Schools’ transgender regulation modified

DOVER — A controversial regulation that would have allowed students to identify as a different gender or race without parental consent has been modified to require schools inform and receive permission from parents first.

Whether it quiets the storm of criticism that rained down months ago remains to be seen. Rep. Rich Collins, a Millsboro Republican who was a fierce opponent of the previous proposal, said he is “cautiously optimistic that there have been some improvements.”

However, the American Civil Liberties Union of Delaware blasted the new version, accusing the state of opting to “sacrifice the interests of some of Delaware’s most vulnerable young people in order to appease adults who do not believe in protecting the civil rights of people who are transgender.”

Unveiled in the fall, Regulation 225 was developed to prevent discrimination against transgender students, according to officials. It was created by a team of superintendents, students, parents and others after Gov. John Carney, a Democrat, directed the Department of Education to provide “clear guidance to our school districts and charter schools to prohibit unlawful discrimination.” The memo issued by the governor did not single out transgender students.

The original regulation stated, in part, “A school may request permission from the parent or legal guardian of a minor student before a self-identified gender or race is accepted; provided, however, that prior to requesting the permission from a parent or legal guardian, the school should consult and work closely with the student to assess the degree to which, if any, the parent or legal guardian is aware of the Protected Characteristic and is supportive of the student, and the school shall take into consideration the safety, health and well-being of the student in deciding whether to request permission from the parent or legal guardian.”

That portion drew a strong response, with the Department of Education receiving more than 11,000 comments.

Opponents criticized the measure as infringing on parental rights, with some objecting to the notion of letting individuals identify as a different gender.

Supporters countered that LGBT youth are an extremely at-risk population and the proposal would help offer them some protection and certainty in a difficult time in life.

As a result of the controversy, the drafting team reconvened and a public workshop was held in January. After months of review, Secretary of Education Susan Bunting released the modified version Friday.

Comments will be accepted on the proposal until July 6.

Details

The new measure strikes the provision that would have let students self-identify without parental notice. Among the changes is language requiring a school to contact a student’s parent or legal guardian before agreeing to let the pupil change any protected trait, such as race or gender.

While the regulation does not explicitly state parental permission is required, a spokeswoman for the Department of Education said that would be the case.

If a student declines to have the school contact his or her parents, the request to self-identify would be denied.

Still included is language stating: “The school board of each School District and Charter School shall include a provision within its antidiscrimination policy that accommodates all students and addresses student access to locker rooms and bathrooms. School Districts and Charter Schools shall work with students and families on providing access to locker rooms and bathrooms that correspond to students’ gender identity or expression.”

The change would give districts more discretion in crafting their own policies. The updated policy urges schools to “work with transgender students and their families to determine how to best provide access to bathrooms and locker rooms,” which may include letting them use a private single-stall bathroom, a nurse’s office or private area in a locker room.

The new regulation also alters guidelines for sports, eliminating several bullet points in favor of one instructing schools to follow Delaware Interscholastic Athletic Association rules.

DIAA adopted regulations concerning transgender athletes more than two years ago, according to Executive Director Thomas Neubauer.

Schools are allowed to set their individual policies, but they must conform with certain DIAA guidelines. A female student who identifies as a boy, for instance, can play on a boys sports team if the student offers an official record “demonstrating legal recognition of the student’s reassigned sex,” if a doctor “certifies that the student has had appropriate clinical treatment for transition to the reassigned sex” or is in the process of transitioning or if the school agrees to classify the student as a boy.

Other schools can appeal an athlete’s eligibility to the DIAA Board of Directors if they believe “the student’s participation in interscholastic athletics would adversely affect competitive equity or safety of teammates or opposing players.”

The previous version of the proposed regulation would have required schools to give “equivalent benefits and services” to both boys and girls participating in sports and would have granted athletes the chance to play “on the team that is consistent with (their) gender identity regardless of the (their) assigned sex at birth.”

Officials from the Capital, Milford, Cape Henlopen and Polytech school districts six months ago said they deal with such issues on a case-by-case basis, while efforts to contact the Caesar Rodney, Smyrna and Lake Forest school districts at the time were unsuccessful.

Feedback

Friday’s release drew a mixed reaction.

Rep. Collins said the proposal appears to eliminate some of his concerns, although he cautioned he had not had a chance to carefully study it.

Rep. Collins had threatened a lawsuit against the department, and he said Friday he would take the weekend to review the proposal and consider if he believes legal action is necessary.

Gov. Carney, in a statement, described the proposal as a solid compromise.

“When we began this process, our goal was to help local school districts and charter schools craft consistent anti-discrimination policies that protect the ability of all students to attend school comfortably and without fear of discrimination. Our goal remains the same today,” he said.

“We understand that there are strong feelings on all sides of this issue. There has been a significant amount of public feedback. Secretary Bunting and her team have carefully considered that feedback, and incorporated it into the updated regulation that was published today. We believe the final product will help local districts craft policies that protect students, and involve families every step of the way in these discussions.”

However, the ACLU of Delaware accused the administration of abandoning transgender students.

“Transgender students are already at risk of violence in schools and family rejection,” Executive Director Kathleen MacRae said in a statement. “This proposed regulation increases the odds that both of these negative impacts will harm more Delaware youth.

“Students should not be forced to choose between abuse at home or basic dignity at school — such as being called by appropriate gender pronouns or being able to use facilities that match who they are — simply because of widespread ignorance about and bigotry against transgender people.”

Members of a Facebook group called United Opposition to DE Regulation 225 applauded the new measure and spoke of “winning” the fight over 225.

Much like gay rights, transgender rights are rapidly becoming more mainstream. In January, Danica Roem, a transgender woman, became the first openly transgender person to both be elected to a state legislature and serve in that body when she was sworn into the Virginia House of Delegates.

Delaware lawmakers in 2013 made it illegal for anyone to deny an individual service or fire him or her for being transgender.

Forty-six percent of respondents to an August poll from Quinnipiac University said more acceptance of transgender people would be a good thing, while 14 percent said it would be a bad thing. A 2016 analysis from the UCLA Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy estimated there are 1.4 million transgender Americans.

Legislation that would have amended the Delaware Constitution by adding a sentence stating “No person shall be denied equal rights under the law” failed in the General Assembly one year ago because it did not gain the needed two-thirds supermajority in the House. No Republican voted for the bill.

Individuals can submit feedback on Regulation 225 until July 6. Following the end of the public comment period, the regulation will either be put into place or further modified based on feedback.

Comments can be emailed to DOEregulations.comment@doe.k12.de.us or mailed to: Tina Shockley, Department of Education, 401 Federal St., Suite 2, Dover, Delaware, 19901.

Staff writer Matt Bittle can be reached at 741-8250 or mbittle@newszap.com. Follow @MatthewCBittle on Twitter.

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