City rejects Upper Arlington Schools' latest plans for 'all-gender' restroom signage
Upper Arlington Schools' latest plans for "all gender" restroom signs at its new high school and five elementary school buildings have been rejected by the city.
City attorney Dan Shulman notified the district April 30 that the city could not direct its building inspectors to approve "all gender" signs for restrooms at the new Upper Arlington High School.
Likewise, Shulman said, the city could not approve similar signage for restrooms at Barrington, Greensview, Tremont and Wickliffe elementary schools.
The high school and each of the elementary buildings, as well as Windermere Elementary School, have been rebuilt or renovated over the past three years as part of a $235 million upgrade project.
At issue, however, is the district's plan to provide private toilet rooms at the new high school, Barrington, Greensview, Tremont and Wickliffe that could be used by anyone regardless of gender.
The city has maintained that signs for the restrooms do not comply with state law because they do not designate facilities specifically for males or females.
The city's disapproval of the plans comes after the district's architect, Moody Nolan, sought to appease the city by using all-gender signage for the restrooms, saying the restrooms and the signs were protected by Title IX provisions.
Title IX is a federal civil-rights law that was passed as part of the Education Amendments of 1972. It prohibits sex-based discrimination in any school or other education program that receives federal money.
In a March 26 letter to the city, Steve Dzuranin, a Moody Nolan project manager and senior associate, said Title IX requires gender equality for all students and that Ohio and federal courts have held that Title IX protects transgender students in Ohio public schools with regard to their access to bathrooms for the sex with which they identify.
"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," Dzuranin said. "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."
Shulman did not dismiss the Title IX argument in disapproving permits because of the continued dispute over the restrooms.
He said he lacked authority to determine if state building codes that require male and female signs for designated restrooms violates federal law.
"This is not an assessment of the merits of the argument but rather a determination that I do not have the ability to direct our chief building official to ignore the findings of the plans' examiners regarding the requirements of the code," Shulman wrote in his April 30 letter to the district.
District officials did not respond to questions regarding the city's recent finding as of the afternoon of May 7.
Shulman said because there are no outstanding items that are safety related, the schools have been allowed to operate under the conditional occupancy.
However, the district has 30 days from April 30 to appeal his decision to the state Board of Building Appeals. Otherwise, it would be subject to fines of up to $150 per day, per offense.
"I believe if they are unsuccessful at the Board of Building Appeals, the next step is to appeal to (Franklin County) Common Pleas Court," Shulman said. "Assuming the school timely appeals, the city wouldn’t levy any fines until the appeal process is completed."
The district already has had one such appeal denied by the BBA.
On June 4, the board ruled in a 3-2 vote that all-gender or gender-neutral restrooms at Windermere do not comply with building codes for public schools in Ohio because they aren't separately labeled for each gender.
That case went to common-pleas court and is pending in Ohio’s 10th District Court of Appeals after the mother of a Windermere kindergarten student, identified in court documents as "Jane Doe," filed a lawsuit to challenge the legality of all-gender restrooms at that school.
District officials have said the all-gender restrooms, which feature ceiling-to-floor walls and solid, full-frame, lockable doors, are being used at the new and renovated schools to provide better privacy and safety for students.
Proponents from the community also have said during past Upper Arlington school board meetings that the restrooms could help with inclusivity for people who are transgender.
"It really all comes down to privacy, practicality and safety," Superintendent Paul Imhoff said in January. "There is no legal or code violation regarding the design or construction of the bathrooms. There is only a question about the appropriate/proper signage."