Proposed transgender regulation faces further review


DOVER — A proposed regulation aimed at protecting transgender students will be reviewed further next month, the Department of Education announced Tuesday.

Created by the agency at the directive of Gov. John Carney, a Democrat, the regulation is part of an anti-discrimination policy.

It 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.”

While backed by LGBT advocates, the measure has also drawn strong criticism, with many saying it infringes on parental rights.

The Department of Education said it received more than 11,000 comments between Nov. 1 and Monday, with a mix of support and opposition. The comments will be posted on the state’s website.

The team that drafted the proposal, which included superintendents, school board members, parents and students, will meet again in January to look over the comments and consider changes. If the alterations are judged to be major, the new regulation will undergo another 30-day review period before Secretary of Education Susan Bunting issues a final decision on approval.

The Indian River School District Board of Education sent a letter to the Department of Education objecting to the measure last week. Among the concerns cited by board members 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, board members wrote.

Also, the letter says, “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.”

Fourteen of the 16 members of the House Republican caucus sent a letter to Dr. Bunting in November urging her reject the proposed regulation and let school districts decide on their own how to handle the issue.

Officials from the Capital, Milford, Cape Henlopen and Polytech school districts said last week they deal with transgender issues on a case-by-case basis. The Caesar Rodney, Smyrna and Lake Forest school districts did not respond to requests for comment.

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