Earlier this year, the Department of Agriculture’s Food and Nutrition Service updated its nondiscrimination policies to cover sexual orientation and gender identity for the department’s nutritional programs, including the National School Lunch Program. A coalition of 22 Republican-led states sued USDA this week to reverse the update. In the lawsuit, the states sought to assuage the court about their intentions. “To be clear, the states do not deny benefits based on a household member’s sexual orientation or gender identity,” they insisted.
That would be somewhat comforting if the states didn’t have a “but” to add in the next sentence. “But the states do challenge the unlawful and unnecessary new obligations and liabilities that the Memoranda and Final Rule attempt to impose—obligations that apparently stretch as far as ending sex-separated living facilities and athletics and mandating the use of biologically inaccurate preferred pronouns,” the states went on to say. The USDA does not generally have authority over student athletics or pronouns, and the agency told Politico last month that it would only enforce the rule for discrimination that was directly tied to the school lunch program.
The lawsuit itself is only the latest chapter in the GOP’s legal war on LGBTQ rights at the state level. Indeed, in a separate battle, many of those same states are also directly challenging the Biden administration’s interpretation of Title IX for public schools, in the wake of a major Supreme Court ruling on LGBT rights two years ago. Some legal conservatives have suggested that their primary concern is transgender athletes’ participation in girls’ sports. But the USDA case shows how far some Republican-led states will go to resist any legal recognition of LGBTQ rights whatsoever.
In 2020, the Supreme Court held in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964, the flagship federal workplace discrimination law, also applies to gay and transgender workers. Title VII does not explicitly mention sexual orientation or gender identity, but Justice Neil Gorsuch wrote for a 6–3 court that its ban against sex discrimination would logically apply. “For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex,” he explained.
When the Biden administration took office the following year, it asked federal agencies to review whether that reasoning could apply to a host of other federal anti-discrimination laws. One of the laws in question is Title IX, which bans sex discrimination in public schools and other educational institutions that receive federal funds. Another is the Food and Nutrition Act itself, which also forbids sex discrimination. In May, the Food and Nutrition Service concluded that the Supreme Court’s reasoning in Bostock also applied to those statutes for the purposes of its programs.
In their lawsuit this week, Tennessee and the other states sought to overturn that interpretation and its application toward programs in their states. They claimed that USDA’s policy change violated the Administrative Procedures Act, which governs when and how federal agencies can issue new rules and regulations. In their eyes, USDA “failed to consider its effect on the reliance and religious interests of the regulated parties,” did not properly weigh other legal challenges also brought by these states when issuing its guidance, and took shortcuts when allowing parties to weigh in on the proposed changes.
“The department’s Memoranda and Final Rule concern highly controversial and localized issues of enormous importance to the States, their subdivisions, affiliates, and citizens,” the states told the court. “The department has no power to settle such issues, let alone by executive fiat without providing any opportunity for public comment.” Regardless of whether the court sides with the states on these administrative law points, it is also fairly clear from the rest of the lawsuit that the states would have challenged the memo in court either way.
The states argued, for instance, that USDA’s interpretation of Title IX and the Food and Nutrition Act in the wake of Bostock was incorrect and that its logic should not go beyond Title VII. They cited language from the ruling that said it only addressed Title VII, implying that the court had foreclosed the Bostock reasoning in all other federal laws when it did not. To read the laws otherwise would, in the states’ view, also violate the First Amendment by forcing them and their employees “to engage in biologically inaccurate speech and to forbid biologically accurate speech due to the USDA’s essentially moral judgment on the meaning of ‘sex.’” Letting people opt out of anti-discrimination laws because they think the discrimination in question is morally justified would be troubling, to say the least.
The states even tried to wield some new weapons against the USDA’s interpretation of Bostock that the court has already disarmed. One of the claims refers to the major questions doctrine, which the Supreme Court most recently invoked in West Virginia v. EPA. The doctrine’s premise is that Congress must “speak clearly” when handing a federal agency the power to make decisions with “vast economic and political significance.” The states argue that Congress did not intend for federal agencies to interpret Title IX so broadly. In other words, if Congress wants to stop schools from denying free lunches to gay and transgender kids, it must “speak clearly” to do so.
However, it’s worth noting that Gorsuch addressed a similar argument against the court’s Title VII interpretation in Bostock and discarded it. One of the points raised by the employers in that case was that Congress could not have intended to hide protections for gay and transgender workers in a workplace discrimination law drafted in 1964. Gorsuch referred to this reasoning as the “no-elephants-in-mouseholes canon” of judicial interpretation and dismissed it.
Title VII, Gorsuch argued, was clearly drafted to anticipate circumstances that its drafters could not necessarily imagine, and the courts have consistently read it as such for more than 50 years. “Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries—virtually guaranteed that unexpected applications would emerge over time,” he wrote. “This elephant has never hidden in a mousehole; it has been standing before us all along.”
And in his dissent from that ruling, Justice Samuel Alito also acknowledged that the logic used by the majority for Title VII could be readily applied elsewhere in federal law. “What the Court has done today—interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity—is virtually certain to have far-reaching consequences,” he wrote. “Over 100 federal statutes prohibit discrimination because of sex.” Alito was helpful enough to provide a full list of them in an appendix to his dissent. One of them was Title IX. Another was the Food and Nutrition Act.
As for practical consequences, the states also warned the court that if the USDA memorandum takes effect, it could have serious consequences for the nutrition programs in their jurisdictions. “[The states] sue to prevent the department from usurping authority that properly belongs to Congress, the states, and the people and to eliminate the nationwide confusion and upheaval that the department’s Guidance has inflicted on states and regulated entities,” they claimed in their complaint.
That framing somewhat obscures the cause-and-effect relationship here. If the USDA policy takes effect, the only “confusion” or “upheaval” would be if the states did not abide by it and chose to discriminate against someone—something that they simultaneously claim that they do not do. Thus, faced with the choice between participating in school nutrition programs that help feed millions of Americans and preserving the option to one day discriminate against a gay or transgender child, 22 state attorneys general told the courts that the choice isn’t really a hard one for them at all.