State Law Prohibits Discrimination against Transgender, Nonbinary, and Gender Nonconforming Students

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)). 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, 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 IHRA. Such complainants may also allege disability discrimination in violation of IHRA based upon the student’s diagnosis of gender dysphoria. As stated in IDHR non-regulatory guidance, “Schools in Illinois may not discriminate against a student because of their gender-related identity, including treating them differently because their gender-related identity does not align with their designated sex at birth.” See page 1 of IDHR’s Relating to Protection of Transgender, Nonbinary, and Gender Nonconforming Students Under the Illinois Human Rights Act (December 2021). Unlike complaints filed with the U.S. Department of Education (for example, through the Office for Civil Rights), successful IDHR complainants can seek attorneys’ fees and costs in relief. 775 ILCS 5/8A-104(G).

The document below includes a summary of legal issues, resources, and recent school-related cases regarding transgender, nonbinary, and/or gender nonconforming students, grouped into the subtopics of Student Accommodations and Athletics, Student Records, Staff Rights, Parent Rights, and other.

Transgender, Nonbinary, and Gender Nonconforming Students: Legal Issues