Montana’s Superintendent of Public Instruction and Attorney General have sent a joint letter to the United States Department of Agriculture for what they see as new unlawful guidance that will tie Title IX and school nutrition programs to a new definition of ‘sex.’

KGVO News reached out to OPI’s Elsie Arntzen for an explanation of the proposed new policy.

Attorney General Austin Knudsen's letter states in part:

‘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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“Anytime the federal government makes a move the states listen,” said Superintendent Arntzen. “Most recently, the President came out with a discussion that said they want to expand the definition of sex, which means then that back in 1972, the law was expanded then, and it even came into our educational institutions that said that you can't have sex-based discrimination in schools.”

Arntzen said the federal government is using bullying tactics to impose this new policy on Montana schools.

“What they have done is rather than going through rulemaking, which means that there's public comment, and there's a time period to expand the definition, they're just finding it,” she said. “They're not even allowing any of the states to have any discussion at this point, or allow any hearings or anything.”

Arntzen said she was gratified that Montana’s Attorney General Austin Knudsen is also involved in this request.

“I’m really proud of our attorney general who has joined 25 other states that originated out of a discussion in Tennessee, most recently, to say to the federal government, slow down,” she said. “Let's take a look at this. This seems very, very political, rather than doing what's the right thing, and not just the right thing, but we're talking school nutrition here.”

Arntzen said she resists the ‘alphabet’ labels that the U.S. government is placing on different people groups, but especially on Montana’s school children.

“To have them (the federal government) bring in gender and sexual orientation and all of these alphabets that make our state and our school lunch programs look like we're at risk and that we are discriminating,” she said. “It has really put some cold water on everything that we are doing to support all our students in Montana. I believe these actions are segregating and implying discriminating against our young Montanans and the families across our state.”

Click here to see the Title IX policy.

Asked specifically about the USDA's definition of 'sex', Arntzen's office sent the following statement:

The definition of “sex” in Title IX has not changed since 1972. This change has not gone through the rulemaking process and therefore lacks transparency. It is a top-down federal mandate that may hold $40 million of Montana school nutrition programs hostage. The federal government is legislating action to the states through executive action with no public comment. Federal mandates that may put our students at risk are not acceptable to the Superintendent.

In January 2021 President Biden signed an executive order stating that the definition of sex in Title IX would extend to gender and gender identity and all agencies must review their guidance documents.

As a result of the executive order, on May 5, 2022, the USDA sent out a press release stating that “state and local agencies, program operators and sponsors that receive funds from FNS must investigate allegations of discrimination based on gender identity or sexual orientation. Those organizations must also update their non-discrimination policies and signage to include prohibitions against discrimination based on gender identity and sexual orientation.”

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