Twenty-two states are suing the U.S. Department of Agriculture over its decision to interpret “sex” in Title IX to include “sexual orientation and gender identity.” As The Federalist previously reported, this interpretation would mean that schools could lose federal funds for lunch programs unless they allow boys in girls’ bathrooms.
The USDA’s policy memo reinterpreting “sex” followed an executive order announcing the Biden administration’s policy “to prevent and combat discrimination on the basis of gender identity or sexual orientation” under federal laws against sex discrimination.
Tennessee Attorney General Herbert Slatery III and Indiana Attorney General Todd Rokita are leading a coalition of 22 states in the lawsuit, which they filed on Tuesday in a federal district court in Tennessee.
According to a press release from Rokita’s office, the USDA’s policy has “jeopardized states’ Title IX and Supplemental Nutrition Assistance Program (SNAP) school lunch funding.”
“We all know the Biden administration is dead-set on imposing an extreme left-wing agenda on Americans nationwide,” Attorney General Rokita said in the press release. “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.”
In reinterpreting “sex,” both the USDA policy memo and the executive order rely on the Supreme Court’s ruling in Bostock v. Clayton County, which held that under Title VII an employee could not be fired just for being homosexual or transgender.
The lawsuit argues that the USDA policy memo goes beyond the court’s ruling. Bostock dealt only with Title VII, not Title IX, according to the lawsuit, and dealt only with the case of an employee being fired, not every form of alleged discrimination.
By the time the USDA issued its policy memo in May, the Department of Education’s attempt to reinterpret sex was already facing a court challenge from Tennessee and 19 other states. The court — the same one now considering the USDA lawsuit — has enjoined the DOE from forcing its interpretation on those 20 states until the lawsuit is resolved.
“Because the Department of Education has so far not prevailed in the States’ lawsuits,” the USDA lawsuit says, the administration “seemingly decided to use the USDA to accomplish its rewriting of Title IX through other means.”
Besides the policy memo announcing the new interpretation, the USDA issued a rule prohibiting discrimination “on the grounds of sex, including gender identity and sexual orientation” under SNAP.
The lawsuit says the USDA did not follow proper legal procedure in making this rule because it “failed to provide adequate notice and a fair opportunity for comment.”
According to the lawsuit, the proposed version of the rule had been open for public comment in 2016, but it contained no mention of sexual orientation or gender identity. The language reinterpreting “sex” showed up only in the final version published this June.
The lawsuit argues both the USDA’s policy memo and its final rule are contrary to Title IX itself. “[P]roperly interpreted,” the lawsuit says, “Title IX and longstanding [USDA] regulations expressly permit distinctions based on biological sex in certain circumstances.”