In April of 2024, Ohio House Bill 68 was enacted into law.  HB 68 is also more commonly referred to as the Saving Ohio Adolescents from Experimentation (SAFE) Act and the Save Women's Sports Act.  The law's two primary objectives are to prohibit gender-affirming care for minors and to block transgender student-athletes from participating in women's sports.

Originally vetoed by Governor DeWine in December of 2023, the Ohio House and Senate voted to override Gov. DeWine's veto in January of 2024.  This override triggered a lawsuit filed by the American Civil Liberties Union (ACLU) in March of 2024 (Moe, et al. v. Yost, et al., Franklin County Common Pleas Case No. 24CVH 03-2481), claiming that children were at risk of being harmed by the Bill's ban on healthcare. 

When the law took effect in April of 2024, the Franklin County Common Pleas Court issued a temporary restraining order (TRO) that blocked the implementation of HB 68.  The Ohio Supreme Court upheld the TRO in May 2024 until completion of the ACLU trial. The HB 68 trial took place the week of July 15, 2024 and the Court issued its decision on August 6th.  A copy of that decision can be found by clicking here. 

In short, the Court ruled in favor of the State of Ohio, upholding the constitutionality of HB 68 and lifting the TRO.  While the ACLU is in the process of filing an appeal with the 10^th District Court of Appeals, the result of the trial is that HB 68 is now in effect.

Let's take a closer look at how the requirements of HB 68 impact Ohio K-12 Schools.

1.        Saving Ohio Adolescents from Experimentation (SAFE) Act

Under Section 3129.01(H) of the Ohio Revised Code, clinical nurse specialists that are certified as psychiatric-mental health CNS, certified nurse practitioners who are certified as psychiatric-mental health NP, school psychologists, independent school psychologists licensed under R.C. Chapter 4732, independent social workers, social workers, licensed professional clinical counselors and licensed professional counselors are all included in the definition of “Mental Health Professional”

Based on their status as a Mental Health Professional, Section 3129.03(A) of the Ohio Revised Code states that none of the above-referenced individuals can diagnose or treat a minor individual who presents for the diagnosis or treatment of a gender-related condition without first obtaining the consent of one of the following:

(1)     At least one parent of the minor individual;

(2)     At least one legal custodian of the minor individual;

(3)     The minor's individual guardian.

Section 3129.03(B) also states that prior to treating a minor individual who presents for the diagnosis or treatment of a gender-related condition, the mental health professional must screen the minor individual for both of the following during the course of diagnosis and treatment:

(1)     Other comorbidities that may be influencing the minor individual's gender-related condition, including depression, anxiety, attention deficit hyperactivitiy disorder, autism spectrum disorder and other mental health conditions;

(2)     Physical, sexual, mental, and emotional abuse and other traumas.

Under R.C. 3129.01(D), "Gender-related condition" means any condition where an individual feels an incongruence between the individual's gender identity and biological sex. "Gender-related condition" includes gender dysphoria.

Based on the above, any school employee or independent third-party individual providing services to a school district that meets the definition of a mental health professional under R.C. 3129.01(H), would need to first obtain consent from the parent, legal custodian or guardian of a minor before treating them with respect to a gender-related condition.  Further, in addition to obtaining consent, the mental health professional would also need to screen the minor for the conditions referenced in R.C. 3129.03(B) during the course of treatment and diagnosis.

2.        Save Women's Sports Act

Revised Code Section 3313.5320(A) states that each school that participates in athletic competitions or events administered by an organization that regulates interscholastic athletic conferences or events shall designate interscholastic athletic teams based on the sex of the participants as follows:

(1)     Separate teams for participants of the female sex within female sports divisions;

(2)     Separate teams for participants of the male sex within male sports divisions

(3)     If applicable, co-ed teams for participants of the female and male sexes within co-ed sports divisions.

The term “sex” as defined in R.C. 3129.01 means “the biological indication of male and female, including sex chromosomes, naturally occurring sex hormones, gonads, and non-ambiguous internal and external genitalia present at birth, without regard to an individual's psychological, chosen, or subjective experience of gender.”

R.C.  3313.5320 goes on to state:

               (B) No school or athletic conference shall knowingly permit individuals of the male sex to participate on athletic teams or in athletic competitions designated only for participants of the female sex.

               (C) Nothing in this section shall restrict the eligibility of any student to participate on any athletic teams or in athletic competitions that are designated as male or co-ed.

               (D) No agencies or athletic associations shall process a complaint, begin an investigation or take any other adverse action against a school or school district for maintaining separate single-sex interscholastic teams or sports.

               (E)(1) Anyone who is deprived of an athletic opportunity or suffers direct or indirect harm as a result of a violation of the statute has a private cause of action.

               (2) Anyone who is subject to retaliation for reporting a violation of this section has a private cause of action against the retaliatory entity.

               (3) Any school that suffers harm as a result of violation of section D has a private cause of action.

               (F) All claims brought as a result of a violation of this section shall be brought within two years after the date on which the violation occurs.  Prevailing parties shall be entitled to monetary damages, including psychological, emotional, or physical harm suffered, reasonable attorney's fees and costs, and any other appropriate relief.

Based on the above, schools are permitted to have single-sex interscholastic teams or sports and athletes of the male sex, as defined in the statute, are prohibited from participating on female sex-based teams.  The statute does not prevent athletes of the female sex from participating on male sex-based teams. 

Further, the statute creates a private cause of action for anyone who is deprived of an athletic opportunity or retaliated against for reporting a violation under the statute and includes reasonable attorney's fees and costs as potential monetary damages recoverable against those found to have violated the statute.

What Does This Mean?

As you can see, Ohio K-12 schools will need to be mindful of the new requirements set forth under both the SAFE Act and the Save Women's Sports Act as they move forward into the new academic year.  School Districts will need to consider updates and revisions to their policies and procedures with respect to treating or counseling minor students on gender-related matters and work with their athletic department and athletic conference to ensure compliance with the requirements of the Save Women's Sports Act as well.

PKM has more than 125 years of combined experience that allows us to help educational institutions overcome their challenges and will continue to monitor this rapidly changing landscape. We recommend that schools consult with their respective legal counsel to discuss next steps as you navigate these challenging times and invite you to please stay tuned for further updates!

David J. Sipusic, J.D., Senior Counsel

Peters, Kalail & Markakis, Co., L.P.A.

Phone: (216) 503-5083

Email:  [email protected]