Tuesday, November 29

A Battle Rages Over “All Gender” Bathrooms in an Ohio Suburb

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A plan to label private, single-occupancy bathrooms in their high school and 5 of their elementary schools as “all gender” has been rejected by the city of Upper Arlington.

The city’s action on April 30 is the latest development in a years-long fight in the Columbus suburb to increase the accessibility of restrooms for all students in the six newly renovated buildings.

The restrooms in question feature ceiling-to-floor walls and solid, full-frame, lockable doors. At the heart of the issue is not the construction of the space or the physical amenities, but rather the signage of the restrooms themselves.

Architectural plans for the six buildings were submitted in 2018 and approved individually by the Upper Arlington School Board at meetings between August and December of that same year. All of these plans included restrooms labeled “gender neutral,” and minutes for the six School Board meetings do not indicate any conversation took place about the restrooms.

In June of 2020, the School District petitioned the Ohio Board of Building Appeals (BBA) to request an exception be made for the Windermere Elementary School building to Ohio’s Building Code 2902.2 requiring separate facilities for each sex.

On June 4, 2020, the BBA ruled—in a vote of 3-2—that the all-gender restrooms at Windermere did indeed violate the state’s Building Code. The School District then appealed the matter to the Franklin County Common Pleas Court on June 24.

According to court filings, the city of Upper Arlington—though named as a defendant in the matter—agreed that the school should be given the exception, arguing that not allowing the all-gender restrooms would create an “unnecessary hardship” on the district and its students.

On Sept. 15, Judge Gina Russo of the Common Pleas Court ruled that the variance should be granted and sent the case back to the BBA.

Enter: some parents.

“Jane Doe”, the mother of a Windermere kindergarten student, filed a complaint challenging the restroom plans, which then caused Judge Russo on Nov. 30 to reverse her earlier decision in order to allow Jane Doe’s complaint to move forward.

On Dec. 15, Upper Arlington Schools and the district’s school board appealed Russo’s decision and the case is now pending in Ohio’s 10th District Court of Appeals.

As that case waits to be heard, Steve Dzuranin, a project manager and senior associate for the school district’s architect Moody Nolan, sent a letter to the city on March 26 arguing that the rejection of the all-gender restrooms in the five other schools is a violation of Title IX. From that letter:

“Under Title IX, public school students are not restricted by the sex-based signage placed at the entrance of restroom facilities when determining which restroom facility they wish to use. The intent of the proposed bathroom configuration is to address the concerns raised by the court … by permitting all genders access to communal bathrooms in the identified locations.

“Further, the proposed bathroom configuration creates an environment which avoids improperly forcing the disclosure of protected personal information … where students will not need to identify a gender prior to using the restroom facility, and will thus curtail opportunities for discrimination based on an individual’s chosen gender identity. As a result, the proposed bathroom configuration is expressly permitted under and protected by Federal Title IX and the substantive due process right to privacy.”

Letter from Darren Shulman, City Attorney

Darren Shulman, city attorney, responded to the letter acknowledging that Title IX may “form a basis for requiring approval,” but that the city does “not have the authority to determine that a provision of the state building code violates Federal law.”

As Shulman explained to The Buckeye Flame, this rejection allows the school district to move forward with an appeal to the BBA for the 5 other schools.

“The Windermere school is basically the test case,” said Shulman. “We were hoping that would be resolved fairly quickly, but it looks like it will take significantly longer. The other five schools are a few steps behind [the Windermere case]in the process and can now move forward and appeal to the BBA.”

While the city rejected the plans for the all-gender restrooms, their stance is one of state compliance, not opposition to equal access.

“I’m a local city attorney,” explained Shulman. “In that capacity, I don’t have the authority to determine that a state building code violates federal law or to endorse that we violate state building codes. Although the International Building Code allows for all-gender restrooms, Ohio hasn’t adopted those codes yet, and we have to go with what is on the books.”

Steven Schoeny, City Manager for Upper Arlington, wants the community to know that this is not an issue of city versus school district.

“Upper Arlington is not the nemesis of equality here,” said Schoeny. “The city believes very firmly in welcoming everyone and making them feel welcome in the community. We try as much as humanly possible to discharge our duties with that in mind, even as, yes, we also are charged with enforcing a set of laws.”

The city of Upper Arlington does not currently have a nondiscrimination ordinance that includes protections on the basis of sexual orientation, gender identity, or gender expression, but city officials shared that they are currently working on updating their codes. 🔥

About Author

Ken Schneck is the Editor of The Buckeye Flame. He received the 2021 Sarah Pettit Memorial Award for the LGBTQ Journalist of the Year from the NLGJA: The Association of LGBTQ Journalists. He is the author of "Seriously, What Am I Doing Here? The Adventures of a Wondering and Wandering Gay Jew" (2017), "LGBTQ Cleveland" (2018), "LGBTQ Columbus" (2019), and "LGBTQ Cincinnati" (2020). In his spare time, he is a professor of education at Baldwin Wallace University.

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  1. Pingback: A New LGBTQ+ Group Adds Much-Needed Rainbows to Upper Arlington - The Buckeye Flame

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