Regulation would let students "self-identify" gender, race without parental OK

Republican lawmakers and parents, in a spate of public statements and blog posts, are accusing a state agency of ignoring their concerns over a regulation that would let students self-identify their gender or race without parental knowledge or consent.

If the regulation is approved, students could also ask teachers and staff to refer to them by a different name. It stipulates parents only be approached for permission if they are "supportive of the student" and aware they identify a specific way.

Gov. John Carney in July directed the Department of Education to come up with the nondiscrimination policy. It was written to acknowledge the fact that not all parents are accepting when their children "come out" and tell their parents they are of a different sexual orientation or gender.

In some cases, students face physical or emotional abuse.

Race and ethnicity are also becoming increasingly complex. Millions of Americans changed their race in the 2000 census, and children born to one white and one black parent tend to vacillate between identifying as one or both races. Those of Hispanic descent also tend to check different boxes.

Nicole Theis, founder and president of the conservative Delaware Family Policy Council nonprofit, denounced the regulation in a strongly-worded blog post. The group has also started a petition against the regulation.

"If you as a parent are perceived to be 'unsupportive,' your child can take on a new identity without your knowledge, permission or consent," she wrote. "Policies like Regulation 225 are setting parents up as a 'non-ally' and 'unsupportive,' discriminatory, even abusive, if they affirm their child’s biological realities and work through it instead of embracing the confusion."

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She also criticizes part of the regulation that would require school districts and charter schools to work with students and families to provide access to locker rooms and bathrooms that correspond to students' gender identity or expression.

"No student should ever be pressured to undress, shower or share overnight accommodations with individuals of the opposite sex,” Theis said in a statement.

The proposed regulation can be viewed at www.doe.k12.de.us/antidiscrimination. Public comment is being taken through Dec. 4 and can be emailed to DOEregulations.comment@doe.k12.de.us or mailed to Delaware Department of Education, RE: 225 Prohibition of Discrimination, 401 Federal St., Suite 2, Dover, DE 19901.

The regulation addresses discrimination based on race, ethnicity, color, religion, national origin, sex, gender, sexual orientation, disability, age, gender identity or expression or other characteristics protected by state or federal law, though many of the protections are clearly written with transgender students in mind.

Since 2013, Delaware has joined a minority of states that expressly prohibit discrimination based on gender identity, which falls under the umbrella of protected classes like race, religion, ethnicity and sexual orientation.

The First State also bans insurance companies from limiting or excluding health care coverage for transgender people, whose gender identity differs from the sex they were assigned at birth.

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But those victories haven't trickled down to public school bathrooms, locker rooms, dances or field trips, say local transgender students, their parents and area activists.

Increased scrutiny on how local districts handle transgender students is "long overdue," said Andrea Rashbaum, the Wilmington mother of a transgender teen, Maddie Heeney.

"Most states who have shown support to the LGBTQ community, particularly students and employees of public schools, have created protocols within eight months," Rashbaum told the News Journal earlier this year. "It has taken Delaware four years."

In Delaware, as in other parts of the country, there are no reliable statistics for transgender youth. More than 4,500 adults in the state identify as transgender, the ninth-highest percentage by population nationwide.

According to GLSEN, a nonprofit founded by a group of Massachusetts teachers who wanted to create safer schools of LGBTQ students, there are 14 states that have law or regulations that protect LGBTQ students from discrimination at school. There are 18 states that have anti-bullying laws that specifically prohibit bullying and harassment of students based on sexual orientation and gender identity.

Research shows that 41 percent of transgender people, or about 4 out of 10, attempt suicide at some point in their lives, versus 4.6 percent of the general public.

While many would contribute the high rate to mental illness or regret over transitioning from one gender to another, studies show transgender people who are rejected by their families or lack social support are much more likely to consider suicide and attempt it.

Conversely, those with strong support were 82 percent less likely to attempt suicide than those without it. Another study showed that transgender youth whose parents reject their gender identity are 13 times more likely to attempt suicide than transgender youth who are supported by their parents.

Concerns about both the suicide rates and lack of student support were brought up at community meetings held while drafting the DOE regulation, minutes show. Also discussed was how to balance parental rights and student safety.

There were four community conversations held all together, as well as four "development team" meetings. The committee that drafted the regulation was made up of school officials, parents, school board members and one advocate, as well as Secretary of Education Susan Bunting. There were also three students in the group.

Rep. Ruth Briggs-King, R-Georgetown, said the community meetings – which took place between 6:30 p.m. and 8 p.m. over a period of 10 days – were inconveniently staged for parents to participate.

"They were held when families are collecting students from school activities, having dinner and assisting with homework," she said in a statement posted on the Minority Caucus' website.

Rep. Rich Collins, R-Millsboro, said in a statement "the forums appear to have been deliberately engineered to thwart public criticism, with participants broken into small discussion groups, limiting interaction and open debate."

Bunting was unavailable for comment, but a DOE spokesperson said agendas, meeting notes and minutes from the community conversations are available online. The meetings were also publicized by the governor's office.

Collins and Briggs-King say the proposed regulation is invalid, noting that "gender identity or expression" is not a legally protected classification under the Delaware Code covering public education.

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 – added new language to seven titles of the state code. However, those changes were not applied to Title 14, which covers public education.

Briggs-King points to language in House Joint Resolution 6, which is still pending action in the Senate, as further proof. The measure contains a provision explicitly stating that Delaware's laws on public education do not "prohibit discrimination based on gender identity or expression."

The resolution was sponsored by Rep. Debra Heffernan, D-Brandywine Hundred, and passed the House in June. Heffernan said the anti-discrimination regulation was crafted at Carney's direction so students can learn in an inclusive environment where they feel safe and respected.

“Everyone should have the opportunity to be heard on the proposed regulation," she said in a statement. "I hope all who have views on the issue will take the time to comment. However, some of the comments are being stirred by propaganda pushed by individuals who routinely spread misinformation, or by others who trivialize gender identity and the challenges it can present for young people. We need people to resist being swayed by these views and remain focused on every student’s right to learn in a safe, inclusive environment.”

Collins said there has been a rapid push to implement the anti-discrimination regulations, outside the authority of law and escaping the attention of most parents and elected officials. He said the new rules would produce confusion and likely create additional disputes and lawsuits.

"I believe the proposed policy is outlandish, allowing children of any age to 'self-identify' their gender and race and to choose a new name that school officials must use," he said in a statement. "There is no limit in Rule 225 as to how many times these actions could be taken by the student."

He has urged the Department of Education to delay action on the regulation to address concerns about its language.

Delaware Democratic Party Chairman Erik Raser-Schramm said Collins is creating controversy by offering a "bizarre and deceitful critique" of the proposed regulation. He hoped other Republicans would be more open-minded.

"His comments show he’s completely oblivious to the issues facing trans students in our schools, and that he lacks even the most basic comprehension of what it means to be trans," he said. "But Mr. Collins’ comments aren’t worth another breath here. What’s important to convey is that the vast majority of Delawareans who care deeply about equality and protecting our kids from bullying can rest assured that Democratic leaders will continue to insist on ensuring safe learning environments for all, including trans kids."

Contact Jessica Bies at (302) 324-2881 or jbies@delawareonline.com. Follow her on Twitter @jessicajbies.

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