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January 19, 2024 

LeeAnne Cornyn, Director 

Ohio Department of Mental Health & Addiction Services 

Submitted electronically to MH-SOT-rules@mha.ohio.gov 

CC: Governor Mike DeWine via Giles Allen, Deputy Director of Legislative Affairs, to Giles.Allen@governor.ohio.gov 

RE: Comments on Draft Rule 5122-26-19, Gender Transition Care, and Draft Amended Rule 5122-14-12, Program, Specialty Services, and Discharge Planning Requirements 

Dear Director Cornyn, 

We write today to request the withdrawal of the draft rule and draft amended rule mentioned above that restrict the provision of gender-affirming care to both adults and minors. 

Equality Ohio is a statewide organization that seeks to transform systems and institutions so that LGBTQ+ Ohioans can fully access legal and lived equality. Our core values include dignity and self-determination for all people, including transgender and gender-diverse youth and adults in Ohio. We also believe that people, systems, and institutions can and should transform the ways in which they intentionally or unintentionally oppress others. Our comments below are offered in that spirit and with that intention. 

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TransOhio is a grassroots state-wide organization which serves the Ohio transgender and ally communities by providing services, education, support, and advocacy, which promotes and improves the health, safety and life experience of the Ohio transgender individual and community. 

The National Center for Transgender Equality (NCTE), Transgender Legal Defense and Education Fund (TLDEF), and the Transgender Law Center (TLC) are leading national civil rights organizations who join Equality Ohio and TransOhio in requesting the withdrawal of the draft rule and join in the comments and reasoning provided by Equality Ohio and TransOhio below. 

NCTE is one of the nation’s leading civil rights organizations fighting for the rights of transgender people. Throughout its 20-year history, NCTE has advocated to change policies to advance transgender equality and has educated the public to increase understanding and acceptance of transgender people. 

TLDEF is also a leading national civil rights organization that is committed to ending discrimination based upon gender identity and expression and to achieving equality for transgender people through public education, test-case litigation, direct legal services, and public policy efforts. Since 2003, TLDEF has worked tirelessly to advance justice and equity for transgender and non-binary communities in the United States. 

TLC is the largest national trans-led organization advocating for a world in which all people are free to define themselves and their futures. TLC changes law, policy, and attitudes so that all people can live safely, authentically, and free from discrimination regardless of their gender identity or expression. 

In this comment, we use the wording “transgender and gender-diverse” in the same sense it is used in the World Professional Association for Transgender Health (WPATH) Standards of Care:¹ 

In this document, we use the phrase transgender and gender diverse (TGD) to be as broad and comprehensive as possible in describing members of the many varied communities that exist globally of people with gender identities or expressions that differ from the gender socially attributed to the sex assigned to them at birth. This includes people who have culturally specific and/or language-specific experiences, identities or expressions, which may or may not be based on or encompassed by Western conceptualizations of gender or the language used to describe it. 

¹ World Professional Association for Transgender Health, Standards of Care for the Health of Transgender and Gender Diverse People at 17 (8^th edition, 2022). 

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I. Gender-affirming care is well-recognized and scientifically sound, as well as supported by federal law. 

All Ohioans, including transgender and gender-diverse Ohioans, should have access to high quality and affordable healthcare that they need. The draft rules proposed by the Ohio Department of Mental Health and Addiction Services (OMHAS) will limit this access for both youth and adults, not expand it, and therefore should be withdrawn in their entirety. Withdrawing the draft rules will help to ensure that transgender Ohioans continue to have access to the medically necessary services to which they are entitled under federal law, and will avoid furthering the historic discrimination that transgender people have long faced in accessing healthcare services. 

A. Despite the fact that gender dysphoria is a serious medical condition with well-recognized and scientifically sound medical treatments, transgender people continue to face devastating discrimination trying to get this care. 

An estimated 0.5% of the U.S. adult population (roughly 1.3 million adults) is transgender, meaning that their innate gender identity is different from that typically associated with their assigned sex at birth.² Among youth ages 13-17, about 300,000 identify as transgender, including more than 8,500 youth in Ohio.³ There is an established medical consensus that gender identity is an inherent aspect of human identity.⁴ Some transgender people may seek medical treatment to physically transition from their assigned gender to the gender with which they identify. Expert medical organizations agree that this type of care—known as gender-affirming care—is medically necessary for transgender people, both youth and adults, who experience clinically significant distress related to incongruence between their gender identity and their assigned birth sex. Despite widespread medical consensus that such treatment is medically necessary, discriminatory policies have resulted in high rates of lack of access to care, creating significant health disparities for the transgender and gender-diverse community, such as high rates of mental and behavioral health concerns, suicide attempts, experiences of abuse and violence, and HIV infection.⁵ 

1. Health care services related to the treatment of gender dysphoria are medically necessary for transgender people, both youth and adults. 

For many transgender and gender-diverse people, their identity—the essence of who they are—is closely connected with a medical condition known as gender dysphoria 

² Jody L. Herman, et al., How Many Adults and Youth Identify as Transgender in the United States? 2 (2022). 

³Id. 

⁴ See WPATH, supra note 1 at 17. 

⁵ See, e.g., HHS, Lesbian, Gay, Bisexual, and Transgender Health (2020), available at: https://health.gov/healthypeople/objectives-and-data/browse-objectives/lgbt. 

