HERBERT H.

SL ATERY III
ATTORNEY GENERAL AND REPORTER

P.O. BOX 20207, NASHVILLE, TN 37202

TELEPHONE (615)741-3491
FACSIMILE (615)741-2009

June 14, 2022

Joseph R. Biden, Jr.

President of the United States
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500

Re: USDA Administrative Action Applying Bostock v. Clayton County to FNS Program
Discrimination Complaints

Dear Mr. President,

The USDA Food and Nutrition Services Civil Rights Division (“FNS”) enforces Title IX
and the Food and Nutrition Act’s respective prohibitions on sex discrimination. On May 5, 2022,
it issued a memorandum purporting to be a “policy update.” See Application of Bostock v. Clayton
County to Program Discrimination Complaint Processing – Policy Update, CRD 01-2022
(“Guidance”). The Guidance states that it is intended to “provide direction to state agencies and
program operators regarding processing program complaints that allege discrimination on the basis
of gender identity and sexual orientation in programs or activities receiving federal financial
assistance.” Id.

But by vastly expanding the concept of “discrimination on the basis of sex” to include
gender identity and sexual orientation, the Guidance does much more than offer direction. It
imposes new—and unlawful—regulatory measures on state agencies and operators receiving
federal financial assistance from the USDA. And the inevitable result is regulatory chaos that
would threaten the effective provision of essential nutritional services to some of our most
vulnerable citizens.

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 As the chief legal officers of our respective States, the undersigned Attorneys General have
an obligation to uphold the rule of law and to represent the best interests of our citizens and their
institutions. We are, therefore, writing to you to explain why this Guidance is unlawful and to
request that you direct the USDA to withdraw it.

First, the Guidance is unlawful because it was issued without providing the States and other
stakeholders the opportunity for input as required by the Administrative Procedures Act (“APA”).
Second, the Guidance is unlawful because the USDA has premised it on an obvious misreading
and misapplication of the Supreme Court’s holding in Bostock v. Clayton County, 140 S. Ct. 1731
(2020).1

The Guidance must be withdrawn because it should have been—but was not—issued in
compliance with the APA. The APA requires that the public be given notice and afforded the
opportunity to comment when a government agency engages in substantive law- or policymaking.
While bona fide administrative guidance, non-legislative rules, and interpretative rules are
generally exempt from the notice-and-comment requirements of the APA, 5 U.S.C. § 553(b)(A),
an administrative agency may not invoke those exemptions by labeling its lawmaking or
policymaking actions as “clarification” or “guidance.” See Am. Hosp. Ass’n v. Bowen, 834 F.2d
1037, 1045 (D.C. Cir. 1987) (the label an agency attaches to its actions is not dispositive).

But that is how the USDA has tried to circumvent the requirements of the APA here. It
has passed off as a “clarification” what is actually a re-write of the law in Title IX and the Food
and Nutrition Act. Far from providing clarification as to Title IX law, the Guidance substantially
and substantively expands the law. It broadens the basis for challenging a certification of applicant
households and imposes additional burdens on state agencies—including state and local
governments—that facilitate various USDA nutritional programs. See Guidance at 3. It also
creates new legal claims for liability and orders States to take concrete steps towards compliance
by August 3, 2022. And it is clear that USDA intends to issue further “guidance” in the same vein.
See Questions and Answers Related to CRD 01-2022 Application of Bostock v. Clayton County to
Program Discrimination Complaint Processing – Policy Update, CRD 02-2022 (May 5, 2022).

