H. R. 5374
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. Barragán, 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. Cárdenas, Ms. Velázquez, Mr. Panetta, Mr. Gallego, Mrs. Davis of California, Mr. Danny K. Davis of Illinois, Mr. Cohen, Mr. Kilmer, Mrs. Lowey, Mr. Gutiérrez, Ms. Rosen, Ms. Lee, Mr. Ellison, Mr. Garamendi, Mr. McNerney, Mr. Ted Lieu of California, Mr. Nadler, Ms. Sánchez, 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
To end discrimination based on actual or perceived sexual orientation or gender identity in public schools, and for other purposes.
This Act may be cited as the
Student Non-Discrimination Act of 2018.
Findings and purposes
The Congress finds the following:
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.
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.
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.
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.
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.
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.
The purposes of this Act are—
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;
to provide a comprehensive Federal prohibition of discrimination in public schools based on actual or perceived sexual orientation or gender identity;
to provide meaningful and effective remedies for discrimination in public schools based on actual or perceived sexual orientation or gender identity;
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
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.
For purposes of this Act:
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.
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.
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 student’s actual or perceived sexual orientation or gender identity; or
the actual or perceived sexual orientation or gender identity of a person or persons with whom a student associates or has associated.
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).
The term sexual orientation means homosexuality, heterosexuality, or bisexuality.
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.
Prohibition against discrimination; exceptions
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.
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.
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.
For purposes of this subsection,
opposition to conduct made unlawful by this Act includes, but is not limited to—
opposition to conduct reasonably believed to be made unlawful by this Act;
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;
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
assistance or encouragement provided to any other person in the exercise or enjoyment of any right granted or protected by this Act,
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—
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
by any other means authorized by law,
Cause of action
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.
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.
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.
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.
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.
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.
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,.
Effect on other laws
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.).
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.).
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.
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.