President Joe Biden's administration has moved forward with a new interpretation of Title IX anti-discrimination laws that could potentially strip federal funding for school lunches from schools that do not let transgender students use their preferred bathrooms or play on preferred sports teams.
The U.S. Department of Agriculture announced last month it will interpret federal anti-discrimination law "to include discrimination based on sexual orientation and gender identity." Its decision is based on an executive order Biden signed after assuming office in January 2021, as well as the Supreme Court's decision in Bostock v. Clayton County, which found that Title VII protections against sex discrimination extend to discrimination based on sexual orientation and gender identity.
“As a result, state and local agencies, program operators and sponsors that receive funds from FNS must investigate allegations of discrimination based on gender identity or sexual orientation,” the USDA said in a May 5 statement, first reported by the Center Square. “Those organizations must also update their non-discrimination policies and signage to include prohibitions against discrimination based on gender identity and sexual orientation.”
What this means is that any recipients of the USDA's Food and Nutrition Services child nutrition programs, including the National School Lunch Program, could lose federal funding if they do not comply with Biden's new interpretation of Title IX.
If, for instance, a school does not permit a boy who identifies as a girl to use the girls' restrooms or locker rooms, the school may lose access to the lunch program as a consequence. The same goes for school sports teams. This would be in line with the stated intention of the White House.
"Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports," the president's Jan. 20, 2021executive order reads.
The federal government is already receiving pushback from Republican governors. In a statement on Thursday, South Dakota Gov. Kristi Noem accused Biden of holding school lunch money "hostage" and vowed to take legal action.
“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. “South Dakota will continue to defend basic fairness so that our girls can compete and achieve. I would remind President Biden that we have defeated him in litigation before and are ready to do so again. Mr. President, we’ll see you in court.”
"It is appalling that the Biden Administration is threatening to withhold food from disadvantaged children in order to advance a deranged political agenda – that Floridians have rejected. Sadly, this would not be the first time that Biden has pursued petty political score-settling to the detriment of Americans’ well-being," said Christina Pushaw, a spokeswoman for Florida Gov. Ron DeSantis (R).
She continued: "We will not allow Biden to force Floridians to choose between children’s food and parents’ rights. That is the kind of 'decision' that a totalitarian regime would force upon its citizenry.
"The federal government has no authority to follow through on these threats, but Governor DeSantis will always remain vigilant in protecting Floridians from unconstitutional federal overreach."
DeSantis, Noem, and other conservative governors have championed so-called Fairness in Womens Sports legislation, which prohibits gender-dysphoric males from competing in women's sports leagues.
The Biden administration maintains that LGBT people need protections from discrimination to ensure that all Americans have an equal and equitable access to government assistance.
“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 in a May 5 statement. “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 Department of Education is expected to release its own regulatory proposal on Title IX sometime in June. Politico reported that Education Secretary Miguel Cardona will unveil new discrimination protections for transgender students as well as new rules for how schools must respond to sexual misconduct complaints. The Biden administration is also expected to reverse due process protections for those accused of sexual harassment enacted by the Trump administration.
Editor's note: This article was updated at on 6/2/2022 at 12:55 p.m. ET to include a statement from Florida Gov. Ron DeSantis' office.