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That Ohio Bill Does More than Require Teachers to Report on Transgender Students

That Ohio Bill Does More than Require Teachers to Report on Transgender Students June 27, 2018

A variety of news sites have reported that an Ohio bill that “would force schools, doctors, and care providers to immediately notify the parents of any pupil who acts ‘in a manner opposite of the child’s biological sex.'” The headlines are shocking—and they should be. But there’s more going on in this bill than this one provision.

What does the bill actually say? Let’s look.

Sec. 2131.141 . The parents, guardian, or custodian, in exercising the fundamental right to care for their child, may withhold consent for gender dysphoria treatment or activities that are designed and intended to form a child’s conceptions of sex and gender. The state, its agents, and political subdivisions shall not infringe upon or impede the exercise of this right.

This provision would give parents the right to deny their child consent for any treatment for gender dysphoria, for any reason whatsoever.

I feel obliged to point out that Ohio is where Leelah Alcorn died. Leelah was a transgender teen whose parents denied her treatment. In fact, her parents removed her from school to homeschool her in order to separate her from any affirming classmates or teachers. Measures like these have real world consequences.

And, as we shall see, this bill does even more.

1. Parental Rights

This bill is grounded in a framework of parental rights.

Sec. 2131.142 . (A) It is the policy of this state that the parents, guardian, or custodian of a child retain the right to determine what is in the best interest of the child regarding the following:

(1) The child is diagnosed with gender dysphoria.

(2) The child exhibits symptoms of gender dysphoria.

(3) Whether the child should participate in classes or programs, with or without accompanying educational materials, classes, or programs related to sex and gender.

(4) Any counseling, therapy, or treatment provided to the child regarding the child’ s gender dysphoria.

The above paragraph gives the parent the sole right to decide what counseling, therapy, or information their transgender child—or teen—will have access to.

I’ve seen suggestions that the provision requiring school personnel to report signs of gender dysphoria to a child’s parents goes against conservatives’ stated belief in small government—and this is absolutely true. The bill’s justification, however, rests with these same individuals’ elevation of (certain types of) parental rights—including the right to make any and all decisions for one’s child.

This isn’t just supposition on my part. In a hearing last week, one of the bill’s sponsor’s introduced the legislation as follows:

HB 658 codifies into the law what we’ve always known: parents have a fundamental right to decide what is best for their children. Ohio has a strong precedent of protecting the rights of parents from unnecessary or invasive government involvement. HB 658 strengthens that precedent of protecting the rights of parents.

Parental rights activists defend laws allowing parents to medically neglect their children under the guise of “faith healing,” even when it leads to children’s deaths. For them, parents’ right to make decisions for their children is absolute and total—even when it leads to their death, as it did for Leelah Alcorn.

When gay, lesbian, bisexual, and transgender children grow up in anti-gay, anti-trans families, a conflict occurs between parental rights and LGBT rights. The consequences for LGB youth are dire—especially among those with parents who try “reparative therapy.” The consequences for transgender youth, who may have a harder time hiding their identity—particularly if they want to transition—can be even more dire.

2. Reporting

Next is the paragraph that has garnered the most attention:

Sec. 2131.143 . If a government agent or entity has knowledge that a child under its care or supervision has exhibited symptoms of gender dysphoria or otherwise demonstrates a desire to be treated in a manner opposite of the child’s biological sex, the government agent or entity with knowledge of that circumstance shall immediately notify, in writing, each of the child’s parents and the child’s guardian or custodian. The notice shall describe the total circumstances with reasonable specificity.

In other words—if a child shows “symptoms of gender dysphoria” or “demonstrates a desire to be treated in a manner opposite of the child’s biological sex,” a teacher, school counselor, or other entity must notify the parents—and include specifics.

Who is included under “government agency or entity”?

(C) “Government agent or entity” means either of the following:

(1) A person who has supervisory authority or care over children as an agent, employee, contractor, or volunteer for a public children services agency, private child placing agency, court, or school district;

(2) A public children services agency, private child placing agency, court, or school district.

A “government agency or entity” would include who works or volunteers at a public school, the juvenile court system, or a private agency involved in juvenile placement (this would include anyone contracting with a state’s child protective services agency). A CASA volunteer, for example, or a teacher, a school counselor, a child’s caseworker.

That is a very broad net—so broad that the reporting-on-child-to-parent clause would even include parents who volunteer at their children’s school. A transgender child could not live in a more authentic way at school, and hide their identity at home. A transgender child also could not confide in a teacher, or a counselor, without being reported on.

This is toxic—and deadly.

3. Treatment

Following up on earlier sections giving parents the right to withhold consent for gender dysphoria treatment, the bill clarifies that no treatment for gender dysphoria may be provided without “the written, informed consent” of each parent or guardian:

Sec. 2131.144 . A government agent or entity may authorize or provide gender dysphoria treatment for a child only after receiving the written, informed consent of each of the child’s parents and the child’s guardian or custodian. Consent, to be valid, shall include a statement that each of the parents and the guardian or custodian received the information described in section 2131.145 of the Revised Code.

