On July 6, Kentucky Attorney General Daniel Cameron’s Office released a formal Opinion of the Attorney General (OAG 23- 04) which stated that Senate Bill 150 “prohibits not only instruction on human sexuality or sexually transmitted diseases for children in grades 5 or below, but also instruction, for any grade level, on gender identity, gender expression, or sexual orientation.”
This interpretation of the law should not be controversial, given the plain language and intent of Senate Bill 150. Legislators, media, and advocates on both sides of the issue understood this to be true. Even the Kentucky Department of Education’s April 2023 guidance on Senate Bill 150’s implementation correctly confirms this commonsense interpretation.
Yet, a formal Opinion of the Attorney General became necessary after Governor Andy Beshear’s Department of Education (KDE) politicized the issue by making the controversial decision to issue revised guidance in June, “radically altering” its prior guidance. The clearly incorrect revised guidance claims that school districts have the option of which prohibition to follow.
The move came after LGBT+ advocates urged school officials to “not comply with SB 150” and to do whatever they could “regardless of the law.” However, it is unclear whether the attempt to violate the clear meaning of Senate Bill 150 was in direct response to these calls for lawlessness or merely another example of the radical politicization of the KDE that the Kentucky General Assembly was responding to when it enacted the law over Governor Beshear’s veto.
The Opinion of the Attorney General exposes the KDE’s attempt to circumvent Senate Bill 150’s commonsense protections against teaching human sexuality to elementary-age kids and all school kids against indoctrination in a radical sexual and gender ideology for what it is – a raw political and lawless act that has no legitimacy in Kentucky law.
Highlights from the Opinion of the Attorney General
1) The KDE fails to account for the use of the disjunctive “or” in the context of prohibitions.
The use of the disjunctive “or” when stating basic prohibitions means that both things are prohibited. Reading Law: The Interpretation of Legal Texts
2) If the meaning is unclear, the courts will decide – not the KDE.
“Even if the intent of the legislature in using ‘or’ were not clear, ‘courts have the ultimate responsibility’ in matters of statutory construction, not agencies.”
Gilbert v. Commonwealth, 291 S.W.3d 712, 716 (Ky. App. 2008) (citing Delta Air Lines, Inc. v. Commonwealth, Revenue Cabinet, 689 S.W.2d 14, 20 (Ky. 1985)).”
3) The courts will interpret the law to follow the intent of the General Assembly.
“[A] statute will be construed so as to accomplish the purpose for which it was enacted.”
(Childton v. Gividen, 346 S.W.2d 133, 135)
Kentucky “courts have said ‘[n]ot the literal language but the true intention or will of the Legislature is the law.’”
Hardwick v. Boyd Cnty. Fiscal Ct., 219 S.W.3d 198, 201 (Ky. App. 2007). See also Asher v. Stacy, 185 S.W.2d 958, 959 (Ky. 1945)); Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky. 2004); KRS 446.080(1).
“In carrying out their duty to construe statutes, courts may revise ‘or’ to ‘and’ and vice versa, ‘whenever such conversion is required, inter alia, to effectuate the obvious intention of the Legislature and to accomplish the purpose or object of the statute.’”
Duncan v. Wiseman Baking Co., 357 S.W.2d 694, 698 (Ky. 1961). See also Boron Oil Co. v. Cathedral Found., Inc., 434 S.W.2d 640, 641 (Ky. 1968).
“In doing so, ‘an interpretation which will lead to an absurd result will be avoided.’”
Chilton, 246 S.W.2d at 135.
The Opinion also refutes claims by the KDE that implementing Senate Bill 150 would violate Title IX, emphasizing that no “existing binding legal precedent nor statutory or regulatory law holds or declares that a school district would violate Title IX” by implementing Senate Bill 150’s provisions regarding pronoun and restroom policies.
An Opinion of the Attorney General is a formal and thoroughly reviewed legal opinion from the Commonwealth’s chief law officer. As such, numerous Kentucky court decisions have declared that Opinions of the Attorney General are to be given “great weight” and that “government officials are expected to abide by the opinion until a court decrees otherwise or the legislature changes the law.” York v. Commonwealth, 815 S.W.2d 415, 417 (Ky.App 1991). See also Carter v. Smith, 366 S.W.3d 414, 425 endnote 2 (Ky. 2012); see also Medley v. Board of Educ., of Shelby County, 168 SW 3d 398, 402 (Ky.App. 2004); Woodward, Hobson Etc. v. Revenue Cabinet, 69 S.W.3d 476, 480 (Ky.App. 2002); Palmer v. Driggers, 60 S.W.3d 591, 596 (Ky.App.2001).
School districts and officials who refuse to abide by the Opinion willingly violate the law, ignore Kentucky’s courts, and subject themselves to legal consequences.
Yet, Beshear-appointed Education Commissioner Jason Glass defiantly released a flippant response stating that “Daniel Cameron is free to offer all the opinions he wants on how SB 150 should be interpreted… However, such matters are not settled by Cameron’s opinion – they are settled in court.”
Given the radical actions and responses of the KDE, is it any wonder why the General Assembly felt the need to enact Senate Bill 150 to protect Kentucky’s children from being indoctrinated by a politicized Kentucky Department of Education that is pushing a radical sexual and gender ideology? It’s abundantly clear that more needs to be done.
