II 

114TH CONGRESS 

1ST SESSION S. 439 

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 

FEBRUARY 10, 2015 

Mr. FRANKEN (for himself, Mr. BENNET, Mr. BROWN, Mr. COONS, Mr. DURBIN, Ms. MIKULSKI, Mrs. MURRAY, Mr. SCHATZ, Mr. SCHUMER, Mrs. 

SHAHEEN, Mr. PETERS, Mr. UDALL, Ms. WARREN, Mr. WHITEHOUSE, 

Mr. WYDEN, Mrs. GILLIBRAND, Ms. KLOBUCHAR, and Ms. BALDWIN) 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 2015’’. 

6 SEC. 2. FINDINGS AND PURPOSES. 

7 (a) FINDINGS.—Congress makes the following find8 ings: 


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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 of any kind is harmful 

10 to students and to the education system, actions 

11 that target students based on sexual orientation or 

12 gender identity represent a distinct and severe prob13 lem that remains inadequately addressed by current 

14 Federal law. 

15 (3) Numerous social science studies dem16 onstrate that discrimination at school has contrib17 uted to high rates of absenteeism, academic under18 achievement, dropping out, and adverse physical and 

19 mental health consequences among LGBT youth. 

20 (4) When left unchecked, discrimination in 

21 schools based on sexual orientation or gender iden22 tity can lead, and has led, to life-threatening violence 

23 and to suicide. 

24 (5) Public school students enjoy a variety of 

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1 tection, privacy, and free expression, which are in2 fringed when school officials engage in or fail to take 

3 prompt and effective action to stop discrimination on 

4 the basis of sexual orientation or gender identity. 

5 (6) Provisions of Federal statutory law ex6 pressly prohibit discrimination on the basis of race, 

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

8 The Department of Education and the Department 

9 of Justice, as well as numerous courts, have cor10 rectly interpreted the prohibitions on sex discrimina11 tion to include discrimination based on sex stereo12 types and gender identity, even when that sex-based 

13 discrimination coincides or overlaps with discrimina14 tion based on sexual orientation. However, the ab15 sence of express Federal law prohibitions on dis16 crimination on the basis of sexual orientation and 

17 gender identity has created unnecessary uncertainty 

18 that risks limiting access to legal remedies under 

19 Federal law for LGBT students and their parents. 

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

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

22 public education in a safe environment free from dis23 crimination, including harassment, bullying, intimi24 dation, and violence, on the basis of sexual orienta25 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 of the United States and to provide for 

12 the general welfare pursuant to section 8 of article 

13 I of the Constitution and the power to make all laws 

14 necessary and proper for the execution of the fore15 going powers pursuant to section 8 of article I of the 

16 Constitution, in order to prohibit discrimination in 

17 public schools on the basis of sexual orientation or 

18 gender identity; and 

19 (5) to allow the Department of Education and 

20 the Department of Justice to effectively combat dis21 crimination based on sexual orientation and gender 

22 identity in public schools, through regulation and en23 forcement, as the Departments have issued regula24 tions under and enforced title IX of the Education 

25 Amendments of 1972 (20 U.S.C. 1681 et seq.) and 


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1 other nondiscrimination laws in a manner that effec2 tively addresses discrimination. 

3 SEC. 3. DEFINITIONS AND RULE. 

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

5 (1) EDUCATIONAL AGENCY.—The term ‘‘edu6 cational agency’’ means a local educational agency, 

7 an educational service agency, or a State educational 

8 agency, as those terms are defined in section 9101 

9 of the Elementary and Secondary Education Act of 

10 1965 (20 U.S.C. 7801). 

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

12 identity’’ means the gender-related identity, appear13 ance, or mannerisms or other gender-related charac14 teristics of an individual, with or without regard to 

15 the individual’s designated sex at birth. 

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

17 means conduct that is sufficiently severe, persistent, 

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

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

20 school or educational agency, including acts of 

21 verbal, nonverbal, or physical aggression, intimida22 tion, or hostility, if such conduct is based on— 

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

24 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 (20 U.S.C. 7801)) 

14 that is a public institution, and a secondary school 

15 (as so defined) that 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 within the age limits for which the State 

21 provides free public education who is enrolled in a 

22 public school or who, regardless of official enroll23 ment status, attends classes or participates in the 

24 programs or activities of a public school or local edu25 cational 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 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 

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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 of the 

22 United States from suit in Federal court for a violation 

23 of this Act. 

24 (b) WAIVER.—A State’s receipt or use of Federal fi25 nancial assistance for any program or activity of a State 


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1 shall constitute a waiver of sovereign immunity, under the 

2 11th Amendment or otherwise, to a suit brought by an 

3 aggrieved individual for a violation of section 4. 

4 (c) REMEDIES.—In a suit against a State for a viola5 tion of this Act, remedies (including remedies both at law 

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

7 same extent as such remedies are available for such a vio8 lation in the suit against any public or private entity other 

9 than a State. 

10 SEC. 9. ATTORNEY’S FEES. 

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

12 1988(b)) is amended by inserting ‘‘the Student Non-Dis13 crimination Act of 2015,’’ after ‘‘Religious Land Use and 

14 Institutionalized Persons Act of 2000,’’. 

15 SEC. 10. EFFECT ON OTHER LAWS. 

16 (a) FEDERAL AND STATE NONDISCRIMINATION

17 LAWS.—Nothing in this Act shall be construed to pre18 empt, invalidate, or limit rights, remedies, procedures, or 

19 legal standards available to victims of discrimination or 

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

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

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

23 seq., 2000d et seq.), title IX of the Education Amend24 ments of 1972 (20 U.S.C. 1681 et seq.), section 504 of 

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1 icans with Disabilities Act of 1990 (42 U.S.C. 12101 et 

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

3 1983). The obligations imposed by this Act are in addition 

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

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

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

7 1681 et seq.), section 504 of the Rehabilitation Act of 

8 1973 (29 U.S.C. 794), the Americans with Disabilities Act 

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

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

11 (b) FREE SPEECH AND EXPRESSION LAWS AND RE12 LIGIOUS STUDENT GROUPS.—Nothing in this Act shall be 

13 construed to alter legal standards regarding, or affect the 

14 rights available to individuals or groups under, other Fed15 eral laws that establish protections for freedom of speech 

16 and expression, such as legal standards and rights avail17 able to religious and other student groups under the First 

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

19 et seq.). 

20 SEC. 11. SEVERABILITY. 

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

22 provision to any person or circumstance, is held to be un23 constitutional, the remainder of this Act, and the applica24 tion of the provision to any other person or circumstance 

25 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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