Back to Back Illinois Decisions and a Statutory Amendment Impacting Transgender Student Issues


Back to Back Illinois Decisions and a Statutory Amendment Impacting Transgender Student Issues

Feb 6, 2018

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I.    Request for Injunction by Students and Parents for Privacy Denied, December 28, 2017

The Students and Parents for Privacy brought a lawsuit challenging Township High School District 211 (herein “District 211”) on its policy of allowing transgender students to use the restrooms consistent with their gender identity, claiming violations of: Title IX, the Equal Protection Clause of the Fourteenth Amendment, the Administrative Procedure Act, their parental rights to direct the upbringing and education of their children, the Illinois Federal Religious Restoration Act, and the Free Exercise Clause of the First Amendment.

In August 2013, District 211 began allowing transgender students to use restrooms consistent with their gender identity, but not locker rooms. A transgender student who wished to use the locker room brought a complaint with the Office of Civil Rights (“OCR”).  On December 2, 2015, OCR and District 211 entered into an “Agreement to Resolve.” Based on the student’s representation that she would change in private changing stations in the girls’ locker rooms, the District agreed to provide access.

The Students and Parents for Privacy claimed their students risked running late to class because they needed to use alternate restrooms to avoid sharing with a transgender student. They further claimed their students were harmed by the “embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation, and loss of dignity” allegedly felt from as a result of having to share their facilities with transgender students. Plaintiffs, therefore, requested an injunction that would require that the school district deny transgender students access to the locker room and restroom facilities that correspond with their identified gender.  The Magistrate Judge denied Plaintiffs request for injunctive relief.

The United States District Court for the Northern District of Illinois upheld the denial and found that federal protections against sex discrimination are substantially broader than those based only on genitalia or chromosomes.  It also found that high school students do not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth differs from theirs. The Court noted that District 211 balanced the interests of all its students when it decided to permit transgender students to use restrooms consistent with their gender identities and to allow a transgender female to use the girls’ locker rooms at her high school with a privacy changing station. District 211 also made clear that any cisgender high school student who does not want to use a restroom or a locker room with a transgender student is not required to do so.  Therefore, District 211 is not required to segregate restrooms and locker rooms by biological sex during the pendency of the litigation. Students and Parents for Privacy v. U.S. Dep’t. of Educ., No. 16-4945 (N.D. Ill. December 29, 2017).

II.    Request for Injunction by Transgender Student Denied, January 25, 2018

In November 2017, a transgender student and senior at Palatine High School brought suit against District 211, in the Circuit Court of Cook County.  The student requested an injunction to require the school district to allow full access to the girls’ locker room without restrictions or privacy stalls.  According to the transgender student, the school district offered an incomplete and discriminatory solution to locker room access in requiring that transgender students dress in separate areas or behind privacy curtains located inside the locker room.  On January 25, 2018, Cook County Judge Thomas Allen denied the request by the transgender student to issue an injunction during the pendency of the proceedings. 

III.    Vital Records Act Amendment

As of January 1, 2018, Public Act 100-360 amended the Vital Records Act (410 ILCS 525/), which now allows an individual to change the gender on his/her birth certificate 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.  This change in the law means that transgender individuals no longer have to undergo a sex-reassignment operation in order to change the gender on their birth certificates. Instead, an individual need only provide the requisite health care professional declaration as part of the gender change application.