Transgender Students: Legal Issues
On March 9, 2017, the National School Boards Association (NSBA) released an updated guide discussing the various legal issues surrounding transgender students. The intent of this guide is to answer questions that school districts may have as they attempt to formulate policy which complies with state law, reflects community concerns and ensures all students are safe and learning at school. Click on the following link for the NSBA guide, Transgender Students in Schools: Frequently Asked Questions and Answers for Public School Boards and Staff (Version 9.0).
The updated guide summarizes significant developments within the past year, including: the Trump administration’s February 22, 2017 Dear Colleague letter withdrawing the Obama administration’s May 13, 2016 transgender guidance; the U.S. Supreme Court’s March 3, 2017 decision to vacate the Fourth Circuit Court of Appeal’s order in G. G. v. Gloucester Cnty. Sch. Bd. ; and the status of various transgender lawsuits filed across the nation. The updated guide particularly notes that “[t]here are no quick and easy answers to these questions” and its “primary aim is to offer a guide for spotting issues, understanding existing legal frameworks, and, where appropriate, offering recommendations to help schools ensure that all students, regardless of gender identity, are safe and learning at schools.” Transgender Students in Schools: Frequently Asked Questions and Answers for Public School Boards and Staff (Version 9.0), p. 5, National School Boards Association.
The NSBA’s Office of General Counsel also maintains a Transgender Student Litigation Chart, available online in the NSBA Resource Library under School Law Resources.
Additional legal issues specific to transgender students in Illinois are discussed in detail in the links below:
School districts’ legal obligation to provide equal education and extracurricular opportunities to all students, including students identifying as transgender, is addressed in sample PRESS policy 7:10, Equal Educational Opportunities. Please pay specific attention to the sample policy’s footnotes discussing the adoption of separate policies or inserting policy statements about accommodations and inclusion of transgender students in the educational program.
Guidelines for implementing sample policy 7:10 specific to accommodating transgender or gender non-conforming students are set forth in PRESS Administrative Procedure 7:10-AP, Accommodating Transgender Students or Gender Non-Conforming Students.
PRESS also provides a sample board exhibit for boards that want to inform their communities about the policies they have adopted that address the equal educational opportunities, health, safety, and general welfare of students within their districts. That exhibit is 7:10-E, Equal Educational Opportunities Within the School Community.
This webpage will be continually updated with new developments.
A. State Law Prohibiting Transgender Discrimination
The Illinois School Code requires public schools to provide all students with equal opportunities in all education programs and services. 105 ILCS 5/10-20.12; 23 Ill.Admin.Code §1.240(a). Illinois State Board of Education (ISBE) regulations further state that “no school system may exclude or segregate any pupil, or discriminate against any pupil on the basis of his or her race, color, religion, sex, national origin, ancestry, age, marital status, or physical or mental disability, sexual orientation, pregnancy [775 ILCS 5/1-102(A)], gender identity, or status of being homeless [105 ILCS 45/1-5 and 42 USC 11434a(2)].” 23 Ill.Admin.Code §1.240(b).
The Illinois Human Rights Act (IHRA) prohibits discrimination in places of public accommodation, including schools, based on sex and sexual orientation. 775 ILCS 5/1-102(A), 5/5-101(11). The IHRA defines sexual orientation as the “actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity whether or not traditionally associated with the person’s designated sex at birth.” 775 ILCS 5/1-103(O-1). Similar to Title IX regulation 34 C.F.R. §106.33, the IHRA permits schools to maintain single-sex facilities that are distinctly private in nature, e.g., restrooms and locker rooms. 775 ILCS 5/5-103(B).
Even so, school districts may be subject to Illinois Department of Human Rights (IDHR) complaints alleging gender-related identity discrimination in violation of the IHRA. Such complainants may also allege disability discrimination in violation of the IHRA based upon the student’s diagnosis of gender dysphoria. From January 1, 2016 through March 22, 2017, five IDHR complaints had been filed against school districts alleging discrimination on the basis of gender-related identity and/or disability based upon gender dysphoria. Unlike ED complaints, successful IDHR complainants are able to seek attorneys’ fees and costs in relief. 775 ILCS 5/8A-104(G).
B. Additional Cases of Note
Additional noteworthy cases, not otherwise summarized in the updated NSBA guide, include the following.
