Text of US HB 5331 (2020)

I 116TH CONGRESS 1ST SESSION H. R. 5331 To prohibit discrimination on the basis of sex, sexual orientation, and gender identity; and to protect the free exercise of religion. IN THE HOUSE OF REPRESENTATIVES DECEMBER 6, 2019 Mr. STEWART (for himself, Mr. BISHOP of Utah, Mr. CURTIS, Mr. FITZPATRICK, Mr. SIMPSON, Mr. UPTON, Ms. STEFANIK, Mr. AMODEI, and Mr. JOYCE of Ohio) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Education and Labor, Ways and Means, Financial Services, Oversight and Reform, and House Administration, for a period to be subsequently determined by the Speaker, in each case for consideration of such provi- sions as fall within the jurisdiction of the committee concerned A BILL To prohibit discrimination on the basis of sex, sexual orienta- tion, and gender identity; and to protect the free exercise of religion. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Fairness for All Act’’. 4 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 5331 IH SEC. 2. PROHIBITION AGAINST DISCRIMINATION OR SEG- 1 REGATION IN PLACES OF PUBLIC ACCOMMO- 2 DATION. 3 Section 201 of the Civil Rights Act of 1964 (42 4 U.S.C. 2000a) is amended— 5 (1) in subsection (a), by inserting ‘‘sex, sexual 6 orientation, gender identity,’’ before ‘‘or national ori- 7 gin’’; 8 (2) in subsection (b)— 9 (A) in paragraph (3), by striking ‘‘and’’ at 10 the end; 11 (B) by redesignating paragraph (4) as 12 paragraph (10); 13 (C) by inserting after paragraph (3) the 14 following: 15 ‘‘(4) any place of exercise, recreation, or amusement, 16 other than religious camps or religious retreat centers; 17 ‘‘(5) any provider of financial services, including 18 banks, credit unions, mortgage houses, brokers, and finan- 19 cial planners; 20 ‘‘(6) for the purpose of classifications enumerated in 21 subsection (a) and not described by section 1557 of the 22 Patient Protection and Affordable Care Act (42 U.S.C. 23 18116(a))— 24 ‘‘(A) any provider of medical services. It shall 25 not constitute a violation of this title to provide a 26 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 5331 IH service, treatment, therapy, procedure, or drug on 1 the same medical terms or criteria applicable to indi- 2 viduals needing that service, treatment, therapy, pro- 3 cedure or drug, without regard to protected class 4 status; 5 ‘‘(B) any provider of mental health care, except 6 that this section shall not apply when the primary 7 objective is to assist a person in entering or sus- 8 taining a marriage, so long as the provider coordi- 9 nates a referral of the client to another qualified 10 mental health care provider who will provide the 11 needed service and the client is not in imminent dan- 12 ger of harming self or others; 13 ‘‘(C) nothing in subparagraph (B) shall apply 14 to a priest, pastor, rabbi, imam, or minister of any 15 faith while acting substantially in a ministerial ca- 16 pacity; and 17 ‘‘(D) a provider of medical services covered by 18 subparagraph (A) or a provider of mental health 19 care covered by subparagraph (B) may make evi- 20 dence-based medical determinations and may refer 21 patients when necessary for a patient’s best interests 22 and welfare, including professional expertise; 23 ‘‘(7) any place of or provider of transportation serv- 24 ices; 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 5331 IH ‘‘(8) any provider of funeral services or burial plots, 1 except those that primarily limit their services or facilities 2 to those of a particular religion; 3 ‘‘(9) any store, shopping center, or online retailer or 4 provider of online services that has 15 or more employees 5 for each working day in each of 20 or more calendar weeks 6 in the current or preceding calendar year. This employee 7 threshold shall not apply to a claim of discrimination be- 8 cause of race, color, or national origin or to a place of 9 public accommodation covered under paragraphs (1) 10 through (8);’’; and 11 (D) by inserting after paragraph (10) the 12 following: 13 ‘‘(11)(A) The provisions of this title shall not 14 apply to— 15 ‘‘(i) any building or collection of buildings 16 that is used primarily as a denominational 17 headquarters, church administrative office, or 18 church conference center; 19 ‘‘(ii) a place of worship, such as a church, 20 synagogue, mosque, chapel, and its appurtenant 21 properties used primarily for religious purposes; 22 ‘‘(iii) a religious educational institution 23 and its appurtenant properties used primarily 24 for religious purposes; 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 5331 IH ‘‘(iv) in connection with a religious celebra- 1 tion or exercise: a facility that is supervised by 2 a priest, pastor, rabbi, imam, or minister of any 3 faith, or religious certifying body, and that is 4 principally engaged in providing food and bev- 5 erages in compliance with religious dietary re- 6 quirements; or 7 ‘‘(v) any online operations or activities of 8 an organization exempt under this section. 9 ‘‘(B) The following shall not be a place of pub- 10 lic accommodation, even if used for a commercial 11 purpose, except within the area and during the time 12 that the property or facility is open to the public; 13 operated primarily for a commercial purpose; and 14 not primarily related to the inculcation, promotion, 15 or expression of religion— 16 ‘‘(i) other appurtenant properties or facili- 17 ties owned or operated by a church, by another 18 house of worship, or by a religious educational 19 institution; or 20 ‘‘(ii) a property owned or operated pri- 21 marily for noncommercial purposes by a non- 22 profit religious corporation that holds itself out 23 to the public as substantially religious, has as 24 its stated purpose in its organic documents that 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 5331 IH it is religious, and is substantially religious in 1 its current operations. 2 ‘‘(C) This paragraph (11) shall not apply to a 3 person or entity that discriminates because of race, 4 color, or national origin with respect to a property 5 or facility enumerated in (A) or (B). 6 ‘‘(12) Provided that equivalent treatment, serv- 7 ices, facilities, and benefits are made available and 8 without prejudicing rights or protections based on 9 any other protected class status— 10 ‘‘(A) nothing in this title that refers to 11 ‘sex’ shall be construed to prevent a fitness cen- 12 ter, spa, or similar place, whose services or fa- 13 cilities are intended for the exclusive use of per- 14 sons of the same sex, from providing the use of 15 those services or facilities exclusively to persons 16 of that sex or prohibit a place of public accom- 17 modation from temporarily restricting access to 18 a fitness center, spa, pool, or similar place, ac- 19 cording to sex; and 20 ‘‘(B) a place of public accommodation shall 21 reasonably accommodate a patron who requests 22 greater privacy within a facility intended for the 23 exclusive use of persons of the same sex. 24 VerDate Sep 11 2014 19:27 Dec 18, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 5331 IH ‘‘(13) Nothing in this title shall be construed to 1 require or prohibit any person, or public or private 2 entity, to provide or pay for any benefit or service, 3 including the use of facilities, related to an abortion. 4 Nothing in this title shall be construed to permit a 5 penalty to be imposed on any person or any indi- 6 vidual because such person or individual is seeking 7 or has received any benefit or service related to a 8 legal abortion.’’; and 9 (3) by adding at the end of subsection (e) the 10 following: 11 ‘‘(f) DEFINITIONS.—For purposes of this title: 12 ‘‘(1) The term ‘gender identity’ means the gen- 13 der-related identity, appearance, mannerisms, or 14 other gender-related characteristics of an individual, 15 without regard to the individual’s designated sex at 16 birth. A person’s gender identity can be shown by 17 providing evidence, including medical history, care or 18 treatment of the gender identity, consistent and uni- 19 form assertion of the gender identity, or other evi- 20 dence that the gender identity is sincerely held, part 21 of a person’s core identity, and not being asserted 22 for an improper purpose. 23 ‘‘(2) The term ‘sexual orientation’ means homo- 24 sexuality, heterosexuality, or bisexuality. 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 5331 IH ‘‘(3) The term ‘online retailer or provider of on- 1 line services’ means a web page by a commercial 2 business not enumerated in paragraph (11) that in- 3 vites the general public to purchase a good or service 4 by use of a credit card or similar payment device 5 over the internet. It does not mean a web page that 6 gives information about a good or service, including 7 quality, price, or availability, but does not permit 8 such purchase directly from the web page. 9 ‘‘(4) The terms ‘religion’ and ‘religious’ include 10 all aspects of religious belief, observance, and prac- 11 tice, whether or not compelled by, or central to, a 12 system of religion. 