Student Non-Discrimination Act of 2013 - Prohibits public school students from being excluded from participating in, or subject to discrimination under, any federally-assisted educational program on the basis of their actual or perceived sexual orientation or gender identity or that of their associates.
Considers harassment to be a form of discrimination.
Prohibits retaliation against anyone for opposing conduct made unlawful under this Act.
Authorizes federal departments and agencies to enforce these prohibitions by cutting off the educational assistance of recipients found to be violating them.
Allows an aggrieved individual to assert a violation of this Act in a judicial proceeding and recover reasonable attorney's fees should they prevail.
Authorizes the Attorney General to institute a civil action in any appropriate U.S. district court for a violation of this Act.
Deems a state's receipt of federal educational assistance for a program to constitute a waiver of sovereign immunity for conduct prohibited under this Act regarding such program.
[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 1088 Introduced in Senate (IS)]
113th CONGRESS
1st Session
S. 1088
To end discrimination based on actual or perceived sexual orientation
or gender identity in public schools, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 4, 2013
Mr. Franken (for himself, Mrs. Murray, Mrs. Gillibrand, Mr. Casey, Mr.
Leahy, Mrs. Boxer, Mr. Begich, Ms. Stabenow, Mr. Udall of New Mexico,
Mr. Blumenthal, Mr. Whitehouse, Mr. Bennet, Mr. Sanders, Mr. Harkin,
Ms. Mikulski, Mr. Brown, Mr. Cowan, Ms. Warren, Mrs. Hagan, Mrs.
Shaheen, Mr. Coons, Mr. Murphy, Ms. Klobuchar, Ms. Cantwell, Mr.
Schatz, Mr. Heinrich, Ms. Baldwin, Mr. Durbin, Mr. Wyden, Mr. Reed, Mr.
Udall of Colorado, Mr. Schumer, Mr. Cardin, and Mr. Merkley) introduced
the following bill; which was read twice and referred to the Committee
on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To end discrimination based on actual or perceived sexual orientation
or gender identity in public schools, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Student Non-Discrimination Act of
2013''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress makes the following findings:
(1) Public school students who are lesbian, gay, bisexual,
or transgender (referred to in this Act as ``LGBT''), or are
perceived to be LGBT, or who associate with LGBT people, have
been and are subjected to pervasive discrimination, including
harassment, bullying, intimidation, and violence, and have been
deprived of equal educational opportunities, in schools in
every part of the Nation.
(2) While discrimination of any kind is harmful to students
and to the education system, actions that target students based
on sexual orientation or gender identity represent a distinct
and severe problem that remains inadequately addressed by
current Federal law.
(3) Numerous social science studies demonstrate that
discrimination at school has contributed to high rates of
absenteeism, academic underachievement, dropping out, and
adverse physical and mental health consequences among LGBT
youth.
(4) When left unchecked, discrimination in schools based on
sexual orientation or gender identity can lead, and has led, to
life-threatening violence and to suicide.
(5) Public school students enjoy a variety of
constitutional rights, including rights to equal protection,
privacy, and free expression, which are infringed when school
officials engage in or fail to take prompt and effective action
to stop discrimination on the basis of sexual orientation or
gender identity.
(6) Provisions of Federal statutory law expressly prohibit
discrimination on the basis of race, color, sex, religion,
disability, and national origin. The Department of Education
and the Department of Justice, as well as numerous courts, have
correctly interpreted the prohibitions on sex discrimination to
include discrimination based on sex stereotypes and gender
identity, even when that sex-based discrimination coincides or
overlaps with discrimination based on sexual orientation.
However, the absence of express Federal law prohibitions on
discrimination on the basis of sexual orientation and gender
identity has created unnecessary uncertainty that risks
limiting access to legal remedies under Federal law for LGBT
students and their parents.
(b) Purposes.--The purposes of this Act are--
(1) to ensure that all students have access to public
education in a safe environment free from discrimination,
including harassment, bullying, intimidation, and violence, on
the basis of sexual orientation or gender identity;
(2) to provide a comprehensive Federal prohibition of
discrimination in public schools based on actual or perceived
sexual orientation or gender identity;
(3) to provide meaningful and effective remedies for
discrimination in public schools based on actual or perceived
sexual orientation or gender identity;
(4) to invoke congressional powers, including the power to
enforce the 14th Amendment to the Constitution and to provide
for the general welfare pursuant to section 8 of article I of
the Constitution and the power to make all laws necessary and
proper for the execution of the foregoing powers pursuant to
section 8 of article I of the Constitution, in order to
prohibit discrimination in public schools on the basis of
sexual orientation or gender identity; and
(5) to allow the Department of Education and the Department
of Justice to effectively combat discrimination based on sexual
orientation and gender identity in public schools, through
regulation and enforcement, as the Departments have issued
regulations under and enforced title IX of the Education
Amendments of 1972 and other nondiscrimination laws in a manner
that effectively addresses discrimination.
