Senate Republicans Reject Effort by Sen. Franken to Protect LGBT Students from Bullying

Child suicide is a serious problem in the United States. According the Center for Disease Control, over 4,500 young people between the ages of 10 (!) and 24 kill themselves each year. It is the second leading cause of death for that age group.

Lesbian, gay, bisexual, and trans (LGBT) children are particularly at risk. According to the Trevor Project (a national organization providing crisis intervention and suicide prevention services to lesbian, gay, bisexual, transgender, and questioning youth), LGBT students “are 4 times more likely, and questioning youth are 3 times more likely, to attempt suicide as their straight peers.” Those LGBT children who do attempt suicide are 4-6 times more likely to require medical treatment. The risk of suicide is particularly acute among LGBT children who live with “highly rejecting families,” and among black and Hispanic youth.

Not surprisingly, bullying at school can be a significant factor in an LBGT child’s decision to consider or attempt suicide. The Trevor Project estimates that each episode of bullying increases the odds that a LGBT child will self-harm by two and a half times. Not surprisingly, a study by the Gay, Lesbian & Straight Education Network found that LGBT students experience much higher rates of online harassment and cyberbullying than their straight peers. Among the key findings from the study:

  • LGBT youth were nearly three times as likely as non-LGBT youth to say they had been bullied or harassed online (42% vs. 15%) and twice as likely to say they had been bullied via text message (27% vs 13%).
  • 1 in 4 LGBT youth (26%) said they had been bullied online specifically because of their sexual orientation or gender expression in the past year, and 1 in 5 (18%) said they had experienced bullying and harassment for these reasons via text message.
  • 1 in 3 (32%) LGBT respondents said they had been sexually harassed online in the past year. 1 in 4 LGBT youth (25%) said they had been sexually harassed via text message.
  • LGBT youth were four times as likely as non-LGBT youth to say they had been sexually harassed online (32% vs. 8%) and three times as likely to say they had been sexually harassed via text message (25% vs. 8%).

Under the U.S. Constitution and federal statute, public school students are protected from discrimination “on the basis of race, color, sex, religion, disability, and national origin.” Earlier this week, Senator Al Franken (D-MN) proposed an amendment to the Senate’s long-overdue update to the expired No Child Left Behind statute that would explicitly extend the same protection from discrimintion to LGBT students.

Senator Franken gave a powerful and moving speech in support of his amendment on the floor of the Senate. It’s worth watching:

As he pointed out during his remarks, “The bullying of LGBT children in our schools has reached epidemic proportions. More than 30 percent of LGBT kids report missing a day of school in the previous month because they felt unsafe. … You cannot learn if you dread going to school.”

Franken’s amendment would make it illegal for a federally-funded program (such as a public school) to discriminate against a child who is LGBT, and would create a private cause of action in the event that a school fails to take steps to prevent or stop bullying, or retaliates against a student who is protesting anti-gay discrimination. Forty U.S. Senators agreed to co-sponsor the amendment; however, under the rules of the Senate, 60 votes were required to attach the amendment to the overarching legislation.

Opposition to the proposed amendment was led by Sen. Lamar Alexander (R-TN), who argued that the bill would reduce local control and lead to a surge in “costly lawsuits.”

There is no doubt that bullying or harassment of children based on actual or perceived sexual orientation or gender identity is a terrible problem and has become in some parts of our country even accurately described as an epidemic. But the question is, Is this an argument that is best addressed to the local school board or to the State board of education or to a
national school board in Washington, DC?

This substitutes the judgment of the people closest to the children, who cherish them—substitutes the judgment of Washington bureaucrats for them. It allows the Federal Government to regulate and dictate local school gender identity policies, such as those related to restrooms, locker rooms, and dress codes. It will lead to costly lawsuits.
It is well-intentioned. It is a problem that needs to be addressed, but it should be addressed by the local school board, the State board of education, and not by a national school board in Washington, DC.

Franken’s amendment was “defeated” by a vote of 52-45; although a majority voted to adopt it, the amendment did not receive the 60 votes necessary to move it forward.