13 ‘‘(5) The term ‘religious corporation, associa- 14 tion, educational institution, or society’ includes— 15 ‘‘(A) a church, synagogue, mosque, temple, 16 or other house of worship; 17 ‘‘(B) a nonprofit corporation, association, 18 educational institution, society, or other non- 19 profit entity that is, in whole or in substantial 20 part, owned, supported, controlled, or managed 21 by a particular religion or by a particular 22 church, denomination, convention, or associa- 23 tion of churches or other houses of worship; or 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 5331 IH ‘‘(C) a nonprofit corporation, association, 1 educational institution, society, or other non- 2 profit entity that holds itself out to the public 3 as substantially religious, has as its stated pur- 4 pose in its organic documents that it is reli- 5 gious, and is substantially religious in its cur- 6 rent operations. 7 ‘‘(g) ADDITIONAL FACILITIES NOT REQUIRED.— 8 Nothing in this title shall be construed to require the con- 9 struction of new or additional facilities.’’. 10 SEC. 3. PROHIBITION ON DISCRIMINATION IN FEDERALLY 11 FUNDED PROGRAMS. 12 The Civil Rights Act of 1964 (42 U.S.C. 2000d) is 13 amended— 14 (1) in section 601, by inserting ‘‘sex, sexual ori- 15 entation, gender identity,’’ before ‘‘or national ori- 16 gin.’’; 17 (2) in section 606, by striking ‘‘For the pur- 18 poses of this title’’ and inserting ‘‘Subject to section 19 607, for the purposes of this title’’; and 20 (3) by adding at the end the following: 21 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 5331 IH ‘‘SEC. 607. PROGRAM OR ACTIVITY AND PROGRAM DEFINED 1 FOR PURPOSES OF RELIGIOUS ENTITIES AS 2 APPLIED TO SEX, SEXUAL ORIENTATION, OR 3 GENDER IDENTITY. 4 ‘‘For the purposes of this title, as applied to sex, sex- 5 ual orientation, and gender identity, for any religious cor- 6 poration, association, educational institution, or society, 7 the term ‘program or activity’ and the term ‘program’ are 8 limited to any specific program or activity, or part thereof, 9 that receives Federal financial assistance. Any penalty or 10 loss of Federal financial assistance assessed against such 11 a religious entity shall be limited to the program or activ- 12 ity or program, or part thereof, that is determined to have 13 violated section 601. 14 ‘‘SEC. 608. SAFEGUARDS FOR RELIGIOUS ORGANIZATIONS 15 RECEIVING ASSISTANCE. 16 ‘‘(a) IN GENERAL.—An otherwise qualified religious 17 provider shall be eligible to receive Federal financial as- 18 sistance for a particular service without regard to the pro- 19 vider’s religious views or teachings, notwithstanding sec- 20 tion 2000d. Subject to this title, a religious organization 21 that applies for, or participates in, a program or activity 22 receiving Federal financial assistance shall retain its inde- 23 pendence and may continue to carry out its mission, in- 24 cluding the definition, development, and expression of its 25 religious beliefs. 26 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 5331 IH ‘‘(b) SPECIFIC SAFEGUARDS.—Nothing in this title 1 prohibits a religious organization receiving Federal finan- 2 cial assistance from using space in its buildings and other 3 facilities to conduct its program or activities where there 4 is religious art, icons, messages, scriptures, or other sym- 5 bols. Additionally, the organization retains authority over 6 its internal governance and thus may have religious words 7 in the organization’s name, select members of its gov- 8 erning board based on religious criteria, and have religious 9 references in its mission statement and other governing 10 documents. 11 ‘‘(c) EDUCATIONAL AND CHILDCARE INSTITU- 12 TIONS.—A religious educational institution or daycare 13 center may enforce with reasonable consistency written re- 14 ligious standards in its admission criteria, educational pro- 15 grams, student retention policies, or residential life policy, 16 unless those standards are based on race, color, or na- 17 tional origin or would exclude or remove a student solely 18 because of a prohibited classification under section 601 19 with respect to that student’s parent or legal guardian. 20 ‘‘(d) MARRIAGE AND FAMILY EDUCATION, 21 STRENGTHENING, AND COUNSELING PROGRAMS.—For 22 purposes of sexual orientation and gender identity, a reli- 23 gious corporation, association, educational institution, or 24 society receiving Federal financial assistance shall be 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 5331 IH deemed in compliance with section 601 notwithstanding 1 the content of any marriage or family education, strength- 2 ening, or counseling programming, provided that the re- 3 cipient does not exclude beneficiaries on the basis of sexual 4 orientation or gender identity. 5 ‘‘(1) REFERRAL OBLIGATION.—If a beneficiary 6 or prospective beneficiary objects to the religious 7 character of the recipient, the recipient will under- 8 take reasonable efforts as described in subsection 9 (d)(2) to identify and refer the beneficiary to an al- 10 ternative provider to which the beneficiary has no 11 objection; however, the recipient is not obligated to 12 guarantee that in every instance an alternative pro- 13 vider will be available. 14 ‘‘(2) AGENCY RESPONSIBILITIES.—Each agency 15 responsible for administering or supporting a social 16 service program with Federal financial assistance 17 shall establish policies and procedures designed to 18 ensure that— 19 ‘‘(A) appropriate and timely referrals are 20 made to an alternative provider; 21 ‘‘(B) all referrals are made in a manner 22 consistent with all applicable privacy laws and 23 regulations; 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 13 •HR 5331 IH ‘‘(C) the recipient subject to subsection 1 (d)(1) notifies the agency of any referral; 2 ‘‘(D) such recipient has established a proc- 3 ess for determining whether the beneficiary has 4 contacted the alternative provider; and 5 ‘‘(E) each beneficiary of a marriage or 6 family education, strengthening, or counseling 7 program that receives Federal financial assist- 8 ance receives written notice of the protections 9 set forth in this section prior to enrolling in or 10 receiving services from such program. 11 ‘‘(3) RECIPIENT’S RESPONSIBILITIES.—The re- 12 ferral obligation of the recipient under section (d)(2) 13 shall be satisfied by the recipient if it— 14 ‘‘(A) makes appropriate and timely refer- 15 rals to an alternative provider; 16 ‘‘(B) refers in a manner consistent with all 17 applicable privacy laws and regulations; 18 ‘‘(C) notifies the agency of the referral; 19 ‘‘(D) has established a process for deter- 20 mining whether the beneficiary has contacted 21 the alternative provider; and 22 ‘‘(E) can demonstrate that each bene- 23 ficiary of a social service program received writ- 24 ten notice of the protections set forth in this 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 14 •HR 5331 IH section prior to enrolling in or receiving services 1 from such program. 2 ‘‘SEC. 609. SPECIALIZED FEDERAL FINANCIAL ASSISTANCE 3 TO AN ENTIRE ENTITY. 4 ‘‘(a) Any religious corporation, association, edu- 5 cational institution, or society that is otherwise eligible for 6 Federal financial assistance that is awarded to entities to 7 support the safety or infrastructure of the entity cannot 8 be excluded from assistance because of its religious beliefs 9 or practices. Such assistance includes Federal financial as- 10 sistance for historic preservation, disaster recovery, or fa- 11 cilities security. The religious corporation, association, 12 educational institution, or society shall be deemed in com- 13 pliance with section 601, provided that funds used for pro- 14 curement from a third-party vendor must be used in a 15 manner that complies with section 601. 16 ‘‘(b) For the purposes of this subsection, a religious 17 educational institution or daycare center that receives 18 funds under the Richard B. Russell National School 19 Lunch Act shall not be deemed a recipient of Federal fi- 20 nancial assistance. 21 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 15 •HR 5331 IH ‘‘SEC. 610. FEDERAL FINANCIAL ASSISTANCE FOR ADOP- 1 TION AND FOSTER CARE. 2 ‘‘(a) CONGRESSIONAL FINDINGS AND DECLARATION 3 OF POLICY.—The Congress hereby finds and declares the 4 following: 5 ‘‘(1) At-risk children deserve a safe and caring 6 family, and reducing the number of vulnerable chil- 7 dren without a permanent home is in the Federal in- 8 terest. 9 ‘‘(2) There is a national deficit in the number 10 of adoptive and foster parents and the private agen- 11 cies qualified to serve these children. Federal and 12 State governments should cooperate to encourage 13 new agencies to join the effort to serve the needs of 14 vulnerable children, alongside private agencies that 15 have already been doing that crucial work for dec- 16 ades, including agencies whose commitment to serve 17 arises from profound religious convictions. 18 ‘‘(3) By providing safe and welcoming homes to 19 vulnerable children, adoptive and foster care parents 20 serve the best interests of children and contribute to 21 the common good of our communities in ways that 22 are irreplaceable. Such parents should be empowered 23 to adopt children based on their merits as parents, 24 without being thwarted by discriminatory obstacles. 