Transgender Students: Legal Issues
Update: On March 9, 2017, the 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 accompanying guide, Transgender Students in Schools: Frequently Asked Questions and Answers for Public School Boards and Staff.
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, p. 5, National School Boards Association (March 9, 2017).
From a state law perspective, sex discrimination extends to claims of discrimination based on sexual orientation and gender identity. 775 ILCS 5/5-101(11); 23 Ill.Admin.Code §1.240. The Illinois Human Rights Act 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 Section 106.33, the Act permits schools to maintain single-sex facilities that are distinctly private in nature, e.g., restrooms and locker rooms. 775 ILCS 5/5-103. Even so, school districts have been recently subject to Illinois Department of Human Rights (IDHR) complaints alleging gender-related identity discrimination in violation of the Act. Such complainants have also alleged disability discrimination in violation of the Act based upon the student’s diagnosis of gender dysphoria. Unlike ED complaints, successful complainants in IDHR complaints are able to seek attorneys’ fees and costs in relief. 775 ILCS 5/8A-104(G).
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.
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