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House Bill 68 Veto Overturned - Ohio Enacts Legislation Affecting Transgender Students

in Education, News

On January 24, 2024, in a 24-9 vote, the Ohio Senate voted to override Governor DeWine’s veto of House Bill 68 (HB 68). Because the House of Representatives previously did the same, this bill, also known as the Ohio Saving Adolescents from Experimentation (SAFE) Act, will become law in 90 days.

HB 68 has two key requirements – both of which impact school districts. The first addresses provision of medical care, including mental health services, to minors for “gender-related conditions.” The second prohibits students identified as male at birth from participating on women’s sports teams.

Regarding medical care, HB 68 bans medical caregivers from providing cross-sex hormones, puberty blockers or gender reassignment surgeries to minors. Exceptions exist for minors who are already receiving hormones or puberty blockers, and minors with ambiguous or abnormal sex characteristics. HB 68 also bars mental health providers from diagnosing or treating a minor for “gender-related conditions” without the consent of at least one parent or guardian. Additionally, mental health professionals cannot treat a minor for gender-related conditions without “screening” for “other comorbidities that may be influencing the individual’s gender-related condition.” These potential comorbidities include depression, anxiety, ADHD, and autism spectrum disorder. Screening for sexual, mental, and emotional abuse and other traumas is also required. Importantly for school districts, the definition of “mental health professional” includes school psychologists, social workers, and clinical counselors.

As to athletics, HB 68 requires school districts participating in athletic competitions to designate separate single-sex teams and sport divisions for each sex. It also prohibits schools, interscholastic conferences, and regulating organizations 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.” This legislation does allow for co-ed teams and permits female athletes to participate on teams designated for males.

Clearly, these provisions impact the current Ohio High School Athletic Association (OHSAA) stance on male-to-female athletes’ participation on female sports teams. School districts should watch for further guidance from the OHSAA regarding these issues. Schools should also be aware that HB 68 allows lawsuits for injunctive relief and/or damages for individuals alleging either:

(1) deprivation of an athletic opportunity due to a failure to follow the above mandates; or

(2) retaliation for reporting such a failure.

Over 20 states have laws in place with provisions similar to those in HB 68. Notably, litigation is pending in multiple federal courts challenging some state laws and their constitutionality. The Weston Hurd Education Group will continue to monitor developments in this area and keep you informed of decisions that affect Ohio schools. Please do not hesitate to contact us with any questions related to the impact of HB 68 on your school district or community.

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Weston Hurd LLP attorneys regularly assist school districts in all aspects of school law. For further information please contact any of the education law attorneys