In their lawsuit this week, Tennessee and the other states sought to overturn that interpretation and its application towards programs in their states. They claimed that USDA’s policy change violated the Administrative Procedures Act, which governs when and how federal agencies can issue new rules and regulations. In their eyes, USDA “failed to consider its effect on the reliance and religious interests of the regulated parties,” did not properly weigh other legal challenges also brought by these states when issuing its guidance, and took shortcuts when allowing parties to weigh in on the proposed changes.
“The department’s Memoranda and Final Rule concern highly controversial and localized issues of enormous importance to the States, their subdivisions, affiliates, and citizens,” the states told the court. “The department has no power to settle such issues, let alone by executive fiat without providing any opportunity for public comment.” Regardless of whether or not the courts side with the states on these administrative law points, it is also fairly clear from the rest of the lawsuit that the states would have challenged the memo in court either way.
The states argued, for instance, that USDA’s interpretation of Title IX and the Food and Nutrition Act in the wake of Bostock was incorrect and that its logic should not go beyond Title VII. They cited language from the ruling that said it only addressed Title VII, implying that the court had foreclosed the Bostock reasoning in all other federal laws when it did not. To read the laws otherwise would, in the states’ view, also violate the First Amendment by forcing them and their employees “to engage in biologically inaccurate speech and to forbid biologically accurate speech due to the USDA’s essentially moral judgment on the meaning of ‘sex.’” Letting people opt out of anti-discrimination laws because they think the discrimination in question is morally justified would be troubling, to say the least.