Quick Bit: State AGs called out a policy that would withhold federal school lunch funding from schools that discriminate based on “gender identity.”

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In a letter led by Tennessee Attorney General Herbert H. Slatery III, they criticized USDA’s new policy.

A May 5 memo issued by Biden’s Agriculture Secretary, Tom Vilsack, said the agency would interpret Title IX’s prohibition on sex-based discrimination to include 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,” Vilsack said.

The USDA’s interpretation unlawfully changes federal regulations, according to the state attorneys general. Slatery wrote:

But by vastly expanding the concept of “discrimination on the basis of sex” to include gender identity and sexual orientation, the Guidance does much more than offer direction. It imposes new–and unlawful–regulatory measures on state agencies and operators receiving federal financial assistance from the USDA.

Slatery and 25 other attorneys general argued the policy change is unlawful because it did not follow the Administrative Procedure Act’s notice and comment requirement. They also criticized the USDA for relying on an “obvious misreading and misapplication” of recent Supreme Court precedent.

The letter continued:

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 Biden administration’s move would apply to the nearly 30 million children who rely on subsidized free or reduced-price daily lunches at more than 100,000 public and nonprofit-private schools that receive federal funding.

“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?”

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.

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