Transgender rights battle spurs Delaware GOP to seek Constitutional amendment for ‘parental rights’

Gov. John Carney’s attempts to create an anti-bias policy in Delaware schools that would protect all children, especially transgender ones, ran into a conservative buzz saw this year.

The policy as drafted, known as Regulation 225, would have given schools the power to let children use a different name at school than at home without notifying their parents if officials felt the child’s well-being was at risk. Advocates say children who identify by a different gender are often ostracized by parents or harshly disciplined, and face a high rate of suicide.

But fierce opposition by parents’ rights advocates and leading Republicans led the Carney administration to scrap that provision of Regulation 225 in May.

To prevent that proposal or a similar one from resurfacing again, almost all of Delaware’s House and Senate Republicans are seeking to codify such parental rights in the Delaware Constitution, and restrict government from interfering in them.

The proposed constitutional amendment, sponsored by 21 of the 26 Republicans in the General Assembly, states that “the right of a parent to the care, custody and control of their child is a fundamental right that resides first in the parent.”

Beyond that declaration, the measure stipulates that the state or its agencies or subdivisions cannot “infringe on the parental right’’ without first demonstrating that the government’s interest is a compelling one that will be “addressed by the least restrictive means.”

The proposed amendment would not give parents the authority to abuse or neglect a minor, or prohibit courts, police or child welfare agencies doing their jobs.

One of the main sponsors, Representative Charles S. Postles Jr. of Milford, said Regulation 225 was an example of the state seeking to use its power to usurp parental rights. He said 31 other states have similar laws or case law upholding the power of parents.

“When Regulation 225 was initially released, it pointed out the need for parental rights to be protected,’’ Postles told WHYY. “It pointed out how government could suggest regulations – more than suggest – make it really the effect of law or regulation without the consideration of parental rights.

“So 225 did crystallize this need for putting in place protection of parental rights by this amendment that would then really make government look at the high legal standard they needed to meet before they could impose regulations” that usurp parental rights.

Postles added that over the years, officials in education and other Delaware government agencies have enacted several laws and policies that “erode” parental rights. Asked to specify some other restrictions on parents, Postles could only cite the fact that long ago, schools began teaching sex education to both boys and girls.

But Joseph Fulgham, spokesman for House Republicans, noted that when the Equal Rights Amendment passed in Delaware this legislative session, “the sponsors cited no instance of discrimination against women the new ERA would address that current law did not. They maintained that stipulating the right of women to equal treatment in the constitution was a worthy statement of purpose that could potentially avoid issues in the future.”

The parental rights amendment is being offered for those same reasons, Fulgham said, adding that in Delaware and some other states parental rights are “not well-defined in law.”

Mark Purpura, a lawyer, LGBT advocate and member of the panel that developed Regulation 225, said he suspects that the proposed amendment was also done to retaliate against a bill to ban conversion therapy of minors. The amendment was introduced by supporters of conversion therapy on the same day the bill to prohibit the practice passed.

Conversion therapy is the practice of trying to change someone’s sexual orientation from homosexual or bisexual to heterosexual through psychological or spiritual interventions.

“They are basically doubling down on conversion therapy with this constitutional amendment,’’ Purpura said. “We view this as a political ploy on the backs of LGTB and at-risk youth.

Purpura said the amendment would be in conflict with some current laws or policy.

“It would be at odds with a variety of statutes that have been passed in Delaware, including statutes that are meant to protect youth and their privacy with respect to STD testing or counseling services, access to contraception.”

“This is a very broadly written constitutional amendment that frankly would facility abuse of children in Delaware and have very bad outcomes for children in Delaware.”

Postles and other supporters don’t expect the bill to get a vote on the final day of the legislative session Saturday.

The bill also would need a two-thirds vote by both the House and Senate for two consecutive sessions. Each session lasts two years, so even if the amendment does ultimately pass, it would be three years at the earliest before it could take effect.