A new opinion issued this week from the Kentucky Attorney General’s office says that guidance issued by the Kentucky Department of Education over how schools should implement a new law banning gender-affirming care is flawed.
In early June, the education department changed some of its guidance over Senate Bill 150 — a sweeping bill that bans gender-affirming care and issues stringent rules for how schools approach and teach human sexuality — after it interpreted a change in meaning in the bill over the use of the word “or” that allows school districts to choose what parts of the law it implements into its curriculum.
But, Attorney General Daniel Cameron’s office called that interpretation “flawed” and said that the bill doesn’t allow the education department or educators to choose how it interprets the law.
“Senate Bill 150 does not permit school districts to choose one of its two restrictions on curricula content,” the opinion, written by Assistant Attorney General Jeremy J. Sylvester, says. “The law prohibits not only instruction on human sexuality or sexually transmitted diseases for children in grades five or below, but also instruction, for any grade level, on gender identity, gender expression, or sexual orientation.”
The State Department of Education issued new guidance for the bill after the department interpreted whether using the word “or” 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 education department also said in their revised guidance that the law might violate Title IX over the bathroom and locker room guidance, which states that students can’t use bathrooms or locker rooms not aligned with their biological sex.
Previous legal opinions from the U.S. Supreme Court have said, “Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination,” according to Dodds v. United States Department of Education.
In response, the opinion from Cameron reads that the schools won’t violate Title IX because the Department of Education’s interpretation would render the legislature’s intent in the law meaningless.
“Neither existing binding legal precedent nor statutory or regulatory law holds or declares that a school district would violate Title IX by implementing Senate Bill 150’s provisions concerning preferred pronoun policies and policies concerning the use of facilities including restrooms, locker rooms and shower rooms in public schools,” the opinion says.
Randy Poe, the executive director of the Northern Kentucky Education Council and former superintendent in Boone County, previously told LINK nky that he thinks the bill will play out in the courts — especially around Title IX and athletics.
“I think the biggest issue that you’re going to have is the difference within the state and federal policy in relationship to athletics,” Poe said.
According to Poe, the Kentucky High School Athletic Association will have to issue guidance on the different issues concerning Title IX and other statutes in this area.
“The biggest issue is the litigation that will probably come from Senate Bill 150 over participation in athletics, and ultimately, the courts are going to have to decide that particular issue because there is a conflict between federal and state policy,” Poe said.