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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 , and another which would put Kentucky鈥檚 largest district in open defiance with state lawmakers in Frankfort.

鈥淢y preference is to do what makes marginalized students feel as welcome in our schools as possible,鈥� Policy Committee Chair and District 2 Board member Chris Kolb said during the meeting. 鈥淎nd if people in Frankfort feel like they have to respond 鈥� have at it.鈥�

, 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

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.

鈥淭he Board believes that certain provisions of [Senate Bill 150] clearly and explicitly violate or the Equal Protection Clause of 14th Amendment to the U.S. Constitution, or both,鈥� the proposed policy reads.

鈥淲hen 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.鈥�

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.

鈥淭here could be potentially litigation against us no matter which version of the policy we adopt,鈥� Brown said.

However, Brown said as the board鈥檚 attorney, he recommended the policy version that complies with the state law. It鈥檚 a policy similar to the bathroom ban passed reluctantly by the

鈥淎s imperfect as SB 150 is,鈥� Brown said, 鈥淚 believe that the board has the obligation to implement SB150 to the best of its ability.鈥�

Brown explained that while he believed rulings in the U.S. Court of Appeals' 7th and 4th Circuits upholding trans student rights were 鈥減ersuasive,鈥� they are not legally binding for states in the 6th Circuit, including Kentucky.

Meanwhile a federal judge in the 6th Circuit has , which includes protections for trans students鈥� 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鈥檛 necessarily protect staff members from being individually sued.

鈥淚 don鈥檛 personally have an appetite for exposing our district to unnecessary lawsuits,鈥� McIntosh said.

The committee agreed to send both options to the full board for consideration on July 26. That meeting would be the policy鈥檚 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.

鈥淚 sometimes worry that they鈥檙e gonna say 鈥榳e will comply with it,鈥� and that is just going to make me feel not as safe at school,鈥� they said.

Justice鈥檚 mom Anice Chenault said she understood that defying state law comes with legal risk.

鈥淏ut I say 鈥榯ake that risk,鈥欌�� Chenault said. 鈥淥ur trans kids take a risk every day when they walk out the front door and walk into schools.鈥�

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.

What SB 150 says: School boards must have policies that bar transgender students from using bathrooms, locker rooms or changing areas that don鈥檛 match their 鈥渂iological sex.鈥�

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鈥檚 biological sex shall be recorded in the district student data system as reported by the student鈥檚 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.

What SB 150 says: School boards shall adopt policies that ban sex education in grades 5 and below; or policies that ban any 鈥渋nstruction or presentation that has a goal or purpose of students studying or exploring gender identity, gender expression, or sexual orientation.鈥�

What versions 1 and 2 say: Both policies take advantage of, 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鈥檚 鈥渙r鈥� 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鈥檚 opinion on the issue is not legally binding.

Support for this story was provided in part by the Jewish Heritage Fund.

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