- Hively v. Ivy Tech Comm. Coll. , --- F.3d ---, 2017 WL 1230393 (7th Cir. Apr. 4, 2017)
Plaintiff Hively, who is openly lesbian, filed suit against Defendant Ivy Tech Community College (Ivy Tech) alleging that she was denied full-time teaching positions and that her part-time teaching position was not renewed based upon her sexual orientation in violation of Title VII of the Civil Rights Act of 1964 (Title VII). Ivy Tech filed a motion to dismiss Hively’s claim, arguing that sexual orientation is not a protected class under Title VII, and the District Court for the Northern District of Indiana agreed and dismissed Hively’s case. Hively appealed to a panel of the Seventh Circuit Court of Appeals, which affirmed the District Court’s dismissal. Hively then petitioned for rehearing before the entire Seventh Circuit and her request was granted.
On April 4, 2017, the Seventh Circuit issued a groundbreaking decision, becoming the first appellate court to hold that “discrimination on the basis of sexual orientation is a form of sex discrimination” prohibited by Title VII. As a result, Hively’s claim is allowed to proceed at the District Court level.
This holding is significant because, prior to this case, plaintiffs alleging sexual orientation discrimination under federal civil rights statutes prohibiting sex discrimination (Title VII for employment and Title IX for education) were required to frame their argument as sex discrimination based on the plaintiff’s failure to adhere to sex-based stereotypes. Since judicial analysis of cases brought under Title VII is applied to cases under Title IX, this case clears the path for sexual orientation based sex discrimination claims under Title IX.
Moreover, the opinion states “…discriminatory behavior does not exist without taking the victim’s biological sex (either as observed at birth or as modified, in the case of transsexuals) into account.” Hively , 2017 WL 1230303 at *5. This broad definition of biological sex opens the door for a court to hold that sex discrimination in violation of Title VII and, by extension, Title IX includes discrimination based on gender identity. A panel of the Seventh Circuit make take this next step when it rules on the transgender student bathroom access case of Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. (see summary below), which had oral argument on March 29, 2017. Such an opportunity may also present itself to the District Court for the Northern District of Illinois in Students and Parents for Privacy v. U.S. Department of Education, whose October 2016 decision specifically referenced Hively as follows:
…[I]t appears the law in the Seventh Circuit concerning the interpretation of the term ‘sex’ in Title VII, as relevant to the almost identically worded Title IX, may be in flux. When the Seventh Circuit rules after its en banc review of Hively, whether with one voice or otherwise, it very well could shed important new light on the question of whether the term ‘sex’ as used in Title VII, and by implication in Title IX, encompasses gender identity.
Students and Parents for Privacy v. U.S. Dept. of Ed., 2016 WL 6134121 at *13 (N.D. IL. 2016).
- Evancho v. Pine-Richland Sch. Dist. , 2017 WL 770619 (W.D. PA. Feb. 27, 2017)
Plaintiffs, three high school transgender students, filed a motion for a preliminary injunction to prohibit the Pine-Richland School District (District) from limiting their use of bathrooms consistent with their gender identity. Plaintiffs were previously allowed to use bathrooms consistent with their gender identify until the school board passed Resolution 2, requiring students to use either single unit bathrooms or the bathrooms labeled as matching their assigned sex. Plaintiffs claimed that Resolution 2 violated both the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972 (Title IX).
The District Court for the Western District of Pennsylvania granted Plaintiffs’ Motion for a Preliminary Injunction in part, finding that Plaintiffs have a reasonable likelihood of success on the merits of their Equal Protection claims but not on the merits of their Title IX claim.
Under the Fourteenth Amendment Equal Protection Clause, states may not “deny to any person within its jurisdiction the equal protection of the law.” Plaintiffs argued they are being treated differently from other students who are similarly situated on the basis of their transgender status. The Court reasoned that laws targeting transgender individuals are subject to heightened scrutiny. Under a standard of intermediate scrutiny, a state must demonstrate an “exceedingly persuasive justification” for an action that intentionally treats one person, or a group of people, differently from another, when they are “similarly situated in all other material respects.” The Court concluded that Plaintiffs have a reasonable likelihood of success on the merits of their claim, finding that the District did not demonstrate an exceedingly persuasive justification of applying Resolution 2 to common restroom use by Plaintiffs that is substantially related to an important government interest because there is not sufficient evidence on record of “any actual threat to any legitimate privacy interests of any student by the Plaintiffs use of such restrooms consistent with their gender identify, or that the set-up of the High School restrooms fail to fully protect the privacy interests of any and every student.” Evancho , 2017 WL 770619 at *16.