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 16 •HR 5331 IH ‘‘(4) By finding safe and welcoming homes for 1 vulnerable children, religious and other providers of 2 adoption and foster care services, facilitate connec- 3 tions between good parents and vulnerable children. 4 In doing so, such providers also contribute to the 5 common good of our communities in ways that are 6 irreplaceable. 7 ‘‘(5) The indirect funding program created by 8 this section is intended to be a permanent and fully 9 funded program that links vulnerable children to 10 good parents in order to serve the best interests of 11 children. This indirect funding program will do so by 12 ensuring that diverse adoption and foster care pro- 13 viders, including religious providers, will continue to 14 receive Federal financial assistance. 15 ‘‘(6) Therefore, it is the policy of the Federal 16 Government to protect the best interests of at-risk 17 children by establishing minimum Federal standards 18 that guarantee the equal treatment of qualified fam- 19 ilies seeking to offer foster care or adoption and an 20 equal respect for the diversity of private agencies, 21 including religious agencies, that provide adoption 22 and foster care services. This section shall be con- 23 strued in a manner consistent with these findings 24 and declaration of policy. 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 17 •HR 5331 IH ‘‘(b) NONDISCRIMINATION REQUIREMENTS.—Fed- 1 eral financial assistance for adoption, foster care, or re- 2 lated services is subject to section 601, unless otherwise 3 provided in this section. Any entity that receives Federal 4 financial assistance to perform adoption or foster care 5 placements or related services, or that contracts with an 6 entity that receives Federal financial assistance for those 7 services, except for a private agency when participating 8 in the indirect funding program as described under sub- 9 section (c)(2)(B) or (d)(1), may not in the course of per- 10 forming an adoption, foster care, or related service dis- 11 criminate against a prospective parent or a child because 12 of race, color, national origin, sex, sexual orientation, or 13 gender identity. 14 ‘‘(1) An entity unlawfully discriminates against 15 a prospective parent by— 16 ‘‘(A) denying to any qualified person equal 17 access to or equal treatment during the adop- 18 tion or foster care evaluation and placement 19 process because of the race, color, national ori- 20 gin, sex, sexual orientation or gender identity of 21 the qualified prospective adoptive or foster par- 22 ent or of the child involved; 23 ‘‘(B) delaying or denying the placement of 24 a child for adoption or into foster care because 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 18 •HR 5331 IH of the race, color, national origin, sex, sexual 1 orientation, or gender identity of the qualified 2 prospective adoptive or foster parent, or of the 3 child involved; 4 ‘‘(C) requiring different or additional 5 screenings, processes, or procedures for adop- 6 tive or foster care placement because of the 7 race, color, national origin, sex, sexual orienta- 8 tion, or gender identity of the qualified prospec- 9 tive adoptive or foster parent, or of the child in- 10 volved; 11 ‘‘(D) requiring a qualified prospective fos- 12 ter parent to subscribe to subparagraph (D) or 13 (E) of section (b)(2); or 14 ‘‘(E) excluding a qualified prospective 15 adoptive or foster parent because of the par- 16 ent’s religion. 17 ‘‘(2) An entity unlawfully discriminates against 18 a child by— 19 ‘‘(A) denying to any qualified person equal 20 access to or equal treatment during the adop- 21 tion or foster care evaluation and placement 22 process because of the race, color, national ori- 23 gin, sex, sexual orientation, or gender identity 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 19 •HR 5331 IH of the qualified prospective adoptive or foster 1 parent, or of the child involved; 2 ‘‘(B) delaying or denying the placement of 3 a child for adoption or into foster care because 4 of the race, color, national origin, sex, sexual 5 orientation, or gender identity of the qualified 6 prospective adoptive or foster parent, or of the 7 child involved; 8 ‘‘(C) requiring different or additional 9 screenings, processes, or procedures for adop- 10 tive or foster care placement because of the 11 race, color, national origin, sex, sexual orienta- 12 tion, or gender identity of the qualified prospec- 13 tive adoptive or foster parent, or of the child in- 14 volved; 15 ‘‘(D) treating a child in the legal custody 16 of the State inconsistently with the child’s gen- 17 der identity, as demonstrated by the child’s 18 medical history, care or treatment of the child’s 19 gender identity, consistent and uniform asser- 20 tion of the gender identity, or other evidence 21 that the gender identity is sincerely held, is 22 part of the child’s core identity, and is not 23 being asserted for an improper purpose; or 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00019 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 20 •HR 5331 IH ‘‘(E) subjecting any child in the legal cus- 1 tody of the State to any practice or treatment 2 that seeks to change the child’s sexual orienta- 3 tion or gender identity. It shall be lawful for a 4 professional counselor licensed by the State to 5 assist a minor, without regard to sexual ori- 6 entation or gender identity, to prevent or ad- 7 dress unlawful conduct or unsafe sexual prac- 8 tices. 9 ‘‘(c) INDIRECT FUNDING OF ADOPTION AND FOSTER 10 CARE SERVICES.— 11 ‘‘(1) ESTABLISHMENT OF INDIRECT FUNDING 12 PROGRAM.—The Department of Health and Human 13 Services, the Social Security Administration, the De- 14 partment of State, and any other agency authorized 15 by Federal law to administer Federal financial as- 16 sistance for the support of adoption and foster care 17 services shall issue final rules within two years of 18 the enactment of this Act to create an indirect fund- 19 ing program that delivers Federal financial assist- 20 ance to eligible prospective parents for the purpose 21 of obtaining such services through a qualified private 22 agency that they select. 23 ‘‘(A) This indirect funding program will 24 entitle a qualified State resident to receive a 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00020 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 21 •HR 5331 IH certificate to assist with the costs of a personal 1 assessment, background check, home study, en- 2 dorsement, certification of a person’s eligibility 3 to act as the guardian of a child in foster care 4 or as the parent of a child available for adop- 5 tion, and placement of a child with an eligible 6 individual or family. 7 ‘‘(B) A substantial proportion of appro- 8 priated Federal financial assistance for adop- 9 tion or foster care services, including assistance 10 available under part B and part E of title IV 11 of the Social Security Act, shall be allocated to 12 fund the indirect funding program through the 13 issuance of a certificate to eligible prospective 14 parents. 15 ‘‘(C) Each certificate shall be worth an 16 amount to be determined through agency rule- 17 making, but in no event less than $3,000 as in- 18 dexed to the Consumer Price Index as of Janu- 19 ary 1, 2019. 20 ‘‘(D) Participation in this indirect funding 21 program may not be delayed or denied because 22 of a State resident’s race, color, national origin, 23 religion, sex, sexual orientation, or gender iden- 24 tity. 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 22 •HR 5331 IH ‘‘(E) The responsible Federal agencies 1 shall establish policies and procedures designed 2 to ensure that where a referral is required by 3 this section— 4 ‘‘(i) an appropriate and timely referral 5 is made to an alternative provider; 6 ‘‘(ii) all referrals are made in a man- 7 ner consistent with applicable privacy laws 8 and regulations; 9 ‘‘(iii) the provider of adoption and fos- 10 ter care placement or related services noti- 11 fies the agency of any referral; and 12 ‘‘(iv) each applicant for and recipient 13 of adoption or foster care placement or re- 14 lated services from a provider that receives 15 Federal financial assistance will receive 16 written notice from the provider of the pro- 17 tections set forth in this section when ap- 18 plying for or receiving such services. 19 ‘‘(2) IMPLEMENTATION OF INDIRECT FUNDING 20 PROGRAM.— 21 ‘‘(A) APPROVED STATE PLAN.