II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Student Non-Discrimi5 nation Act of 2013’’. 


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1 SEC. 2. FINDINGS AND PURPOSES. 

2 (a) FINDINGS.—Congress makes the following find3 ings: 

4 (1) Public school students who are lesbian, gay, 

5 bisexual, or transgender (referred to in this Act as 

6 ‘‘LGBT’’), or are perceived to be LGBT, or who as7 sociate with LGBT people, have been and are sub8 jected to pervasive discrimination, including harass9 ment, bullying, intimidation, and violence, and have 

10 been deprived of equal educational opportunities, in 

11 schools in every part of the Nation. 

12 (2) While discrimination of any kind is harmful 

13 to students and to the education system, actions 

14 that target students based on sexual orientation or 

15 gender identity represent a distinct and severe prob16 lem that remains inadequately addressed by current 

17 Federal law. 

18 (3) Numerous social science studies dem19 onstrate that discrimination at school has contrib20 uted to high rates of absenteeism, academic under21 achievement, dropping out, and adverse physical and 

22 mental health consequences among LGBT youth. 

23 (4) When left unchecked, discrimination in 

24 schools based on sexual orientation or gender iden25 tity can lead, and has led, to life-threatening violence 

26 and to suicide. 


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1 (5) Public school students enjoy a variety of 

2 constitutional rights, including rights to equal pro3 tection, privacy, and free expression, which are in4 fringed when school officials engage in or fail to take 

5 prompt and effective action to stop discrimination on 

6 the basis of sexual orientation or gender identity. 

7 (6) Provisions of Federal statutory law ex8 pressly prohibit discrimination on the basis of race, 

9 color, sex, religion, disability, and national origin. 

10 The Department of Education and the Department 

11 of Justice, as well as numerous courts, have cor12 rectly interpreted the prohibitions on sex discrimina13 tion to include discrimination based on sex stereo14 types and gender identity, even when that sex-based 

15 discrimination coincides or overlaps with discrimina16 tion based on sexual orientation. However, the ab17 sence of express Federal law prohibitions on dis18 crimination on the basis of sexual orientation and 

19 gender identity has created unnecessary uncertainty 

20 that risks limiting access to legal remedies under 

21 Federal law for LGBT students and their parents. 

22 (b) PURPOSES.—The purposes of this Act are— 

23 (1) to ensure that all students have access to 

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1 dation, and violence, on the basis of sexual orienta2 tion or gender identity; 

3 (2) to provide a comprehensive Federal prohibi4 tion of discrimination in public schools based on ac5 tual or perceived sexual orientation or gender iden6 tity; 

7 (3) to provide meaningful and effective rem8 edies for discrimination in public schools based on 

9 actual or perceived sexual orientation or gender 

10 identity; 

11 (4) to invoke congressional powers, including 

12 the power to enforce the 14th Amendment to the 

13 Constitution and to provide for the general welfare 

14 pursuant to section 8 of article I of the Constitution 

15 and the power to make all laws necessary and proper 

16 for the execution of the foregoing powers pursuant 

17 to section 8 of article I of the Constitution, in order 

18 to prohibit discrimination in public schools on the 

19 basis of sexual orientation or gender identity; and 

20 (5) to allow the Department of Education and 

21 the Department of Justice to effectively combat dis22 crimination based on sexual orientation and gender 

23 identity in public schools, through regulation and en24 forcement, as the Departments have issued regula25 tions under and enforced title IX of the Education 


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1 Amendments of 1972 and other nondiscrimination 

2 laws in a manner that effectively addresses discrimi3 nation. 

4 SEC. 3. DEFINITIONS AND RULE. 

5 (a) DEFINITIONS.—For purposes of this Act: 

6 (1) EDUCATIONAL AGENCY.—The term ‘‘edu7 cational agency’’ means a local educational agency, 

8 an educational service agency, or a State educational 

9 agency, as those terms are defined in section 9101 

10 of the Elementary and Secondary Education Act of 

11 1965 (20 U.S.C. 7801). 

