II 

112TH CONGRESS 

1ST SESSION S. 555 

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 

MARCH 10, 2011 

Mr. FRANKEN (for himself, Mr. HARKIN, Mr. KERRY, Mrs. MURRAY, Ms. 

KLOBUCHAR, Mr. MERKLEY, Mr. DURBIN, Mr. LAUTENBERG, Mr. BENNET, Mr. BLUMENTHAL, Mr. UDALL of Colorado, Ms. MIKULSKI, Mr. 

LEAHY, Mr. SANDERS, Mr. BINGAMAN, Mr. WHITEHOUSE, Mr. CARDIN, 

Mrs. BOXER, Mrs. GILLIBRAND, Mr. MENENDEZ, Mr. AKAKA, Mr. SCHUMER, Mr. WYDEN, Mr. BEGICH, Mr. CASEY, Ms. CANTWELL, Mr. BROWN

of Ohio, Mrs. SHAHEEN, Mr. REED, and Mr. COONS) 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 2011’’. 


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1 SEC. 2. FINDINGS AND PURPOSES. 

2 (a) FINDINGS.—The Congress finds the following: 

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

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

5 ‘‘LGBT’’), or are perceived to be LGBT, or who as6 sociate with LGBT people, have been and are sub7 jected to pervasive discrimination, including harass8 ment, bullying, intimidation, and violence, and have 

9 been deprived of equal educational opportunities, in 

10 schools in every part of the Nation. 

11 (2) While discrimination, including harassment, 

12 bullying, intimidation, and violence, of any kind is 

13 harmful to students and to the education system, ac14 tions that target students based on sexual orienta15 tion or gender identity represent a distinct and espe16 cially severe problem. 

17 (3) Numerous social science studies dem18 onstrate that discrimination, including harassment, 

19 bullying, intimidation, and violence, at school has 

20 contributed to high rates of absenteeism, dropping 

21 out, adverse health consequences, and academic 

22 underachievement, among LGBT youth. 

23 (4) When left unchecked, discrimination, includ24 ing harassment, bullying, intimidation, and violence, 

25 in schools based on sexual orientation or gender 


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1 identity can lead, and has led, to life-threatening vio2 lence and to suicide. 

3 (5) Public school students enjoy a variety of 

4 constitutional rights, including rights to equal pro5 tection, privacy, and free expression, which are in6 fringed when school officials engage in or are indif7 ferent to discrimination, including harassment, bul8 lying, intimidation, and violence, on the basis of sex9 ual orientation or gender identity. 

10 (6) While Federal statutory provisions expressly 

11 address discrimination on the basis of race, color, 

12 sex, religion, disability, and national origin, Federal 

13 civil rights statutes do not expressly address dis14 crimination on the basis of sexual orientation or gen15 der identity. As a result, students and parents have 

16 often had limited recourse to law for remedies for 

17 discrimination on the basis of sexual orientation or 

18 gender identity. 

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

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

21 public education in a safe environment free from dis22 crimination, including harassment, bullying, intimi23 dation, and violence, on the basis of sexual orienta24 tion or gender identity; 


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1 (2) to provide a comprehensive Federal prohibi2 tion of discrimination in public schools based on ac3 tual or perceived sexual orientation or gender iden4 tity; 

5 (3) to provide meaningful and effective rem6 edies for discrimination in public schools based on 

7 actual or perceived sexual orientation or gender 

8 identity; 

9 (4) to invoke congressional powers, including 

10 the power to enforce the 14th Amendment to the 

11 Constitution and to provide for the general welfare 

12 pursuant to section 8 of article I of the Constitution 

13 and the power to make all laws necessary and proper 

14 for the execution of the foregoing powers pursuant 

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

16 to prohibit discrimination in public schools on the 

17 basis of sexual orientation or gender identity; and 

18 (5) to allow the Department of Education to ef19 fectively combat discrimination based on sexual ori20 entation or gender identity in public schools, through 

21 regulation and enforcement, as the Department has 

22 issued regulations under and enforced title IX of the 

23 Education Amendments of 1972 and other non24 discrimination laws in a manner that effectively ad25 dresses discrimination. 


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1 SEC. 3. DEFINITIONS AND RULE. 