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(formerly known as gender identity disorder). Gender dysphoria is recognized as a serious medical condition by the American Medical Association (AMA) and the World Health Organization, as well as by federal courts.⁶ The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM 5) defines gender dysphoria as: 1) a marked incongruence between one’s experienced/expressed gender and assigned gender (manifested in at least two of six specific symptoms), which 2) is associated with clinically significant distress or impairment in social, occupational or other important areas of functioning.⁷ 

Necessary treatment for gender dysphoria may include endocrine and surgical procedures, hair removal/transplant procedures, voice therapy, counseling, and other medical procedures.⁸ These medical services are not unique to transgender people. The same hormone therapy used for transgender patients, for example, is provided to patients with endocrine disorders and menopausal symptoms. The surgical procedures that may be used in gender transition, such as breast augmentation, hysterectomy, oophorectomy, and various reconstructive procedures, are regularly covered by insurance companies for non-transgender people for purposes such as treating injuries or for cancer treatment or prevention. 

It is the overwhelming consensus among medical experts that gender-affirming treatments are medically necessary, effective, and safe when clinically indicated to alleviate gender dysphoria. Major medical associations—including the American Medical Association, the American Psychological Association, the American Psychiatric Association, the American Academy of Family Physicians, the Endocrine Society, and the American Congress of Obstetricians and Gynecologists, among others—agree that gender-affirming services are medically necessary for many transgender people.⁹ WPATH, the expert body in the field of transgender medicine, has maintained a science-based standard of care for the treatment of gender dysphoria since 1979. This 

⁶ American Medical Association House of Delegates, Removing Financial Barriers to Care for Transgender Patients, H-185.950 (Res. 122; A-08) (2008), available at: 

http://www.tgender.net/taw/ama_resolutions.pdf; American Psychiatric Association Council of Representatives, Transgender, Gender Identity, & Gender Expression Non-Discrimination, Policy Statement (2008), available at: http://www.apa.org/about/policy/transgender.aspx; World Health Organization, International Statistical Classification of Diseases and Related Health Problems, available at: http://apps.who.int/classifications/icd10/browse/2010/en#/F64; see, e.g., Farmer v. Brennan, 511 U.S. 825 (1994); Brown v. Zavaras, 63 F.3d 967 (10th Cir. 1995); Maggert v. Hanks, 131 F.3d 670 (7th Cir. 1997); Cuoco v. Moritsugu, 222 F.3d 99 (2nd Cir. 2000); O’Donnabhain v. Commissioner of Internal Revenue Service, 134 T.C. 34 (U.S. Tax Ct. 2010); Battista v. Clarke, 645 F. 3d 449 (1^st Cir. 2011); Fields v. Smith, 653 F.3d 550 (7^th Cir. 2011); Soneeya v. Spenser, 851 F. Supp. 2d 228 (D. Mass. 2012); Kosilek v. Spencer, No. 00-12455, 2012 U.S. Dist. LEXIS 124758 (D. Mass. Sept. 4, 2012). ⁷ American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 452 (5th ed., 2013). 

⁸ See WPATH, supra note 1 at 18. 

⁹ See Transgender Legal Defense & Education Fund, Medical Organization Statements, available at: https://transhealthproject.org/resources/medical-organization-statements/. 

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standard of care—currently in its eighth version—dictates that medically necessary health services may include endocrine and surgical procedures, hair removal/transplant procedures, voice therapy, counseling, and other medical procedures.¹⁰ 

The standards acknowledge that adults “represent a diverse array of gender identities and expressions and have differing needs for GAMSTs [gender-affirming medical and/or surgical treatments], [so] no single assessment process will fit every person or every situation.”¹¹ WPATH elaborates that the assessment process need not be lengthy for some people: some transgender or gender-diverse adults “may need a comparatively brief assessment process for GAMSTs,”¹² but in any case, individualized treatment plans are the predominant paradigm. 

These WPATH standards also include recommendations for children and adolescents, in addition to adults. The standards for children are based on “a nuanced and individualized approach,” and acknowledge that there is sometimes a need for “rapid assessments that take place during an immediate crisis (e.g., safety assessment when a child may be suicidal).”¹³ The standards for adolescents also state that “an individualized approach to clinical care is considered both ethical and necessary.”¹⁴ 

In a 2008 resolution, the AMA affirmed that mental health care, hormone therapy, and gender affirmation surgeries are effective, safe, and medically necessary treatments for people diagnosed with gender dysphoria.¹⁵ The resolution further emphasizes that, without appropriate medical treatment, gender dysphoria can have consequences that include “clinically significant psychological distress, dysfunction, debilitating depression and, for some people without access to appropriate medical care and treatment, suicidality and death.”¹⁶ Numerous studies and meta-analyses—including a recent comprehensive literature review on the issue¹⁷—have similarly demonstrated the significant benefits of gender-affirming care in the treatment of gender dysphoria.¹⁸ 

¹⁰ See WPATH, supra note 1. 

¹¹ See WPATH, supra note 1 at 31. 

¹² Id. 

¹³ See WPATH, supra note 1 at 68. 

¹⁴ See WPATH, supra note 1 at 45. 

¹⁵ See AMA, supra note 6. 

¹⁶ Id. 

¹⁷ Cornell University, Public Policy Research Portal, What Does the Scholarly Research Say About the Effect Of Gender Transition on Transgender Well-Being? (Jun. 2017), available at: https://whatweknow.inequality.cornell.edu/topics/lgbt-equality/what-does-the-scholarly-research-say-about -the-well-being-of-transgender-people/. 

