Religious Schools Needn’t Follow Title IX Gender Guidance to Stay in Lunch Program

Food fight for religious schools resolved. Religious schools need not follow new Biden administration Title IX guidelines in order to receive federal funding for school lunch programs, according to new guidance from the US Department of Agriculture (USDA). The announcement comes amid a major battle that somehow wraps up gender identity and cafeteria food.

This food fight started when the USDA announced in May that it “will interpret the prohibition on discrimination based on sex found in Title IX of the Education Amendments of 1972, and in the Food and Nutrition Act of 2008 … to include discrimination based on sexual orientation and gender identity.” This brings it in line with a Biden administration executive order issued last year.

Title IX previously applied only to sex-based discrimination but is being expanded to cover discrimination based on sexuality or gender identity. Many oppose the change, suggesting that it smuggles in certain knowledge about gender—and all that entails with regard to sports, bathrooms, etc.—under the auspice of mere non-discrimination.

In the USDA’s May announcement, it said schools participating in federal nutrition programs including the National School Lunch Program would have to update their non-discrimination policies and signage to match the new guidelines. That meant including sexual orientation and gender under the umbrella of sex—a development against which many conservatives and religious schools pushed back.

A number of people have characterized the fight over the new USDA guidelines as Republicans wanting to discriminate against transgender kids in school lunch programs, sometimes engaging in some majorly disingenuous rhetoric to make the point. For instance, California’s Democratic Gov. Gavin Newsom characterized the opposition as “arguing LGBTQ children should starve.”

This is a mischaracterization. There’s no evidence that school systems have been or are planning to deny trans students equal access to lunch programs or anything like that. Nor have there been any reports of low-income students denied food assistance because they’re gay.

Rather, opponents of the USDA guidance—including the 22 states suing over it—object to the larger change regarding Title IX and gender identity, and see the USDA announcement as a way to force them into accepting it by holding lunch money hostage.

Religious schools are off the hook, however. They can claim an exemption and don’t even have to file paperwork to do so, the USDA said in an August 12 memo. Title IX includes some exceptions, including one permitting an institution to be exempt on religious grounds if there is a conflict between Title IX and a school’s governing religious tenets,” it pointed out. “USDA regulations do not require a religious educational institution to submit a written request for a Title IX exemption in order to claim that exemption.”

But the battle continues for public school systems.

The lawsuit filed by 22 states in July, “seeks to stop the Biden Administration from enforcing an expansive and legal interpretation of federal antidiscrimination laws under the threat of withdrawing key food assistance program funding,” per a press release from Tennessee Attorney General Herbert Slatery. The complaint says the USDA changed its guidelines for school lunch programs and food stamp benefits without allowing for proper input as required by the Administrative Procedures Act.

To be clear, the States do not deny benefits based on a household member’s sexual orientation or gender identity,” the complaint stressed. But where the USDA’s old policy”prohibited discrimination only ‘in any program or activity conducted or funded by USDA,’ the new policy seemingly applies to each program-administering’institution’ as a whole,” it says.

Because Congress has declined the Biden Administration’s call to rewrite Title IX and other statutes,” and “because the Department of Education has so fen not prevailed in the States’ lawsuits against its” guidance, “the Biden Administration seemingly decided to use the USDA to accomplish its rewriting of Title IX through other means.”

The States are also challenging the Biden administration’s interpretation of Title IX more broadly. Twenty states have filed a federal lawsuit against the US Department of Education and the Equal Employment Opportunity Commission. In July, the US District Court for the Eastern District of Tennessee temporarily blocked the enforcement of the rules.


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