South Dakota’s Republican Gov. Kristi Noem is threatening to sue the U.S. government if it attempts to enforce a new policy that would cut funding for federal lunch programs from schools that discriminate against LGBTQ students.
Last month, the U.S. Department of Agriculture announced that it would interpret prohibitions on sex discrimination contained in Title IX of the Education Amendments Act of 1972 and the Food and Nutrition Act of 2008 as applying to instances where individuals are discriminated against based on their sexual orientation or gender identity.
In terms of Title IX, and educational environments, adopting that interpretation means that schools that receive federal funds from USDA’s Food and Nutrition Service must investigate allegations of discrimination against students based on gender identity or sexual orientation.
Each year, the USDA spends more than $14 billion as part of the National School Lunch Program, which provides free- and reduced-price meal programming to more than 29 million children in schools across the country.
But schools that fail to adopt inclusive policies that ensure LGBTQ students are not subject to harassment or discrimination — whether at the hands of fellow students or administrators — could potentially see that funding cut.
To protect against that loss of funding, schools will be expected to update their nondiscrimination policies and signage to ensure that LGBTQ individuals are receiving equal access to programs, resources, and facilities made available to their cisgender and heterosexual peers — including after-school athletic programs, academic and extracurricular activities, and gender-affirming restrooms and locker rooms. Schools must also investigate complaints of alleged discrimination made by LGBTQ students to ensure those policies are being enforced.
“USDA is committed to administering all its programs with equity and fairness, and serving those in need with the highest dignity,” Agriculture Secretary Tom Vilsack said in a statement when the proposed rule was announced. “A key step in advancing these principles is rooting out discrimination in any form — including discrimination based on sexual orientation and gender identity. 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.”
The USDA’s action is in line with an executive order, issued last year by President Joe Biden, designed to prohibit anti-LGBTQ discrimination in federal programs, as well as a 2020 U.S. Supreme Court decision finding that LGBTQ people are protected by prohibitions on sex discrimination in the Civil Rights Act.
Going forward, “any discrimination based on sexual orientation and gender identity in [Food and Nutrition Service] programs will be handled as sex discrimination,” a USDA spokeswoman told the Washington Free Beacon in a statement.
Critics of the USDA’s decision, especially social conservatives, argue that the policy could harm disadvantaged students attending schools that do not wish to recognize LGBTQ students’ identities, especially in the case of transgender students seeking to access sex-segregated spaces.
While Christian K-12 schools that participate in the National School Lunch Program can apply for a religious exemption, public and nonreligious private schools must follow the new policy or risk losing funding, which could mean less funding for lower-income or at-risk children attending those schools.
“All people should be treated with dignity and respect, but it’s wrong for the federal government to take away free meals from economically disadvantaged students if their schools do not embrace radical gender ideology,” Greg Baylor, a senior counsel at the Alliance Defending Freedom, told the Washington Free Beacon.
Capitalizing on conservative discontent with the newly announced policy, Noem — whose name has often been floated as a presidential contender in 2024 — says she’ll go to court to ensure that South Dakota schools are not forced to adopt pro-LGBTQ policies, especially with respect to sex-segregated spaces.
“President Biden is holding lunch money for poor Americans hostage in pursuit of his radical agenda. He is insisting that we allow biological males to compete in girls’ sports or else lose funding for SNAP and school lunch programs,” Noem said in a statement sent to the Argus Leader, the state’s top newspaper. “South Dakota will continue to defend basic fairness so that our girls can compete and achieve.”
Of course, neither Noem nor any other individual can sue until the proposed USDA rules for public schools are finalized. A public comment and rules review period is currently underway.
That hasn’t stopped other Republicans from making similar threats of legal action.
Christina Pushaw, the spokeswoman for Florida Gov. Ron DeSantis — another 2024 contender — said the administration’s decision to “withhold food from disadvantaged children in order to advance a deranged political agenda” was “appalling.”
“We will not allow Biden to force Floridians to choose between children’s food and parents’ rights,” Pushaw told the Washington Free Beacon in a statement. “That is the kind of ‘decision’ that a totalitarian regime would force upon its citizenry.”
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