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

3 (1) EDUCATIONAL AGENCY.—The term ‘‘edu4 cational agency’’ means a local educational agency, 

5 an educational service agency, and a State edu6 cational agency, as those terms are defined in sec7 tion 9101 of the Elementary and Secondary Edu8 cation Act of 1965 (20 U.S.C. 7801). 

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

10 identity’’ means the gender-related identity, appear11 ance, or mannerisms or other gender-related charac12 teristics of an individual, with or without regard to 

13 the individual’s designated sex at birth. 

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

15 means conduct that is sufficiently severe, persistent, 

16 or pervasive to limit a student’s ability to participate 

17 in or benefit from a program or activity of a public 

18 school or educational agency, or to create a hostile 

19 or abusive educational environment at a program or 

20 activity of a public school or educational agency, in21 cluding acts of verbal, nonverbal, or physical aggres22 sion, intimidation, or hostility, if such conduct is 

23 based on— 

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

25 orientation or gender identity; or 


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1 (B) the actual or perceived sexual orienta2 tion or gender identity of a person with whom 

3 a student associates or has associated. 

4 (4) PROGRAM OR ACTIVITY.—The terms ‘‘pro5 gram or activity’’ and ‘‘program’’ have the same 

6 meanings given such terms as applied under section 

7 606 of the Civil Rights Act of 1964 (42 U.S.C. 

8 2000d–4a) to the operations of public entities under 

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

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

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

12 defined in section 9101 of the Elementary and Sec13 ondary Education Act of 1965) that is a public insti14 tution, and a secondary school (as so defined) that 

15 is a public institution. 

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

17 orientation’’ means homosexuality, heterosexuality, 

18 or bisexuality. 

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

20 individual who is enrolled in a public school or who, 

21 regardless of official enrollment status, attends 

22 classes or participates in the programs or activities 

23 of a public school or educational agency. 


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

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

3 to’’. 

4 SEC. 4. PROHIBITION AGAINST DISCRIMINATION. 

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

6 actual or perceived sexual orientation or gender identity 

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

8 associates or has associated, be excluded from participa9 tion in, be denied the benefits of, or be subjected to dis10 crimination under any program or activity receiving Fed11 eral financial assistance. 

12 (b) HARASSMENT.—For purposes of this Act, dis13 crimination includes harassment of a student on the basis 

14 of actual or perceived sexual orientation or gender identity 

15 of such student or of a person with whom the student as16 sociates or has associated. 

17 (c) RETALIATION PROHIBITED.— 

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

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

20 be subjected to discrimination, retaliation, or re21 prisal under any program or activity receiving Fed22 eral financial assistance based on the person’s oppo23 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 reasonably be5 lieved to be made unlawful by this Act; 

6 (B) any formal or informal report, whether 

7 oral or written, to any governmental entity, in8 cluding public schools and educational agencies 

9 and employees of the public schools or edu10 cational agencies, regarding conduct made un11 lawful by this Act or reasonably believed to be 

12 made unlawful by this Act; 

13 (C) participation in any investigation, pro14 ceeding, or hearing related to conduct made un15 lawful by this Act or reasonably believed to be 

16 made unlawful by this Act; and 

17 (D) assistance or encouragement provided 

18 to any other person in the exercise or enjoy19 ment of any right granted or protected by this 

20 Act, 

21 if in the course of that expression, the person in22 volved does not purposefully provide information 

23 known to be false to any public school or educational 

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1 duct made unlawful, or reasonably believed to be 

2 made unlawful, by this Act. 

3 SEC. 5. FEDERAL ADMINISTRATIVE ENFORCEMENT; RE4 PORT TO CONGRESSIONAL COMMITTEES. 

5 (a) REQUIREMENTS.—Each Federal department and 

6 agency which is empowered to extend Federal financial as7 sistance to any education program or activity, by way of 

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

9 or guaranty, is authorized and directed to effectuate the 

10 provisions of section 4 with respect to such program or 

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

12 applicability which shall be consistent with achievement of 

13 the objectives of the statute authorizing the financial as14 sistance in connection with which the action is taken. No 

15 such rule, regulation, or order shall become effective un16 less and until approved by the President. 

