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Attorneys talk legal challenges facing transgender people
by Jake Wittich

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A panel of attorneys addressed the employment and education legal issues impacting transgender people in a discussion Oct. 11 at Hinshaw & Culberton law offices.

The panel, "Trans 101: Laws and Policies Affecting the Transgender Community," included Kathryn Vander Broek, deputy general counsel at Waukegan Public Schools; Elizabeth Ricks, legal director and staff attorney of the TransLegal Program for Chicago House and Social Service Agency; and Sunghee W. Sohn, an associate at Hinshaw, 151 N. Franklin.

Sohn said a large issue is that there is no federal statute protecting LGBTQ people from discrimination.

"We had a bright light under President Obama, whose executive order 11246 prohibited federal contractors from discrimination, including gender identity, but this was effectively gutted under President Trump in 2017," Sohn said.

However, Sohn said courts in some cases have interpreted existing protections to include sexual orientation and gender identity, as seen in March of this year when the Sixth Circuit Court of Appeals ruled that RG & GR Harris Funeral HOmes violated Title VII by firing Aimee Stephens when she told her employer she's transgender and would be presenting as a woman.

Sohn said another legal challenge has come from businesses denying services to LGBTQ people by claiming doing so is in conflict with their religious beliefs.

Still, local governments can enact statewide protections for LGBTQ people against discrimination, Sohn said, noting that California passed a bill in 2017 requiring employers to provide training and policies prohibiting harassment based on gender identity, gender expression and sexual orientation.

According to Ricks, local governments can also help by making it easier for transgender people to change their gender markers on legal documents, as many states still require surgeries for transgender people to change their gender markers.

"It's a big problem because it does immediately 'out' you if you aren't able to change your gender marker," Ricks said. "I had a client who recently wasn't allowed to purchase a pizza because she paid for it with her credit card over the phone, but she hadn't changed her ID yet, so the delivery person wouldn't let her sign for it."

Ricks said there are many reasons why a transgender person might not have surgery, including whether they want the surgery in general, whether it's medically appropriate due to other health conditions, or if surgery is cost prohibitive.

Broek, who was appointed deputy general counsel of Waukegan Public Schools in August, said the biggest challenge in making schools safe for transgender students can be other parents.

"It's not usually the students who have issues with other transgender students," Broek said. "It's the parents who have issues with the transgender students when they're seeking access to the locker rooms and restrooms they identify with."

According to Broek, other common issues impacting transgender students in school include use of pronouns, access to restrooms and locker rooms, access to feminine hygiene products and overnight field trips.

Broek stressed the importance of schools developing plans and procedures for supporting transgender students in advance, rather than figuring them out as issues arise.

"When we wait until the issue is in front of us, it makes it that much harder for the transgender individual, who is just trying to assert their rights," Broek said.

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