Students | Transgender Rights | Rhode Island

The information on this page is not legal advice. Some information on this page may be out-of-date and is currently undergoing revisions. Please contact GLAD Answers with questions or for updated information.

If you have questions about the impact of recent court and executive actions on your rights under Title IX, visit our Title IX Know Your Rights page to learn more.

What are my rights as an LGBTQ+ student?

All Rhode Island public school students have the right:

To be safe in school without being bullied,
To be protected from discrimination or harassment based on sexual orientation,
gender identity or HIV status.
To access information about LGBTQ subjects including educational websites,
To dress and present yourself in a manner consistent with your gender identity,
To free speech and expression. This means you have the right to express ideas
that may offend other people and you have the right to disagree with others, as
long as you express those ideas in a respectful way.

All Rhode Island public and many private school students have the right:

To form a Gay/Straight Alliance (GSA) that gets treated the same as every
other non-curricular group. This means equal funding, access to facilities, and
the ability to choose your group’s name.

Outside of school, you have the right:

To be protected from discrimination based on your actual or perceived sexual
orientation, HIV status, or gender identity in employment, housing, and public
accommodations (like restaurants or stores).
To give your own consent to get tested for HIV without your parents’
permission. For more specific information, see the “HIV/AIDS” Issue Area.
To report to the police anyone in or out of school who physically harms you,
threatens you, or vandalizes your property.

Are there any laws protecting transgender students in Rhode Island?

Yes. In 2011, Rhode Island passed the “Safe Schools Act” that applies to all school districts, charter schools, career, and technical schools, and approved private day or residential schools in Rhode Island.

It defines “bullying” as written, verbal or electronic expression or a physical act or gesture or any combination thereof directed at a student by one or more students that:

causes or places the student in reasonable fear of physical or emotional harm or
damage to the student’s property,
creates an intimidating, threatening, hostile, or abusive educational environment,
infringes on the rights of the student to participate in school activities, or
disrupts the educational process or orderly operation of the school (R.I. Gen. Laws § 16-21-33(a)(1)).

The law identifies characteristics that may be reasonably perceived to have motivated the act of “bullying” as including race, color, religion, ancestry, national origin, gender, disability, sexual orientation and gender identity and expression (R.I. Gen. Laws § 16-21-33(a)(1)(v)).

The law goes on to define “cyber-bullying” as bullying through the use of technology or electronic communication (R.I. Gen. Laws § 16-21-33(a)(2)).

The law charges the Rhode Island Department of Elementary and Secondary Education (RIDE) to prescribe a statewide bullying policy that must be adopted by all schools by June 30, 2012.

The policy must include:

procedures for students, staff, parents and others to report bullying,
procedures for promptly responding to and investigating reports of bullying or retaliation,
the range of disciplinary actions that may be taken,
a parental engagement strategy,
procedures for restoring a sense of safety for the student,
strategies for protecting a person who reports bullying or assists in the investigation,
procedures for promptly notifying the parents of both the perpetrator and victim,
procedures for providing appropriate counseling for the victim, perpetrator, and others affected by the bullying (R.I. Gen. Laws § 16-21-34)

Does Rhode Island have guidance schools should follow to protect transgender students?

Yes, in 2016, the Rhode Island Department of Education created guidance for schools to follow to protect the rights of transgender and gender non-conforming students.

The model policy includes the following:

Schools should respect a transgender student’s name and pronouns;
Schools should respect transgender students’ privacy regarding any
medical information, previous names, etc.;
The name and gender on a student’s records should conform to the
student’s gender identity;
Transgender students should be able to use the restroom, locker room, and
changing facility that accord with their gender identity;
In any sex-segregated activities (including athletics), transgender students
should be able to participate in a manner consistent with their gender
identity.

For more details, see: Guidance for Rhode Island Schools on Transgender and Gender Nonconforming Students

Are there other laws in Rhode Island that protect students from discrimination and harassment?

Yes. First, state law says that students, staff members and teachers all have the right to attend or work at a safe school, whether elementary, secondary or post-secondary (R.I. Gen. Laws § 16-2-17 and § 16-81-1). These provisions empower schools to suspend or expel disruptive students.

The Rhode Island Department of Education’s guidance and model policies on bullying, teen dating violence and sexual violence explicitly acknowledge the role that sexual orientation, sex, disability, appearance, and clothing may play in bullying, and make clear the applicability of provisions relating to dating and sexual violence to students regardless of sexual orientation (see Guidance on Developing Required Policies Against Bullying, available here; Guide to Preventing Bullying, Teen Dating Violence, and Sexual Violence, available here.

Are there other sources of protection for transgender students in Rhode Island?

Yes. A Board of Regents Policy adopted in 1997 and revised in 2010 provides in part as follows:

. . .all students, without exception, have the right to attend a school in which they feel safe and able to express their identity without fear. . . .certain students, because of their actual or perceived sexual orientation or gender identity/expression, have been subject to discrimination through abuse, harassment, bullying and/or exclusion from full participation in educational activities.

Therefore, it is the Policy of the Board of Regents that no student shall be excluded from any educational program or activity or discriminated against, bullied, or harassed in any public educational setting based upon actual or perceived sexual orientation or gender identity/expression. . . This policy shall include but is not limited to admissions, guidance services, co-curricular and extra-curricular activities.

Each local school district is urged to review programs, services and activities to assure that such offerings are conducted in a manner that is free of inadvertent or intentional bias based upon sexual orientation and/or gender identity/expression. Each local school district is required by law to address harassment and bullying based on sexual orientation and/or gender identity/expression through the development and enforcement of appropriate student and staff behavior and disciplinary policies. . .

The Board of Regents policy can be found here.

What kinds of conduct does the law and policy cover?

Technically, the policy covers exclusion from a public school or discrimination in taking advantage of school programs. A school may not be so bold as to say, “Don’t come here,” or “You can’t take track,” but if they fail to redress pervasive harassment against you at school or in a particular class or activity, they may have said so in effect. It does not provide any mechanism for court or administrative enforcement of the policy.

Are there other laws which may protect me from discrimination and harassment because of my sexual orientation?

Possibly. Federal law prohibits sex discrimination in public schools that receive federal funding. Depending on the situation, harassment of LGBTQ+ students may be actionable as sex discrimination (see, e.g., Ray v. Antioch Unified School District, 107 F. Supp. 2d 1165 (N.D. Cal. 2000) (stating that attacks based on a student’s perceived sexuality constitute sex discrimination)). Harassment of transgender students in particular is actionable. Several federal courts have held that the federal anti-discrimination law, Title IX, prohibits discrimination based on gender identity (see, e.g., G.G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016) mandate recalled and stayed, Gloucester Cnty. Sch. Bd. v. G.G., 136 S. Ct. 2442 (2016) (deferring to DOE’s interpretation that Title IX prohibits gender identity discrimination); Bd. of Educ. v. U.S. Dep’t of Educ., 2016 U.S. Dist. LEXIS 131474 (S.D. Ohio 2016) (same)).

Similarly, in 2016, the U.S. Departments of Education and Justice released a joint guidance taking the position that Title IX protects transgender students from discrimination based on gender identity; that Title IX obliges schools to respect a student’s gender identity and allow them to participate in sex-segregated activities and access sex-segregated facilities consistent with that identity; and that Title IX does not require a student to provide documentation or medical diagnosis before being treated consistently with their gender identity (see Dear Colleague Letter on Transgender Students, U.S. Department of Justice/U.S. Department of Education, available here.

Complaints can be made to your school’s Title IX coordinator, as well as to the federal Department of Education, Office of Civil Rights, in Boston. In cases where a school has reacted with deliberate indifference, monetary damages may be available. A student’s constitutional rights may be violated by some kinds of discrimination and harassment.

A student’s constitutional rights under both state and federal constitutions may be violated by some kinds of discrimination and harassment as well.

In addition, under state law, every post-secondary school is to establish a written policy concerning sexual harassment (R.I. Gen. Laws § 16-76-1 and § 16-76-2). Also, post-secondary schools that have received internal complaints of harassment based on sexual orientation or gender identity or expression are required to disclose to the complainant in a timely manner how the complaint was addressed and what actions, if any, were taken to resolve the matter (R.I. Gen. Laws § 16-76.1-1). Neither of these laws provides a mechanism for court enforcement.

Finally, state law prohibits hazing, subjecting both the perpetrators of hazing and school officials who knowingly permit hazing to criminal liability. Hazing is defined as “any conduct or method of initiation into any student organization, whether on public or private property, which willfully or recklessly endangers the physical or mental health of any student or other person” (R.I. Gen. Laws § 11-21-1 and § 11-21-2).

What can I do if I’m being discriminated against at school?

There are many ways to approach the issue. One is to ask for support from a friend, teacher or counselor and talk to the people who are bothering you. That is not an option, however, if you don’t feel safe doing so.

