Illinois Issues: The Battle Over Transgender Rights — In The Bathroom and Beyond

Jul 14, 2016

The state has some of the most aggressive protections for transgender people in the country, but the issue still generates controversy here.

Illinois, with its expansive decade-old anti-discrimination law, is one of the most progressive states in the country when it comes to transgender rights, but even in this state there has been a noisy response to rapidly evolving national and local policies on the issue.

Mara Keisling is executive director of the National Center for Transgender Equality.
Credit National Center for Transgender Equality

“I think transgender rights is a new idea for most people,” says Mara Keisling, the executive director of the Washington, D.C.-based National Center for Transgender Equality. “We’re definitely not done with the rights of other people, but, yes, transgender people weren’t that outspoken 30 years ago, and now I think we’re here. We’re bigger,  and we’re more vocal. We’re winning our civil rights, and people are noticing."

As with other civil rights issues in American history, the debate has come to focus on restrooms — or the use of them — by an embattled minority group. The potential for the racial integration of bathrooms was used to sow fear during the civil rights movement. Segregationists, a white grade school teacher among them, voiced concerns that white women and children would catch diseases from blacks by sharing a bathroom. Paranoia about gay people using public restrooms cropped up as an element in the AIDS crisis.  The specter of unisex bathrooms may have been in part what killed the 1970s and ’80s effort to adopt a national Equal Rights Amendment. 

“This bathroom scare tactic has been used by lots of demagogues for a lot of years,” Keisling says. She says that presidential candidate Donald Trump painting Mexican immigrants as rapists is an example of the same type of effort to “scare good people by saying something bad is going to happen to women and children, and it’s a hundreds of year-old tactic. It’s never true, and it only works for a little while.”   

Transgender activist and ESPN baseball commentator Christina Kahrl says of the bathroom debate "it's much ado about nothing. If people would think about it, we've been using the restrooms all along."
Credit Christina Kahrl

One catalyst for the heightened national emphasis on transgender rights is a debate in North Carolina over who should be allowed to use public accommodations.

The city of Charlotte in February passed an ordinance extending legal protections to gay and transgender people. The state responded a month later with a sweeping law that made it illegal for transgender people to use restrooms in public buildings, such as universities and courthouses, if the bathroom designation differs from the gender marker on their birth certificate. The law also made it illegal for cities to have ordinances in opposition to the state’s rules. In May, the U.S. Department of Justice sued to block the law.

Illinois appears to be at the opposite end of the spectrum from North Carolina. Keisling called Illinois one of the most progressive states in the nation on transgender rights. The state’s Human Rights Act prohibits discrimination specifically on the basis of sexual orientation and gender identity in employment, housing and public accommodations. Illinois is one of 20 states that have nondiscrimination laws covering sexual preference and gender identity, according to the Denver-based Movement Advancement Project, which tracks LGBT rights. The Chicago City Council voted in June to close a loophole in the city’s Human Rights Ordinance. The action prohibits such public places as hotels, restaurants or grocery stores from requiring identification to show whether a person is male or female to use a restroom

While Illinois may be ahead of the curve in how it treats its approximately 50,000 adult transgender residents, one large northwestern suburban school district drew national attention for the way it handled — or in the view of the U.S. Department Education mishandled — the case of a transgender student seeking to use the girls’ locker room. Fremd High School in Palatine-based District 211 acquiesced late last year to pressure to be more accommodating and agreed to let the student use the locker room with the installation of a privacy curtain. The move resulted in the Department of Education backing off of its demand that the district allow the girl to use the women’s locker room or lose $6 million in federal funding.

Fremd High School
Credit Township High School District 211

In another district in downstate Williamsville, 18-year-old Alex McCray of Sherman, with the help of the ACLU, convinced administrators to adopt a policy that allows transgender students to use the restrooms and locker rooms that match their gender identity.

“I want to be on the right side of a civil rights issue, and this is a civil rights issue,’’ District Superintendent David Root told NPR Illinois.

Alex McCray worked with his Williamsville school district to create a policy regarding transgender students.
Credit Alex McCray

But the issue was more complicated before McCray — now a graduate — got the assistance of the ACLU. After coming out to school officials, he was told he would be required to use a separate restroom. “I participated in PE, so that’s also where I was told to change. So it was right when I came out that everything sort of switched. I joined the men’s PE.” To change for gym class, he had to use that separate bathroom. “At the time, I was already uncomfortable with my own situation, so it made things easier for me. I say at the time because it progressively became an issue for me as I transitioned further and became comfortable with myself. That’s when I became more uncomfortable with having to be separated from everybody else.”

A complication in the situation at District 211 came in the form of a lawsuit filed in May by parents who argue that by compromising on how to treat the one transgender student, the district violated their children’s right to privacy. “When the school district was considering allowing a young man into the girl’s locker room last fall, after the Department of Education had stepped in with threats and intimidation, they heard from hundreds of parents like me who were against this policy,” parent Vicki Wilson, president of the plaintiff group Students and Parents for Privacy, told the Chicago Sun-Times when the suit was filed in May. “We expected the district to stand up to their bullying, because it’s a school’s duty to protect our children when they are threatened. The parents understood that what the government was doing was illegal and unconstitutional,” Wilson said. “We supported our school in standing up to them. But somehow, the school board decided that the privacy and dignity of our children had no value when weighed against dollars and cents.”

