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

Correction: An earlier version of this story misstated the mandates for accommodating bathroom and locker room access.

A controversial state anti-discrimination regulation that would have allowed students to self-identify gender and race without parents' permission has essentially been gutted, people on both sides of the issue say.

But while one camp is celebrating that fact, the other says it could have dire consequences for transgender kids in Delaware.

"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," the American Civil Liberties Union of Delaware said in a statement.

A group called "United Opposition to DE Regulation 225," on the other hand, is celebrating the fact that the rule has been rewritten to say students cannot self-identify gender or race without their parents' notification and permission.

"This is a victory," members of the group wrote. "We have won. The regulation is useless now."

Opponents are less pleased with the fact the regulation asks each school district and board to work with students to provide access to the locker rooms and bathrooms that correspond to their gender identity. They plan to make that clear during a one-month public comment period.

After that, the state Education Department may choose to revise the regulation again or finalize it.

Regulation 225 touched off an explosive debate in Delaware when it was first released in draft form in September.

Despite being introduced during the busy holiday season, it, along with a companion model policy for local school districts to adapt as they see fit, generated an unprecedented 11,000 public comments from across the country.

A majority of people came out against the proposal, according to a DOE spokeswoman, with in-state residents outnumbering those from outside Delaware.

Almost immediately, Breitbart News and other alt-right media outlets seized on the most controversial piece of the guidelines, which would allow students to self-identify their race and gender at school –– regardless of their age, even if their parents object.

Critics say young people aren't equipped to make such weighty decisions without parental input.

"The authority to raise children is not for the state. It's for the parent," Larry Mayo told the News Journal earlier this year. He said he has grandchildren in the Indian River School District and two relatives who are openly gay.

Transgender youth "deserve equal protection under the law," the Lewes retiree added. "They don't deserve special protection ... I got harassed because I was 5-feet-3-inches in the ninth grade. I dealt with it."

Jim Bianchetta, president of Wilmington/North Delaware PFLAG, a support group for LGBTQ children, parents and allies, said the regulation contained important protections, however.

More than half of transgender and non-gender-binary teens report having no adult in their family they can turn to if they're worried or sad, according to one study.

Only 27 percent reported that their families were "very accepting" of their gender identity. More than 50 percent of transgender youth report attempting suicide at least once in their lifetime.

In contrast, transgender children who are allowed to change their names and live as the gender of their choice experience normal, and not elevated, levels of depression, according to a 2016 study in the journal Pediatrics. Supportive environments also lowered attempted suicide rates.

For transgender students unable to express their true gender identity at home, Bianchetta said, school may be their only outlet. If the regulation is passed as is, they would lose that freedom and may be more likely to engage in unhealthy behaviors such as attempted suicide, drug or alcohol abuse and smoking.

“They’re just going to stay closeted," said Bianchetta, who hopes that the LGBTQ community and its allies will weigh in on the newly revised regulation and ask for the change to be undone.

“As I understand it, there is a provision for students to use bathrooms and locker rooms of their gender identity, and that’s certainly a step forward … I just wish there’s a solution to this parental permission issue,” he said.

The ACLU said the rule sacrifices 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.

"Transgender students are already at risk of violence in schools and family rejection," ACLU Executive Director Kathleen MacRae said in the statement. "This proposed regulation increases the odds that both of these negative impacts will harm more Delaware youth.

"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."

She called on Gov. John Carney to step in and fix the regulation.

"He must either stand up for these vulnerable students or abandon them," MacRae said. "It is his choice."

Scroll down to see the ACLU's full statement.

The regulation was written after Carney, facing pressure from transgender students and their parents, instructed the Delaware Department of Education to deliver clear guidance to "prohibit unlawful discrimination in educational programs and activities for students, on the basis of any legally protected characteristic," including race, ethnicity, sexual orientation, gender, gender identity or expression. The rules affect public district and charter schools.

Carney gave the department less than four months to formulate a draft; the regulation was supposed to take effect in January.

Instead, because the draft rule garnered so much negative feedback, the state Education Department reconvened the team that put it together in January.

They have not met again publicly since then.

Early Friday morning, the department announced that Education Secretary Susan Bunting had made "responsive changes" to the regulation and that it would be once again seeking public comment on its provisions.

This public comment period will be open until July 6.

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. Comment submitted to other email addresses or on social media will not be accepted.

The comments will be posted online after the public comment period ends.

The new version of the regulation is different in two big ways:

It removes the provision that allowed students to make changes on how they were identified without parental involvement and adds a requirement of parental notification and permission; and It substitutes the state’s suggested model policy for a guidance document to assist districts and charters in creating local policies.

Specifically, the new regulation states: "A school shall request permission from the parent or legal guardian before accommodating a request by a minor student that the school take action to recognize a change in any Protected Characteristic. Prior to requesting such permission, to safeguard the health, safety and well-being of the student, the school shall discuss with the student the permission process and, based on its discussions with the student, assess the degree to which the parent or legal guardian is aware of the change to the Protected Characteristic. If the student does not permit the school to request permission from the parent or legal guardian, then the request to take action shall not be accepted."

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

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ACLU Statement

Marked-up draft of Regulation 225