II 

111TH CONGRESS 

2D SESSION S. 3390 

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 

MAY 20, 2010 

Mr. FRANKEN (for himself, Ms. MIKULSKI, Mr. MERKLEY, Mrs. GILLIBRAND, 

Mr. KERRY, Mr. HARKIN, Mr. CASEY, Mrs. MURRAY, Mr. BINGAMAN, 

Mr. FEINGOLD, Mr. CARDIN, Mr. SANDERS, Ms. CANTWELL, Mr. BROWN

of Ohio, Mr. DODD, Mr. BEGICH, Mr. DURBIN, Mr. LAUTENBERG, Mr. 

LEAHY, Mr. MENENDEZ, Mr. WHITEHOUSE, Mr. WYDEN, Mr. AKAKA, 

and Ms. KLOBUCHAR) 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 Non5 discrimination Act of 2010’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

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


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

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

3 ‘‘LGBT’’), or are perceived to be LGBT, or who as4 sociate with LGBT people, have been and are sub5 jected to pervasive discrimination, including harass6 ment, bullying, intimidation, and violence, and have 

7 been deprived of equal educational opportunities, in 

8 schools in every part of the Nation. 

9 (2) While discrimination, including harassment, 

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

11 harmful to students and to the education system, ac12 tions that target students based on sexual orienta13 tion or gender identity represent a distinct and espe14 cially severe problem. 

15 (3) Numerous social science studies dem16 onstrate that discrimination, including harassment, 

17 bullying, intimidation, and violence, at school has 

18 contributed to high rates of absenteeism, dropping 

19 out, adverse health consequences, and academic 

20 underachievement, among LGBT youth. 

21 (4) When left unchecked, discrimination, includ22 ing harassment, bullying, intimidation, and violence, 

23 in schools based on sexual orientation or gender 

24 identity can lead, and has led, to life-threatening vio25 lence 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 are indif5 ferent to discrimination, including harassment, bul6 lying, intimidation, and violence, on the basis of sex7 ual orientation or gender identity. 

8 (6) While Federal statutory provisions expressly 

9 address discrimination on the basis of race, color, 

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

11 civil rights statutes do not expressly address dis12 crimination on the basis of sexual orientation or gen13 der identity. As a result, students and parents have 

14 often had limited recourse to law for remedies for 

15 discrimination on the basis of sexual orientation or 

16 gender identity. 

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

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

19 public education in a safe environment free from dis20 crimination, including harassment, bullying, intimi21 dation, and violence, on the basis of sexual orienta22 tion or gender identity; 

23 (2) to provide a comprehensive Federal prohibi24 tion of discrimination in public schools based on acVerDate Mar 15 2010 22:15 May 21, 2010 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3390.IS S3390

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1 tual or perceived sexual orientation or gender iden2 tity; 

3 (3) to provide meaningful and effective rem4 edies for discrimination in public schools based on 

5 actual or perceived sexual orientation or gender 

6 identity; and 

7 (4) to invoke congressional powers, including 

8 the power to enforce the 14th Amendment to the 

9 Constitution and to provide for the general welfare 

10 pursuant to section 8 of article I of the Constitution 

11 and the power to make all laws necessary and proper 

12 for the execution of the foregoing powers pursuant 

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

14 to prohibit discrimination in public schools on the 

15 basis of sexual orientation or gender identity. 

16 SEC. 3. DEFINITIONS AND RULE. 

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

18 (1) EDUCATIONAL AGENCY.—The term ‘‘edu19 cational agency’’ means a local educational agency, 

20 an educational service agency, and a State edu21 cational agency, as those terms are defined in sec22 tion 9101 of the Elementary and Secondary Edu23 cation Act of 1965 (20 U.S.C. 7801). 

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

25 identity’’ means the gender-related identity, appearVerDate Mar 15 2010 22:15 May 21, 2010 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3390.IS S3390

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1 ance, or mannerisms or other gender-related charac2 teristics of an individual, with or without regard to 

3 the individual’s designated sex at birth. 

