RIDE sends an email to the Foster-Glocester School Committee reminding them of the laws protecting transgender, gender diverse, and transitioning students

"I hope that the School Committee... rejects any proposal to amend its 'Sexual Harassment/Title IX Non-Discrimination/Anti-Harassment Policy and Grievance Procedure,' or any related policy..."

The Rhode Island Department of Education (RIDE) sent an email today to leadership at the Foster-Glocester Regional School Committee, ahead of its April 1st meeting, reminding them of state and federal law regarding protections for transgender, gender diverse, and transitioning students, and the enforcement of Title IX, which prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government.

The Foster School District and the Glocester School District are independently responsible for their grammar schools, one in Foster and two in Glocester. The combined Foster-Glocester Regional School District is responsible for the Middle School and High School. The Foster-Glocester Regional School Committee is comprised of nine members. Three members are from the Town of Foster; they serve two-year terms. Six members are from the Town of Glocester; they serve staggered four-year terms.

The letter, written by RIDE’s Chief Legal Counsel Anthony Cottone, comes as the Foster School District had altered the “Definition of Sex” to read, “Consistent with federal guidance as of January 2025, the district recognizes ‘sex’ as a binary biological attribute (male or female) determined at birth.” That line has since been removed from the website but can be seen here.

The letter from RIDE also notes that the agenda for the meeting contains an item, “Title IX and Policies,” which is to be considered in the executive session. [Which may be, says the letter in a footnote, “a violation of the State’s Open Meetings Act, but that is a question for the State Attorney General.”]

See here for more.

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Here’s the letter to committee co-chairs Cindy Joyce and Eileen Cook, Foster-Glocester Superintendent Dr. Renee Palazzo, and School Committee Attorney Gregory Piccirilli.

Dear Co-Chairs Joyce and Cook:

It appears that the agenda for tonight’s meeting of your School Committee contains an agenda item “Title IX and Policies,” which is to be considered in executive session.¹ The Department of Education also has been informed that the website maintained by the Foster School Committee now contains the following amended language under the heading “Title IX Policy”:

Definition of Sex: Consistent with federal guidance as of January 2025, the district recognizes ‘sex’ as a binary biological attribute (male or female) determined at birth. See here.

Yet, the Commissioner’s Regulations Governing Protections for Students’ Rights to be Free from Discrimination on the Basis of Sex, Gender, Sexual Orientation, Gender Identity, or Gender Expression (the “LBGTQ+ Regs.”) make clear that:

Programs and activities operated by Rhode Island public educational agencies shall be free from discrimination based on sex, gender, sexual orientation, gender identity, or gender expression. By July 1, 2018, each Local Education Agency (LEA ) shall adopt a policy addressing the rights of transgender and gender non-conforming students to a safe, supportive, and non-discriminatory school environment. 200-RICR-30-10-1.3.A (emphasis added).

The LBGTQ+ Regs. are entirely consistent with applicable state and federal law and have the force and effect of law.²

Indeed, in 2001, Rhode Island became just the second state in the nation to include transgender people in its nondiscrimination law, which prohibits discrimination against any person “on account of race or color, religion, country of ancestral origin, disability, age, sex, sexual orientation, gender identity or expression.” R.I. Gen. Laws § 11-24-2 (emphasis added). And the U.S. Supreme Court has made clear that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” Bostock v. Clayton County, Georgia,140 S.Ct. 1731, 1747 (2020).³ Thus, the federal District Court for the District of New Hampshire has specifically rejected the argument that “the Supreme Court has already held that Bostock is inapplicable to Title IX.” See Tirrell v. Edelblut, 2024 WL 4132435 (D.N.H., September 10, 2024) at *15. In addition, while preliminarily enjoining the enforcement of a New Hampshire law prohibiting transgender girls from participating in girls’ sports, the Court in Tirrell made clear that:

[w]hile Bostock concerned Title VII, its analysis of the logical relationship between sex discrimination and transgender discrimination extends to other contexts. The First Circuit has ‘recognized that the analytical framework for proving discriminatory treatment under Title VII is equally applicable to constitutional ... claims.’ Lipsett v. Univ. of P.R., 864 F.2d 881, 896 (1st Cir. 1988) (quotation, brackets, and ellipsis omitted).

Id. at *9.

The principle of judicial review established in Marbury v. Madison⁴ clarified long ago that only courts have the power to strike down laws they find to be unconstitutional. Thus, not surprisingly, many of the Executive Orders issued by President Trump – including his January 20, 2025, Executive Order entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which provided that the United States “recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality” – are under legal challenge in federal courts throughout the country.⁵ See also the February 28, 2025, Guidance to Rhode Island Local Education Agencies, School Administrators and Educators issued jointly by the Commissioner and Attorney General Peter F. Neronha.⁶

In summary, I hope that the School Committee follows applicable law and rejects any proposal to amend its Policy # 4103, “Sexual Harassment/Title IX Non-Discrimination/Anti-Harassment Policy and Grievance Procedure,” or any related policy designed to protect all our children.

1. This would appear to be a violation of the State’s Open Meetings Act, but that is a question for the State Attorney General.

2. See In re Advisory Opinion to the Governor, 732 A.2d 55, 75 (R.I. 1999), citing, inter alia, Lerner v. Gill, 463 A.2d 1352, 1358 (R.I.1983) (“Regulations that are duly promulgated by an administrative agency . . . pursuant to a specific grant of legal authority to do so, are legislative rules that carry the force and effect of law and thus enjoy a presumption of validity.”).

3. See also United States v. Virginia, 518 U.S. 515 (1996) (“when state actors draw distinctions using sex or gender, the constitutional mandate call[s] for a heightened standard of review... because sex or gender generally provides no sensible ground for differential treatment”).

4. 5 U.S. 137 (1803) (Marshall, C.J.).

5. As of the date of this writing, there are over one hundred (100) such legal challenges pending, as per the litigation tracker maintained by Just Security (available at https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-trump-administration/). See, e.g., Nat’l Association of Diversity Officers in Higher Ed. v. Trump, Case No. 1:25-cv-00333-ABA (D. Md. 2025)) (preliminarily enjoining enforcement of President Trump’s DEI Orders); State of New York, et al. v. Donald Trump, et al., 2025 WL 480770 (D.R.I., 2025) (McConnell, C.J.) (temporarily restraining enforcement of February 14, 2025, letter from the U.S. Department of Education’s Acting Assistant Secretary for Civil Rights ); National Council of Nonprofits, et al. v. Office of Management and Budget, et al., 2025 WL 368852 (D.D.C., February 3, 2025) (Alikhan, J.) (holding that the Appropriations Clause of the Constitution gives Congress exclusive power over federal spending, citing U.S. Const. art. 1, § 9, cl. 7.).

6. Available on RIDE’s website here.