After two drafts and thousands of public comments, the State of Delaware has scrapped the proposed Regulation 225, originally intended to prevent discrimination against school children based on gender and other protected characteristics.
On Aug. 2, the Delaware Department of Education announced that “it will not be moving forward to finalize the current proposed version of Regulation 225.”
“Recent court decisions have raised important legal questions regarding this issue, and the significant public comments make clear we still haven’t struck the right balance,” Secretary of Education Susan Bunting stated. “For those reasons, we’re not going to finalize the current proposed version of the regulation.”
She pointed out that the courts are also working to address policies on transgender issues.
Four people had filed suit against the Boyertown (Pa.) School District over a policy allowing transgender students access to locker rooms consistent with their gender identity. This summer, the U.S. 3rd Circuit Court of Appeals rejected the plaintiffs’ request for the full court to hear their arguments, after a three-person appeals panel upheld the school policy.
In 2017, Gov. John Carney personally ordered the Department of Education to update Delaware’s one-paragraph policy that currently prohibits discrimination against all public schoolchildren. State regulations carry the same weight as a law.
“We acted on the simple premise that no child should be made to feel uncomfortable or unwelcome at school because of who they are. Every student deserves to be respected and affirmed,” Carney wrote. “Our goal was to help protect Delaware children from discrimination at school so they could focus on their education. That remains our goal today.”
Thus, without the additional protections intended to be provided by the original Regulation 225, Delaware continues with the same Prohibition of Discrimination policy, which protects people “on the basis of race, color, religion, national origin, sex, sexual orientation, genetic information, marital status, disability, age or Vietnam Era veteran’s status.”
The proposal had removed the Vietnam reference; added “ethnicity, gender and gender identity”; and added several more pages of regulations.
Proposals were bold
The original proposal was developed in 2017 with recommendations from a development team of 17 individuals, including superintendents, a charter school head-of-school, students, local board members, school administrators and an advocate.
Once announced, it caught heavy flak from critics because of a bold approach. It allowed students enrolled in Delaware public schools to self-identify with any protected characteristic (including gender or race).
The original policy allowed schools the latitude to accept such changes without parental permission, after the school consulted with the student to determine a parent’s awareness of or support for the change. That aspect of the policy was based on concerns that requiring permission from some parents could result in unpleasant or unsafe situations at home.
The 2017 proposal also made gender-based allowances for restroom use and sports participation.
Based on the public response, the proposal was updated in 2018 and changed so that students had to consent to the school requesting a parental permission slip before the school would accept the student’s requested changes.
The 2018 proposal also removed initial requirements on bathrooms and sports teams. Instead, it merely stated that “school districts and charter schools shall comply with Delaware Interscholastic Athletic Association (DIAA) regulations and policies regarding equal athletic opportunities for all students.”
In a final note, the revised proposal encouraged schools to work locally with transgender students and their families to determine how to best provide access to bathrooms and locker rooms “to promote a safe and comfortable environment for everyone.”
Much work to be done
This summer, as the deadline for comments on the revised proposal neared, some people said they liked that the changes addressed their concerns about requiring parental participation.
Some argued that the regulation was unnecessary since sex discrimination is already prohibited. They wanted the proposal to come from the Delaware State Legislature (which had previously considered, but not acted on, a similar bill).
Some people still disliked that the students could even have a gender-identity conversation with school staff without requiring parental notification, while others were concerned that the revised regulation would require school staff to “out” students to their parents the moment the issue was raised. Some attacked the idea of gender dysphoria itself, or the differing identities of race or gender.
Advocates for transgender students condemned the revised policy, after having supported its original iteration.
“The current draft of the regulation fails Delaware’s moral and legal obligation to ensure a safe and quality education for all students, including transgender students,” said the Human Right’s Campaign’s Sarah McBride. “Transgender kids in Delaware are frightened by this regulation, and we hope that the Delaware Department of Education and Gov. Carney will immediately withdraw this draft to end this nightmare for trans kids in our state.”
“The revisions to Regulation 225 are misguided, dangerous and run the risk of emboldening discrimination and violence against LGBTQ students,” said Mark Purpura, board member of Equality Delaware. “These changes were crafted without the input or knowledge of the very team that spent months carefully drafting a comprehensive regulation and run counter to federal civil-rights laws and the overwhelming consensus of educational and medical experts. We urge the Delaware Department of Education and Gov. Carney to immediately withdraw this draft and to stand up for Delaware’s most vulnerable students.”
The Indian River School District’s Board of Education had officially opposed the original 2017 proposal but submitted no comments regarding the 2018 revision.
“I … believe that families are critical to the education of Delaware’s children,” Carney stated this month. “Parents are their children’s first teachers, and they are our partners in this endeavor. The more engaged and involved families are in their children’s education, the better off our students will be.”
He said he had heard the concerns of both Delawareans who “wanted to ensure they had a say in the decisions schools make regarding their children” and the LGBTQ community “working to protect some of our state’s most vulnerable children.”
“I want to thank Secretary Bunting for objectively weighing the public’s comments on this issue and concluding that our citizens did not support this proposed regulation — either this version or the original version,” stated state Rep. Rich Collins (R-38th), who was a vocal opponent of the anti-discrimination policy as originally proposed.
“I think these policies should be left in the hands of local school districts that are more accountable to the people they serve and will work in a collaborative fashion to craft acceptable solutions.”
“This is difficult work,” Carney concluded. “And our work is not done. I look forward to continued discussions with members of the General Assembly, Delawareans and Delaware families across our state about how best to make progress.”
Details are online at www.doe.k12.de.us/antidiscrimination. The webpage includes both proposals, as well as all the public comments.
By Laura Walter