Take a look at your school’s policies and notify whoever is supposed to be notified — usually a vice principal or Title IX coordinator. You should document any incidents of harassment or discrimination in writing. Once you meet with the right officials, make a note of what you told them and on what date and ask when they will be getting back to you with a response. If they don’t help you or don’t follow through, you may wish to write to the principal and superintendent and ask for them to end the discrimination.

If all of these steps fail, you may also wish to consider legal action. Contact GLAD Answers for attorney referrals.

What other rights do I have as a public school student?

In addition to the right to attend school in safety and free from discrimination and harassment based on your sexual orientation or gender identity or expression:

LGBTQ+ youth must have equal access to and be allowed to participate on equal terms in all school programs, including extracurricular activities.
Schools must respect the gender identity of transgender students, including using appropriate names and pronouns, and allowing transgender students to wear clothing consistent with their gender identity.
LGBTQ+ youth have the right to be open about their sexual orientation and gender identity and expression.
Students have the right to form extracurricular groups, such as Gay-Straight Alliances, on the same terms and with the same privileges and resources as all other extracurricular groups.
LGBTQ+ students have the right to express themselves on issues relating to sexual orientation or gender identity and expression.
Students have the right to learn about LGBTQ+ issues and have access to information and resources, including educational websites, about LGBTQ+ issues and people, regardless of objecting school officials or parents.

For additional information, see GLAD’s publication, Rights of LGBTQ Youth in RI.

GLAD has a brochure called, Rhode Island LGBTQ Student Rights Brochure.

We would be glad to mail you a printed version of this brochure. Just contact GLAD Answers by email or live chat at GLADAnswers.org or by phone at 800-455-GLAD (4523).

Testing & Privacy | HIV/AIDS | Rhode Island

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Questions and answers on HIV/AIDS Testing and Privacy. Also visit our pages on HIV/AIDS Discrimination and Other HIV-Related Questions.

Does Rhode Island have a law governing informed consent for HIV testing?

Yes, while Rhode Island recently eliminated the requirement of written informed consent, Rhode Island prohibits the administration of any HIV test without: (1) providing the person with oral or written information and an opportunity for discussion with a health care provider, (2) informing the person of the right to decline testing, and (3) obtaining the oral consent (prior to the passage of House Bill 5415 Substitute B in November 2009, Rhode Island had required written consent for HIV testing) of the person (RI ST 23-6.3-3(h)(2)). The consent and exchange of information must be documented in the person’s medical record (Id). (Note: A distinction is made between confidential and anonymous testing. In confidential testing the health care provider may use written consent as an option, but in anonymous testing only oral consent is allowed) (46 RI ST 23-6.3-3 (k)).

What information must the person receive?

Under RI ST 23-6.3-3(h)(4), the information given to the patient must, at a minimum, include the following:

An explanation of HIV infection;
A description of interventions to reduce HIV transmission;
What a positive and negative test result mean
The possibility that a recent infection may not be detected;
An opportunity to ask questions and to decline being tested.

Physicians and other health care providers are required to offer HIV testing to any person “with a suspected sexually transmitted disease” (RI ST 23-11-17).

Can a physician test a minor for HIV without consent of a parent or guardian?

Yes, in Rhode Island, persons under 18 may give legal consent for testing, examination, and/or treatment for any reportable communicable disease, which under Rhode Island Department of Health guidelines includes HIV and AIDS (RI ST 23-8-1.1).

Are there unique requirements for the administration of HIV tests for pregnant people and newborns?

Rhode Island law provides that a physician or health care provider shall include HIV testing among the routine prenatal tests for all pregnant people unless testing is declined (RI ST 23-6.3-3 (i) (1)). In order to be tested for HIV, pregnant people must provide oral consent which must be documented in the medical record. If a pregnant person has not been tested for HIV, they will be offered testing again at the time of labor and/or delivery (RI ST 23-6.3-3 (i) (2)). If the pregnant person refuses all these offers for testing and if the person also refuses to consent to the testing of the newborn, then the newborn can be tested without the person’s consent (RI ST 23-6.3-3 (i) (3)). If the newborn’s HIV test is positive, then the person who gave birth will be told that they are also infected with HIV.

Are there HIV testing laws regarding life insurance?

A person applying for a life insurance policy can be required to undergo HIV testing provided written consent is obtained, and the results of the test can be used by the insurance company for making decisions about whether to issue a life insurance policy. However, once someone has a life insurance policy, HIV status cannot be used to cancel or refuse to renew the policy (RI ST 23-6.3-16).

Are there circumstances under which Rhode Island law permits HIV testing, even against a person’s wishes?

Yes, under certain circumstances, enumerated in RI ST 23-6.3-4, Rhode Island law permits, but does not require, a physician or other health care provider to perform an HIV test without the consent of the subject.

A) Youth

Rhode Island law permits the involuntary HIV testing of:

Any person under one year of age;
Any person between one and thirteen years of age who “appears to be symptomatic for HIV”;
Any person under the age of eighteen who is “under the care and authority of the department of children, youth, and families, and the director of that department certifies that an HIV test is necessary to secure health or human services for that individual.”

B) Occupational Exposure in a Health Care Facility

Rhode Island law permits involuntary testing in the event of an exposure to a health care provider in a licensed health care facility or private physician’s office, if:

a sample of the patient’s blood is available and an occupational health representative or physician, nurse practitioner, physician assistant, or nurse-midwife not directly involved in the exposure determines that a health care worker had a significant exposure to the blood or bodily fluids of a patient; and
the patient refuses to grant consent for an HIV test. The health care worker must have a baseline HIV test within seventy-two hours of exposure before the patient’s blood can be tested.

If a sample of the patient’s blood is not available and the patient refuses to consent to an HIV test, the health care worker may petition the Superior Court for an order mandating an HIV test.

C) Emergency

An involuntary HIV test is permitted “in an emergency, where due to a grave medical or psychiatric condition, it is impossible to obtain consent from either the patient, or the patient’s parent, guardian, or agent.” This exception appears by its language to be limited to circumstances in which an HIV test is deemed necessary for the patient’s health.

Does Rhode Island law require mandatory testing under any circumstances?

Yes, Rhode Island law requires mandatory HIV testing under certain circumstances.

A) Rhode Island law requires an HIV test for any person convicted of:

Possession of any controlled substance that has been administered with a hypodermic needle or syringe (RI ST 21-28-4.20);
“Violation of any provisions” of the commercial sex activity statute (RI ST 11-34.1-12); and
Committing “any sexual offense involving sexual penetration,” where “the victim, immediate family members of the victim, or legal guardian of the victim” has petitioned the court to order testing (RI ST 11-37-17).

B) Rhode Island law requires mandatory testing of “[e]very person who is committed to the adult correctional institutions to answer for any criminal offense, after conviction,” as well as “periodic testing for HIV, including testing at the time of release and when deemed appropriate by a physician” (RI ST 42-56-37 & RI ST 23-6.3-4(a)(11)).

C) Rhode Island law requires HIV testing of donated or collected sperm (RI ST 23-1-38).

What laws in Rhode Island protect the privacy of medical information, such as HIV?

In Rhode Island, there are multiple laws that protect the privacy of medical information such as HIV. For example, under the HIV-Specific Privacy Law, it is “unlawful for any person to disclose to a third party the results of an individual’s HIV test without the prior written consent of that individual” (RI ST 23-6.3-4 (b) (emphasis added)), except for certain exemptions that are listed below. Other laws that protect privacy of medical information in various circumstances are discussed below.

What law protects the confidentiality of HIV test results that are recorded in patient files?

Rhode Island law also has a specific provision for protecting records of HIV test results, which states that: “Providers of health care, public health officials, and any other person who maintains records containing information on HIV test results of individuals are responsible for maintaining full confidentiality of this data and shall take appropriate steps for their protection” (RI ST 23-6.3-8(a)).

These steps include:

Keeping records secure at all times and establishing adequate confidentiality safeguards for any such records electronically stored;
Establishing and enforcing reasonable rules limiting access to these records; and
Training persons who handle records in security objectives and techniques (RI ST 23-6.3-8).

Are there additional statutes that can protect the confidentially of a person’s HIV positive test result?

Yes, Rhode Island law expressly prohibits the nonconsensual disclosure of confidential health care information, which is described as “all information relating to a patient’s health care history, diagnosis, condition, treatment, or evaluation obtained from a health care provider who has treated the patient.” This law is referred to as the Confidentiality of Health Care Communications and Information Act (RI ST 5-37.3-3 (3) (i); RI ST 5-37.3-4 (a)).

Under this act, “confidential health care information” cannot be released or transferred without a written consent form containing clear information regarding the proposed uses of the information and the extent of information to be released (RI ST 5-37.3-4 (d)).

