[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3390 Introduced in Senate (IS)]

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.

    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 Nondiscrimination Act of 
2010''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--The Congress finds the following:
            (1) Public school students who are lesbian, gay, bisexual, 
        or transgender (referred to in this Act as ``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 the Nation.
            (2) While discrimination, including harassment, bullying, 
        intimidation, and violence, 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 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, dropping out, 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 or are indifferent to discrimination, 
        including harassment, bullying, intimidation, and violence, on 
        the basis of sexual orientation or gender identity.
            (6) While Federal statutory provisions expressly address 
        discrimination on the basis of race, color, sex, religion, 
        disability, and national origin, Federal civil rights statutes 
        do not expressly address discrimination on the basis of sexual 
        orientation or gender identity. As a result, students and 
        parents have often had limited recourse to law for remedies 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; and
            (4) to invoke congressional powers, including 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 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.

SEC. 3. DEFINITIONS AND RULE.

    (a) Definitions.--For purposes of this Act:
            (1) Educational agency.--The term ``educational agency'' 
        means a local educational agency, an educational service 
        agency, and a State educational agency, as those terms are 
        defined in section 9101 of the Elementary and Secondary 
        Education Act of 1965 (20 U.S.C. 7801).
            (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 program 
        or activity of a public school or educational agency, or to 
        create a hostile or abusive educational environment at a 
        program or activity of a public school or educational agency, 
        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 with whom a student 
                associates or has associated.
            (4) Program or activity.--The terms ``program or activity'' 
        and ``program'' have the 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.
            (5) Public school.--The term ``public school'' means an 
        elementary school (as the term is defined in section 9101 of 
        the Elementary and Secondary Education Act of 1965) that is a 
        public institution, and a secondary school (as so defined) that 
        is a public institution.
            (6) Sexual orientation.--The term ``sexual orientation'' 
        means homosexuality, heterosexuality, or bisexuality.
            (7) 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 the 
        programs or activities of a public school or educational 
        agency.
    (b) Rule.--Consistent with Federal law, in this Act the term 
``includes'' means ``includes but is not limited to''.

SEC. 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'' includes--
                    (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 educational agencies and employees of the 
                public schools or educational agencies, 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 educational agency or other governmental 
        entity regarding conduct made unlawful, or reasonably believed 
        to be made unlawful, by this Act.

SEC. 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.

SEC. 6. CAUSE OF ACTION.

    (a) Cause of Action.--Subject to subsection (c), an aggrieved 
individual may bring an action in a court of competent jurisdiction, 
asserting a violation of this Act. Aggrieved individuals may be awarded 
all appropriate relief, including equitable relief, compensatory 
damages, and costs of the action.
    (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) in the State in which the action is 
brought.

SEC. 7. STATE IMMUNITY.

    (a) State Immunity.--A State shall not be immune under the 11th 
Amendment to the Constitution 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.

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 2010,'' 
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 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.), and section 1979 of 
the Revised Statutes (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 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 impacted.

SEC. 11. 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.
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