Ohio SB 104 Legal Update:   What Does The Outcome of The Recent Trial Mean for Ohio K-12 Schools?  

December 2024/by David J. Sipusic

On November 27, 2024, Governor DeWine signed Ohio Senate Bill 104 into law.  Ohio Senate Bill 104 started out as a bill addressing the College Credit Plus program, but the Ohio House of Representatives amended it to add HB 183  which “requires schools to designate specified facilities for the exclusive use of students of either the male biological sex or the female biological sex.” This will apply to public and chartered nonpublic schools, educational service centers, and institutions of higher education.  The law is set to become effective 90 days from the date that the Governor signed the bill, which would be Tuesday, February 25, 2025.

Let's take a closer look at how the requirements of SB 104 may impact Ohio K-12 Schools.

1.        College Credit Plus Update  - R.C. 3365.03

Sec. 3365.03(A) states that a student enrolled in a public or nonpublic secondary school during the student's ninth, tenth, eleventh, or twelfth grade school year; a student enrolled in a nonchartered nonpublic secondary school in the student's ninth, tenth, eleventh, or twelfth grade school year; or a student who is exempt from the compulsory attendance law for the purpose of home education under section 3321.042 of the Revised Code and is the equivalent of a ninth, tenth, eleventh, or twelfth grade student, may apply to and enroll in a college under the college credit plus program.

Under the updated law, students can still notify their school by April 1^st  to be approved to participate in the program for the next full school year, but in addition, any student who now provides notification to their school by November 1^st  may now be approved to participate in the program for the next semester or term only.

2.        Protect All Students Act (PASA) - R.C. 3319.90

Section 3319.90(B)(1)Requires public school districts, community schools, STEM schools, chartered non-public schools, educational service centers (ESCs) and institutions of higher education to designate specified facilities for the exclusive use of students of either the male biological sex or the female biological sex.  The new law also includes the following key definitions:

-            (A)(1)Definition of “biological sex” 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. An individual may use the individual's official birth record, as defined in section 3705.01 of the Revised Code, to prove biological sex if the birth record was issued at or near the time of the individual's birth.

-            (A)(2)Definition of “family facility” is a family restroom or shower room that does not have more than one toilet or shower.(

-            A)(3)Definition of “multi-occupancy facility” is a restroom, locker room, changing room, or shower room that is accessible to multiple individuals at the same time, but does not include a “family facility”.

Section 3319.90(B) contains the requirements with respect to who may use restroom, locker room, changing room or shower room facilities:

-            (B)(1)Specifically, each student restroom, locker room, changing room, or shower room that is accessible by multiple students at the same time must be designated for the exclusive use of students of either the male biological sex or female biological sex. (For K-12, this provision applies to such rooms whether they are located in a school building or a facility  for a school sponsored activity.)

-            (B)(2)Prohibits schools and ESCs from permitting members of the female biological sex to use a student restroom, locker room, changing room, or shower room that is designated for the male biological sex and vice versa.

-            (B)(3)Bill also prohibits schools from constructing, establishing, or maintaining a multi-occupancy facility that is designated as nongendered, multigendered, or open to all genders.  Family facilities are exempt from this prohibition.

Section 3319.90(C) prohibits schools and ESCs from permitting members of the female biological sex to share overnight accommodations with members of the male biological sex and vice .

Section 3319.90(D) emphasizes that the Bill DOES NOT  prohibit a school from establishing a policy providing accommodation such as single-occupancy facilities or controlled use of faculty facilities at the request of a student due to special circumstances.  The term “special circumstances” is not defined in the statute and will likely be subject to a broad range of interpretations and potential legal challenges.

Under Section 3319.90(E), the statute indicates that the new requirements do not apply to:

-            (E)(1)Child under the age of 10 who is being assisted by a parent, guardian, or family member and the parent, guardian, or family member who is assisting the child

-            (E)(2)A person with a disability who is assisted by another person and the person who is providing assistance to the person with the disability.

-            (E)(3)A school employee whose job duties require employee to enter a restroom, locker room, changing room, or shower room designated for a biological sex that is different from the employee's biological sex

-            (E)(4)Person who enters restroom, locker room, changing room or shower room that is designated for a biological sex that is different than the person's biological sex because the person reasonably believes they are responding to a legitimate emergency.

 What Does This Mean?

As you can see, Ohio K-12 schools will need to consider updates and revisions to their policies and procedures with respect to the addition of the November 1st enrollment option for College Credit Plus, as well as review and update their facilities and site plans to comply with the new restroom, locker room, changing room and shower room requirements.

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]