The Kentucky Department of Education (KDE) released guidance Monday to help school districts implement a sweeping anti-LGBTQ law state lawmakers passed last month.
The new law, Senate Bill 150, requires school districts to create new policies LGBTQ advocates say will harm students, including rules that prohibit transgender students from using school bathrooms and locker rooms that match their gender.
The measure also bans gender affirming medical care for minors, even though major medical associations say it can lead to reductions in suicidal thoughts and in depression.
The KDE guidance highlights the new law’s potential conflicts with existing federal protections around gender discrimination and student privacy.
“I understand that this guidance does not answer all the questions you may have,” Kentucky Commissioner of Education Jason Glass wrote in a message to school districts.
Glass said that parts of the bill “leave lots of unknowns about how these laws are going to be enacted in schools.”
“Some of the questions ultimately may be decided in court or by clarifying future legislation,” he wrote.
The ACLU of Kentucky and other groups have vowed to fight portions of SB 150 in court. At least one lawsuit has already been filed by a local activist.
No more fifth grade sex education
The new department guidance advises districts to stop giving fifth graders instruction they’ve been receiving on reproductive body parts and the changes that happen during puberty.
That’s because SB 150 prohibits instruction on human sexuality or sexually transmitted diseases in grades five and below.
The new law will force the department to change a current fifth grade academic standard, which requires students to learn about the “basic male and female reproductive body parts and their functions as well as the physical, social and emotional changes that occur during puberty.”
The guidance also tells districts that under the new law they are not to provide instruction at any grade level around “gender identity, gender expression or sexual orientation.”
“Districts will need to review current courses, programming, instructional resources and learning experiences to ensure compliance including, but not limited to, health education curriculum, Advanced Placement coursework, dual credit courses and extracurricular activities,” the guidance reads.
Few specifics on bathroom bans
The department’s guidance is light on specifics when describing how districts should carry out new restrictions on transgender students’ access to bathrooms and locker rooms, noting the new state law may contradict federal rules.
“School districts should remain aware of the legal landscape applicable to transgender students, including current and proposed Title IX regulations,” the guidance reads. The document points to a 2004 Sixth Circuit Court decision in which the court ruled that a police department could not discriminate against a trans employee on the basis of her gender.
“Districts should consult with board counsel for legal advice regarding the policies required by SB 150 and potential liability concerns,” the document says.
KDE also advises districts to remain aware of federal protections when considering policies around student pronouns.
SB 150 stripped the department of the power to provide any of its own guidance around pronouns. Conservative lawmakers lobbed numerous attacks at Glass over earlier guidance from KDE advising schools to use students' “preferred” pronouns.
‘Confusion’ regarding student privacy
The guidance notes potential conflicts between federal privacy law and a provision in SB 150 which prohibits districts from having policies “with the intent of keeping any student information confidential from parents.”
“This section creates some confusion regarding student privacy,” the guidance reads.
The document notes that the definition of “parent” in state law conflicts with the definition of “parent” in the federal Family Education Rights and Privacy Act (FERPA).
KDE also notes that once students turn 18, they have different privacy rights than younger students, a wrinkle that is not addressed in SB 150.
“To the extent there is any conflict between SB 150 and FERPA, districts should comply with FERPA,” the guidance reads.
Because lawmakers wrote an “emergency clause” into SB 150, portions of the law went into effect immediately upon lawmakers’ override of Gov. Andy Beshear’s veto.
Support for this story was provided in part by theJewish Heritage Fund.
