Did lawmaker goof on Kentucky's anti-trans bill 'or' not? SB 150 may have loophole

At least one Kentucky Republican lawmaker is livid the state agency attorneys tasked with explaining his sweeping anti-trans law are interpreting the law as he wrote it.

Senate Bill 150, sponsored by Sen. Max Wise, R-Campbellsville, ranges from what pronouns teachers can use for their students to access to gender-affirming health care to what schools can teach students about sex.

In a move Wise called “absurd” Wednesday — two days after it happened — Kentucky Department of Education officials informed districts that his bill gives them the choice between prohibiting all mentions of gender identity and sexual orientation across all grades or waiting to discuss human sexuality until sixth grade.

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If that seems like a far cry from what lawmakers initially said they were passing, that’s because it is. Wise and others said they intended for the bill to do both things: limit sex ed to sixth grade and higher, along with blocking all conversations about gender identity or sexual orientation.

But the law uses an “or” when could have instead used an “and” — a fact KDE spotted and shared.

“By utilizing the conjunction ‘or’ SB 150 requires one of these two policies, but not both,” explains a new footnote on KDE's previous guidance on the subject.

But, Wise said in a statement, “it is clear the legislature meant” schools shouldn’t have either piece.

"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.

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But that’s what they did, according to KDE’s legal team and policy experts. The Education Department's guidance document spends a few pages dissecting how SB 150 could impact districts, depending on what route they choose.

The department regularly offers guidance to Kentucky’s 120 school districts regarding the legal landscape around education, along with best practices for a variety of things. The grammatical spotting came as a larger set of advice on how to implement new education-focused laws passed this spring.

"The Kentucky General Assembly chose to use the conjunction 'or' not 'and,’” KDE spokesperson Toni Konz Tatman said. “When it comes to state law, words have meaning and KDE simply read the words adopted by the General Assembly."

Wise's initial version of SB 150 focused narrowly on allowing teachers to misgender students, staying away from more far-reaching bills on "parents' rights" in education and blocking access to gender-affirming health care for trans youths.

But when Republican infighting over how far legislation on gender-affirming care should go appeared to threaten a different bill's chances of passing late in the session, lawmakers and conservative lobbyists worked late into the night to find a compromise.

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The next day, which was the last day to pass bills before the veto period, Wise presented a new version of SB 150 with a combination of other bills' features. The language subject to KDE scrutiny appears to come from House Bill 177, which called for a policy promising parents their children wouldn't learn about human sexuality before middle school or learn about gender identity or sexual orientation at any grade level. When the language moved to SB 150, though, it was reformatted and attached to a different part of state law, changing the meaning of "or."

Carolyn Callahan, a spokeswoman for Jefferson County Public Schools, said the district was not in position yet to comment on the updated guidance.

This story may be updated.

Reach Olivia Krauth at okrauth@courierjournal.com and on Twitter at @oliviakrauth.

This article originally appeared on Cincinnati Enquirer: SB 150: Kentucky Education Department finds anti-trans bill loophole