One word in Kentucky’s school ban on gender, sexual orientation lessons could undo part of law

A marquee piece of Senate Bill 150 – a hotly contested GOP priority bill that Republicans argued protected children and parents but Democrats said was anti-LGBTQ – may be undermined by the bill’s own language.

In new guidance, the Kentucky Department of Education (KDE) says that the use of “or” instead of “and” in a bulleted list of prohibited items allows school districts to teach students about sexual orientation and gender identity if they so choose.

The word “or” links proposed bans on any instruction “on human sexuality or sexually transmitted diseases (STDs)” in grades K-5 to a ban on instruction on “gender identity, gender expression, or sexual orientation” for all grades. The KDE guidance, released on Monday, says that schools should interpret the use of “or” as a directive to choose one of those two bans.

Previous guidance released by the KDE in April did not mention this wrinkle in the law.

If school districts chose to enact the K-5 ban on sexuality and STDs, then they’d be able to still offer instruction related to gender identity and sexual orientation, according to the guidance.

“Under this scenario, instruction on curriculum for human sexuality or sexually transmitted diseases at the high school level would not be impacted,” the guidance reads.

That would run counter to the desires of at least two lawmakers involved in the formation and passage of SB 150.

Sen. Max Wise, R-Campbellsville, was the sponsor of SB 150. In a statement he derided the KDE’s guidance as “an absurd effort to skirt state law.”

“Obviously, the legislature would not pose these two requirements, which protect children and protect parental rights, as a binary choice for school systems to select to enforce,” Wise said. “The role of the executive branch is to faithfully execute the law. The Beshear administration is, by extension of Commissioner Jason Glass and the Kentucky Department of Education, making a feeble attempt to undermine the law and shamelessly inject politics into Kentucky classrooms.”

Wise also referenced a court ruling from 1952 that stated “an interpretation [of a statute] which will lead to an absurd result will be avoided,” and “when necessary to carry out the obvious intention of the Legislature, disjunctive words can be construed as conjunctive, and vice versa.”

In a statement released on Wednesday night, KDE spokesperson Toni Konz Tatman emphasized that the KDE’s guidance was non-binding for school districts.

“The Kentucky General Assembly chose to use the conjunction ‘or’ not ‘and.’ When it comes to state law, words have meaning and KDE simply read the words adopted by the General Assembly,” Tatman said.

Rep. Josh Calloway, R-Irvington, echoed Wise in that the bill was not intended to provide an “either/or” option for school districts.

“The intent of the bill, for those particular sections, was that there was to be no instruction at all in regards to human sexuality or STDs in grade five or below and also any child, regardless of grade level, does not receive any instruction (related to sexual orientation or gender identity),” Calloway said. “It was intended to look like: ‘rule number 1: don’t do this’ then ‘rule number 2: don’t do this.”

Relatedly, Calloway recently received criticism for including a line in a description of his podcast that the LGBTQ community was “a disease.” He has not apologized for his comment, but later said that a producer wrote the description and the language was changed to clarify that he was referring to LGBTQ “ideology” and not individuals.

In addition to banning lessons on gender identity and sexual orientation, Senate Bill 150 bans puberty-blockers, hormones and surgeries for kids under 18, prevents trans students from using the bathroom that corresponds with their gender identity and stops school districts from requiring teachers use a student’s pronouns if they don’t align with their sex assigned at birth. The American Civil Liberties Union of Kentucky recently asked a federal judge to temporarily block the state from enforcing the portion of SB 150 that bans puberty-blockers and hormones for minors.

Michael Frazier, a Republican lobbyist and political operative who is gay and spent much of last session fighting against the provisions in SB 150, celebrated the guidance. He called the use of ‘or’ instead of ‘and’ a “glaring mistake.”

“My, my, my. What a remedy we found with the use of the word ‘or’ from the Kentucky General Assembly. This is a glaring mistake,” Frazier said.

Bills are generally drafted by staff members at the Legislative Research Commission at the request of lawmakers. The final version of SB 150 — which combined elements from several LGBTQ-related bills proposed earlier in this year’s session — was not made public until GOP lawmakers moved on it at the last possible day it could pass with time to override a veto from Gov. Andy Beshear.

Beshear, at a press conference on Thursday, indicated that he agreed with KDE’s reading of the bill. He also criticized the short window of opportunity for public feedback on the final version of SB 150 before the legislature passed it.

“If you pass a law saying ‘you can do this or that,’ it’s a lot different than (passing) a law saying ‘you must do this and that.’ Whether or not it was intentional or unintentional, it was the law that they passed,” Beshear said. “… This is what happens when you shield a law from the public.”

Frazier added that he believes schools will choose ‘option one,’ to ban sex-related education in grades K-5 because choosing to follow through on the ban on instruction related to sexual orientation and gender identity would expose them to lawsuits.

“Schools will choose one. It’s still the school district’s choice. Now it’s up to the schools: either teach or face an unparalleled lawsuit. Option one is the benign one. Option two is being sued, based on First Amendment grounds, into oblivion,” Frazier said.

The guidance does not affect the interpretation of any other hot-button topics addressed in SB 150 as directly as it does the ban on instruction related to sexual orientation and gender identity. However, the KDE did not fully sign onto the ban on transgender students from using the bathroom that corresponds with their gender identity, citing a United States Court of Appeals for the Sixth Circuit ruling that “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.”

KDE’s top official, commissioner Jason Glass, has become a frequent target of conservatives after he suggested that teachers who don’t use students’ preferred pronouns should “find something else to do.”