Right-wing zealots are lying to you about Title IX and trans rights in Rhode Island

Moms for Liberty injunctions, based on a case in Kansas, are not against schools or students, they are against the DOE, and have no impact on your rights.

At Rhode Island school committee meetings across the states and behind the scenes, right-wing Christian Nationalists and ‘parental rights’ extremist groups like Moms for Liberty have been spreading intentional disinformation about the impact of a Federal District Court ruling in Kansas on the Biden Administration’s Title IX rules¹ and the effect the ruling has on schools here. Title IX is civil rights legislation passed in the 70s that prohibits sex discrimination in schools that receive federal funding and covers every public school in the country, more or less.

Under the Kansas ruling, any school with a child of a Moms for Liberty member might become involved in this injunction if a lawyer representing Moms for Liberty files with the Court. The latest information I could find indicates that two dozen Rhode Island schools are currently under injunction. You can see what schools at the footnote.²

Trans kids are still protected in Rhode Island schools. It’s important that kids and families know that their rights are not being impacted. They are not subject to this injunction. They should still feel protected and feel like they can come forward if they’re subject to discrimination. Right-wing zealots are lying to you.

To be clear, there is NO effect on the rights of trans students in Rhode Island AT ALL as a result of these injunctions. No matter what you hear from the transphobes spreading their messages of hate and discrimination, in Rhode Island, trans students are protected under federal and State law, and nothing in these injunctions threatens that in the least.

Those saying otherwise are grossly misinformed or lying.

I became aware of this issue when I learned that some schools in Warwick have had injunctions filed against them that they believed prevented them from enforcing the Biden Administration’s 2024 Title IX rules.

WARWICK

At the October 2nd Warwick School Committee Policy Subcommittee meeting, I learned that Warwick had three schools presently enjoined. The disinformation from right-wing School Committee member Michelle Kirby-Chapman about the Kansas ruling was thick. [Kirby Chapman was one of only a few #ParentsUnitedRI candidates who successfully elected to office in 2022. As I detailed here, #ParentsUnitedRI had ties to overt white supremacist hate groups like CORR (Citizens Organized to Restore Rights) and Super Happy Fun America (SHFA). Another person elected as a member of #ParentsUnitedRI is Lori Wycall, who has been leading the effort to water down the transgender, gender-diverse, and transitioning Student Policy in Westerly.]

Discussing the Title IX Policy, Kirby-Chapman said, [emphasis mine], “The only thing I’m going to question about this moving forward is what has been given to me since then about the lawsuit with Moms of Liberty, how they fought in Kansas, and apparently, they fought again in Rhode Island and won a religious exemption.”

This is not true. Moms for Liberty did not win in Rhode Island and earned no “religious exemption.” There is an open question as to who gave Kirby-Chapman this information.

Kirby-Chapman was attempting to use the Kansas Court injunctions to rewrite the District’s Title IX policy and the Warwick School District’s transgender, gender-diverse, and transitioning student policy, which the committee has labeled JBB.

“I have a question that just popped into my head,” said Kirby-Chapman during the meeting. “Passing the Title XIII. [She meant Title IX] Does that supersede us redoing JBB to making up with the parents happy? [sic]”

“No,” said Chair Kristin Murray. “One is all about just protection, about bullying and whatnot.”

“Does that mean that one will always overplay what we do with JBB?” asked Kirby Chapman.

“I don’t believe so,” said Chair Murray. “I really feel like they’re two separate things. But are you asking for us to look at JBB, too?”

“Oh, for sure,” said Kirby-Chapman.

About a month later, at the October 29th meeting, after the committee members received letters from the ACLU of Rhode Island supporting the schools transgender, gender-diverse and transitioning student policy and clarifying that the Kansas injunctions are functionally meaningless in our State, I found out that the School Committee’s attorney had advised the committee to not discuss the policy.

