Tuesday, March 24, 2026
Madeline Moe et al. v. Ohio Attorney General Dave Yost et al., Case No. 2025-0472
Tenth District Court of Appeals (Franklin County)
Disciplinary Counsel v. Darin L. Avery, Case No. 2025-1635
Richland County
Does Ohio Constitution Allow Bans on Medications for Gender Transitions for Minors?
Madeline Moe et al. v. Ohio Attorney General Dave Yost et al., Case No. 2025-0472
Tenth District Court of Appeals (Franklin County)
ISSUES:
- Does the due course of law clause in the Ohio Constitution give parents the right to obtain medications for gender transitions for a child?
- Does the Health Care Freedom Amendment in the Ohio Constitution give parents the right to obtain medications for gender transitions for a child?
BACKGROUND:
The General Assembly enacted House Bill 68 in December 2023, and the legislation went into effect in April 2024. A substantial part of H.B. 68 enacted new laws in R.C. Chapter 3129 regarding “gender transition services” for minors. Among the provisions, called the “Saving Adolescents from Experimentation Act,” are prohibitions preventing physicians from prescribing puberty-blocking medications or sex hormones for the purpose of assisting with gender transitions for anyone under age 18.
In March 2024, two families filed a request in court to put the law on hold and challenged the medication prohibitions. The families, who are using pseudonyms, are Gina and Garrett Goe of Columbus and their 12-year-old, Grace, and Michael and Michelle Moe of Cincinnati and their 12-year-old, Madeline. Both children are transgender. The Goes noted that Grace, who has been diagnosed with gender dysphoria, isn’t on puberty blockers but might want the option if recommended by health care providers when she begins showing signs of puberty. Puberty-blocking medications suppress certain hormones to delay the onset of puberty when it starts. The Moes stated that Madeline, also diagnosed with gender dysphoria, was prescribed and is taking puberty blockers and the family has discussed the possibility of her taking sex hormones in the future. Hormone therapy induces puberty that is consistent with a patient’s gender identity.
Families Allege Violations of Ohio Constitutional Rights
The motion was filed in the Franklin County Common Pleas Court against the state, the Ohio attorney general, and the State Medical Board of Ohio. Based on the Ohio Constitution, the families alleged that the bill violated the one-subject rule and that the medication prohibitions violated the due course of law clause, the guarantee of equal protection, and the Health Care Freedom Amendment (HCFA). After a trial with expert testimony on both sides, the court rejected the claims in August 2024, finding H.B. 68 is constitutional.
The families appealed to the Tenth District Court of Appeals, which disagreed with the trial court and concluded that the law is unconstitutional based on two of the families’ claims. The Tenth District ruled that the due course of law clause gives parents a fundamental right to make decisions concerning the care, custody, and control of their children. That right includes seeking treatment for gender dysphoria for their children in consultation with physicians and medical professionals, the appeals court determined.
The Tenth District also pointed out that the HCFA bans laws that “prohibit the purchase or sale of health care or health insurance” and that the trial court found gender transition services are health care. The appeals court concluded that the HCFA protects the constitutional right of Ohioans to obtain medical care such as gender transition services.
The appeals court didn’t address the single-subject or equal protection claims. It remanded the case to the trial court to impose a permanent injunction on the enforcement of H.B. 68’s medication prohibitions.
The state appealed to the Supreme Court of Ohio, which accepted the case. The Supreme Court put a hold on the injunction, allowing H.B. 68 to remain in effect.
Ohio and U.S. Constitutions
The due course of law clause in the Ohio Constitution states, “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.” The parties note that the Supreme Court of Ohio has long considered this clause equivalent to the U.S. Constitution’s due process clause, which prohibits the state from “depriv[ing] any person of life, liberty, or property, without due process of law.”
State Argues Due Course of Law Clause Encompasses No Substantive Rights
The attorney general rejects the Tenth District’s conclusion that parents have a substantive constitutional right to direct their children’s gender transition care with medication. That’s because the Ohio due course of law clause doesn’t create any substantive rights, the attorney general argues. It only provides injured parties with equal rights to seek a remedy in the courts, the attorney general maintains. The attorney general asks the Supreme Court to return to this interpretation of the clause.
