Foster School District redefined "sex" in possible violation of state and federal law

The change comes in seeming reaction to President Trump's executive orders.

Gregory Picirilli, left

The Foster School District has altered the “Definition of Sex” on its website. It now reads: “Consistent with federal guidance as of January 2025, the district recognizes ‘sex’ as a binary biological attribute (male or female) determined at birth.” [Italics mine]

Here’s a screenshot:

Item 19, a discussion of “Title IX & District Policies,” is on the agenda for the Foster-Glocester School Committee’s next meeting, scheduled for April 1st. Title IX prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government. Long interpreted by the courts to protect transgender, gender-diverse, and transitioning students, recent executive orders from President Donald Trump make it clear that his Administration would see those protections dismantled. In lieu of a court decision, the Executive Orders have no force of law, and following them puts a school district like Foster in the position of possibly violating federal and state law.¹

The attorney for the Foster School District, Gregory Picirilli, authored the complaint on behalf of the Center for Freedom and Prosperity, which apparently spurred the Rhode Island Interscholastic League to alter their policy concerning transgender, gender-diverse, and transitioning students. [See here and here]

Attorney Picirilli is also suing the Rhode Island Department of Education (RIDE) to strike down the Commissioner’s 2018 Regulation 200-RICR-30-10-1, which protects transgender, gender-diverse, and transitioning students from discrimination. The complaint requests a motion for a preliminary injunction, nullifying the regulation.

The last time the Foster School Committee - Policy Subcommittee took up the policy, in May of last year, it was tabled, though Subcommittee Chair Aaron Dupuis suggested that “Title IX regulations can also change with the election coming up” implying that a second Trump Administration might make it easier for school districts to discriminate against transgender, gender-diverse, and transitioning children and their families.

This is a developing story.

1. As explained by Attorney Jennifer Wood at a recent meeting of the Chariho Scool Board: There’s been a lot of discussion lately about whether Presidential Executive Orders issued since January 20th require or compel school districts to revise policies that protect students from discrimination and require a safe and inclusive learning environment for all students. I am here tonight to tell you that executive orders cannot compel policy changes for your district and that federal and state laws and regulations that have not changed since January 20th prohibit you from reducing or eliminating anti-discrimination policies.

These legally required policies support safe and inclusive schools for your students. A presidential executive order instructs federal agencies on how to manage their operations. Executive orders cannot change statutes or regulations; only Congress, the General Assembly, or delegated agencies can do that.

Since the turn of this century, Rhode Island law has prohibited discrimination based on sexual orientation and gender identity. We are the second in the nation to do so and I’m very proud of that. The United States Supreme Court has recognized that discrimination on this basis also violates federal law.

You may hear that some federal courts have held that Title IX does not protect transgender students from discrimination. However, these rulings were in other states. The Federal Appeals Court in Boston interprets these laws for Rhode Island. That court has ruled that transgender students are protected from unequal treatment, and the federal court in New Hampshire, which is in our appeals court district, has ruled that Title IX protects transgender students from discrimination. These first circuit interpretations of law are binding in Rhode Island unless and until the United States Supreme Court rules otherwise.

In summary, federal and state law in 2025 protects transgender students, and the State Board of Education regulations, which have the full force and effect of law in Rhode Island, require that your policies reflect those protections. Please do not reconsider legally mandated policies that protect students from discrimination and harassment. They provide all of your students with a safe and inclusive learning environment.