Ohio AG on bathroom policies: Law does not protect 'subjective preferences' of trans people

Jun 11, 2023

Ohio Attorney General Dave Yost. (Photo by Justin Merriman/Getty Images)

In an official opinion from the Ohio Attorney General's Office, AG Dave Yost said the Ohio Revised Code allows operators of public bathrooms to segregate the use by gender assigned at birth.

The opinion comes just after a bill banning transgender students from being able to use the bathroom and locker room that aligns with their gender identity was recently introduced by a pair of Ohio Republican legislators.

At the request of the Greene County prosecutor, Yost entered his opinion last week as to whether a section of Ohio law prohibits the restriction of restrooms, changing rooms, or locker rooms to a single sex, what constitutes a "public accommodation" under the law, and whether the Ohio Civil Rights Commission has the ability to issue interpretations on the law.

The provision of the law on unlawful discriminatory practices in question bars a proprietor of "a place of public accommodation" from denying anyone "the full enjoyment" of the place "regardless of race, color, religion, sex, military status, national origin, disability, age, or ancestry."

The General Assembly enacted the original version of the law in 1961, and the section didn't include sex as a protected class until 1973.

That 1973 addition feeds into Yost's argument that facilities segregated by a gender assigned at birth are allowed under the law, and still societally accepted.

"Put differently, nearly everyone in 1973 would have understood what almost everyone alive today understands still: providing women's- and men's-only spaces for certain functions will not deny, and may enhance, equal access to public facilities," Yost wrote.

The opinion also used arguments many advocates for anti-trans legislation have used in the bathroom policy battles, and even in arguments against gender-affirming care: gender-neutral bathrooms lead to a "heightened privacy risk that men present," they claim.

"Allowing men to share bathrooms, changing rooms and locker rooms with women increases the ease with which biological males – most especially men who identify as men – can victimize women and girls," Yost wrote.

While he acknowledged his opinion may be considered "insufficient to protect the interests of our transgender citizens," he deferred to the legislature, which has already considered anti-trans legislation but has yet to bring forth serious protections for transgender Ohioans, to change the state of the law.

"I do not wish to diminish the reality that some transgender individuals may feel uncomfortable or disrespected if made to abide by such policies," Yost wrote. "But in this context, as in so many other legal contexts, the law does not protect subjective preferences."

Even if sex-segregated bathroom policies do deny transgender individuals the right to use the bathroom of their choice, Yost considers that denial "lawful" because it is made "‘regardless of’ any protected trait, including ‘sex.'"

"Thus, if a transgender individual is denied that access, it cannot be because of his sex; he could access the bathroom that accords with his biological sex to the same degree as any other patron," Yost wrote. "Instead, the reason for his denial is that he is not comfortable using the bathroom assigned to his biological sex."

Transgender and gender-nonbinary teens face greater risk of assault in schools that prevent them from using bathrooms or locker rooms consistent with their gender identity, recent studies have shown.

While Yost said the OCRC is allowed to interpret the law, those interpretations "will not be authoritative in court," as that would be considered an override of judicial powers, according to Yost.

One thing Yost said he couldn't offer an opinion on was whether or not a restroom, changing room, or locker room housed in a governmental entity's facility but open to the public could be considered a "public accommodation." That, he said, would be up to the courts.

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by Susan Tebben, Ohio Capital Journal May 31, 2023

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Susan Tebben is an award-winning journalist with a decade of experience covering Ohio news, including courts and crime, Appalachian social issues, government, education, diversity and culture. She has worked for The Newark Advocate, The Glasgow (KY) Daily Times, The Athens Messenger, and WOUB Public Media. She has also had work featured on National Public Radio.