Regulation 225 sparks parental rights bill that gives parents last say; not state

Jessica Bies | The News Journal

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Even as a prominent transgender activist is calling for a controversial school anti-discrimination regulation to be withdrawn, state Republicans want to change Delaware's constitution to ensure parental rights always trump state rules.

A proposed constitutional amendment seeks to assert parental rights in Delaware by prohibiting the state from creating or enacting laws and policies that infringe on parents' ability to make decisions about the "care, custody and control" of children under the age of 18.

Scroll down to see the full text of the proposed amendment.

BACKGROUND

Regulation would no longer let students 'self-identify' gender without parents' permission

State educators union supports controversial anti-discrimination policy

Education Department won't investigate transgender students' bathroom complaints

The amendment is written in response to Regulation 225, said sponsors Deborah Hudson, R-Fairthorne, and Charles Postles, R-Milford. First released in draft form in September, the regulation would have allowed students to self-identify their gender and race without their parents' permission.

“Rule 225 crystalized the need for parental rights protections in our code," Postles said. “The state should not be able to usurp parental rights just because a few officials believe they know what’s best for your children."

They are eager to pass the amendment, which would also apply to adoptive parents and legal guardians, even though Regulation 225 has been substantially rewritten to require parental notification.

In the face of wide-ranging opposition, state Education Secretary Susan Bunting earlier this month made "responsive changes," which essentially gutted the regulation, people on both sides of the issue say.

She also reopened the public comment period through July 6.

With less than one week to go, Wilmington native Sarah McBride, a transgender activist and national press secretary for the Human Rights Campaign, took to Facebook this week asking that the latest draft of the regulation be withdrawn altogether.

“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," McBride said wrote in a post on Facebook. "Transgender kids in Delaware are frightened by this regulation, and we hope that the Delaware Department of Education and Governor Carney will immediately withdraw this draft to end this nightmare for trans kids in our state.”

Mark Purpura, who served on the team that drafted the first draft of the regulation and is president of the Equality Delaware Foundation, said not all transgender kids are accepted by their parents and some may be subject to physical and emotional abuse.

"These changes were crafted without the input or knowledge of the very team that spent months carefully drafting a comprehensive regulation," he said in a statement. Those changes run counter to federal civil rights laws and the overwhelming consensus of educational and medical experts, he said.

But opponents of Regulation 225 don't see it that way.

Hudson skirted questions about what would happen to transgender kids who were not accepted by their parents, saying only that conversations about gender and sexual orientation needed to be "put back into the family."

She said the constitutional amendment would level the playing field for parents and was "common sense," but not everyone is sold on the concept.

“My concern is that this may have unintended consequences," said Lori Sitler, executive director of Child Inc., a nonprofit that operates Delaware's only shelter for abused and neglected children.

She wants to see the General Assembly consult the Department of Family Services, Health Department, law enforcement and other agencies about the amendment and how it will impact their work.

The bill includes provisions to preclude it from being misused to shield abusive parents; or prevent law enforcement, the courts and child welfare agencies from acting in their official capacity, she acknowledged.

But it also requires that the government meets an extremely high legal standard to prove that intervention in a child's life or living situation is needed. If action does prove necessary, it limits state agencies or law enforcement from using anything but the "least intrusive means" possible.

In many states, the push for laws that assert parents’ fundamental rights over their children has come from parentalrights.org. For several years now, the organization has been trying to pass a U.S. constitutional amendment that guarantees parental rights, without success.

Among other things, parentalrights.org is fighting for parents to be notified if a teenage child receives medical treatment (which could include STD treatment and access to contraceptives) at school, according to its website.

The group also contests laws that prohibit conversion therapy, which is an attempt to "cure" gay and lesbian people. One such law recently passed in Delaware.

Rep. Hudson does not believe the new amendment will result in any existing state laws — like one that guarantees confidential HIV and STD treatment to those 12 and older — being rendered unconstitutional.

“If that was the case, I’d be concerned," she said.

She also rejected the idea that the amendment would make it harder for state agencies to protect children from abuse at home.

“We don’t want to protect parents that are not doing their job," she said. "We want them to have rights that they need when it comes to dealing with a state agency."

There are presently 31 states that have either a statute defining and protecting parental rights and/or have case law that interprets parental interests as a fundamental right, according to parentelrights.org. Delaware is one of the remaining 19 states with neither protection.

Hudson hopes to get her amendment passed by the end of the current legislative session but says she will introduce it again next year if necessary.

“This bill shouldn’t come as any surprise to people," she said. "I think a lot of people thought (parental rights) were common sense, and Regulation 225 was a shock to them.”

Comment on the regulation

To be considered as part of the public record, comments must either be submitted via email to DOEregulations.comment@doe.k12.de.us or via mail to the attention of Tina Shockley, Department of Education, 401 Federal St., Suite 2, Dover, Delaware 19901, by July 6.

Comment submitted to other email addresses or on social media will not be accepted. Find out more at doe.k12.de.us/antidiscrimination.

Proposed constitutional amendment

HOUSE BILL NO. 448

AN ACT PROPOSING AN AMENDMENT TO ARTICLE I OF THE DELAWARE CONSTITUTION RELATING TO PARENTAL RIGHTS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Article I of the Delaware Constitution by making deletions as shown by strikethrough and insertions as shown by underline as follows:

§ 21. Parental Rights

(a) The right of a parent to the care, custody and control of their child is a fundamental right that resides first in the parent.

(b) As used in this article, “parent” means the natural or adoptive parent or legal guardian of a minor child.

(c) Neither the state, nor any agency of the state, nor any political subdivision of the state, shall infringe on the parental right as provided under this article without demonstrating that the interest of the government as applied to the parent or child is a compelling interest addressed by the least restrictive means.

(d) The provisions of this article shall apply to any statute, ordinance, regulation, or policy regardless of the date on which the statute, ordinance, regulation, or policy was adopted or became effective.

(e) Nothing in this article shall be construed to authorize a parent to engage in any unlawful conduct, abuse, or neglect of a child in violation of the laws of this state or any political subdivision of the state.

(f) Nothing in this article shall be construed to prohibit a court, law-enforcement officer, or employee of an agency which provides child welfare services from acting in their official capacity within the scope of their authority.

SYNOPSIS

This act is the first leg of a constitutional amendment that protects parental rights.

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

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