12 (2) GENDER IDENTITY.—The term ‘‘gender 

13 identity’’ means the gender-related identity, appear14 ance, or mannerisms or other gender-related charac15 teristics of an individual, with or without regard to 

16 the individual’s designated sex at birth. 

17 (3) HARASSMENT.—The term ‘‘harassment’’ 

18 means conduct that is sufficiently severe, persistent, 

19 or pervasive to limit or interfere with a student’s 

20 ability to participate in or benefit from a program 

21 or activity of a public school or educational agency, 

22 including acts of verbal, nonverbal, or physical ag23 gression, intimidation, or hostility, if such conduct is 

24 based on— 


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1 (A) a student’s actual or perceived sexual 

2 orientation or gender identity; or 

3 (B) the actual or perceived sexual orienta4 tion or gender identity of a person with whom 

5 a student associates or has associated. 

6 (4) PROGRAM OR ACTIVITY.—The terms ‘‘pro7 gram or activity’’ and ‘‘program’’ have the same 

8 meanings given such terms as applied under section 

9 606 of the Civil Rights Act of 1964 (42 U.S.C. 

10 2000d–4a) to the operations of public entities under 

11 paragraph (2)(B) of such section. 

12 (5) PUBLIC SCHOOL.—The term ‘‘public 

13 school’’ means an elementary school (as the term is 

14 defined in section 9101 of the Elementary and Sec15 ondary Education Act of 1965) that is a public insti16 tution, and a secondary school (as so defined) that 

17 is a public institution. 

18 (6) SEXUAL ORIENTATION.—The term ‘‘sexual 

19 orientation’’ means homosexuality, heterosexuality, 

20 or bisexuality. 

21 (7) STUDENT.—The term ‘‘student’’ means an 

22 individual within the age limits for which the State 

23 provides free public education who is enrolled in a 

24 public school or who, regardless of official enroll25 ment status, attends classes or participates in the 


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1 programs or activities of a public school or local edu2 cational agency. 

3 (b) RULE.—Consistent with Federal law, in this Act 

4 the term ‘‘includes’’ means ‘‘includes but is not limited 

5 to’’. 

6 SEC. 4. PROHIBITION AGAINST DISCRIMINATION. 

7 (a) IN GENERAL.—No student shall, on the basis of 

8 actual or perceived sexual orientation or gender identity 

9 of such individual or of a person with whom the student 

10 associates or has associated, be excluded from participa11 tion in, be denied the benefits of, or be subjected to dis12 crimination under any program or activity receiving Fed13 eral financial assistance. 

14 (b) HARASSMENT.—For purposes of this Act, dis15 crimination includes harassment of a student on the basis 

16 of actual or perceived sexual orientation or gender identity 

17 of such student or of a person with whom the student as18 sociates or has associated. 

19 (c) RETALIATION PROHIBITED.— 

20 (1) PROHIBITION.—No person shall be excluded 

21 from participation in, be denied the benefits of, or 

22 be subjected to discrimination, retaliation, or re23 prisal under any program or activity receiving Fed24 eral financial assistance based on the person’s oppo25 sition to conduct made unlawful by this Act. 


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1 (2) DEFINITION.—For purposes of this sub2 section, ‘‘opposition to conduct made unlawful by 

3 this Act’’ includes— 

4 (A) opposition to conduct believed to be 

5 made unlawful by this Act or conduct that 

6 could be believed to become unlawful under this 

7 Act if allowed to continue; 

8 (B) any formal or informal report, whether 

9 oral or written, to any governmental entity, in10 cluding public schools and educational agencies 

11 and employees of the public schools or edu12 cational agencies, regarding conduct made un13 lawful by this Act, conduct believed to be made 

14 unlawful by this Act, or conduct that could be 

15 believed to become unlawful under this Act if 

16 allowed to continue; 

17 (C) participation in any investigation, pro18 ceeding, or hearing related to conduct made un19 lawful by this Act, conduct believed to be made 

20 unlawful by this Act, or conduct that could be 

21 believed to become unlawful under this Act if 

22 allowed to continue; and 

23 (D) assistance or encouragement provided 

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1 ment of any right granted or protected by this 

2 Act, 

3 if in the course of that expression, the person in4 volved does not purposefully provide information 

5 known to be false to any public school or educational 

6 agency or other governmental entity regarding con7 duct made unlawful by this Act, or conduct believed 

8 to be made unlawful by this Act, or conduct that 

9 could be believed to become unlawful under this Act 

10 if allowed to continue. 

