Attorney General Brnovich Sues to Stop Anti-Discrimination Policy From Taking Effect

By Camila Pedrosa

August 1, 2022

Over 20 Republican attorneys general sued the federal government, claiming a new mandate to include sexual orientation and gender identity in anti-discrimination policies is unlawful federal overreach.

Arizona Attorney General Mark Brnovich filed a complaint against the United States Department of Agriculture in federal court Tuesday, along with 21 other attorneys general, to temporarily halt enforcement of a USDA program that aims to curb discrimination on the basis of sexual orientation and gender identity.

The USDA directive mandates that any agency or program that receives funding from the department’s Food and Nutrition Service—such as public schools—must update their non-discrimination policies to include prohibiting discrimination based on gender identity and sexual orientation, as well as investigate allegations of violations to this updated policy.

The policy updates the department’s interpretation of Title IX, a statute that prohibits sex-based discrimination in federally funded schools. This would mean that public schools would be federally required to investigate and address instances of discrimination based on sexual orientation or gender identity.

Examples of this type of discrimination include transgender students being required to use the bathroom that aligns with their sex assigned at birth, a non-heterosexual couple being prohibited from attending a school dance together, and school administrators refusing to investigate instances of harassment based on sexual orientation or gender identity.

The USDA directive cites Bostock v. Clayton County, a Supreme Court ruling that extends protections from Title VII of the Civil Rights Act of 1964 to LGBTQ+ people in the workplace.

The attorneys general allege in the lawsuit the program “imposes unlawful requirements on [the states],” saying the USDA is misapplying the Supreme Court case as it applies narrowly to workplaces, not schools and other public places.

But legal scholars say the language used in the opinion would extend the new protections to other statutes with similar language to Title VII, like Title IX.

The lawsuit, filed in Tennessee, mirrors an earlier case in the state that successfully blocked directives from President Biden that would protect students from in-school discrimination based on their sexual orientation or gender identity.
In a statement released Tuesday, Brnovich claims the directive will “threaten essential nutritional services for some of our most vulnerable students,” however, the USDA has not indicated whether it will withhold school lunch funding from schools that do not comply, only that it will refer violations to the Department of Justice.