—To be eli- 22 gible for Federal financial assistance for adop- 23 tion or foster care services under part B or part 24 E of title IV of the Social Security Act, a State 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 23 •HR 5331 IH must develop a written plan approved by the 1 Secretary of the Department of Health and 2 Human Services providing that— 3 ‘‘(i) the State has established rules, 4 policies, and procedures within 6 months 5 after issuance of final rules under sub- 6 section (c)(1) that ensures the State’s full 7 participation in the indirect funding pro- 8 gram by making available to each qualified 9 State resident on request a certificate as 10 prescribed by subsection (c)(1), to be used 11 solely for the services enumerated in sub- 12 section (c)(1). This certificate may com- 13 mingle funding from Federal and State 14 sources, and such commingled revenues 15 shall be deemed Federal financial assist- 16 ance; 17 ‘‘(ii) the State uses its best efforts to 18 increase the number of private organiza- 19 tions within each catchment area that are 20 qualified to provide foster care and adop- 21 tion services, including organizations will- 22 ing to serve all qualified prospective par- 23 ents; 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00023 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 24 •HR 5331 IH ‘‘(iii) the State publishes and main- 1 tains a current list of licensed adoption 2 and foster care providers with offices in 3 the State, by catchment area, which list 4 will identify providers that serve all appli- 5 cants, as well as those that serve particular 6 communities and those that provide par- 7 ticular services; 8 ‘‘(iv) the State performs a prompt and 9 cost-free eligibility assessment for every 10 prospective parent who applies for a cer- 11 tificate, informs every eligible prospective 12 parent of the licensed adoption and foster 13 care providers in the participant’s 14 catchment area, and may provide addi- 15 tional information to facilitate the prospec- 16 tive parent’s selection of a provider; 17 ‘‘(v) any State resident eligible to act 18 as a foster parent or adoptive parent has 19 an equal opportunity to obtain adoption or 20 foster care related services from a provider 21 who accepts the certificate described in 22 section (c)(1); and 23 ‘‘(vi) when a qualified individual seek- 24 ing adoption or foster care placement or 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00024 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 25 •HR 5331 IH related services is unable to obtain such 1 services from a particular provider— 2 ‘‘(I) there is at least one other 3 willing and qualified provider of such 4 service in the same or adjacent 5 catchment area that will serve all 6 qualified individuals; 7 ‘‘(II) the provider gives an appro- 8 priate and timely referral to at least 9 one alternative provider; 10 ‘‘(III) each referral is made in a 11 manner consistent with applicable pri- 12 vacy laws and regulations; and 13 ‘‘(IV) the provider of adoption 14 and foster care placement or related 15 services notifies the State of any re- 16 ferral that is issued. 17 ‘‘(B) PROTECTIONS FOR PRIVATE AGEN- 18 CIES.—No State or local government may— 19 ‘‘(i) deny any licensed provider of 20 adoption or foster care placement or re- 21 lated services the opportunity to partici- 22 pate in the certificate program prescribed 23 by subsection (c)(1); 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 26 •HR 5331 IH ‘‘(ii) deny any licensed provider of 1 adoption or foster care placement or re- 2 lated services reasonable payment for serv- 3 ices actually rendered in reliance on a cer- 4 tificate; 5 ‘‘(iii) require a provider of adoption or 6 foster care placement or related services to 7 perform such services in a particular in- 8 stance as a condition of participating in 9 the certificate program prescribed by sub- 10 section (c)(1), unless such service is re- 11 quired by Federal law or imposed pursuant 12 to an agreement between the provider and 13 the State that compensates the provider 14 for such service exclusively with State reve- 15 nues; and 16 ‘‘(iv) withhold, suspend, or terminate 17 contracts, cooperative agreements, grants, 18 or other financial assistance when a pro- 19 vider of adoption or foster care placement 20 or related services takes any action per- 21 mitted under this title. 22 ‘‘(3) AUTHORITY TO WITHHOLD FUNDS.—If a 23 State fails to participate in the indirect funding pro- 24 gram, develop an appropriate State plan, or to com- 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 27 •HR 5331 IH ply with this section in any other respect, the Sec- 1 retary shall, after appropriate notice and failure to 2 comply, withhold payment to the State of amounts 3 otherwise payable under part B or E of title IV of 4 the Social Security Act (42 U.S.C. 621 et seq., 670 5 et seq.), to the extent that the Secretary deems the 6 withholding necessary to induce compliance. A State 7 may elect not to comply with its duties under this 8 section on condition that it declines Federal financial 9 assistance for adoption and foster care. 10 ‘‘(d) PRIVATE RECIPIENTS OF FEDERAL FINANCIAL 11 ASSISTANCE.— 12 ‘‘(1) PROTECTION FOR DIVERSE PROVIDERS.— 13 A private organization that is eligible to receive Fed- 14 eral financial assistance through the certificate pro- 15 gram prescribed by subsection (c)(1) for providing 16 any adoption or foster care placement or related 17 services may— 18 ‘‘(A) decline to accept a certificate without 19 being obligated to perform a particular service, 20 despite receiving certificates to perform other 21 covered adoption or foster care services, so long 22 as the provider gives a referral to the certificate 23 holder consistent with section (c)(2)(A)(vi)(II)– 24 (IV); or 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 28 •HR 5331 IH ‘‘(B) after accepting a certificate, facilitate 1 a mutually voluntary referral that does not un- 2 reasonably delay or disrupt the adoption or fos- 3 ter care evaluation and placement process. 4 ‘‘(2) MISREPRESENTATION.—After accepting a 5 certificate, a provider of adoption or foster care serv- 6 ices may terminate its relationship with a prospec- 7 tive parent who makes a material misrepresentation 8 of a fact that the prospective parent knew or should 9 have known that the agency specifically requested. 10 Such agency shall provide a referral consistent with 11 subsection (c)(2)(A)(vi)(II)–(IV) and shall not lose 12 its right under subsection (c)(2)(B)(ii) to reasonable 13 payment for services actually performed. 14 ‘‘(3) PROTECTION FOR CUSTODIAL PARENTS.— 15 A private organization that has received Federal fi- 16 nancial assistance through the certificate program 17 prescribed by subsection (c)(1) shall not discriminate 18 against the custodial parent of a child in foster care 19 because of the custodial parent’s race, color, national 20 origin, religion, sex, sexual orientation, or gender 21 identity with respect to the monitoring of a parent 22 whom the provider has previously endorsed or with 23 whom the provider has placed a child. 24 ‘‘(e) MISCELLANEOUS.— 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 29 •HR 5331 IH ‘‘(1) CUSTODY OF CHILD IN FOSTER CARE.— 1 For purposes of this section, a child in foster care 2 shall be deemed to be in the legal custody of the 3 State. 4 ‘‘(2) RULE OF CONSTRUCTION.—Nothing in 5 this section shall be construed to prohibit an entity 6 receiving Federal financial assistance for adoption, 7 foster care, or related services from making an indi- 8 vidualized placement assessment in the best interest 9 of the child’s health, safety, and welfare. 10 ‘‘(3) EFFECTIVE DATES.— 11 ‘‘(A) IN GENERAL.—Except as described in 12 subsection (e)(1)(B), the protections under sub- 13 section (b) shall become effective on the date of 14 enactment. 15 ‘‘(B) RELIGIOUS PROVIDER EXEMPTION.— 16 ‘‘(i) Section (b)(1) shall come into ef- 17 fect with respect to a religious adoption or 18 foster care provider 12 months after the 19 State where the provider operates has im- 20 plemented the certificate program as de- 21 scribed in section (c)(2)(A). 22 ‘‘(ii) If the certificate program is not 23 substantially funded as required by sub- 24 section (c), the protections described by 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00029 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 30 •HR 5331 IH subsection (b)(1) shall become unenforce- 1 able as to a religious adoption or foster 2 care provider until funding is provided or 3 restored. 4 ‘‘(iii) For purposes of this section, ‘re- 5 ligious adoption or foster care provider’ 6 means a licensed or accredited nonprofit 7 provider of adoption or foster care services 8 that— 9 ‘‘(I) is in whole or substantial 10 part, owned, supported, controlled, or 11 managed by a particular religion or by 12 a particular church, denomination, 13 convention, or association of churches 14 or other houses of worship; or 15 ‘‘(II) holds itself out to the public 16 as substantially religious, has as its 17 stated purpose in its organic docu- 18 ments that it is religious, and is sub- 19 stantially religious in its current oper- 20 ations. 21 ‘‘(4) PRIVATE RIGHTS OF ACTION.— 22 ‘‘(A) Nothing in this section shall be con- 23 strued to authorize a right of action against a 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00030 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 31 •HR 5331 IH private organization for the exercise of rights 1 provided under subsection (d)(1). 