“I was asked by [Solicitor] Andrew [Henneous] to table it for this month,” said Committee Member Kirby-Chapman. “He said we can start the discussion if we like, but as far as passing it on we're going to have to wait until next month.”

I testified at the Committee. The text below has been edited and simplified for clarity:

“Last meeting, your committee discussed the Title IX exemptions [resulting from the Kansas lawsuit]. After I saw that, I alerted some people, and the ACLU [sent you all a letter about why there is no reason, in Rhode Island, to do anything differently in response to the Kansas lawsuit or the injunctions.] If you have a strong policy, like this school system has adopted, you don't have to worry about the Title IX injunctions because the policies here protect your schools and students. Even the three schools that have injunctions - it doesn't matter because the injunctions are against the DOE, not the school, students or this administration.

“Remember that Title IX is separate from the transgender, gender-diverse, and transitioning policy that you're reconsidering. They are two different things. Title IX is important, but sports in Rhode Island are overseen by the state InterScholastic League. It's not something you need to worry about all that much. The transgender, gender-diverse, and transitioning policy, as you have it right now, is perfectly fine. It comports with a RIDE, and State and federal policy, and everything else.

“I will be at the next meeting. I understand why you held discussing the policy here today, but in the past, I've found that when I express an interest before I show up at a meeting, members find a reason to hold off the discussion until the next meeting. They don't want to be doing it in an open meeting, in front of a reporter. I don't know if that's the case here, but I just want to say that that is oftentimes the case for me. I've done this for 12 years and I will not be deterred.”

Explaining why she decided to reopen the transgender, gender-diverse and transitioning student policy to discussion and alteration, Committee Member Kirby-Chapman said, “There's two sides to certain topics. And I was trying to see if we could find a happy medium somewhere.” It’s a seemingly innocent comment that obscures a malignant agenda.

BRISTOL-WARREN

Right-wing Christian national Robert Chiaradio, who has been touring Rhode Island School Committee meetings to advocate against trans rights and the very existence of trans children, has been darkly warning of this effort for a while.

At Monday night’s Bristol Warren School Committee meeting, for instance, Chiaradio said, “...we are working right now to exempt all six Bristol-Warren schools from the illegal 2024 Biden Title IX rewrite. You’ll be informed soon which schools, if not all, are exempt.”

It was a threat as empty as all his rhetoric.

LITTLE COMPTON

In September, Ted Hayes, a reporter for EastBayRI, covered a story about the Little Compton School District’s handling of this issue. Wisely, Little Compton Superintendent Laurie Dias-Mitchell is quoted in the piece as stating, “Both the Title IX policy currently in place and the (District’s) Gender Identity and Expression Nondiscrimination policy provide protections for all students. The Little Compton School District’s Gender Identity and Expression Nondiscrimination policy was recently reviewed by RIDE (Rhode Island Department of Education) — and RIDE confirmed in a letter to us that our policy not only adheres to the law and statute guidance but it is also an exemplar in the State.”

The ACLU of Rhode Island sent Superintendent Dias-Mitchell a letter commending her stance and wrote, “We felt it important to emphasize that the school district is on strong legal ground in continuing to abide by its anti-discrimination policy even if this Kansas court decision has applicability here. That is because the court ruling made clear that its scope was centered on the legality of the Title IX regulation at issue and not any other laws or regulations that might provide similar anti-discrimination protections. That is, the decision has no effect on the validity of the Rhode Island guidelines and your school district policy that independently provides protections to transgender students. As the court explicitly noted:

“Finally, nothing in this order limits the ability of any school to adopt or follow its own policies, or otherwise comply with applicable state or local laws or rules regarding the subjects addressed herein. Rather, it simply prohibits Defendants from demanding compliance with the Final Rule by the schools affected by this order, or imposing any consequences for such schools’ failure to comply with the Final Rule.

“We appreciate the school district’s continued support for the well-being of all its students and trust that support will continue in accordance with State law.