The lawsuit says one girl is so distressed about having to expose her body to the transgender student that she opts to wear her street clothing over her gym clothes. Others, they say, refuse to use the school’s bathrooms out of fear of sharing them with the transgender girl.

“The privacy issue is basically the right to bodily privacy — the right to not have someone see your partially or fully unclothed body,” says Jeremy Tedesco, an attorney with the Scottsdale, Arizona–based Alliance Defending Freedom (ADF), a conservative nonprofit that is representing the parents. “The case law has said people, especially students, have that right, and the government can’t create a scenario where there’s a risk that students will have their partially or fully unclothed body viewed by the opposite sex, and of course that’s the exact scenario the school district has allowed to happen by creating a policy of putting a biologically male student in a locker room where girls are changing every day for gym. He’s in the PE locker room while girls are changing for gym class.”

Jocelyn Floyd, a lawyer with the Chicago-based Thomas More Society, also represents the parents. She says teenage girls in particular need to feel safe in private spaces. “We’re also talking about high schoolers here, so they’re going through puberty. Their bodies are changing, and girls are menstruating and dealing with maxi pads and tampons and all sorts of things that are awkward enough to do in front of other girls. But it’s a violation, a fundamental violation, of their privacy to have to do that in front of a male person.” 

Attorney Jocelyn Floyd represents parents suing school a northwest suburban high school district because it let a transgender student use the girls' locker room.
Credit The Thomas More Society

In a statement issued after the suit was filed District 211 superintendent Daniel Cates said the district had created “workable solutions protecting the privacy and honoring the dignity of all students. In his statement, Cates said that individual changing stalls are “readily available to every student.”

Ed Yohnka, director of communications and public policy for the ACLU of Illinois, says the suing parents have “a strange notion of privacy.”  The ACLU is representing the transgender girl. “The suit would have you believe that if you or I are uncomfortable or disquieted by the presence of someone else of the same gender in our facility, that we have the right to have that person excluded, and that’s never been recognized anywhere,” he says. “The idea of creating some novel suggestion that this is what privacy means in the country … won’t carry the day in our federal courts.”

Christina Kahrl, a Chicago transgender activist and ESPN baseball analyst, has been closely following the issue. “At the end of the day, all she is is a kid. She just wants to go to school. She has to take PE the same as everybody else. She’s just doing what she has to do, and yet everybody wants to turn this into something that it very much is not,” says Kahrl, who came out as transgender in about 2002.

University of Illinois Urbana-Champaign law professor Robin Fretwell Wilson, whose specializations include LGBT rights, says that all the students in the case have rights that should be respected. “I actually do think the other girls have privacy rights, just like I think the transgender girl has a privacy right,” she says. “I think the question is: how do we mash those together in a way that’s workable for everyone?”

Another issue at odds in this lawsuit and across the country is whether federal Title IX, which demands equal treatment in schools for both sexes, applies to gender identity.

A few weeks after the suit was filed, the Department of Education and U.S. Department of Justice issued a directive that under Title IX, students must be allowed to use the accommodations that correspond to their gender identity. So far, 21 states have sued, claiming that Title IX protections don’t cover gender identity, according to the ACLU. The potential precedent is what makes the District 211 case nationally important, says Tedesco, the ADF attorney.

Yohnka says precedent exists to support that sexual preference and gender identity are both covered under Title IX.

But Wilson, the U of I professor, says there is not much case law saying gender identity is covered by Title IX. “It’s exactly those kind of lawsuits that are going to work that out.”

However, she says, the agencies’ interpretation to mean that sex equals gender identity may carry a lot of with the court, “so I think it’s going to a really hard question.” 

One such case occurred recently in Virginia, where the 4th district federal appellate court ruled in favor of a transgender student who had sued his school board for denying him the right to use the boys’ restroom.

In light of the federal directives and the cases winding through the court, some school groups, including the Illinois Association of School Boards and the Illinois Association of School Administrators say they have not offered more than loose guidance to districts on how to handle treatment of transgender students. The Illinois State Board of Education didn’t respond to multiple requests for comment on whether it has a stance on guidance for districts in light of the Department of Education directive.

Owen Daniel-McCarter, executive director of the Illinois Safe Schools Alliance, says his organization looks to the Illinois Human Rights Act as a guide. He says that many school systems are acting to prevent discrimination against transgender students. Several districts have joined Williamsville in adopting specific policies that spell out transgender students’ rights and call for their inclusion in restrooms and locker rooms corresponding with their gender identity. That list includes Chicago Public Schools, the Harlem School District in Rockford and districts in suburban Berwyn and Warrenville.

Meanwhile, a flurry of federal rules relating to rights for transgender people have been handed down in the last several months, most recently an announcement on July 1 that the ban on openly transgender people serving in the military will come to an end by the end of the year. In May, the U.S. Department of Health and Human Services declared it illegal to deny health care coverage related to transition. In March, came federal guidance that jails and prisons must consider gender identity in placing inmates.