2 ‘‘(B) A private right of action may be 3 brought by a private organization under section 4 1107. 5 ‘‘(5) SUPPLANTING PROHIBITED.—Any Federal 6 funds received under this section shall be used to 7 supplement, not supplant, non-Federal funds that 8 would otherwise be available for activities funded 9 under this subchapter. 10 ‘‘(6) EFFECT ON FEDERAL LAWS RESPECTING 11 RACIAL DISCRIMINATION.—Nothing in this section 12 shall be construed to alter, affect, or supersede any 13 Federal law that addresses discrimination because of 14 race, color, or national origin by any State or private 15 organization that receives Federal financial assist- 16 ance for adoption or foster care placement or related 17 services. 18 ‘‘(7) APPLICATION TO STATES WITH WAIV- 19 ERS.—For any State that, on the date of enactment 20 of this Act, has in effect a waiver approved under 21 section 1130 of the Social Security Act (42 U.S.C. 22 1320a–9), the amendments to this title shall not 23 apply to that State before the expiration of the waiv- 24 er (determined without regard to any extensions), to 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 32 •HR 5331 IH the extent that an amendment is inconsistent with 1 the terms of the waiver. 2 ‘‘(8) EFFECT ON STATE LAWS.—Nothing in 3 this section shall be construed to supersede a State 4 or local law, policy, or contract addressing the legal 5 conditions of receiving Government funding for 6 adoption or foster care services, provided that the 7 State or local law does not directly conflict with this 8 section. 9 ‘‘SEC. 611. SEX-SPECIFIC SEGREGATION OR PROGRAMS. 10 ‘‘(a) If sex segregation or sex-specific programming 11 is necessary to the essential operation of a program or 12 activity, nothing in this title shall prevent any such pro- 13 gram or activity from considering an individual’s sex, pro- 14 vided that where appropriate to accomplish the purpose 15 of the program or activity, individuals are treated in ac- 16 cordance with their gender identity. 17 ‘‘(b) An educational institution receiving Federal fi- 18 nancial assistance shall reasonably accommodate a student 19 who requests greater privacy with respect to the use of 20 a facility designated for the exclusive use of persons of 21 the same sex, provided that the accommodation does not 22 exclude any student from such a facility to which the stu- 23 dent has a right of access or otherwise prejudice any right 24 or privilege protected under this title. 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 33 •HR 5331 IH ‘‘(c) Nothing in this title shall be construed to alter 1 or affect the Violence Against Women Act of 1994. 2 ‘‘SEC. 612. NEUTRALITY WITH RESPECT TO ABORTION. 3 ‘‘Nothing in this title shall be construed to require 4 or prohibit any person, or public or private entity, to pro- 5 vide or pay for any benefit or service, including the use 6 of facilities, related to an abortion. Nothing in this title 7 shall be construed to permit a penalty to be imposed on 8 any person or any individual because such person or indi- 9 vidual is seeking or has received any benefit or service re- 10 lated to a legal abortion. 11 ‘‘SEC. 613. NO EFFECT ON TITLE IX. 12 ‘‘Nothing contained in this title shall be construed to 13 alter or affect title IX of the Education Amendments of 14 1972 (20 U.S.C. 1681 et seq.). Any claim that a person 15 has been excluded because of sex from participation in, 16 or denied the benefits of, or subjected to discrimination 17 with respect to any education program or activity that re- 18 ceives Federal financial assistance shall be governed by 19 title IX and not this title. 20 ‘‘SEC. 614. ADDITIONAL DEFINITIONS. 21 ‘‘For purposes of this title: 22 ‘‘(1) The term ‘gender identity’ means the gen- 23 der-related identity, appearance, mannerisms, or 24 other gender-related characteristics of an individual, 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00033 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 34 •HR 5331 IH without regard to the individual’s designated sex at 1 birth. A person’s gender identity can be shown by 2 providing evidence, including medical history, care or 3 treatment of the gender identity, consistent and uni- 4 form assertion of the gender identity, or other evi- 5 dence that the gender identity is sincerely held, part 6 of a person’s core identity, and not being asserted 7 for an improper purpose. 8 ‘‘(2) The terms ‘religion’ and ‘religious’ include 9 all aspects of religious belief, observance, and prac- 10 tice, whether or not compelled by, or central to, a 11 system of religion. 12 ‘‘(3) The term ‘religious corporation, associa- 13 tion, educational institution, or society’ includes— 14 ‘‘(A) a church, synagogue, mosque, temple, 15 or other house of worship; 16 ‘‘(B) a nonprofit corporation, association, 17 educational institution, society, or other non- 18 profit entity that is, in whole or substantial 19 part, owned, supported, controlled, or managed 20 by a particular religion or by a particular 21 church, denomination, convention, or associa- 22 tion of churches or other houses of worship; or 23 ‘‘(C) a nonprofit corporation, association, 24 educational institution, society, or other non- 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00034 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 35 •HR 5331 IH profit entity that holds itself out to the public 1 as substantially religious, has as its stated pur- 2 pose in its organic documents that it is reli- 3 gious, and is substantially religious in its cur- 4 rent operations. 5 ‘‘(4) The term ‘religious educational institution’ 6 includes any preschool, primary, secondary or post- 7 secondary educational institution that is— 8 ‘‘(A) in whole or in substantial part, 9 owned, supported, controlled, or managed by a 10 particular religion or by a particular church, de- 11 nomination, convention, or association of 12 churches or other houses of worship; or 13 ‘‘(B) a nonprofit corporation organized for 14 educational purposes that holds itself out to the 15 public as substantially religious, has as its stat- 16 ed purpose in its organic documents that it is 17 religious, and is substantially religious in its 18 current operations. 19 ‘‘(5) The term ‘sexual orientation’ means homo- 20 sexuality, heterosexuality, or bisexuality.’’. 21 SEC. 4. EMPLOYMENT DISCRIMINATION PROHIBITED. 22 (a) DEFINITIONS.—Section 701 of the Civil Rights 23 Act of 1964 (42 U.S.C. 2000e) is amended— 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00035 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 36 •HR 5331 IH (1) in subsection (j) by inserting ‘‘(1)’’ after 1 ‘‘(j)’’; 2 (2) in subsection (j)(1) by inserting ‘‘, after ini- 3 tiating and engaging in an affirmative and bona fide 4 effort,’’ after ‘‘unable’’; 5 (3) in subsection (j)(1) by striking ‘‘an employ- 6 ee’s’’ and all that follows through ‘‘religious’’ and in- 7 serting ‘‘an employee’s religious’’; 8 (4) by adding at the end of subsection (j)(1) 9 the following: 10 ‘‘(2)(A) In this subsection, the term ‘employee’ 11 includes an employee (as defined in subsection (f)), 12 or a prospective employee, who, with or without rea- 13 sonable accommodation, is qualified to perform the 14 essential functions of the employment position that 15 such individual holds or desires. 16 ‘‘(B) In this paragraph, the term ‘perform the 17 essential functions’ includes carrying out the core re- 18 quirements of an employment position and does not 19 include carrying out practices relating to clothing, 20 practices relating to taking time off, or other prac- 21 tices that may have a temporary or tangential im- 22 pact on the ability to perform job functions, if any 23 of the practices described in this subparagraph re- 24 strict the ability to wear religious clothing, to take 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00036 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 37 •HR 5331 IH time off for a holy day, or to participate in a reli- 1 gious observance or practice. 2 ‘‘(3) In this subsection, the term ‘undue hard- 3 ship’ means an accommodation requiring significant 4 difficulty or expense. 5 ‘‘(A) For purposes of determining whether 6 an accommodation requires significant difficulty 7 or expense, factors to be considered in making 8 the determination shall include— 9 ‘‘(i) the identifiable cost of the accom- 10 modation, including the costs of loss of 11 productivity and of retraining or hiring 12 employees or transferring employees from 13 one facility to another; 14 ‘‘(ii) the overall financial resources 15 and size of the employer involved, relative 16 to the number of its employees; 17 ‘‘(iii) for an employer with multiple 18 facilities, the geographic separateness or 19 administrative or fiscal relationship of the 20 facilities; and 21 ‘‘(iv) whether the accommodation will 22 obstruct the employer from providing its 23 customers or clients the full and equal en- 24 joyment of the goods, services, facilities, 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00037 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 38 •HR 5331 IH privileges, advantages, and accommoda- 1 tions offered. 