In their lawsuit this week, Tennessee and the other states sought to overturn that interpretation and its application to programs in their states. They claimed the 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, the USDA “did not take into account its effect on addiction and religious interests of regulated parties,” failed to properly weigh the other legal challenges also raised by those states when issuing its guidance, and cut corners by allowing parties to weigh in on the proposed changes.
“The department’s memoranda and final rule concern highly contentious and localized issues of enormous importance to the states, their subdivisions, their affiliates, and their citizens,” the states told the court. “The department has no authority to settle such matters, much less by executive decision without providing any opportunity for public comment.” Regardless of whether the court sided with the states on these administrative law points, it’s also pretty clear from the rest of the trial that the states would have challenged the memo in court anyway.
States have argued, for example, that the USDA’s interpretation of Title IX and the Food and Nutrition Act as a result of Bostock was wrong and that its logic should not go beyond Title VII. They cited wording in the ruling that said it was only about Title VII, implying that the court foreclosed the Bostock reasoning in all other federal statutes when this was not the case. According to the states, interpreting the laws otherwise would also violate the First Amendment by forcing them and their employees to “engage in biologically inaccurate speech and prohibit biologically accurate speech due to the USDA’s essentially moral judgment of meaning of ‘sex'”. .’ Letting people evade anti-discrimination laws because they think the discrimination in question is morally justified would be troubling, to say the least.