SEC. 3. DEFINITIONS AND RULE.
(a) Definitions.--For purposes of this Act:
(1) Educational agency.--The term ``educational agency''
means a local educational agency, an educational service
agency, or a State educational agency, as those terms are
defined in section 9101 of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 7801).
(2) Gender identity.--The term ``gender identity'' means
the gender-related identity, appearance, or mannerisms or other
gender-related characteristics of an individual, with or
without regard to the individual's designated sex at birth.
(3) Harassment.--The term ``harassment'' means conduct that
is sufficiently severe, persistent, or pervasive to limit or
interfere with a student's ability to participate in or benefit
from a program or activity of a public school or educational
agency, including acts of verbal, nonverbal, or physical
aggression, intimidation, or hostility, if such conduct is
based on--
(A) a student's actual or perceived sexual
orientation or gender identity; or
(B) the actual or perceived sexual orientation or
gender identity of a person with whom a student
associates or has associated.
(4) Program or activity.--The terms ``program or activity''
and ``program'' have the same meanings given such terms as
applied under section 606 of the Civil Rights Act of 1964 (42
U.S.C. 2000d-4a) to the operations of public entities under
paragraph (2)(B) of such section.
(5) Public school.--The term ``public school'' means an
elementary school (as the term is defined in section 9101 of
the Elementary and Secondary Education Act of 1965) that is a
public institution, and a secondary school (as so defined) that
is a public institution.
(6) Sexual orientation.--The term ``sexual orientation''
means homosexuality, heterosexuality, or bisexuality.
(7) Student.--The term ``student'' means an individual
within the age limits for which the State provides free public
education who is enrolled in a public school or who, regardless
of official enrollment status, attends classes or participates
in the programs or activities of a public school or local
educational agency.
(b) Rule.--Consistent with Federal law, in this Act the term
``includes'' means ``includes but is not limited to''.
SEC. 4. PROHIBITION AGAINST DISCRIMINATION.
(a) In General.--No student shall, on the basis of actual or
perceived sexual orientation or gender identity of such individual or
of a person with whom the student associates or has associated, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving
Federal financial assistance.
(b) Harassment.--For purposes of this Act, discrimination includes
harassment of a student on the basis of actual or perceived sexual
orientation or gender identity of such student or of a person with whom
the student associates or has associated.
(c) Retaliation Prohibited.--
(1) Prohibition.--No person shall be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination, retaliation, or reprisal under any program or
activity receiving Federal financial assistance based on the
person's opposition to conduct made unlawful by this Act.
(2) Definition.--For purposes of this subsection,
``opposition to conduct made unlawful by this Act'' includes--
(A) opposition to conduct believed to be made
unlawful by this Act or conduct that could be believed
to become unlawful under this Act if allowed to
continue;
(B) any formal or informal report, whether oral or
written, to any governmental entity, including public
schools and educational agencies and employees of the
public schools or educational agencies, regarding
conduct made unlawful by this Act, conduct believed to
be made unlawful by this Act, or conduct that could be
believed to become unlawful under this Act if allowed
to continue;
(C) participation in any investigation, proceeding,
or hearing related to conduct made unlawful by this
Act, conduct believed to be made unlawful by this Act,
or conduct that could be believed to become unlawful
under this Act if allowed to continue; and
(D) assistance or encouragement provided to any
other person in the exercise or enjoyment of any right
granted or protected by this Act,
if in the course of that expression, the person involved does
not purposefully provide information known to be false to any
public school or educational agency or other governmental
entity regarding conduct made unlawful by this Act, or conduct
believed to be made unlawful by this Act, or conduct that could
be believed to become unlawful under this Act if allowed to
continue.
SEC. 5. FEDERAL ADMINISTRATIVE ENFORCEMENT; REPORT TO CONGRESSIONAL
COMMITTEES.
(a) Requirements.--Each Federal department and agency which is
empowered to extend Federal financial assistance to any education
program or activity, by way of grant, loan, or contract other than a
contract of insurance or guaranty, is authorized and directed to
effectuate the provisions of section 4 with respect to such program or
activity by issuing rules, regulations, or orders of general
applicability which shall be consistent with achievement of the
objectives of the statute authorizing the financial assistance in
connection with which the action is taken. No such rule, regulation, or
order shall become effective unless and until approved by the
President.
(b) Enforcement.--Compliance with any requirement adopted pursuant
to this section may be effected--
(1) by the termination of or refusal to grant or to
continue assistance under such program or activity to any
recipient as to whom there has been an express finding on the
record, after opportunity for hearing, of a failure to comply
with such requirement, but such termination or refusal shall be
limited to the particular political entity, or part thereof, or
other recipient as to whom such a finding has been made, and
shall be limited in its effect to the particular program, or
part thereof, in which such noncompliance has been so found; or
(2) by any other means authorized by law,
except that no such action shall be taken until the department or
agency concerned has advised the appropriate person or persons of the
failure to comply with the requirement and has determined that
compliance cannot be secured by voluntary means.
