As academic year starts, schools deal with Kentucky’s controversial anti-LGBTQ law

As another academic year gets underway, Kentucky school districts are figuring out how to implement a new state law targeting transgender students and how they use some facilities, as well as banning the teaching of certain topics.

Senate Bill 150 bans lessons on gender identity and sexual orientation, and prevents trans students from using bathrooms that correspond with their gender identity, among other new policies.

In newer guidance released over the summer, the Kentucky Department of Education encouraged school districts to use a “loophole” in SB 150 that could allow educators to teach about sexual orientation and gender identity.

However, Republican Attorney General Daniel Cameron, a gubernatorial candidate, says KDE’s reading of the law is flawed and circumvents the intent of the state legislature. In return, KDE said it won’t change its guidance.

Here’s what else you might have missed this summer in the back-and-forth over Senate Bill 150.

What is Senate Bill 150?

In addition to banning lessons on gender identity and sexual orientation, Senate Bill 150 bans puberty blockers, hormones and gender affirming 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.

Under SB 150, boards of education must adopt policies to “not allow students to use restrooms, locker rooms, or shower rooms that are reserved for students of a different biological sex” after allowing public comment on the issue at an open meeting.

School districts are required to provide “the best available accommodation” to students who assert that their gender is different from their biological sex and whose parent or guardian provides written consent.

Under the new law, the “accommodation shall not include the use of school restrooms, locker rooms, or shower rooms designated for use by students of the opposite biological sex while students of the opposite biological sex are present or could be present.”

What’s the ‘loophole’ KDE says it found?

In early June, KDE released new guidance around SB 150 saying 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 says that schools should interpret the use of “or” as a directive to choose one of those two bans.

Cameron, in an opinion from the attorney general’s office, disagreed with KDE’s interpretation.

School districts are prohibited from providing instruction exploring gender identity, gender expression, or sexual orientation to students in any grade, he said. School districts are not given the option to choose which of these prohibitions they must implement, he said.

Can Cameron’s opinion stop school districts from following the guidance?

Amye Bensenhaver, a former Kentucky Assistant Attorney General, said in less political times, the courts stated that an Office of Attorney General advisory opinion was highly persuasive but not legally binding.

“While some of my former colleagues may apply a more liberal standard, I look at the statute and regulation establishing conditions for furnishing opinions ...and find no authority for issuing an opinion without having been requested to do so,” Bensenhaver said.

The question was not submitted to the attorney general, Bensenhaver said. Cameron departed from his own precedent by issuing the opinion without prompting from another party, she said.

Michael Frazier, a Republican lobbyist and political operative who fought against the provisions in SB 150, said the attorney general and his staff are good attorneys, but the state “is navigating new waters.”

“Nonetheless some of these waters are clear, particularly when it comes to transgender rights as recognized by the Sixth Circuit,” he said.

The only intent of the legislature was to pass the bill and its text, said Frazier.

“Daniel Cameron is free to offer all the opinions he wants on how SB 150 should be interpreted and his beliefs on whether it conflicts with federal law,” KDE Commissioner Jason Glass said in July. “However, such matters are not settled by Cameron’s opinion — they are settled in court. Additionally, the General Assembly may provide greater clarity in their statute once they gavel into session to correct any errors they may have included.”

So how are school districts implementing the law?

On August 7, Jefferson County Schools, which covers many Louisville schools, implemented SB 150.

The policy includes the concerns the district has with the new law. The policy also gives students who have gender dysphoria, or psychological distress in connection with gender identity, accommodations such as use of a certain restroom for a student, the Courier-Journal reported.

The law prevents transgender students from using the bathroom that corresponds with their gender identity.

The Fayette County school board, in Lexington, voted to follow the KDE guidance that suggests gender identity and sexual orientation instruction bans do not have to apply to middle and high school students.

“Fayette County will continue to offer inclusive, educational options for all of our students. We will always put the children of Fayette County first and follow the letter of the law,” said Fayette Superintendent Demetrus Liggins.

Despite protests from the LGBTQ community, the school board also voted to follow the portion of the new law that prevents transgender students from using the bathroom that corresponds with their gender identity.