- The Washington Times
Thursday, June 16, 2022

Republican attorneys general in 26 states have called on the Biden administration to drop its LGBTQ requirements for federal school lunch funding, a policy that is accused of using “hungry children as a human shield.”

The letter urged President Biden to withdraw the Agriculture Department’s May 5 memorandum, which said that state agencies and schools participating in federal food assistance programs must update their policies to ban discrimination based on sexual orientation and gender identity.


The guidance raised fears that the administration would cut off Food and Nutrition Act funding to schools that prohibit transgender girls from using girls’ restrooms and participating in girls’ sports.

“Using hungry children as a human shield in a policy dispute violates basic decency,” said Ohio Attorney General Dave Yost. “Aren’t there any parents in the Biden administration that can see past the edges of their ideology?”

The letter, led by Tennessee Attorney General Herbert H. Slatery III, said the administration circumvented the Administrative Procedures Act [APA] by issuing the mandate as a policy guidance, thereby avoiding the rule making process and public comment.

The memorandum also committed an “obvious misreading and misapplication” of the Supreme Court’s 2020 ruling on Title VII in Bostock v. Clayton County by applying the decision to Title IX.


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“It [the administration] has passed off as a ‘clarification’ what is actually a re-write of the law in Title IX and the Food and Nutrition Act,” said the Tuesday letter. “Far from providing clarification as to Title IX law, the Guidance substantially and substantively expands the law.”

As a result, “the Guidance flouts the rule of law, relies on patently incorrect legal analysis that is currently under scrutiny in the federal courts, and was issued without giving the States the requisite opportunity to be heard,” the letter said.

“While we are always open to working with your Administration to resolve these matters, under the present circumstances we are constrained to ask that you direct Secretary [Tom] Vilsack and the Department of Agriculture to rescind this Guidance,” said the attorneys general.

In its memorandum, the Agriculture Department said it would interpret the ban on sex discrimination under Title IX to include sexual orientation and gender identity in administering Food and Nutrition Service funding.

“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,” said the memo. “Those organizations must also update their non-discrimination policies and signage to include prohibitions against discrimination based on gender identity and sexual orientation.”

Agriculture Secretary Tom Vilsack said that the department was “committed 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,” said Mr. Vilsack. “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.”

South Dakota Gov. Kristi Noem threatened earlier this month to sue the department if it withholds school lunch funding from her state.

South Dakota is one of 18 states that has passed a law barring transgender athletes from participating in girls’ and women’s sports.

About 30 million children in more than 100,000 public and nonprofit private schools receive meals through the USDA’s National School Lunch Program.

The letter was signed by attorneys general from Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wyoming and Virginia.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.


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