More than 20 state attorneys general have filed a lawsuit against the U.S. Department of Agriculture for threatening to withhold funds for the National School Lunch Program from schools that do not comply with the Biden administration’s LGBT ideology. The USDA’s Food and Nutrition Service has announced its intention to interpret “the prohibition on discrimination based on sex found in Title IX of the Education Amendments of 1972” to include “discrimination based on sexual orientation and gender identity.” In a memorandum published that same day, the agency informed state and regional directors of all Food and Nutrition Services programs of the policy change. The department cited the U.S. Supreme Court’s 2020 ruling that the provision of Title VII of the Civil Rights Act of 1964 prohibiting discrimination based on sex also applies to sexual orientation and gender identity as the justification for the new interpretation of Title IX.
As a result of the USDA’s interpretation of Title IX, “state and local agencies, program operators and sponsors that receive funds from FNS must investigate allegations of discrimination based on gender identity or sexual orientation” and “update their non-discrimination policies and signage to include prohibitions against discrimination based on gender identity and sexual orientation.” The National School Lunch Program, provided low-cost and free lunches to 29.6 million children at nearly 100,000 public and non-profit private schools in the fiscal year 2019. Tennessee’s Republican Attorney General Herbert Slatery as joined 21 other Republican attorneys general in filing a lawsuit against the USDA and its top officials in the U.S. District Court for the Eastern District of Tennessee Knoxville Division.
Describing the USDA as the latest example of the Biden administration’s “misinterpretation” of Title IX, the lawsuit states that the final rule issued by the department requires states to ensure that “no person, on the grounds of sex, including gender identity and sexual orientation, race, colour, age, political belief, religious creed, or disability, be excluded from participation in, nor denied the benefits under SNAP.” Additional guidance issued by the USDA requires “FNS nutrition assistance programs, state or local agencies, and their sub-recipients” to post a non-discrimination statement. The complaint argues that language in the additional guidance indicates that while “the old policy prohibited discrimination in any program or activity conducted or funded by USDA,’ the new policy implies to each program-administering ‘institution’ as a whole.” It warned that “the USDA Memoranda and Final Rule will Irreparably Harm Plaintiff States.”
The lawsuit listed plaintiff states’ “laws or policies that at least arguably conflict with” the USDA’s final rule. Tennessee state law asserts that “a student’s gender for purposes of participation in a public middle school or high school interscholastic athletic activity or event must be determined by the student’s sex at the time of the student’s birth.” The state law also provides a right of action against schools that permit “a member of the opposite sex to enter a multi-occupancy restroom or changing facility while other persons are present.” The complaint urged a federal judge to issue “a declaratory judgment holding unlawful the Department’s Memoranda and Final Rule” and a “declaratory judgment holding that Plaintiffs are not bound by the Department’s Memoranda and Final Rule.”
The complaint also sought a declaration that the department did not have the authority to penalize and withhold federal funds from Title IX and Food and Nutrition Act recipients that “continue to separate students by biological sex in appropriate circumstances.” The plaintiff states requested similar declarations preventing retaliation against Title IX and Food and Nutrition Act recipients that “maintain showers, locker rooms, bathrooms, residential facilities, and other living facilities separated by biological sex or regulate each individual’s access to those facilities based on the individual’s biological sex.” The states also want the court to prohibit retaliation against schools that “do not require employees or students to use a transgender individual’s preferred pronouns,” “maintain athletic teams separated by biological sex or” assign individuals to teams based on biological sex.
The lawsuit comes a month after 26 state attorneys general wrote a letter to President Joe Biden outlining their concerns with the USDA’s administrative action and asking the administration to rescind the guidance. Secretary of Agriculture Tom Vilsack defended the agency’s actions as part of a commitment to “administering all its programs with equity and fairness, and serving those in need with the highest dignity.” “A key step in advancing these principles is rooting out discrimination in any form – including discrimination based on sexual orientation and gender identity,” he added. “At the same time, we must recognize the vulnerability of the LGBTQI+ communities and provide them with an avenue to grieve any discrimination they face. We hope that by standing firm against these inequities we will help bring about much-needed change.”
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