LOUISVILLE, Ky. — The Kentucky Department of Education released new guidance Monday on a controversial anti-LGBTQ+ law that outlaws school lessons that cover gender identity and gender expression.
KDE and school districts across the Commonwealth have been developing plans to implement the new law since it passed on March 29.
On Monday, KDE focused-in on the use of the word "or" and how it connects two clauses in section 1D, which reads:
"(1) If a school council...adopts a curriculum for human sexuality or sexually transmitted diseases, instruction shall include but not be limited to the following:
...
(d) A policy to respect parental rights by ensuring 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..."
In the department's latest guidance to districts, KDE says "by utilizing the conjunction 'or' SB 150 requires one of these two policies, but not both."
Sam Marcosson is a law professor at the University of Louisville. He specializes in constitutional law, sexual orientation and the law and believes KDE is legally sound by releasing this new guidance.
"I'm not necessarily saying that's an absolute, and the only reading of the statute, but it's a reasonable one. And courts tend to defer to reasonable readings of statutes by administrative agencies," he said.
The law's author, Republican Senator Max Wise, R-Campbellsville, caught wind of this Wednesday night, and accused KDE of injecting politics into the classroom and calling it "an 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 wrote in a statement.
"The Beshear administration is, by extension of Commissioner Jason Glass and the Kentucky Department of Education, making a feeble attempt to undermine the law," he continued.
Wise went on to cite a 1952 court case, Chilton v. Gividen, which held, “an interpretation [of a statute] which will lead to an absurd result will be avoided."
"Notice they had to look to a case more than 70 years old in order to make that point," Marcosson said.
A spokesperson for the KDE said the updated guidance was designed to provide additional clarity regarding the policies and parental notices required in SB 150.
"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," Konz Tatman continued.
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