As the Foster-Glocester School Committee takes up its transgender student policy, there are warning lights

“Those regulations have the force and effect of law. They're not guidance, they're like a statute..."

Nicole Solas, an outspoken, right-wing “parents rights” and anti-trans activist, dared the Smithfield School Committee to push back against the Rhode Island Department of Education (RIDE)'s mandated Transgender, Gender [Diverse], and Transitioning Students¹ policy last July, despite the probability that the outcome meant loss of state funds for the school and a probable and expensive lawsuit.

“Call the ACLU's bluff and stand up for the health and safety of children and the rights of parents to protect them,” said Solas, eager to gamble with the finances of a town she does not live in.

Finding a school committee in Rhode Island willing to go to court with RIDE's policy on Transgender, Gender [Diverse], and Transitioning Students seems a big part of the strategy being employed by the small number of anti-trans activists in the state. Finding a school board that would be so fiscally irresponsible is the issue. Few attorneys engaged by school boards to provide legal counsel seem willing to tell their clients that there are no dangers to challenging RIDE's authority - or at least I thought so until I attended the Foster-Glocester Combined School Committee hearing on Tuesday night, where that district's Transgender, Gender [Diverse], and Transitioning Students policy was being discussed.

Here’s the video:

“The reason this is on the agenda tonight is that the Foster-Glocester Superintendent, [Renee Palazzo], received an email from RIDE on February 21st,” said attorney Gregory Piccirilli, hired by the School Committee to provide legal guidance. That email from RIDE’s School Health, Policy, and Program Specialist Ayisha Gbolashare outlined five areas in Foster-Glocester's policy that needed improvement to align with state regulations.

Regulation regarding the transgender policy was passed by the Council on Elementary and Secondary Education and has the force and effect of law. Under that law, the policy adopted by Foster-Glocester, and all other LEAs (Local Education Agencies) must be aligned with “national and state” best practices. Separate from the regulation is the state's guidance, that is, the state's letter pointing out five areas where Foster-Glocester possibly does not align with state law.

As Attorney Piccirilli explained to the School Committee, he believes that the “guidance” is nonbinding. According to Attorney Piccirilli, “The guidance has no force of anything. The only thing that has the force of law is the regulations...

“I’m here as your attorney to tell you what I think the law requires you to do. What you choose to do, whether you adopt suggestions or not, is solely within your discretion. But as your legal counsel, it would be remiss of me to come here and tell you [that] you must do this because RIDE says you must when I don't think the law says that...

“I'm just going to say this right up front: the Department of Ed is being purposely deceitful in trying to tell you what is required and then couching it in terms of ‘should’ or as a suggestion,” said Attorney Piccirilli.

"What is the consequence of doing nothing?" asked School Committee member Beth Keeling. “Do they take all our state aid and say we won't it get pending [compliance]?”

“Has anybody suggested that to anybody?” asked Attorney Piccirilli. “That is an absurd suggestion.”

It's not an absurd suggestion.

“Those regulations have the force and effect of law. They're not guidance, they're like a statute,” said Attorney Anthony Cottone, Chief Legal Counsel for the Rhode Island Department of Education (RIDE), addressing this issue last year in Smithfield. “The regulations provide that each school district must adopt a policy providing a safe, supportive, and non-discriminatory school environment for transgender and gender non-conforming students. And this is a significant point - that it is consistent with state and national best practices, guidance, and model policies.”

The Commissioner of Education, Angélica Infante-Green, is statutorily required to enforce school law in Rhode Island. Her power is twofold. She can null or suspend certifications of administrators and teachers who are not conforming with the law, and she can withhold non-education state aid to cities and towns.

That later power is most commonly used when districts decline to pay for kids who are placed by the Rhode Island Department of Children, Youth, and Families (DCYF) in out-of-state facilities because their needs are so great. When this happens DCYF has to be reimbursed by the district and if the district doesn't pay, the Commissioner issues a legal order to take the money from the district's revenues.

Attorney Piccirilli's take on the law was not the only odd thing he said to the school committee.

“Going back to 2018, there was a regulation enacted,” said Attorney Piccirilli. “It's a pretty vague regulation quite frankly. I think it was something that RIDE just cobbled together to try to put this issue aside because it's a very controversial issue. When that regulation came out in 2018, it had language that said the LEA [Local Education Authorities] policy shall be consistent with state and national best practices, guidance, and model policies.”

Putting aside the idea that policies defending the health and safety of Transgender, Gender [Diverse], and Transitioning Students is a “very controversial issue” [It is not²], I was at the hearing held by former Commissioner of Education Kenneth Wagner, under whose leadership the Transgender, Gender [Diverse], and Transitioning Students policy was developed from 2016-2018. Far from being vague, the Commissioner was quite specific about what the policy was and why it was being done.

“What this policy is doing,” said Commissioner Wagner, “is articulating guidance around what districts have always had a responsibility to do, which is to implement statutory protections for Transgender, Gender [Diverse] individuals. This policy does not proscribe what local policies need to look like. What it does proscribe is that local school districts will need to have a policy in place, and it identifies complicated issues and districts have to address each of those issues in their policy.”

Though Attorney Piccirilli has been legal counsel to the Foster-Glocester School Committee for many years, some of his other legal work marks him as an unusual and perhaps even questionable choice for the role:

1. He's the Goldwater Institute's American Freedom Network attorney representing Nicole Solas in her lawsuit against the South Kingstown School Committee over Access to Public Records Act (APRA) violations. [See here]

2. He is also the local attorney working with a Texas-based law firm representing two people who are suing their healthcare providers for medical negligence during their gender transition. [In her testimony against the healthcare provider shield law, Nicole Solas, reading the words of Dr. Michelle Cretella, highlighted these lawsuits.]

3. He has sued the state over mask and vaccine mandates; and,

4. He is the lawyer retained by the Trump campaign in a lawsuit over his eligibility to be on Rhode Island’s 2024 presidential primary ballot.

I would advise the Foster-Glocester Combined School Committee to seek out a second opinion.

1. The word “Non-Conforming” has been replaced with the more accepting term “Diverse” in this piece throughout.

2. “Every major medical association and leading world health authority supports healthcare for transgender people and youth, including the largest pediatric professional organization, the American Academy of Pediatrics, the American Medical Association, the Society for Adolescent Health and Medicine, the World Health Organization, and more,” noted Dr. Emily Allen, a board-certified pediatrician and adolescent medicine specialist, testifying on behalf of herself and the Rhode Island Chapter of the American Academy of Pediatrics in testimony here.