2 ‘‘(B) An employer shall not be required to 3 provide an accommodation that will result in 4 the violation of Federal or State law nor result 5 in liability for a hostile work environment.’’; 6 and 7 (5) by inserting after subsection (n) the fol- 8 lowing: 9 ‘‘(o)(1) The term ‘gender identity’ means the gender- 10 related identity, appearance, mannerisms, or other gender- 11 related characteristics of an individual, without regard to 12 the individual’s designated sex at birth. A person’s gender 13 identity can be shown by providing evidence, including 14 medical history, care or treatment of the gender identity, 15 consistent and uniform assertion of the gender identity, 16 or other evidence that the gender identity is sincerely held, 17 part of a person’s core identity, and not being asserted 18 for an improper purpose. 19 ‘‘(2) The term ‘sexual orientation’ means homosex- 20 uality, heterosexuality, or bisexuality. 21 ‘‘(3) The terms ‘religion’ and ‘religious’ include all 22 aspects of religious belief, observance, and practice, wheth- 23 er or not compelled by, or central to, a system of religion. 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00038 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 39 •HR 5331 IH ‘‘(4) The term ‘religious corporation, association, 1 educational institution, or society’ includes— 2 ‘‘(A) a church, synagogue, mosque, temple, or 3 other house of worship; 4 ‘‘(B) a nonprofit corporation, association, edu- 5 cational institution, society, or other nonprofit entity 6 that is, in whole or substantial part, owned, sup- 7 ported, controlled, or managed by a particular reli- 8 gion or by a particular church, denomination, con- 9 vention, or association of churches or other houses 10 of worship; or 11 ‘‘(C) a nonprofit corporation, association, edu- 12 cational institution, society, or other nonprofit entity 13 that holds itself out to the public as substantially re- 14 ligious, has as its stated purpose in its organic docu- 15 ments that it is religious, and is substantially reli- 16 gious in its current operations.’’. 17 (b) EXEMPTION.—Section 702(a) of the Civil Rights 18 Act of 1964 (42 U.S.C. 2000e–1(a)) is amended— 19 (1) by inserting ‘‘(1)’’ after ‘‘(a)’’; 20 (2) by striking ‘‘State, or’’ and inserting the 21 following: 22 ‘‘State. 23 ‘‘(2)(A) This title shall not apply’’; and 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 40 •HR 5331 IH (3) by adding at the end of paragraph (2) the 1 following: 2 ‘‘(B) EXEMPT ORGANIZATIONS.—With respect 3 to claims of employment discrimination because of 4 sexual orientation or gender identity, nothing in this 5 subchapter shall apply to the following: 6 ‘‘(i) a church or its integrated auxiliaries, 7 a convention or association of churches, or a re- 8 ligious order, as described in section 9 6033(a)(3)(A)(i) and section 6033(a)(3)(A)(iii) 10 of the Internal Revenue Code of 1986; 11 ‘‘(ii) a religious organization described in 12 sections 501(c)(3) and 509(a)(1), (2), or (3) 13 that is covered by an Internal Revenue Service 14 group exemption letter issued to a church or a 15 convention or association of churches; 16 ‘‘(iii) a religious educational institution 17 that is eligible for exemption under section 18 703(e)(2) of this subchapter; 19 ‘‘(iv) a religious corporation, association, 20 or society under section 702(a) of this sub- 21 chapter that is eligible for tax-exempt status 22 under section 501(c)(3) of the Internal Revenue 23 Code of 1986 and that employs only individuals 24 of the employer’s religion, unless the employee 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 41 •HR 5331 IH demonstrates that the employer has not applied 1 with reasonable consistency its religious stand- 2 ard cited as the reason for the adverse employ- 3 ment action; or 4 ‘‘(v) any association exclusively composed 5 of employers exempt under subparagraphs 6 (2)(B)(i)–(iv). 7 ‘‘(C) A claim under this subchapter 8 against an employer described by section 9 702(a)(2)(B) for discrimination because of sex 10 shall not include claims of discrimination be- 11 cause of sexual orientation or gender identity. 12 This provision shall not otherwise affect claims 13 of sex discrimination, and nothing in this provi- 14 sion shall prevent a person, regardless of sexual 15 orientation or gender identity, from bringing a 16 claim of sex discrimination. 17 ‘‘(D) No religious corporation, association, 18 or society otherwise eligible under section 19 (2)(B)(iv) of this section shall be ineligible be- 20 cause of nonrecognition under section 501(c)(3) 21 of the Internal Revenue Code, unless such tax 22 treatment is consistent with section 23 501(c)(3)(B) of that Code. 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00041 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 42 •HR 5331 IH ‘‘(E) No employer whose primary purpose 1 and activity is to deliver medical services shall 2 be eligible for the exemptions under section 3 702(a)(2)(B). 4 ‘‘(F) Nothing in this section shall prejudice 5 rights and defenses available under sections 6 702(a) and 703(e)(2).’’. 7 (c) UNLAWFUL EMPLOYMENT PRACTICES.—Section 8 703 of such Act (42 U.S.C. 2000e–2) is amended— 9 (1) except in subsection (e), by inserting ‘‘sex- 10 ual orientation, gender identity,’’ immediately before 11 ‘‘or national origin’’ each place it appears; 12 (2) in subsection (e)(1), by striking ‘‘enter- 13 prise,’’ and inserting ‘‘enterprise, if an individual is 14 recognized as qualified in accordance with gender 15 identity when sex is a bona fide occupational quali- 16 fication,’’; 17 (3) in the heading of subsection (m), by strik- 18 ing ‘‘SEX,’’ and inserting ‘‘SEX, SEXUAL ORIENTA- 19 TION, GENDER IDENTITY,’’; and 20 (4) by adding at the end the following: 21 ‘‘(o)(1) In this section: 22 ‘‘(A) The term ‘employee’ has the meaning 23 given the term in section 701(j)(2). 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00042 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 43 •HR 5331 IH ‘‘(B) The term ‘leave of general usage’ means 1 leave provided under the policy or program of an 2 employer, under which— 3 ‘‘(i) an employee may take leave by adjust- 4 ing or altering the work schedule or assignment 5 of the employee according to criteria deter- 6 mined by the employer; and 7 ‘‘(ii) the employee may determine the pur- 8 pose for which the leave is to be utilized. 9 ‘‘(2) For purposes of determining whether an em- 10 ployer has committed an unlawful employment practice 11 under this title by failing to provide a reasonable accom- 12 modation to the religious observance or practice of an em- 13 ployee, for an accommodation to be considered to be rea- 14 sonable, the accommodation shall remove the conflict be- 15 tween employment requirements and the religious observ- 16 ance or practice of the employee. 17 ‘‘(3) An employer shall be considered to commit such 18 a practice by failing to provide such a reasonable accom- 19 modation for an employee if the employer refuses to per- 20 mit the employee to utilize leave of general usage to re- 21 move such a conflict solely because the leave will be used 22 to accommodate the religious observance or practice of the 23 employee.’’. 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00043 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 44 •HR 5331 IH (d) OTHER UNLAWFUL EMPLOYMENT PRACTICES.— 1 Section 704(b) of the Civil Rights Act of 1964 (42 U.S.C. 2 2000e–3) is amended— 3 (1) in subsection (b) by inserting ‘‘sexual ori- 4 entation, gender identity,’’ before ‘‘national origin’’ 5 each place it appears; 6 (2) in subsection (b) by striking ‘‘employment.’’ 7 and inserting ‘‘employment, if an individual is recog- 8 nized as qualified in accordance with gender identity 9 when sex is a bona fide occupational qualification.’’; 10 and 11 (3) by inserting after subsection (b) the fol- 12 lowing: 13 ‘‘(c) PROHIBITED SANCTIONS FOR CERTAIN EM- 14 PLOYEE SPEECH.— 15 ‘‘(1) An employee may express the employee’s 16 religious, political, or moral beliefs in the workplace 17 in a reasonable, nondisruptive, and nonharassing 18 way on equal terms with similar types of expression 19 of beliefs allowed by the employer in the workplace, 20 unless the expression is in direct and substantial 21 conflict with the essential business-related interests 22 of the employer. 23 ‘‘(2) An employer may not discharge, demote, 24 terminate, or refuse to hire any person, or retaliate 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00044 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 45 •HR 5331 IH against, harass, or discriminate in matters of com- 1 pensation or in terms, privileges, and conditions of 2 employment against any person otherwise qualified 3 for employment, for lawful expression or expressive 4 activity outside of the workplace regarding the per- 5 son’s beliefs that— 6 ‘‘(A) marriage is or should be recognized 7 as a union of one man and one woman, or one 8 woman and one woman, or one man and one 9 man; or 10 ‘‘(B) sexual activity should or should not 11 be reserved for spouses within a marriage. 