Twenty-two Republican attorneys general sued Tuesday to block the Agriculture Department’s newly announced guidance making student-lunch funds contingent on enforcing the Biden administration’s gender-identity agenda.
The attorneys general asked a federal court in Tennessee to prevent the USDA from withholding food assistance from schools “that continue to separate students by biological sex in appropriate circumstances,” including sports, locker rooms, showers and restrooms.
“We all know the Biden administration is dead-set on imposing an extreme left-wing agenda on Americans nationwide,” said Indiana Attorney General Todd Rokita, who led the lawsuit with Tennessee Attorney General Herbert H. Slatery III.
“But they’ve reached a new level of shamelessness with this ploy of holding up food assistance for low-income kids unless schools do the Left’s bidding,” Mr. Rokita said.
The lawsuit makes two familiar arguments: First, that the Biden administration violated the Administrative Procedures Act by issuing regulations without going through the rulemaking process; and second, that the Supreme Court’s 2020 decision on employment discrimination doesn’t apply to Title IX.
The administration has doggedly cited Bostock v. Clayton County in seeking to add sexual orientation and gender identity to Title IX, which bans sex discrimination in education, even though Justice Neil Gorsuch said in the majority opinion that the decision was limited to Title VII.
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“This case is, yet again, about a federal agency trying to change law, which is Congress’ exclusive prerogative,” Mr. Slatery said. “The USDA simply does not have that authority. We have successfully challenged the Biden Administration’s other attempts to rewrite law and we will challenge this as well.”
Last month, a coalition of 26 attorneys general asked President Biden to withdraw the May 5 guidance, which said the Food and Nutrition Service will interpret Title IX “to include discrimination based on sexual orientation and gender identity.”
“As a result, 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,” the guidance said. “Those organizations must also update their non-discrimination policies and signage to include prohibitions against discrimination based on gender identity and sexual orientation.”
The policy set up a conflict with a number of states, including the 18 states that have passed laws barring male-born athletes from participating in female scholastic sports.
In the lawsuit, the attorneys general emphasized that their states “do not deny benefits based on a household member’s sexual orientation or gender identity.”
“But the States do challenge the unlawful and unnecessary new obligations and liabilities that the Memoranda and Final Rule attempt to impose obligations that apparently stretch as far as ending sex-separated living facilities and athletics and mandating the use of biologically inaccurate preferred pronouns,” the complaint said.
Mr. Rokita’s press release said that the USDA guidance “will inevitably result in regulatory chaos that threatens essential nutritional services to some of Indiana’s most vulnerable citizens.”
The National School Lunch Program serves breakfast, lunch or both to nearly 30 million students each day.
About 100,000 public and non-profit private schools, as well as residential childcare institutions receive federal funding to subsidize free or reduced-price meals for eligible schoolchildren.
Last week, the U.S. District Court for the Eastern District of Tennessee blocked the Education Department and Equal Employment Opportunity Commission from implementing its new sexual orientation and gender identity mandates.