In the final days of the 2023 legislative session, Republican lawmakers rushed through a major omnibus bill.

Now, that law may be weakened by its use of the word “or” instead of “and.”

Senate Bill 150 includes various provisions related to student health and gender identity. One of its sections focuses on human sexuality curriculum taught in schools.

Section 2(1)(d) says that if a school has human sexuality or sexually transmitted diseases curriculum, instruction should include:

“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.”

The Kentucky Department of Education updated its guidance on how to implement new laws in schools on June 5, and it appeared that the department found a loophole in the bill.

KDE interpreted the “or” between the first and second bullet points in the bill as a choice that school districts can make between the two.

For example, its guidance says that if a school chooses to limit its human sexuality and STD curriculum to sixth through eighth grade, then it is complying with the first bullet point and can therefore legally provide instruction exploring gender identity, gender expression or sexual orientation.

A district can also choose to provide human sexuality or STD instruction before sixth grade if it avoids any exploration of gender identity, gender expression or sexual orientation, the guidance states.

Either way, the guidance says, parents and guardians must still be given advance warning of this instruction.

The sponsor of the bill, Sen. Max Wise, R-Campbellsville, said in a statement that KDE was willingly misinterpreting the intention of the law.

He said that it was obvious that it wasn’t meant to be a binary choice, and the legislature meant to require both a ban on instruction exploring gender identity, gender expression and sexual orientation and human sexuality and STDs before sixth grade.

“The role of the executive branch is to faithfully execute the law,” Wise said. “The Beshear administration is, by extension of Commissioner Jason Glass and the Kentucky Department of Education, 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.”

Wise cited a Kentucky court case, Chilton v. Gividen, to make his point.

The opinion in that 1952 case ruled 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.”

At the time of SB150’s passage, KDE Commissioner Glass called it “a sweeping and harmful piece of anti-LGBTQIA+ legislation.”

He said Kentucky was facing “real educational challenges” such as teacher shortages, pandemic recovery and funding stabilization, and that SB150 did not solve any of them.

“But instead of addressing the real issues impacting our schools, the legislature expended its time and energy on this stitched-together bill, taking aim directly at LGBTQIA+ people,” Glass said.

At his weekly Team Kentucky press conference, Gov. Andy Beshear defended KDE’s interpretation of the law while taking a dig at Republican state legislators.

Beshear said he wasn’t surprised that there was “at least one mistake” in the law, considering the rushed process that led to its passage that didn’t give the public or legislators the normal time to read and look through the bill before voting on it.

“This is what happens when you get in such a rush either to attack me or a group of kids, that you give seven minutes of notice before a committee hearing, you plop down what is virtually a brand new bill and make people vote on it without reading it, then you rush it to the floor and make people vote on it without reading it, and then concur in another chamber without reading it,” he said.

“… We have the phrase ‘the letter of the law’ for a reason. It’s what’s on paper than they pass that’s the statute that’s put in the books and we have to follow that, not just what’s in somebody’s head or what they meant.”