12 The employee’s expression is not protected under 13 subsection (c)(2) if it directly and materially im- 14 pedes the employee’s performance of an essential job 15 function. 16 ‘‘(3) Paragraphs (1) and (2) shall not apply to 17 a nonprofit organization that operates to express or 18 advocate particular viewpoints, or to an employer 19 that is a religious corporation, association, edu- 20 cational institution, or society covered by section 21 701(o)(4).’’. 22 (e) CLAIMS.—Section 706(g)(2)(A) of the Civil 23 Rights Act of 1964 (42 U.S.C. 2000e–5(g)(2)(A)) is 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00045 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 46 •HR 5331 IH amended by striking ‘‘sex,’’ and inserting ‘‘sex, sexual ori- 1 entation, gender identity,’’. 2 (f) EMPLOYMENT BY FEDERAL GOVERNMENT.—Sec- 3 tion 717 of the Civil Rights Act of 1964 (42 U.S.C. 4 2000e–16) is amended— 5 (1) in subsection (a), by striking ‘‘sex,’’ and in- 6 serting ‘‘sex, sexual orientation, gender identity,’’; 7 and 8 (2) in subsection (c), by striking ‘‘sex’’ and in- 9 serting ‘‘sex, sexual orientation, gender identity,’’. 10 (g) GOVERNMENT EMPLOYEE RIGHTS ACT OF 11 1991.—The Government Employee Rights Act of 1991 12 (title III of Public Law 102–166; 42 U.S.C. 2000e–16 et 13 seq.) is amended— 14 (1) in section 301(b), by striking ‘‘sex,’’ and in- 15 serting ‘‘sex, sexual orientation, gender identity,’’; 16 and 17 (2) in section 302(a)(1), by striking ‘‘sex,’’ and 18 inserting ‘‘sex, sexual orientation, gender identity,’’. 19 (h) ADDITIONAL FACILITIES NOT REQUIRED.—The 20 Civil Rights Act of 1964 (42 U.S.C. 2000e–18) is amend- 21 ed by adding at the end the following: 22 ‘‘SEC. 719. ‘Nothing in this subchapter shall be con- 23 strued to require the construction of new or additional fa- 24 cilities.’ ’’. 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00046 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 47 •HR 5331 IH (i) PRIVACY IN SEX-DESIGNATED FACILITIES.—The 1 Civil Rights Act of 1964 (42 U.S.C. 2000e–19), as amend- 2 ed by subsection (h), is amended by adding at the end 3 the following: 4 ‘‘SEC. 720. If equivalent facilities and benefits are 5 made available and without regard to a prohibited classi- 6 fication under this subchapter, an employer shall reason- 7 ably accommodate an employee who requests greater pri- 8 vacy within a facility intended for the exclusive use of per- 9 sons of the same sex.’’. 10 (j) INTERVENTION.—Section 902 of the Civil Rights 11 Act of 1964 (42 U.S.C. 2000h–2) is amended by inserting 12 ‘‘sexual orientation, gender identity,’’ before ‘‘or national 13 origin,’’. 14 (k) CONGRESSIONAL ACCOUNTABILITY ACT OF 15 1995.—Section 201(a)(1) of the Congressional Account- 16 ability Act of 1995 (2 U.S.C. 1311(a)(1)) is amended by 17 inserting ‘‘sexual orientation, gender identity,’’ before ‘‘or 18 national origin,’’. 19 (l) TITLE 5, UNITED STATES CODE.—Chapter 23 of 20 title 5, United States Code, is amended— 21 (1) in section 2301(b)(2), by striking ‘‘sex,’’ 22 and inserting ‘‘sex, sexual orientation, gender iden- 23 tity,’’; and 24 (2) in section 2302— 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00047 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 48 •HR 5331 IH (A) in subsection (b)(1)(A), by inserting 1 ‘‘sexual orientation, gender identity,’’ before ‘‘or 2 national origin,’’; and 3 (B) in subsection (d)(1), by inserting ‘‘sex- 4 ual orientation, gender identity,’’ before ‘‘or na- 5 tional origin;’’. 6 SEC. 5. HOUSING DISCRIMINATION PROHIBITED. 7 (a) IN GENERAL.— 8 (1) Section 804 of the Fair Housing Act (42 9 U.S.C. 3604) is amended by inserting ‘‘sexual ori- 10 entation, gender identity,’’ after ‘‘sex’’ each place 11 that term appears. 12 (2) Section 805 of the Fair Housing Act (42 13 U.S.C. 3605) is amended by inserting ‘‘sexual ori- 14 entation, gender identity,’’ after ‘‘sex’’ each place 15 that term appears. 16 (3) Section 806 of the Fair Housing Act (42 17 U.S.C. 3606) is amended by inserting ‘‘sexual ori- 18 entation, gender identity,’’ after ‘‘sex’’ each place 19 that term appears. 20 (4) Section 807 of the Fair Housing Act (42 21 U.S.C. 3607) is amended by inserting ‘‘or to persons 22 who adhere to its religious beliefs, observances, te- 23 nets, or practices’’ immediately after the phrase ‘‘of 24 the same religion’’ and ‘‘or adherence to such be- 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00048 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 49 •HR 5331 IH liefs, observances, tenets, or practices’’ immediately 1 before ‘‘is restricted.’’ 2 (5) Section 808 of the Fair Housing Act (42 3 U.S.C. 3608) is amended by inserting ‘‘sexual ori- 4 entation, gender identity,’’ after ‘‘sex’’ each place 5 that term appears. 6 (b) PREVENTION OF INTIMIDATION.—Section 901 of 7 the Civil Rights Act of 1968 (42 U.S.C. 3631) is amended 8 by inserting ‘‘sexual orientation, gender identity,’’ after 9 ‘‘sex,’’ each place that term appears. 10 (c) DEFINITIONS.—Section 802 of the Fair Housing 11 Act (42 U.S.C. 3602) is amended by adding at the end 12 the following: 13 ‘‘(p) ‘Sexual orientation’ means homosexuality, het- 14 erosexuality, or bisexuality. 15 ‘‘(q) ‘Gender identity’ means the gender-related iden- 16 tity, appearance, mannerisms, or other gender-related 17 characteristics of an individual, without regard to the indi- 18 vidual’s designated sex at birth. A person’s gender identity 19 can be shown by providing evidence, including medical his- 20 tory, care or treatment of the gender identity, consistent 21 and uniform assertion of the gender identity, or other evi- 22 dence that the gender identity is sincerely held, part of 23 a person’s core identity, and not being asserted for an im- 24 proper purpose. 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00049 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 50 •HR 5331 IH ‘‘(r) ‘Operates’ includes the rental or occupancy of 1 dwellings through a lease or contract with the dwelling’s 2 actual owner or primary operator. 3 ‘‘(s) ‘Religion’ has the same meaning as section 701 4 of the Civil Rights Act of 1964 (42 U.S.C. 2000e). 5 ‘‘(t) ‘Religious organization, association, or society’ 6 has the same meaning as section 701 of the Civil Rights 7 Act of 1964 (42 U.S.C. 2000e).’’. 8 SEC. 6. OTHER NONDISCRIMINATION REQUIREMENTS. 9 (a) MARRIAGE RECOGNITION.— 10 (1) Section 7 of title 1, United States Code, is 11 amended to read as follows: 12 ‘‘§ 7. Marriage 13 ‘‘(a) For the purposes of any Federal law in which 14 marital status is a factor, an individual shall be considered 15 married if that individual’s marriage is valid in the State 16 where the marriage was entered into or, in the case of 17 a marriage entered into outside any State, if the marriage 18 is valid in the place where entered into and the marriage 19 could have been entered into in a State. 20 ‘‘(b) In this section, the term ‘State’ means a State, 21 the District of Columbia, the Commonwealth of Puerto 22 Rico, or any other territory or possession of the United 23 States.’’. 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00050 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 51 •HR 5331 IH (2) Section 1738C of title 28, United States 1 Code, is repealed, and the table of sections at the be- 2 ginning of chapter 115 of title 28, United States 3 Code, is amended by striking the item relating to 4 that section. 5 (b) DESEGREGATION OF PUBLIC FACILITIES.—Sec- 6 tion 301(a) of the Civil Rights Act of 1964 (42 U.S.C. 7 2000b(a)) is amended by inserting ‘‘sex, sexual orienta- 8 tion, gender identity,’’ before ‘‘or national origin’’. 9 (c) DISCRIMINATION IN FEDERAL JURY SERVICE 10 PROHIBITED.—Chapter 121 of title 28, United States 11 Code, is amended— 12 (1) in section 1862, by inserting ‘‘sexual ori- 13 entation, gender identity,’’ after ‘‘sex,’’ each place 14 that term appears; 15 (2) in section 1867, by inserting ‘‘sexual ori- 16 entation, gender identity,’’ after ‘‘sex,’’ each place 17 that term appears; and 18 (3) in section 1869 by adding at the end the 19 following: 20 ‘‘(l) The term ‘sexual orientation’ means homosex- 21 uality, heterosexuality, or bisexuality. 22 ‘‘(m) The term ‘gender identity’ means the gender- 23 related identity, appearance, mannerisms, or other gender- 24 related characteristics of an individual, without regard to 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00051 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 52 •HR 5331 IH the individual’s designated sex at birth. A person’s gender 1 identity can be shown by providing evidence, including 2 medical history, care or treatment of the gender identity, 3 consistent and uniform assertion of the gender identity, 4 or other evidence that the gender identity is sincerely held, 5 part of a person’s core identity, and not being asserted 6 for an improper purpose.’’. 7 (d) DISCRIMINATION IN CREDIT PROHIBITED.—The 8 Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.) 