¹⁸ W. Byne et al., Report of the American Psychiatric Association Task Force on Treatment of Gender Identity Disorder, 41 Archives of Sexual Behavior 759 (2012); M. Colizzi, R. Costa & O. Todarello, Transsexual Patients’ Psychiatric Comorbidity and Positive Effect of Cross-Sex Hormonal Treatment on Mental Health: Results from a Longitudinal Study, 39 Psychoneuroendocrinology 65 (2014); A. Gorin-Lazard et al., Hormonal Therapy is Associated with Better Self-Esteem, Mood, and Quality of Life in Transsexuals, 201 J. Nervous & Mental Disorders 996 (2013); M. Hussan Murad et al., Hormonal Therapy and Sex Reassignment: A Systematic Review and Meta-Analysis of Quality of Life and Psychosocial 

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Every major medical association in the United States supports WPATH and Endocrine Society treatment protocols for medically necessary gender-affirming care and opposes exclusions of treatment for gender dysphoria, including for children and adolescents.¹⁹ 

2. Transgender people face discrimination in healthcare. 

Transgender people face substantial barriers to quality health care, including refusals of care and substandard care.²⁰ Despite the medical necessity of gender-affirming care, transgender people are targeted for denial of services even when the same services are covered for non-transgender people. This discriminatory treatment correlates with significant health disparities among transgender people. Said differently, the disproportionately poor health outcomes experienced by transgender individuals are the result of widespread stigma and mistreatment. The Institute of Medicine,²¹ Healthy People 2030,²²the Substance Abuse and Mental Health Services Administration,²³ and the National Healthcare Disparities Report²⁴ have concluded that transgender people 

Outcomes, 72 Clinical Endocrinology 214 (2010); G. De Cuypere et al., Sexual and Physical Health After Sex Reassignment Surgery, 34 Archives of Sexual Behavior 679 (2005); G. Garaffa, N.A. Christopher & D.J. Ralph, Total Phallic Reconstruction in Female-to-Male Transsexuals, 57 European Urology 715 (2010); C. Klein & B.B. Gorzalka, Sexual Functioning in Transsexuals Following Hormone Therapy and Genital Surgery: A Review, 6 J. of Sexual Medicine 2922 (2009). 

¹⁹ See, e.g., J. Rafferty, Committee on Psychosocial Aspects of Child and Family Health, Committee on Adolescence and Section on Lesbian, Gay, Bisexual, & Transgender Health and Wellness, Policy Statement: Ensuring Comprehensive Care and Support for Transgender and Gender Diverse Children and Adolescents, Pediatrics, 2018, 142(4):2018-2162; L.S. Beers, American Academy of Pediatrics Speaks Out Against Bills Harming Transgender Youth. American Academy of Pediatrics, 2021, available at: 

https://www.aap.org/en/news-room/news-releases/aap/2021/american-academy-of-pediatrics-speaks-out against-bills-harming-transgender-youth/; AACAP Statement Responding to Efforts to Ban Evidence-Based Care for Transgender and Gender Diverse Youth, American Academy of Child & Adolescent Psychiatry, 2019, available at: 

https://www.aacap.org/AACAP/Latest_News/AACAP_Statement_Responding_to_Efforts-to_ban_Evidenc e-Based_Care_for_Transgender_and_Gender_Diverse.aspx; AMA Fights to Protect Health Care for Transgender Patients, American Medical Association, 2021, available at: 

https://www.ama-assn.org/health-care-advocacy/advocacy-update/march-26-2021-state-advocacy-update ²⁰ See, e.g.,National Academies of Sciences, Engineering, and Medicine. 2020, p.7-8. Understanding the Well-Being of LGBTQI+ Populations. Washington, DC: The National Academies Press. https://doi.org/10.17226/25877 (“The physical and mental health of SGD populations is substantially affected by external influences that include discrimination, stigma, prejudice, and other social, political, and economic determinants of health…The disparities affecting SGD populations are driven by experiences of minority stress, which include both structural and interpersonal stigma, prejudice, discrimination, violence, and trauma.”); see also Institute of Medicine, The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for Better Understanding (2011), available at: https://nap.nationalacademies.org/resource/13128/LGBT-Health-2011-Report-Brief.pdf. ²¹ Id. 

²² See HHS, supra note 5. 

²³ Substance Abuse & Mental Health Servs. Admin, Top Health Issues for LGBT Populations (2012), available at: https://store.samhsa.gov/product/top-health-issues-lgbt-populations/sma12-4684. ²⁴ Agency for Healthcare Research & Quality, 2022 National Healthcare Quality and Disparities Report (2022), available at: 

https://www.ahrq.gov/research/findings/nhqrdr/nhqdr22/index.html.

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experience significant disparities in health indicators such as experiences of abuse and violence, mental and behavioral health concerns, and HIV infection because of health barriers and discrimination. This in turn links to higher levels of poverty, uninsurance, stigma, and discrimination²⁵—particularly when seeking health care.²⁶ By arbitrarily singling out the transgender population and creating barriers to healthcare otherwise provided to non-transgender people, the draft rules are clearly discriminatory. 

B. Federal law requires equal treatment for transgender people in healthcare services. 

1. Treating transgender people differently in the provision of healthcare services contravenes federal law, which prohibits discrimination on the basis of gender identity. 

Section 1557 of the Affordable Care Act applies existing federal civil rights protections to the provision of healthcare and prohibits people from being subject to discrimination, excluded from participation, or denied the benefits of federally funded health programs or activities based on race, color, national origin, sex, age, or disability.²⁷ Numerous federal courts have concluded that 1) Section 1557 prohibits discrimination on the basis 

²⁵ Joint Commission, Advancing Effective Communication, Cultural Competence, and Patient- and Family-Centered Care for the LGBT Community: A Field Guide (2011), 

https://www.jointcommission.org/-/media/tjc/documents/resources/patient-safety-topics/health-equity/lgbtfi eldguide_web_linked_verpdf.pdf. 

