On May 5, the Food and Nutrition Service (FNS) of the U.S. Department of Agriculture (USDA) announced that, in line with the U.S. Supreme Court’s decision in Bostock v. Clayton County (2020), it now interprets the prohibition of sex discrimination in programs it funds as also prohibiting discrimination on the bases of sexual orientation and gender identity (SOGI). The school lunch and breakfast programs, and the summer meals program, are subject to the federal Title IX civil rights law, which bans sex discrimination, and thus now also SOGI discrimination—but Title IX has a strong exemption for religious organizations. (The FNS programs that subsidize meals in child and adult care, residential drug treatment, emergency shelters, and the like, are subject to the Food and Nutrition Act of 2008, which does not have a religious exemption.)

However, the state agencies that administer the FNS meal programs may not be fully familiar with the Title XI exemption, and the USDA regulations misinterpret it. Moreover, faith-based schools, houses of worship, and other faith-based organizations, such as religious camps, that participate in these meal programs on behalf of children and students must be sure that they have adopted policies, statements, and practices that will support their recourse to the exemption.

The Bostock case concerned employment discrimination under Title VII of the 1964 Civil Rights Act and not Title IX, which applies to federally assisted educational activities. In many ways, however, the Biden administration has demonstrated its deep commitment to LGBTQ rights with little regard for religious exercise and religious organizations, including a day-one Executive Order and another one issued in June. It insists that the Court’s interpretation of sex discrimination in Title VII equally applies to the prohibition of sex discrimination in Title IX. The administration’s interpretation that SOGI nondiscrimination is required whenever Title IX federal funding is involved has been an important issue for religious colleges and universities that maintain a commitment to historic religious teachings about human sexuality. For the many faith-based organizations with a traditional view on human sexuality that desire to participate in the federal school and summer meals programs, that interpretation has become an important issue as well. It is not that they desire to exclude LGBTQ children from meals but rather that they are committed to their religion-based standards for their own spaces and operations.

In addition to a robust religious exemption, Title IX also protects single-sex organizations such as Scouts, fraternities, and sororities, as well as single-sex private spaces, such as bathrooms and locker rooms. The religious exemption specifies that Title IX’s nondiscrimination requirements do not apply to a religious organization to the extent that the application of those requirements would conflict with the religious tenets of the organization. This is a clear and strong exemption, but the FNS, while acknowledging the exemption, notes that its regulations require a religious organization to apply in writing to the USDA in order to be covered by it. The letter must “identify[] the provisions . . . that conflict with a specific tenet of the religious organization.”

This is incorrect. The Department of Education, which formerly also claimed that educational institutions must apply in writing to activate the exemption, has acknowledged that Title IX itself simply provides the exemption, with no statement to the government required. A recent federal appeals court decision involving Fuller Theological Seminary and Title IX also stressed that the exemption is valid without any requirement of applying to the government.

It is important that every religious organization carefully considers what it should do now if it needs the protection of the Title IX exemption to participate in FNS meals programs. It must make sure that its documents, policies, and practices show it to be an organization shaped and guided by religion. And it should adopt policies and statements that will document, in case it is challenged, how practices that could be held to be discriminatory are necessitated by the organization’s religious convictions and thus protected by the exemption.

In other words, to be sure that government officials will acknowledge that it is a duck, a religious organization ought to quack like a duck—its foundational documents should clearly state its religious beliefs, connecting those beliefs to sacred writings. Its policies and operational documents, such as its employee handbook, should clearly connect requirements and prohibitions with the organization’s fundamental religious convictions; and its practices should consistently follow its religion-rooted policies. Excellent resources showing how to adopt best practices are available from the Christian Legal Society, among others. These resources also explain how to show that an organization’s standards and practices are rooted in its religion-based convictions about human sexuality. Religious school associations and denominations may also offer guidance on policies, practices, and documentation.

FNS requires every organization participating in its subsidized meals programs to post a revised nondiscrimination statement that states that the organization will not discriminate on various grounds, including “sex (including gender identity and sexual orientation).” The required statement does not mention the religious exemption which may protect practices that otherwise would constitute illegal discrimination. Faith-based schools and other organizations should consult with an attorney about what wording they should place next to the required notice to stress that their operations are covered by the religious exemption.

The FNS meals programs are administered through state agencies, which are the government bodies with which schools and other organizations interact if they participate in the programs or apply to participate. As of now, while some states, such as New York, have publicized the expanded nondiscrimination requirement, and others, such as Florida and South Dakota, reportedly will challenge the requirement, many faith-based schools and organizations may discover that the responsible authorities in their respective states are silent about the FNS changes. But whether a state agency says so or not, the expanded nondiscrimination requirement is now in effect, as is the Title IX exemption.