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Republican attorneys general take aim at USDA’s gender discrimination guidance
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Republican attorneys general take aim at USDA’s gender discrimination guidance

Two weeks after nearly two dozen Republican attorneys general won an injunction against the U.S. Department of Education and Equal Employment Opportunity Commission for attempting to implement new rules preventing and combating discrimination based on gender identity or sexual orientation, the same group of plaintiffs have returned to the same court to train their crosshairs on a different federal agency. 

The rules were published in the wake of an executive order issued by President Joe Biden on his first day in office in 2021, an order requiring federal agencies to review and revamp policies related to gender or sexual orientation. On July 15, U.S. District Judge Charles E. Atchley Jr. of the Eastern District of Tennessee granted the injunction, determining the rules interfere with states’ rights to enforce their own laws. 

Perhaps emboldened by the order, the same group of conservative attorneys general filed a new complaint in federal court against the U.S. Department of Agriculture (USDA) and its interpretation of how the order applies to federally funded Food and Nutrition Services (FNS) in public schools. 

According to the July 26 complaint, guidance handed down by the USDA in May directed states to update discrimination processing procedures “to ensure discrimination complaints alleging sexual orientation and gender identity discrimination are processed as complaints of prohibited sex discrimination.”

Shortly thereafter, the agency provided additional guidance directing state-level administrators of the Supplemental Nutrition Assistance Program (SNAP) — which includes public schools and universities — to “update documents, pamphlets, websites, etc.” to include specific language prohibiting discrimination based on gender identity or sexual orientation.  

Similar to the complaint filed against the Department of Education and EEOC, the coalition of 22 attorneys general led by Tennessee Attorney General Herbert H. Slatery III, claim the USDA’s action is the result of a misapplication of the U.S. Supreme Court’s holding in Bostock v. Clayton County, which determined under Title VII, “employers are prohibited from firing employees on the basis of homosexuality or transgender status.”

Further, they claim the USDA ignored the legal process mandated by the Administrative Procedure Act and instead, “coopted a previously discarded proposed regulation from 2016 to issue the new Final Rule.” 

The new complaint refers to the rules as an “overreach,” which “expand the law far beyond what statutory text, regulatory requirements, judicial precedent, and the U.S. Constitution permit.” Further, the group claims the federal government has no right to impose new rules for “highly controversial and localized issues” without public hearings, alleging it creates “unlawful and unnecessary new obligations and liabilities … that apparently stretch as far as ending sex-separated living facilities and athletics and mandating the use of biologically inaccurate preferred pronouns.” 

Alabama Attorney General Steve Marshall issued a news release claiming the policy will “hold schoolchildren’s food hostage to advance radical gender ideology.” Calling it both “immoral and illegal,” Marshall said Alabama’s Title IX and SNAP school-lunch funding “would be at risk if a school determines that a boy cannot compete on the girls’ swim team or refuses to allow boys into the girls’ locker room.” 

Arizona Attorney General Mark Brnovich said the Biden administration’s effort is “unlawful and despicable.” 

“USDA Choice applies to beef at the market, not to our children’s restrooms,” he quipped in a statement. 

According to Marshall’s office, the National School Lunch Program services nearly 30 million schoolchildren each day, many of whom rely on it for breakfast, lunch, or both. Approximately 100,000 public and nonprofit private schools and residential childcare institutions receive federal funding to provide subsidized free or reduced-price meals for qualifying children. 

Also listed as plaintiffs are the attorneys general from Alaska, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and West Virginia. 

The case has not yet been assigned to a judge in the district.

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