11 SEC. 5. FEDERAL ADMINISTRATIVE ENFORCEMENT; RE12 PORT TO CONGRESSIONAL COMMITTEES. 

13 (a) REQUIREMENTS.—Each Federal department and 

14 agency which is empowered to extend Federal financial as15 sistance to any education program or activity, by way of 

16 grant, loan, or contract other than a contract of insurance 

17 or guaranty, is authorized and directed to effectuate the 

18 provisions of section 4 with respect to such program or 

19 activity by issuing rules, regulations, or orders of general 

20 applicability which shall be consistent with achievement of 

21 the objectives of the statute authorizing the financial as22 sistance in connection with which the action is taken. No 

23 such rule, regulation, or order shall become effective un24 less and until approved by the President. 


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1 (b) ENFORCEMENT.—Compliance with any require2 ment adopted pursuant to this section may be effected— 

3 (1) by the termination of or refusal to grant or 

4 to continue assistance under such program or activ5 ity to any recipient as to whom there has been an 

6 express finding on the record, after opportunity for 

7 hearing, of a failure to comply with such require8 ment, but such termination or refusal shall be lim9 ited to the particular political entity, or part thereof, 

10 or other recipient as to whom such a finding has 

11 been made, and shall be limited in its effect to the 

12 particular program, or part thereof, in which such 

13 noncompliance has been so found; or 

14 (2) by any other means authorized by law, 

15 except that no such action shall be taken until the depart16 ment or agency concerned has advised the appropriate per17 son or persons of the failure to comply with the require18 ment and has determined that compliance cannot be se19 cured by voluntary means. 

20 (c) REPORTS.—In the case of any action terminating, 

21 or refusing to grant or continue, assistance because of fail22 ure to comply with a requirement imposed pursuant to this 

23 section, the head of the Federal department or agency 

24 shall file with the committees of the House of Representa25 tives and Senate having legislative jurisdiction over the 


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1 program or activity involved a full written report of the 

2 circumstances and the grounds for such action. No such 

3 action shall become effective until 30 days have elapsed 

4 after the filing of such report. 

5 SEC. 6. PRIVATE CAUSE OF ACTION. 

6 (a) PRIVATE CAUSE OF ACTION.—Subject to sub7 section (c), and consistent with the cause of action recog8 nized under title VI of the Civil Rights Act of 1964 (42 

9 U.S.C. 2000d et seq.) and title IX of the Education 

10 Amendments of 1972 (20 U.S.C. 1681 et seq.), an ag11 grieved individual may bring an action in a court of com12 petent jurisdiction, asserting a violation of this Act. Ag13 grieved individuals may be awarded all appropriate relief, 

14 including equitable relief, compensatory damages, and 

15 costs of the action. 

16 (b) RULE OF CONSTRUCTION.—This section shall not 

17 be construed to preclude an aggrieved individual from ob18 taining remedies under any other provision of law or to 

19 require such individual to exhaust any administrative com20 plaint process or notice of claim requirement before seek21 ing redress under this section. 

22 (c) STATUTE OF LIMITATIONS.—For actions brought 

23 pursuant to this section, the statute of limitations period 

24 shall be determined in accordance with section 1658(a) of 

25 title 28, United States Code. The tolling of any such limiVerDate Mar 15 2010 01:00 Jun 06, 2013 Jkt 029200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1088.IS S1088

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1 tations period shall be determined in accordance with the 

2 law governing actions under section 1979 of the Revised 

3 Statutes (42 U.S.C. 1983) in the State in which the action 

4 is brought. 

