We all agree LGBTQ kids deserve school lunch. So why is Utah picking a fight about it, Robert Gehrke asks

Cloaking a lawsuit in ‘states rights’ rhetoric doesn’t change that every kid deserves the same access to school lunch.

(Francisco Kjolseth | The Salt Lake Tribune) Robert Gehrke.

Last month, the four members of Utah’s House delegation surprised a lot of people, including me, by voting for a bill that would recognize same-sex marriages in federal law.

The vote came after Supreme Court Justice Clarence Thomas, in the recent case overturning Roe v. Wade, suggested other rights, including same-sex marriage, might also have been wrongly decided by the court and warrant revisiting.

“I do not believe the federal government should infringe upon an individual’s decision about who they wish to marry,” Rep. John Curtis said in a statement after the vote.

When even someone as staunchly conservative and politically opportunistic as Burgess Owens has come around, it shows how far the issue has come.

And then we get reminded of how far we have to go.

A few days after the vote, Attorney General Sean Reyes added the State of Utah to a lawsuit brought by Republican attorneys general challenging guidance from the Biden administration that states receiving federal funds for school lunch — all of them — needed to ensure LGBTQ students have the same access to food as their classmates.

First, a little background: In May, the Biden administration issued an advisory to schools saying that, based on a Supreme Court ruling, they needed to ensure that there was a complaint process for students or parents who feel they’d been denied access to school lunch programs on the basis of sexual orientation or gender identity.

The guidance was rooted in a Supreme Court ruling, Bostock v. Clayton County, that held that provisions of the Civil Rights Act of 1964 prohibiting employment discrimination because of sex protects LGBTQ workers. The administration interpreted that the same logic applies to similar language barring discrimination based on sex in Title IX of the Education Amendments of 1972.

So basically, schools were advised that they need to add six words to their policies that already prohibited discrimination based on race, religion, sex and a host of other factors, simply to clarify that LGBTQ students aren’t discriminated against and, if they feel they are, their parents have a way to lodge complaints.

It’s not explicitly stated, but widely presumed, that a failure to comply could jeopardize some of Utah’s millions of dollars in school lunch funding.

Monday evening, Utah Gov. Spencer Cox — who has more than once put LGBTQ kids ahead of politics — released a letter he sent to the Biden Administration asking them to back down from the new guidance. “Deeply sensitive and contentious areas of policy are best left to the states,” the governor wrote, “where different populations will come to different conclusions and solutions.”

Except this isn’t a “deeply sensitive and contentious” area of public policy and there really shouldn’t be “different conclusions and solutions.”

In Utah schools, Madisyn and Mykenscie should get the same lunch as Jaxzin and Gobert (it seemed like a good name at the time). We’re not going to take food away from any of them, whether they like boys or girls. It doesn’t matter.

Except it does to Reyes. Because Reyes and his Republican counterparts — like Cox — believe the states should be the ones deciding if they can deny a lunch to kids because they’re gay or lesbian or transgender. And they’re willing to go to court to fight for that right.

“The Biden administration is unlawfully expanding Title IX to include discrimination based on sexual orientation or sexual identity in an effort to force policy in Utah schools,” Reyes’ office said in a statement they sent to me. “The federal government should not hold food for school children hostage to force policy change.”

That, however, is the way this has always worked. When young Sean was in school, districts couldn’t deny lunch to a kid whose parents are from the Philippines and Hawaii without jeopardizing their federal funds.

And I get that “race” is in the statute. So is “sex” and the court has ruled that includes sexual and gender identity in a similar context. It’s not unreasonable to interpret it similarly here. If your state policy is to insist there is a right to deprive children of a school lunch for any reason, don’t count on federal taxpayer dollars to support your bigotry and discrimination.

Sure, you can fight about it, and Reyes has chosen to do that. Or Utah can do the simple thing — the right thing — and exercise its “state’s rights” and adopt a policy that covers LGBTQ kids. Cox, if he chose, could likely do so through an executive order or, if that is too much leadership, at the very least ask the State Board of Education to adopt a statewide policy related to lunches. It shouldn’t take the federal government telling us we have to do it.

Naturally, there is a subtext to this. The states’ lawsuit has a lot of the dog whistles you would expect — references to the potential expansion of the law to deal with gender-neutral bathrooms or school sports. In that sense, it gives ambitious Republican politicians like Reyes a chance to grandstand by yet again bashing vulnerable kids.

Even if you have strong feelings about the bathroom debate, though, or the sports debate, that shouldn’t matter, either. Fight those issues separately. This is about whether schools should have the right to deprive kids of lunch because they are gay or transgender.

“It’s so disturbing when we know kids rely on [school lunches],” said Marina Lowe, policy director for Equality Utah. “At the end of the day, I think we can all agree we want kids to be safe in school and have a safe learning environment … regardless of these questions of whether kids should play on teams. Kids have to be in school. It’s required by law.”

This is not a fight worth having — certainly not one that warrants the backing of the State — and is the latest example of Reyes’ willingness to harm the state’s image for his own political gain.

If Utah schools don’t ensure gay or transgender students are treated exactly the same as their classmates, the solution isn’t for ambitious politicians to exploit the issue to score points.

The solution is to fix the policy because giving all children an opportunity to thrive is the right thing to do.

Addition • This column has been updated to include Gov. Spencer Cox’s letter to the White House.