“Ohio should no longer pretend that its Due Course of Law Clause is a due-process clause,” the state’s brief contends. Stepping back from “the wrong turn” made long ago will require adjustments, the state acknowledges. “But the time has come to do so, because the misuse of the doctrine has caused ongoing mischief,” the brief argues.
However, if the Court continues to hold that the Ohio Constitution provides substantive due process rights, the attorney general asserts there is no textual or historical support for a deeply rooted right of minors to change genders through risky medical interventions. In addition, the state decides what medical care is allowed, and parents have the right to choose only from the health care options offered on the state’s “menu,” the attorney general argues.
The state contends that the law prohibiting medications for minors seeking gender transitions is also rationally related to the government’s interest in protecting children from known harms and unknown risks of the medications, questionable benefits, and the inability of children to understand the long-term effects of the treatments. If the Court considers the more stringent legal standard of whether the government interest in passing the law was compelling, the attorney general asserts that the same concerns also meet that standard. The attorney general adds that the U.S. Supreme Court 2025 decision in United States v. Skrmetti noted all of these government interests and more. Skrmetti involved a similar law in Tennessee, and the U.S. Supreme Court rejected a challenge to the law that asserted it violated equal protection rights under the U.S. Constitution.
Families Counter Parents Have Constitutional Right to Decide Children’s Medical Care
The families respond that there is no basis for overturning the longstanding recognition that the Ohio due course of law clause protects substantive rights. The Supreme Court of Ohio decided more than a century ago that the clause has both procedural and substantive dimensions, the families maintain. And they contend that the state fails to meet the Court’s standards for overruling a prior precedent. Specifically, the state fails to provide support for its view that the earlier decisions were wrongly decided, fails to show it is unworkable to keep considering substantive due process rights as part of the Ohio Constitution, and fails to address the undue hardship on Ohioans whose fundamental rights would be upended by this “sea change in Ohio constitutional law,” their brief maintains. It also addresses the ‘ongoing mischief’ claim.
“This vague reference in no way justifies abandoning a deeply ingrained line of precedent. Adherence to previous rulings ‘permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contribute[] to the integrity of our constitutional system of government, both in appearance and in fact.’”
The families also contend that the medication prohibitions in H.B. 68 infringe on their fundamental right as parents to seek appropriate medical care for their children. The families cite a 2000 U.S. Supreme Court ruling, which stated, “[T]he interest of parents in the care, custody, and control of their children … is perhaps the oldest of the fundamental liberty interests.” The Supreme Court of Ohio has recognized this interest under the Ohio Constitution and explained that it includes parental rights to seek medical care for their children, the families maintain.
They reject the state’s attempt to narrow the right to seek medical care for their children by banning access to gender-affirming medical care. They note that the medications are available to minors for other conditions, such as endometriosis, certain chromosomal syndromes, precocious puberty, premature ovarian failure, and cancer. The state removed puberty-blocking and hormonal medications from the menu not for all minors, but only for certain minors, the families argue. Under the Ohio due course of law clause, the state cannot interfere with their parental decisions regarding medical treatments for their children that are available for other conditions, they contend.
Because a fundamental right is involved, the families argue the state must show that it had a compelling interest for the law and that the law was narrowly tailored to meet that interest. The state hasn’t met the standard, the families assert. They also maintain that the state is attempting to apply a less rigorous standard of legal review to this case than is required. Even if the less stringent standard is used, the state still can’t offer a rational basis for allowing parents to weigh the risks and benefits of the medications for some conditions but not for gender dysphoria, the families conclude.