²⁶ S.E. James et al., The Report of the 2015 U.S. Transgender Survey 96–97 (2016), available at: https://www.ustranssurvey.org/reports/#2015report (finding that one-third of transgender respondents who saw a health care provider in the year prior to the survey were denied treatment, turned away or suffered mistreatment or discrimination for being transgender); C. Medina & L. Mahowald, Advancing Health Care Nondiscrimination Protections for LGBTQI+ Communities (2022), available at: 

https://www.americanprogress.org/article/advancing-health-care-nondiscrimination-protections-for-lgbtqi-c ommunities/ (finding that 15% of transgender or nonbinary people reported that a healthcare provider refused to provide gender-affirming care). 

²⁷ 42 U.S.C. § 18116. 

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of transgender status;²⁸ and 2) discriminatory coverage practices, such as exclusions of gender-affirming care, violate Section 1557.²⁹ 

Federal courts have found that exclusion of gender-affirming care in county and state employee health plans amounted to a “straightforward case of sex discrimination,” by treating transgender people differently based on sex, in violation of the Affordable Care Act, Title VII, and the Equal Protection Clause.³⁰ Courts have similarly found that even when a health program generally covers gender dysphoria treatment, maintaining medically unsupported exclusions of specific treatments for transgender beneficiaries could constitute discrimination, in violation of federal law.³¹ This has generally been interpreted to mean that standards cannot be imposed that are not supported by sound medical evidence for determining eligibility or medical necessity of gender-affirming procedures. 

²⁸ See, e.g., Fain v. Crouch, No. 3:20‐cv‐00740, 2022 WL 3051015 (S.D.W.V. August 2, 2022); Rumble v. Fairview Health Servs., No. 14–cv–2037, 2015 WL 1197415 (D. Minn. Mar. 16, 2015) (holding that discrimination against hospital patient based on his transgender status constitutes sex discrimination under Section 1557 of the Affordable Care Act); Flack v. Wis. Dep’t of Health Servs., No. 3:18‐cv‐00309‐wmc (W.D. Wis. July 25, 2018) (holding that a Medicaid program’s refusal to cover treatments related to gender transition is “text‐book discrimination based on sex” in violation of the Affordable Care Act and the Equal Protection Clause of the Constitution); Cruz v. Zucker, 195 F.Supp.3d 554 (S.D.N.Y. 2016) (holding exclusion invalid under the Medicaid Act and the Affordable Care Act); Prescott v. Rady Children’s Hosp.‐San Diego, 265 F.Supp.3d 1090 (S.D. Cal. Sept. 27, 2017) (holding that discrimination against transgender patients violates the Affordable Care Act); Tovar v. Essentia Health, No. 16‐cv‐00100‐ DWF‐LIB (D. Minn. September 20, 2018) (holding that Section 1557 of the Affordable Care Act prohibits discrimination on the basis of gender identity); Boyden v. Conlin, No. 17‐cv‐264‐WMC, 2018 (W.D. Wis. September 18, 2018) (holding that a state employee health plan refusal to cover transition‐related care constitutes sex discrimination in violation of Title VII, Section 1557 of the ACA, and the Equal Protection Clause). Other federal courts have found that similar federal sex discrimination laws also prohibit anti‐transgender discrimination. See, e.g., Whitaker v. Kenosha Unified School District, No. 16‐3522 (7th Cir. 2017) (Title IX and Equal Protection Clause); Dodds v. U.S. Dep’t of Educ., 845 F.3d 217 (6th Cir. 2016) (Title IX and Equal Protection Clause); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (Equal Protection Clause); Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) (Title VII of the 1964 Civil Rights Act); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (Title VII); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) (Equal Credit Opportunity Act); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (Gender Motivated Violence Act); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (Title VII); Grimm v. Gloucester County School Board, No. 4:15‐cv‐54 (E.D. Va. May 22, 2018) (holding that denying a transgender boy access to school restrooms matching his gender violated Title IX and the Equal Protection Clause of the U.S. Constitution); M.A.B. v. Board of Education of Talbot County, 286 F. Supp. 3d 704 (D. Md. March 12, 2018) (holding that prohibiting a transgender boy from boys’ locker room based on transgender status is a Title IX sex‐discrimination claim as well as a gender‐stereotyping claim); A.C. by M.C. v. Metro. Sch. Dist. of Martinsville, 75 F.4th 760 (7th Cir 2023), cert. denied sub nom, Metro. Sch. Dist. v. A.C., No. 23-392, 2024 WL 156480 (U.S. Jan. 16, 2024) (holding that disallowing a transgender student from using the restroom in accordance with gender identity violated Title IX and likely equal protection rights). 

²⁹ See, e.g., Flack v. Wis. Dep’t of Health Servs., No. 3:18-cv-00309-wmc; Cruz v. Zucker, 195 F.Supp.3d 554; Tovar v. Essentia Health, No. 16-cv-00100-DWF-LIB; Boyden v. Conlin, No. 17-cv-264-WMC, 2018. ³⁰ Boyden v. Conlin, No. 17-cv-264-WMC. See also Kadel v. Folwell (M.D.N.C. Aug. 10, 2022), on Title VII and Equal Protection Clause grounds; Lange v. Houston County, No. 19-CV-392, 2022 WL 1812306, at *8 (M.D. Ga. June 2, 2022), on Title VII grounds. 

³¹ Cruz, 195 F.Supp.3d at 571; Jesse McKinley, For Transgender Youths in New York, It Would Be a Health Care Milestone, N.Y. Times (Oct. 5, 2016). 

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The proposed regulations here violate Section 1557, would require providers to violate Section 1557, and should be withdrawn. 

2. There is growing momentum at the federal level to remove provisions that single out transgender people to be treated differently in healthcare. 

