Transgender rights in Ohio: Protections at stake with challenges underway

School and workplace protections for transgender people exist at the federal level but are under challenge by many states, including Ohio.

Proposed state legislation would limit sports participation, and an ongoing federal lawsuit seeks to reverse the Biden Administration’s policies on transgender people’s use of facilities such as restrooms.

“Ohio is one of 29 states currently without statewide LGBTQ+ nondiscrimination protections,” said Kathryn Poe, public policy and digital manager for Equality Ohio. “Currently, the Ohio Fairness Act, which would give LGBTQ+ these protections, is awaiting hearings in both the Ohio House and Senate and is supported by a bipartisan coalition of lawmakers, community leaders, and more than 1,200 Ohio businesses.”

State Sens. Nickie Antonio, D-Lakewood, and Michael Rulli, R-Salem, cosponsor the Ohio Fairness Act as Senate Bill 119. It would “prohibit discrimination on the basis of sexual orientation or gender identity or expression” while upholding religious exemptions that exist under Ohio’s Civil Rights Law.

Introduced and sent to the Senate Government Oversight & Reform Committee in March 2021, the bill has not been brought up for a hearing.

Equality Ohio works with local governments to pass nondiscrimination policies and ban conversion therapy, they said.

“Currently, more than 30% of Ohioans are protected by 35 local ordinances protecting LGBTQ+ people, including the transgender community,” Poe said.

The U.S. Department of Education, Office of Civil Rights and U.S. Department of Justice all maintain that Title IX protections under the 1972 Title IX civil rights law include treating transgender students consistently with their gender identity, according to Sara Clark, chief legal counsel for the Ohio School Boards Association.

Several federal appellate rulings, including by the Sixth Circuit that covers Ohio, have agreed that transgender students should be granted access to the restrooms and locker rooms that best align with their gender identity, but the U.S. Supreme Court hasn’t yet ruled on the subject, Clark said.

“Over the past several years, we have received many questions from local school districts on the topic of accommodating transgender students and whether specific accommodations are required, given the guidance in place at the time. We encourage districts to work with students requesting accommodations on a case-by-case basis,” Clark said.

School specifics

In the absence of statewide educational policy on transgender students, local district policies vary.

“Most districts have policy language that models the original language in the Title IX statute that prohibits individuals from being discriminated against ‘on the basis of sex,’” Clark said. “Some boards have specifically defined sex in their discrimination policies to include sexual orientation and gender identity. Some boards have worked with their board counsel to adopt stand-alone policies that prohibit discrimination against transgender students and outline how the district will address specific requests.”

In schools, transgender students are generally required to be addressed by the names and pronouns that best align with their gender identity, Poe said. That includes record-keeping, ID badges and references in the classroom, they said.

Under the Family Educational Rights and Privacy Act, schools can’t disclose a student’s gender identity without the student’s consent, even to their parents, though that rule is weaker for younger children, according to Equality Ohio.

“This is particularly important when students indicate they have concerns about their safety at home,” the group says, acknowledging that this prohibition is “perhaps the most difficult area for schools.”

The school boards association does not get or record statistics on the number of transgender students in Ohio, Clark said.

Sports debate

Participation in school sports by transgender athletes, specifically by those transitioning male-to-female, has driven much of the recent debate. But the Ohio High School Athletic Association has had a policy in place for several years. It includes the following:

· Transgender student athletes should have equal opportunity to participate in sports.

· The integrity of women’s sports should be preserved.

· Policies governing sports should be based on sound medical knowledge and scientific validity.

· Policies governing the participation of transgender students in sports should be fair in light of the tremendous variation among individuals in strength, size, musculature, and ability.

· The medical privacy of transgender students should be preserved.

Guidelines say transitioning male-to-female students may play on boys teams if they wish, but to play on girls teams they must have either a year of hormone treatment or demonstrate “by way of sound medical evidence” that they don’t have athletic advantages over “genetic females” their age.

Students transitioning female-to-male can only play on girls teams if they haven’t begun testosterone treatments. They can play on boys teams anytime but must demonstrate the effect of testosterone treatment “does not exceed the muscle mass that is typical of an adolescent genetic boy.”

