The American Civil Liberties Union of Delaware is opposing a new proposed anti-discrimination regulation after the Carney administration backed off an earlier rule that would have allowed students to change their gender identity in schools without parental consent.
The ACLU said last week in a statement that the revised version of Regulation 225 would harm transgender students, who the group said are already at risk of family rejection and violence in schools.
“Under the revised, so-called school anti-discrimination regulation, students who are transgender will not be treated consistent with their core identity or accommodated in any way unless the school requests permission from a parent or guardian,” said Kathleen MacRae, executive director of the Delaware ACLU.
“Students should not be forced to choose between abuse at home or basic dignity at school—such as being called by appropriate gender pronouns or being able to use facilities that match who they are—simply because of widespread ignorance about and bigotry against transgender people.”
The latest iteration of the measure removed a controversial provision, which said that “all students enrolled in a Delaware public school may self-identify gender or race.” Instead, the new proposal requires permission from a parent or legal guardian before schools can recognize a change in any “protected characteristic,” such as race, ethnicity, religion, sex, gender, sexual orientation.
The issue has generated heated debate in the state since Gov. John Carney directed the Delaware Department of Education last July to develop a model policy for school districts and public schools to follow in prohibiting discrimination in educational programs and student activities.
The original draft regulation, released in September, directed public schools and charters to work with students to provide equal opportunity to participate in educational programs and sports teams, regardless of a student’s assigned sex at birth. The proposed policy would have covered sexual education courses and included access to bathrooms and locker rooms.
Community meetings were held in each of Delaware’s three counties and the city of Wilmington from Sept. 26 to Oct. 5, and leaders received more than 11,000 responses from within the state and across the country, according to the DOE website. The formal comment period ended Dec. 4.
After months of no action, the DOE announced June 1 that Secretary of Education Susan Bunting made “responsive changes” to the regulation, adding the requirement that parents give permission before students make changes to how they are identified. The new version also substituted the state’s suggested model privacy for a guidance document that gives districts and charters more leeway to craft local policies.
Members of the group United Opposition to DE Regulation 225 claimed victory, saying the changes had gutted the state’s original proposal. However, the Delaware Family Policy Council urged further action. The revised version, the group said, still allowed schools to have “secret conversations” with students about gender without first consulting parents.
“While this is an improvement from the original and outrageous version released in November 2017, there is no requirement to inform parents of the struggle their minor student is having, resulting in a degree of secrecy in keeping the parents out of the process,” the group posted on its website.
Meanwhile, MacRae and the ACLU said the regulation, as drafted, would ”isolate transgender youth by forcing them into separate facilities,” leading to bullying and a sense that transgender students are not welcome in schools.
“The ACLU of Delaware encourages Delawareans to tell Governor Carney that he cannot run from this issue,” MacRae said. “He must either stand up for these vulnerable students or abandon them. It is his choice.”
The DOE is accepting public comment on the new regulation until July 6. After that, the department could either approve the measure as written or make another round of changes.