After months of deliberation, the Jefferson County Board of Education capitulated Monday in a 5-2 vote to a new state law known as Senate Bill 150.
Passed by the GOP-led General Assembly in March, SB 150 requires local school boards to have policies barring students from bathrooms and locker rooms that don’t match their “biological sex.” At the same time, the law prevents districts from taking action against staff who intentionally misgender students. It also limits classroom discourse on sexuality and gender identity.
The policy JCBE passed Monday is similar to a draft presented at the July 25 meeting, which contains a statement expressing opposition to the law, but “reluctantly” complies. The policy prevents students from using restrooms that correspond to a different “biological sex.” However, it allows students with a gender dysphoria diagnosis to use bathrooms that match their gender if their condition is determined to be a disability.
The policy passed is known as “version no. 3,” because it is the third draft presented to the board.
“Version no. 3 is legal, but it is also a bold policy,” board attorney Kevin Brown told members, adding that it is “more protective” of transgender students than most policies other districts have passed.
“I do believe we’ve taken version no. 3 as far as we can take it under the parameters of SB 150,” Brown said.
Activists and parents who attended the meeting said they were disappointed the board didn’t take a stronger stand. They were in favor of a proposed policy that would have openly defied SB 150.
“They’re not going to stop because we capitulate, because we go along with the laws that they passed,” activist Sonja DeVries said. “No — that is going to embolden them. And what’s going to be next?”
The defiant policy failed to gain enough votes for passage at the July 25 meeting.
Board members previously suggested they might wait until the U.S. Department of Education issues final guidance on bathroom access for transgender students, which is expected in October.
However, Brown said there could be consequences for board members if they don’t pass a policy responsive to SB 150 by the Aug. 15 deadline in state law. Those consequences could include impeachment, according to Brown.
Board members passed a resolution promising to revisit the policy within 14 days of any decision by the courts or the federal government that would allow them to loosen restrictions on trans kids.
“As the law changes, we as a board are entitled to come back together,” said District 1 member and Board Chair Diane Porter.
Bathroom and locker room restrictions
Under the new JCBE policy, students are barred from restrooms, locker rooms and changing areas that don’t match their “biological sex,” as reported by the child’s parent or guardian.
JCBE’s policy, however, may create a layer of protection for some transgender students by making enforcement difficult. The policy prevents staff from accessing a student’s “biological sex” records for the purposes of barring students from a bathroom.
The policy also prohibits staff from asking the student or their family for proof of their biological sex based on their chromosomes or anatomy.
Finally, the policy creates an exception to the bathroom ban for students with gender dysphoria, defined by the American Psychiatric Association as the “psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity.” A high percentage of young trans people experience gender dysphoria.
The policy says a diagnosis of gender dysphoria “may support a finding” that the student has a disability, and is therefore entitled to accommodations under federal protections for people with disabilities. Under the JCBE policy, those accommodations could include granting access to facilities that match their gender identity.
Activist and parent J.P. Lyninger said the policy would only allow gender-affirming bathroom access to trans kids whose parents have the time, resources and know-how to get an Individualized Education Plan, or IEP.
“It puts it behind a paywall,” Lyninger said, noting that getting an IEP requires significant documentation, doctor visits and meetings with teachers and school administrators.
The policy also allows schools to give students access to a single-stall gender neutral bathroom, as permitted under SB 150.
District 5 board member Linda Duncan, who voted against the policy, said girls should not have to be in restrooms “with somebody that looks like the opposite sex.”
The other “no” vote was from District 2 member Chris Kolb, who opposed bowing to the law at all.
“This is certainly a hugely important issue. For many, many people, an issue of life and death,” Kolb said.
Research shows affirming the gender of trans and gender-nonconforming youth decreases the likelihood of mental health issues. Research also shows trans youth are at particularly high risk of suicide, because of the way society treats them.
Porter, District 3 member James Craig, District 4 member Joe Marshall, District 6 member Corrie Shull and District 7 member Sarah Cole McIntosh voted in favor of the policy.
Misgendering students
Under the policy passed by the JCBE, teachers and staff who engage in “intentional, repeated and ongoing” misgendering of a student could see disciplinary action, including termination. The policy requires such actions to be reported to the Education Professional Standards Board, which has the power to suspend or revoke educators’ licenses.
SB 150 prohibits school districts from requiring staff to use pronouns for students “that do not conform to that particular student's biological sex.”
Brown said the policy is legal because while SB 150 prevents districts from disciplining teachers, it does not prevent JCPS from referring staff to state licensing boards or other entities, which could take action themselves.
Speech restrictions
The policy passed Monday takes advantage of a typo in SB 150, which the Kentucky Department of Education says allows district to choose between:
- banning education on sex and STDs in grades 5 and below; or
- banning instruction at all grade levels that has the goal of exploring gender identity and sexual orientation.
Like other school boards who seized on the loophole, JCBE chose to ban sex education in grades 5 and below. The policy creates an exception for “child sexual abuse prevention strategies based on Kentucky Academic Standards and trainings approved by the Kentucky Department of Education and adopted by the District.”
Lawmakers who sponsored and supported SB 150 say they meant for both restrictions to apply. They return to Frankfort in January.
As required in SB 150, the JCBE policy requires schools to give families a notice two weeks’ before an instruction in sex education, and allows families to opt out.
Parents and guardians are also to be notified of any surveys or services offered around mental or physical health, and be allowed to opt out.
Resources for educators
The policy passed Monday requires the district to send out several peer-reviewed research and summaries annually on the impact of supportive school environments on transgender and gender-diverse students’ health.
You can find links to those summaries and articles here, here and here.
Bill sponsor responds
Asked his thoughts on the policy passed by the Jefferson County school board, Republican Sen. Max Wise sent an email saying the district policy “reads almost like Governor Andy Beshear’s veto message, which was overwhelmingly overridden.”
“The state’s largest school district is refusing to fully comply with Senate Bill 150…Senate Bill 150 is the law in Kentucky. The legislature encourages JCPS and all Kentucky school districts to honor the law’s spirit and intent,” the Campbellsville lawmaker wrote.
Wise was running mate for Republican gubernatorial hopeful Kelly Craft when he shepherded the measure through the Legislature this spring.
The Craft-Wise ticket gained 17.2% of the vote in the Republican primary in May. But the anti-LGBTQ+ rhetoric espoused by the campaign remainsfront and center in the platform of Republican nominee and Attorney General Daniel Cameron.
