Ohio’s children and youth who are transgender, gender diverse or questioning their gender identities should be able to go to school to learn, just like every other student.

Decades of research teaches us that all students need understanding, support and acceptance in order to thrive and grow into healthy and productive adults. Legislation introduced in the Ohio House, House Bill 658, would limit the ability of school teachers and school-based mental health professionals, such as counselors, social workers and school psychologists, to do what is in the best interests of their students, specifically those students who identify as transgender or gender diverse or who are still questioning their gender identities.

Due to the stigma, discrimination and prejudice that these students face in their families, schools and other community settings, research has shown that transgender and gender-diverse children and youth are more likely to consider suicide and experience anxiety and depressive symptoms than their non-transgender peers. The proposed legislation would likely introduce additional harm to a population of young people who are already at heightened risk for adverse outcomes. It also would limit the ability of school personnel to provide supportive school environments where transgender and gender-diverse students can succeed academically and socially.

HB 658 would make it more difficult for transgender, gender-diverse and questioning youth to get the support they need in schools and from mental health professionals, medical professionals and other social service providers. As the bill states, any “government agent or entity” (e.g., public school teacher, counselor, social worker) who provides “treatment” to a child or adolescent who exhibits gender dysphoria (i.e., discomfort with their sex assigned at birth), without the notification and consent of parents or guardians, can be charged with a felony. As noted in the text of the bill, “treatment” includes education, such as providing a student with information about what it means to be transgender or where to find help.

The text of the bill referencing “treatment for gender dysphoria” may lead people to conflate medical interventions with psychosocial support. Indeed, for many transgender, gender-diverse, and questioning youth, treatment under the age of 18 involves social transitioning (for example, use of preferred pronouns and name) or reversible medical interventions (e.g., prescriptions that delay puberty). Research has revealed that these types of reversible interventions help transgender youth thrive; indeed, when provided with these treatments, most of the differences previously documented between transgender and cisgender (those not transgender) youth disappear (for example, depression, suicide risk). Ohio parental consent is already required by law for a minor to receive gender-affirming medical and mental health treatment. Therefore, this bill is not necessary and instead would likely further the isolation and stigma experienced by transgender and gender-diverse youth.

I believe that most Ohioans would not support a law that would keep a school-based mental health professional from talking to a child or adolescent about possible gender-related distress that student might be experiencing. Beyond public disagreement, the ethical principles of school counselors, school psychologists and social workers, among others would be compromised by this potential law.

Karla Anhalt, a licensed psychologist, noted that the National Association of School Psychologists’ Principles for Professional Ethics specifically states that ”[School psychologists] do not share information about the sexual orientation, gender identity, or transgender status of a student (including minors) ... without that individual’s permission.” Acceptance and support play a critical role in reducing negative health outcomes for transgender and gender-diverse youth. HB 658 would make it more difficult for public school employees to do their jobs, and indeed, threatens them with criminal prosecution for doing so.

This past May, the Michigan Civil Rights Commission decided that the state’s ban on discrimination on the basis of sex allowed them to investigate discrimination against LGBTQ people.

Now the Republican attorney general of the state issued a legal opinion declaring the Commission’s decision “invalid.”

Attorney General Bill Schuette’s opinion said that the Commission overstepped its authority in May.

The Commission is allowed to interpret state law, but its interpretation is “invalid because it conflicts with the original intent of the Legislature as expressed in the plain language.”

He said that the Commission’s authority “cannot be used to change the statute or to enforce the statute in a way that conflicts with the law’s plain meaning.”

A spokesperson for Schuette said that his opinion is binding on state agencies, but some LGBTQ advocates disagree.

“Once again LGBT Michiganders are going to be the only people in our state who don’t have access to civil rights laws,” said Stephanie White of Equality Michigan. “And that, of course, will be a tragedy.”

White said that Equality Michigan disagrees with his opinion, “and so do the top legal minds in the state who had looked at this.”

The Commission’s interpretation of state law falls in line with several federal court decisions that interpret anti-LGBTQ discrimination as a form of sex discrimination.

Federal law has banned many forms of discrimination on the basis of sex for decades, and courts have already interpreted these bans to include discrimination on the basis of sex stereotypes. Firing someone just because they’re a woman is illegal, and so is firing her if she’s a woman who doesn’t present as feminine enough.

The argument then goes that firing a woman who is in a relationship with woman is discrimination if the employer would not have fired a man who is in a relationship with a woman.

Jay Kaplan of the ACLU of Michigan said accused Schuette of cherry-picking federal cases to cite in his opinion and ignoring a key decision from the 6th U.S. Circuit Court of Appeals, which covers Michigan.

In March, that court ruled that a man who fired a transgender woman had engaged in sex discrimination under Title VII, not because he fired the worker for being a woman, but because he fired her for failing to live up to sex stereotypes.

