Republican AGs Sue for Schools’ Right to Deny Free Lunches to Gay and Trans Kids

The lawsuit argues that the Biden administration went too far in asking schools with government-funded lunch programs not to discriminate against queer kids.

Republican AGs Sue for Schools’ Right to Deny Free Lunches to Gay and Trans Kids
Photo:Lisa Rathke (AP)

Twenty-two Republican state attorneys general are suing the Biden administration for requiring schools that accept federal funds for free lunch programs to comply with gender and sex non-discrimination rules. To put it plainly: These 22 state attorneys generals seem to think schools should be allowed to discriminate against LGBTQ kids who use the Department of Agriculture’s free lunch programs.

Tennessee Attorney General Herbert Slatery III and Indiana Attorney General Todd Rokita lead the group, which includes Alabama, Alaska, Arizona, Arkansas, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and West Virginia. The lawsuit was filed in the U.S. District Court for the Eastern District of Tennessee on Tuesday.

This group contends that the Department of Agriculture (USDA) has overstepped by “ignoring procedural requirements, issued directives and rules that misconstrue the law and impose unlawful requirements” on the states. Those new directives? In May 2022, USDA issued an update to states utilizing federal funds—say for the federally funded school lunch program—saying they must “update their program discrimination complaint processing procedures” to include complaints of sexual orientation and gender identity. If they don’t, the federal government could withdraw its funding of the program.

“Whether you are grocery shopping, standing in line at the school cafeteria, or picking up food from a food bank, you should be able to do so without fear of discrimination,” Food, Nutrition and Consumer Services Deputy Under Secretary Stacy Dean said in May when announcing the policy.

The attorneys general insist the Biden administration doesn’t have the authority to demand this, drawing on conservative legal doctrine that the administrative state is a blight on all of us, and only Congress can make these rules. (Can you imagine if Congress—the group held hostage by Sens. Joe Manchin and Kyrsten Sinema—were responsible for every little move of a department under another branch of government?)

“This case is, yet again, about a federal agency trying to change law, which is Congress’ exclusive prerogative,” Slatery said in a statement announcing the lawsuit this week.

Previously, 26 state attorneys general sent a letter to the administration outlining their concerns about the expansion of nondiscrimination definitions back in mid-June.

This group of attorneys general want the USDA memoranda and rule found invalid and unenforceable, thereby giving an out to people who, again, discriminate against queer kids trying to access free lunch programs. Truly ghoulish behavior! But at least the administrative state may be stopped! That’s the real blight—not the fact that some kids go hungry.

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