GOP AGs Sue Over LGBTQ Anti-Discrimination Guidance For SNAP, Free School Lunches

APOLLO BEACH, FL - OCTOBER 4: Students eat their lunch in the cafeteria at Doby Elementary School in Apollo Beach, Florida on October 4, 2019. In Hillsborough County, students pay $2.25 for lunch. (Photo by Eve Ede... APOLLO BEACH, FL - OCTOBER 4: Students eat their lunch in the cafeteria at Doby Elementary School in Apollo Beach, Florida on October 4, 2019. In Hillsborough County, students pay $2.25 for lunch. (Photo by Eve Edelheit for The Washington Post via Getty Images) MORE LESS

Twenty-two Republican attorneys general on Tuesday sued the federal government over new anti-discrimination guidance meant to protect LGBTQ people benefitting from federally funded food assistance programs. 

The new guidance, announced in May, applies to all state and local agencies, program operators and sponsors that receive funds from the Department of Agriculture’s Food and Nutrition Service, which administers funds for free school meals as well as the SNAP program, previously known as food stamps. 

The USDA’s May announcement cited an executive order President Joe Biden signed on his first day in office, directing agency heads to pursue policies against discrimination based on gender and sexual identity. The announcement also cited the Supreme Court’s 2020 ruling in Bostock v. Clayton, which established that the Civil Rights Act protects employees from discrimination on the grounds of their sexuality or gender identity.

In going after the new guidance, Attorney General Todd Rokita, one of two attorneys general leading the suit, wrote on Twitter Tuesday that President Joe Biden “wants Indiana schools to submit to the Left’s extremist transgender ideology.” In a statement, he attacked “this ploy of holding up food assistance for low-income kids unless schools do the Left’s bidding.”

In their suit, the Republican attorneys general argued that, in its reasoning behind the new guidance, the USDA had misapplied Bostock v. Clayton. They also argued that the government hadn’t followed procedural notice-and-comment rules for the new guidance, as outlined in a federal law known as the Administrative Procedure Act.

Or, as ACLU communications strategist Gillian Branstetter put it, “The AGs argue schools have the right to deny queer and trans kids lunch money.” 

Tuesday’s suit asserted “the States do not deny benefits based on a household member’s sexual orientation or gender identity.” But it challenged the “unlawful and unnecessary new obligations and liabilities” it alleged were associated with the guidance.

The lawsuit cited existing red state laws that “at least arguably conflict” with the USDA guidance, such as rules prohibiting transgender students from participating in sports programs that align with their gender identity, rather than the gender they were assigned at birth. 

The Republicans’ suit comes two weeks after 20 Republican attorneys general won a preliminary injunction in the same federal court district — the Eastern District of Tennessee — against similar guidance from the Department of Education and the Equal Employment Opportunity Commission. A federal judge found the federal directive clashed with state laws regarding gender-based laws being applicable to, for example, bathrooms and sports teams. 

“We have successfully challenged the Biden Administration’s other attempts to rewrite law and we will challenge this as well,” Tennessee Attorney General Herbert Slatery III, the other attorney general leading the suit, said in a statement Tuesday. 

Last month, Republican attorneys general wrote to the Biden administration, warning that the guidance would result in “regulatory chaos that would threaten the effective provision of essential nutritional services to some of our most vulnerable citizens.” 

“Far from providing clarification as to Title IX law, the Guidance substantially and substantively expands the law,” the attorneys general wrote. “It broadens the basis for challenging a certification of applicant households and imposes additional burdens on state agencies—including state and local governments—that facilitate various USDA nutritional programs.” 

Vicky Negus, Policy Advocate at the Massachusetts Law Reform Institute, argued in a webinar the week after the attorneys general sent the letter to the Biden administration that the USDA guidance actually laid out important steps for states and others to follow to ensure that LGBTQ people are able to combat discrimination and pursue civil rights complaints.

“It is a very clear message to states, to families, to communities, to participants in these federal nutrition programs, that SNAP and WIC, and all of the USDA programs — and the federal government — are here for families who are struggling with food insecurity,” Negus said, “regardless of what those families look like, where they live, and who they love.”

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