Are there circumstances under which Rhode Island law permits the disclosure of HIV status without written informed consent?

Yes, Rhode Island law provides for disclosure of HIV status under specifically prescribed circumstances (RI ST 23-6.3-7).

(A) A physician may without the consent of the patient:

“[E]nter HIV test results in the patient’s medical record.”
Release confidential medical information, including a patient’s HIV status, pursuant to the exceptions listed in the Confidentiality of Health Care Communications and Information Act (RI ST 5-37.3-4 (b)) and the Mental Health Law (RI ST 40.1-5-26 (b)).
Notify the director of the department of children, youth, and families (DCYF) the results of an involuntary test (RI ST 23-6.3-7 (a) (3)).
“Inform third parties with whom an HIV-infected patient is in close and continuous exposure-related contact, including but not limited to a spouse and/or partner, if the nature of the contact, in the physician’s opinion, poses a clear and present danger of HIV transmission to the third party; and if the physician has reason to believe that the patient, despite the physician’s strong encouragement, has not and will not inform the third party that they may have been exposed to HIV” (RI ST 23-6.3-10 (b)).

(B) Under RI ST 23-5-9, when a person dies with certain enumerated health conditions, including AIDS, a physician or family member (if the person did not die in a health care facility) must notify the person picking up the body that the person died of AIDS. The person picking up the dead body must convey that notification to any embalmer or funeral director (RI ST 23-5-9).

(C) If a first responder (e.g., firefighter, police officer, EMT) treating or transporting a person to a licensed facility is exposed to the blood of a person subsequently diagnosed with an infectious disease, and the exposure is sufficient to create a risk of transmission, the facility shall issue notification of exposure (RI ST 23-28.36-3).

How can violations of the HIV privacy statutes be addressed?

Under Rhode Island law, a civil suit can be filed for damages (RI ST 5-37.3-9; (RI ST 23-6.3-8 (e)). An intentional and knowing violation of these statutes may also result in criminal prosecution (RI ST 5-37.3-9).

Does a person with HIV have a Constitutional right to privacy?

Many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status. Courts have based this right on the Due Process Clause of the U.S. Constitution, which creates a privacy interest in avoiding disclosure of certain types of personal information.

The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor — e.g. police, prison officials, doctors at a state hospital.

To determine whether there has been a violation of this right to privacy, courts balance the nature of the intrusion into a person’s privacy against the weight to be given to the government’s legitimate reasons for a policy or practice that results in disclosure.

Does Rhode Island have reporting laws that require positive HIV test or AIDS to be reported to the Rhode Island Department of Health?

All states require that numerous health conditions be reported to state health officials in order to assess trends in the epidemiology of diseases and develop effective prevention strategies. Rhode Island law requires that physicians, health care providers, health care facilities and prisons report the names of persons diagnosed with HIV or AIDS (except in the case of anonymous testing) to the Department of Health (RI ST 23-6.3-14), including those perinatally exposed to HIV as indicated by two positive PCR tests (RI ST 23-6.3-14 (4)).

All information in connection with HIV or AIDS cases is subject to strong confidentiality provisions under Rhode Island law.

Does Rhode Island have a law that criminalizes failure to disclose HIV status?

No, but in 2015 a bill was introduced in the Rhode Island Legislature, H 5245, An Act Related to Criminal Offenses – Criminal Transmission of HIV, that would have criminalized failure to disclose HIV status. GLAD testified against the bill, and it did not pass.

For more information, see: GLAD Testifies in Opposition to Proposed HIV Criminalization Legislation in Rhode Island

Other HIV Laws | Rhode Island

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Other questions and answers on HIV-Related Laws. Also see our pages on HIV/AIDS Discrimination and Testing and Privacy.

What does it mean that an employer may have to provide a “reasonable accommodation” for an employee with a disability

Persons with disabilities, such as HIV/AIDS, may experience health-related problems that make it difficult to meet some job requirements or duties. For example, a person may be exhausted or fatigued and find it difficult to work a full-time schedule.

In certain circumstances, the employer has an obligation to modify or adjust job requirements or workplace policies in order to enable a person with a disability, such as HIV or AIDS, to perform the job duties. This is known as a “reasonable accommodation.”

Examples of reasonable accommodations include:

Modifying or changing job tasks or responsibilities;
Establishing a part-time or modified work schedule;
Permitting time off during regular work hours for medical appointments;
Reassigning an employee to a vacant job; or
Making modifications to the physical layout of a job site or acquiring devices such as a telephone amplifier to allow, for example, a person with a hearing impairment to do the job.

There is no fixed set of accommodations that an employee may request. The nature of a requested accommodation will depend on the particular needs of an individual employee’s circumstances.

How may a person obtain a reasonable accommodation?

It is, with rare exception, the employee’s responsibility to initiate the request for an accommodation. In addition, an employer may request that an employee provide some information about the nature of the disability. Employees with concerns about disclosing HIV/AIDS status to a supervisor should contact the AIDS Law Project’s Legal InfoLine in order to strategize about ways to address any such requests.

Does an employer have to grant a request for a reasonable accommodation?

An employer is not obligated to grant each and every request for an accommodation. An employer does not have to grant a reasonable accommodation that will create an “undue burden” (i.e., significant difficulty or expense for the employer’s operation). In addition, the employer does not have to provide a reasonable accommodation if the employee cannot perform the job function even with the reasonable accommodation.

When is a “reasonable accommodation” for an employee an “undue burden” for an employer?

In determining whether a requested accommodation creates an undue burden or hardship for an employer, courts examine a number of factors, which include:

The employer’s size, budget, and financial constraints;
The costs of implementing the requested accommodation; and
How the accommodation affects or disrupts the employer’s business.

Again, each situation is examined on a case-by-case basis.

An employer only has an obligation to grant the reasonable accommodation if, as a result of the accommodation, the employee is then qualified to perform the essential job duties. An employer does not have to hire or retain an employee who cannot perform the essential functions of the job, even with a reasonable accommodation.

Does Rhode Island law provide for access to clean needles for injection drug users to prevent HIV transmission?

Yes, under Rhode Island law, a pharmacy may sell hypodermic needles and syringes. Possession of a hypodermic needle is no longer illegal in Rhode Island (RI ST 21-28-4.04).

Rhode Island law also mandates that the Department of Health maintain a program of needle and syringe exchange for persons 18 and older in order to prevent the transmission of HIV among intravenous drug users. Any site used in the program shall make available educational materials, HIV counseling and testing, and referral services regarding HIV transmission and drug abuse prevention and treatment (RI ST 23-11-19).

Public Accommodations | Discrimination | Rhode Island

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What is a “place of public accommodation”?

Places of public accommodation are places that are open to the public and include, but are not limited to, stores, restaurants, bars, public transportation, garages, hotels, hospitals, clinics, rest rooms, barber shops, salons, amusement parks, gyms, golf courses, swimming pools, theaters, fairs, libraries, public housing projects, and so on (R.I. Gen. Laws § 11-24-3).

Does Rhode Island have an anti-discrimination law protecting LGBTQ+ individuals from discrimination in places of public accommodation?

Yes. Since 1995, Rhode Island has had a comprehensive anti-discrimination law concerning sexual orientation in employment, housing, credit and public accommodations and has included sexual orientation under its equal opportunity and affirmative action law. In 2001, Rhode Island added gender identity or expression to each of these statutory protections (R.I. Gen. Laws, ch. 11-24 (public accommodations); ch. 28-5 (employment); ch. 28-5.1 (equal opportunity and affirmative action); and ch. 34-37 (housing and credit)).

Does it also protect people perceived to be LGBTQ+ in places of public accommodation?

Yes. The anti-discrimination laws define “sexual orientation” as “having or being perceived as having an orientation for heterosexuality, bisexuality or homosexuality and define “gender identity or expression” as including a “person’s actual or perceived gender” (R.I. Gen. Laws §§ 28-5-6(11)(gender identity or expression) and (16)(sexual orientation) (employment); 34-37-3(9)(gender identity or expression) and (15)(sexual orientation) (housing and credit); and 11-24-2.1(h)(sexual orientation) and (i)(gender identity or expression) (public accommodations)). Thus, if a person is fired because they are perceived to be gay (whether they are or not), they may still invoke the protection of the anti-discrimination law to challenge the firing.

What does the law say about discrimination in places of public accommodation?

Such places shall not “directly or indirectly refuse, withhold from, or deny to any … person any of the accommodations, advantages, facilities or privileges of that public place,” and shall not advertise or state that their accommodations are so limited, because of a person’s sexual orientation or gender identity or expression (or other protected characteristics) (R.I. Gen. Laws § 11-24-2).

How do I file a claim of discrimination?

You may file a charge of discrimination in person or in writing at the Rhode Island Commission For Human Rights (RICHR), 180 Westminster Street, 3rd floor, Providence, RI 02903. If you plan to go in person, you can call in advance to set up an appointment and find out what you need to bring. Their phone number is (401) 222-2661 (voice) and 401-222-2664 (TTY). The fax number is (401) 222-2616.

