the proposed rules “will have numerous harmful ramifications for many, if not all, trans Ohioans.”
“These restrictions impose significant hurdles for patients to access care,” the seven Democrats wrote in the letter. “Such prohibitions are unnecessary or irrelevant to the routine provision of these services.”
They also said the standards proposed in the MHAS rules have no “constitutional nor statutory basis” and serve as an “excessive overreach of the rule-making process.”
The legislators offered suggestions for the rules, including the recommendation that the state agency consult with and include in the rules “the mental health standards of transgender care recognized by every major medical organization.”
The Democrats also recommended removing restrictions in the rules that would “delay or remove access to medically necessary, life-saving care provided by mental health care providers to many trans Ohioans.”
The ACLU’s Ohio chapter made similar arguments after submitting its own comment on the proposed rules from both the ODH and the ODMHAS, saying the rules would “impose constraints on care for all transgender people – minors and adults alike – with no grounding in existing medical science.”
“The proposed rules represent the single most extreme set of regulations governing medical treatment for transgender adults anywhere in the United States and are wholly out of step with contemporary medical guidelines,” the comments stated, signed by ACLU Ohio legal director Freda Levenson, policy director Jocelyn Rosnick and deputy director for transgender justice Chase Strangio.
Think tank Policy Matters Ohio also submitted public comment on the ODMHAS rules, with budget and health researcher Kathryn Poe arguing even the definitions used in the proposal, which define sex and assigned sex at birth, could “substantially impact how the ODMHAS tracks population data and the implementation of mental health interventions … by erasing transgender and non-binary people.”
“The definitions provided … set a dangerous precedent for an organization concerned with the mental health of Ohioans, especially given the elevated risk for transgender Ohioans,” Poe wrote.
Studies have shown that LGBTQ youth, particularly transgender youth, stand as one of the groups at highest risk of suicide.
Poe decried the requirement for a mental health evaluation, while saying gender-affirming care “is best managed by a person’s primary care physician.”
“Being transgender is not a psychological disorder or a mental health issue and should not require a mental health evaluation,” Poe’s comment reads. “The requirement of a psychiatrist is not only unnecessary but will add substantial time and money to a person’s access to care.”
The public comment period for the ODMHAS draft rules ended on Jan. 19, but the ODH comment period ends on Feb. 5. Anyone wishing to submit comment can do so at the Ohio Department of Health’s website.