The ACLU of Rhode Island sent similar letters to members of the Warwick School Committee earlier this week, as noted above.

WHAT THE LAW ACTUALLY SAYS

In an attempt to get my head around this issue, I spoke with some lawyers, and the first thing they said was that this injunction does not diminish the rights of trans students in Rhode Island schools.

Title IX is civil rights legislation passed in the 70s that prohibits sex discrimination in schools that receive federal funding and covers every public school in the country, more or less. Almost every school gets public funding, whether for school lunches.

Just about every public school in Rhode Island is subject to Title IX. They’re not allowed to discriminate based on sex, and that includes sexual orientation and gender identity. The Biden administration put out rules that became effective in August of this year. But rules don’t change a statute - they state the agency’s interpretation of the statut. In this case, the Biden administration is basing their interpretation on recent United States Supreme Court cases, including some from very conservative judges, saying that the definition of sex includes sexual orientation and gender identity. So the Biden Administration’s interpretation, following along with the Supreme Court’s interpretation, is that Title IX protects against discrimination based on sexual orientation and gender identity.

Immediately after the rules were issued, 26 states filed lawsuits seeking to block those rules from going into effect. There’s one case that has not progressed very far. In all of the other cases, a court at some level has entered an injunction that blocks the United States Department of Education [DOE] from enforcing the 2024 rule. In almost all the lawsuits, those injunctions are limited to the states where the cases were filed. Tennessee, for instance, filed a lawsuit, and the injunction was limited to Tennessee.

The Kansas injunction is a little different. In Kansas, Moms for Liberty, the Young Americas Foundation, and Female Athletics United—three anti-trans groups—joined in the litigation. The judge in that case enjoined the DOE from enforcing the rule in Kansas but also enjoined any school attended by a child of a Moms for Liberty, Young America’s Foundation, or Female Athletics United member.

That’s why we’re hearing about these injunctions in states like Rhode Island that are not part of any of these lawsuits. Rhode Island did not sue to enjoin the DOE, but the judge in Kansas allowed those three anti-trans organizations to continue adding members to their lists. This means that as people join Moms for Liberty, they can file with the court and say, “We’ve got these new members in these new schools,” and the injunction expands to cover those schools as well.

The injunction is not against the school. The injunction is not against any students. The injunction is not against any teachers, administrators, or school boards. It is against the United States Department of Education. All the Kansas suling can do is prevent the DOE from enforcing the 2024 rules in those states under injunction. It doesn’t impact States like Rhode Island with pre-existing protections, like those enshrined in RIDE’s policy on Transgender, Gender-Diverse, and Transitioning students.

This injunction does not relate to Rhode Island State law. Rhode Island has protections against discrimination in schools, and RIDE’s guidance is still in place.

Title IX is a floor, not a ceiling. Title IX says, “This is the bare minimum you must do to protect against discrimination.” Schools can go above and beyond. They’re required to do more in Rhode Island. For instance, there’s the RIDE guidance that says school districts have to protect against discrimination based on sexual orientation and gender identity.

It’s also important to remember that with or without these rules, Title IX protects against discrimination based on sexual orientation and gender identity. The 2024 rules are not crucial to that.

WHY IS THIS HAPPENING?

Why is Moms for Liberty doing this if it has no effect? I can’t say for sure, but one might speculate that it’s been significant public relations for them. The lawsuit and the injunctions have raised their profile tremendously. They’ve got a lot of people worked up and they’ve got a lot more members and funding. As a plus, they’re scaring kids, families, and school boards.

We must not let them do that. Trans students are protected in Rhode Island schools. It’s essential for families to know that their rights have not been impacted by the Kansas ruling. They are not subject to this injunction. They should feel protected and that they can come forward if they’re subject to discrimination.

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Here’s a one-pager from GLAD Law explaining the above in a much simpler way.

