Team will meet again in January to review comments

A group tasked with coming up with regulations that would prohibit discrimination against gender identity or expression in Delaware public schools will review the more than 11,000 public comments received on their proposal and come back next month with any recommendations for changes.

In July, Gov. John Carney issued a memorandum to the Delaware Department of Education asking them to develop a regulation and model policy that would prohibit discrimination based on gender, race and/or ethnicity, gender identity or expression, sexual orientation or any other protected characteristic. Under the DOE’s guidance, each district would then create their own policy and tailor it to the needs of their students.

“It is critical that all schools in Delaware be welcoming, inclusive places where students and staff members alike can flourish,” the governor’s memo read.

An anti-discrimination development team was formed to include DOE Secretary Susan Bunting and various superintendents, principals and parents from across the state, an LGBT advocate and three unnamed students. The team reviewed the first draft of the regulation throughout September and October at meetings held at the DOE offices and at public “community conversations” held at schools in each county. 

Comments from the public regarding Regulation 225 were accepted through Dec. 4. Over 11,000 were received.

Split opinions

Some of the most hotly debated passages in the proposed regulation were brought up by the Delaware School Boards Association in their official opposition statement.  According to the DSBA, Regulation 225 is at odds with students’ constitutional right to privacy and passes the onus of potential lawsuits from the DOE to the school boards.

“On one side, you have transgender students’ right to access free education. On the other hand, you have the non-transgender students’ right to privacy,” Marinucci said. “So if you have a transgender student in a locker room or bathroom of their identified gender but not their birth gender, it has the potential to cause others to feel as though their rights have been impinged because they have the right to privacy.”

The proposed regulation states that the school districts “shall work with students and families on providing access to locker rooms and bathrooms that correspond to the student’s gender identity or expression.”

Mark Purpura, an attorney, the president of the Equality Delaware Foundation, a board member of CAMP Rehoboth and a member the anti-discrimination development team, argued that the regulation will not force students into uncomfortable situations.

“It’s not OK to discriminate simply because you feel uncomfortable, but your discomfort shouldn’t be ignored. The administration should make a reasonable effort to accommodate everyone, and that may mean they have to use a coach’s room or something like that or they may have to wait. It’s a case-by-case decision,” he said.

The DSBA also opposes Regulation 225 because it “potentially usurps parental rights.” The regulation would allow school administrators to choose whether to inform parents when students wish to change their preferred name, based on whether informing the parents would affect the physical and/or emotional well-being of the student.

“It puts school board members, administrators and teachers between parents and their kids,” Marinucci said.

Purpura made a different point.

“If you call a parent up and say, ‘Hey, your child has asked to be called a name of a different gender,’ you’re essentially outing that student to their parents and they may not be ready for that,” he said. “Depending on the home situation, it could cause extreme reactions.”

Regulation 225 would also allow students to self-identify their race, which both the DSBA and the Central Delaware NAACP have spoken out against.

“Being born black is an invariable fact,” said Central Delaware NAACP President Lamar Gunn.

Purpura pointed out that students can already choose which race to identify with within the school system, and noted that, at times, young students are irrational and may indeed choose to identify with a race completely unrelated to them.  However, in that case, Purpura said, the school would simply handle it in whatever way they’re handling it now.

Lastly, the DSBA asserts that Regulation 225 will force some school districts to choose between compliance with the DOE and serving their community.

“The regulation … requires school boards to adopt a policy with mandated language that possibly conflicts with the interests and needs of the community the district serves,” reads the DSBA’s statement.

Marinucci said the DSBA does not condone, tolerate or accept any form of discrimination, but feels that something of this “political and societal magnitude” should receive the legislative treatment.

“It shouldn’t be regulated into existence,” he said.

Purpura feels the powers delegated by the General Assembly to the Department of Education are sufficient.

“They’ve delegated broad power to the Department of Education to develop and implement an efficient public school system in Delaware,” he said.

Time for consideration

The day after the comment period closed, the DOE issued a statement saying that each of the 11,000 comments they received deserve careful review before a decision is made.

Bunting has asked the anti-discrimination development team to reconvene in January to make recommendations for changes to the regulation. If substantive changes are made, the new version of Regulation 225 will be published and the public will be given 30 days to comment.

An exact date for the meeting is to be announced and will be posted at www.doe.k12.de.us.