The charge must be under oath and must state the name and address of the individual making the complaint as well as the name and address of the entity against which they are complaining (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.

Do I need a lawyer?

No, but GLAD strongly encourages people to find lawyers to represent them throughout the process. Although the process is designed to allow people to represent themselves, there are many legal rules governing the RICHR process, and employers and other defendants are almost certain to have legal representation.

What are the deadlines for filing a complaint of discrimination?

A complaint must generally be filed with the RICHR within one year of the discriminatory act or acts (R.I. Gen. Laws §§ 28-5-17(a); 34-37-5 (b); see Rules and Regulations of the RICHR Rule 4.05). There are very few exceptions for lateness, and GLAD encourages people to move promptly in filing claims.

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am a lesbian and Latina?

Yes, you can file several claims if you have suffered discriminatory treatment based on more than one personal characteristic. The state antidiscrimination laws for employment and public accommodations forbid taking an action against someone because of sexual orientation or gender identity or expression as well as race, color, religion, sex (including pregnancy and sexual harassment), disability, age, or country of ancestral origin (R.I. Gen. Laws § 11-24-2 and § 28-5-7 (1)(i)).

What happens after a charge is filed with the RICHR?

The RICHR may initiate a preliminary investigation in an employment, credit, housing, or public accommodations case. If the RICHR determines it is probable that a defendant is or was engaged in unlawful practices, then the RICHR shall attempt to eliminate the unlawful practices by “informal methods of conference, conciliation and persuasion” (See, e.g., R.I. Gen. Laws, § 28-5-17(a) and § 34-37-5(b); see also Rules and Regulations of the RICHR Rule 5.02).

If conciliation is unsuccessful, or at any time when the circumstances so warrant (including before investigation in egregious cases), the RICHR may serve a complaint and notice of hearing on the respondent. This process involves a trial type hearing but is not as formal as an actual trial in court. This process must be commenced within 2 years of when the complainant first filed their charge with the RICHR (R.I. Gen. Laws §§ 28-5-18; 34-37-5).

After the RICHR rules (either because it has found no probable cause to proceed, or because it has ruled on the merits after a hearing), any complainant, intervener, or respondent claiming to be aggrieved by a final order of the commission may obtain judicial review in Superior Court (R.I. Gen. Laws §§ 28-5-28; 34-37-6).

There are a few times when the case can be taken from the RICHR and filed in court. For example:

Once the complaint has been pending at the RICHR for at least 120 days, (but less than 2 years and before any conciliation agreement has been made), the complainant may request permission to remove the case from the RICHR. That request should be granted, and the complainant then has 90 days from when they receive a “right to sue” letter to file the case in Superior Court (R.I. Gen. Laws § 28-5-24.1(a) and § 34-37-5(l); see also Rules and Regulations of the RICHR Rule 17.01).
After the RICHR finds probable cause to credit the allegations in a complaint, either party may elect to terminate the proceedings at the RICHR and file in court as long as they do so within the strict timelines set by the RICHR rules (See R.I. Gen. Laws, § 28-5-24.1(c) and § 34-37-5(n)).
In addition, in housing cases, the RICHR may go to court to seek an order forbidding the respondent from selling, renting or otherwise disposing of the property at issue while the case is pending (R.I. Gen. Laws § 34-37-5(m)).

If probable cause is found lacking, the case is over unless you seek judicial review of the “lack of probable cause” finding. There are special rules and time constraints on this process which must be observed strictly (R.I. Gen. Laws § 28-5-28 and § 34-37-6).

What are the legal remedies the RICHR may award for discrimination if an individual wins their case there?

In all cases alleging different treatment discrimination, the remedies for a successful complainant in an intentional discrimination case may include compensatory damages (including for emotional distress), attorney’s fees (including expert fees and other litigation expenses), cease and desist orders, and any other action which will effectuate the purpose of the anti-discrimination laws (R.I. Gen. Laws § 28-5-24 (b)(employment); § 34-37-5(h) (housing cases); § 11-24-4 (public accommodations cases); Rules and Regulations of the RICHR Rule 12.02).

When complainants prevail in court, the remedies named above may be awarded, as well as punitive damages when the challenged conduct is shown to be motivated by malice or ill will, or when the action involves reckless or callous indifference to the statutorily protected rights of others (R.I. Gen. Laws § 28-5-29.1 (employment); § 11-24-4 (public accommodations); § 34-37-5 (o) (3) (housing)). The only exception is that punitive damages may not be awarded against the State.

Can I also file a discrimination complaint with a federal agency?

Yes, in many cases. Since federal law and state law contain overlapping provisions, someone bringing a discrimination claim may sometimes pursue protections under both. For example, the federal employment non-discrimination law, called Title VII, applies to employers with at least 15 employees and forbids employment discrimination based on race, sex, age, religion, and disability (which includes HIV status).

While Title VII does not expressly forbid discrimination based on sexual orientation or gender identity, a growing number of courts and government agencies have taken the position that its proscription against sex discrimination encompasses both (See, e.g., United States & Dr. Rachel Tudor v. Southeastern Oklahoma State University, 2015 U.S. Dist. LEXIS 89547 (2015) (denying motion to dismiss professor’s Title VII complaint that school had subjected her to a hostile work environment based on her gender identity)). In two separate decisions in 2012 and 2016, the EEOC itself concluded that sexual orientation discrimination, gender identity discrimination, and sex discrimination are one and the same, since the latter two are based on preferences, assumptions, expectations, stereotypes, and norms associated with masculinity and femininity (See Macy v. Holder, EEOC Appeal No. 0120120821 (Apr. 20, 2012); Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015)). Although the EEOC’s decisions are not binding on the courts, many have used similar reasoning in affirming Title VII’s applicability to discrimination based on gender identity and sexual orientation (See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding that Title VII prohibits discrimination against transgender people based on gender stereotyping); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015) (holding “sexual orientation discrimination is a form of sex or gender discrimination”)).

Should I file a complaint with a federal agency?

GLAD recommends that, where there may be overlapping state and federal jurisdiction, you explore filing with the state first but keep in mind the possibility of pursuing a federal claim as well. Federal complaints must be filed within 180 days of the discriminatory act with the Equal Employment Opportunity Commission (EEOC). However, if you initially institute your complaint with the RICHR and indicate that you wish to have the complaint cross-filed with the EEOC, then the time limit is extended to the earlier of 300 days or 30 days after the RICHR has terminated the case (42 United States Code § 2000e-5(e)(1)). (People who work for federal agencies are beyond the scope of this publication.)

If you have a sexual orientation or gender identity or expression complaint, you should check off “sex” as well as “sexual orientation” or “gender identity” as the bases for your claim and request that the RICHR cross-file your complaint with the EEOC.

Are there other options for filing a complaint for discrimination?

Possibly yes, depending on the facts of your particular situation.

State or Federal Court: After filing with the RICHR, the EEOC, or both, you may decide to remove your discrimination case from those agencies and file the case in court. There are rules about when and how this must be done, as discussed above. In addition, you may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example, if you are fired in violation of a contract; fired without the progressive discipline promised in a handbook; or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court. Similarly, if your claim involves a violation of constitutional rights, such as a teacher or governmental employee who believes their free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do to prepare myself before filing a complaint of discrimination?

Contact GLAD Answers at www.GLADAnswers.org or by phone at 800-455-4523 (GLAD) any weekday to discuss options.

Some people prefer to meet with an attorney to evaluate the strength of their claims before filing a case. It is always helpful to bring the attorney an outline of what happened on the job that you are complaining about, organized by date and with an explanation of who the various players are (and how to get in touch with them); what happened; who said what; and who else was present.

Marriage | Rhode Island

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Can same-sex couples legally marry in Rhode Island?

Yes, after many years of failed attempts and nearly two years after the passage of a civil unions bill in July 2011, on May 2, 2013, the Rhode Island General Assembly approved and Governor Lincoln Chafee signed a marriage equality law, An Act Relating to Domestic Relations-Persons Eligible to Marry (see http://webserver.rilin.state.ri.us/BillText/BillText13/HouseText13/H5015B.pdf), that extended the right to marry to same-sex couples effective August 1, 2013.

That legislation also ended the ability of same-sex couples to enter into civil unions in Rhode Island on that same date and allows any couples already in a Rhode Island civil union to keep their civil unions or merge their civil unions into marriage (R.I. Gen. Laws § 15-3.1-12).

Two years later, in Obergefell v. Hodges (135 S.Ct. 2584 (2015)), the U.S. Supreme Court made marriage equality a reality nationwide when it held that the U.S. Constitution guarantees same-sex couples the right to marry. GLAD’s own Mary Bonauto represented the plaintiffs during oral arguments. Post-Obergefell, all 50 states are required to issue marriage licenses to same-sex couples, and all states must respect the marriages of same-sex couples performed in other jurisdictions.

