On November 27, 2024, Ohio Governor Mike DeWine signed Senate Bill 104 (“SB 104”) into law, which includes a provision called the Protect All Students Act that requires K-12 schools to designate certain facilities for exclusive student use by biological sex, banning transgender students from accessing certain school facilities consistent with their gender identity.

The bill will take effect within 90 days of the Governor’s signature – on or about February 25, 2025.

What does SB 104 mean for schools?

Under SB 104, “biological sex” is defined as the sex at birth without regard to an individual’s psychological, chosen, or subjective experience of gender. A birth certificate may be used as evidence of an individual’s sex if the birth record was issued at or near the time of the individual’s birth.

Under the new law, schools must designate multi-occupancy restrooms, locker rooms, changing rooms, and shower rooms for the “exclusive use by students of the male biological sex only or by students of the female biological sex only,” and must prohibit someone of the male or female biological sex from entering a facility designated for the exclusive use of the other biological sex.

Schools are further prohibited from constructing, establishing, or maintaining a multi-occupancy facility that is designated as “nongendered, multigendered, or open to all genders,” but are permitted to maintain a family facility. Schools may also establish a policy to accommodate students by providing single-occupancy facilities or allow controlled use of faculty facilities at the request of a student due to special circumstances.

Finally, schools are prohibited from permitting someone of the male or female biological sex from sharing overnight accommodations with a member of the other biological sex. Notably, the bill includes some exceptions to these prohibitions (listed below), but parental consent regarding student accommodations for overnight trips is not one of them.

There are several exceptions in which the ban does not apply:

Children under the age of ten or people with disabilities being assisted by a parent, guardian/family member or the parent, guardian/family member assisting the person.
School employees whose job duties require the employee to enter facilities that are designated for a biological sex that is different than the employee’s biological sex.
A person entering facilities due to a reasonable belief they are responding to a legitimate emergency.

School districts should review current practices and policies regarding accommodations for transgender students with the understanding that certain protocols for facilities use and/or overnight trips may conflict with this legislation, so changes may be necessary in order to comply with SB 104. Educators have long awaited clear guidance on the issue of transgender student access to school facilities; however, it still remains unclear how federal courts and/or new Title IX regulations (currently on hold via pending litigation) will impact these new changes. Court decisions in Ohio recognizing protection for transgender students under the Equal Protection Clause of the 14th Amendment may also conflict with SB 104, forcing schools to choose between possibly violating state law or the U.S. Constitution. Please reach out to your legal counsel for support in managing the shifting legal landscape.