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[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5374 Introduced in House (IH)]

<DOC>

115th CONGRESS
  2d Session
                                H. R. 5374

 To end discrimination based on actual or perceived sexual orientation 
     or gender identity in public schools, and for other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             March 21, 2018

 Mr. Polis (for himself, Ms. Ros-Lehtinen, Mr. Scott of Virginia, Mr. 
Takano, Ms. Pelosi, Mr. Hoyer, Mr. Cicilline, Mr. Sean Patrick Maloney 
  of New York, Ms. Sinema, Mr. Pocan, Mr. DeFazio, Mr. Grijalva, Ms. 
Jackson Lee, Mr. Espaillat, Mr. Swalwell of California, Mr. Lowenthal, 
 Mr. Serrano, Ms. Barragan, Mr. Crowley, Ms. Jayapal, Ms. Brownley of 
 California, Ms. Michelle Lujan Grisham of New Mexico, Mr. Evans, Miss 
   Rice of New York, Mr. Perlmutter, Mr. Crist, Ms. Shea-Porter, Mr. 
   Cartwright, Mr. Moulton, Mr. Sherman, Mr. Carson of Indiana, Mr. 
   Peters, Ms. Bonamici, Mr. Kildee, Ms. Norton, Mr. Price of North 
Carolina, Mr. Pallone, Mrs. Watson Coleman, Mr. Foster, Mr. Himes, Mr. 
Kihuen, Ms. Titus, Ms. Blunt Rochester, Ms. Clark of Massachusetts, Ms. 
    DelBene, Mr. Langevin, Ms. DeGette, Ms. Tsongas, Ms. Frankel of 
  Florida, Ms. McCollum, Mr. Blumenauer, Mr. Hastings, Ms. Bass, Ms. 
Bordallo, Mr. Smith of Washington, Mr. Vela, Mr. Yarmuth, Mrs. Dingell, 
 Mrs. Carolyn B. Maloney of New York, Ms. Schakowsky, Ms. Speier, Mr. 
Payne, Ms. Moore, Ms. Matsui, Mrs. Bustos, Ms. Fudge, Mr. Cardenas, Ms. 
  Velazquez, Mr. Panetta, Mr. Gallego, Mrs. Davis of California, Mr. 
  Danny K. Davis of Illinois, Mr. Cohen, Mr. Kilmer, Mrs. Lowey, Mr. 
    Gutierrez, Ms. Rosen, Ms. Lee, Mr. Ellison, Mr. Garamendi, Mr. 
  McNerney, Mr. Ted Lieu of California, Mr. Nadler, Ms. Sanchez, Mr. 
Larson of Connecticut, Mr. Courtney, Mr. Nolan, Ms. Hanabusa, Mr. Lewis 
    of Georgia, Mr. Costa, Ms. Pingree, Mr. Tonko, Mr. Capuano, Mr. 
Norcross, Mr. Cooper, Ms. Roybal-Allard, Mr. Brady of Pennsylvania, Mr. 
 Quigley, Mr. Huffman, Mr. Bera, Mr. Brendan F. Boyle of Pennsylvania, 
 Mr. Delaney, Mr. Ryan of Ohio, Ms. DeLauro, Mr. Welch, Mr. Ruiz, Mrs. 
Napolitano, Ms. Wasserman Schultz, Mr. Kennedy, Mr. Vargas, Mr. Larsen 
 of Washington, Mr. O'Rourke, Ms. Lofgren, Ms. Castor of Florida, Mr. 
Krishnamoorthi, Mr. Carbajal, Mr. McEachin, Mr. DeSaulnier, Ms. Esty of 
Connecticut, and Mrs. Torres) introduced the following bill; which was 
        referred to the Committee on Education and the Workforce