I served on a local school board in Burlington, VT for ten years, and I saw first-hand the challenges that LGBT students face, even in one of the more progressive communities in the country. (Perhaps you’ve heard of Burlington’s former democratic socialist mayor, current U.S. Senator (I-VT), and presidential candidate Bernie Sanders?) We were one of the first school boards to grapple with the issue of gender identity and expression in our district harassment policy; in 2007, we added language to our board policy F1R that prohibits harassment “based on race, creed, color, national origin, marital status, disability, sex, sexual orientation, gender identity, and gender expression, to the extent required by law or this Policy.”

The policy defines gender identity as “an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender-identity, regardless of the individual’s assigned sex at birth.” Gender expression is defined as “an individual’s or individual’s family member’s actual or perceived gender expression, including but not limited to appearance or behavior regardless of the individual’s assigned sex at birth.”

In the wake of the U.S. Supreme Court’s historic decision in Obergfell v. Hodges, which declared that gay and lesbian couples are entitled to get married throughout the nation as a matter of constitutional due process, a number of renegade state clerks refused to issue marriage licenses. While that illegal protest has subsided (in part due to judicial enforcement), that reaction unequivocally illustrates that when it comes to basic fundamental rights, it is often necessary (and salutory) to have a national declaration and endorsement of those rights.

Senator Franken offered this apt rejoinder to Sen. Alexander:

This isn’t about lawsuits; this is about schools doing the right thing when the parents ask. They are the same protections granted to the kids by virtue of their race. That wasn’t a local issue; that was a Federal right we had to pass. The same with title IX for girls. That is why we just won the World Cup.

The reason this should be a national issue is that if it is left to state and local school officials, there is little doubt that some LGBT students will not receive the protection, support, and understanding to which they are entitled under the United States Constitution. Inevitably, some of those students will feel shut out of the educational system, and some will take their own lives.

We can do better, and we should.

The full text of Senator Franken’s reasonable amendment, as printed in the Congressional Record for the U.S. Senate on July 7, 2015, is set out below.

SA 2093. Mr. FRANKEN (for himself, Ms. Baldwin, Mr. Bennet, Mr. Booker, Mrs. Boxer, Mr. Brown, Ms. Cantwell, Mr. Cardin, Mr. Carper, Mr. Casey, Mr. Coons, Mr. Durbin, Mrs. Feinstein, Mrs. Gillibrand, Mr. Heinrich, Ms. Heitkamp, Ms. Hirono, Mr. Kaine, Ms. Klobuchar, Mr. Leahy, Mr. Markey, Mr. Manchin, Mrs. McCaskill, Mr. Menendez, Mr. Merkley, Ms. Mikulski, Mr. Murphy, Mrs. Murray, Mr. Peters, Mr. Reed, Mr. Sanders, Mr. Schatz, Mr. Schumer, Mrs. Shaheen, Ms. Stabenow, Mr. Tester, Mr. Udall, Ms. Warren, Mr. Whitehouse, Mr. Wyden, and Mr. Kirk)
submitted an amendment intended to be proposed to amendment SA 2089 submitted by Mr. Alexander (for himself and Mrs. Murray) to the bill S. 1177, to reauthorize the Elementary and Secondary Education Act of 1965 to ensure that every child achieves; which was ordered to lie on the table; as follows:

At the end of part B of title X, insert the following:

SEC. __. STUDENT NON-DISCRIMINATION.

(a) Short Title.–This section may be cited as the
“Student Non-Discrimination Act of 2015”.
(b) Findings and Purposes.–
(1) Findings.–Congress makes the following findings:
(A) Public school students who are lesbian, gay, bisexual,
or transgender (referred to in this section 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.
(B) 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 inadequately
addressed by current Federal law.
(C) 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.
(D) 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.
(E) 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.
(F) Provisions of Federal statutory law expressly prohibit
discrimination on the basis of race, color, sex, religion,
disability, and national origin. The Department of Education
and the Department of Justice, as well as numerous courts,
have correctly interpreted the prohibitions on sex
discrimination to include discrimination based on sex
stereotypes and gender identity, even when that sex-based
discrimination coincides or overlaps with discrimination
based on sexual orientation. 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.
(2) Purposes.–The purposes of this section are–
(A) 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;
(B) to provide a comprehensive Federal prohibition of
discrimination in public schools based on actual or perceived
sexual orientation or gender identity;
(C) to provide meaningful and effective remedies for
discrimination in public schools based on actual or perceived
sexual orientation or gender identity;
(D) 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

