On November 13, 2024, the Ohio General Assembly passed Senate Bill (“SB”) 104, which amends certain provisions of the Ohio Revised Code regarding the College Credit Plus program, and also enacts the Protect all Students Act, which addresses restroom access in K-12 schools, colleges and universities. SB 104 now moves to Governor DeWine’s desk where he will have 10 days to sign it into law, and the requirements will go into effect 90 days after the Governor’s signature. Schools will need to familiarize themselves with the new provisions and consider any necessary adjustments to current practices to ensure compliance once SB 104 becomes effective.
What Does SB 104 Do?
SB 104 creates new statutory provisions, including Ohio Revised Code Section (“RC”) 3319.90, which, among other components, specifically addresses the use of “multi-occupancy facilities” in K-12 schools. Multi-occupancy facilities are defined by the statute as “a restroom, locker room, changing room, or shower room that is accessible to multiple individuals at the same time.” The statute specifically notes that this does not include a family restroom or shower room that does not have more than one toilet or shower.
RC 3319.90 also defines “biological sex” to mean the “biological indication of male and female . . . present at birth, without regard to an individual’s psychological, chosen, or subjective experience of gender.” In short, the statute provides that, for purposes of the new requirements, an individual’s “biological sex” is the sex listed on the individual’s birth certificate “if the birth record was issued at or near the time of the individual’s birth.”
In addition to establishing these definitions, RC 3319.90 requires schools to designate “each student restroom, locker room, changing room, or shower room that is accessible by multiple students at the same time . . . for the exclusive use by students of the male biological sex only or by students of the female biological sex only.” SB 104 further prohibits school districts from permitting a member of the female biological sex to use a student restroom, locker room, changing room or shower room that has been designated by the school for the exclusive use of the male biological sex and vice versa.
SB 104 also prohibits schools from constructing, establishing or maintaining a multi-occupancy facility that is designated as “nongendered, multigendered, or open to all genders,” noting specifically that this prohibition does not extend to construction, establishment or maintenance of a family facility. The statutes provide, however, that schools are not prohibited from establishing a “policy providing accommodations such as single-occupancy facilities or controlled use of faculty facilities at the request of a student due to special circumstances.”
In addition to the facility use restrictions, the statutory language also addresses overnight accommodations, by prohibiting schools from permitting a member of the female biological sex from sharing overnight accommodations with a member of the male biological sex and vice versa.
SB 104 also sets forth specific exceptions to these requirements, in the following circumstances:
- A child under the age of 10 being assisted by a parent, guardian, family member, as well as the parent, guardian or family member who is providing assistance;
- A person with a disability being assisted by another person, as well as the person providing assistance;
- A school employee whose job duties require the employee to enter a restroom, locker room, changing room, or shower room designated for the biological sex that is different than the employee’s biological sex; and
- A person who enters a enter a restroom, locker room, changing room, or shower room designated for the opposite biological sex because the person believes they are responding to a legitimate emergency.
What Are the Implications for Schools?
It is likely that SB 104 will take effect sometime in February 2025, and as a result, schools should evaluate current practices to ensure compliance with these new requirements once they become effective, including the following:
- Necessary adjustments to existing policies and procedures regarding the use of multi-occupancy restrooms by transgender students;
- Adjustments to existing signage regarding multi-occupancy restrooms that previously were designated as being open to all genders or gender neutral;
- Adjustments to accommodations for transgender students who previously were permitted to use restrooms aligning with their gender identity, rather than biological gender, including determining alternative accommodations consistent with the new standards and discussing available options with affected students and their families;
- Adjustments to policies and procedures for overnight accommodations for overnight trips (Washington D.C., band, choir, etc.), including any necessary adjustments to existing and future accommodations for transgender students;
- Plans for required designation of multi-occupancy facilities, including how the school will address the need for and use of locker room facilities by visiting teams.
What’s On the Horizon?
Existing Sixth Circuit case law applicable to Ohio, provides for accommodating transgender student use of restrooms based on the gender with which the student identifies. As a result, implementation of the new SB 104 requirements is likely to represent a shift from existing practices. With the Title IX rule remaining on hold and other legal challenges related to transgender student restroom use policies still pending, it is almost certain that the implementation of SB 104 will result in legal challenges as well. It remains important to work with legal counsel to navigate changes to existing practices and continued compliance with the shifting legal standards.
Please feel free to reach out to any of the attorneys in Weston Hurd’s Education Law Group with questions regarding changes to existing practices, accommodating students, and/or changes to developing legal standards.
