By: Brittany Flaherty Theis

The Illinois Human Rights Act (the “Act”), 775 ILCS 5/1-101 et seq., is intended to secure for all individuals: freedom from unlawful discrimination; freedom from sexual harassment in employment and education; and public health, welfare, and safety; as well as to implement constitutional guarantees, to establish equal opportunity and affirmative action policies, and to protect individuals from unfounded charges under the Act.

Until recently, there has not been formal guidance from the Illinois Human Rights Commission (the “Commission”) regarding the applicability and implementation of the rights provided under the Act to students in public schools. Instead, counsel to school districts were required to rely upon the plain letter of the Act and decisions from the Commission involving adults, along with federal statutes and cases interpreting the rights under federal law (such as the Seventh Circuit’s ruling in the Whitaker case discussed here).

In recent months, the Commission has issued decisions that confirm the Act provides protections to transgender students.* Two recent cases before the Commission involved complaints filed on behalf of transgender male students attending public schools.

In one of the cases, a transgender male student in high school alleged the school denied him full and equal access to the District’s facilities based upon his sexual orientation when he requested, but was originally denied, the ability to change his clothes in the boys’ locker room facilities without use of a privacy curtain. At this school, students that were born biologically male were not required to use privacy curtains in the locker room facilities. The other case involved a school district’s denial of an elementary-aged, transgender male student’s request to use the communal boys’ restrooms any time he was not in his classroom that had a unisex restroom used individually by all students in the classroom. Instead, the transgender male student was required to use the male staff restroom when outside of his classroom.

In both cases, the petitioners alleged discrimination based upon sexual orientation (gender-related identity, transgender male) and disability discrimination (gender dysphoria). The Commission’s decisions addressed each aspect of the complaints, which provides a helpful framework for school districts addressing similar requests.

The attorneys at Whitt Law LLC have closely reviewed the Commission’s materials and have followed the evolution of regulatory, statutory, and case law regarding transgender students. Below, you can find a list of Whitt Law News & Knowledge blog posts addressing prior updates. Please contact Whitt Law Senior Attorney Brittany Flaherty Theis if you have any questions regarding these materials from the Illinois Human Rights Commission or the content of the blog posts below.

Past Whitt Law News & Knowledge Blog posts regarding the rights of transgender students include:

  • Court Grants Preliminary Injunction to Halt Impact of Dear Colleague Letter Regarding Transgender Student Accommodations
  • Recent Developments in Transgender Student Cases
  • Seventh Circuit Affirms Preliminary Injunction In Favor of Transgender Student
  • Federal Government Rescinds Dear Colleague Letter Regarding Transgender Student Accommodations
  • Sex Designation on Birth Certificates: Illinois Department of Public Health Addresses Amendments to the Illinois Vital Records Act

*Please note that one of the two matters before the Commission is not yet final. The Commission’s Order in one case remanded the case for further proceedings and a finding of substantial evidence. Regardless of the lack of finality, the insight into the Commission’s analysis and findings yields significant guidance.


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