U.S. Department of Education Title IX Final Rule Overview GUIDING PRINCIPLES

1. Historic Recognition of Sexual Harassment as Sex Discrimination

• For the first time, the Department’s Title IX regulations recognize that sexual harassment, including sexual assault, is unlawful sex discrimination. The Department previously addressed sexual harassment only through guidance documents, which are not legally binding and do not have the force and effect of law. Now, the Department’s regulations impose critical legal obligations on school districts, colleges, and universities (collectively “schools”), requiring a prompt response to reports of sexual harassment. The Final Rule improves the clarity and transparency of the requirements for how schools must respond to sexual harassment under Title IX so that every complainant receives appropriate support, respondents are treated as responsible only after receiving due process and fundamental fairness, and school officials serve impartially without bias for or against any party.

Supporting Complainants & Respecting Complainants’ Autonomy

• Under the Final Rule, schools must offer free supportive measures to every alleged victim of sexual harassment (called “complainants” in the Final Rule). Supportive measures are individualized services to restore or preserve equal access to education, protect student and employee safety, or deter sexual harassment. Supportive measures must be offered even if a complainant does not wish to initiate or participate in a grievance process. Every situation is unique, and individuals react to sexual harassment differently. Therefore, the Final Rule gives complainants control over the school-level response that best meets their needs. It respects complainants’ wishes and autonomy by giving them the clear choice to file a formal complaint, separate from the right to supportive measures. The Final Rule also provides a fair and impartial grievance process for complainants, and protects complainants from being coerced or threatened into participating in a grievance process.

Non-Discrimination, Free Speech, and Due Process

• The Final Rule reflects core American values of equal treatment on the basis of sex, free speech and academic freedom, due process of law, and fundamental fairness. Schools must operate free from sex discrimination, including sexual harassment. Complainants and respondents must have clear procedural rights in a predictable, transparent grievance process designed to reach reliable outcomes. The Final Rule ensures that schools do not violate First Amendment rights when complying with Title IX.

A SCHOOL’S RESPONSE TO SEXUAL HARASSMENT

Under the Final Rule, any of the following conduct on the basis of sex constitutes sexual harassment:

• A school employee conditioning an educational benefit or service upon a person’s participation in unwelcome sexual conduct (often called “quid pro quo” harassment);

• Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or

• Sexual assault, dating violence, domestic violence, or stalking (as those offenses are defined in the Clery Act, 20 U.S.C. § 1092(f), and the Violence Against Women Act, 34 U.S.C. § 12291(a)).

• Consistent with Supreme Court precedent and the text of Title IX, a school must respond when: (1) the school has actual knowledge of sexual harassment; (2) that occurred within the school’s education program or activity; (3) against a person in the United States. The Final Rule expands “actual knowledge” to include notice to any elementary or secondary school employee, and states that any person (e.g., the alleged victim or any third party) may report to a Title IX Coordinator in person or by e-mail, phone, or mail. The Final Rule also specifies that a school’s “education program or activity” includes situations over which the school exercised substantial control, and also buildings owned or controlled by student organizations officially recognized by a postsecondary institution, such as many fraternity and sorority houses.

• Consistent with Supreme Court precedent, a school violates Title IX when its response to sexual harassment is clearly unreasonable in light of the known circumstances, and the Final Rule adds mandatory response obligations such as offering supportive measures to every complainant, with or without a formal complaint.

• Schools must investigate every formal complaint (which may be filed by a complainant or by a school’s Title IX Coordinator). If the alleged conduct does not fall under Title IX, then a school may address the allegations under the school’s own code of conduct and provide supportive measures.

