What Parents Need to Know About the Illinois State Board of Education’s Guidance on “Supporting Transgender, Non-Binary and Gender Non-conforming Students”

Here’s what parents need to know about the Illinois State Board of Educations guidance on “Supporting Transgender, Non-Binary and Gender Non-Conforming Students”. The document is seventeen pages long so, to avoid overwhelming readers, I’ve only extracted and included sections of the document I feel are most important. I’ve included a link to the PDF at the end of this article for those that would like to view the entire document. Topics in this article include: 

• Student confidentiality
• Parental notification/parental rights
• Names, pronouns and student records
• School facilities
• Sports, clubs and events
• Overnight field trips
• Curriculum and teaching

On 6/30/19- Pritzker issued Executive Order 2019-11, which is called Strengthening Our Commitment to Affirming and Inclusive Schools. This Executive Order established the Affirming and Inclusive Schools Task Force (“Task Force”) in the Office of the Governor to identify strategies and best practices for ensuring welcoming, safe, supportive, and inclusive school environments for transgender, nonbinary, and gender nonconforming students and deliver a report to the Office of the Governor. 

1/102020- A report was delivered to Pritzker by the Task ForceTask Force. This report detailed the legal protections for Illinois students, provided recommendations for procedures, as well as best practices for K-12 schools to support transgender, nonbinary and gender nonconforming students. 

Confidentiality (Page 8)

1. “Information gathered about a student’s transgender, nonbinary, or gender nonconforming identity should be kept secure and confidential, and not be released or disclosed outside of district staff without the student’s explicit consent. It is essential to keep in mind that disclosure or misuse of a student’s confidential information may establish a hostile environment, potentially subjecting them to bullying and harassment by peers, discrimination by district staff, and/or family rejection.” 

2. “If a student is uncertain about their desired level of privacy, districts should support the student in making an informed choice. Many students prefer privacy and do not want to be defined by their gender identity.”

3. “District employees should be aware that many transgender, nonbinary, and gender nonconforming students experience family rejection. School officials should work with students, and whoever else is appropriate, to develop a plan regarding the confidentiality of the student’s identity.” (Child rights come before parental rights)

4. “While district staff should never out a child to their family, students, teachers, or other staff, it is also true that a school cannot control how information will travel once it is shared by the student.”

Names, Pronouns and School Records (Page 9)

1. “Students have the right to be addressed at school by their affirmed name and pronouns and to update their school records to reflect their identity. Schools may not require a legal name change or change of a gender marker on a birth certificate before the school addresses a student by their affirmed name and pronouns or before updating most school records to properly reflect the student’s identity.”

2. “Records should be adjusted to reflect a student’s affirmed name and pronouns. When updating a student’s school records, district staff should be cognizant of the many school information systems (e.g., state/local testing platforms, electronic databases, school website, class rosters, attendance systems, transcripts, school reporting programs, substitute teacher rosters, school IDs, yearbooks, honor roll lists, school issued email addresses and technology logins, and club rosters) present in the school system and work diligently to ensure accuracy of information across information systems. Schools should not place cumbersome and/or undue barriers that discourage, prolong, or prohibit the process of ensuring a student’s school records accurately reflect a student’s affirmed name and gender identity. As parent(s)/guardian(s) may have a legal right to inspect their student’s school records, the Gender Support Coordinator should ensure that changes to a student’s school records are a part of the support process for students.”

3. “Provide all students with opportunities to indicate how they wish to be addressed. Schools should survey all students on an annual basis to determine how they wish to identify themselves during school-related functions and how they wish to be addressed in communications with their parent(s)/guardian(s), including on all documents sent to their parent(s)/guardian(s). In addition, students should be allowed to update this information upon request.”

4. “Remove gender marker from school records where possible. Districts should only include a student’s gender marker on school records where required by law. If, by law, school administrators are required to record a student’s name or gender as it appears on the student’s birth certificate, district staff shall record this information in a separate, confidential file.”

5. “Contract with Student Information System companies that have inclusive options for affirmed name and gender. Prior to signing contracts, districts should inquire about how the Student Information System company captures, reports, and performs other functions that include or affect a student’s affirmed name and gender identity. Districts should also request changes to their current systems to meet student needs.”

