On February 5, 2025, President Trump issued an Executive Order (Keeping Men Out of Women’s Sports) specifying that only biological women and girls may participate in women’s and girls’ sports or access the women’s and girls’ locker facilities. The Executive Order threatens suspension of federal funding for school districts failing to comply with it. The Executive Order, however, is limited to access to women’s and girls’ sports and locker facilities.
We at HLERK are continuing to receive inquiries regarding the status of transgender student rights in public schools following this Executive Order and the January 9, 2025, vacatur of the 2024 Title IX Regulations and reinstatement of the 2020 Title IX Regulations. Moreover, the national news is reporting that the U.S. Department of Education Office for Civil Rights (OCR) is opening multiple investigations into alleged discrimination against female students in both post-secondary institutions and K-12 schools, including the recent OCR-initiated investigation of the Denver Public Schools over gender neutral bathrooms.
The short answer is that transgender students in Illinois retain legal protections under three different sources:
1. The Illinois Human Rights Act prohibits discrimination on the basis of gender identity.
2. Seventh Circuit Court of Appeals decisions in A.C. v. Metropolitan School District and Whitaker v. Kenosha Unified School District protecting the rights of transgender students to access facilities (bathrooms and locker rooms) that align with the students’ gender identity under both Title IX and the Equal Protection Clause of the U. S. Constitution.
3. The Illinois State Board of Education’s Non-binding Regulatory Guidance, Supporting Transgender, Nonbinary and Gender Nonconforming Students.
We emphasize that school districts must consider each individual situation based on its specific facts and in light of the complex and rapidly changing law in this area. It is important, however, for Illinois school districts to keep in mind that legal protections remain in place for transgender students notwithstanding the above developments at the federal level.
Please contact any of our attorneys in the Student/Special Education practice group with your inquiries.
We look forward to joining with your special education administrators at the Illinois Alliance of Administrators of Special Education’s Winter Conference in Champaign at the end of the month where Michelle Todd and Jessica Nguyen will be presenting.