Can Rhode Island same-sex couples get married anywhere else?

Yes. Thanks to Obergefell v. Hodges, all states are required to issue marriage licenses to same-sex couples.

How does one get married in Rhode Island?

The process for getting married in Rhode Island requires the following basic steps:

If at least one party is a resident of Rhode Island, the couple must obtain a license from the clerk in the city or town where either party lives. If neither party is a resident of Rhode Island, the couple must obtain a license from the clerk of the city or town where the proposed marriage is to take place (R.I.Gen. Laws § 15-2-1).

The couple must have the marriage solemnized (i.e. have a ceremony which is witnessed by at least two people in addition to the officiant) within 3 months of obtaining the license (R.I. Gen. Laws § 15-2-8 and § 15-3-8).
Once the ceremony has been performed, the person who performed it has 72 hours to return the license to the city or town where it was issued (R.I. Gen. Laws § 15-3-12).
The clerk will then file the original, and the couple can receive an official certificate of their marriage.

For more detailed information see the GLAD Publication, Rhode Island Marriage Guide For Same-Sex Couples.

How does religion affect getting married in Rhode Island?

The Act also reiterates the right of any religion to set any requirements it chooses on who may marry within that religion and the right of any clergy person, rabbi or similar official to refuse to marry any couple. It also provides further exemptions for religiously-controlled organizations and fraternal benefit organizations.

For some additional information see the GLAD Publication, Rhode Island Marriage Guide For Same-Sex Couples.

How will the marriage of a same-sex couple be respected?

Rhode Island will respect the legal marriages of same-sex couples regardless of where the marriage was performed, just as all states will now respect the marriage of a same-sex couple married in Rhode Island.

What steps can a couple take to legally safeguard their relationship in Rhode Island?

There are various legal documents that can protect a couple’s relationship, regardless of whether the couple has no formal legal relationship or is already in a marriage.

Relationship Agreement or Contract: Cohabitation agreements regarding property and finances are a good way for couples to sort out their affairs in writing before a separation. As long as the contract is not about sexual services, it has a good chance of being upheld as valid as long as it complies with the requisites for a valid contract. Bear in mind that, as in any state, specific provisions concerning children may or may not be enforced according to their terms because it is always in the court’s power to determine the best interests of children. (See discussion below concerning parenting agreements.)
Power of Attorney: Any competent person may appoint another person (such as one’s partner) as their “attorney-in-fact” for financial matters in the event that one becomes incapacitated or disabled. The law provides a “short form” which allows you to mark the kinds of transactions you wish your partner (your “attorney-in-fact”) to perform. These include: (a) real estate transactions; (b) chattel and goods transactions; (c) bond, share and commodity transactions; (d) banking transactions; (e) business operating transactions; (f) insurance transactions; (g) claims and litigations; (h) benefits from military service; (i) records, reports and statements; and (j) all other matters. If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. This power of attorney does not include health care decisions.
Health Care Power of Attorney: Since medical care providers look to next of kin to make health care decisions for an incapacitated individual, an unmarried person must appoint a health care agent if he or she wishes another person to make those decisions instead of the family member. Under R.I. Gen. Laws § 23-4.10-2, a person may appoint a health care agent to make decisions — whether for a limited amount of time or indefinitely. The attorney-in-fact may then make decisions for you — either immediately or upon your becoming incompetent to make decisions. Even after you give another person a Health Care Power of Attorney, you may make decisions for yourself if that is what you wish and as long as you are competent to do so. The statute provides a “statutory form” that you can use for your Health Care Power of Attorney.

The power of attorney can specify the authority of the agent to make decisions on your behalf, and also state what kinds of treatments you do not desire, including treatments which might keep you alive. You can also specify your wishes regarding organ and tissue gifts after death.

The power of attorney must be signed either by one notary public or by two witnesses. None of these signers may be your designated or alternate agent; a health care provider or a health care provider employee; or the operator of a community care facility or an employee of such a facility. The power of attorney can be revoked at any time by creating a new power of attorney or by a clear expression of revocation. People often give a copy to their doctors and sometimes to family members.

Living Will: Within a durable power of attorney for health care, language may be inserted stating what the individual wishes regarding termination of life support, preferences for types of medical care, or limits on the agent’s authority.
Will: Without a will, a deceased unmarried person’s property passes to: (1) their children; (2) their family; (3) if next of kin cannot be located, to the state. If you wish to provide for others, such as your partner, a will is essential. Even if you have few possessions, you can name in the will who will administer your estate. If you have children, you can nominate their future guardian in a will.
Funeral Planning Documents: Rhode Island permits a person to name another as his or her “funeral planning agent” with sole responsibility and authority to make any and all arrangements and decisions about funeral services, and burial or disposition of remains, including cremation. The document must be signed by the individual and should be notarized. To prevent any disputes with family members, it is preferable to give the instructions to the person you want to take care of matters, as well as to family members.

Even absent these documents, a surviving same-sex partner who can prove that their relationship satisfied the state criteria for being “domestic partners” (read the “Domestic Partnership” section above) can also assume control of the funeral and burial process.

However, this requires proving certain facts about your relationship at a time of tragedy and does not control if someone else has been appointed as the “funeral planning agent.” The best way to ensure that your partner is able to make these decisions is to name your partner your “funeral planning agent.”

In 2018, Rhode Island passed a law that requires the death certificate to reflect the gender identity of the decedent as reported by the next of kin, or the best qualified person, or by a document memorializing the decedent’s wishes. To ensure that this happens, it is best to give the person you appoint as your “funeral planning agent” a notarized document that attests to your gender identity.

Does a person need an attorney to get these documents?

GLAD recommends working with an attorney on these documents.

Although forms are available, the form may not be suited to your individual needs and wishes. Moreover, an attorney may be able to better help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or an appointment of a health care agent with very specific instructions. In addition, an attorney may help to navigate the legal uncertainties flowing from the areas of overlap between these documents. GLAD Answers can provide referrals to attorneys who are members of GLAD’s Lawyer Referral Service.

Will other states and the federal government respect my marriage?

Yes. The Obergefell v. Hodges decision guarantees that all states and the federal government must treat same-sex married couples in an identical way to different-sex married couples. That means that all the protections, rights and obligations that states and the federal government provide to different-sex married couples must also be provided to same-sex married couples.

Can I obtain Social Security survivor benefits if my spouse dies?

Yes, because as stated above, same-sex married couples are entitled to all the benefits provided to different-sex married couples.

However, until the Obergefell v. Hodges decision on June 26, 2015, many same-sex couples lived in states where unconstitutional marriage laws prevented same-sex couples from getting married. So when their spouse passed away, they were not able to meet the Social Security survivor benefit condition of having been married for 9 months.

To correct this unfairness, Lambda Legal filed two lawsuits, Ely v. Saul and Thornton v. Commissioner of Social Security and was successful in obtaining a way for same-sex couples to file for Social Security survivor benefits who either never married (Ely v. Saul) or were finally able to marry but were married less than 9 months when their spouse passed away (Thornton v. Commissioner of Social Security).

These two rulings allow same-sex couples, who were excluded from marriage because of discriminatory state laws and consequently were not eligible to apply for Social Security survivor benefits, to submit an application. However, the success of that application rests on providing enough documentation to prove to Social Security that the only reason they did not meet the 9 month requirement was because of the discriminatory state laws.

The following link gives more detailed information and has FAQs for each lawsuit and lists some of the ways you might be able to provide the documentation needed to qualify for the survivor benefit: Information for Surviving Same-Sex Partners and Spouses Previously Excluded from Social Security Survivor’s Benefits Because of Unconstitutional State Marriage Laws | Lambda Legal.

What happens if we need to end our marriage?

After Obergefell v. Hodges, same-sex spouses everywhere should be able to dissolve their marriages on the same terms as different-sex spouses. Rhode Island applies its divorce statutes to same-sex couples.

However, spouses should note that when Rhode Island courts divide marital property and award alimony, one of the factors a judge considers is the length of the marriage (R.I. Gen. Laws §15-5-16(b) (alimony) and § 15-5-16.1(a) (division of property)). The judge cannot include as marital property, property held in the name of one spouse if held by that spouse prior to marriage (R.I. Gen. Laws §15-5-16.1(b)). Unfortunately for spouses whose partnership predated marriage equality, the length of the marriage may not accurately reflect the true length of the relationship, resulting in an unbalanced division of assets.

If you are going through divorce proceedings in Rhode Island and believe your division of assets may be unfairly affected by length of marriage, contact GLAD Answers.

What standards should same-sex couples with children who are breaking up maintain?

