Back in November 2024, Ohio Governor Mike DeWine signed into law SB 104, colloquially known as the "Bathroom Bill." This law--which goes into effect on February 25, 2025--provides specific guidelines for restroom, locker room, changing room, and shower room facilities in schools. The law will prohibit students from using facilities designated for the opposite "biological sex," which the law defines as "the biological indication of male and female . . . present at birth." The law also would require schools to designate facilities for exclusive use by students of the "male biological sex" or "female biological sex," and prohibits non-gendered facilities (i.e., facilities open to all genders). Family facilities and single-occupancy facilities are still permitted.
Our Higher Education team is discussing the specifics and application of this bill in a webinar on January 16, 2024. There are many questions remaining about how this bill fits into the educational world. Tune in for a robust discussion of the particulars.
Importantly, if this bill is not blocked, and goes into effect on February 25, it would not apply to non-education companies and organizations. However, employers outside that industry may be wondering what the rules are for similar questions. As I've discussed in a previous post, the Equal Employment Opportunity Commission has recently made it clear harassment directed at transgender employees is unlawful, and falls under Title VII of the Civil Rights Act. The EEOC is taking action to enforce anti-discrimination of transgender employees in court.
Similarly, the EEOC's enforcement guidance makes it clear that sex-based discrimination includes "the denial of access to a bathroom or other sex-segregated facility consistent with the individual's gender identity." While the enforcement guidance is not itself law, it does show how the EEOC interprets and enforces the anti-discrimination mandates of Title VII on this issue. And, employers who do not fall under SB 104[1] may face action from the EEOC if they fail to allow employees to have access and use the facilities aligned with their gender identity.
Bricker Graydon's Employment, Education (Pre-K to 12), and Higher Education teams are here to help navigate the interplay between state law and federal enforcement, as well as any of those other tough questions that pop up. With the change in federal administration and the possibility of legal action regarding the state law, sign up for our regular publications and blogs to stay up to date.
[1] This is especially complicated for some schools where some of their employees may also be considered students. The law and its application on this topic is murky, but tune into our webinar for a more in depth discussion.
