Transgender Access Policies for Nonprofits: Legal Requirements and General Considerations

Myriad questions abound in our current times regarding transgender issues, legal and otherwise.  For nonprofit leaders, what legal compliance, privacy considerations, and other implications arise for their organizations’ facilities and programs in light of transgender issues?  Should nonprofits develop a transgender bathroom policy and, if so, what elements should be included?  More specifically, how do nonprofit organizations across the spectrum – including those seeking to promote LGBT equality, those with religious missions and convictions that conflict with transgender advocacy, and those serving youth – address such policies from a legal compliance standpoint? 

Recent Developments

The term “transgender” generally refers to people whose gender identity or expression differs from their biological sex.  Following in the wake of the U.S. Supreme Court’s recent rulings on same-sex marriage and the legislative trend of new state and local anti-discrimination laws protecting sexual orientation and gender identity, transgender advocacy is steadily increasing in scope, intensity, and media attention.

Illinois Department of Revenue Revisits “Religious” Qualification for State Tax Exemption

What is sufficiently “religious” for state tax exemption?  The lawyers of Wagenmaker & Oberly and the Thomas More Society, a Chicago public interest law firm, collaborated together to reach a groundbreaking administrative appeal victory on this question, in Department of Revenue v. Great Lakes Catholic Fellowship, Inc. (Case No. 15-ST-019).  The decision rejects the Department of Revenue’s position that the religious exemption under Illinois law is limited to houses of worship.   Instead, the Administrative Law Judge ruled that this constrained interpretation improperly scrutinizes bona fide religious activities and that the term “religious” also extends to organizations with a broader religious nature. 

This administrative ruling is consistent with Illinois court rulings and therefore should pave the way for improved recognition of both property and sales tax exemptions based on religious qualifications with the Department of Revenue.  Here’s why.

State Exemption, Not IRS

Under Illinois law and many other state laws, nonprofits may obtain exemption from both local property taxes and retail sales taxes.  Such exemptions often provide valuable economic benefits.  For these exemptions in Illinois, nonprofits generally must be Section 501(c)(3) tax-exempt organizations and additionally show that they fit into one of the following categories:  religious, educational, or charitable.  These categories are terms of art:

*    “religious” has historically been interpreted narrowly by the Department of Revenue as confined only to houses of worship (i.e., churches and other religious institutions), and not more broadly per Illinois court precedent;

*    “educational” generally means institutions of learning that relieve government burdens (i.e., grammar schools, but not trade schools); and

*    “charitable,” which is the catchall category for organizations that widely distribute charitable benefits without “undue obstacle and without any “view to profit” (to the extent any fees are charged).

Abuse Prevention Policy Essentials: Protecting the Least of These

Abuse of children and other vulnerable persons is always tragic, to be closely guarded against on any level.  For nonprofit organizations like churches, schools, and social service providers that care for vulnerable individuals, it is imperative that such organizations use strong protective measures.  For optimal personal safety and organizational risk management, these measures warrant careful development, board approval, a written policy document provided to all workers, and implementation through training and other follow-through.  An effective abuse protection policy can significantly reduce the risk to vulnerable individuals and the organization, and provide a safe framework in which the nonprofit can care for at-risk persons. 

Key Ingredients in Abuse Prevention and Protection Policies

A.  Policy Framework

An effective abuse prevention and protection policy should contain the following key overarching elements. 

1.  Purpose.   As an initial matter, the policy should articulate the organization’s concern and proper care for the children and other vulnerable persons served.  

2.  Scope.  The policy may cover not only minor children but also the elderly and other adults who lack the physical or mental capacity to protect themselves (collectively “vulnerable persons”). 

3.  Goals.  In addition, the policy should set forth clear goals, such as to protect others and prevent harm, to provide guidelines for staff and volunteers (so that they too can be protected, against potential allegations of harm), and to create a compassionate environment including “zero tolerance” for abuse. 

4.  Context.  The policy can – and should – be closely tailored to the organization’s culture, programs, and even facility space, but with these and the following common aspects.