School Facilities (Page 10 and 11, Section F)

1. “The IHRA expressly guarantees “the full and equal enjoyment of . . . facilities” which means that transgender, nonbinary, and gender nonconforming students have the right to use a school’s physical facilities consistent with their gender identity. 775 ILCS 5/1-102(A); 1-103(O1). Under state law, a school must provide students “full and equal” use of all school facilities; it is not enough to provide students mere “access”. Federal law likewise protects a student’s right to use school facilities that correspond with the student’s gender identity. School policies that deny students use of restrooms, locker rooms, changing rooms, or other facilities that correspond with their gender identity violate Title IX and the Equal Protection Clause. See, e.g., J.A.W. v. Evansville Vanderburgh Sch. Corp., 396 F. Supp. 3d 833 (S.D. Ind. 2019) (denial of restroom use violates Title IX and the Constitution); Whitaker, at 1049 (school required to allow transgender boy to use male restrooms); Doe by & through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 526-32 (3d Cir. 2018) (affirming district court’s denial of plaintiffs’ motion for preliminary injunction, stating “There is simply nothing inappropriate about transgender students using the restrooms or locker rooms that correspond to their gender identity.”). These protections apply to students of all genders, including nonbinary and gender nonconforming students.”

2. “Under state and federal law, the discomfort or privacy concerns of students, teachers, or parents are not valid reasons to deny or limit the equal use of facilities by transgender, nonbinary, and gender nonconforming students.”

3. “Facilities include, but are not limited to, locker rooms, restrooms, showering facilities, costume rooms/backstage areas, nurse’s offices, and athletic training rooms. Facilities also include any communal area where a student may be required to undress, such as a gym used for a scoliosis screening or a weigh-in for a wrestling match.”

Sports, Clubs and Events (Page 13, Section H)

1. “If a school allows any student clubs, students have the right to form LGBTQ+-affirming clubs, such as GSAs, on the same terms as any other student group. Colin ex rel. Colin v. Orange Unified Sch. Dist., 83 F. Supp. 2d 1135 (C.D. Cal. 2000) (holding that students had the rights to form GSAs, meet at school, use the school’s public address system, and be featured in the school yearbook like other student clubs). Under the federal Equal Access Act, secondary schools that allow meetings of other non-curricular student clubs (clubs that do not directly relate to school classes) are also prohibited from discriminating against any student group based on its viewpoint, including GSAs. 20 U.S.C. § 4071. All student clubs must be treated the same, regardless of purpose. Thus, for example, GSAs may not be singled out for parental permission requirements before students can join the club.”

Overnight School Trips (Page 14, Section I)

1. “The same state and federal laws that require schools to respect a student’s gender identity with respect to using facilities and participating in activities also apply to transgender, nonbinary, and gender nonconforming students’ room arrangements and facility use during overnight trips. To deny a student the accommodations afforded to other students – consistent with their gender identity – would be discrimination prohibited by Title IX and the IHRA.”

2. “As with school facilities, any student seeking more privacy may be provided that privacy. But any claimed privacy concern of another student is not a reason to limit use by a transgender, nonbinary, or gender nonconforming student. Similarly, confidentiality laws and requirements continue to apply to students in the context of overnight trips. A trip is not a basis to disclose or require disclosure of a student’s transgender, nonbinary, or gender nonconforming identity.”

3. “Do not send notifications or permission slips. Do not send notifications or permission slips to parents and/or students regarding a student’s transgender, nonbinary, or gender nonconforming identity.”

Curriculum and Teaching (Page 16, Section J)

1. “Schools should also have procedures in place to address challenges to books or curricula.”

2. “Educators should take time to create class agreements/rules and discuss what each guideline means, identifying what will happen if/when a boundary is transgressed, and asking all students to come to a consensus and agree to the guidelines. This sets the tone of a culture of mutual respect and collective responsibility for upholding the norms.”

3. “The district’s health and sex education curriculum shall be inclusive of diverse gender identities, gender expressions, and sexual orientations. Healthy romantic relationships should be taught no matter the gender identity or sexual orientation of students.”

Parent/Guardian Involvement (Page 17, Section L)

1. “Schools are responsible for the care and safety of students while they are at school, similar to the obligations of parent(s)/guardian(s). 105 ILCS 5/24-24. In many instances, schools are not required to seek parental consent to support transgender, nonbinary, and gender nonconforming students, especially when the safety of the student is a concern. For example, just as a school would not typically seek parent/guardian permission to use a child’s nickname at school, affirmative permission from a parent/guardian is not necessary to use a student’s affirmed name.”

Download the full document PDF. If the PDF download is not available on ISBE’s website, please contact me and I will send you a copy.