GOP attorneys general sue USDA over LGBTQ+ school lunch policy

A row of brown bags against a blackboard.

On May 5 the USDA (U.S. Department of Agriculture) launched a new initiative to help end discrimination against LGBTQ+ people in accessing nutrition programs. Agriculture Secretary Tom Vilsack said the plan represented a need and that “a key step in advancing these principles is rooting out discrimination in any form — including discrimination based on sexual orientation and gender identity,” 

Now, 22 state attorneys general, including Texas Attorney General Ken Paxton, have filed a lawsuit against the Biden administration seeking to end the new policy. The lawsuit, filed by Tennessee Attorney General Herbert Slatery III with Indiana Attorney General Todd Rokita, alleges that the USDA is using federal funding for meals to “illegally force” schools into complying with the Biden administration’s anti-discrimination policies. 

The GOP lawsuit states the USDA policy is “an attempt to force states and schools to adopt a new and unlawful application of the Supreme Court’s decision in Bostock v. Clayton County as it applies to anti-discrimination requirements.” 

Bostock v. Clayton County is a landmark 2020 U. S. Supreme Court civil rights case. Bostock decided that Title VII of the Civil Rights Act of 1964 should be extended to protect employees against discrimination because they are gay or trans. 

On June 14, a coalition of 26 attorneys general called on President Biden to withdraw the USDA’s guidance in a letter, asserting that Bostock could not reasonably be applied in this instance and in fact doing so posed a threat to needy students. 

In that letter, on Slatery’s official letterhead, the signatories allege that the USDA application of Bostock “imposes new — and unlawful — regulatory measures on state agencies and operators receiving federal financial assistance from the USDA. And the inevitable result is regulatory chaos that would threaten the effective provision of essential nutritional services to some of our most vulnerable citizens.”

The letter claims that the USDA policy “is actually a re-write of the law in Title IX and the Food and Nutrition Act.”

The suit was filed in the Eastern District of Tennessee by Slatery who said in a statement that “the lawsuit seeks to stop the Biden Administration from enforcing an expansive and unlawful interpretation of federal anti-discrimination laws under the threat of withdrawing key food assistance program funding.” 

Slatery’s suit focuses on the USDA’s school meal program. That program requires participating schools to “investigate allegations of discrimination based on gender identity or sexual orientation.” 

As PGN reported last year, studies show that LGBTQ+ people face the highest rates of food insecurity. Data collected by the U.S. Census Bureau in July and August 2021 found over 13% of LGBT adults reported living in a household that experienced food insecurity in the past seven days, compared to 7.2% of non-LGBT adults. 

The survey also replicated data on economic insecurity from other recent studies like that conducted by the Movement Advancement Project (MAP).

When the USDA policy was first announced, Food, Nutrition and Consumer Services Deputy Under Secretary Stacy Dean said, “Whether you are grocery shopping, standing in line at the school cafeteria, or picking up food from a food bank, you should be able to do so without fear of discrimination.”

Slatery said in his statement on his official web page, “This case is, yet again, about a federal agency trying to change law, which is Congress’ exclusive prerogative. 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.”

Tennessee challenged similar guidance issued by the U.S. Department of Education and the Equal Employment Opportunity Commission. In July, the District Court enjoined the U.S. Department of Education and the Equal Employment Opportunity Commission from “enforcing new, expansive, and unlawful guidance on federal anti-discrimination laws. The now-enjoined guidance attempted to force schools to allow biological males [sic–trans girls] to compete on girls’ sports teams, to prohibit sex-separated showers and locker rooms, and to compel individuals to use biologically inaccurate [sic] preferred pronouns.” 

The USDA policy is clear that it interprets Title IX, which prohibits sex-based discrimination, to also include discrimination that is based on sexual orientation and gender identity. The USDA said in May that this move is meant to prevent discrimination and promote food and nutrition security within the LGBTQ+ community.

Vilsack said in a statement, “USDA is 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.” 

Vilsack added, “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.”

USDA notes, “Historically, the LGBTQI+ community has faced striking economic and social disparities, such as higher rates of poverty, unemployment and nutrition insecurity.” 

USDA adds, “Nutrition disparities negatively impact health, productivity and overall well-being for too many in the U.S. FNS (Food and Nutrition Service) recognizes that equitable nutrition assistance means that every American — regardless of identity or background — can access the food they need to thrive.”

USDA asserts it is requesting voluntary compliance. But the Department has also stated it will refer violations to the Department of Justice. 

Joining Tennessee in the lawsuit are the attorneys general from the following states: Alabama, Alaska, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and West Virginia.

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Victoria A. Brownworth is a Pulitzer Prize-nominated award-winning journalist whose work has appeared in The New York Times, the Los Angeles Times, The Philadelphia Inquirer, Baltimore Sun, DAME, The Advocate, Bay Area Reporter and Curve among other publications. She was among the OUT 100 and is the author and editor of more than 20 books, including the Lambda Award-winning Coming Out of Cancer: Writings from the Lesbian Cancer Epidemic and Ordinary Mayhem: A Novel, and the award-winning From Where They Sit: Black Writers Write Black Youth and Too Queer: Essays from a Radical Life.