Does using “or” instead of “and” change Senate Bill 150’s meaning?
The Kentucky Department of Education said it does, so it changed some of its guidance on Monday for schools on implementing the bill that bans gender-affirming care and issues stringent rules for how schools approach and teach human sexuality.
The bill’s primary sponsor, Sen. Max Wise (R-Campbellsville), said an “absurd” interpretation of the bill would not stand.
Northern Kentucky Sens. Shelley Funke Frommeyer (R-Alexandria) and John Schickel (R-Union), two of the bill’s co-sponsors, said they agreed with Wise’s statement.
The state department of education issued new guidance for the bill after the department interpreted whether using the “or” conjunction presents schools with a choice on whether to implement parts of the bill relating to sexually transmitted diseases, instruction on human sexuality, gender identity, gender expression, or sexual orientation.
“SB 150 also presents districts with a choice,” the new guidance reads. “That is, if a curriculum for human sexuality or sexually transmitted diseases has been adopted for a school, the school district must determine whether its policy will require that: (1) ‘Children in grade five (5) and below do not receive any instruction through curriculum or programs on human sexuality or sexually transmitted diseases; or [2] Any child, regardless of grade level, enrolled in the district does not receive any instruction or presentation that has a goal or purpose of students studying or exploring gender identity, gender expression, or sexual orientation.'”
The department added a footnote at the bottom of that page clarifying that the legislature’s use of the word “or” changes the meaning.
“By utilizing the conjunction ‘or’ SB 150 requires one of these two policies, but not both,” the department says in the page 9 footnote.
“The Kentucky General Assembly chose to use the conjunction ‘or’ not ‘and,'” said the department’s spokesperson Toni Konz Tatman. “When it comes to state law, words have meaning, and KDE simply read the words adopted by the General Assembly.”
The department said its job is just to issue guidance on educational laws.
“As the state education agency, KDE is charged with providing guidance and technical assistance to school districts on all educational laws and programs,” Konz Tatman said. “The guidance produced by KDE gives administrators and educators information to consider when a district is devising its own policy, but this is guidance only.”
But, via a statement, Wise said the department’s take on the law is absurd, and case law states that these interpretations should be avoided.
“It is clear the legislature meant, in Section 2(1)(d) of SB 150, that schools shall not have classes in human sexuality in grades five and below, or study gender identity, gender expression, or sexual orientation at any grade level,” Wise said.
He further said that the legislature wouldn’t give schools a choice between these two requirements.
“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.
Funke Frommeyer said she was in full agreement with Wise.
Schickel further said that if there is an issue with the statute it should be corrected, but the department knows the intent of the legislature.
“The Department of Education knows what the intent of the legislature is and they ought to follow the intent of the legislature,” Schickel said.