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Close button Close buttonAll students in Illinois have the right to attend school in an environment free from discrimination and harassment on the basis of their gender identity. As outlined in this guidance, issued December 2021, 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.
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All students in Illinois have the right to attend school in an environment free from discrimination and harassment on the basis of their gender identity. 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.
The Illinois Department of Human Rights (“Department”) enforces the Illinois Human Rights Act (“Act”) to protect students of all gender-related identities from discrimination and harassment and to ensure their full and equal enjoyment of and access to all aspects of a school’s programs and activities. Because victims of discrimination and harassment often indicate that fear of reprisal inhibits them from exercising their rights, the Act also explicitly prohibits retaliation against a student.
This document provides non-regulatory guidance regarding compliance with the Act in the context of a school setting, with specific focus on how the Act protects the rights of transgender, nonbinary, and gender nonconforming individuals to equal enjoyment of and access to educational opportunities, programs and activities under Article 5 of the Act. The guidance is intended for school districts, students and their families and caregivers, to better understand their rights and responsibilities under the Act.
Schools in Illinois can implement the protections of the Act by developing policies, procedures, practices and training that ensure a nondiscriminatory and safe school environment for transgender, nonbinary, and gender nonconforming students. Key areas for consideration may include, but are not limited to, full and equal access to gender-based restrooms, locker rooms and changing rooms; participation in gender-based sports and activities; dress code policies; and avoiding conduct that may constitute harassment. These subjects are discussed below in the context of the protections afforded by the Act.
On December 6, 1979, the Act was signed into law, providing for broad civil rights coverage for the people of Illinois. In 2006, the Act was expanded to include “sexual orientation” as a distinct protected class and “gender-related identity” within the definition of “sexual orientation.” Thus, Illinois became one of the first states in the nation to explicitly provide for the protection of the rights of transgender, nonbinary, and gender nonconforming individuals to be free from discrimination. At the time of the publication of this guidance, an increasing number of states have enacted laws that explicitly prohibit discrimination of students on the basis of both sexual orientation and gender-related identity.
The following sections provide an overview of how the Act protects students of all gender-related identities in the educational environment, and a list of definitions commonly used in the Act.
In Illinois, transgender, nonbinary, and gender nonconforming students are protected from discrimination on the basis of their sex, sexual orientation, and gender-related identity as it relates to their participation in educational opportunities, programs, and activities. Under the Act, the definition of “sexual orientation” specifically includes protection based on gender-related identity. A student’s gender-related identity may or may not be the same as their designated sex at birth, and could be a range of identities, including male, female, a blend of both, neither, or gender fluid.
In the education context, transgender, nonbinary, and gender nonconforming students have the right to be treated in a manner equal to and consistent with other students whose gender identity conforms to their sex assigned at birth. That right extends to participation in school programs and activities. Schools cannot impose on transgender, nonbinary, and gender nonconforming students special conditions or restrictions on the use of facilities or participation in programs that are not imposed on students whose gender identity conforms to their sex assigned at birth.
Students also have the right to attend school and participate in activities free from harassment on the basis of their sex, sexual orientation or gender-related identity. If a school becomes aware that a student is being harassed and fails to take corrective action to stop the harassment, it may be a violation of the Act.
Although the definition of “sex” is separate from the definition of “sexual orientation” and “gender-related identity” in the Act, these terms are interrelated. All students, including transgender, nonbinary, and gender nonconforming students, are protected by the Act’s prohibition on discrimination based on “sex” – which is defined as “the status of being male or female.” The Act’s definition of “sex” is “broad” and “does not draw distinctions based on genitalia, the sex marker used on a birth certificate, or genetic information.” The “status” of being male or female is not an “immutable condition” that is eternally fixed. A student’s gender-related identity is one of the factors that may be used to determine a student’s sex.
Since 1979, the Act has prohibited discrimination in “places of public accommodation” such as stores, theaters, banks, health clubs and amusement parks. In 2007, the Act’s list of places of public accommodation was expanded to include “non-sectarian” (non-religious) schools. Thus, places of public accommodation include educational institutions – specifically “a non-sectarian nursery, day care center, elementary, secondary, undergraduate or postgraduate school, or other place of education.”
The protection of students from discrimination is rooted in Article 5 of the Act which prohibits the following types of conduct in the educational context: “(1) the failure to enroll an individual; (2) the denial of access to facilities, goods, or services; or (3) severe or pervasive harassment of an individual when the covered entity fails to take corrective action to stop the severe or pervasive harassment.”
In addition to the non-discrimination provisions of the Human Rights Act, federal law also requires Illinois school districts to treat transgender, nonbinary, and gender nonconforming students in a manner consistent with their gender-related identity. Under federal law, discrimination on the basis of gender identity is a form of sex discrimination.
Failure to Enroll - The Act prohibits a school from failing to enroll a student on the basis of their sex, sexual orientation, or gender-related identity.
Denying Access to Facilities, Goods, or Services - The Act makes it a civil rights violation for schools to deny or refuse to a student the full and equal enjoyment of the facilities, goods, and services of the school on the basis of their sex, sexual orientation, or gender-related identity.
Harassment - The Act prohibits “severe or pervasive harassment” of students, which occurs when (1) a person is subjected to unwelcome conduct based on their actual or perceived sex, sexual orientation, or gender-related identity regardless of whether the conduct is verbal, physical, or both; and (2) the conduct “has the purpose or effect of substantially interfering with the individual’s…performance or creating an intimidating, hostile, or offensive…environment;” and (3) a school “fails to take corrective action to stop the severe or pervasive harassment.” It is important to note that sexual harassment of students in schools is also prohibited by a different article of the Act.
Retaliation - The Act provides that “It is a civil rights violation for a person, or for two or more persons to conspire to […] retaliate against a person because [they have] opposed that which [they]reasonably and in good faith believe to be unlawful discrimination, […] sexual harassment in elementary, secondary, and higher education […] because they have made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this Act, or because they have requested, attempted to request, used, or attempted to use a reasonable accommodation as allowed by this Act.”
Sex - Defined in the Act as "the status of being male or female." A student's sex is not limited to their sex at birth or genitalia, because the legal definition of "status" is broad, and status may change as it is not externally fixed.
Sexual Orientation - Defined in the Act as "actual or perceived heterosexuality, homosexuality, bisexuality, or gender-related identity, whether or not traditionally associated with the person's designated sex at birth.
Disability - Defined in the Act as "a determinable physical or mental characteristic of a person. which may result from disease, injury, congenital condition of birth or functional disorder and which characteristic is unrelated to the person's ability to utilize and benefit from a place of public accommodation [and] also includes any mental, psychological, or developmental disability[.]"
Places of Public Accommodation - Defined in the Act to include a non-sectarian nursery school, daycare, elementary school, junior high, and high school.