KNOXVILLE, Tenn. (WRIC) — Virginia Attorney General Jason Miyares joined 22 other states in suing the federal government to stop gender identity and sexual orientation from being included in non-discrimination policies for SNAP, including some school lunch programs.
The Biden administration directed the Department of Agriculture (USDA), which oversees SNAP, to update their non-discrimination guidance following a supreme court decision that discrimination based on sexual orientation and gender identity fall under the umbrella of protections against sex discrimination, meaning employers can’t “fire someone simply for being homosexual or transgender.”
The Biden administration interpreted that decision as applying not only to Title VII of the Civil Rights Act, which governs employment, but also to Title IX, which provides discrimination protections in educational settings.
In accordance with federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, this institution is prohibited from discriminating on the basis of race, color, national origin, sex (including gender identity and sexual orientation), religious creed, disability, age, political beliefs, or reprisal or retaliation for prior civil rights activity.Updated version of the USDA non-discrimination statement, which the federal government requires states to adopt. The change is highlighted in bold.
In a press release announcing the lawsuit, Miyares claimed the federal government was “forcing unlawful regulatory measures onto schools and holding hostage funding for school lunches.”
If states do not update their non-discrimination statements, the federal government could withhold SNAP funding – which the suing states say should merit an injunction blocking the guidance from going into effect until the case can be resolved.
How Far Does Bostock Go?
The central question of the suit is how far, exactly, the decision in Bostock v. Clayton County goes.
Miyares and the other plaintiffs argue that it applies only to Title VII, and that the Biden administration has overstepped in attempting to apply it to Title IX. But the administration has gone forward with the interpretation that the protection from sex discrimination in Title VII and Title XI are effectively analogous.
The majority decision — written by Justice Neil Gorsuch, who was joined by Chief Justice John Roberts and the court’s four liberal justices — does not explicitly mention Title IX at all, though it is mentioned critically by conservative Justice Samuel Alito in his dissent.
The opinion does, however, reason that sex discrimination — by employers in the context of Title VII — extends to cover gender identity and sexual orientation under the “plain meaning of the law.” The question for the Biden administration and Attorney General Miyares is whether that plain meaning is the same in Title IX.