What laws say transgender students have a right to use bathroom matching gender identity?

Waterloo School District 5 has been facing criticism from some students and parents for a policy that allows transgender students to use the bathroom that matches their gender identity.

More than 100 Waterloo High School students protested the policy on Friday. About 75 adults and students also gathered at the high school Monday night for prayer and a rally before some of them spoke against the policy at the school board meeting.

In response to the complaints and demonstrations, district officials have said they are simply following the law with their policy.

Here’s a closer look at the laws and guidance that Waterloo and other Illinois school districts look to as they write and enforce policies about bathroom access for transgender students:

Violating Illinois law could subject schools to monetary liability

The state law that grants transgender students bathroom access rights is the Illinois Human Rights Act, according to state agencies.

The Illinois Department of Human Rights and the Illinois State Board of Education have each released “non-regulatory guidance” for schools in which they offered their interpretation of how the law applies to transgender students. Their guidance came out in 2021 and 2020, respectively.

The law prohibits discrimination based on gender identity, which means schools have to let students use the bathroom of their choice, the agencies say.

The Illinois Department of Human Rights’ guidance also cited case law: examples of school and other public bathroom policies that courts found were discriminatory.

The Second District Appellate Court of Illinois ruled in 2021 that Hobby Lobby violated the Illinois Human Rights Act and discriminated against a transgender woman when it did not allow her to use the women’s restroom. The court ordered Hobby Lobby to pay a total of $317,298 in the litigation, including $220,000 in damages to the transgender woman.

Hobby Lobby had appealed to the Second District Appellate Court after the Illinois Human Rights Commission initially ruled in the woman’s favor. The commission adjudicates allegations of discrimination under the Illinois Human Rights Act.

The Illinois Human Rights Commission also ruled in 2019 that Komarek School District 94 violated the Illinois Human Rights Act when it did not allow a transgender boy to use the boys’ communal restroom. It ordered the school district to pay $158,610, including $55,000 in damages to the transgender boy.

In the Waterloo school district, some high school students have said they feel uncomfortable sharing a bathroom with transgender students.

The state human rights and education agencies stated in their guidance that the discomfort or privacy concerns of other students are not valid reasons to deny or limit a transgender student’s bathroom access, citing a past decision from the Illinois Human Rights Commission.

“There is no right that insulates a student from coming in contact with others who are different than them or a Bathroom Privacy Act, unless the behavior violates a school policy or is criminal,” the commission stated.

Schools can instead offer the student seeking privacy a more private option, according to the state guidance. Administration at Waterloo High School told the uncomfortable students they could use the nurse’s office restroom.

Federal laws protect transgender students from discrimination

Guidance from the Illinois Department of Human Rights and Illinois State Board of Education state that transgender students are also protected from discrimination under federal laws, including the Equal Protection Clause of the U.S. Constitution and Title IX of the Education Amendments of 1972 of the Civil Rights Act.

The U.S. Court of Appeals for the Seventh Circuit, the federal appellate court with jurisdiction over Illinois, agreed with this interpretation of the laws in a landmark ruling in 2017.

In that case, the court ruled the Kenosha Unified School District in Wisconsin violated a transgender boy’s rights when it refused to let him use the boy’s bathroom. Ultimately, the school district agreed to pay $800,000 to settle the student’s lawsuit in 2018.

President Joe Biden also emphasized the protections for transgender students under these laws in a 2021 executive order.