A group of 22 Republican attorneys general filed a lawsuit Tuesday against the U.S. Department of Agriculture to stop the agency from enforcing federal anti-discrimination laws based on gender or sexual orientation.
On May 5, the USDA issued a memo updating the Food and Nutrition Services policy. The guidance interprets the prohibition of sex discrimination in Title IX to include protections related to sexual orientation and gender identity. The memo said this update is in line with the Supreme Court’s ruling in Bostock v. Clayton County, which found that prohibition on sex discrimination under Title VII of the Civil Rights Act of 1964 applies to discrimination based on sexual orientation and gender identity.
The USDA memo stated schools and related agencies failing to follow the guidance could be subject to investigations. Any school receiving USDA funding could potentially have those dollars taken away if they don’t comply with this new rule, said Bobby Truhe, an attorney with law firm KSB School Law.
“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 memo 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 lawsuit filed by the attorneys general, led by Tennessee Attorney General Herbert Slatery, alleges the USDA’s memo ignored procedural requirements and issued directives and rules that “misconstrue the law.” It also claims the USDA rule “inappropriately expand[s] the law far beyond what statutory text, regulatory requirements, judicial precedent, and the U.S. Constitution permit.”
This lawsuit follows a federal judge’s July 15 ruling that temporarily stopped the U.S. Department of Education from requiring 20 states to enforce its Title IX policy protecting gay and transgender students from discrimination.
Truhe said district leaders should discuss with their school legal counsel if they should update their non-discrimination policies per the USDA guidance or if they should wait for this case to play out.
The states in the lawsuit challenging the USDA include Alabama, Alaska, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and West Virginia.
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