Update–ISBE Postpones Collection of Student Gender Identity and Sexual Orientation Data

Update March 2022: ISBE Postpones Collection of Student Gender Identity and Sexual Orientation Data

On March 4, 2022, ISBE sent a memo to all ISBE Student Information System (SIS) users notifying school districts that ISBE is postponing the collection of student gender identity and sexual orientation data until the 2023-2024 school year. ISBE explained that postponing the data collection is due to feedback from various stakeholder groups who raised concerns about access to the information reported pursuant to the Illinois School Student Records Act (ISSRA) and the Family Educational Rights and Privacy Act (FERPA). ISBE is forming a working group to develop a method for collecting the data, as required by Public Act 102-0543, with all students’ safety and privacy in mind. ISBE said it will provide updated information for school districts before registration begins for the 2023-2024 school year.

Source: ISBE Memo (March 4, 2022)

February 1, 2022

Public Act 102-0543 (eff. 8/20/21) expands the demographic data collection and reporting requirements for the Illinois State Board of Education (“ISBE”) to include age, sex, disability status, sexual orientation, gender identity, and primary or preferred language. ISBE currently collects demographic data on students from school districts through its Student Information System (“SIS”). However, the expanded demographic data collection and reporting requirement, as a result of P.A. 102-0543, requires ISBE to collect data on student sexual orientation and gender identity starting with the 2022-2023 school year. Per the legislation, expanding the demographic data collection will assist researchers, lawmakers, and community stakeholders address education, health, and other social disparities facing people in Illinois, including the LGBTQ community.

On December 21, 2021, ISBE released nonregulatory guidance on reporting student gender identity and sexual orientation pursuant to P. A. 102-0543. This guidance was sent to public school districts in early January 2022.

In order to collect the additional demographic data on sexual orientation and gender identity, the ISBE nonregulatory guidance directs all public school districts to provide every student or their parents/guardians with the opportunity to voluntarily report the student’s gender identity or sexual orientation on an annual basis. ISBE will not require a certain format or form for districts to use to collect this information; however, the district’s data collection method must protect student confidentiality. Districts may develop their own procedures and determine the method for collection; for example, school districts may include these questions as part of district’s annual registration/enrollment forms.

ISBE recommends districts proactively notify students or parents/guardians that providing student gender identity and sexual orientation information is voluntary and optional; the information reported may be changed in the future; responses are private and secure; only designated school officials will have access to the information; the information will be used only as part of deidentified, state-level aggregate data reports; and the information will not be used for any discriminatory purpose. The ISBE nonregulatory guidance includes information for districts on how to submit the new data in SIS, including changes to SIS terminology and codes.

Finally, in ISBE’s initial guidance document, ISBE advised school districts destroy records containing gender identity and sexual orientation information following districts’ submission of this data to SIS. Due to both State and federal law regarding the maintenance of student record information, our firm contacted ISBE to discuss its recommendation school districts destroy these records. In response, ISBE updated its nonregulatory guidance to remove this recommendation. The updated version of the nonregulatory guidance is available on ISBE’s website here. Districts must ensure they are complying with all applicable records laws and should consult legal counsel regarding collecting and maintaining the gender identity and sexual orientation information reported to ISBE through SIS.

We will continue to monitor the implementation of P.A. 102-0543 and any further revisions to the ISBE nonregulatory guidance. For questions about P.A. 102-0543, ISBE’s nonregulatory guidance, and the collection of student gender identity and sexual orientation data, please contact any attorney in our Students/Special Education practice group.