The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
The Ohio House recently passed a transgender bathroom and locker room ban bill, but states that have passed similar bills have gone on to face legal challenges.
Arkansas, Idaho, Iowa, Kentucky, Oklahoma, Tennessee, Alabama, Louisiana, Mississippi, North Dakota, Florida, and Utah all have laws on the books that ban transgender people from using the bathroom that aligns with their gender identity in schools.
These laws have been challenged in Florida, Oklahoma, Idaho, and Tennessee. The U.S. Court of Appeals for the 9th Circuit blocked Idaho’s law in the fall.
Ohio’s bill would require K-12 schools and universities to mandate that students only be able to use the bathroom or locker room that matches their gender assigned at birth. It would not prohibit a school from having single-occupancy facilities and it would not apply to someone helping a person with a disability or a child younger than 10 years old being assisted by a parent, guardian, or family member.
The bathroom ban bill, which was tucked into Senate Bill 104 at the end of a marathon House session, heads back to the Ohio Senate for concurrence. The lawmakers are currently on summer break, so that won’t happen anytime soon.
Ohio Gov. Mike DeWine has indicated he would sign the bill if it came to his desk.
“As it stands now, I would sign the bill,” he told reporters on Friday.
Lawsuits would be filed if Ohio passes the bill, said Cleveland attorney Robert Chaloupka.
“There’s good reason to believe that if the (Ohio) Attorney General decides to defend this case, they’re going to lose, which means we’re spending taxpayer money on something that we have a good sense of how it’s going to go,” he said.
Chaloupka sees lots of legal challenges with Ohio’s bill.
“My most critical point about this is who’s going to police this?” Chaloupka asked.
He thinks this would be especially challenging in a university setting where there are non-traditional students.
“You’re going to regulate where a 75 year olds trans individual goes to the bathroom?” Chaloupka said.
The Supreme Court declined to weigh in earlier this year on whether schools can ban transgenderstudents from using a restroom that reflects their gender identity. That denial left in place a U.S. Court of Appeals for the 7th Circuit decision that allowed a transgender middle school Indiana boy to use the boys’ restroom.
The American Medical Association officially opposes policies preventing transgender individuals from accessing basic human services and public facilities consistent with gender identity.
“Banning transgender students from freely and safely accessing public places, like bathrooms and changing rooms, sends the message that transgender children do not belong,” Ash Orr, spokesperson for the National Center for Transgender Equality, said in an email. “Everybody should be able to safely access public places without fear of persecution or harassment.”
Utah’s bathroom ban law — which went into effect in May— applies to K-12 schools and all government-owned buildings.
“Using the bathroom is a human function that everybody needs to be able to do, and bathrooms can tend to feel like vulnerable spaces, so I think the real concern is that people will feel uncomfortable in a bathroom setting and choose not to use the bathroom at all, which obviously can lead to health issues,” said Equality Utah’s Policy Director Marina Lowe.
What happened in North Carolina?
North Carolina was the first state to limit bathroom access to transgender people in 2016 when they enacted a law that banned transgender people from using the restroom that matched their gender identity in most public spaces.
The backlash was swift and ended up costing the state hundreds of millions of dollars. The NBA moved its 2017 All-Star game from Charlotte to New Orleans. TheACC’s 2016 championship football game was moved from Charlotte to Orlando. Pearl Jam, Bruce Springsteen and Ringo Starr canceled their North Carolina shows.
North Carolina’s law was repealed in 2017 and ultimately settled in federal court in 2019.
