Updated Federal Guidance: School Districts Must Include Gender Identity and Sexual Orientation in their Food and Nutrition Anti-Discrimination Policies

On May 5, 2022, the U.S. Department of Agriculture’s Office of Food and Nutrition Services (FNS) announced an update to its complaint processing policy. FNS will now interpret the prohibition on sex discrimination as including discrimination based on gender identity and sexual orientation. FNS cited the U.S. Supreme Court’s decision in Bostock v. Clayton County[1], as well as President Biden’s January 2021 Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. [2]

As a result of this update, all federally-funded food and nutrition service program providers—including school districts participating in the National School Lunch and Breakfast Program—will need to review and/or update their anti-discrimination policies and signage to remain in compliance with these federal guidelines. FNS indicated that while the updated policy is effective immediately, there will be a grace period for school districts to update their documents and materials, and additional guidance will be forthcoming.[3]

In response to this new guidance, school districts should:

First, immediately review their food and nutrition complaint processing procedures to ensure discrimination complaints alleging sexual orientation and gender identity discrimination are processed as complaints of prohibited sex discrimination. (Many school board non-discrimination policies and complaint procedures may already reflect this). 
Second, food nutrition and service coordinators should watch for additional guidance from the Ohio Department of Education and/or FNS regarding the timing for updating documents and materials.  FNS has stated that there will be a grace period for school districts to update the documents and materials, but not for accepting and processing discrimination complaints based on sexual orientation and gender identity in FNS-funded programs.

The updated 2022 Nondiscrimination Statement is currently available online, while the updated And Justice for All posters are in production and will be available in the coming months.

Federal laws and regulations already require school districts to ensure their food and nutrition services treat all families equally.[4]    Areas of compliance include communications, customer service, accessibility, data collection, training, and conflict resolution.[5]  School districts are also required to post a “FNS Nondiscrimination Statement” and the “And Justice For All” poster in offices, schools, and sites that administer FNS programs.  These requirements are subject to civil rights reviews and are part of federally-required administrative reviews by the Ohio Department of Education.[6]

School districts are advised to consult their legal counsel if they have questions concerning the FNS policy update or its application to district policies and procedures. School districts will want to ensure they have the necessary documents regarding procedures, training, signage, and data collection for their next administrative review.

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[1] In Bostock v. Clayton County, 140 S. Ct. 1731, 590 U.S. (2020), the U.S. Supreme Court held that employment discrimination based on an individual’s gender identity or sexual orientation is “inextricably bound” with sex discrimination.

[2] See Executive Order 13988, “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation,” 86 Fed. Reg. 7023 (Jan. 20, 2021). 

[3] Questions and Answers Related to CRD 01-2022 Application of Bostock v. Clayton County to Program Discrimination Complaint Processing – Policy Update.

[4] See, e.g., FNS Instruction 113-1, “Civil Rights Compliance and Enforcement – Nutrition Programs and Activities,” FNS-GD-2005-0051. 

[5] See, e.g., Ohio Department of Education, NSLP Civil Rights Training Presentation (2019). 

[6] See, e.g., Ohio Department of Education, School Nutrition Program Administrative Review Checklist (FY20).