_______________________________________________________________________

                                 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 
2018''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--The Congress finds the following:
            (1) Public school students who are lesbian, gay, bisexual 
        or transgender (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 our 
        Nation.
            (2) While discrimination, including harassment, bullying, 
        intimidation and violence, of any kind is harmful to students 
        and to our education system, actions that target students based 
        on sexual orientation or gender identity represent a distinct 
        and especially severe problem.
            (3) Numerous social science studies demonstrate that 
        discrimination, including harassment, bullying, intimidation 
        and violence, at school has contributed to high rates of 
        absenteeism, dropout, adverse health consequences, and academic 
        underachievement among LGBT youth.
            (4) When left unchecked, discrimination, including 
        harassment, bullying, intimidation and violence, 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 discriminatory treatment or are indifferent 
        to discrimination, including harassment, bullying, intimidation 
        and violence, on the basis of sexual orientation or gender 
        identity.
            (6) While Federal statutory protections expressly address 
        discrimination on the basis of race, color, sex, religion, 
        disability, and national origin, Federal civil rights statutes 
        do not expressly include ``sexual orientation'' or ``gender 
        identity''. As a result, students and parents have often had 
        limited legal recourse to redress for discrimination on the 
        basis of sexual orientation or gender identity.
    (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 but not 
        limited to 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 
        enact 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 to effectively 
        combat discrimination based on sexual orientation or gender 
        identity in public schools through regulation and enforcement, 
        as the Department has issued regulations under and enforced 
        title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et 
        seq.) and other nondiscrimination laws in a manner that 
        effectively addresses discrimination.

SEC. 3. DEFINITIONS.

    For purposes of this Act:
            (1) Program or activity.--The terms ``program or activity'' 
        and ``program'' have 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.
            (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 a 
        student's ability to participate in or benefit from a public 
        school education program or activity, or to create a hostile or 
        abusive educational environment at a public school, 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 or persons with whom a 
                student associates or has associated.
            (4) Public schools.--The term ``public schools'' means 
        public elementary and secondary schools, including local 
        educational agencies, educational service agencies, and State 
        educational agencies, as defined in section 8101 of the 
        Elementary and Secondary Education Act of 1965 (20 U.S.C. 
        7801).
            (5) Sexual orientation.--The term ``sexual orientation'' 
        means homosexuality, heterosexuality, or bisexuality.
            (6) Student.--The term ``student'' means an individual who 
        is enrolled in a public school or who, regardless of official 
        enrollment status, attends classes or participates in a public 
        school's programs or educational activities.

SEC. 4. PROHIBITION AGAINST DISCRIMINATION; EXCEPTIONS.

    (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, or 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, 
but is not limited to, 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 his or 
        her opposition to conduct made unlawful by this Act.
            (2) Definition.--For purposes of this subsection, 
        ``opposition to conduct made unlawful by this Act'' includes, 
        but is not limited to--
                    (A) opposition to conduct reasonably believed to be 
                made unlawful by this Act;
                    (B) any formal or informal report, whether oral or 
                written, to any governmental entity, including public 
                schools and employees thereof, regarding conduct made 
                unlawful by this Act or reasonably believed to be made 
                unlawful by this Act;
                    (C) participation in any investigation, proceeding, 
                or hearing related to conduct made unlawful by this Act 
                or reasonably believed to be made unlawful by this Act; 
                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 other governmental entity regarding a 
        violation, or alleged violation, of this Act.

SEC. 5. FEDERAL ADMINISTRATIVE ENFORCEMENT; REPORT TO CONGRESSIONAL 
              COMMITTEES.

    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 of this Act 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 Act 
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. 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. 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 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. CAUSE OF ACTION.

    (a) Cause of Action.--Subject to subsection (c) of this section, an 
aggrieved individual may assert a violation of this Act in a judicial 
proceeding. Aggrieved persons may be awarded all appropriate relief, 
including but not limited to equitable relief, compensatory damages, 
cost of the action, and remedial action.
    (b) Rule of Construction.--This section shall not be construed to 
preclude an aggrieved individual from obtaining other 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 of the 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 forum State.

SEC. 7. STATE IMMUNITY.

    (a) State Immunity.--A State shall not be immune under the 11th 
Amendment to the Constitution of the United States 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 to the 
Constitution or otherwise, to a suit brought by an aggrieved individual 
for a violation of section 4 of this Act.
    (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. 8. ATTORNEY'S FEES.

    Section 722(b) of the Revised Statutes (42 U.S.C. 1988(b)) is 
amended by inserting ``the Student Nondiscrimination Act of 2018,'' 
after ``Religious Land Use and Institutionalized Persons Act of 
2000,''.

SEC. 9. 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 title VI of the Civil 
Rights Act of 1964 (42 U.S.C. 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 title IX of the Education 
Amendments of 1972 (20 U.S.C. 1681 et seq.), title VI of the Civil 
Rights Act of 1964 (42 U.S.C. 2000d et seq.), and the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.).
    (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 1st Amendment to the 
Constitution and the Equal Access Act (20 U.S.C. 4071 et seq.).

SEC. 10. 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 affected.

SEC. 11. EFFECTIVE DATE.

    This Act shall take effect 60 days after the date of the enactment 
of this Act and shall not apply to conduct occurring before the 
effective date of this Act.
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