Same-sex couples with children who are breaking up should:

Support the rights of LGBTQ+ parents;
Honor existing relationships regardless of legal labels;
Honor the children’s existing parental relationships after the break-up;
Maintain continuity for the children;
Seek a voluntary resolution;
Remember that breaking up is hard to do;
Investigate allegations of abuse;
Not allow the absence of agreements or legal relationships to determine outcomes;
Treat litigation as a last resort; and
Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.

For more detailed information about these standards see the publication Protecting Families: Standards for LGBTQ+ Families at: Protecting Families: Standards for LGBTQ+ Families.

Navigating Police Interactions | Rhode Island

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I am often told by police to “move along” from public areas. Is that legal?

Not necessarily. If the area is public and not posted as having particular hours, you generally have a right to be there as long as you are not engaged in any unlawful activity. Public places belong to everyone, and are often also places of public accommodation to which anti-discrimination rules apply. Even if police officers want to deter crime, or suspect some kind of unlawful intent, they have no general right to request people to move from one place to another unless there is unlawful conduct (Kent v. Dulles, 357 U.S. 116, 126 (1958)).

What are the general rules about interaction with police?

The presence of individuals who appear to be LGBT — whether because such individuals are displaying symbols such as a rainbow flag or pink triangle or for any other reason — should not trigger any special scrutiny by a police officer, other than a concern for the safety and well-being of those persons that the officer would have for any other person.

Police may, of course, approach a person, and make inquiries. If an officer has “reasonable suspicion” that a crime has been committed or is about to be committed, he or she may briefly detain an individual, or stop the person for purposes of investigation (State v. Abdullah, 730 A.2d 1074 (R.I. 1997); State v. Bennett, 430 A.2d 424 (R.I. 1981); Terry v. Ohio, 392 U.S. 1, 16 (1968). An arrest can only occur upon “probable cause” that a crime has been committed. R.I. Const., Art. I, § 6).

Police sometimes detain a person whom they believe has committed or is about to commit a crime. If the person is not charged with a crime, he or she must be released after two hours (see R.I. Gen. Laws § 12-7-1).

What can I do if I believe I have been improperly treated by the police?

Complaints may be made to any individual police department for matters concerning its officers. Many departments have their own Internal Affairs Divisions which receive and investigate civilian complaints against police officers.

Complaints concerning the State Police in Rhode Island should be made to the Rhode Island State Police Office of Professional Standards, which you can contact at in writing at 311 Danielson Pike, North Scituate, RI 02857, or by phone at (401) 444-1011. Citizen complaint forms are also available on the State Police website at http://risp.ri.gov/documents/PSU/ComplaintComplimentForm.pdf. Complaints should include as much information as possible about the incident, including your name and contact information; the name, rank and badge number (if known) of the officer; the location, date, time and details of the incident; and the names and contact information of any witnesses. Please let GLAD know whenever you make a complaint so that we can track the responsiveness of the various police departments.

In some cases, an individual may decide to pursue a lawsuit — because of injuries, improper detainment, or for some other reason. These matters are highly specialized, and GLAD can make attorney referrals. People can also attempt to seek help from the Attorney General’s Office, Criminal Division at (401) 274-4400.

Intimate Partner Violence | Rhode Island

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What is domestic violence?

Under the laws for the Family Court and the District Court, “domestic abuse” means the occurrence of one or more of the following acts between people who are family members, parents, or persons who are or have been in a substantive dating relationship within the past year, or against the minor child of one of the parties:

attempting to cause or causing physical harm;
placing another in fear of imminent serious physical harm;

causing another to engage involuntarily in sexual relations by force, threat of force, or duress; and
stalking or cyberstalking (see R.I. Gen. Laws § 15-15-1 (2) (family court); § 8-8.1-1(5) (district court)).

Note that the District Court provisions prohibit abuse between “cohabitants” and apply to substantive dating relationships regardless of the age of the parties, and are thus broader than the Family Court provisions.

Do the domestic violence laws apply to people in same-sex relationships?

Yes, if you are married or in a civil union. Even if you are not, some same-sex relationships are covered under the definition of “substantive dating relationship.” This includes relationships which are “significant and personal/intimate” based on the length of time of the relationship, the type of relationship, and the frequency of interaction between the parties (R.I. Gen. Laws § 15-5-1 (5) and § 8-8.1-1(5)). Other relationships may be covered if partners or former partners share legal parentage of a child (R.I. Gen. Laws § 15-5-1 (3)). As well, in the District Court, partners who live together or have lived together within the past three years may be considered “cohabitants” (R.I. Gen. Laws § 8-8.1-1 (1)).

How do I get a court order protecting me from an abusive partner?

The process is intended to be simple. You may go to the appropriate court (District Court or Family Court) where you live, or if you have just fled your home, you can also file in the town where you used to live. You will need to fill out a complaint alleging “abuse” as defined above. The complaint is under oath, so everything you say must be true. Try to put in as much detail as possible demonstrating why you feel threatened.

If you are in danger of harm, the Court can grant you a temporary protective order for not more than 21 days, which can include an order restraining your abuser from hurting you, barring him or her from entering your home, assigning child custody and requiring payment of child support. If the courts are closed (nights, holidays, weekends), you can contact the local or state police, who will be able to contact a judge on call to handle these matters.

The defendant/abuser must be served with (given a copy of) the court order and notified of his or her right to contest the order in court. Once the order is issued, it is filed with the state Bureau of Criminal Identification and is effective state-wide. Violation of a court order of which an abuser has notice is a criminal offense (R.I. Gen. Laws § 15-15-3 and § 8-8.1-3).

The Court will also assign a date for another hearing at which the temporary order will either be extended or dismissed. At that time, both parties often have attorneys. You should bring with you any witnesses who can substantiate the abuse, as well as copies of threatening letters, medical records, or any other documents which can show how you have been harmed and why you are afraid. Expect to be asked questions by both the judge and the attorney(s) for the abuser/defendant. You have the same right to ask questions.

If for some reason you decide not to go through with the legal process, you should show up in court anyway and ask that the order be dismissed. If you don’t show up, it is possible that the court will think you are unreliable and may hold that against you should you need legal help in the future.

There are other laws which prohibit stalking, harassing and trespassing which may apply to you, but are beyond the scope of this document.

If I go to court, will I out myself for all purposes?

Not necessarily. Some courts try to be sensitive to the fact that some people seeking orders may be closeted, or may be in a same-sex relationship which they do not want revealed. If you proceed in the District Court rather than the Family Court, you do not have to claim that you are in a “substantive dating relationship,” but only that you are cohabitants to get a protective order, and thus you may be able to conceal your sexual orientation if you choose (R.I. Gen. Laws, § 8-8.1-1).

Where can I go to get help?

In addition to the local police and district attorney, you can call:

The Rhode Island Coalition Against Domestic Violence at (401) 467-9940, www.ricadv.org. Helpline 24 hours every day at (800) 494-8100

Day One, the Sexual Assault and Trauma Resource Center, at (401) 421-4100 or (800) 494-8100, www.dayoneri.org.

Does domestic violence play a role in custody decisions?

Yes. Evidence that a parent has in the past, or is presently, abusing the other parent or the child is a factor showing that that parent is not acting in the best interests of the child (R.I. Gen. Laws, § 15-5-16(g)).

Hate Crimes | Rhode Island

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How does Rhode Island define a “hate crime”?

In Rhode Island, a hate crime is “any crime motivated by bigotry and bias, including, but not limited to threatened, attempted, or completed acts that appear after investigation to have been motivated by racial, religious, ethnic, sexual orientation, gender, gender identity or expression, or disability prejudice or motivated by prejudice against a person who is homeless or is perceived to be homeless” (R.I. Gen. Laws, § 42-28-46 (a)(2)). “Gender identity or expression” was added in 2012.

In order to track hate crimes, the State has set up a reporting system so that incidents alleged are centrally recorded (R.I. Gen. Laws § 42-28-46 (b)). All police departments within the state are required to have training on identifying, responding to and reporting hate crimes (R.I. Gen. Laws § 42-28.2-8.1), and must report monthly the occurrence of such crimes to the state police, who must maintain a permanent record of the offenses, categorized by community of occurrence, type of offense, and target (R.I. Gen. Laws § 42-28-46 (b)).

Does Rhode Island have increased sentencing for hate crimes?

Yes, Rhode Island law establishes additional penalties for crimes motivated by hatred or animus toward the victim’s actual or perceived, religion, ethnicity, race, gender, sexual orientation or gender (R.I. Gen. Laws § 12-19-38(a)). Although “gender identity or expression” was added in 2012 to the definition of a “hate crime” as noted above, it has not been added to the hate crimes sentencing statute.

