H. R. 998
To end discrimination based on actual or perceived sexual orientation
or gender identity in public schools, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
March 10, 2011
Mr. POLIS (for himself, Mr. ACKERMAN, Mr. FARR, Mr. BACA, Mr. FILNER, Ms.
BALDWIN, Mr. FRANK of Massachusetts, Ms. BERKLEY, Mr. AL GREEN of Texas, Mr.
BERMAN, Mr. GRIJALVA, Mr. BLUMENAUER, Mr. GUTIERREZ, Mr. BRADY of Pennsylvania,
Mr. HASTINGS of Florida, Mr. BRALEY of Iowa, Mr. HIMES, Mrs. CAPPS, Mr. HINCHEY,
Mr. CAPUANO, Ms. HIRONO, Ms. CASTOR of Florida, Mr. HOLT, Ms. CHU, Mr. HONDA,
Mr. CICILLINE, Mr. ISRAEL, Ms. CLARKE of New York, Mr. JACKSON of Illinois,
Mr. COURTNEY, Ms. JACKSON LEE of Texas, Mr. CROWLEY, Mr. KILDEE, Mrs. DAVIS
of California, Mr. KUCINICH, Mr. DEFAZIO, Mr. LANGEVIN, Ms. DEGETTE, Mr. LARSON
of Connecticut, Mr. DEUTCH, Ms. LEE of California, Mr. DOYLE, Mr. LEVIN, Mr.
ELLISON, Mr. LEWIS of Georgia, Mr. ENGEL, Ms. ZOE LOFGREN of California, Ms.
ESHOO, Mr. LUJAN, Mr. KEATING, Mrs. MALONEY, Mr. MARKEY, Ms. ROS-LEHTINEN,
Ms. MATSUI, Mr. ROTHMAN of New Jersey, Mrs. MCCARTHY of New York, Ms. ROYBAL-ALLARD,
Ms. MCCOLLUM, Ms. LINDA T. SANCHEZ of California, Mr. MCDERMOTT, Mr. SARBANES,
Mr. MCGOVERN, Ms. SCHAKOWSKY, Mr. MEEKS, Mr. SERRANO, Mr. MICHAUD, Mr. SHERMAN,
Ms. MOORE, Ms. SPEIER, Mr. MORAN, Mr. STARK, Mr. MURPHY of Connecticut, Ms.
SUTTON, Mr. NADLER, Mr. TONKO, Mrs. NAPOLITANO, Mr. TOWNS, Mr. NEAL, Ms. TSONGAS,
Ms. NORTON, Mr. VAN HOLLEN, Mr. OLVER, Ms. WASSERMAN SCHULTZ, Mr. PALLONE,
Mr. WAXMAN, Mr. PETERS, Mr. WEINER, Ms. PINGREE of Maine, Mr. WELCH, Mr. QUIGLEY,
Ms. WOOLSEY, Ms. RICHARDSON, Mr. WU, Mr. YARMUTH, Mr. COHEN, Mr. CUMMINGS,
Ms. EDDIE BERNICE JOHNSON of Texas, Mr. PASCRELL, Mr. CARSON of Indiana, and
Mr. JOHNSON of Georgia) 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.
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 Non-Discrimination Act of 2011'.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings- The Congress finds the following:
(1) 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.
(2) 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.
(3) 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.
(4) When left unchecked, discrimination, including harassment, bullying,
intimidation and violence, in schools based on sexual orientation or gender
identity can lead, and has lead 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 discriminatory treatment or are indifferent
to discrimination, including harassment, bullying, intimidation and violence,
on the basis of sexual orientation or gender identity.
(6) 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.
(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
(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 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
(5) 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 and other nondiscrimination
laws in a manner that effectively addresses discrimination.
SEC. 3. DEFINITIONS.
For purposes of this Act:
(1) 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.
(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 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) a student's actual or perceived sexual orientation or gender identity;
(B) the actual or perceived sexual orientation or gender identity of a
person or persons with whom a student associates or has associated.
(4) PUBLIC SCHOOLS- 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 9101 of
the Elementary and Secondary Education Act of 1965.
(5) SEXUAL ORIENTATION- The term `sexual orientation' means homosexuality,
heterosexuality, or bisexuality.
(6) 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 a public school's programs or educational activities.
SEC. 4. PROHIBITION AGAINST DISCRIMINATION; EXCEPTIONS.
(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,
or 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, 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.
(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 his or her opposition to conduct made unlawful by this Act.
(2) DEFINITION- For purposes of this subsection, `opposition to conduct
made unlawful by this Act' includes, but is not limited to--
(A) opposition to conduct reasonably believed to be made unlawful by this
(B) 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
(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 other governmental
entity regarding a violation, or alleged violation, of this Act.
SEC. 5. 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--
(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. 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 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) 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.
(b) 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.
(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 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.
SEC. 7. 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 to the Constitution or otherwise, to a suit brought
by an aggrieved individual for a violation of section 4 of this Act.
(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 2011,' 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 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.).
(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 1st Amendment to the Constitution 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 affected.
SEC. 11. EFFECTIVE DATE.
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