Alaska joins lawsuit challenging USDA’s prohibition of LGBTQ discrimination

Alaska’s attorney general joined 21 others in suing to block the federal government from enforcing a prohibition of discrimination based on gender identity and sexual orientation.

The lawsuit, filed Tuesday, is focused on school meal and other federal food aid programs. It claims the U.S. Department of Agriculture “issued directives and rules that misconstrue the law and impose unlawful requirements” and called the department’s understanding of Title IX “flawed.”  

The USDA’s Food and Nutrition Service issued guidance in May to state agencies and program operators stating, “discrimination based on gender identity and sexual orientation can constitute prohibited sex discrimination under Title IX and the Food and Nutrition Act.”

This applies to programs or activities receiving federal financial assistance from the Food and Nutrition Service, including the National School Lunch Program, Supplemental Nutrition Assistance Program (SNAP) and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC).

Alaska Department of Law Communications Director Patty Sullivan wrote in an email that the USDA action “is another example of federal agencies expanding federal law beyond what was contemplated by Congress.”

“Regardless of your stance on what should be expressly covered by Title IX from a policy perspective, lawmaking needs to occur through the proper branch of government – Congress. Instead you have unelected bureaucrats making law unilaterally, which is not what the U.S. Constitution envisioned,” Sullivan wrote.

Rule follows Biden order, Supreme Court decision

USDA’s guidance followed President Joe Biden’s executive order last year affirming the rights of all people no matter their gender identity or sexual orientation, as well as the U.S. Department of Education announcement last year extending Title IX prohibitions on sex-based discrimination to include discrimination based on sexual orientation and gender identity. Title IX prohibits sex-based discrimination in any education program or activity offered by a school that receives federal funding

Both the U.S. Department of Education and USDA’s actions stem from the U.S. Supreme Court decision in Bostock v. Clayton County, which determined the term sex includes sexual orientation and gender identity.

Under the May guidance, USDA said state agencies and program operators would have to update their discrimination complaint processing procedures, update their nondiscrimination statements on documents and materials, and order new signage that reference gender identity and sexual orientation discrimination. The lawsuit called this “federal overreach.”

The 22 attorneys general, also on Tuesday, filed a preliminary injunction motion asking the court to prohibit USDA from implementing its new rules while the lawsuit is pending.

The lawsuit, filed in district court in Tennessee, is led by Tennessee Attorney General Herbert Slatery and Indiana Attorney General Todd Rokita. Other attorneys general to sign on to the lawsuit include Alaska Attorney General Treg Taylor, and those from Alabama, Arizona, Arkansas, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia and West Virginia.

The lawsuit follows a June letter from attorneys general of 26 states, including Alaska, asking the federal government to withdraw the USDA guidance.

GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX

SUBSCRIBE