In Illinois, two pieces of legislation related to transgender rights didn’t get far in the General Assembly. LGBT advocates opposed House Bill 4474, which would have required students to use restrooms and locker rooms based on their biological sex. That bill never got a floor vote, nor did another, House Bill 6073, which would have allowed birth certificates to be changed to match gender identity without requiring surgery as part of transition.

In 1955, Illinois became the first state to allow transgender people to change gender markers on their birth certificates. But Michael Ziri, public policy director of the LGBT rights advocacy organization Equality Illinois, says the state’s vital records statute is now behind the times because it requires surgery, rather than doctors’ clinical recommendations, before allowing the gender marker to change on the document.

In April, a group of LGBT advocates visited Gov. Bruce Rauner’s office. Finn de Lima, a 17-year-old t ransgender student at Southern Illinois University Carbondale spoke, telling Rauner that “transpeoples’ experiences vary. Some feel you have to have the surgery. Some don’t.”  De Lima, a Florida resident who transitioned while in high school, says he identified for a time as androgynous. “I moved through society in a way that people weren’t really sure of my gender, and I enjoyed that. But once I started slowly presenting myself as masculine, I really started to explore my identity, and then I realized I do enjoy moving through the world as male, and I do enjoy being recognized as male.”

Finn de Lima, an art therapy major at Southern Illinois University Carbondale, is a transgender student who met in April with Gov. Bruce Rauner.
Credit Morgan Timms / The Daily Egyptian

De Lima told Rauner that he opposed the House Bill 4474, as well. He says he is mystified by the bathroom debate. “It doesn’t make sense to me why people are so uncomfortable with it because they’ve used the bathroom with a transperson before, and there have never been any cases of a transgender person attacking a cisgender (nontransgender) person. In fact, it’s the other way around.”

Floyd, with the Thomas More Society, says there is a danger with transgender people using public accommodations. “There is a real issue with men — sexually demented, perverse men usually — gaining access to the women’s room, whether sneaking or dressing up and sneaking in taking pictures taking videos, sexually assaulting and outright raping women. ... If you say that anyone can go into any bathroom they want based on their individual self-perception of their gender identity, you remove that protection because now nobody can ask any question. No one can question someone’s motives.’’

Keisling says it’s transgender people who are at risk. This calendar year the National Center for Transgender Equality has documented 14 murders of transgender people, which is on track to top the 2015 total of 25. The overall national murder rate was 4.7 per 100,000 people in 2014, according to the Federal Bureau of Investigation's most recent report of national crime statistics.

Violence and harassment are top concerns among the nation’s nearly 1.4 million adult transgender people. The center did a 2011 survey of 6,400 transgender people — the results of an updated version with 28,000 respondents are due in late summer. Results of the 2011 survey showed that families with transgender people are four times more likely than the general population to earn under $10,000 a year. They experience far greater rates of harassment at school at work and in public accommodations.

Specific Illinois responses from 233 transgender people found that 45 percent had attempted suicide, which is 28 times the national average.

Cindy Martsch holds the faces of her son Allen (left), who is transgender, and his brother, Nick (right).
Credit Cindy Martsch

Suicide was one of Cindy Martsch’s concerns when her son Allen came out as transgender when he was 17 and a senior at Springfield High School. “As scary as this might be for a mom, it’s life or death for your kid. Trans kiddos as a rule have a huge percentage of suicide attempts, and the knowledge of that knocked all my fear out my head,’’ says the Springfield school social worker. “It’s like, whoa. It’s not even negotiable. This is what we’re going to do. I’m going to find every way I can to be supportive.” The survey showed transgender people are less likely to attempt suicide if they feel accepted by their families.

Allen is now 23 and living in Burbank, California, where he hopes to get a job in animation production. He says it was hearing the word transgender that started him on the path to fewer depressive episodes.

“I don’t think it was something I always knew. When I was a kid, my gender was kid. It didn’t affect my childhood too much until a little later on when I started going to school and then puberty. And then something that I couldn’t put my finger on was off. Just the way people were expecting me to behave or to go about my life. Things that my body was changing into just didn’t feel right. As soon as I found that word and found that I could change what was making me uncomfortable, that was a really big revelation for me.”

De Lima and McCray were a bit younger when they recognized gender dysphoria and came out.

Kahrl says the idea that transgender children are coming out in school years is wonderful. “That’s the frontier. That’s the development that kind of surprised all of us because most of us were used to the idea of transitioning as an adult.” She considers life for transgender kids to be a happier place now that more families, pediatricians and schools are supporting them.

“I wouldn’t have imagined even 20 years ago that such a thing was even possible.”

Keisling says, “When I graduated from high school in the ’70s, there were not a lot of out transgender students. There may have been none in the whole country, but now there are out transgender kids in virtually every school in the country, and it’s not a big deal.”

Karhl says she hopes that view will soon be the norm everywhere. “I just want to get to the point, where I’m trans, so what?”

Illinois Issues is in-depth reporting and analysis that takes you beyond the headlines to provide a deeper understanding of our state. Illinois Issues is produced by NPR Illinois in Springfield.