Transgender regulation draws strong reactions

Attendees at the Nov. 27 Indian River School District school board meeting applaud in support of the district’s opposition to Regulation 225, a transgender student proposal that speakers said would take rights away from parents.

DOVER — As the deadline draws near for the submission of comments on a proposed regulation that would allow students to identify themselves as a different gender without parental consent, school districts await the final decision on approval by the secretary of education.

Created by the Department of Education at the directive of Gov. John Carney, the regulation is part of an anti-discrimination policy focused on supporting transgender students.

Susan Bunting

Among the portions of the regulation is language that would allow any student in a public school to go by a preferred name, require schools to accommodate all students in regard to bathroom and locker room use and let students identify themselves as any race and gender, potentially without prior parental approval or knowledge.

The regulation states, 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.”

Comments can be submitted until Monday afternoon. They will be used by Secretary of Education Susan Bunting to determine what, if any, changes will be made.

Alison May, a spokeswoman for the Department of Education, said there is no deadline for when Dr. Bunting will make a decision.

Shirts like this worn by people opposed to Regulation 225 were in abundance at the Nov. 27 Indian River School District school board meeting.

Ms. May wrote in an email late last week that the agency has not counted the comments but has received “a significant amount.”

Asked what the split of pro and con comments was, Ms. May said the submissions “will be reviewed after the comment period closes.”

Last week, the Indian River School District Board of Education sent a letter to the Department of Education objecting to the measure. In it, members of the board and administration laid out their concerns.

Among them are worries about a non-transgender student taking advantage of “the premise of this regulation to gain access to private areas within the school,” which could “open the school district to substantial litigation.”

The proposal also places “the district in direct conflict with students and their parents” and could lead to lawsuits and a lack of trust between the district and parents, the letter alleges.

Additionally, the correspondence states, “The law surrounding this issue is unresolved by the court system, increasing the likelihood of litigation. This regulation places the burden of litigation costs solely on the school district and not on the state. Our bathrooms and locker rooms were constructed to serve multiple people of the same sex.

“Therefore, private space is nearly non-existent. Most schools will be forced to renovate existing bathrooms and locker rooms to provide a higher level of privacy to all students. Once again, the school district will be required to shoulder the burden of the costs for these extensive renovations.”

At the Indian River Board of Education meeting Monday, parents spoke out against the measure.

“Let me be clear no one should be so open-minded that you willingly give your parental rights to government. Where would it end?” Sharon Chrzanowski said. “This is not a hate or a gay and lesbian issue.

“Parents do not have to agree with all of the choices that their children make. They are there to guide them and are ultimately responsible for them, not government.

“How can a school employee decide if a parent is supportive enough if a child is cross-dressing? This sets a very dangerous precedent for more rights to be taken from parents.”

Fourteen of the 16 members of the House Republican caucus sent a letter to Dr. Bunting last month urging her “to immediately withdraw the proposed regulations (and instead issue) a list of non-binding suggestions that local districts can factor into their deliberations as they decide best how to deal with this issue.”

But while the education department proposal has drawn harsh criticism, particularly from social conservatives, others feel it would help protect transgender students.

“We’re just trying to keep these children from having a painful childhood and being unable to study and unable to get their education because they’re in fear,” LGBT advocate Fay Jacobs said several weeks ago.

Ms. Jacobs dismissed concerns boys would claim to be transgender just to be allowed to use the girls’ bathrooms and locker rooms, describing the worry as one devised to allow discrimination against the LGBT community.

“I just can’t imagine any 14-year-old boy wanting to dress up like a girl so he can go into a bathroom,” she said.

After directing the Department of Education in July to craft such a policy, Gov. John Carney wrote in a memo to the agency: “It is critical that all schools in Delaware be welcoming, inclusive places where students and staff members alike can flourish.

“Every student should be able to learn, achieve and grow without unlawful discrimination based on their appearance, gender, race and/or ethnicity, gender identity or expression, sexual orientation or any other protected characteristic.”

District policies

Most school districts appear not to have specific policies for providing accommodations to transgender students: Officials from the Capital, Milford, Cape Henlopen and Polytech school districts said they deal with such issues on a case-by-case basis.

The Caesar Rodney, Smyrna and Lake Forest school districts did not respond to requests for comment.

Polytech Superintendent Mark Dufendach said the district is waiting to see what the Department of Education decides before adopting a specific policy.

In past instances, the district has made accommodations, such as allowing a transgender student to use a unisex bathroom, but it has not been common enough to necessitate a written rule.

Candace McCarthy, a spokeswoman for Capital, wrote in an email the district does not “have a policy per se; however, we don’t discriminate against anyone.”

Milford Superintendent Kevin Dickerson, in an email, wrote the district has received few questions about the proposed regulation.

“We do not have a specific policy,” he said. “In collaboration with our students and families, we have attempted to protect the best interest of all students in these situations.”

Cape Henlopen Superintendent Robert Fulton, in a statement, said: “Once we were aware that this topic was going to be discussed at the state level through the anti-discrimination development team, we felt it would be best to wait to begin this work and use the information and guidance from the work being done at the state level.

“In doing so, we feel that our policy will be stronger and include any unique aspects of the regulation that need to be included in all district policies. We will begin working on our district policy after we have a better idea about the final product and language included.”

Officials in Cape Henlopen have heard from both supporters and opponents of the proposal, he said.

“In regards specifically to the transgender students, we have and will continue to address each situation, question, or issue that arises on a case-by-case basis,” Mr. Fulton said.

The Delaware Interscholastic Athletic Association adopted regulations about transgender athletes 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.”

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

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.

Delaware made gender identity a protected class in 2013, preventing anyone from denying an individual service or firing someone for being transgender.

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

To submit comment or feedback to DOE by Monday afternoon, email

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