Ohio AG Yost issues legal opinion on transgender bathroom use regulations

Credit: Nick Graham

Credit: Nick Graham

Yost says the desire to maintain privacy from people of the opposite sex applies “without regard to their gender identities”

The Ohio Attorney General on Friday issued a legal opinion suggesting that government-owned public facilities have the right to limit bathroom accommodations for transgender people based on sex.

Greene County Prosecutor David Hayes asked the AG’s office whether policies limiting use of restrooms, changing rooms, or locker rooms to someone’s assigned birth gender would violate Ohio law.

Republican Ohio Attorney General Dave Yost issued the opinion Friday, saying that Ohio law does not prohibit entities from adopting policies that limit restrooms, changing rooms, and locker rooms to a single sex.

Governmental policies that require the sexes to use different bathrooms are legal, Yost wrote, unless the policy denies individuals the right to “full enjoyment” of public accommodations and falls outside the statute’s exception.

That exception, according to the Ohio Revised Code, says that proprietors aren’t allowed to deny anyone “full enjoyment” of public accommodations “except for reasons applicable alike to all persons.”

“This means that the operator can limit or deny access only if the reasons for doing so do not take any protected trait into account,” Yost said.

Yost argued that failing to separate the sexes in public bathrooms would in fact accomplish the opposite of anti-discrimination laws.

“Providing separate bathrooms, changing rooms, and locker rooms for the separate sexes does not violate the right that R.C. 4112.02(G) confers,” he said. “To the contrary, separating the sexes in these private areas helps ensure that no one is, on the basis of sex, denied the full enjoyment of public accommodations.”

Yost added that people’s desire to maintain privacy from people of the opposite sex applies “without regard to their gender identities.”

“Allowing men to share bathrooms, changing rooms, and locker rooms with women increases the ease with which biological males — most especially men who identify as men — can victimize women and girls,” he said.

In his opinion request, Hayes also asked for clarification on the authority of the Ohio Civil Rights Commission to enforce cases of sex and gender discrimination, for clarity on definitions of sex discrimination and public accommodations, and for guidance on whether government entities could be liable for violations of Ohio anti-discrimination law.

Whether a public restroom, changing room, or locker room in a facility owned by a government entity is considered a “public accommodation” under Ohio anti-discrimination law is “a question of fact that must be determined by the courts,” Yost wrote.

Yost also wrote that the Ohio Civil Rights Commission cannot “authoritatively” interpret Ohio anti-discrimination law when it comes to public accommodations, except in cases that specifically come before the commission. Courts may consider the agency’s interpretation, but it is not legally binding.

Transgender rights law has received renewed attention in the Miami Valley after a trans woman in Greene County was charged with public indecency for using a women’s changing room at the Xenia YMCA. She was found not guilty of the charge at trial.

A civil action was also filed against Bethel Local Schools in Miami County by conservative litigation group America First Legal over the district’s transgender restroom policy.

Attorney General opinions provide “valuable advice to public officials and are useful in guiding the actions of those officials,” according to the Attorney General’s website. Opinions are not law and are not binding in court; however courts “usually give formal opinions careful consideration,” Yost’s website says.

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