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

5 means conduct that is sufficiently severe, persistent, 

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

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

8 school or educational agency, or to create a hostile 

9 or abusive educational environment at a program or 

10 activity of a public school or educational agency, in11 cluding acts of verbal, nonverbal, or physical aggres12 sion, intimidation, or hostility, if such conduct is 

13 based on— 

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

15 orientation or gender identity; or 

16 (B) the actual or perceived sexual orienta17 tion or gender identity of a person with whom 

18 a student associates or has associated. 

19 (4) PROGRAM OR ACTIVITY.—The terms ‘‘pro20 gram or activity’’ and ‘‘program’’ have the same 

21 meanings given such terms as applied under section 

22 606 of the Civil Rights Act of 1964 (42 U.S.C. 

23 2000d–4a) to the operations of public entities under 

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


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

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

3 defined in section 9101 of the Elementary and Sec4 ondary Education Act of 1965) that is a public insti5 tution, and a secondary school (as so defined) that 

6 is a public institution. 

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

8 orientation’’ means homosexuality, heterosexuality, 

9 or bisexuality. 

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

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

12 regardless of official enrollment status, attends 

13 classes or participates in the programs or activities 

14 of a public school or educational agency. 

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

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

17 to’’. 

18 SEC. 4. PROHIBITION AGAINST DISCRIMINATION. 

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

20 actual or perceived sexual orientation or gender identity 

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

22 associates or has associated, be excluded from participa23 tion in, be denied the benefits of, or be subjected to dis24 crimination under any program or activity receiving Fed25 eral financial assistance. 


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1 (b) HARASSMENT.—For purposes of this Act, dis2 crimination includes harassment of a student on the basis 

3 of actual or perceived sexual orientation or gender identity 

4 of such student or of a person with whom the student as5 sociates or has associated. 

6 (c) RETALIATION PROHIBITED.— 

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

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

9 be subjected to discrimination, retaliation, or re10 prisal under any program or activity receiving Fed11 eral financial assistance based on the person’s oppo12 sition to conduct made unlawful by this Act. 

13 (2) DEFINITION.—For purposes of this sub14 section, ‘‘opposition to conduct made unlawful by 

15 this Act’’ includes— 

16 (A) opposition to conduct reasonably be17 lieved to be made unlawful by this Act; 

18 (B) any formal or informal report, whether 

19 oral or written, to any governmental entity, in20 cluding public schools and educational agencies 

21 and employees of the public schools or edu22 cational agencies, regarding conduct made un23 lawful by this Act or reasonably believed to be 

24 made unlawful by this Act; 


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1 (C) participation in any investigation, pro2 ceeding, or hearing related to conduct made un3 lawful by this Act or reasonably believed to be 

4 made unlawful by this Act; and 

5 (D) assistance or encouragement provided 

6 to any other person in the exercise or enjoy7 ment of any right granted or protected by this 

8 Act, 

9 if in the course of that expression, the person in10 volved does not purposefully provide information 

11 known to be false to any public school or educational 

12 agency or other governmental entity regarding con13 duct made unlawful, or reasonably believed to be 

14 made unlawful, by this Act. 

15 SEC. 5. FEDERAL ADMINISTRATIVE ENFORCEMENT; RE16 PORT TO CONGRESSIONAL COMMITTEES. 

17 (a) REQUIREMENTS.—Each Federal department and 

18 agency which is empowered to extend Federal financial as19 sistance to any education program or activity, by way of 

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

21 or guaranty, is authorized and directed to effectuate the 

22 provisions of section 4 with respect to such program or 

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

24 applicability which shall be consistent with achievement of 

25 the objectives of the statute authorizing the financial asVerDate Mar 15 2010 22:15 May 21, 2010 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3390.IS S3390

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1 sistance in connection with which the action is taken. No 

2 such rule, regulation, or order shall become effective un3 less and until approved by the President. 

