Do you remember the old cartoon about how a bill becomes a law? Well, today we do things a bit differently.
K-12 schools must allow boys into girls’ private areas to obtain federal funds for lunches, breakfasts, and snacks, the Biden administration announced this month. A U.S. Department of Education spokesman told The Federalist the Biden administration’s press releases from several agencies announcing this policy will be followed by formal rulemaking in June.
“It seems to be playing politics with feeding poor kids, which is really unfortunate,” John Elcesser, executive director of the Indiana Non-Public Education Association, said via phone amid weeks of attempting to sort out these new demands with government officials on behalf of private schools in his state. “Because if a school feels like they cannot participate because it’s in conflict with their mission or values, if a religious exemption is not granted, you’re taking away a program that’s feeding low-income kids.”
Before many schools shut down in response to Covid-19, the National School Lunch Program fed nearly 30 million kids every school day, in approximately 100,000 public and private schools and residential care facilities.
Under this new demand, establishments that accept any federal food funding, including food stamps, must also allow males who claim to be female to access female private spaces, such as showers, bathrooms, and sleeping areas. Such organizations must also follow protocols such as requiring staff to use inaccurate pronouns to describe transgender people and allowing male staff to dress as women while on the job.
Religious institutions, however, qualify for a waiver exempting them from these requirements, said Alliance Defending Freedom Senior Counsel Greg Baylor in an interview Monday. According to the 1972 Title IX law, he said, religious institutions don’t have to file any paperwork to be exempt, although they can if they wish.
Baylor noted, however, that publicly affirming a commitment to sexual reality by seeking an exemption acknowledgment from federal agencies may assist extremist pressure campaigns. The activist group Human Rights Campaign’s blueprint for the Biden administration pushed for narrowing religious exemptions for multiple federal regulations and for the administration to “out” individuals and institutions who request such exemptions.
The Biden administration appears to be following that blueprint closely. According to Elcesser, USDA officials are telling schools to file paperwork to be exempt, although the Title IX law says that’s an option but not required. The USDA confirmed that to The Federalist Tuesday with this emailed statement: “Organizations may request a religious exemption by submitting a written declaration to the Secretary of Agriculture identifying the provisions that conflict with a specific tenet of the religious organization.”
Government schools can receive no exemption. At best, parents and taxpayers can urge school districts to not comply while inevitable lawsuits over the Biden administration’s interpretation work through courts for years.
“The Biden administration is grossly extending the Bostock holding where it does not belong. Like many of the Biden administration’s power grabs, this imposition transgresses areas of proper state and local authority. As the principal guardians of federalism, state attorneys general have the ability to combat such overreach where it injures state functions,” Indiana Attorney General Todd Rokita, a Republican, told The Federalist in a statement.
Even if this regulation is ultimately overturned by one means or another, millions of American children will be forced to eat their school lunches with a side of sexual politics.
“There is a lot of harm that comes from inflicting this interpretation of Title IX on public schools and private schools that are not eligible for the exemption,” Baylor said. In Loudoun County, Virginia, in 2021, a young woman was sexually assaulted in a school bathroom by a young man granted access by the district’s transgender policies.
Parents have told The Federalist that their daughters no longer use the bathrooms or locker rooms at their public schools because they don’t feel safe there. Many parents are finding after the fact that school districts are helping their children live as the opposite sex and hide that from their families.
“Some percentage of school districts want to be told by the federal government that they have to implement gender ideology,” Baylor observed. “If anyone complains, they can say, ‘We’re just doing what they told us. Go blame Joe Biden, not me.’”
As Biden promised to do while campaigning, his administration is pushing sexual confusion on as many institutions as it can. This aim has gotten a huge boost from the 2020 Supreme Court decision Bostock v. Clayton County, an unconstitutional ruling that gives this extremist sexual agenda a legal fig leaf. That 5-4 decision clinched by President Donald Trump-appointed Justice Neil Gorsuch, however, concerned sex differences not in education but employment.
While the majority opinion said Bostock only applied to Title VII, or employment law, it provided the rationale and excuse to extend this reasoning elsewhere. And the Biden administration’s press releases are ignoring the ruling’s claimed limits to apply it to other areas of federal code, particularly education’s Title IX, as many predicted.
Not only is the Biden administration’s use of federal food subsidies to impose sexual politics legally suspect in substance, it’s also legally suspect procedurally, Baylor said. That’s because press releases are not legally enforceable. Only federal regulations that have followed proper legal procedures are.
That hasn’t happened yet with this Biden administration demand, although the USED spokesman said the proposed regulation will be issued in June. Yet even after the regulation is issued, federal agencies are required to accept public comments for several months, then they must spend several more months reviewing all comments and responding, then writing and issuing a final regulation, which then can — and will be, Baylor said — challenged in court.
“When they do things some other way, just by some regulatory guidance or a press release or a memo, that in itself can be a violation of the Administrative Procedure Act and that’s precisely what we’ve argued in some of the cases we’ve filed on this issue,” Baylor said. “…We think they’re making shortcuts and we’ve challenged that in court.”
So it appears with this demand, just like with the Biden administration’s so-called vaccine mandate, the administration is slow-walking the legal procedures required. That delays inevitable lawsuits, which themselves take years to work out. This process effectively imposes unpopular, extremist gender policies extra-legally, through fiat and intimidation. Meanwhile, many elected officials can and do sit on their hands and claim it’s the courts’ job to solve what they can end immediately through legislative action.
Given that Biden holds the presidency for more than two more years, all this means that American children who don’t attend Christian schools will be subject to social chaos at school for a long time, atop lockdowns that have already deeply damaged their learning trajectories. Remedies include withdrawing children from public schools, school boards refusing to follow regulations that are not legally binding until all court challenges are resolved, schools refusing to accept federal funding that comes at such a high cost, and state legislatures and Congress passing new laws to limit and undo the disastrous Bostock decision.
“The uncertainty is really unfortunate, and what we need are courageous parents who share their views with school administrators and school boards. We need courageous school administrators and school boards to do the right thing and push back on this interpretation of Title IX, because there are real harms to kids as a consequence,” Baylor said.