In addressing Plaintiffs’ Title IX claim, the Court noted that this issue is a more complex legal matter and held that Plaintiffs are not entitled to preliminary injunctive relief under this claim. Plaintiffs argued that sex discrimination prohibited by Title IX includes discrimination based on transgender status. The Court concluded that “the law surrounding the [Department of Education] Regulation and its interpretation and application to Title IX claims relative to the use of common restrooms by transgender students, including the impact of the 2017 [Department of Justice and Department of Education] Guidance, is at this moment so clouded with uncertainty that this Court is not in a position to conclude which party in this case has the likelihood of success on the merits of that statutory claim.” The Court, therefore, held that the necessary showing of likely success on the merits of the Plaintiffs’ Title IX claim could not be made at this time.
Although not binding in Illinois, this case reminds public schools that transgender students must be afforded equal protection of the law as guaranteed under the Fourteenth Amendment.
Cassandra Black, IASB Law Clerk
- Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ ., 2016 WL 5239829 (E.D. WI. Sept. 22, 2016)
Plaintiff, a high school transgender student, filed a claim against the Kenosha Unified School District (District) alleging that the treatment he received at the high school after starting his female-to-male transition violated the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972 (Title IX) . In response to the Plaintiff’s request to use the boys’ bathroom, the District told him he could use the girls’ restroom or the single-user, gender-neutral restroom in the school office. Plaintiff first chose to avoid drinking liquids and using the bathroom at school and experienced a number of symptoms such as depression, anxiety and suicidal thoughts. The following year, he began using the boys’ restroom without incident, but the District eventually informed Plaintiff that he could not use the boys’ bathroom. While Plaintiff generally tried to avoid the restroom, he used the boys’ restroom when needed to avoid the psychological stress associated with using the girls’ restroom or the single-user restroom.
Plaintiff requested an order prohibiting the school district from: 1) enforcing any policy that denies him access to the boys’ restroom; 2) taking any disciplinary action against him for using the boys’ bathroom; 3) using or permitting school employees to refer to Plaintiff by his female name and pronouns; and 4) taking any other action that would reveal his transgender status to others at school. Plaintiff also filed a motion for a preliminary injunction prohibiting the District from taking any of the above action prior to a final resolution.
The Court granted Plaintiff’s Motion for a Preliminary Injunction in part, finding that he demonstrated several bases upon which the Court could rule in his favor, including possible success on a Title IX, Equal Protection, or gender stereotyping claim, indicating a reasonable likelihood of success on the merits of his claims. The Court prohibited the District from denying Plaintiff access to the boys’ restroom, enforcing any policy against Plaintiff that would prevent him from using the boys’ restroom, disciplining him for using the boys’ restroom, or monitoring his restroom use. The District appealed this decision to the Seventh Circuit Court of Appeals, a panel of which heard oral argument on March 29, 2017.
Cassandra Black, IASB Law Clerk
- Sommerville v. Hobby Lobby Stores , Charge Nos. 2011 CN 2993 and 2011 CP 2994 ( Illinois Human Rights Commission May 15, 2015)
Complainant Sommerville, a transgender female, filed a complaint with the Illinois Human Rights Commission (IHRC) against Hobby Lobby Stores, claiming sexual orientation discrimination related to gender identity, concerning both employment and public accommodation. Sommerville was hired as an employee of Hobby Lobby and during the course of her employment began the process of transitioning from male to female. While Hobby Lobby changed her personnel records and benefits information to identify her as female, they did not consent to her request to use the store’s designated women’s restroom. Hobby Lobby argued that the Illinois Human Rights Act (IHRA) does not require them to allow Sommerville to use the women’s restroom until she undergoes anatomical surgery.
The IHRC held that Hobby Lobby violated the IHRA as it concerns both employment and public accommodation when they prohibited Sommerville from using the women’s restroom on account of her gender related identify. The IHRA is intended to provide individuals within Illinois the freedom from discrimination because of a variety of factors including sexual orientation. The IHRA defines sexual orientation as “gender related identity, whether or not traditionally associated with the person’s designated sex at birth.”
The IHRC held that an “employee’s rights under sexual orientation, including sexual related identify, is broadly interpreted and protected against all listed civil rights violations.” Additionally, Hobby Lobby is a statutory public accommodation under the IHRA and cannot “deny or refuse to another (customer) the full and equal enjoyment of the facilities, goods and services of any public place of accommodation.”
The IHRC rejected Hobby Lobby’s argument that the IHRA also says that “discrimination based on sex, which is distinctly private in natures such as restrooms” can occur, and that being an anatomically correct female is a prerequisite before Sommerville can use the women’s restroom. The IHRC reasoned that the definition of sex must incorporate the IHRA’s definition, and therefore sex is related to a person’s sexual related identify, not a person’s designated sex at birth. The IHRC clarified that nothing in the IHRA makes surgical procedure a prerequisite for its protection of sexual related identity.
