Transgender protection for students draws criticism


DOVER — A proposed regulation that would allow students to self-identify their gender and race is being met with resistance, primarily from Republicans.

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. It expands the existing anti-discrimination statute and adds gender identity to the list of protected classes.

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 bathrooms and locker rooms and let students identify themselves as any race and gender, potentially without parental consent.

It’s the parental consent section that is arguably the most controversial.

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.”

Supporters say the measure is simply about equality and protection, but opponents are framing the issue as one of parental rights, legality and safety.

“It opens Pandora’s Box,” Rep. Rich Collins, R-Millsboro, said in a statement. “It has the potential to twist schools up in knots.”

He argued the proposal is invalid because it is “not based on any legal authority granted by the General Assembly.”

Others strongly disagree.

“This shouldn’t be in question: discrimination is blatantly wrong. Kids deserve to be safe in our schools, and without the fear of being bullied because of who they are or what they wear,” Rep. Debra Heffernan, D-Bellefonte, said in a statement. “The Department of Education crafted this anti-discrimination policy at Gov. Carney’s direction so that students can learn in an inclusive environment where they can feel safe and respected. That inclusive environment is essential for all children to learn and grow.”

Rep. Heffernan sponsored legislation earlier this year that would have ordered the Department of Education to create an anti-discrimination policy. The measure passed the House in June but did not receive a vote in the Senate. Among the representatives present, every Democrat voted yes, while Rep. Mike Ramone, R-Pike Creek Valley, was the only Republican to vote for it.

Three weeks later, Gov. Carney issued his directive to the Department of Education.

The department is taking public comments until Dec. 4. It previously held several hearings around the state to gather input, which went into drafting the proposal.

Public comments can be mailed to Delaware Department of Education, RE: 225 Prohibition of Discrimination, Townsend Building, 401 Federal Street, Suite 2, Dover, DE, 19901. They can also be sent by email to, and Delawareans can visit for more information.

The proposal has drawn fierce criticism from the Delaware Family Policy Council, a conservative group that also opposed a 2013 measure that made transgender individuals part of a protected class.

“It’s a safety and privacy concern when any student of any age, at any time, can claim or self-identify as the opposite gender and have access to the locker rooms, showers, restrooms, overnight accommodations and any school activity, such as sports teams, that is gender specific,” founder Nicole Theis said in a statement. “No federal law requires school districts to grant students access to facilities dedicated to the opposite sex. Yet, this is what Regulation 225 does.”

The Department of Education declined to make Secretary Susan Bunting available for an interview.

“We are in the midst of the formal public comment period right now so it would not be appropriate for her to do an interview,” spokeswoman Alison May wrote in an email. “Secretary Bunting will consider the public comment received through Dec. 4 before making her decision.”

A follow-up email with another question was not answered, and messages left with the Delaware Interscholastic Athletic Association and several school districts were not returned.

Gov. Carney’s office did not respond to a question about the governor’s reaction to the controversy. The governor previously said in a statement the policy “will help our schools move in that same direction.”

To LGBT advocates, the change is much-needed.

Fay Jacobs said she knows of transgender students in Delaware schools who are bullied by class-mates and even mistreated by some teachers.

“I think that the rules are needed because there’s a really, really vulnerable population that’s being bullied, hurt. Their childhood and their education is being interrupted because they’re not being treated with respect,” she said.

Concerns expressed by opponents are fraudulent reasons being used to continue discrimination and block much-needed protections, she said.

Much like gay rights, transgender rights are rapidly becoming more mainstream. Danica Roem, a transgender woman, was elected to the Virginia House of Delegates Tuesday. 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.

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.

Rep. Tim Dukes, R-Laurel, is hopeful the response the Department of Education is receiving will convince Dr. Bunting not to approve the proposal.

“The superintendents I’ve talked to in my area, they’ve already had policies enforced and enacted for years, so it’s kind of creating a controversy” unnecessarily, he said.

Individual districts, he said, should be able to decide whether to adopt a similar policy rather than having it “forced down peoples’ throats.”


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