Federal regulators increasingly recognize that transgender-specific exclusions and differential treatment contravene scientific evidence and existing legal standards that prohibit discrimination on the basis of sex and gender identity. The HHS Departmental Appeals Board prohibited the use of transgender-specific exclusions in the Medicare program after concluding that sex reassignment surgery “is safe and effective and not experimental,” “has gained broad acceptance in the medical community,” and “is an effective treatment option.”³² The U.S. Office of Personnel Management directed Federal Employee Health Benefit plans to eliminate blanket exclusions for gender-affirming care in 2015,³³ and called for enhanced coverage of services related to gender dysphoria in 2023.³⁴ 

Although there were attempts to roll back explicit protections for transgender consumers in its regulations to implement Section 1557, these efforts were enjoined.³⁵ New rules reinstating those protections in federal regulations are expected to be finalized in the coming weeks. However, the current lack of interpretive agency regulations does nothing to affect the obligations of covered entities under the Section 1557 underlying federal statute. For example, in Prescott v. Rady’s Children Hospital San Diego, the district court considered a lawsuit filed by the mother of a deceased transgender child alleging that a children’s hospital had violated Section 1557 by discriminating against her son, Kyler Prescott, because of his transgender status. The district court reaffirmed that Section 1557 of the ACA’s sex discrimination protection includes discrimination on the basis of transgender identity. The court based its conclusion on longstanding circuit court case law on Title VII and Title IX. Because the court held that the underlying statute of Section 1557 prohibits discrimination on the basis of transgender status independently of its implementing regulation, the court 

³² Departmental Appeals Board, NCD 140.3, Transsexual Surgery, Decision No. 2576 (2014), available at: https://www.hhs.gov/sites/default/files/static/dab/decisions/board-decisions/2014/dab2576.pdf. As a result, the Board concluded that it is unreasonable to categorically deny such care to transgender people, and medically necessary care related to gender transition, including gender confirmation surgeries, is now available to Medicare beneficiaries. 

³³ FEHB Program Carrier Letter No. 2015-12, Covered Benefits for Gender Transition Services (June 24, 2015). ³⁴ FEHB Program Carrier Letter No. 2023-23, Coverage for Gender Affirming Care and Services (May 23, 2023). 

³⁵ See, e.g., Walker v. Azar, No. 20CV2834FBSMG, 2020 WL 6363970, at *4 (E.D.N.Y. Oct. 29, 2020) (staying repeal of 2016 rule’s definition of “on the basis of sex,” “gender identity,” and “sex stereotyping” set forth in 45 C.F.R. § 92.4 and of 45 C.F.R. § 92.206); Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Human Servs., 485 F. Supp. 3d 1, 64 (D.D.C. 2020). 

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denied the hospital’s request for the case to be stayed based on injunction of the regulations. According to the court, “the ACA claim and the Court’s decision under the ACA do not depend on the enforcement or constitutionality of the HHS’s regulation.”³⁶ 

Additionally, existing federal regulations explicitly prohibit discrimination on the basis of sex,³⁷ and apply to the draft rules here.³⁸ 

In states that have enacted bans on gender-affirming care for minors, every federal district court to consider the issue plus the Eighth Circuit have determined that outlawing care for transgender people that is allowable for non-transgender people creates sex-based classifications that would fail heightened constitutional scrutiny.³⁹ 

II. Draft Rule 5122-26-19 amounts to government restriction of lifesaving care. 

The draft rules proposed by OMHAS lack scientific and medical basis, are discriminatory, amount to government restriction of lifesaving care and should be withdrawn in their entirety. Governor DeWine has repeatedly acknowledged that gender-affirming care saves lives. In his statement vetoing Substitute House Bill 68 restricting gender-affirming care for minors, Governor DeWine recognized that “this is about protecting human life.”⁴⁰ He elaborated that “[m]any parents have told me that their child would be dead today if they had not received the treatment they received from an Ohio children’s hospital,” and that he has also heard “from those that are now grown adults, that but for this care, they would have taken their lives when they were teenagers.”⁴¹In his remarks at the veto press conference, he stated, “Parents looked me in the eye and told me that their child is alive today only because of the gender-affirming care that they have received. And, youth who have transitioned to a 

³⁶ Prescott v. Rady Children’s Hosp.-San Diego, 265 F. Supp. 3d 1090, 1105 (S.D. Cal. 2017). See also: Boyden v. Conlin, 2018 WL 2191733 (W.D. Wis. May 11, 2018) (denying defendants’ motion to stay by affirming that plaintiffs relied on Section 1557 itself to bring discrimination claims based on transgender status, and that Franciscan Alliance is not controlling authority). 

³⁷ 45 C.F.R. § 92.2 (prohibiting discrimination on the basis of sex). 

³⁸ See 45 C.F.R. § 92.3(b) (“As used in this part, “health program or activity” encompasses all of the operations of entities principally engaged in the business of providing healthcare that receive Federal financial assistance as described in paragraph (a)(1) of this section.”). 

³⁹ See Eknes-Tucker v. Marshall, 603 F. Supp.3d 1131 (M.D. Ala. 2022), rev’d, 80 F.4th 1205 (11th Cir. 2023); Brandt v. Rutledge, 551 F. Supp. 3d 882, 892-93 (E.D. Ark. 2021), aff’d, 47 F.4th 661 (8th Cir. 2022); see also Koe v. Noggle, No. 1:23-CV-2904-SEG, 2023 WL 5339281 (N.D. Ga. Aug. 20, 2023), preliminary injunction stayed, No. 1:23-CV-2904-SEG (N.D. Ga. Sept. 5, 2023); Brandt v. Rutledge, No. 4:21CV00450-JM, 2023 WL 4073727 (E.D. Ark. June 20, 2023); K.C. v. Individual Members of Med. Licensing Bd. of Indiana, No. 1:23-cv-00595-JPH-KMB, 2023 WL 4054086 (S.D. Ind. June 16, 2023); Doe v. Ladapo, No. 4:23cv114-RH-MAF, 2023 WL 3833848 (N.D. Fla. June 6, 2023), appeal filed, No. 23-12159 (11th Cir. June 27, 2023). 

