Pending transgender regulations generating concern, opposition and potential legal challenge

MILLSBORO – Pending Delaware Department of Education regulations that would allow public school students to self-identify their gender or race may draw court action.

41st District State Rep. Rich Collins, R-Millsboro, said if the proposed rules are promulgated he would organize a lawsuit to strike them down, according to this week’s Delaware House of Republicans newsletter..

The push for the DOE’s new anti-discrimination rules for transgendered students began in mid-July when Governor John Carney sent a memo to Sec. of Education Dr. Susan Bunting directing her agency to craft the regulations.

A quick series of community conversations were held in each county on the proposed regulations about six weeks ago, but they did not capture the public’s attention until they were published in the November issue of the State Register of Regulations – a required step before they can be promulgated.

Among the more controversial aspects of the pending rules are:

  • All students enrolled in a Delaware public school would be able to self-identify gender or race. (Rule 7.4)
  • A student would have the opportunity to participate on the sports team that is consistent with the student’s gender identity, regardless of the student’s assigned sex at birth. (Rule 6.4)
  • A student would have the opportunity to participate in the program of instruction dealing with human sexuality that is consistent with the student’s gender identity, regardless of the student’s assigned sex at birth. (Rule 3.4)
  • School districts and charter schools would be required to work with students and families on providing access to locker rooms and bathrooms that correspond to students’ “gender identity or expression.” (Rule 8.0)
  • Even if a student does not legally change his or her name, he or she can select a “preferred name” based on a “protected characteristic” that school officials would be obligated to use except on official records. (Rule 7.3)

Rep. Collins and other opponents are especially concerned the proposed regulations will potentially exclude parents from the process.

School officials do not need to ask for a parent’s or guardian’s permission before allowing the student to self-identify race or gender.  While Rule 7.4.1 seemingly enables school officials to seek parental consent, it first requires them to first meet a challenging standard by determining if asking for such permission would compromise the student’s safety, health, and well-being.

State Rep. Rich Collins

“Juveniles should have the guidance of their parents to make these type of profound life decisions,” Rep. Collins said.  “The state should not be inserting itself into this situation and usurping parental authority.”

Rep. Collins noted that his potential court challenge would be based on the law.  He said the regulations being proposed by the DOE are invalid because they lack the requisite legal authority.

Delaware’s Gender Identity Nondiscrimination Act of 2013 – which forbids discrimination on the basis of gender identity in housing, employment, public works contracting, public accommodations, and insurance – was not applied to Title 14, which covers public education, according to the Nov. 10 Delaware House of Representatives’ newsletter.

Rep. Collins’ lawsuit threat is not an idle one. Before becoming a legislator, he organized a successful challenge that resulted in Superior Court invalidating a large section of the state’s storm-water management regulations in 2015.

The Department of Public Education is currently soliciting public input on the rules.

Any citizen wishing to express their views can do so in writing before the close of business on Dec. 4.

Remarks can be sent by conventional mail to Susan K. Haberstroh, Department of Education, 401 Federal Street, Suite 2, Dover, DE  19901.

They can also be e-mailed to DOEregulations.comment@doe.k12.de.us

A copy of the proposed regulation may be viewed online by clicking here.

It’s policy based on regulation

Mark Steele, superintendent of the Indian River School District in which enrollment is approaching 11,000 students, said this is all based on regulation.

“The school board is the only governing thing in the school district that can establish policy. Your policy is always based on regulations. If you have a regulation, then you have to have a policy for that regulation,” said Mr. Steele. “So, the board would have to develop a policy. They (state) are also working on what they call a model policy for these regulations. The board could accept that, or the board could write their own policy on it. With regulations, there are certain things that are mandated that have to be in the policy. It doesn’t give the district a lot of wiggle room on what they can leave out of the policy and what they can put in the policy.”

“A regulation done like this is not common, I can tell you that. It could have been done legislatively or whatever, but it wasn’t for some reason,” said Mr. Steele.

Indian River School District is offering the opportunity for parents and citizens to submit comment/opinion during the 30-day window through its district website: www.irsd.net.

“You are going to get a lot of public input. There is no gray area here. You are either going to be for it or you’re not,” said Mr. Steele. “I think a lot of it will depend on how people respond to DOE once they go through and read this.”

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