The implementation of a Department of Agriculture rule forcing schools to apply civil rights law to transgender children or risk losing school lunch money could lead to the Supreme Court issuing a landmark opinion on transgender rights and Title IX. 

In 2022, the USDA issued a reinterpretation of Title IX of the Education Amendments of 1972 that, in its words, “Promotes Program Access and Combats Discrimination Against LGBTQI+ Community.” 

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

The department said that all schools that receive federal money for school lunch programs must take a more proactive role to “investigate allegations of discrimination based on gender identity or sexual orientation” or risk losing that federal money. “Those organizations must also update their non-discrimination policies and signage to include prohibitions against discrimination based on gender identity and sexual orientation.”

Almost immediately, lawsuits were filed to stop such a reinterpretation of Title IX. Tennessee led 21 other states in an effort to end the policy. “This case is, yet again, about a federal agency trying to change law, which is Congress’s exclusive prerogative,” said the Tennessee attorney general, Herbert Slatery. “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.”

A Trump-appointed federal district court judge in Tennessee later put the USDA policy on hold, saying it would cause “harm” to those states and their students if conservative schools did not expand Title IX protections — originally intended to protect women — to transgender people. 

The Biden administration appealed the ruling to the Sixth United States Appeals Circuit, where it argued that the policy itself is not even enforceable and, therefore, should be allowed to remain in place. One of the three appellate judges on the panel, Judge Joan Larsen, said she was “puzzled about why the administration would put out some documents that you are now claiming don’t mean anything.”

The circuit court has yet to issue its decision, but it is likely that the loser at the appellate level will bring the case to the Supreme Court, where the justices would be asked to determine if Title IX does, in fact, protect transgender people from discrimination. 

A lawyer for the Heritage Foundation who focuses on Title IX, Sarah Perry, tells the Sun that this reinterpretation by the Biden administration will likely land before the Supreme Court in the coming years, possibly even this term. 

“It is virtually guaranteed that the Supreme Court will step in on Title IX” due in part to a circuit split on the issue, Ms. Perry says. “The 11th Circuit has specifically held that Title IX is interpreted as being related to biological distinctions based on biological sex, not one’s gender identity. The Fourth Circuit came to the opposite conclusion.”

Ms. Perry notes that the Biden administration’s reinterpretation and subsequent USDA rule require that schools adopt regulations allowing transgender girls to play in female sports and allow transgender students in locker rooms and bathrooms that do not align with their birth sex. The schools must comply or lose that school lunch funding. 

“The president is keen to expand the definition of sex in any way that he can, especially in the context of public education,” she said. “They are content putting reduced lunch programs on the chopping block for kids — many of whom are minorities — who maybe only get one hot meal a day.”

Religious schools have already won relief in the courts. A Florida Christian school reached an out-of-court settlement in 2022 from the USDA because of its religious affiliation. 

Senator Marshall also tried to get Congress to overrule the USDA’s reinterpretation of Title IX and their “weaponization” of school lunch programs as a cudgel, though his effort failed 47–50 in the Democratically controlled Senate.

“Don’t be fooled here, the Biden Administration is the only player in this policy fight that is taking away lunches from children,” the Kansas senator said. “The Biden Administration has no authority to force schools to allow biological boys access to girls’ bathrooms and locker rooms or to allow boys to compete in girls’ sports. My [legislation] overturns Joe Biden’s egregious rule and takes politics out of the lunch line.”