Broadening Protections For Transgender Individuals Under Federal And State Law

Over the past decade, in addition to new applications of federal law, a number of states and cities — including Illinois and Chicago — have passed laws expanding anti-discrimination protections to transgender individuals, a term which refers to people whose sincere inner sense of gender identity differs from their assigned or presumed sex at birth. Employers, businesses and nonprofits should be aware of these recent updates in the law to ensure, most importantly, the lawful treatment of all people whom they employ and serve, but also to confirm their policies and procedures align with the changing law in this area.

Most recently, on November 2, 2015, the U.S. Department of Education Office of Civil Rights (“OCR”) issued a letter of findings against Township High School District 211 in Palatine, Illinois, finding that the District had discriminated against a transgender student. Specifically, by not allowing the student to use the girls’ locker room before and after P.E. Class, the school engaged in discrimination based on sex. The student was born male and from a young age identified as female.

OCR concluded that the District denied the student the full benefits of its education program, and where those benefits were provided in part, the District’s different treatment of the student violated Title IX of the Education Amendments of 1972 (“Title IX”). Title IX may sound familiar; it is the same anti-discrimination law known for its application in ensuring, for example, equal access to sports programs at the high school and college level. OCR’s action against the District constituted the first time OCR had found a district in violation of federal civil rights law over transgender issues. To remedy the District’s violations, OCR entered into an agreement with the District, which precluded any penalty to the District. The agreement mandates that, among other things, the District provide private changing stations within the girls’ locker room to accommodate both the student and any other students who wish to change privately.

Such action is becoming more common as continuously changing laws recognize and broaden the rights of transgender individuals. In addition to the patchwork of federal law that both public and private entities increasingly employ to enforce such rights, among them Title IX (education) and Title VII of the Civil Rights Act of 1964 (employment discrimination), a number of states have passed their own laws on the issue. Illinois, in particular, placed into law the following protections:

2006: Adding to the prohibited forms of discrimination under the Illinois Human Rights Act discrimination based upon one’s gender-related identity. 775 ILCS 5/1-103. The Illinois Human Rights Act applies in employment, real estate, financial credit, education and public accommodations contexts.

2014: Mandate added to the School Code that schools create anti-bullying policies protecting, among other groups, transgender students. 105 ILCS 5/27-23.7.

In addition to Illinois law, Chicago also prohibits discrimination based on an individual’s gender identity. Such discrimination may include denying transgender individuals access to restroom facilities or a refusal to hire or promote an individual based on their gender identity. Since this is not yet a settled area of law, organizations would be best served by keeping apprised of developments as they occur and, in the meantime, using the current application of Title VII and Title IX to gender discrimination as a model in their interactions with transgender individuals.

Undoubtedly, the content and application of this fast-developing area of law will continue to change over the coming years. This article was written by the Firm’s Josh Cauhorn. For more information, you may contact Mr. Cauhorn at 312/840-7055 or jcauhorn@burkelaw.com. 

This article addresses topics connected to emerging legal principles that may affect the rights of religious institutions. We invite you to contact the Firm’s labor and employment counsel, Rachel Yarch, at 312/840-7029 or ryarch@burkelaw.com and Alex Marks at 312/840-7022 or amarks@burkelaw.com.