By: Brittany Flaherty Theis
Whitt Law has been closely monitoring the evolution of statutory law and case law regarding the accommodation of transgender students in public schools. One topic that is regularly discussed by administrators is the question of how to handle requests for record changes to a student’s records. A common concern of administrators and parents alike was the fact that the sex designation on an individual’s birth certificate could not be changed unless a transgender individual underwent gender reassignment surgery, which was rarely (if ever) applicable to young students.
Effective this year, the Illinois General Assembly amended the Illinois Vital Records Act (the “Act”) in a way that has the potential to impact school districts and their approach to maintaining and modifying student records following a student’s gender transition. Public Act 100-0360, which went into effect on January 1, 2018, allows an individual to receive a new birth certificate upon submission of a declaration by a licensed health care professional or licensed mental health professional. The declaration must state that the sex designation on such person’s birth record should be changed because 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. The declaration must acknowledge that it is being made under penalty of perjury. The Act also provides that the new birth certificate must reflect the individual’s legal name change, if any, so long as appropriate documentation of the name change was also submitted. Prior to the amendment, the Act required an affidavit of a physician stating that the physician performed gender reassignment surgery.
The Illinois Department of Public Health (the “Department”) has established new procedures for Gender Reassignment changes to an individual’s birth certificate to comply with those amendments to the Act. To request to have the gender changed on his or her birth certificate, an individual born in Illinois with an existing birth certificate can submit an “Affidavit and Certificate of Correction Request form” along with a “Declaration of Gender Transition/Intersex Condition form.” If the applicant is not of legal age, the parent or guardian may complete the form.
Applicants also have the option of changing the name on their birth certificates. To make such request, the applicant must submit a certified copy of the Court Order of Legal Name Change along with the documents listed above.
If all of the Department’s requirements are met, the Department will create a new birth certificate reflecting the new sex designation (and name change, if applicable). The original birth certificate and all documents submitted by the applicant will be placed in a sealed and impounded file that cannot be opened, except upon order of the circuit clerk, request of the applicant, or as provided by regulation.
Whitt Law anticipates that the changes to the Act have the potential to increase the frequency at which school districts receive requests for changes to a student’s school records, along with new birth certificates to support such requests. Most school districts have policies and procedures in place to address requests to modify or supplement students’ temporary and permanent records and will be well-equipped to address such requests. That said, it is important to ensure such policies and procedures comply with current law and are not discriminatory. Administrators may want to consult with an attorney before addressing such requests, policies, or procedures. This is particularly true given the likelihood that any such requests will be accompanied by additional discussions pertinent to a transgender student’s transition. The attorneys at Whitt Law are prepared to discuss these and other implications regarding the accommodation of transgender students in public schools. Please contact Whitt Law Attorney Brittany Flaherty Theis or Senior Attorney Brian R. Bare to discuss the Illinois Vital Records Act, modifying or supplementing student records, or accommodations for transgender students.
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