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(E) 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 et seq.) and
other nondiscrimination laws in a manner that effectively
addresses discrimination.
(c) Definitions and Rule.–
(1) Definitions.–For purposes of this section:
(A) Educational agency.–The term “educational agency”
means a local educational agency, an educational service
agency, or 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).
(B) 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.
(C) 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,
including acts of verbal, nonverbal, or physical aggression,
intimidation, or hostility, if such conduct is based on–
(i) a student’s actual or perceived sexual orientation or
gender identity; or
(ii) the actual or perceived sexual orientation or gender
identity of a person with whom a student associates or has
associated.
(D) 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.
(E) 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 (20 U.S.C.
7801)) that is a public institution, and a secondary school
(as so defined) that is a public institution.
(F) Sexual orientation.–The term “sexual orientation”
means homosexuality, heterosexuality, or bisexuality.
(G) Student.–The term “student” means an individual
within the age limits for which the State provides free
public education 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 local educational agency.
(2) Rule.–Consistent with Federal law, in this section the
term “includes” means “includes but is not limited to”.
(d) Prohibition Against Discrimination.–
(1) 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.
(2) Harassment.–For purposes of this section,
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.
(3) Retaliation prohibited.–
(A) 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
section.
(B) Definition.–For purposes of this paragraph,
“opposition to conduct made unlawful by this section”
includes–
(i) opposition to conduct believed to be made unlawful by
this section or conduct that could be believed to become
unlawful under this section if allowed to continue;
(ii) 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 section, conduct believed to be made unlawful by this
section, or conduct that could be believed to become unlawful
under this section if allowed to continue;
(iii) participation in any investigation, proceeding, or
hearing related to conduct made unlawful by this section,
conduct believed to be made unlawful by this section, or
conduct that could be believed to become unlawful under this
section if allowed to continue; and
(iv) assistance or encouragement provided to any other
person in the exercise or enjoyment of any right granted or
protected by this section,

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 section, or
conduct believed to be made unlawful by this section, or
conduct that could be believed to become unlawful under this
section if allowed to continue.
(e) Federal Administrative Enforcement; Report to
Congressional Committees.–
(1) 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
subsection (d) 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.
(2) Enforcement.–Compliance with any requirement adopted
pursuant to this subsection may be effected–
(A) 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
(B) 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.
(3) 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
subsection, 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.
(f) Private Cause of Action.–
(1) Private cause of action.–Subject to paragraph (3), and
consistent with the cause of action recognized under title VI
of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) and
title IX of the Education Amendments of 1972 (20 U.S.C. 1681
et seq.), an aggrieved individual may bring an action in a
court of competent jurisdiction, asserting a violation of
this section. Aggrieved individuals may be awarded all
appropriate relief, including equitable relief, compensatory
damages, and costs of the action.
(2) Rule of construction.–This subsection 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
subsection.
(3) Statute of limitations.–For actions brought pursuant
to this subsection, 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.
(g) 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 section
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 section, 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 section shall adversely affect
the right of any person to sue or obtain relief in any court
for any activity that violates this section, including
regulations promulgated pursuant to this section.
(h) State Immunity.–
(1) 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 section.
(2) 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 subsection (d).
(3) Remedies.–In a suit against a State for a violation of
this section, 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.
(i) Attorney’s Fees.–Section 722(b) of the Revised
Statutes (42 U.S.C. 1988(b)) is amended by inserting “the
Student Non-Discrimination Act of 2015,” after “Religious
Land Use and Institutionalized Persons Act of 2000,”.
(j) Effect on Other Laws.–

[[Page S4782]]

(1) Federal and state nondiscrimination laws.–Nothing in
this section 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 et seq., 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 section are in addition to those imposed by titles IV
and VI of the Civil Rights Act of 1964 (42 U.S.C. 2000c et
seq., 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).
(2) Free speech and expression laws and religious student
groups.–Nothing in this section 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.).
(k) Severability.–If any provision of this section, or any
application of such provision to any person or circumstance,
is held to be unconstitutional, the remainder of this
section, and the application of the provision to any other
person or circumstance shall not be impacted.
(l) Effective Date.–This section shall take effect 60 days
after the date of enactment of this section and shall not
apply to conduct occurring before the effective date of this
section.

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