Quick Hits
- Ohio has enacted into law SB 104, legislation restricting transgender access to certain school facilities: On November 27, 2024, Governor Mike DeWine signed into law the “Protect All Students Act,” which mandates that Ohio schools designate multi-occupancy restrooms, locker rooms, changing rooms, and shower rooms for exclusive use by male or female students based on their biological sex.
- Provisions of and exceptions to the new law: The law includes specific guidelines for facility use in schools, prohibiting students from using facilities designated for the opposite biological sex and providing exceptions for children under the age of ten who are assisted by parents, guardians, or family members; persons with disabilities requiring assistance; specific school employees; and persons responding to emergencies.
- Potential legal challenges: The law has sparked significant debate, with supporters claiming it protects student privacy and safety and opponents arguing it discriminates against transgender and nonbinary students, potentially violating Title IX and the Fourteenth Amendment.
Key Definitions
The legislation begins by defining several key terms:
- Biological sex: This is defined as “the biological indication of male and female, including sex chromosomes, naturally occurring sex hormones, gonads, and nonambiguous internal and external genitalia present at birth.” An individual’s official birth record can be used to prove biological sex if it was issued at or near the time of birth.
- Family facility: A “family facility” is a “family restroom or shower room that does not have more than one toilet or shower.”
- Multi-occupancy facility: This is defined as “a restroom, locker room, changing room, or shower room that is accessible to multiple individuals at the same time,” excluding family facilities.
- School: This term includes school districts, community schools, STEM schools, chartered nonpublic schools, educational service centers, and institutions of higher education, both private and public.
Main Provisions
The law mandates that schools designate each multi-occupancy facility for the exclusive use of either male or female students based on their biological sex. Specifically:
- Exclusive use: Schools must designate and have proper signage identifying restrooms, locker rooms, changing rooms, and shower rooms for exclusive use by students of the male biological sex or female biological sex.
- Prohibition on cross-sex use: Schools are prohibited from allowing students of one biological sex to use facilities designated for the opposite biological sex.
- No nongendered facilities: Schools are not allowed to construct or maintain multi-occupancy facilities that are “designated as nongendered, multigendered, or open to all genders.” However, family facilities and single-occupancy facilities are permitted.
- Overnight accommodations: K–12 schools are also prohibited from allowing students of one biological sex to share overnight accommodations with students of the opposite biological sex.
Accommodations and Exceptions
The legislation does provide for certain accommodations and exceptions. The prohibitions do not apply to:
- children under the age of ten who are “being assisted by a parent, guardian, or family member”;
- persons with disabilities who are “being assisted by another person”;
- school employees whose job duties require them to enter facilities designated for the opposite biological sex; and
- persons responding to a legitimate emergency.
Implications and Reactions
The introduction of the legislation and its enactment have generated emotional reactions on both sides. Proponents argue that the law is necessary to protect the privacy and safety of students, ensuring that facilities are used in a manner consistent with biological sex. Opponents, however, argue that the law is discriminatory–a violation of both Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution—and fails to recognize the rights and identities of transgender and nonbinary students. Concerns have been expressed that the law could lead to increased stigmatization and mental health challenges for these students.
Expected Legal Challenges
In October 2023, the U.S. Court of Appeals for the Ninth Circuit temporarily blocked enforcement of an Idaho law similar to the one just enacted in Ohio.
North Carolina was the first U.S. state to limit bathroom access to transgender people in 2016, but the law was repealed in 2017 and ultimately settled in federal court in 2019.
The American Civil Liberties Union of Ohio stated that the group was “closely considering next steps.”
Moving Forward
The new law does not address enforcement or penalties, leaving open questions for many individuals and institutions.
Ogletree Deakins’ Columbus and Cleveland offices will continue to monitor developments as the law’s effective date of February 25, 2025, approaches and will provide updates on the Diversity, Equity, and Inclusion, Higher Education, and Ohio blogs as additional information becomes available.
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