⁴⁰ Governor Mike DeWine, Veto Message: Statement of the Reasons for the Veto of Substitute House Bill 68 (Dec. 29, 2023). 

⁴¹ Id. 

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new gender told me that they are thriving today because of that transition.”⁴² As detailed above, numerous studies support the scientific consensus that gender-affirming care is critically important to prevent life-threatening conditions.⁴³ However, these rules do nothing to support the wellbeing of transgender people and should be withdrawn. 

A. Draft Rule 5122-26-19 will make gender-affirming care inaccessible to a majority of transgender and gender-diverse people in Ohio with no rational basis in science or ethics. 

Subsections (B)(1) and (B)(2) require the employment of or contract with a board-certified psychiatrist and a board-certified endocrinologist with experience treating patients in the applicable age group in order to provide mental health services related to gender dysphoria. Subsection (B)(3) requires that care plans be reviewed by a medical ethicist, implying that employment of or contract with a person with expertise in medical ethics is also required. 

1. Restrictions that affect youth and adults create barriers to medically necessary care. 

The requirement that a provider must employ or have a contractual relationship with a board-certified psychiatrist and endocrinologist in order to provide gender transition services does not make sense for mental health providers. Although the term “provider” is not defined in the draft rule, the proposed addition of the rule to Chapter 5122-26, Policies and Procedures for the Operation of Mental Health Services Agencies, suggests that the rule applies to healthcare professionals “providing mental health and addiction services.”⁴⁴ Upon Equality Ohio’s information and belief, many transgender patients receive their care from smaller clinics and not large hospital systems, and mental health providers in Ohio typically provide services in smaller practices that cannot support multiple specialists. 

2. The multidisciplinary team requirements are arbitrary and not based in current science or treatment protocols for mental health treatment for gender dysphoria. 

The multidisciplinary team requirements do not make sense for mental health services providers. In particular, the requirement that mental health practices integrate an endocrinologist in order to provide therapy to transgender people is unwarranted and not supported by existing treatment protocols for mental health services, nor are the 

⁴² Governor Mike DeWine, Statement as Prepared: House Bill 68 Press Conference (Dec. 29, 2023), available at: 

https://content.govdelivery.com/attachments/OHIOGOVERNOR/2023/12/29/file_attachments/2731773/Go vernor_Mike_DeWine_Prepared_Remarks_December_29_2023.pdf. 

⁴³ See WPATH, supra notes 11-14. 

⁴⁴ Ohio Admin. Code § 5122-26-02. 

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services of a medical ethicist to review individual care plans. Additionally, the requirement to employ or have a contractual relationship with a psychiatrist is arbitrarily limiting, since there are many other mental health occupations such as counselors and social workers who provide mental health services to transgender and gender-diverse Ohioans.⁴⁵ 

3. Singling out services for one particular condition is stigmatizing, unethical, and discriminatory. 

Imposing these requirements for the treatment of all transgender and gender-diverse people when they do not apply to the treatment of people who are not transgender does not meet standards of care, is unethical, and discriminates based on sex. Requiring review by a medical ethicist does not make these rules more ethical; it makes them less ethical because it implies that providing mental health services to people seeking care for gender dysphoria is otherwise inherently unethical. This approach singles out youth and adults seeking assistance with one particular condition to impose arbitrary barriers that are not applied to other conditions. Again, these medical services are not unique to transgender people and are regularly covered by insurance companies for non-transgender people for purposes such as treating injuries or for cancer treatment or prevention. For example, to our knowledge, treatment plans for people seeking assistance with depression or anxiety do not require review and approval by a medical ethicist. Requiring this review for treatment plans related to gender dysphoria stigmatizes an already marginalized community. The rules also create a sex-based classification for which there is no rational basis, let alone an important governmental interest, which violates the right of transgender and gender-diverse people to equal protection of the laws. 

B. The requirement that the care plan address detransition is unwarranted and not supported by science or current standards of care. 

Subsection (B)(3)(c) requires that the multidisciplinary care plan contain a “detailed plan of action for patients seeking to detransition.” The WPATH standards state that any “decision to detransition appears to be rare”⁴⁶ and that population estimates “are likely to be overinflated.”⁴⁷ The WPATH standards go so far as to emphasize that “[t]he existence of these rare requests must not be used as a justification to interrupt critical, medically necessary care, including hormone and surgical treatments, for the vast 

⁴⁵ See, e.g., Ohio Department of Mental Health and Addiction Services, “Supporting Providers: Licensure & Certification,” available at: https://mha.ohio.gov/supporting-providers/licensure-and-certification. ⁴⁶ See WPATH, supra note 1 at 41. 

⁴⁷ Id. 

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majority of TGD adults.”⁴⁸Indeed, the standards for children, adolescents, and adults all require an individualized assessment⁴⁹that may or may not involve the need for a plan to detransition. 

C. Requiring disclosure of specific care plans in order to demonstrate compliance with Draft Rule 5122-26-19 raises concerns about the privacy of the therapist-client relationship. 

