State pulls proposed transgender protection regulation

DOVER — A controversial regulation involving gender identity will not be moving forward, the Department of Education announced Thursday, two months after it revised the proposal due to public outcry.

First unveiled in October, Regulation 225 initially would have allowed students to identify as a different gender or race, sparking a firestorm of criticism.

The state later modified the proposed measure due to the furor, which saw Delaware receive national attention from some conservative groups and media outlets.

Gov. John Carney, who directed the development of an anti-discrimination policy, pointed to a recent decision by the U.S. Court of Appeals for the Third Circuit, which has jurisdiction over Delaware, in explaining the decision to pull the regulation.

In May, the Third Circuit declined to block a lower court’s ruling that Boyertown Area School District in Pennsylvania could let students use the bathroom that fit with their gender identity rather than their birth gender.

“Last July, I asked Education Secretary Susan Bunting to draft a new regulation that would require Delaware’s school districts and charter schools to create consistent, meaningful anti-discrimination policies. We acted on the simple premise that no child should be made to feel uncomfortable or unwelcome at school because of who they are,” the governor, a Democrat, said in a statement.

“Every student deserves to be respected and affirmed. Our goal was to help protect Delaware children from discrimination at school so they could focus on their education. That remains our goal today.”

Gov. Carney said officials will continue to work to balance parental rights with LGBT protections and are currently weighing their options.

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.”

Shirts opposing Regulation 225 were on public display at an Indian River School District board of education meeting last fall.

After receiving upward of 11,000 comments in little more than a month, the state reconvened the team of parents, administrators, LGBT advocates and others that helped craft the proposal and eventually announced it had edited the regulation.

The new measure eliminated the provision that would have let students self-identify without parental notice, instead 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 did not explicitly state parental permission was required, a spokeswoman for the Department of Education said that would be the case.

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

Still included was language reading: “The school board of each School District and Charter School shall include a provision within its anti-discrimination 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 revised measure, while greeted more warmly by some who vehemently opposed the first version, did receive criticism from proponents of LGBT rights. The American Civil Liberties Union of Delaware, for instance, said the changed proposal would “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.”

Thursday, Mark Purpura, an LGBT advocate who was on the team that drafted the regulation, said he was grateful the state rejected the second version.

“They clearly heard the concerns of the LGBTQ community,” he said of the administration. “I think it’s a very smart and prudent move to reconsider the regulation in light of recent court decisions.”

The Delaware Family Policy Council, a conservative group focused on religious freedom, on Facebook praised the decision.

“YES! THIS deserves a Victory lap for sure!” the group wrote. “THIS is because thousands of you read emails and FB posts and TOOK ACTION!”

The Department of Education said it received more than 6,000 comments after releasing the second proposal in June.

The updated policy urged schools to “work with transgender students and their families to determine how to best provide access to bathrooms and locker rooms,” which may have included letting them use a private single-stall bathroom, a nurse’s office or private area in a locker room.

It also altered 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.

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.”

To Sen. Dave Lawson, a Marydel Republican, Thursday’s announcement is a victory for most Delawareans.

“Once again, the voice of the public has been heeded by the government. That’s refreshing,” he said.

Noting the Boyertown decision, Mr. Purpura said he believes the state can still protect transgender students without incurring the wrath of much of the public.

“I think it would behoove the state to just continue to work on a regulation and issue guidance to school districts to sort of make them aware of the risks of not treating students as if they’re protected under Title IX,” he said.

Reach staff writer Matt Bittle at mbittle@newszap.com

The Sussex County Post delivers news from Georgetown and southern Delaware. Follow @SussexPost on Twitter.

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