Cassandra Black, IASB Law Clerk
- Doe v. Regional Sch. Unit 26 , No. 12-582 ( Me. Jan. 30, 2014)
Plaintiff Doe, a transgender female, filed a claim against Regional School Unit 26 (District) for unlawful discrimination in education and unlawful discrimination in a place of public accommodation after she was prohibited from using the communal girls’ restroom at school. Doe had been allowed to use the girls’ restroom until two highly publicized incidents occurred in which a male student, acting on instruction of his guardian, followed her into the restroom, claiming that he was also entitled to use the girls’ bathroom. Following these incidents, the District no longer allowed Doe to use the girls’ bathroom, instead requiring her to use a separate, single-stall bathroom. The Does claimed that the District’s actions violated the Maine Human Rights Act (MHRA), which prohibits discrimination based on sexual orientation in a variety of contexts, including public accommodations. The Superior Court granted summary judgment to the District and the Does and the Maine Human Rights Commission appealed.
The Supreme Judicial Court held that the District’s decision to ban Doe from the girls’ bathroom constituted discrimination based on her sexual orientation because Doe was treated differently from other students solely because of her status as a transgender female, which is prohibited by the MHRA. The Court found that sexual orientation, as defined by the MHRA, includes “a person’s actual or perceived gender identify or expression.” The Court also reviewed a provision of the Sanitary Facilities subchapter of title 20-A (section 6501), which regulates educational settings and requires schools to provide clean toilets that shall be separated according to sex. In reviewing these two statutes together, the Court reasoned that they serve different purposes and “although school buildings must, pursuant to section 6501, contain separate bathrooms for each sex, section 6501 does not—and school officials cannot—dictate the use of the bathrooms in any way that discriminates against students in violation of the MHRA.” The District’s decision cannot be excused by the school’s compliance with section 6501.
The Court clarified that this decision does not suggest that schools are required to permit casual access to any bathroom of their choice, but that when it has been “clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identify, denying access to the appropriate bathroom constitutes sexual orientation discrimination in violation of the MHRA.”
Although not binding in Illinois, the MHRA is similar to the Illinois Human Rights Act, which also defines sexual orientation as including “gender related identify, whether or not traditionally associated with the person’s designated sex at birth.”
Cassandra Black, IASB Law Clerk
C. Official Records
- Birth Certificate – Name Change
An individual may change the name on his or her birth certificate by submitting a certified copy of a Court Order of Legal Name Change to the Illinois Department of Public Health (IDPH), Office of Vital Records. 410 ILCS 535/22(4); 77 Ill.Admin.Code §500.40(l).
- Birth Certificate – Gender Change
To change gender on a birth certificate, an individual with an existing Illinois birth certificate must submit an Application for Gender Reassignment to the IDPH “after undergoing an operation(s) having the effect of reflecting, enhancing, changing, reassigning, or otherwise affecting gender.” An individual must also complete an Affidavit for a New Birth Certificate After Completion of Gender Reassignment and have this form notarized. Finally, an individual must have his or her physician complete an affidavit verifying the completion of gender reassignment. Id. ; 77 Ill.Admin.Code §500.43.
- Illinois State Board of Education Demographic Data
Gender is a mandatory student demographic data element within the ISBE Student Information System, and two gender options are available: male or female. ISBE advises, however, that “for students identifying as transgender, districts may choose to enter the gender with which the student identifies rather than the student’s biological gender. If necessary, the district may also enter the first name the student uses if it differs from the birth certificate.” For managing demographic information in the ISBE Student Information System, click here.
D. Pending State Legislation
- HB 1785 (Harris, D-Chicago)
House Bill 1785 would amend the Vital Records Act (410 ILCS 525/) to allow an individual to change the gender on their birth certificate without having to first undergo an operation. Instead, an individual would need to support their gender change application with a declaration by a licensed health care professional or licensed mental health professional stating that the individual has undergone “treatment that is clinically appropriate for that individual for the purpose of gender transition, or that the individual has an intersex condition.”
- HB 664 (Morrison, R-Palatine)
For the second time in two years, Rep. Thomas Morrison has proposed a bill that would amend the School Code to require boards to designate each pupil restroom, changing room, or overnight facility which is accessible by multiple pupils simultaneously for the exclusive use of pupils of one sex only. HB 664 would further define “sex” as “the physical condition of being male or female, as determined by an individual’s chromosomes and identified at birth by that individual’s anatomy.”
E. Other Considerations
The participation of transgender high school students in competitive athletic activities and contact sports is governed by Illinois High School Association policy #34, Policy and School Recommendations for Transgender Participation.
A similar policy for elementary students in competitive athletics and activities has been adopted by the Illinois Elementary School Association.
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