(c) Reports.--In the case of any action terminating, or refusing to
grant or continue, assistance because of failure to comply with a
requirement imposed pursuant to this section, the head of the Federal
department or agency shall file with the committees of the House of
Representatives and Senate having legislative jurisdiction over the
program or activity involved a full written report of the circumstances
and the grounds for such action. No such action shall become effective
until 30 days have elapsed after the filing of such report.
SEC. 6. PRIVATE CAUSE OF ACTION.
(a) Private Cause of Action.--Subject to subsection (c), and
consistent with the cause of action recognized under title VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) and title IX of the
Education Amendments of 1972 (20 U.S.C. 1681 et seq.), an aggrieved
individual may bring an action in a court of competent jurisdiction,
asserting a violation of this Act. Aggrieved individuals may be awarded
all appropriate relief, including equitable relief, compensatory
damages, and costs of the action.
(b) Rule of Construction.--This section shall not be construed to
preclude an aggrieved individual from obtaining remedies under any
other provision of law or to require such individual to exhaust any
administrative complaint process or notice of claim requirement before
seeking redress under this section.
(c) Statute of Limitations.--For actions brought pursuant to this
section, the statute of limitations period shall be determined in
accordance with section 1658(a) of title 28, United States Code. The
tolling of any such limitations period shall be determined in
accordance with the law governing actions under section 1979 of the
Revised Statutes (42 U.S.C. 1983) in the State in which the action is
brought.
SEC. 7. CAUSE OF ACTION BY THE ATTORNEY GENERAL.
The Attorney General is authorized to institute for or in the name
of the United States a civil action for a violation of this Act in any
appropriate district court of the United States against such parties
and for such relief as may be appropriate, including equitable relief
and compensatory damages. Whenever a civil action is instituted for a
violation of this Act, the Attorney General may intervene in such
action upon timely application and shall be entitled to the same relief
as if the Attorney General had instituted the action. Nothing in this
Act shall adversely affect the right of any person to sue or obtain
relief in any court for any activity that violates this Act, including
regulations promulgated pursuant to this Act.
SEC. 8. STATE IMMUNITY.
(a) State Immunity.--A State shall not be immune under the 11th
Amendment to the Constitution from suit in Federal court for a
violation of this Act.
(b) Waiver.--A State's receipt or use of Federal financial
assistance for any program or activity of a State shall constitute a
waiver of sovereign immunity, under the 11th Amendment or otherwise, to
a suit brought by an aggrieved individual for a violation of section 4.
(c) Remedies.--In a suit against a State for a violation of this
Act, remedies (including remedies both at law and in equity) are
available for such a violation to the same extent as such remedies are
available for such a violation in the suit against any public or
private entity other than a State.
SEC. 9. ATTORNEY'S FEES.
Section 722(b) of the Revised Statutes (42 U.S.C. 1988(b)) is
amended by inserting ``the Student Non-Discrimination Act of 2013,''
after ``Religious Land Use and Institutionalized Persons Act of
2000,''.
SEC. 10. EFFECT ON OTHER LAWS.
(a) Federal and State Nondiscrimination Laws.--Nothing in this Act
shall be construed to preempt, invalidate, or limit rights, remedies,
procedures, or legal standards available to victims of discrimination
or retaliation, under any other Federal law or law of a State or
political subdivision of a State, including titles IV and VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000c et seq., 2000d et seq.),
title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.),
section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), the
Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), or
section 1979 of the Revised Statutes (42 U.S.C. 1983). The obligations
imposed by this Act are in addition to those imposed by titles IV and
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000c et seq., 2000d et
seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et
seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794),
the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.),
and section 1979 of the Revised Statutes (42 U.S.C. 1983).
(b) Free Speech and Expression Laws and Religious Student Groups.--
Nothing in this Act shall be construed to alter legal standards
regarding, or affect the rights available to individuals or groups
under, other Federal laws that establish protections for freedom of
speech and expression, such as legal standards and rights available to
religious and other student groups under the First Amendment and the
Equal Access Act (20 U.S.C. 4071 et seq.).
SEC. 11. SEVERABILITY.
If any provision of this Act, or any application of such provision
to any person or circumstance, is held to be unconstitutional, the
remainder of this Act, and the application of the provision to any
other person or circumstance shall not be impacted.
SEC. 12. EFFECTIVE DATE.
This Act shall take effect 60 days after the date of enactment of
this Act and shall not apply to conduct occurring before the effective
date of this Act.
<all>
Introduced in Senate
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
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