Student Non-Discrimination Act of 2018

To end discrimination based on actual or perceived sexual orientation or gender identity in public schools, and for other purposes. 1. Short title This Act may be cited as the Student Non-Discrimination Act of 2018 2. Findings and purposes (a) Findings Congress makes the following findings: (1) Public school students who are lesbian, gay, bisexual, or transgender (referred to in this Act as LGBT (2) While discrimination of any kind is harmful to students and to the education system, actions that target students based on sexual orientation or gender identity represent a distinct and severe problem that remains inconsistently and inadequately addressed by current Federal law. (3) Numerous social science studies dem­on­strate that discrimination at school has contributed to high rates of absenteeism, academic underachievement, dropping out, and adverse physical and mental health consequences among LGBT youth. (4) When left unchecked, discrimination 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 or fail to take prompt and effective action to stop discrimination on the basis of sexual orientation or gender identity. (6) Provisions of Federal statutory law expressly prohibit discrimination on the basis of race, color, sex, religion, disability, and national origin. Numerous Federal courts have correctly interpreted the prohibitions on sex discrimination to include discrimination based on sex stereotypes, sexual orientation, and gender identity. However, the absence of express Federal law prohibitions on discrimination on the basis of sexual orientation and gender identity has created unnecessary uncertainty that risks limiting access to legal remedies under Federal law for LGBT students and their parents. (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, explicit Federal prohibition, in addition to existing protections under Federal prohibitions on sex discrimination, 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 the power to enforce the 14th Amendment to the Constitution of the United States and to provide for the general welfare pursuant to section 8 of article I of the Constitution and the power to make 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 and the Department of Justice to effectively combat discrimination based on sexual orientation and gender identity in public schools, through regulation and enforcement, as the Departments have issued regulations under and enforced title IX of the Education Amendments of 1972 ( 20 U.S.C. 1681 3. Definitions and rule (a) Definitions For purposes of this Act: (1) Educational agency The term educational agency 20 U.S.C. 7801 (2) Gender identity The term gender identity (3) Harassment The term harassment (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 with whom a student associates or has associated. (4) Program or activity The terms program or activity program 42 U.S.C. 2000d–4a (5) Public school The term public school 20 U.S.C. 7801 (6) Sexual orientation The term sexual orientation (7) Student The term student (b) Rule Consistent with Federal law, in this Act the term includes includes but is not limited to 4. Prohibition against discrimination (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, 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 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 the person's opposition to conduct made unlawful by this Act. (2) Definition For purposes of this subsection, opposition to conduct made unlawful by this Act (A) opposition to conduct believed to be made unlawful by this Act or conduct that could be believed to become unlawful under this Act if allowed to continue; (B) any formal or informal report, whether oral or written, to any governmental entity, including public schools and educational agencies and employees of the public schools or educational agencies, regarding conduct made unlawful by this Act, conduct believed to be made unlawful by this Act, or conduct that could be believed to become unlawful under this Act if allowed to continue; (C) participation in any investigation, proceeding, or hearing related to conduct made unlawful by this Act, conduct believed to be made unlawful by this Act, or conduct that could be believed to become unlawful under this Act if allowed to continue; 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 educational agency or other governmental entity regarding conduct made unlawful by this Act, or conduct believed to be made unlawful by this Act, or conduct that could be believed to become unlawful under this Act if allowed to continue. 5. Federal administrative enforcement; report to congressional committees (a) Requirements 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 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 statute 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. (b) Enforcement 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. (c) Reports 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 of Representatives 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. 6. Private cause of action (a) Private cause of action Subject to subsection (c), and consistent with the cause of action recognized under title VI of the Civil Rights Act of 1964 ( 42 U.S.C. 2000d 20 U.S.C. 1681 (b) Rule of construction This section shall not be construed to preclude an aggrieved individual from obtaining 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, 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 7. Cause of action by the attorney general The Attorney General is authorized to institute for or in the name of the United States a civil action for a violation of this Act in any appropriate district court of the United States against such parties and for such relief as may be appropriate, including equitable relief and compensatory damages. Whenever a civil action is instituted for a violation of this Act, the Attorney General may intervene in such action upon timely application and shall be entitled to the same relief as if the Attorney General had instituted the action. Nothing in this Act shall adversely affect the right of any person to sue or obtain relief in any court for any activity that violates this Act, including regulations promulgated pursuant to this Act. 8. 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 or otherwise, to a suit brought by an aggrieved individual for a violation of section 4. (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. 9. Attorney’s fees Section 722(b) of the Revised Statutes ( 42 U.S.C. 1988(b) the Student Non-Discrimination Act of 2018 Religious Land Use and Institutionalized Persons Act of 2000, 10. 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 titles IV and VI of the Civil Rights Act of 1964 ( 42 U.S.C. 2000c 20 U.S.C. 1681 29 U.S.C. 794 42 U.S.C. 12101 42 U.S.C. 1983 42 U.S.C. 2000c 20 U.S.C. 1681 29 U.S.C. 794 42 U.S.C. 12101 42 U.S.C. 1983 (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 First Amendment and the Equal Access Act ( 20 U.S.C. 4071 11. 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 impacted. 12. Effective date This Act shall take effect 60 days after the date of enactment of this Act and shall not apply to conduct occurring before the effective date of this Act.

Summary: Student Non-Discrimination Act of 2018 This bill prohibits discrimination, under a federally assisted program, against public school students on the basis of their actual or perceived sexual orientation or gender identity or that of their associates. The bill authorizes federal departments and agencies to terminate the educational assistance of recipients found to be violating this prohibition. An aggrieved individual may assert a violation of this bill in a judicial proceeding and recover reasonable attorney's fees. The Department of Justice is authorized to institute a civil action for a violation of this bill.