By Clair McFarland, Cowboy State Daily
The federal agency that in May asked for sweeping gender identity-friendly policy changes in schools nationwide now says it only meant to change its own programs within those schools.
But Wyoming’s top education official on Friday countered, saying the federal narrative is only shifting due to national pushback.
The Original Directive
The U.S. Department of Agriculture on May 5 dispatched a statement announcing its adoption of a new interpretation of Title IX, a section of federal law protecting students from sexual discrimination in education, to include “gender identity” and “sexual orientation” as groups protected from discrimination.
USDA then asked state agencies funded by its foods program to make a major policy change:
“State and local agencies, program operators and sponsors that receive funds from (USDA’s Food and Nutrition Services program) … must also update their non-discrimination policies and signage to include prohibitions against discrimination based on gender identity and sexual orientation,” the announcement said.
The Wyoming Department of Education, which oversees public schools in the state, receives about $40 million a year from the Food and Nutrition Services program, primarily for school meals.
The department’s general nondiscrimination statement does not include the two new protected groups.
Wyoming top officials reacted with alarm to the USDA mandate, especially in light of federal court cases such as Grimm vs. Gloucester County School Board, in which a federal appeals court ruled that Title IX’s anti-discrimination language should uphold transgender students’ rights to use bathrooms consistent with their gender identity.
The Narrower Version
But a USDA representative on Friday told Cowboy State Daily in an email that the agency’s actual intention in issuing the guidance was to transform only nondiscrimination statements that specifically apply to its own food programs – not the entire education department.
“The nondiscrimination statements specific to the federal nutrition assistance programs must be updated by state agencies and program operators that administer such programs,” the email reads.
Pushback By Half Of The Country
But Superintendent of Public Instruction Brian Schroeder told Cowboy State Daily on Friday that the USDA’s narrative has changed multiple times – which could be a sign of the massive pushback against the agency.
Attorneys general of 26 states, including Wyoming’s AG Bridget Hill, on June 12 sent a letter to President Joe Biden demanding his administration retract the guidance, saying it is not legally sound and the USDA didn’t properly consult with the states.
Because the guidance is not yet an official rule, said Schroeder, “that might be why when they (USDA) were challenged by so many states across the union through their attorneys general, they started issuing follow-up statements that seemed to contradict their first statement.”
A USDA spokesperson on June 3 told Cowboy State Daily that the change was intended merely to give recourse for LGBTQ+ people who experience discrimination “when they access federally funded food and nutrition services.”
The spokesperson at that time, however, reiterated the original mandate, saying “state and local agencies, program operators and sponsors that receive funds from USDA’s Food and Nutrition Service must… update their non-discrimination policies and signage” to include the new groups.
Wyoming’s Education Department is a state agency that receives Food and Nutrition Service funding.
Ten days later, the USDA reportedly told the Council of Chief State School Officers, a national association for state school superintendents, that it intended the policy change to be voluntary, not a funding threat.
Schroeder and his department waited for an official USDA statement corroborating the statement to the CCSSO, he said.
No official statement ever came.
Conversely, the USDA since has told members of the media that it would cut funding over noncompliance if necessary.
Schroeder on June 22 advocated for Wyoming to withdraw from USDA school meals funding.
“As I confer with state superintendents around the country, they’re prepared to take whatever steps necessary if the USDA decides to push this,” Schroeder said Friday, adding, “(The agency behaves) like we can’t govern ourselves… So if we don’t fight for our own state sovereignty who’s going to?”
The rule could change and intensify during USDA’s official rulemaking process, continued Schroeder, which he saw as a reason to push against it harder during its preliminary phase.
Much Bigger Than USDA
The Wyoming Department of Education’s general nondiscrimination policy does not include sexual orientation and gender identity in its protected groups.
According to the USDA’s latest comments, the department’s over-arching policy no longer needs changed to meet USDA standards, but Wyoming may be asked to change that policy soon anyway, to reflect the latest judicial views of Title IX.
A federal judge in October 2020 opined just that.
“At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender,” reads the federal appeals court ruling in Grimm vs. Gloucester, a case involving a transgender boy whose right to use the boys bathroom at his high school was upheld by the court. “We join a growing consensus of courts in holding that the answer is resoundingly yes.”
This judicial attitude toward existing laws is the basis on which the USDA founded its new guidance, although USDA in the guidance referenced a different case, Bostock vs. Clayton County, which concerned anti-discrimination policies linked to Title VII of the Civil Rights Act, not the Title IX education amendments USDA is reinterpreting.
In Bostock vs. Clayton County, the U.S. Supreme Court held that “sex” as a protected nondiscrimination qualifier also includes sexual orientation and gender identity.
Wyoming Gov. Mark Gordon’s office on June 22 said there could be a far broader impact than the USDA’s acknowledgement of the new interpretation.
“We are already having discussion within the executive branch about the true impact and costs associated with the proposed USDA rule, which could go much beyond the food assistance program,” Gordon spokesman Michael Pearlman wrote in a text to Cowboy State Daily. “We could be talking about a much higher dollar figure, as Title IX funding extends well beyond school nutrition programs.”