If it is proven beyond a reasonable doubt that a person was motivated by hatred or animus toward a person’s protected characteristic, then the person shall, for a misdemeanor, be sentenced to no less than 30 days mandatory imprisonment and, for a felony, be sentenced to an additional, consecutive term of imprisonment for not less than 1 year and no more than 5 years (R.I. Gen. Laws § 12-19-38(c) and (d)).

Where can I call if I think I’ve been a victim of a hate crime?

Begin by contacting the local police. Police officers do not actually charge people with hate crimes, but will need to provide the prosecutor with evidence that the crime was motivated by bias, so be sure to explain all of the factors that make you think this was a hate crime. You may
also contact the criminal division of the Attorney General’s office at (401) 274-4400.

For support and advocacy, contact: Day One, Sexual Assault and Trauma Resource of Rhode Island, (401) 421-4100 or (800) 494-8100. www.dayoneri.org

What other options do I have if I think I have been a victim of a hate crime?

In addition to pursuing your rights in the criminal justice system, you can contact the Office of the Civil Rights Advocate of the Attorney General’s Office at (401) 274-4400. The Civil Rights Advocate is authorized to receive complaints, to conduct investigations, education and training, and to bring civil actions for injunctions or other equitable relief to address physical threats, trespassing, property destruction, or harassment that interfere “with the exercise or enjoyment by any other person of rights secured by the United States Constitution or the laws of the United States or of rights secured by the Constitution of Rhode Island or laws of the state.” In addition, a fine of up to $5,000 may be imposed (R.I. Gen. Laws § 42-9.3).

An injunction under this provision does not prevent you, depending on the circumstances, from seeking monetary damages for harms you experienced from the crime committed against you.

In what ways might the recently passed federal hate crimes law help to investigate and prosecute hate crimes?

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009. It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.

First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:

investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
grants to combat hate crimes committed by juveniles.

In providing assistance to local and state authorities, the priorities are hate crimes:

where the offender(s) has committed crimes in more than one state, or
that occur in rural areas which do not have the resources needed to prosecute such crimes.

Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest, the Act authorizes the federal government to prosecute the case.

The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles. This is the first federal law to explicitly extend legal protections to transgender persons.

Health Care | Transition-Related Care | Rhode Island

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Can health care plans discriminate against LGBTQ+ people?

Under federal and Rhode Island state law, nearly all health plans cannot discriminate on the basis of sex, and, because the Supreme Court ruling in Bostock v. Clayton Co. concluded that all gender identity and sexual orientation discrimination is a form of sex discrimination, nearly all health plans cannot discriminate against LGBTQ+ people.

What health care plan protections are provided by Rhode Island?

Rhode Island Health Insurance Commissioner

In 2015, the Rhode Island Health Insurance Commissioner issued a bulletin “for the purpose of advising health insurers 1 , health care providers and consumers of health insurance that discrimination against an individual in the context of health insurance because of the individual’s gender identity or expression constitutes sex discrimination prohibited by Rhode Island law. This prohibition extends both to the availability of health insurance coverage and to the provision of health insurance benefits, including medically necessary transgender surgery and gender identity or gender dysphoria related health care services.”

Rhode Island Medicaid

In 2015, Rhode Island’s Medicaid program removed the exclusion of gender-affirming care. These are the guidelines for gender dysphoria and gender non-conforming health care: https://eohhs.ri.gov/sites/g/files/xkgbur226/files/Portals/0/Uploads/Documents/MA- Providers/MA-Reference-Guides/Physician/gender_dysphoria.pdf.

Are there any health care plans that are not protected under Rhode Island law?

Yes. Medicare and employer health plans that are self-funded (also known as self-insured) are governed by federal law.

What health care plan protections are provided by the federal government?

Medicare

In 2013, Medicare removed the ban on coverage for treatment of gender dysphoria because it was “experimental” and began to cover medically necessary treatment for gender dysphoria.

Section 1557 of the Affordable Care Act (ACA)

Section 1557 makes it unlawful for any health care provider that receives funding from the Federal government to refuse to treat an individual – or to otherwise discriminate against the individual – based on sex (as well as race, color, national origin, age or disability). Section 1557 imposes similar requirements on health insurance issuers that receive federal financial assistance. Health care providers and insurers are barred, among other things, from excluding or adversely treating an individual on any of these prohibited bases. The Section 1557 final rule applies to recipients of financial assistance from the Department of Health and Human Services (HHS), the Health Insurance Marketplaces and health programs administered by HHS.

Section 1557 generally does not apply to self-funded group health plans under ERISA or short-term limited duration plans because the entities offering the plans are typically not principally engaged in the business of providing health care, nor do they receive federal financial assistance.

In May 2021, the Biden Administration announced that the Health and Human Services Office for Civil Rights (OCR) would interpret and enforce Section 1557 of the ACA and Title IX’s nondiscrimination requirements based on sex to include sexual orientation and gender identity. The update was made in light of the June 2020 U.S. Supreme Court’s decision in Bostock v. Clayton County and subsequent court decisions. In enforcing Section 1557, OCR will comply with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., and all other legal requirements and applicable court orders that have been issued in litigation involving the Section 1557 regulations.

Title VII

For employers with 15 or more employees, Title VII bans discrimination on the basis of race, color, religion, sex and national origin in hiring, firing, compensation, and other terms, conditions or privileges of employment. Employment terms and conditions include employer-sponsored healthcare benefits. Historically, not all authorities have agreed that Title VII protects LGBTQ+ workers against discrimination.

However, the Supreme Court decision in Bostock v. Clayton Co. changes this because that ruling made it clear that sexual orientation and gender identity discrimination are forms of sex discrimination. Although the decision is about wrongful employment termination, it has implications for employer-sponsored health plans and other benefits. For example, employers may want to adjust group health plan coverage of gender dysphoria and related services, including gender-affirmation surgeries and review and compare benefits for same-sex and opposite-sex spouses.

Can religious employers discriminate against LGBTQ+ people?

On July 8, 2020, in Our Lady of Guadalupe School v. Morrissey-Berru, the United States Supreme Court reaffirmed its stance on the application of ministerial exception to employment discrimination cases as established in earlier rulings. In doing so, the Court simultaneously raised an unanswered issue under Title VII: does the ministerial exception for religious employers allow those organizations to discriminate against employees or candidates based on their LGBTQ+ status?

It’s unclear at this point how the Court’s ruling in Our Lady of Guadalupe School v. Morrissey-Berru may impact the LGBTQ+ employees of religious employers, but religious organizations and employers should recognize that the ministerial exception does not apply to every position within their organizations. Rather, it is limited to those employees who truly perform religious duties. For example, the position of a school janitor who is only present in the building outside of school hours and is not responsible for transmitting the faith would likely not be considered ministerial in nature.

What steps can I take to get coverage for treatment of gender dysphoria?

First check to see if your health plan provides coverage for the type of treatment that you want by getting a copy of the plan’s “Summary of Benefits and Coverage”.
Most insurance plans, both public and private, have detailed requirements that must be met in order to obtain coverage. This is particularly true if you are trying to obtain coverage for transition-related surgery. So, contact your health plan and request a copy of the requirements for the treatment you are seeking.
Work with your therapists and doctors to make sure that you satisfy all the health plan’s requirements. Documentation from your therapists and doctors is the most critical factor in determining whether your treatment request will be approved.
Check what treatment requires pre-approval. In most cases, any surgery will require pre-approval, and theplan may only pay if you use a surgeon that takes their plan.
If your treatment request is denied, find out the reasons for the denial, and, if you still think that you qualify for the treatment, follow the plan’s appeal process. Usually there will first be an internal appeals process, and, if you are not successful there, you can sometimes appeal to an outside agency. Make sure that you adhere to the deadlines—failure to meet a deadline can automatically end your ability to appeal.
Keep GLAD informed if you are denied treatment. GLAD may be able to offer suggestions that can help you win your appeal. You can contact GLAD Answers at GLAD Answers or by phone at 800-455-GLAD (4523).
Although more health plans now cover treatment for gender dysphoria, the process for obtaining treatment, particularly for transition-related surgery, can be time consuming and frustrating. A great deal of documentation is required and finding a surgeon that does the type of surgery, and who is also acceptable to the health plan, can be difficult.
Don’t be afraid to be persistent and to refile if you are denied.

How do I find a surgeon who will take my health insurance?

More and more surgeons who perform sex reassignment surgeries take health insurance. You should research surgeons carefully to find one who is a good fit for you. You can look at the list of in-network providers provided by your plan to see if they are included or if it includes any surgeons in your area, and if not, you can contact the surgeon’s office to determine if they accept your insurance. Most health insurance plans require that you use a medical provider in your network, but if your network does not include a surgeon who performs the services you need, you may be able to go out of network if you seek prior authorization from your plan.

What should I do if I am being discriminated against in health care?

If you are being discriminated against by a health care facility or provider, you can file a discrimination complaint with the Rhode Island Commission for Human Rights (RICHR). See the “Discrimination” Issue Area for detailed information about how to do this.