A FAIR GRIEVANCE PROCESS

The Final Rule requires schools to investigate and adjudicate formal complaints of sexual harassment using a grievance process that incorporates due process principles, treats all parties fairly, and reaches reliable responsibility determinations. A school’s grievance process must:

• Give both parties written notice of the allegations, an equal opportunity to select an advisor of the party’s choice (who may be, but does not need to be, an attorney), and an equal opportunity to submit and review evidence throughout the investigation;

• Use trained Title IX personnel to objectively evaluate all relevant evidence without prejudgment of the facts at issue and free from conflicts of interest or bias for or against either party;

• Protect parties’ privacy by requiring a party’s written consent before using the party’s medical, psychological, or similar treatment records during a grievance process;

• Obtain the parties’ voluntary, written consent before using any kind of “informal resolution” process, such as mediation or restorative justice, and not use an informal process where an employee allegedly sexually harassed a student;

• Apply a presumption that the respondent is not responsible during the grievance process (often called a “presumption of innocence,”) so that the school bears the burden of proof and the standard of evidence is applied correctly;

• Use either the preponderance of the evidence standard or the clear and convincing evidence standard (and use the same standard for formal complaints against students as for formal complaints against employees);

• Ensure the decision-maker is not the same person as the investigator or the Title IX Coordinator (i.e., no “single investigator models”);

• For postsecondary institutions, hold a live hearing and allow cross-examination by party advisors (never by the parties personally); K-12 schools do not need to hold a hearing, but parties may submit written questions for the other parties and witnesses to answer;

• Protect all complainants from inappropriately being asked about prior sexual history (“rape shield” protections);

• Send both parties a written determination regarding responsibility explaining how and why the decision-maker reached conclusions;

• Effectively implement remedies for a complainant if a respondent is found responsible for sexual harassment;

• Offer both parties an equal opportunity to appeal;

• Protect any individual, including complainants, respondents, and witnesses, from retaliation for reporting sexual harassment or participating (or refusing to participate) in any Title IX grievance process;

• Make all materials used to train Title IX personnel publicly available on the school’s website or, if the school does not maintain a website, make these materials available upon request for inspection by members of the public; and

• Document and keep records of all sexual harassment reports and investigations.

SEX DISCRIMINATION REGULATIONS

Relating to sex discrimination generally, and not only to sexual harassment, the final regulations also:

• Affirm that the Department may require schools to take remedial action for discriminating on the basis of sex or otherwise violating the Department’s Title IX regulations;

• Expressly state that in response to any claim of sex discrimination under Title IX, schools are never required to deprive an individual of rights guaranteed under the U.S. Constitution;

• Account for the interplay of Title IX, Title VII, and FERPA, as well as the legal rights of parents or guardians to act on behalf of individuals with respect to exercising Title IX rights;

• Update the requirement for schools to designate and identify a Title IX Coordinator, disseminate their non-discrimination policy and the Title IX Coordinator’s contact information to ensure accessible channels for reporting sex discrimination (including sexual harassment), and notify students, employees, parents, and others of how the school will respond to reports and complaints of sex discrimination (including sexual harassment); and

• Clarify that an institution controlled by a religious organization is not required to submit a written statement to the Department to qualify for the Title IX religious exemption.

2. Rhode Island schools currently enjoined under the Moms for Liberty Suit:

• Gaudet Learning Academy - Middletown

• Hope Valley Elementary - Chariho

• Richmond Elementary - Chariho

• Alan Shaw Feinstein Middle School - Coventry

• Blackrock Elementary - Coventry

• Cranston High School West - Cranston

• Myron J Francis Elementary - East Providence

• Metcalf School - Exeter-West Greenwich

• Johnston High School - Johnston

• Wilbur and McMahon School - Little Compton

• Aquidick School - Middletown

• Forest Avenue School - Middletown

• Middletown High School - Middletown

• Narragansett High School - Narragansett

• North Kingston High - N. Kingstown

• Smithfield High - Smithfield

• Vincent Gallagher Middle - Smithfield

• Broad Rock Middle - South Kingstown

• Peace Dale School - South Kingstown

• South Kingstown High - South Kingstown

• Winman Middle - Warwick

• Greenbush Elementary - West Warwick

• John F. Deering Middle - West Warwick

• West Warwick High School - West Warwick