Kentucky’s largest school district is deciding whether to defy new anti-trans law
A JCPS policy committee crafted two options in response to new state restrictions on trans student rights: one proposal upholds, the other defies.
As the new school year approaches, the Jefferson County Board of Education is deciding how it will respond to a directive from state lawmakers to impose new restrictions on transgender students.
After months of discussion, a policy committee landed Monday night on two options for the board to choose between: one which begrudgingly complies with the anti-trans law known as Senate Bill 150, and another which would put Kentucky’s largest district in open defiance with state lawmakers in Frankfort.
“My preference is to do what makes marginalized students feel as welcome in our schools as possible,” Policy Committee Chair and District 2 Board member Chris Kolb said during the meeting. “And if people in Frankfort feel like they have to respond … have at it.”
Passed by the GOP-led Legislature this spring, Senate Bill 150 requires school districts to create policies that bar transgender students from bathrooms and locker rooms that match their gender. It also allows school staff to intentionally misgender trans and nonbinary students, and directs school boards to prohibit certain kinds of instruction on human sexuality and LGBTQ+ identities.
Activists, parents and students in Jefferson County Public Schools have called on the district not to comply.
The ACLU of Kentucky has already challenged other portions of SB 150 in federal court.
The policy option Kolb supports would assert that the board refuses to comply with many anti-LGBTQ+ portions of Senate Bill 150, on the grounds that the state law violates the U.S. Constitution and federal protections against gender discrimination.
“The Board believes that certain provisions of [Senate Bill 150] clearly and explicitly violate Title IX of the Education Amendments Act of 1972 or the Equal Protection Clause of 14th Amendment to the U.S. Constitution, or both,” the proposed policy reads.
“When confronted with a circumstance when Kentucky law is in clear and explicit conflict with the U.S. Constitution or federal law, the federal provisions prevail and preempt state law, and the District is obligated to comply with the U.S. Constitution and federal law.”
Kolb and others on the committee acknowledged that such a move would likely draw litigation from supporters of the law. On the other hand, board attorney Kevin Brown said he knows of two challenges to the education-related portions of SB 150 that are likely to be filed this fall: one in state court and one in federal court.
“There could be potentially litigation against us no matter which version of the policy we adopt,” Brown said.
However, Brown said as the board’s attorney, he recommended the policy version that complies with the state law. It’s a policy similar to the bathroom ban passed reluctantly by the Fayette County Board of Education earlier this month.
“As imperfect as SB 150 is,” Brown said, “I believe that the board has the obligation to implement SB150 to the best of its ability.”
Brown explained that while he believed rulings in the U.S. Court of Appeals' 7th and 4th Circuits upholding trans student rights were “persuasive,” they are not legally binding for states in the 6th Circuit, including Kentucky.
Meanwhile a federal judge in the 6th Circuit has blocked Title IX guidance from the Biden Administration, which includes protections for trans students’ right to use the bathroom they wish.
District 7 Board Member Sarah Cole McIntosh agreed with Brown, who also warned that adopting a policy in defiance of state law wouldn’t necessarily protect staff members from being individually sued.
“I don’t personally have an appetite for exposing our district to unnecessary lawsuits,” McIntosh said.
The committee agreed to send both options to the full board for consideration on July 26. That meeting would be the policy’s first reading and include an opportunity for public comment. The board would make its final decision at another meeting no later than August 15. The school year starts for students on August 9.
Rising fourth grader Justice Chenault, who uses they/them pronouns, said they hope the board decides on the version that defies the state law.
“I sometimes worry that they’re gonna say ‘we will comply with it,’ and that is just going to make me feel not as safe at school,” they said.
Justice’s mom Anice Chenault said she understood that defying state law comes with legal risk.
“But I say ‘take that risk,’” Chenault said. “Our trans kids take a risk every day when they walk out the front door and walk into schools.”
Here are how the different JCPS policy proposals handle key provisions of SB 150:
What SB 150 says: School boards cannot have policies that prohibit staff from misgendering students (i.e. calling students by incorrect pronouns).
What JCPS policy version 1 says : Repeated intentional misgendering may constitute a violation of educator code of conduct, sexual harassment or disruption of the educational process and may open educators to personnel action.
What JCPS policy version 2 says: Repeated intentional misgendering does constitute a violation of educator code of conduct, sexual harassment and disruption of the educational process and may open educators to personnel action.
Bathroom and locker room access
What SB 150 says: School boards must have policies that bar transgender students from using bathrooms, locker rooms or changing areas that don’t match their “biological sex.”
What JCPS policy version 1 says: Schools shall ban students from bathrooms and locker rooms that are reserved for a different biological sex. A student’s biological sex shall be recorded in the district student data system as reported by the student’s parent or guardian.
What JCPS policy version 2 says: Schools shall adopt a policy that protects the privacy and safety of all students regardless of gender identity.
Speech on sexual orientation and gender identity
What SB 150 says: School boards shall adopt policies that ban sex education in grades 5 and below; or policies that ban any “instruction or presentation that has a goal or purpose of students studying or exploring gender identity, gender expression, or sexual orientation.”
What versions 1 and 2 say: Both policies take advantage ofthe “or” interpretation of the law promulgated by the Kentucky Department of Education, which allows ditsricts to prohibit either elementary schools sex education, or broader speech about gender and sexuality.
Both proposed policies would ban sex education in grades 5 and below.
Sponsors of SB 150 have called KDE’s “or” interpretation an effort to thwart the law. Kentucky Attorney General and Republican gubernatorial candidate Daniel Cameron issued an opinion last week saying districts are meant to enforce both restrictions. However, Brown said, Cameron’s opinion on the issue is not legally binding.
Support for this story was provided in part by the Jewish Heritage Fund.