If you have a health care plan that is regulated by Office of the Health Insurance Commissioner, you can file a complaint with that agency: https://ohic.ri.gov/consumer-

If you have a health care plan that is governed by Section 1557 of the ACA, you can file a complaint with the federal Department of Health and Human Services Office of Civil Rights. For more information, see: https://www.hhs.gov/civil-rights/filing-a-

If you have a self-funded health care plan through an employer with at least 15 employees, you can file a discrimination complaint with the federal Equal Employment Opportunity Commission (EEOC). For more information, see the “Discrimination” Issue Area.

Housing | Discrimination | Rhode Island

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Does Rhode Island have an anti-discrimination law protecting LGBT individuals from discrimination in housing?

Does it also protect people perceived to be LGBT in housing?

What is prohibited by the housing anti-discrimination law in Rhode Island?

The housing laws are intended to prohibit discrimination by owners and their agents from refusing to sell, rent, lease, let or otherwise withhold “housing accommodations” based on sexual orientation, gender identity or expression, marital status, or familial status (R.I. Gen. Laws § 34-37-3(10)(defining “housing accommodation”) and § 34-37-4 (a)). In addition, neither owners nor those who accept applications for loans or financial assistance to acquire, build, repair or maintain housing accommodations — i.e., those involved in financing — may either inquire about sexual orientation, gender identity or expression, marital status, or familial status, or discriminate on those bases (R.I. Gen. Laws §§ 34-37-4(a) and (b)).

Are any landlords exempt from the housing anti-discrimination law?

Owner-occupied housing accommodations of 3 units or less are not subject to the sexual orientation or gender identity or expression portions of the law (R.I. Gen. Laws § 34-37-4.4 (sexual orientation exemption) and § 34-37-4.5 (gender identity or expression exemption)). In addition, a religious organization or non-profit institution run by a religious organization can limit the sale, rental or occupancy of a property it owns or operates for non-commercial purposes to persons of the same religion (or give preference to such persons) unless membership in the religion is restricted on account of one of the protected categories, including sexual orientation and gender identity or expression (R.I. Gen. Laws § 34-37-4.2(a)).

How do I file a claim of discrimination?

The charge must be under oath and must state the name and address of the individual making the complaint as well as the name and address of the entity against which he or she is complaining (called the “respondent”). The complaint must set out the particulars of the alleged unlawful acts and (preferably) the times they occurred.

Do I need a lawyer?

What are the deadlines for filing a complaint of discrimination?

Can I file more than one type of discrimination complaint at once, for example, if I believe I was fired both because I am transgender and Latina?

For credit, the R.I. law adds to the foregoing prohibitions on discrimination based on marital status, familial status, military status and associating with members of a protected class (R.I. Gen. Laws § 34-37-4(b)).

In housing, all of the foregoing are protected as well as status as a victim of domestic violence and housing status (R.I. Gen. Laws, § 34-37-4 (a)).

What happens after a charge is filed with the RICHR?

The RICHR may initiate a preliminary investigation in an employment, credit, housing, or public accommodations case. If the RICHR determines it is probable that a defendant is or was engaged in unlawful practices, then the RICHR shall attempt to eliminate the unlawful practices by “informal methods of conference, conciliation and persuasion” (e.g., R.I. Gen. Laws, § 28-5-17(a) and § 34-37-5(b); also Rules and Regulations of the RICHR Rule 5.02).

If conciliation is unsuccessful, or at any time when the circumstances so warrant (including before investigation in egregious cases), the RICHR may serve a complaint and notice of hearing on the respondent. This process involves a trial type hearing but is not as formal as an actual trial in court. This process must be commenced within 2 years of when the complainant first filed his or her charge with the RICHR (R.I. Gen. Laws §§ 28-5-18; 34-37-5).

There are a few times when the case can be taken from the RICHR and filed in court. For example:

Once the complaint has been pending at the RICHR for at least 120 days, (but less than 2 years and before any conciliation agreement has been made), the complainant may request permission to remove the case from the RICHR. That request should be granted, and the complainant then has 90 days from when he or she receives a “right to sue” letter to file the case in Superior Court (R.I. Gen. Laws § 28-5-24.1(a) and § 34-37-5(l); see also Rules and Regulations of the RICHR Rule 17.01).
After the RICHR finds probable cause to credit the allegations in a complaint, either party may elect to terminate the proceedings at the RICHR and file in court as long as they do so within the strict timelines set by the RICHR rules (R.I. Gen. Laws, § 28-5-24.1(c) and § 34-37-5(n)).
In addition, in housing cases, the RICHR may go to court to seek an order forbidding the respondent from selling, renting or otherwise disposing of the property at issue while the case is pending (R.I. Gen. Laws § 34-37-5(m)).

What are the legal remedies the RICHR may award for discrimination if an individual wins their case there?

In housing cases, the RICHR is also empowered to impose civil fines, with increasing severity depending on whether the offender has committed other discriminatory acts in the past (R.I. Gen. Laws § 34-37-5(h)(2)).

Can I also file a discrimination complaint with a federal agency?

While Title VII does not expressly forbid discrimination based on sexual orientation or gender identity, a growing number of courts and government agencies have taken the position that its proscription against sex discrimination encompasses both (e.g., United States & Dr. Rachel Tudor v. Southeastern Oklahoma State University, 2015 U.S. Dist. LEXIS 89547 (2015) (denying motion to dismiss professor’s Title VII complaint that school had subjected her to a hostile work environment based on her gender identity)). In two separate decisions in 2012 and 2016, the EEOC itself concluded that sexual orientation discrimination, gender identity discrimination, and sex discrimination are one and the same, since the latter two are based on preferences, assumptions, expectations, stereotypes, and norms associated with masculinity and femininity (Visit Macy v. Holder, EEOC Appeal No. 0120120821 (Apr. 20, 2012); Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 15, 2015)). Although the EEOC’s decisions are not binding on the courts, many have used similar reasoning in affirming Title VII’s applicability to discrimination based on gender identity and sexual orientation (See, e.g., Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding that Title VII prohibits discrimination against transgender people based on gender stereotyping); Videckis v. Pepperdine Univ., 150 F. Supp. 3d 1151, 1160 (C.D. Cal. 2015) (holding “sexual orientation discrimination is a form of sex or gender discrimination”)).

LGBT people who are discriminated against in housing may also be able to file a complaint with the federal Department of Housing and Urban Development (HUD) in addition to the RICHR. For more information go to: http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing _equal_opp/LGBT_Housing_Discrimination.

Should I file a complaint with a federal agency?

Are there other options for filing a complaint for discrimination?

Possibly yes, depending on the facts of your particular situation.

State or Federal Court: After filing with the RICHR, the EEOC, or both, you may decide to remove your discrimination case from those agencies and file the case in court. There are rules about when and how this must be done, as discussed above. In addition, you may file a court case to address other claims which are not appropriately handled by discrimination agencies. For example, if you are fired in violation of a contract; fired without the progressive discipline promised in a handbook; or fired for doing something the employer doesn’t like but which the law requires, then these matters are beyond the scope of what the agencies can investigate and the matter should be pursued in court. Similarly, if your claim involves a violation of constitutional rights, such as a teacher or governmental employee who believes his or her free speech or equal protection rights were violated, then those matters must be heard in court.

What can I do if my employer fires me or my landlord evicts me for filing a complaint of discrimination?

It is illegal to retaliate in these circumstances, and the employee or tenant could file an additional complaint for retaliation. If an employer, employment agency or labor organization discriminates against you in any manner because you have opposed a forbidden practice or have made a charge, testified or assisted in a complaint filed under the antidiscrimination laws, then you can state a claim of retaliation ( R.I. Gen. Laws § 28-5-7 (5) and § 34-37-4(m). Also R.I. Gen. Laws, § 28-51-2(b)(1)(ii) (“Every employer shall adopt a policy against sexual harassment which shall include a statement that it is unlawful to retaliate against an employee for filing a complaint of sexual harassment of for cooperating in an investigation of sexual harassment”); Provencher v. CVS Pharmacy, 76 F.E.P. Cases (BNA) 1569 (1st Cir. 1998)(upholding federal retaliation claim of gay man). The U.S. Supreme Court has broadly interpreted the anti-retaliation provisions in federal anti-discrimination laws. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).

What can I do to prepare myself before filing a complaint of discrimination?

Contact GLAD Answers at www.GLADAnswers.org or by phone at 800-455-4523 (GLAD) any weekday to discuss options.

As a general matter, people who are still working with or residing under discriminatory conditions have to evaluate how filing a case will affect their job or housing, and if they are willing to assume those possible consequences. Even if you have been fired or evicted, you may decide it is not worth it to pursue a discrimination claim. This is an individual choice which should be made after gathering enough information to make an informed choice.