By Jacqueline Walsh Brickman
With its vote to override Governor Mike DeWine’s veto of House Bill 68 (“H.B. 68”), the Ohio legislature enacted a statute that conflicts with anticipated changes to the sex discrimination regulations established under Title IX and existing Ohio High School Athletic Association (“OHSAA”) athletic participation rules. So, what does H.B. 68, otherwise known as the “Save Women’s Sports Act” mean for Ohio school districts?
Under H.B. 68, school districts that participate in athletic competitions, or events administered by an organization that regulates interscholastic athletic conferences or events, will be required to designate interscholastic athletic teams based on the participants’ sex with:
(1) Separate teams for participants of the female sex within female sex divisions;
(2) Separate teams for participants of the male sex within male sports divisions; and
(3) If applicable, co-ed teams for participants of the female and male sexes within co-ed sports divisions.
Nonetheless, the statute states that it will not restrict the eligibility of any student to participate in male (and co-ed) athletic teams. As such, the effect of the law is that female transgender students (those that are biologically male but identify as female) may not participate in female athletics, but female students and male transgender students (those that are biologically female but identify as male) may participate in male athletics. The law creates a private right of action for violations that could result in monetary damages against school districts in violation of these restrictions, including attorney’s fees.
H.B. 68’s broad prohibition against transgender female students participating in female athletics conflicts with OHSAA’s November 17, 2014 Transgender Policy. Under the policy, male transgender students could participate on male athletic teams if they had not yet begun medically prescribed testosterone treatment or if they were on a medically prescribed testosterone treatment and had obtained the proper certification. While state law will supersede OHSAA’s Transgender Policy, school districts may have adopted policies consistent with these guidelines. School districts should consult with their legal counsel and/or policy service provider regarding whether any existing policies related to transgender students and interscholastic athletics should be revised.
The U.S. Department of Education also is anticipated to release long-awaited changes to Title IX’s sex discrimination regulations. The proposed regulations, which are not currently in effect, would require school districts to permit students to participate in athletic teams consistent with their gender identity unless certain criteria are met. H.B. 68’s prohibition against female transgender students participating in female athletics will conflict with the proposed Title IX regulations, should they go into effect.
If the conflicts with OHSAA’s policy and the anticipated Title IX sex discrimination regulations are not enough, H.B. 68 contains internal inconsistencies that may be the basis for future litigation. H.B. 68 purports to create a new statute – R.C. 3313.5319. However, 3313.5319 already was created by House Bill 33, which became law in October 2023, to require school districts to permit cash payments at school-affiliated events. As such, it is unclear where in the Ohio Revised Code the “Save Women’s Sports Act” will be enacted.
Additionally, H.B. 68 provides a definition of “sex” in R.C. 3129.01, that is only applicable to “this chapter”. However, the “Save Women’s Sports Act” is intended to be enrolled in R.C. 3313.5319, which is in an entirely different chapter of the Ohio Revised Code. As a result, the definition of “sex” contained in R.C. 3129.01 arguably may not apply to “Save Women’s Sports Act”, creating further confusion for school districts attempting to comply with its requirements.
In other states that have enacted similar laws, litigation has followed. School districts should review their policies and procedures, as well as consult with legal counsel, when navigating issues pertaining to H.B. 68.