Two dozen attorneys general challenge new sex-based discrimination federal guidance

Half of the state attorneys general in the country want the Biden administration to walk back new federal guidance on sex-based discrimination for schools and other organizations that receive federal money for food programs.

The AGs, 26 of the 27 Republicans in those offices across the country, claim in a letter to President Biden the U.S. Department of Agriculture’s guidance means states, local agencies and programs that receive federal food dollars through the Food and Nutrition Act and the Supplemental Nutritional Assistance Program could lose funding if they don’t comply, including in hiring practices.

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

In May, the USDA announced it will interpret the prohibition on discrimination based on sex in Title IX to include discrimination based on sexual orientation and gender identity.

“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,” Secretary of Agriculture Tom Vilsack said. “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.”

The AGs called the interpretation drastically broader than originally defined in Title IX.

The guidance applies to about 100,000 public and nonprofit-private schools and residential child care institutions that participate in the national school breakfast and lunch programs, which provide subsidized free or reduced-price meals daily for nearly 30 million children.

“We have long had a productive relationship with the federal government, managing various food and nutrition programs guided by the principles of cooperative federalism. We would like to continue this cooperative relationship. But 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 reads.

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 each signed the letter. The letter originates from Tennessee AG Herbert Slatery III.

The only Republican AG to not sign was New Hampshire's John Formula.