17 (b) ENFORCEMENT.—Compliance with any require18 ment adopted pursuant to this section may be effected— 

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

20 to continue assistance under such program or activ21 ity to any recipient as to whom there has been an 

22 express finding on the record, after opportunity for 

23 hearing, of a failure to comply with such require24 ment, but such termination or refusal shall be lim25 ited to the particular political entity, or part thereof, 


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1 or other recipient as to whom such a finding has 

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

3 particular program, or part thereof, in which such 

4 noncompliance has been so found; or 

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

6 except that no such action shall be taken until the depart7 ment or agency concerned has advised the appropriate per8 son or persons of the failure to comply with the require9 ment and has determined that compliance cannot be se10 cured by voluntary means. 

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

12 or refusing to grant or continue, assistance because of fail13 ure to comply with a requirement imposed pursuant to this 

14 section, the head of the Federal department or agency 

15 shall file with the committees of the House of Representa16 tives and Senate having legislative jurisdiction over the 

17 program or activity involved a full written report of the 

18 circumstances and the grounds for such action. No such 

19 action shall become effective until 30 days have elapsed 

20 after the filing of such report. 

21 SEC. 6. CAUSE OF ACTION. 

22 (a) CAUSE OF ACTION.—Subject to subsection (c), an 

23 aggrieved individual may bring an action in a court of 

24 competent jurisdiction, asserting a violation of this Act. 

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1 lief, including equitable relief, compensatory damages, and 

2 costs of the action. 

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

4 be construed to preclude an aggrieved individual from ob5 taining remedies under any other provision of law or to 

6 require such individual to exhaust any administrative com7 plaint process or notice of claim requirement before seek8 ing redress under this section. 

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

10 pursuant to this section, the statute of limitations period 

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

12 title 28, United States Code. The tolling of any such limi13 tations period shall be determined in accordance with the 

14 law governing actions under section 1979 of the Revised 

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

16 is brought. 

17 SEC. 7. STATE IMMUNITY. 

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

19 under the 11th Amendment to the Constitution from suit 

20 in Federal court for a violation of this Act. 

21 (b) WAIVER.—A State’s receipt or use of Federal fi22 nancial assistance for any program or activity of a State 

23 shall constitute a waiver of sovereign immunity, under the 

24 11th Amendment or otherwise, to a suit brought by an 

25 aggrieved individual for a violation of section 4. 


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1 (c) REMEDIES.—In a suit against a State for a viola2 tion of this Act, remedies (including remedies both at law 

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

4 same extent as such remedies are available for such a vio5 lation in the suit against any public or private entity other 

6 than a State. 

7 SEC. 8. ATTORNEY’S FEES. 

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

9 1988(b)) is amended by inserting ‘‘the Student Non-Dis10 crimination Act of 2011,’’ after ‘‘Religious Land Use and 

11 Institutionalized Persons Act of 2000,’’. 

12 SEC. 9. EFFECT ON OTHER LAWS. 

13 (a) FEDERAL AND STATE NONDISCRIMINATION

14 LAWS.—Nothing in this Act shall be construed to pre15 empt, invalidate, or limit rights, remedies, procedures, or 

16 legal standards available to victims of discrimination or 

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

18 or political subdivision of a State, including title VI of the 

19 Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title 

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

21 1681 et seq.), section 504 of the Rehabilitation Act of 

22 1973 (29 U.S.C. 794), the Americans with Disabilities Act 

23 of 1990 (42 U.S.C. 12101 et seq.), or section 1979 of the 

24 Revised Statutes (42 U.S.C. 1983). The obligations im25 posed by this Act are in addition to those imposed by title 


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1 VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et 

2 seq.), title IX of the Education Amendments of 1972 (20 

3 U.S.C. 1681 et seq.), section 504 of the Rehabilitation Act 

4 of 1973 (29 U.S.C. 794), the Americans with Disabilities 

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

6 of the Revised Statutes (42 U.S.C. 1983). 

7 (b) FREE SPEECH AND EXPRESSION LAWS AND RE8 LIGIOUS STUDENT GROUPS.—Nothing in this Act shall be 

9 construed to alter legal standards regarding, or affect the 

10 rights available to individuals or groups under, other Fed11 eral laws that establish protections for freedom of speech 

12 and expression, such as legal standards and rights avail13 able to religious and other student groups under the First 

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

15 et seq.). 

16 SEC. 10. SEVERABILITY. 

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

18 provision to any person or circumstance, is held to be un19 constitutional, the remainder of this Act, and the applica20 tion of the provision to any other person or circumstance 

21 shall not be impacted. 


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1 SEC. 11. 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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