Subsection (F) of Draft Rule 5122-26-19 requires annual demonstration of compliance with the rule, including “at a minimum, submission of the care plan described in paragraph (B)(3) of this rule.” Subsection (B)(3) refers to the description of “the specific services to be provided” as a required component of the multidisciplinary care plan. Requiring the annual compliance certification to include submission of the care plan violates mental health practitioners’ ethical requirements to maintain confidentiality. The American Counseling Association’s Code of Ethics notes that “trust is a cornerstone of the counseling relationship. Counselors aspire to earn the trust of clients by creating an ongoing partnership, establishing and upholding appropriate boundaries, and maintaining confidentiality.”⁵⁰ Section (B)(1)(c) of the Code of Ethics requires that “[c]ounselors protect the confidential information of prospective and current clients”⁵¹ and that “[c]ounselors disclose information only with appropriate consent or with sound legal or ethical justification.”⁵² The National Association of Social Workers likewise maintains an ethical standard that “[s]ocial workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons.”⁵³ There is no compelling governmental reason to break these ethical precepts in order to disclose a description of the specific services provided in an annual compliance certification. 

D. The requirement of six months of mental health evaluation and counseling for youth and adults under age 21 is unjustified and inconsistent with science and treatment protocols. 

Subsection (C) of Draft Rule 5122-26-19 requires that any minor and any adult age 18-20 must first receive a “comprehensive mental health evaluation and counseling over 

⁴⁸ Id. 

⁴⁹ See WPATH, supra notes 11-14. 

⁵⁰ American Counseling Association, 2014 ACA Code of Ethics at 6, available at: https://www.counseling.org/docs/default-source/default-document-library/2014-code-of-ethics-finaladdress .pdf?sfvrsn=96b532c_8. 

⁵¹ Id. at 7. 

⁵² Id. 

⁵³ National Association of Social Workers, Code of Ethics, Social Workers’ Ethical Responsibilities to Clients, Ethical Standard 1.07, Privacy and Confidentiality, available at: 

https://www.socialworkers.org/About/Ethics/Code-of-Ethics/Code-of-Ethics-English/Social-Workers-Ethica l-Responsibilities-to-Clients. 

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a period of not less than six months” before they can proceed with additional gender-affirming care. 

1. Requiring counseling in every instance is not necessary, and such requirements can cause harm. 

The WPATH Standards of Care related to mental health contain important statements that (1) “transgender identity is not a mental illness,”⁵⁴(2) “findings from research involving clinical populations should not be extrapolated to the entire transgender population,”⁵⁵(3) “[m]any TGD people will not require therapy or other forms of mental health care as part of their transition,”⁵⁶ and (4) “[r]ather than impose their own narratives or preconceptions, [mental healthcare providers] should assist their clients in determining their own paths.”⁵⁷ These underlying values are consistent with WPATH’s chapters on care for children, adolescents, and adults, that require an individualized assessment.⁵⁸ 

In fact, the standards of care expressly recommend against requiring psychotherapy prior to the initiation of gender affirming care.⁵⁹ Although it is helpful for many, “a requirement for psychotherapy for initiating gender-affirming medical procedures has not been shown to be beneficial and may be a harmful barrier to care for those who do not need this type of treatment or who lack access to it.”⁶⁰ 

While psychotherapy is recommended for gender-diverse children, it must be based on individualized assessment. WPATH suggests that healthcare providers should “consider” psychotherapy when “families and health care professionals believe this would benefit the well-being and development of a child and/or family.”⁶¹ 

While the WPATH standards for adolescents do not directly address psychotherapy, they do recommend a comprehensive biopsychosocial assessment.⁶² This standard maintains the individualized approach and recommends “assessment models that are flexible and allow for appropriately timed care for as many young people as possible, so long as the assessment effectively obtains information about the adolescent’s strengths, vulnerabilities, diagnostic profile, and individual needs.”⁶³ Requiring a set period of time 

⁵⁴ See WPATH, supra note 1 at 171. 

⁵⁵ Id. 

⁵⁶ Id. 

⁵⁷ Id. 

⁵⁸ See WPATH, supra notes 11-14. 

⁵⁹ See WPATH, supra note 1 at 175, Statement 18.9. 

⁶⁰ Id. 

⁶¹ See WPATH, supra note 1 at 73, Statement 7.8. 

⁶² See WPATH, supra note 1 at 50, Statement 6.3. 

⁶³ See WPATH, supra note 1 at 51. 

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for the assessment is not consistent with the recommendation that it be flexible according to individual needs. 

Because the draft rule impacts adults aged 18-20, WPATH’s standards for adults are also relevant. The Standards of Care for adults specify that “[c]ounseling or psychotherapy can be helpful when requested by a TGD person. However, counseling or psychotherapy specifically focused on their TGD identity is not a requirement for the assessment or initiation of GAMSTs.”⁶⁴ 

If there is any across-the-board recommendation to be gleaned from treatment protocols, it is that across-the-board recommendations should be avoided and that individualized assessments should be employed. 

2. “Counseling” is not a defined term and could lead to harmful treatments that seek to change a transgender person’s gender identity. 

