On May 5, the United States Department of Agriculture (USDA)’s Food and Nutrition Service (FNS) issued new guidance involving sexual orientation and gender identity language requirements. It stated 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, as amended, Supplemental Nutrition Assistance Program (SNAP), formerly the Food Stamp Program (7 USC § 2011 et seq.), to include discrimination based on sexual orientation and gender identity.” FNS is responsible for administering the USDA food assistance programs, including those related to schools, such as the School Breakfast Program and the National School Lunch Program (NSLP).
This interpretation comes as a result of President Biden’s Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation and is believed by FNS to be an outworking of the Supreme Court’s 2020 Bostock decision that found the prohibition of “sex” in Title VII of the Civil Rights Act to include sexual orientation and gender identity. Though the Bostock case dealt with Title VII, which involves employment discrimination, FNS believes that this same interpretation of “sex” also applies to Title IX, which deals with educational activities.
This means that these FNS school meal programs, which are subject to Title IX civil rights law preventing discrimination on the basis of sex, now also ban discrimination on the basis of sexual orientation and gender identity. In order to receive funding for meal programs operated by USDA’s FNS, state and local agencies, schools, lunch program operators, and sponsors now must update their non-discrimination policies and signage to explicitly prohibit discrimination based on sexual orientation and gender identity.
Why is this problematic?
While it is troubling to see continued efforts to push gender ideology in ways that contradict a biblical view of human sexuality, this new guidance was particularly problematic in that it did not provide a robust exemption for religious schools or other faith-based programs that participate in FNS-funded meal programs. Title IX’s religious exemption is automatically granted to religious schools without any type of action required from either the school or government. Recently, this interpretation of the exemption was affirmed in a case involving Fuller Theological Seminary.
Despite Title IX’s strong protection for religious schools and faith based organizations, the USDA insisted that religious schools that object to this guidance must submit a written declaration to the secretary of agriculture identifying the provisions within the rule that conflict with a specific tenet of the religious organization. Additionally, it was unclear whether these schools would face penalties if they did not comply while their exemption letter was being considered.
In 2019, the NSLP provided free or reduced price lunches to 29.6 million children every day. A significant number of those children attend religious schools that maintain deeply-held religious beliefs in contradiction to this understanding of sex and gender. Many of these schools were beginning their academic years with great uncertainty as they faced difficult decisions: will they violate their deeply-held religious beliefs or risk the loss of funding for some of the most vulnerable children enrolled in their schools. Already, one religious school, represented by our partners at Alliance Defending Freedom, was forced to sue in order to be granted their exemption.
Additionally, more than 20 state attorneys general have filed a lawsuit against USDA, contending that the department’s interpretation of Title IX would cause the plaintiff states to lose federal funding for the National School Lunch Program and the Supplemental Nutrition Assistance Program (SNAP). The lawsuit accuses Biden of asking federal agencies to rewrite federal law, and the attorneys general allege that the USDA ignored procedural requirements and misconstrued federal code in issuing its directives.
What changed?
On Friday, Aug. 12, the USDA issued a clarification stating that it would reinstate the broad Title IX religious exemption that automatically applies to religious schools and faith-based institutions without the step of a written request. This clarification comes after months of work from religious liberty advocates and is a substantial victory for religious institutions and people of faith who do not want to compromise their most fundamental beliefs as they work to serve their neighbors in the public square.
Religious schools are on the front lines of caring for some of the most vulnerable children across the country, and the ERLC will continue to advocate for their ability to faithfully fulfill their mission without risking the welfare of the most vulnerable children enrolled in their schools or sacrificing their deeply-held beliefs on issues of gender and sexuality.