So, let’s ask a question. What is treatment? The bill helpfully includes a section with definitions, including this one:

(B) “Gender dysphoria treatment” includes any of the following used to treat the condition or symptoms of gender dysphoria:

(1) Educational materials, classes, or programs;

(2) Medical, psychological, social, or other professional treatment, therapy, counseling, or other services.

This could be defined extremely broadly. It includes even providing educational materials or information. The parent—not the teacher, not the guidance counselor, not the child or teen—has the right to decide what information a child has access to.

Sec. 2131.145 . In order to obtain written, informed consent under section 2131.144 of the Revised Code, a government agent or entity shall provide full and complete disclosure of all of the following, with regard to the proposed gender dysphoria treatment:

(A) Short- and long-term effects of the treatment;

(B) A comprehensive review of the safety and efficacy of the treatment, supported by controlled, randomized research;

(C) A review of whether relevant agencies have approved the treatment for the purpose for which it is to be administered.

This bit starts to sound a little bit like requirements that women seeking abortions be told (falsely) that abortions lead to increased risk of breast cancer, but stops short of offering specifics on what, specifically, parents are to be told about the efficacy of treatment.

I’m also reminded of states that have passed “don’t say gay” laws prohibiting teachers from mentioning homosexuality—even if students asked questions. The authors of the bill are clearly trying to present it in the framework of rights for parents—but the flip side of such absolute parental rights is a lack of rights for children and teens.

4. Prosecution

This bit here is important:

Sec. 2131.146 . The parents, guardian, or custodian of a child shall not be subject to adverse action as a result of the refusal to permit gender dysphoria treatment, or refusal to provide written, informed consent for such treatment, for the child, including adverse action under any of the following:

(A) Allocation of parental rights and responsibilities regarding the child under section 3109.04 of the Revised Code;

(B) A determination of custody by a juvenile court under division (A)(2) of section 2151.23 of the Revised Code;

(C) A complaint, adjudication, or disposition that the child is an abused, neglected, or dependent child under Chapter 2151. of the Revised Code.

This provision, in other words, specifies that parents like Leelah Alcorn’s cannot be prosecuted for abuse or neglect due to their treatment of their children. The bill does not exempt parents who provide their children with treatment for gender dysphoria from prosecution for abuse or neglect—it only exempts parents that refuse such treatment.

Sec. 2131.147 . (A) As used in this section, “off-label” means using a medication for a purpose or in a manner that is contrary to any provision of federal law or regulation that governs the use of that medication.

(B) Notwithstanding a written, informed consent provided by the parents, guardian, or custodian, there is a rebuttable presumption of negligence when a medication is administered off-label to a child to treat gender dysphoria or its symptoms and an adverse physical or psychological reaction or injury to the child results.

There is something very specific (and insidious) going on in this prohibition of “off-label” medications. The provision makes more sense when one remembers that the use of testosterone to treat gender dysphoria is considered “off label.” But more importantly, so are the hormone suppressors used to delay puberty in transgender children.

This bill would not just give conservative parents the right to deny their children all treatment for gender dysphoria; it would also make it effectively impossible for affirming parents to obtain certain treatments for their children with gender dysphoria.

There, perhaps, is where parental rights end.

And then there is this bit:

Sec. 2131.148 . A person injured for a failure to comply with sections 2131.14 to 2131.149 of the Revised Code may bring an action for damages and equitable relief against the government agent or entity.

Sec. 2919.30 . … (B) No government agent or entity shall purposely or knowingly authorize or provide gender dysphoria treatment for a child without the written, informed consent of each of the child’s parents and the child’s guardian or custodian, as required in section 2131.144 of the Revised Code. A violation of this section is gender dysphoria treatment without parental consent, a felony of the fourth degree.

In Ohio, a felony of the fourth degree is punishable with 6-18 months in prison and a fine of up to $5,000. That is a very serious deterrent—especially when we remember that this penalty could be applied for merely providing a student with information or materials.

Conclusion

Taken together, this bill would have a serious dampening effect on a range of efforts to provide treatment for children and teens with gender dysphoria. And despite its foundation in the language of parental rights, the bill would prevent the use of hormone suppressors and any other common gender dysphoria treatment considered “off-label,” even with full parental support and consent.

This legislation would isolate transgender Ohio children and render their rights moot—and place their ability to transition fully at the discretion of their parents. It would also limit affirming parents’ ability to support their children by limiting the allowed therapies.

Let us once again remember Leelah Alcorn. This bill should not be discussed outside of the context of that case—because that case is its content. Conservatives like this bill’s sponsors may call themselves pro-life, but on issues like these, they are anything but.

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