Because the draft rule simply refers to “counseling” without any guidance as to what that term means, it leaves transgender and gender-diverse people vulnerable to the imposition of gender identity change efforts. WPATH’s mental health standards unequivocally caution that “‘reparative’ and ‘conversion’ therapy aimed at trying to change a person’s gender identity and lived gender expression to become more congruent with the sex assigned at birth should not be offered.”⁶⁵ These procedures have not been proven to be effective, and in fact, have been proven to cause harm.⁶⁶ These deleterious effects can include lower educational attainment, less weekly income, increased depression, substance abuse, and suicidal thoughts and attempts.⁶⁷ 

3. The grandfathering provision is unclear and could lead to absurd and harmful results. 

While subsection (G) exempts treatment for patients under age 21 that was initiated prior to the effective date of the draft rule, it only exempts the requirements for a multidisciplinary team and care plan (subsection (B)). Therefore the subsection (C) requirement for a six-month period of mental health evaluation and counseling was not grandfathered. It is unclear whether this was an inadvertent oversight, or whether it means that only those patients who are still under age 21 at the time the rules go into effect must have a prior six-month period of mental health evaluation and counseling. The lack of clarity means that some patients who were under age 21 when they initiated care but are now, say, age 41, must stop the care they have been receiving for decades 

⁶⁴ See WPATH, supra note 1 at 31. 

⁶⁵ See WPATH, supra note 1 at 176, Statement 18.10. 

⁶⁶ Id., citing the American Psychological Association’s 2021 “Resolution on gender identity change efforts,” available at: https://www.apa.org/about/policy/resolution-gender-identity-change-efforts.pdf. ⁶⁷ Id. 

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until they undergo this six-month period of evaluation and counseling, an unwarranted procedure and cost that may have detrimental physical and emotional impacts.⁶⁸ 

III. Draft Amended Rule 5122-14-12 amounts to government restriction of lifesaving care. 

The amendment to the psychiatric hospital licensing rule is particularly cruel as well as unethical, arbitrary, discriminatory, and against science and standards of care. 

A. The draft amendment is cruel. 

The amendment to the licensing rule falls under subsection (H), which specifically states the intent and purpose to “promote recovery and meet the comprehensive needs of each patient.”⁶⁹ The proposed amendment not only does not further those ends, it makes it much more difficult to meet those goals for people who are at some of the most vulnerable moments of their lives having a psychiatric crisis. 

B. The draft amendment is unethical. 

Inpatient psychiatric units can be quasi-carceral environments where residents have less control over managing their health needs, giving rise to an additional responsibility for the hospital to comprehensively meet the needs of their residents, as required by the existing rules. 

Furthermore, the psychiatric patients’ bill of rights protects the rights to: (1) “receive humane services;”⁷⁰(2) “a current individualized treatment plan (ITP) that addresses the needs and responsibilities of an individual that specifies the provision of appropriate and adequate services, as available, either directly or by referral;”⁷¹ and (3) “participate in any appropriate and available service that is consistent with an individual service/treatment plan.”⁷² Refusing to initiate or to continue medically necessary is not in keeping with the ethical requirements to do no harm and to act for the benefit of the patient. 

C. The draft amendment is arbitrary. 

The age of majority in Ohio is eighteen years of age.⁷³ Disallowing gender affirming care for adults age 18-20 while (presumably) allowing the care for adults age 21 and older is an arbitrary limit not based in science. 

⁶⁸ See WPATH, supra note 1 at 174, Statement 18.6 

⁶⁹ Ohio Admin. Code § 5122-14-12(H). 

⁷⁰ Ohio Admin. Code § 5122-14-11(B)(2)(b). 

⁷¹ Ohio Admin. Code § 5122-14-11(B)(3)(a). 

⁷² Ohio Admin. Code § 5122-14-11(B)(2)(c). 

⁷³ Ohio Rev. Code § 3109.01 (1974). 

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D. The draft amendment is discriminatory. 

The approach identified by the draft amendment is squarely in the realm of “freeze frame”⁷⁴ schemas: whatever state of gender affirmation a resident is in when they come in, is where they have to stay, regardless of what their medical and psychiatric needs are. It is unimaginable that inpatient psychiatric hospitals would apply these rules to undiagnosed diabetic residents; yet diabetes is simply another endocrine condition. Treating transgender and gender-diverse residents differently on the basis of their gender identity is stigmatizing and discriminatory based on a sex-based classification. 

E. The draft amendment goes against science and current standards of care. 

It is likewise harmful to disallow the continuance of medications that a resident was taking prior to admission to an inpatient psychiatric hospital or to prevent initiating medically necessary care. Current medical and psychiatric standards of care agree that such regimens run counter to the health and well-being of residents and should be avoided. WPATH’s mental health standards expressly state that existing hormone treatment should be maintained if a transgender or gender-diverse person is admitted to a psychiatric inpatient unit.⁷⁵ The standards cite a lack of evidence that routine cessation of such treatment is beneficial, while citing an evidence base establishing that hormone treatment can reduce depression, anxiety, and suicide attempts. Stopping hormone treatments “therefore may be counter to the goals of hospitalization.”⁷⁶ 

Conclusion 

Thank you for the opportunity to comment on the draft rules. For the aforementioned reasons, we respectfully request the withdrawal of Draft Rule 5122-26-19 and Draft Amended Rule 5122-14-12. If you have any questions about our comments, please feel free to contact us at policy@equalityohio.org. 

Sincerely, 

Siobhan Boyd-Nelson 

Co-Interim Executive Director, Equality Ohio 

James Knapp, Esq. 

Co-Chair, TransOhio 

⁷⁴ See, e.g., A. Stathers, Freeze Frames and Blanket Bans: The Unconstitutionality of Prisons’ Denial of Gender Confirmation Surgery to Transgender Inmates, 127 Dick. L. Rev. 243 (2022), available at: https://ideas.dickinsonlaw.psu.edu/cgi/viewcontent.cgi?article=1162&context=dlr. ⁷⁵ See WPATH, supra note 65. 

⁷⁶ Id. 

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Olivia Hunt 

Policy Director, National Center for Transgender Equality 

Heron Greenesmith 

Policy Director, Transgender Law Center 

Alana Jochum 

Policy Director, Transgender Legal Defense and Education Fund Page 18 of 18