State Asserts That Health Care Freedom Amendment Addresses Only Legal Medical Care
The HCFA, which became part of the Ohio Constitution in 2011, states in part, “No federal, state, or local law or rule shall prohibit the purchase or sale of health care or health insurance.” The attorney general’s brief contends that the HCFA doesn’t, however, “enshrine a right to medical gender transitions.” Instead, the attorney general argues, the provision addresses the purchase and sale only of services that the state recognizes as valid health care, which doesn’t include the prohibited medications.
The HCFA also states that it doesn’t affect any laws that “punish wrongdoing in the health care industry.” As a result, the state has the power to ban certain medical treatments for minors, and the HCFA doesn’t affect the legislature’s decision to make those treatments against the law and punish those who prescribe them for gender transitions, the attorney general argues.
Families Contend That HCFA Protects Right to Choose Health Care
The families counter that H.B. 68 bans Ohioans from purchasing a form of health care, which is a ban that violates the HCFA. The families note that the state has never challenged the trial court’s finding that gender transition services are health care.
Gender-affirming medical care, such as puberty-blocking or hormonal medication, is a standard-of-care treatment offered by Ohio’s flagship medical institutions, and the state hasn’t explained how such treatment qualifies as “wrongdoing in the health care industry,” the families argue. In their brief, they maintain that the state attempts to assert that “no law can prohibit the purchase of health care, unless the law prohibits the purchase of health care” – “[t]hat approach eviscerates the HCFA by protecting individual freedom of choice in health care only as long as the General Assembly has not decided otherwise.” They also contend that the voters understood that the wrongdoing to be punished was misconduct committed in the course of providing treatment, and that the General Assembly wasn’t given “a blank check” to decide which treatments should be available for a particular condition.
Additional Briefs Submitted in Support of Both Sides
Amicus curiae briefs supporting positions of the state were submitted by:
- Independent Women’s Forum and Center for Christian Virtue, jointly.
- State of Alabama and 24 other states, jointly.
Amicus briefs supporting the families were filed by:
- American Academy of Pediatrics and additional national and state medical and mental health organizations, jointly.
- Families with transgender children.
- Professor Jessie Hill, Case Western Reserve University School of Law.
- TransOhio Inc. et al.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio, the Ohio Attorney General’s Office, and the State Medical Board of Ohio: Mathura Sridharan, mathura.sridharan@ohioago.gov
Representing Madeline Moe et al.: Freda Levenson, flevenson@acluohio.org
Court-Appointed Lawyer Argues Underpayment Led to Incomplete Client Representation
Disciplinary Counsel v. Darin L. Avery, Case No. 2025-1635
Richland County
A Mansfield lawyer is facing a public reprimand after arguing an appeals court wouldn’t provide him with the time and money to effectively represent a court-appointed client.
The Board of Professional Conduct recommended that the Supreme Court of Ohio reprimand Darin Avery and require him to pay $1,205 for the cost of disciplinary proceedings. The board found Avery violated three professional conduct rules when representing John Mack on an appeal of Mack’s life sentence for aggravated murder and other charges.
Mack’s trial attorney and the county prosecutor described Mack’s prosecution as one of the most complex cases in Richland County history, and Mack’s trial attorney implored the trial court to appoint the Ohio Public Defender's Office to represent Mack on appeal. Instead, Avery, a local private practice attorney, was appointed.
Avery doesn’t contest the board’s findings, but objects to the payment of the disciplinary proceedings. He notes his expense records indicate he provided more than $10,000 in legal services working on Mack’s appeal, but was only paid $686 by the Fifth District Court of Appeals. The objection to the payment for the proceedings triggered an automatic oral argument before the Supreme Court.
Appellate Attorney Requests Advance Payments
In November 2022, Mack was convicted of multiple charges in Richland County Common Pleas Court and sentenced to life in prison without the possibility of parole. Days after his sentencing, Avery was appointed by the court to represent Mack in the appeal of his conviction.
In December, Avery notified the Fifth District that he represented Mack, and then Avery and Mack talked by phone. Avery advised Mack that the trial transcript was more than 4,000 pages and was still being produced. The two discussed the potential for an in-person meeting.
