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AG Derek Schmidt demands Biden administration withdraw guidance tying school nutrition assistance to compliance with new federal gender policy

Release Date: Jun 15, 2022

TOPEKA – (June 15, 2022) – Kansas Attorney General Derek Schmidt yesterday called on the U.S. Department of Agriculture (USDA) to withdraw its threat to withhold school-lunch and related nutrition funding from schools and other children's food programs unless they comply with a new Biden administration directive to expand prohibitions against employment discrimination based on gender identity to schools and other non-employment settings.

On May 5, the USDA’s Food and Nutrition Service (FNS) announced it would drastically expand its interpretation of the prohibition on sex discrimination found in Title IX to apply to gender identity and sexual orientation. Any state, school, local agency or program receiving federal funds from FNS must comply or lose federal funding.

"Addressing discrimination based on gender identity and sexual orientation in school settings is a subject worthy of thoughtful consideration by local school boards with community input," Schmidt said. "But forcing a one-size-fits-all national response by threatening not to feed low-income kids unless their school complies with the Biden administration's illegal decrees is a radical way to address the matter and is just plain wrong."

Schmidt and 25 other attorneys general wrote in a letter to USDA that the new federal directive is based on a misreading of the U.S. Supreme Court's decision in Bostock v. Clayton County, noting that case involved only employment nondiscrimination law and the justices expressly disclaimed its application to “other federal or state laws that prohibited sex discrimination” such as Title IX and the Food Nutrition Act and expressly did not “prejudge any such questions.”

“[B]y vastly expanding the concept of ‘discrimination on the basis of sex’ to include gender identity and sexual orientation, the [USDA] Guidance does much more than offer direction,” the attorneys general wrote. “It imposes new—and unlawful—regulatory measures on state agencies and operators receiving federal financial assistance from the USDA. And the inevitable result is regulatory chaos that would threaten the effective provision of essential nutritional services to some of our most vulnerable citizens.”

The National School Lunch Program serves nearly 30 million schoolchildren daily, many of whom rely on it for breakfast, lunch or both. Approximately 100,000 public and nonprofit private schools and residential childcare facilities receive federal funding to subsidize free or reduced-priced meals to qualifying children.

Schmidt’s letter is his latest action taken to reign in the Biden administration’s attempts to unlawfully impose its flawed interpretation of the Bostock ruling.

In August, Schmidt was among 18 state attorneys general who filed a federal lawsuit challenging similar federal guidance issued by the Equal Employment Opportunity Commission and the U.S. Department of Education. That guidance purports to decide controversial questions such as whether schools must allow biological males to compete on girls’ sports teams, whether employers and schools may maintain sex-separated showers and locker rooms, and whether individuals may be compelled to use another person’s preferred pronouns.

The Biden administration claims that the guidance, issued under Title IX and Title VII provisions of federal education and civil rights laws, implements the Bostock decision. But that decision addressed only employment discrimination and did not address any of the matters covered by the guidance. The lawsuit, which remains pending, argues that federal bureaucrats have no legal authority to unilaterally mandate answers to these sensitive questions, let alone to do so without providing the public with notice and an opportunity to comment.

Schmidt said the guidance from the federal agencies would in effect invalidate state laws across the country and could preclude states from legislating on certain subjects, such as separating sporting competitions by biological sex. The Kansas Legislature twice has passed the Fairness in Women's Sports Act to separate sporting competitions by biological sex, but both times it was vetoed by the governor.

A copy of the letter to the USDA is available at https://bit.ly/39yfuce.

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