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State pulls the plug on controversial anti-discrimination regulation

Delaware Public Media

The Delaware Department of Education is starting over on a policy protecting transgender students.

“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,” said Secretary of Education Susan Bunting in a statement. “For those reasons, we’re not going to finalize the current proposed version of the regulation.”

Gov. John Carney specifically pointed to the U.S. Court of Appeals for the Third Circuit in Philadelphia handling of the Boyertown (Pa.) School District's policy allowing transgender students to use bathrooms and locker rooms that correspond to their gender identity as a factor in the move. In May, a three judge appeals court panel affirmed a lower court ruling that the policy doesn’t significantly harm other students and having transgender use separate facilities is a form of discrimination.

Last week, the Third Circuit denied a request for the 12 person full court to rehear the challenge to that policy. But several justices suggested the May opinion should not have delved into whether Title IX would constitutionally require the district to maintain its current policy. In response, the three-judge panel vacated its previous decision, replacing it with one that relied less on the Title IX argument.

"In light of the recent Boyertown decision by the Third Circuit, and the comments received from across our state, we are considering our next steps on Regulation 225," said Carney in a statement. "We will remain committed to public engagement as we determine the path forward."

In June, state education officials revised the First State's proposed policy after facing overwhelming criticism from parents opposed to allowing students to choose their gender and race without parental consent.

But that sparked a backlash from civil rights activists arguing the changes may mean school would have to “out” children to their parents.

The revised policy proposal also would have allowed schools to use separate facilities for transgender students instead of bathrooms that correspond to their gender identity.

State officials says they received over 6,000 comments in response to the revised regulation proposal.

Equality Delaware’s Mark Purpura says he hopes to work with Gov. John Carney’s administration on a policy that is more consistent with the recent court ruling.

“It’s a good move, it’s a smart move to re-evaluate the regulation in light of the Boyertown case and other cases across the country as well,” he said.

Gov. John Carney (D-Delaware) ordered education officials to develop a policy protecting transgender students last year after President Trump’s administration withdrew guidance allowing transgender students to use bathrooms matching their gender identity.

State Rep. Ruth Briggs-King (R-Georgetown) says she’s happy the administration has decided to start over on crafting a regulation. But she adds the state already has anti-discrimination policies that comply with federal law.

State Rep. Richard Collins (R-Millsboro) says the current language of Regulation 225 gives everyone flexibility because it lacks specificity.

"It allowed attitudes to change, it did not create resentments," he said. "It was something no one objected to on constitutional or legal grounds."

But Purpura argues work on an anti-discrimination policy for schools is still needed.

“There absolutely needs to be a clear regulation that protects students against discrimination based on gender identity,” said Purpura.

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