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[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>
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