4 (b) ENFORCEMENT.—Compliance with any require5 ment adopted pursuant to this section may be effected— 

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

7 to continue assistance under such program or activ8 ity to any recipient as to whom there has been an 

9 express finding on the record, after opportunity for 

10 hearing, of a failure to comply with such require11 ment, but such termination or refusal shall be lim12 ited to the particular political entity, or part thereof, 

13 or other recipient as to whom such a finding has 

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

15 particular program, or part thereof, in which such 

16 noncompliance has been so found; or 

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

18 except that no such action shall be taken until the depart19 ment or agency concerned has advised the appropriate per20 son or persons of the failure to comply with the require21 ment and has determined that compliance cannot be se22 cured by voluntary means. 

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

24 or refusing to grant or continue, assistance because of fail25 ure to comply with a requirement imposed pursuant to this 


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1 section, the head of the Federal department or agency 

2 shall file with the committees of the House of Representa3 tives and Senate having legislative jurisdiction over the 

4 program or activity involved a full written report of the 

5 circumstances and the grounds for such action. No such 

6 action shall become effective until 30 days have elapsed 

7 after the filing of such report. 

8 SEC. 6. CAUSE OF ACTION. 

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

10 aggrieved individual may bring an action in a court of 

11 competent jurisdiction, asserting a violation of this Act. 

12 Aggrieved individuals may be awarded all appropriate re13 lief, including equitable relief, compensatory damages, and 

14 costs of the action. 

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

16 be construed to preclude an aggrieved individual from ob17 taining remedies under any other provision of law or to 

18 require such individual to exhaust any administrative com19 plaint process or notice of claim requirement before seek20 ing redress under this section. 

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

22 pursuant to this section, the statute of limitations period 

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

24 title 28, United States Code. The tolling of any such limi25 tations period shall be determined in accordance with the 


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1 law governing actions under section 1979 of the Revised 

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

3 is brought. 

4 SEC. 7. STATE IMMUNITY. 

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

6 under the 11th Amendment to the Constitution from suit 

7 in Federal court for a violation of this Act. 

8 (b) WAIVER.—A State’s receipt or use of Federal fi9 nancial assistance for any program or activity of a State 

10 shall constitute a waiver of sovereign immunity, under the 

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

12 aggrieved individual for a violation of section 4. 

13 (c) REMEDIES.—In a suit against a State for a viola14 tion of this Act, remedies (including remedies both at law 

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

16 same extent as such remedies are available for such a vio17 lation in the suit against any public or private entity other 

18 than a State. 

19 SEC. 8. ATTORNEY’S FEES. 

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

21 1988(b)) is amended by inserting ‘‘the Student Non22 discrimination Act of 2010,’’ after ‘‘Religious Land Use 

23 and Institutionalized Persons Act of 2000,’’. 


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1 SEC. 9. EFFECT ON OTHER LAWS. 

2 (a) FEDERAL AND STATE NONDISCRIMINATION

3 LAWS.—Nothing in this Act shall be construed to pre4 empt, invalidate, or limit rights, remedies, procedures, or 

5 legal standards available to victims of discrimination or 

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

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

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

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

10 1681 et seq.), section 504 of the Rehabilitation Act of 

11 1973 (29 U.S.C. 794), the Americans with Disabilities Act 

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

13 Revised Statutes (42 U.S.C. 1983). The obligations im14 posed by this Act are in addition to those imposed by title 

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

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

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

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

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

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

21 (b) FREE SPEECH AND EXPRESSION LAWS AND RE22 LIGIOUS STUDENT GROUPS.—Nothing in this Act shall be 

23 construed to alter legal standards regarding, or affect the 

24 rights available to individuals or groups under, other Fed25 eral laws that establish protections for freedom of speech 

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1 able to religious and other student groups under the First 

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

3 et seq.). 

4 SEC. 10. SEVERABILITY. 

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

6 provision to any person or circumstance, is held to be un7 constitutional, the remainder of this Act, and the applica8 tion of the provision to any other person or circumstance 

9 shall not be impacted. 

10 SEC. 11. EFFECTIVE DATE. 

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

12 enactment of this Act and shall not apply to conduct oc13 curring before the effective date of this Act. 

Æ 


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