September 27, 2022
Republican-led states across the country are poised to miss out on federal funds for the National School Lunch Program after the Biden administration announced last month it was making such funds contingent upon a pro-transgender interpretation of Title IX.

Republicanled states across the country are poised to miss out on federal funds for the National School Lunch Program after the Biden administration announced last month it was making such funds contingent upon a pro-transgender interpretation of Title IX.

Under the provisions of an announcement last month by the Department of Agriculture, any state or local agency that receives funding from the department’s Food and Nutrition Service must interpret Title IX to include nondiscrimination protections for sexual orientation and gender identity. The requirement came without the formal notice of rule-making federal agencies are typically required to exercise when making a policy change.

“USDA is committed to administering all its programs with equity and fairness, and serving those in need with the highest dignity. A key step in advancing these principles is rooting out discrimination in any form – including discrimination based on sexual orientation and gender identity,” Secretary of Agriculture Tom Vilsack said in a press release at the time. “We must recognize the vulnerability of the LGBTQI+ communities and provide them with an avenue to grieve any discrimination they face. We hope that by standing firm against these inequities we will help bring about much-needed change.”


The Biden administration has continually attempted to interpret Title IX, which bars discrimination in educational settings on the basis of sex, to include sexual orientation and gender identity, per a 2020 Supreme Court ruling in Bostock v. Clayton County that held sexual orientation was protected under similar provisions in Title VII, which likewise barred discrimination on the basis of sex in employment. The Department of Education is expected to release a new regulatory proposal this month applying the Bostock decision to Title IX.

But the Agriculture Department’s decision to attach new strings to federal school lunch funding has set the stage for a showdown between several Republican-controlled states that have expressly banned certain practices that would otherwise be required by the department, potentially jeopardizing the availability of the program to millions of primarily low-income children.

According to data from the Department of Agriculture, the National School Lunch Program provided over 1.3 billion lunches during the 2021 fiscal year. That number was down significantly from 3.2 billion lunches in 2020 and the 4.8 billion lunches the program averaged annually from 2017-2019.

“It does set up a conflict between state law and federal law … or this interpretation of federal law,” Jonathan Butcher, an education fellow at the conservative Heritage Foundation, told the Washington Examiner in an interview.

In theory, Butcher explained, any school that does not permit a biological male who identifies as a woman to use the women’s bathroom or locker room or compete in school sports based on their gender identity would face a civil rights investigation and could subsequently be barred from receiving school lunch funding.

But several states have passed laws forbidding school sports programs from allowing biological males from competing in women’s sports, setting up a situation in which a school district conforming to state law would no longer receive funding under the program, while a district that embraced the federal rules would face legal consequences from the state.

In March, the Biden administration publicly feuded with Florida Republicans, including Gov. Ron DeSantis, after the state’s legislature passed a law prohibiting classroom instruction on gender identity and sexual orientation in early grades. DeSantis had previously signed legislation in 2021 barring biological males from competing in women’s sports.

Under the Department of Agriculture’s requirement, schools in the state would be ineligible for funds.

The agency’s data show that, as of February, nearly 200,000 Florida children are currently taking part in the program. Other states that have passed similar laws include Indiana, Utah, Kentucky, Texas, Alabama, South Dakota, and West Virginia. Participation in all states is down significantly from 2020.

In a recent press conference, DeSantis, who is widely seen as a potential 2024 presidential contender, blasted the Biden administration for enacting “intentionally destructive policies like denying school lunches.”

“I mean, give me a break! Totally off his rocker to be doing that,” the Florida governor said.


But while the availability of funding for the school lunch program under the Biden administration’s new eligibility requirements has wrangled the president’s political opponents, Butcher noted that the program is one of the federal government’s most wasteful and no longer exclusively helps the low-income students it was originally designed for.

“Not only is the program not serving low-income students like it should, and not only is it incredibly wasteful and inefficient,” Butcher said, “but now, the Biden administration is saying if you don’t have some sort of gender-affirming policy, the implication is that they will withhold money for school lunches, which, you know, would take money away, again, from a program that’s supposed to help low-income kids who wouldn’t have meals otherwise.”

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