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Lawsuit against LGBTQ protection in federal school lunch program filed by Miyares, over 20 other Republican attorneys general

The U.S. Department of Agriculture school meal program prohibits discrimination based on sexual orientation and gender identity.
Credit: AP
Virginia Republican Lt. Governor candidate Jason Miyares addresses the Virginia FREE Leadership Luncheon in McLean, Va., Wednesday, Sept. 1, 2021. (AP Photo/Cliff Owen)

NORFOLK, Va. — Virginia Attorney General Jason Miyares joined more than 20 other Republican attorneys general in filing a lawsuit Tuesday against President Joe Biden's administration over a USDA school meal program that prohibits discrimination based on sexual orientation and gender identity.

"The Biden Administration is attempting to use the power of the federal government to force Virginia to choose between nutrition assistance for vulnerable children or advancing an extremist agenda," Miyares Spokesperson Victoria LaCivita said.

"Attorney General Miyares is despicable," Democratic Party of Virginia Spokesperson Gianni Snidle said. "This guidance simply ensures that students who receive a meal won't be discriminated against for who they are or who they love. He is attacking some of the most vulnerable and young members of the LGBTQ community."

Tennessee Attorney General Herbert Slatery is leading the challenge that claims that the federal government is attempting to force states and schools to follow antidiscrimination requirements that “misconstrue the law.” 

The group of attorneys general filed in hopes of a similar result to a separate challenge from earlier this month when a Tennessee judge temporarily barred two federal agencies from enforcing directives issued by Biden's administration that extended protections for LGBTQ people in schools and workplaces.

RELATED: Federal judge temporarily barred US agencies from enforcing LBGTQ guidance

In that case, the judge ruled that the directives infringed on states’ right to enact laws, such as banning students from participating in sports based on their gender identity or requiring schools and businesses to provide bathrooms and showers to accommodate transgender people.

The National School Lunch Program serves nearly 30 million school children each day, and many of them rely on it for breakfast, lunch or both.

Miyares' office said the attorneys general argue the USDA's guidance is unlawful for three reasons:

1. "It was issued without providing the State and other stakeholders the opportunity for input as required by the Administrative Procedures Act (APA)."

2. "The USDA premised its Guidance on an obvious misreading and misapplication of the Supreme Court’s holding in Bostock v. Clayton County."

Bostock v. Clayton County is the Supreme Court case that held "An employer who fires an individual merely for being gay or transgender violates Title VII."

3. "The Guidance imposes new and unlawful regulatory measures on state agencies and operators receiving federal financial assistance from the USDA. This will inevitably result in regulatory chaos that threatens essential nutritional services to some of the most vulnerable citizens."

RELATED: TSA adds new gender option for PreCheck enrollment

In May, the USDA announced that it would include discrimination based on sexual orientation and gender identity as a violation of Title IX, the sweeping 1972 law that guarantees equity between the sexes in “any education program or activity receiving Federal financial assistance."

The directive requires states to review allegations of discrimination based on gender identity and sexual orientation, as well as update their policies and signage.

The agency warned that states and schools that receive federal funds, which include the national school lunch program overseen by the USDA, have agreed to follow civil rights laws. 

The USDA has said it is hoping for voluntary compliance, but it will also refer violations to the Department of Justice.  

Miyares' office said that by instituting the new guidance, the USDA is "forcing unlawful regulatory measures onto schools and holding hostage funding for school lunches."

13News Now is reaching out to Virginia political groups for their reaction. Check back throughout the day to see updated responses. 

The Associated Press contributed to this story.

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