In a recent decision, the Illinois Human Rights Commission (IHRC) ruled that Illinois schools cannot limit transgender students’ unfettered access to the locker rooms that correspond to their gender identities. The decision was closely followed by a new Illinois law requiring all public bathrooms, including those in schools, to be labeled as gender-neutral by January 1, 2020. In contrast to this uptick in protection under state law, a recent report from the Center for American Progress signals that the U.S. Department of Education's Office for Civil Rights (OCR) has continued to roll back its enforcement of claims based on gender identity and sexual orientation. Schools in Illinois should expect to see a continued focus on state law for legal complaints by transgender students, but until a state court weighs in on the issue the status of the law continues to remain highly unsettled.
The IHRC decision involved a student complaint with the Illinois Department of Human Rights (IDHR). The student's school said he could only use the boys' locker room at school if he dressed behind a privacy curtain. The IDHR initially dismissed the charge as not violating the Illinois Human Rights Act (IHRA), as it had done in a previous case involving another Illinois school. The student appealed to the IHRC, which reversed the IDHR's decision. The IHRC concluded that "the District's sole motivation in mandating that the [student] use a privacy curtain to change clothes while using the boys' locker room was rooted in the [student's] gender-related identity, transgender male" and that such a "mandatory limitation requiring privacy curtain usage" amounted to a denial of full and equal use of the District's facility in violation of the Illinois Human Rights Act. The IHRC decision may be persuasive to Illinois state courts, although a state trial court decision from 2018 is still on the books and held that schools are likely not required to provide full and equal access to locker rooms under the plain language of the IHRA.
A recent Illinois law is also likely to impact supports for transgender individuals visiting public buildings, including schools. The Equitable Restrooms Act was amended to provide that every single-occupancy restroom in a place of public accommodation or public building shall be identified as all-gender and designated for use by no more than one person at a time or for family or assisted use. Each single-occupancy restroom also must be outfitted with exterior signage that marks the single-occupancy restroom as a restroom and does not indicate any specific gender. The law takes effect on January 1, 2020 and will be enforced in part through inspections by public health officers and inspectors during inspections. The law also provides that the Department of Public Health will issue rules implementing the new law.
These increases in rights for transgender students under state law are in contrast to a slow down in enforcement of such matters at the federal level. Data from the recent Center for American Progress report documents a sharp decline in action by the U.S. Department of Education's Office for Civil Rights (OCR) on cases alleging discrimination based on gender identity since 2016. The report compared the handling of cases based on gender identity and sexual orientation under the former and current presidential administrations. The data showed:
- OCR was approximately 54% more likely to investigate a sexual orientation or gender identity complaint under the Obama administration than it was under the Trump administration;
- Of such cases that OCR opened for investigation, the amount dismissed or closed with no finding of wrongdoing increased from 65.4 percent under the Obama administration to 91.5% under the Trump administration; and
- Whereas 22.4% of cases opened for investigation under the Obama White House ended with a resolution agreement requiring changes to school policies favorable to the complaining student, only 2.4 percent of investigated cases under the Trump White House led to such an agreement.
We will continue to monitor both state and federal developments and provide guidance on navigating this rapidly evolving issue.