“He wanted to reach the conclusion he reached,” Kaplan said.

Schuette cited the legislature’s refusal to pass bills that would have added sexual orientation and gender identity to the state’s laws.

“This is about an unelected commission making law when the Constitution expressly gives that ability only to the Legislature,” said a spokesperson for Schuette.

Kaplan said that it’s “questionable” whether Schuette’s opinion is binding on the Commission.

A federal judge in Madison has ordered the state to pay for surgeries that two transgender Medicaid recipients need to treat their gender dysphoria.

Cody Flack of Green Bay and Sara Ann Makenzie of Baraboo sued in April, saying Wisconsin's rule denying all coverage for such surgeries violated the Affordable Care Act and their equal protection rights.

On Wednesday, U.S. District Judge William Conley, in a 39-page order, granted a preliminary injunction barring enforcement of the rule in question. He found the plaintiffs showed a reasonable likelihood of prevailing on their claims.

"The likelihood of ongoing, irreparable harm facing these two individual plaintiffs outweighs any marginal impacts on the defendants’ stated concerns regarding public health or limiting costs," Conley wrote.

The judge also suggested he might be inclined to expand the injunction to include any transgender Medicaid patient whose doctor recommends the surgery.

Rock Pledl, a Milwaukee attorney for the plaintiffs, said Flack could get his surgery in two or three weeks, and Makenzie, because of where she is in a paperwork process with an HMO, in a couple of months.

"This is tremendous," Pledl said of the ruling.

Conley told the state he would not stay his order pending appeal to the 7th U.S. Circuit Court of Appeals, and declined to order the plaintiffs — who are indigent — to post any bond.

22-year-old rule excludes coverage 

The Wisconsin rule that excludes coverage for undefined "transsexual surgery" was adopted in 1996.

Wisconsin Medicaid has a budget of approximately $9.7 billion to cover about 1.2 million eligible residents. An estimated 5,000 of those enrolled are transgender; some of them suffer from gender dysphoria, a range of conditions in those who identify as a gender other than the one assigned at birth.

The state argued it could cost about $2.1 million to covering the procedures for all Wisconsin Medicaid beneficiaries. Conley questioned the figure, and wrote that if the injunction were expanded, the state would have more opportunity to provide better cost data.

Conley also noted that during oral arguments on the plaintiffs' motion July 19, the state could not point to another exclusion of Medicaid coverage based on cost versus medical efficacy.

Wisconsin's rule, he said, "feeds into sex stereotypes by requiring all transgender individuals receiving Wisconsin Medicaid to keep genitalia and other prominent sex characteristics consistent with their natal sex no matter how painful and disorienting it may prove for some."

Flack identified as a boy early

Flack, 30, has cerebral palsy, uses a motorized wheelchair and relies on Supplemental Security Income for the disabled as his sole support. He first identified as a boy at age 5, according to the suit, and began trying to transition to his male identity around 18.

After moving to Green Bay in 2012, he changed his name and his haircut and then began hormone therapy.

In October 2016, he had a hysterectomy. Because, technically, that was to treat dysmenorrhea, pain during menstruation, the surgery was covered by Medicaid — even though it also eased his gender dysphoria by making him feel more male.

Makenzie, 41, is also disabled and relies on Supplemental Security Income, and has been living as a woman since 2012.

She has been getting estrogen since 2013 — even though, under the regulation, it would be prohibited — and it has helped her. Both she and Flack fear that their hormone coverage might be rescinded at any time, since it also appears to be prohibited by the regulation, but was nevertheless approved.

While Flack seeks removal of his female breasts, Makenzie seeks genital transformation surgery. She took out a $5,000 loan to pay for breast implants after being denied Medicaid coverage.

After breast augmentation , Makenzie she has reported less mistreatment for being perceived as male. But she can't afford to take a loan for genital reconstruction, a much more expensive procedure.

10 states deny coverage

Wisconsin is one of 10 states that deny Medicaid coverage of treatments for gender transition, according to the lawsuit. Nineteen states explicitly cover, and the rest have no explicit policy either way.

Whether changes to a patient's body or appearance is just a cosmetic desire or a medical necessity has long been debated by insurers. Doctors who treat transgender patients say it often is clearly the latter.

During Flack's appeal of his denial of coverage for a double mastectomy, the Department of Health Services acknowledge gender dysphoria is an accepted reason for the surgery, but an administrative law judge cited the rule against "transsexual surgery" in affirming the denial.

In the current lawsuit, the state argues the procedures have no proven medical benefit, despite detailed evidence from the plaintiffs' doctors about their patients' sustained efforts to conform their genders by other means, and the negative health consequences of being denied the surgeries.