Arizona Attorney General Mark Brnovich filed a lawsuit Monday against the U.S. Department of Agriculture (USDA), which aims to stop the department’s regulations from making a school’s nutritional assistance dependent on its gender policies.
“USDA Choice applies to beef at the market, not to our children’s restrooms,” Brnovich said in a press release. “This threat of the Biden administration to withhold nutritional assistance for students whose schools do not submit to its extreme agenda is unlawful and despicable.”
In May, the USDA announced it was updating the Supplemental Nutrition Assistance Program (SNAP) to include discrimination based on sexual orientation and gender identity. Under the new guidance, state and local agencies receiving food and nutrition funds must update their policies and signage to include “prohibitions against discrimination based on gender identity and sexual orientation.” The USDA justifies the action under Title IX and the Supreme Court of the United States (SCOTUS) decision involving Title VII.
However, the lawsuit, which Brnovich filed in a joined coalition with 22 other states, argues that the new guidance places unlawful regulations on state entities that rely on financial assistance from the USDA, especially schools.
According to the lawsuit, the SCOTUS decision came from Bostock v. Clayton County, which ruled that employment discrimination under Title VII included terminating an individual for being homosexual or transgender. When President Joe Biden (D) first took office, he declared that the decision in Bostock “changed the meaning of federal law regarding sex discrimination,” which included Title IX, which the Department of Education (DOE) recognized.
In 2021, the DOE issued a “Dear Educator” Letter to Title IX recipients, which included a fact sheet from the Department of Justice (DOJ) that provided examples of discrimination under Title IX. This fact sheet included preventing a high school male who identifies as female from using the girls’ restroom, stopping a biological male from trying out for the girls’ cheerleading team, and failing to use a student’s preferred pronoun. The plaintiffs argue that Bostock did not address these examples and that, in fact, “Bostock expressly declined to resolve any questions about bathrooms, locker rooms, or the like.”
Furthermore, the lawsuit argues that the USDA’s actions could “irreparably harm” plaintiff states and interfere with the state’s sovereign authority to enforce and administer their laws. Several states, including Arizona, have laws that conflict with the imposed regulations from the USDA on the understanding that Title IX could not prohibit such laws. Ariz. Rev. Stat. § 15-120.02 states that interscholastic or intramural athletic teams sponsored by a public school must be expressly designated by biological sex for males, females, or mixed teams, and only students of the specified sex may participate on the team.
The lawsuit ends by requesting a declaratory judgment that the USDA’s actions are unlawful, that plaintiff states are not bound to the regulations, and that funds cannot be withheld from states that have sex-separated bathrooms.
The Arizona Sun Times previously reported that Brnovich is not the only Arizona official to speak out against the USDA’s regulations. Arizona Representative Andy Biggs (R-AZ-05) sent a letter to the USDA demanding the policy be reversed and asked if the department would open Office of Civil Rights (OCR) investigations on non-compliant schools.
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