The OHSAA guidance includes an appeals process.

In legislative debate earlier this summer, state Rep. Beth Liston, D-Dublin, said in seven years there has never been more than one transgender student at a time competing on a high school girls team in the entire state.

State Rep. Phillip Robinson, D-Solon, said a query to OHSAA found that 11 transgender athletes played on Ohio high school sports teams in the past six years, out of “hundreds of thousands” of competitors, and none of those 11 drew any complaints.

Ongoing risks

“Transgender people, specifically youth, have been the target of extremist, right-wing attacks and state-sanctioned bullying all over the country, and Ohio is not an exception,” Poe said. That is especially true of access to public restrooms, they said, referring to a current case from Preble County

On the evening of July 3, a transgender man from Oxford, Noah Ruiz, was with his family at Cross’s Campground near Camden. According to police and media reports, Ruiz and his family had visited the campground for years, and the campground owner said Ruiz should use the women’s restroom.

When he did he was confronted by several men who made homophobic slurs, reports said. A crowd gathered, and Ruiz was hit several times.

The campground owner tried to intervene and get Ruiz away, but Ruiz was “uncooperative” then and when Preble County sheriff’s deputies arrived. A number of the people involved, including Ruiz, had reportedly been drinking.

Ruiz was arrested, but none of his alleged assailants were. He went back to the sheriff’s office July 5 to report the assault, including being shoved, choked and hit in the back of the head.

The case has been turned over to county prosecutors, according to the Preble County Sheriff’s Office.

Legal and legislative moves

In June 2021, following a related U.S. Supreme Court decision, the U.S. Department of Education and the Equal Employment Opportunity Commission issued guidance applying the 1964 Civil Rights Act to gay, lesbian and transgender people in schools and workplaces. Applying to schools that get federal funding and most employers, the directives extend transgender protections to include use of restrooms and locker rooms, and inclusion on sports teams corresponding to their gender identity.

Republican attorneys general from 20 states, including Ohio, sued the federal government in 2020 over policies related to transgender rights protections. On July 15 of this year, a federal judge in Tennessee blocked the Biden Administration’s rules until the lawsuit is resolved.

The judge, appointed by President Donald Trump, said the directives would make it impossible for some states to enforce their own laws on the subject.

Late on the night of June 1, the Ohio House passed a ban on transgender women competing in women’s sports at Ohio schools and colleges without that provision going through the standard legislative committee process.

State Rep. Jena Powell, R-Arcanum, added the “Save Women’s Sports Act” to an unrelated bill: Substitute House Bill 151, which originally dealt with teacher mentoring.

The amendment would prohibit schools, state universities, private colleges and interscholastic sports bodies from allowing “individuals of the male sex to participate on athletic teams or in athletic competitions designated only for participants of the female sex.”

It only addresses athletes who transition male-to-female, not female-to-male.

If anyone questions an athlete’s sex, regardless of gender identification, the athlete would have to present a signed doctor’s note indicating the student’s sex, including “participant’s internal and external reproductive anatomy.”

If a school did allow a transgender female athlete to compete on a women’s team, “any participant” in those sporting events could sue the school. Opponents have pointed out that the bill’s requirements could result in genital inspections of any student whose gender is questioned.

“The genital inspection portion of the bill is particularly shocking, but the premise is equally problematic: that any nearby spectator can require student athletes to shoulder the cost of DNA testing or other invasive tests to prove they are cisgender,” Poe said. They said Equality Ohio is “confident” the bill can again be stopped in the Senate.

The same prohibition failed in 2021 when the House slipped it into another bill that then died in the Senate, according to Robinson.

Senate President Matt Huffman, R-Lima, has said the Senate will likely take up the issue of transgender athletic participation in November and that he would like to “get results” by the end of the year. But, describing the House move as “a bad way to change policy,” Huffman said the bill would likely receive committee hearings in the Senate.

Following the bill’s June 1 passage of the House, Gov. Mike DeWine’s spokesman Dan Tierney said the governor was “monitoring the legislation” and confirmed that DeWine had previously said transgender athlete issues should be handled by sports officials, not legislators.

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