Ohio Health Department backpedals on proposed adult gender-affirming care restrictions

Ohio’s Health Department on Wednesday said it was striking a number of provisions that would have limited access to gender-affirming medical care for transgender adults in the state from a set of proposed administrative rules, citing a deluge of public comments opposing the restrictions.

“The Department is grateful to those individuals and organizations who took time to offer comments as we seek to adopt rules to protect Ohio’s children. Having reviewed the submitted comments and considered the feedback, the Department has revised the proposed rules,” reads a memo from the state Health Department announcing the change.

Ohio’s Republican Gov. Mike DeWine in January said he had directed the state Department of Health and Department of Mental Health and Addiction Services to file rules for public comment that would have made Ohio one of the most restrictive states in the nation for adults seeking access to gender-affirming care.

One day earlier, DeWine vetoed legislation to ban gender-affirming care for minors and prevent transgender student-athletes from competing on sports teams consistent with their gender identity. Ohio’s GOP-dominated Legislature voted to override the governor’s veto of the bill, House Bill 68, on Jan. 24. 

The new law is set to take effect in April, though an impending legal challenge from the ACLU could halt its enforcement before then.

Draft rules filed by Ohio’s health departments shortly after DeWine’s Jan. 5 announcement drew almost immediate backlash from LGBTQ advocates and medical professionals for restrictions that would have limited access to care for transgender minors and adults.

Patients younger than 21 would have had to receive at least six months of mental health counseling before being eligible to receive gender-affirming medication or surgery, and hospitals and health care facilities would have been unable to administer care to trans people of any age without a treatment plan created by a team of psychiatrists, endocrinologists and medical ethicists.

Experts expressed concerns the rules would shutter smaller or independent clinics lacking the funds needed to hire specialists like medical ethicists, who are commonly employed by large hospital systems. The American Civil Liberties Union and the ACLU of Ohio said the draft rules could amount to a “de facto ban” on care in the state.

Public comments poured in by the thousands, with more than 6,800 pages of emails sent to the Department of Mental Health and Addiction Services about the rule, the Ohio Capital Journal reported late last month. A public comment period for that rule ended Jan. 19.

State Health Department officials on Wednesday said members of the public had raised considerable concerns about the draft rules’ restrictions on access to gender-affirming care for adults.

“The comments revealed a significant interest in the original draft’s impact on adult patients,” the department wrote in Wednesday’s memo. “The revised quality standard rules are now applicable only to care for minors.”

The department added that a common “point of confusion” among those who submitted public comments centered on the requirement for treatment plans to be reviewed by a medical ethicist.

“The requirement for review by a medical ethicist was never applicable to individual patient care plans but rather to institutional operations. However, to alleviate confusion and because of assurances from healthcare leaders that institutions already appropriately engage medical ethics professionals in this type of care, the proposed rule’s requirement has been removed,” the department wrote Wednesday.

The amended draft rules also expand the types of mental health professionals that can be part of multidisciplinary care teams, a change brought about by “recognizing concerns about the limited availability of certain medical specialties,” the department said.

Several provisions from the original draft are still in place, such as a requirement that transgender minors undergo six months of mental health counseling before receiving medications like puberty blockers or hormones. The rules also still prohibit doctors from referring minors to out-of-state facilities for gender-affirming surgeries, which are generally not recommended for trans youth younger than 18 and are illegal for minors in Ohio under an executive order signed Jan. 5 by DeWine.

A requirement that data collected by the state Health Department on trans people be delivered to Ohio’s Legislature also remains part of the state’s proposal. Responding to concerns about privacy, the department on Wednesday clarified that the data collected will not identify individual patients.

The department will now proceed with the rule adoption process, including a review by the Ohio Common Sense Initiative and filing with the Joint Committee on Agency Rule Review.