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Congress had a big chance to protect LGBTQ students from discrimination. It didn't.

Sen. Al Franken (D-MN) is pushing LGBTQ protections as an amendment to a broader education bill.
Sen. Al Franken (D-MN) is pushing LGBTQ protections as an amendment to a broader education bill.
Jason Kempin/Getty Images

The Republican-controlled Senate on Tuesday voted down a measure that would protect LGBTQ students from discrimination in school.

The Student Nondiscrimination Act (SNDA) would dramatically expand existing civil rights protections to explicitly include LGBTQ students. But the proposal got 52 votes in the Senate — eight short of the 60 needed to pass.

Advocates always said SNDA's chances of passing were slim, but the Senate's vote is a blow for their attempts to expand civil rights protections for sexual orientation or gender identity.

"It is disappointing that the Senate failed to act to explicitly protect LGBT children in our nation’s public schools from discrimination," Ian Thompson, legislative representative for the American Civil Liberties Union on LGBTQ issues, said in a statement. "What could be more common sense?"

SNDA would prohibit anti-LGBTQ discrimination in schools

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SNDA would protect students from discrimination and harassment in K-12 public schools based on their sexual orientation and gender identity. Schools and staffers who break the law could face a private lawsuit or the risk of losing federal funding.

For example, SNDA would prevent teachers from insulting LGBTQ students for their sexual orientation or gender identity, and stop school administrators from misgendering transgender kids who identify with a gender different from the one assigned to them at birth. And although it wouldn't enforce explicit measures that ban anti-LGBTQ bullying between students, schools would be required to stop peer-to-peer harassment if they're notified that it's having an effect on a student's education.

Sen. Al Franken (D-MN), who introduced the amendment in the Senate after trying unsuccessfully to push it as a standalone bill for the past five years, told BuzzFeed's Dominic Holden, "Kids have these protections for race, national origin, gender, and disability. We want to extend to LGBT kids the same right that other kids have."

But the measure always faced a very tough path toward becoming law. It was proposed as an amendment to the Every Child Achieves Act, which already faces uncertain terrain through the Senate, House of Representatives, and the White House. But to even get on as an amendment to the broader bill, SNDA needed 60 votes. And 14 of those votes would have had to come from Republican senators, who are skeptical of SNDA because it's an LGBTQ cause and expands the role of the federal government in education.

Advocates always warned the bill faced rough chances.

"It's a big hurdle to overcome," Thompson of the ACLU acknowledged prior to the Senate's vote. "We're realistic about it. We know it's tough."

Most states don't ban anti-LGBTQ discrimination

GLSEN

Thirteen states have civil rights laws that protect students from discrimination based on their sexual orientation and gender identity, while Wisconsin protects students from discrimination based on sexual orientation but not gender identity, according to the LGBTQ advocacy group Gay, Lesbian & Straight Education Network (GLSEN). So in a majority of states, LGBTQ students have no explicit legal protections in school.

The existing nondiscrimination protections, as with SNDA, build on existing federal and state laws — most notably Title IX of the Civil Rights Act, which bans discrimination based on a student's sex. (Some LGBTQ advocates argue that prohibitions against sex discrimination already protect LGBTQ people. But that interpretation hasn't been affirmed by higher courts, casting uncertainty over whether it would hold up in legal disputes.)

Most LGBTQ students report feeling unsafe in school

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Anti-LGBTQ harassment and bullying is still a huge problem at public schools across the nation. The ACLU reported the example of one student in Indiana:

A gay, Latino 10th grader in South Bend who had been harassed repeatedly and mercilessly by classmates reported that a school custodian, who was standing next to a security officer at the time, told the student that he had no reason to complain because, "Back home, you'd be killed for that." In another incident, the boy was called to the assistant principal's office because of a minor disagreement with another student, and the assistant principal instead focused on trying to get the student to tell him inappropriately intimate details about his personal life, saying, "We all have a dark side."

This type of harassment is fairly common: A 2013 nationwide survey by GLSEN found 55.5 percent of LGBTQ students felt unsafe at school because of their sexual orientation, and 37.8 percent because of their gender expression. And 51.4 percent of students reported hearing homophobic remarks from teachers or other school staff, while 55.5 percent reported hearing negative remarks from staff about gender expression.

This type of discrimination and harassment can negatively impact an LGBTQ student's education. GLSEN found that LGBTQ students who reported LGBTQ-related harassment were more than three times as likely to have missed school in the past month as those who didn't, and they had lower grades than their peers.

Laws like SNDA, then, aren't just trying to eliminate discrimination, but could potentially improve school outcomes for LGBTQ students, as well.

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