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After House Bill 68 Override, Implications for Education in Ohio

By Izaak Orlansky posted 20 days ago

  

The Ohio legislature’s override of House Bill 68 comes after nearly two years of debate about how to handle mental health, healthcare, and athletics for transgender youth. School districts and higher education institutions should take proactive steps to understand the new laws and their implications.

Mental Health and Healthcare

House Bill 68 prohibits a “mental health professional”[1] from diagnosing or treating a minor “who presents…a gender-related condition” without first obtaining parental consent.[2] The mental health professional must also screen for “other comorbidities” (e.g., depression, autism) and “traumas” (e.g., physical, sexual, mental, emotional abuse).[3] The bill also prohibits physicians from performing “gender reassignment surgery” on a minor, from prescribing certain “puberty-blocking drugs,” or from engaging in “conduct that aids or abets” in those practices.[4] 

Because this aspect of House Bill 68 focuses on care of minors, K-12 school districts will want to ensure that covered employees (including school nurses, counselors, and psychologists) understand the definition of “gender-related condition” and review their policies and procedures when it comes to intake and parental notice. Most districts already have policies and procedures to notify parents,[5] but updates may be needed.  

Higher education institutions should also review the healthcare and mental services that are provided to 17-year-olds who attend their institutions for compliance. In particular, physicians will have to determine how to handle healthcare services for out-of-state minors who have already begun a course of treatment that includes “puberty-blocking drugs.”

Athletics

House Bill 68 also enacts the “Save Women’s Sports Act” to govern interscholastic and intercollegiate sports at both the K-12 level and higher education level. These laws will conflict with existing rules created by the Ohio High School Athletic Association (OHSAA) and the National Collegiate Athletic Association (NCAA), as well as pending Title IX federal regulations. Litigation is expected as a result.

Two parallel statutes are enacted that require school districts, higher education institutions, as well as athletic conferences and associations, to designate athletic teams “based on the sex of the participants,” with “sex” meaning the “biological indication of male and female.”[6] Then, the law prohibits these organizations from knowingly allowing a student of the “male sex” to participate on a female team, i.e., a transgender male-to-female student. It also creates a private right of action for a student who believes he or she has been harmed by an educational organization not following the law. 

These laws supersede existing policy from the OHSAA and NCAA and other college sports governing bodies.[7] The OHSAA currently allows a narrow exception for transgender females who meet certain criteria.[8] (There were only seven students in the 23-24 school year). There are currently 46 NCAA institutions in Ohio who follow the NCAA’s policy which also allows transgender participation. Beginning in August 2024, the NCAA will fully implement its updated policy which moves to a sport-by-sport approach that aligns with the Olympics.[9] But since state law supersedes these bodies, Ohio educational organizations will have to abide by these stricter standards or face legal risks.

At the same time, proposed Title IX federal regulations look to directly clash with the new laws. Those regulations, which are not yet finalized, prohibit a “categorical ban” on transgender athlete participation.[10] This would put Ohio school districts and higher education institutions in a difficult bind – abide by the new law and face discrimination charges, or refuse to abide by the new law and face a civil action. 

HB68 will go into effect in 90 days. In other states where similar laws have passed, litigation has ensued – and not always with the same result.[11] Both school districts and higher education institutions are encouraged to reach out to legal counsel as they navigate these complicated issues.

This article was authored by Izaak Orlansky and Kasey Nielsen of Bricker Graydon. 


[1] The umbrella term includes nurses, physicians, psychologist, school psychologist, social worker, clinical counselor, marriage/family therapist.  Enacted R.C. 3129.01(H).

[2] Enacted R.C. 3129.03(A).

[3] Enacted R.C. 3129.03(B).

[4] Enacted R.C. 3129.02; see enacted R.C. 3129.01 for definitions of “gender reassignment surgery” (C) and puberty-blocking drugs (L).

[5] See, e.g., Neola Board Policy 5780 (“Student/Parent Rights”); AG2411 (“Guidance and Counseling”); OSBA JHC (“Student Health Services and Requirements”).

[6] Enacted R.C. 3313.5319(A); R.C. 3345.562(A).

[7] For the 7 NAIA institutions in Ohio, the NAIA regulates post-season competition and allows transgender females to participate after they complete one year of hormone treatment related to gender transition. NAIA Handbook, Section IV. For the 12 NJCAA institutions in Ohio, the NJCAA provides that males may not participate on women’s teams in any sport. NJCAA Handbook, Section 5.

[8] OHSAA Transgender Student Policy (last visited January 19, 2024).

[9] NCAA Transgender Student-Athlete Participation Policy.

[10] U.S. Department of Education's Proposed Change to its Title IX Regulations on Students' Eligibility for Athletic Teams (last visited January 19, 2024).

[11] See, e.g., K. C. v. Individual Members of Med. Licensing Bd. of Indiana, No. 123CV00595JPHKMB, 2023 WL 4054086 (S.D. Ind. June 16, 2023) (ban on gender transition procedures likely violated equal protection); L. W. by & through Williams v. Skrmetti, 73 F.4th 408, 419 (6th Cir. 2023) (ban on gender transition procedures did not likely violate equal protection); B. P. J. v. W. Virginia State Bd. of Educ., 649 F. Supp. 3d 220 (S.D.W. Va. 2023) (transgender sports ban did not violate equal protection or Title IX).

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