·  Legal News, Analysis, & Commentary

Political Litigation

Texas Attorney General, Others Sue Department of Agriculture Over New LGBT Rules

— July 26, 2022

The lawsuit alleges that the Biden administration didn’t seek the requisite approval to enforce non-discrimination clauses against LGBT Americans.

Texas Attorney General Ken Paxton and more than 20 other attorneys general have filed a lawsuit against the United States Department of Agriculture, which recently revised a federal Food and Nutrition Service policy that would require the public and commercial recipients of food assistance funds to update their non-discrimination policies to protect non-heterosexual consumers.

According to the Texas Tribune, the U.S. Department of Agriculture announced the revision in May, saying that it planned to expand its interpretation of legal discrimination to include discrimination on the basis of sexual orientation and gender identity.

As a result, state agencies and programs that receive funding from the Food and Nutrition Service must “investigate allegations of discrimination based on gender identity or sexual orientation” and update their internal policies accordingly.

However, Paxton and his conservative counterparts claim that the Department of Agriculture’s guidance is “unlawful” because individual states were not consulted or offered the opportunity to provide feedback.

“”This case is, yet again, about a federal agency trying to change law, which is Congress’ exclusive prerogative,” Tennessee Attorney General Herbert Slatery said in a statement. “The USDA simply does not have that authority. We have successfully challenged the Biden Administration’s other attempts to rewrite law and we will challenge this as well.”

Under the Administrative Procedure Act, the public—including public institutions—are entitled to comment and contest proposed revisions to federal policy.

Furthermore, Paxton alleges that the Department of Agriculture has also fundamentally misinterpreted the Supreme Court’s ruling in Bostock v. Clayton County, which expanded the definition of sexual discrimination in the workplace to include discrimination based on gender identity or sexual orientation.

Paxton now claims that allowing LGBT Americans to receive food benefits could result in “regulatory chaos.”

A 2013 image of Texas Attorney General Ken Paxton. Image via Wikimedia Commons/user:Alice Linahan Voices Empower. (CCA-BY-2.0).

“[It] will inevitably result in regulatory chaos that threatens essential nutritional services to some of the most vulnerable citizens,” Paxton’s office said in a press release.

Secretary of Agriculture Tom Vilsack released a separate statement reaffirming the department’s commitment to ensuring that Americans of all backgrounds are afforded equitable access to nutritional food.

“USDA is committed to administering all its programs with equity and fairness, and serving those in need with the highest dignity,” Vilsack said. “A key step in advancing these principles is rooting out discrimination in any form—including discrimination based on sexual orientation and gender identity.”

5NBC-DFW notes that, while the Department of Agriculture says that it would prefer that Food and Nutrition Service recipients comply with its policies voluntarily, it will refer any violations to the Department of Justice for investigation and, potentially, prosecution.

However, it remains unclear whether the federal government would block funding for school “free lunch” programs as part of its enforcement.


AG Pax­ton Sues Biden Admin­is­tra­tion for Threat­en­ing to With­hold Nutri­tion Assis­tance for School Pro­grams that Do Not Adhere to ​“Gen­der Iden­ti­ty” Policy

Ken Paxton Among AGs Suing USDA Over LGBTQ School Meal Directive

Texas suing USDA over requirement to add LGBTQ protections to nutrition programs’ nondiscrimination policies

Join the conversation!