A month later, Avery called Mack to say the transcript was not yet available, and the two discussed several potential arguments on appeal. Concerned about the amount of materials he needed to review and the court’s process for paying court-appointed attorneys, Avery filed a motion asking the appellate court to preapprove “extraordinary fees” and to clarify how many extensions he could request to file a brief. Avery explained that he had been denied additional fees by the Fifth District twice in the past two years, and he didn’t want to invest the time necessary to adequately represent Mack without certainty of payment for the work.
The Fifth District responded the following month, in March 2023, telling Avery that it wouldn’t predict the fees he might be granted or the number of extensions he would receive. The court told him if he was not comfortable with the appointment, he could withdraw by March 17.
Avery didn’t withdraw. He also spoke to Mack for the last time in February, promising to call him back but not following up.
Attorney Explains Filing Delayed, Possibly Deficient
Avery’s brief was due to the Fifth District on March 22. He filed five 20-day extensions, all of which were granted. He was told in May that his fifth was the last and that the brief was due on July 2, 2023. Avery missed the deadline by five days and asked the court to accept his late filing, conceding the brief was incomplete. Avery didn’t inform Mack of his financial concerns or that the brief was incomplete, and he didn’t deliver a copy to Mack in advance of filing as he promised.
In his brief, Avery made three legal arguments regarding errors made in trial court, and added a fourth – that Mack may be receiving ineffective assistance of appellate counsel. Avery wrote that the case's complexity required his full attention. However, because the appeals court wouldn’t guarantee payment, he had to spend time working for paying clients to maintain his law practice. Since he couldn’t exclusively work on Mack’s case, Avery wrote that he didn’t review significant portions of the record or evidence.
Avery wrote the consequence of his actions might have led him to miss some possible errors, and this may constitute ineffective assistance of counsel.
The Richland County Prosecutor’s Office objected to the submissions, asking the court to remove Avery from the case. The prosecutor claimed that Avery violated two professional conduct rules by not representing his client with competence and diligence. The office argued that Avery should have withdrawn when he wasn’t assured of his fees, and that his actions led to unnecessary delay.
Avery responded that he carried out the work he could do diligently and competently. He submitted his fee request, which was now $8,449 for work from his November 2022 appointment until September 2023. After denying his request for fees, the Fifth District decided in January 2024 to remove Avery from the case. The court appointed the Ohio Public Defender’s Office to replace him.
Avery then submitted a bill, bringing the total to $10,171 in fees. The Fifth District denied the request and ultimately approved $686 in payment to Avery.
Board Finds Rule Violations
The Office of the Disciplinary Counsel filed a complaint against Avery with the Board of Professional Conduct. The board found Avery violated three rules by failing to act with reasonable diligence and promptness in representing Mack and failing to reasonably consult with Mack about the status of his case. He was also found to have engaged in conduct that was prejudicial to the administration of justice because his actions led to the undue delay of Mack’s appeal.
Significant Time Expended on Case, Attorney Argues
Avery filed an objection, noting the role the prosecutor and courts played in assigning one court-appointed attorney, rather than the state public defender’s office, to represent Mack’s complex case. He questioned whether the delay was harmful to Mack when he noted the public defender’s brief made no additional legal arguments on Mack’s behalf than his own. Avery states that he spent more than 145 hours on the matter and should have received the $70-per-hour rate paid to a court-appointed attorney, he asserts. Instead, he received $686. He shouldn’t be further penalized by having to pay the $1,205 for the disciplinary proceedings, he concludes.
Disciplinary Counsel Supports Sanction
The disciplinary counsel argues the rule violations stem from Avery’s decision to take the case, despite its complexity and the appeals court's lack of assurance regarding the fees. When he was warned by the appeals court in March 2023 that the fees would not be predicted in advance, Avery chose to move forward rather than withdraw, the disciplinary counsel wrote.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Darin Avery, representing himself: darin.avery@gmail.com
Representing the Office of Disciplinary Counsel: Joseph Cailgiuri, joseph.caligiuri@odc.ohio.gov
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