The Guidance must be withdrawn, too, because its purported “clarification” is premised on
a misreading and unwarranted extension of Bostock. The USDA cannot point to Bostock to justify
its interpretation of Title IX because Bostock concerned only Title VII; Bostock expressly
disclaimed application to “other federal or state laws that prohibit sex discrimination”—like Title
IX and the Food and Nutrition Act—and expressly did not “prejudge any such questions.” 140 S.
Ct. at 1753. And since “Title VII differs from Title IX in important respects,” “it does not follow
that principles announced in the Title VII context automatically apply in the Title IX context.”
Meriwether v. Hartop, 992 F.3d 492, 510 n.4 (6th Cir. 2021); see also U.S. Dep’t of Educ.,
Memorandum for Kimberly M. Richey Acting Assistant Secretary of the Office for Civil Rights Re:
Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020), at 1-4 (Jan. 8, 2021) (acknowledging that Bostock

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The Guidance fails to acknowledge that the very same interpretation of Bostock on which it is premised
is the subject of legal challenges currently being litigated by various States in the federal courts. The cases
are Tennessee et al. v. U.S. Dept. of Educ., et al., No. 3:21-cv-00308 (E.D. Tenn.) and Texas v. EEOC, et
al., No. 2:21-CV-194-Z (N.D. Tex.) (federal government’s motion to dismiss was denied on May 26, 2022).

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did not construe Title IX and “does not affect the meaning of ‘sex’ as that term is used in Title
IX”).

We have long had a productive relationship with the federal government, managing various
food and nutrition programs guided by the principles of cooperative federalism. We would like to
continue this cooperative relationship. But the Guidance flouts the rule of law, relies on patently
incorrect legal analysis that is currently under scrutiny in the federal courts, and was issued without
giving the States the requisite opportunity to be heard. While we are always open to working with
your Administration to resolve these matters, under the present circumstances we are constrained
to ask that you direct Secretary Vilsack and the Department of Agriculture to rescind this
Guidance.

We appreciate your attention to the concerns presented here.

Sincerely,

Herbert H. Slatery III

Tennessee Attorney General and Reporter

Steve Marshall Leslie C. Rutledge

Alabama Attorney General Arkansas Attorney General

Treg R. Taylor
Ashley Moody
Alaska Attorney General
Florida Attorney General

Mark Brnovich
Arizona Attorney General Christopher M. Carr
Georgia Attorney General

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Lawrence G. Wasden
Douglas J. Peterson
Idaho Attorney General
Nebraska Attorney General

Todd Rokita Drew H. Wrigley

Indiana Attorney General North Dakota Attorney General

Derek Schmidt
Kansas Attorney General

Dave Yost
Ohio Attorney General

Daniel Cameron
Kentucky Attorney General

John M. O’Connor
Jeff Landry Oklahoma Attorney General
Louisiana Attorney General

Alan Wilson
Lynn Fitch South Carolina Attorney General
Mississippi Attorney General

Jason R. Ravnsborg
Eric Schmitt South Dakota Attorney General
Missouri Attorney General

Ken Paxton
Texas Attorney General
Austin Knudsen
Montana Attorney General

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Sean D. Reyes Bridget Hill
Utah Attorney General Wyoming Attorney General

Patrick Morrisey Jason S. Miyares

West Virginia Attorney General Virginia Attorney General

C.C.

The Honorable Chuck Schumer Secretary Tom Vilsack

Majority Leader U.S. Department of Agriculture
United State Senate 1400 Independence Ave., S.W.
322 Hart Senate Office Building Washington, DC 20250
Washington, D.C. 20510
Administrator Cindy Long
The Honorable Mitch McConnell Food and Nutrition Services
Minority Leader U.S. Department of Agriculture
United State Senate Braddock Metro Center II
317 Russell Senate Office Building 1320 Braddock Place
Washington, D.C. 20510 Alexandria, VA 22314

The Honorable Nancy Pelosi Director Roberto Contreras

Speaker of the House Civil Rights Division, Food and Nutrition Service
United States House of Representatives U.S. Department of Agriculture
1236 Longworth House Office Building Braddock Metro Center II
Washington, D.C. 20515 1320 Braddock Place
Alexandria, VA 22314
The Honorable Kevin McCarthy
Minority Leader
United States House of Representatives
2468 Rayburn House Office Building
Washington, D.C. 20515