On January 24, 2024, the Ohio legislature voted to override Governor DeWine’s veto of House Bill 68 (“HB 68”), which addresses several issues regarding school districts and their obligations with respect to transgender students. The passage of HB 68 enacts the Saving Ohio Adolescents from Experimentation Act (“SAFE Act”) regarding gender transition services for minors, as well as the Save Women’s Sports Act, which will require school districts to designate separate single-sex teams and sports for each sex. Each of these provisions are set to go into effect on April 23, 2024.

SAFE Act

HB 68 prohibits “mental health professionals,” including school nurses and school psychologists from diagnosing or treating a minor for a gender-related condition without first obtaining consent from at least one of the minor’s parents, legal custodian, or guardian. The bill defines a “gender-related condition” as a condition in which a minor feels a difference between their gender identity and biological sex, which includes gender dysmorphia.

The bill also provides that if a minor is believed to be suffering from a gender-related condition, mental health professionals will be required to screen the minor for certain mental health conditions (i.e., depression, anxiety, attention deficit hyperactivity disorder (“ADHD”), autism, other mental health conditions), as well as physical, sexual, mental, and emotional abuse, during their course of treatment.

Any mental health professional who diagnoses or treats a minor in violation of the SAFE Act will be considered to have engaged in unprofessional conduct and will be subject to disciplinary action from their respective licensing board. Among other reasons, it is important that school districts understand these restrictions to ensure awareness among school nurses, counselors, and psychologists to avoid any potential disciplinary or licensure issues. Updates to forms, policies and/or procedures may be necessary.

Save Women’s Sports Act

HB 68 also enacts the Save Women’s Sports Act. The bill will require each school district to designate athletic teams based on the “sex” of participants. In doing so, each district will be required to have each of the following:

Separate teams for participants of the female sex within female sports divisions;
Separate teams for participants of the male sex within male sports divisions;
If applicable, co-ed teams for participants of the female and male sexes within co-ed sports divisions.

The act defines “sex” as the biological indication of male and female sex hormones and genitalia that are present at birth, without regard to an individual’s psychologically chosen or subjective experience of gender. Based on this definition, school districts will be required to enforce single-sex participation in athletics in accordance with a student’s biological sex assigned at birth.

The bill also prohibits a school, interscholastic conference, or organization that regulates interscholastic athletics from knowingly permitting individuals of the male sex to participate on athletic teams or in athletic competitions designated only for participants of the female sex. Currently, this act conflicts with Ohio High School Athletic Association (“OHSAA”) policies which allow transgender students to participate in athletics in accordance with their preferred gender identity in certain limited circumstances.

If a student believes that they have been deprived of an athletic opportunity or otherwise suffered harm as a result of a school district, conference, or organization’s violation of the bill’s single-sex participation requirements, the student may file a private civil action for injunctive relief, damages, or other available relief against the school district, athletic conference, or organization which regulates student athletics.

Title IX Implications

The enactment of the Save Women’s Sports Act creates a conflict with a school district’s legal obligations to refrain from engaging in discrimination on the basis of sex (including gender identity) in its educational programs or activities as required by Title IX. However, given the private causes of action permitted by the bill, school districts may now be placed in a difficult position in deciding whether to comply with the Save Women’s Sports Act and face charges of discrimination in violation of Title IX, or comply with Title IX and its interpretation and face private civil action for violations of the Save Women’s Sports Act.

It is recommended school districts reach out to legal counsel when navigating these difficult issues.