5 SEC. 7. CAUSE OF ACTION BY THE ATTORNEY GENERAL. 

6 The Attorney General is authorized to institute for 

7 or in the name of the United States a civil action for a 

8 violation of this Act in any appropriate district court of 

9 the United States against such parties and for such relief 

10 as may be appropriate, including equitable relief and com11 pensatory damages. Whenever a civil action is instituted 

12 for a violation of this Act, the Attorney General may inter13 vene in such action upon timely application and shall be 

14 entitled to the same relief as if the Attorney General had 

15 instituted the action. Nothing in this Act shall adversely 

16 affect the right of any person to sue or obtain relief in 

17 any court for any activity that violates this Act, including 

18 regulations promulgated pursuant to this Act. 

19 SEC. 8. STATE IMMUNITY. 

20 (a) STATE IMMUNITY.—A State shall not be immune 

21 under the 11th Amendment to the Constitution from suit 

22 in Federal court for a violation of this Act. 

23 (b) WAIVER.—A State’s receipt or use of Federal fi24 nancial assistance for any program or activity of a State 

25 shall constitute a waiver of sovereign immunity, under the 


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1 11th Amendment or otherwise, to a suit brought by an 

2 aggrieved individual for a violation of section 4. 

3 (c) REMEDIES.—In a suit against a State for a viola4 tion of this Act, remedies (including remedies both at law 

5 and in equity) are available for such a violation to the 

6 same extent as such remedies are available for such a vio7 lation in the suit against any public or private entity other 

8 than a State. 

9 SEC. 9. ATTORNEY’S FEES. 

10 Section 722(b) of the Revised Statutes (42 U.S.C. 

11 1988(b)) is amended by inserting ‘‘the Student Non-Dis12 crimination Act of 2013,’’ after ‘‘Religious Land Use and 

13 Institutionalized Persons Act of 2000,’’. 

14 SEC. 10. EFFECT ON OTHER LAWS. 

15 (a) FEDERAL AND STATE NONDISCRIMINATION

16 LAWS.—Nothing in this Act shall be construed to pre17 empt, invalidate, or limit rights, remedies, procedures, or 

18 legal standards available to victims of discrimination or 

19 retaliation, under any other Federal law or law of a State 

20 or political subdivision of a State, including titles IV and 

21 VI of the Civil Rights Act of 1964 (42 U.S.C. 2000c et 

22 seq., 2000d et seq.), title IX of the Education Amend23 ments of 1972 (20 U.S.C. 1681 et seq.), section 504 of 

24 the Rehabilitation Act of 1973 (29 U.S.C. 794), the Amer25 icans with Disabilities Act of 1990 (42 U.S.C. 12101 et 


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1 seq.), or section 1979 of the Revised Statutes (42 U.S.C. 

2 1983). The obligations imposed by this Act are in addition 

3 to those imposed by titles IV and VI of the Civil Rights 

4 Act of 1964 (42 U.S.C. 2000c et seq., 2000d et seq.), title 

5 IX of the Education Amendments of 1972 (20 U.S.C. 

6 1681 et seq.), section 504 of the Rehabilitation Act of 

7 1973 (29 U.S.C. 794), the Americans with Disabilities Act 

8 of 1990 (42 U.S.C. 12101 et seq.), and section 1979 of 

9 the Revised Statutes (42 U.S.C. 1983). 

10 (b) FREE SPEECH AND EXPRESSION LAWS AND RE11 LIGIOUS STUDENT GROUPS.—Nothing in this Act shall be 

12 construed to alter legal standards regarding, or affect the 

13 rights available to individuals or groups under, other Fed14 eral laws that establish protections for freedom of speech 

15 and expression, such as legal standards and rights avail16 able to religious and other student groups under the First 

17 Amendment and the Equal Access Act (20 U.S.C. 4071 

18 et seq.). 

19 SEC. 11. SEVERABILITY. 

20 If any provision of this Act, or any application of such 

21 provision to any person or circumstance, is held to be un22 constitutional, the remainder of this Act, and the applica23 tion of the provision to any other person or circumstance 

24 shall not be impacted. 


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1 SEC. 12. EFFECTIVE DATE. 

2 This Act shall take effect 60 days after the date of 

3 enactment of this Act and shall not apply to conduct oc4 curring before the effective date of this Act. 

Æ 


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