‘Or’ ignites latest conflict over what Kentucky schools may teach about sex, gender

Editor’s note: This story was updated with comments from Gov. Andy Beshear Thursday afternoon.

A disagreement over the meaning of “or” in a controversial anti-trans law has ignited the latest conflict between a prominent Republican lawmaker and the Kentucky Department of Education.

Sen. Max Wise criticized the new KDE guidance as “a feeble attempt to undermine the law,” referring to new restrictions on teaching about sex and gender.

Earlier this week, the department updated its legislative guidance to schools on recently passed bills, including Senate Bill 150. The ACLU of Kentucky called the bill the “worst anti-trans bill in the nation.”

In a memo to schools, KDE highlighted the use of “or” in a section of the bill, seemingly advising that the new law gives schools a choice: Either not teach students in fifth grade and below about human sexuality or sexually transmitted diseases or not give instruction on exploring gender identity, expression or sexual orientation to any students.

Toni Konz Tatman, a spokesperson for KDE, said in an email the updated guidance “was designed to provide additional clarity to school districts regarding the policies and parental notice required by Section 2 of SB 150” and school districts had requested “additional guidance and technical assistance concerning SB 150.”

“As the state education agency, KDE is charged with providing guidance and technical assistance to school districts on all educational laws and programs,” she 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.

“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.”

Wise, R-Campbellsville, released a statement Wednesday evening and cited a 1952 court decision in Chilton v. Gividen that “‘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.’”

“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 also added that the General Assembly “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, who was the running mate of former GOP gubernatorial candidate Kelly Craft, said the executive branch’s role is to “faithfully execute the law.” Wise said that as part of Democratic Gov. Andy Beshear’s administration, KDE and Education Commissioner Jason Glass are “making a feeble attempt to undermine the law and shamelessly inject politics into Kentucky classrooms. KDE demonstrates its clear political lean when it gives SB 150 such a contorted interpretation.”

During the legislative session and on the campaign trail for the governor race, Republicans have criticized Glass and called for his removal because of the department’s past guidance on inclusive LGBTQ+ policies.

By the end of the 2023 legislative session, the General Assembly passed a version of Senate Bill 150 that not only banned gender affirming care for Kentucky’s trans youth but also required schools to create policies keeping people from using bathrooms, locker rooms or showers that “are reserved for students of a different biological sex” and put new restrictions on sex education in public schools.

Beshear vetoed the bill but the General Assembly, which has a Republican supermajority, easily overrode it.

The governor was asked about Wise’s comments and KDE’s interpretation during his weekly press conference Thursday afternoon. He criticized the legislature’s quick passage of the bill in the final days of the session after amendments. A committee hearing of the bill’s final version was called with minutes’ public notice.

Beshear likened the move to a 2018 effort to overhaul public pensions in the form of a sewer bill. The Kentucky Supreme Court later stuck the law down.

“Whether or not it was intentional or unintentional, it is the law that they passed,” Beshear said. “And we can’t read a law having different words in it than what is actually on the paper that they vote on and that they ultimately pass.”

Kentucky high school students led protests against the bill in Lexington and Louisville.

In KDE’s most recent guidance, it also said that because of Senate Bill 150, it is “no longer able to provide guidance to schools or districts related to the use of requested pronouns” and that 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,” and advised school districts to seek advice from their school board’s legal counsel.