9 is amended— 10 (1) in section 701(a)(1) by striking ‘‘or’’ after 11 ‘‘sex’’ and inserting ‘‘, sexual orientation, gender 12 identity,’’ after ‘‘sex’’; 13 (2) in section 702— 14 (A) by redesignating subsections (f) and 15 (g) as subsections (g) and (i), respectively; 16 (B) by inserting after subsection (e) the 17 following: 18 ‘‘(f) The term ‘gender identity’ means the gender-re- 19 lated identity, appearance, mannerisms, or other gender- 20 related characteristics of an individual, without regard to 21 the individual’s designated sex at birth. A person’s gender 22 identity can be shown by providing evidence, including 23 medical history, care or treatment of the gender identity, 24 consistent and uniform assertion of the gender identity, 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00052 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 53 •HR 5331 IH or other evidence that the gender identity is sincerely held, 1 part of a person’s core identity, and not being asserted 2 for an improper purpose.’’; and 3 (C) by inserting after subsection (g), as so 4 redesignated, the following: 5 ‘‘(h) The term ‘sexual orientation’ means homosex- 6 uality, heterosexuality, or bisexuality.’’; and 7 (3) in section 705, by inserting ‘‘, sexual ori- 8 entation, gender identity,’’ after ‘‘sex’’. 9 (e) DISCRIMINATION IN REFUGEE RESETTLEMENT 10 PROHIBITED.—Section 412(a)(5) of the Immigration and 11 Nationality Act (8 U.S.C. 1522(a)(5)) is amended by in- 12 serting ‘‘sexual orientation, gender identity,’’ after ‘‘sex,’’. 13 (f) SAFE SCHOOLS.—Title IV of the Elementary and 14 Secondary Education Act of 1965 (20 U.S.C. 7101 et 15 seq.) is amended by adding at the end the following: 16 ‘‘PART G—SAFE SCHOOLS IMPROVEMENT 17 ‘‘SEC. 4701. PURPOSE. 18 ‘‘The purpose of this part is to address the problem 19 of bullying and harassment conduct of students in public 20 elementary schools and secondary schools. 21 ‘‘SEC. 4702. ANTI-BULLYING POLICIES. 22 ‘‘(a) BULLYING.—In this part, the term ‘bullying’ in- 23 cludes cyber-bullying through electronic communications 24 that take place away from school or a school-sponsored 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00053 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 54 •HR 5331 IH or school-related event, but only if the cyber-bullying in- 1 fringes on the rights of the student at school as set forth 2 in subparagraph (A) or (B) of subsection (b)(1). 3 ‘‘(b) POLICIES.—A State that receives a grant under 4 this title shall require all local educational agencies in the 5 State with authority to administer public elementary and 6 secondary schools to carry out the following: 7 ‘‘(1) Establish policies that prevent and prohibit 8 conduct, including bullying and harassment— 9 ‘‘(A) that is sufficiently severe, persistent, 10 or pervasive that a reasonable person would ex- 11 pect such bullying or harassment to limit a stu- 12 dent’s ability to participate in, or benefit from, 13 a program or activity of a public school or local 14 educational agency; or 15 ‘‘(B) that is sufficiently severe, persistent, 16 or pervasive that a reasonable person would ex- 17 pect such bullying or harassment to create a 18 hostile or abusive educational environment, ad- 19 versely affecting a student’s education, at a 20 program or activity of a public school or local 21 educational agency, including acts of verbal, 22 nonverbal, or physical aggression or intimida- 23 tion. 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00054 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 55 •HR 5331 IH ‘‘(2) The policies required under paragraph (1) 1 shall include a prohibition of bullying or harassment 2 conduct based on— 3 ‘‘(A) a student’s actual or perceived race, 4 color, national origin, religion, disability, sex, 5 sexual orientation, or gender identity; 6 ‘‘(B) the actual or perceived race, color, 7 national origin, religion, disability, sex, sexual 8 orientation, or gender identity of a person with 9 whom a student associates or has associated; or 10 ‘‘(C) any other distinguishing characteris- 11 tics that may be defined by the State or local 12 educational agency, including being homeless or 13 the child or ward of a member of the Armed 14 Forces. 15 ‘‘(3) Provide— 16 ‘‘(A) annual notice to students, parents, 17 and educational professionals describing the full 18 range of the local educational agency’s policies 19 required under paragraph (1) and shall include 20 an affirmative statement of the protections for 21 free speech, assembly, and expression under the 22 First Amendment and any other applicable law; 23 and 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00055 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 56 •HR 5331 IH ‘‘(B) grievance procedures for students or 1 parents to register complaints regarding the 2 prohibited conduct contained in such local edu- 3 cational agency’s discipline policies, including— 4 ‘‘(i) the name of the local educational 5 agency officials who are designated as re- 6 sponsible for receiving such complaints; 7 and 8 ‘‘(ii) timelines that the local edu- 9 cational agency will establish in the resolu- 10 tion of such complaints. 11 ‘‘(4) Collect annual incidence and frequency of 12 incidents data about the conduct prohibited by the 13 policies described in paragraph (1) at the school 14 building level that are accurate and complete and 15 publicly report such data at the school level and 16 local educational agency level. The local educational 17 agency shall ensure that victims or persons respon- 18 sible for such conduct are not identifiable. 19 ‘‘(5) Encourage positive and preventative ap- 20 proaches to school discipline that minimize students’ 21 removal from instruction and ensure that students, 22 including students described in paragraph (2), are 23 not subject to disproportionate punishment. 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00056 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 57 •HR 5331 IH ‘‘SEC. 4703. STATE REPORTS. 1 ‘‘The chief executive officer of a State that receives 2 a grant under this title, in cooperation with the State edu- 3 cational agency, shall submit a biennial report to the Sec- 4 retary— 5 ‘‘(1) on the information reported by local edu- 6 cational agencies in the State pursuant to section 7 4702(b)(4); and 8 ‘‘(2) describing the State’s plans for supporting 9 local educational agency efforts to address the con- 10 duct prohibited by the policies described in section 11 4702(b)(1). 12 ‘‘SEC. 4704. EVALUATION. 13 ‘‘(a) BIENNIAL EVALUATION.—The Secretary shall 14 conduct an independent biennial evaluation of programs 15 and policies to combat bullying and harassment in elemen- 16 tary schools and secondary schools, including implementa- 17 tion of the requirements described in section 4702, includ- 18 ing whether such requirements have appreciably reduced 19 the level of the prohibited conduct and have conducted ef- 20 fective parent involvement and programs that train cov- 21 ered school employees how to identify and stop bullying 22 and harassment, as those terms are defined in section 23 4702. 24 ‘‘(b) DATA COLLECTION.—The Commissioner for 25 Education Statistics shall collect data from States, that 26 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00057 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 58 •HR 5331 IH are subject to independent review, to determine the inci- 1 dence and frequency of conduct prohibited by the policies 2 described in section 4702. 3 ‘‘(c) BIENNIAL REPORT.—Not later than January 1 4 of the first calendar year that begins after the effective 5 date of this section and every 2 years thereafter, the Sec- 6 retary shall submit to the President and Congress a report 7 on the findings of the evaluation conducted under sub- 8 section (a) together with the data collected under sub- 9 section (b) and data submitted by the States under section 10 4703. 11 ‘‘SEC. 4705. EFFECT ON OTHER LAWS. 12 ‘‘(a) FEDERAL AND STATE NONDISCRIMINATION 13 LAWS.—Nothing in this part shall be construed to invali- 14 date or limit rights, remedies, procedures, or legal stand- 15 ards available to victims of discrimination under any other 16 Federal law or law of a State or political subdivision of 17 a State, including title VI of the Civil Rights Act of 1964 18 (42 U.S.C. 2000d et seq.), title IX of the Education 19 Amendments of 1972 (20 U.S.C. 1681 et seq.), section 20 504 or 505 of the Rehabilitation Act of 1973 (29 U.S.C. 21 794, 794a), or the Americans with Disabilities Act of 1990 22 (42 U.S.C. 12101 et seq.). The obligations imposed by this 23 part are in addition to those imposed by title VI of the 24 Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00058 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 59 •HR 5331 IH IX of the Education Amendments of 1972 (20 U.S.C. 1 1681 et seq.), section 504 of the Rehabilitation Act of 2 1973 (29 U.S.C. 794), and the Americans with Disabil- 3 ities Act of 1990 (42 U.S.C. 12101 et seq.). 4 ‘‘(b) FREE SPEECH AND EXPRESSION.—Nothing in 5 this part shall be construed to deny any student a right 6 of free speech, assembly, or expression protected under the 7 Constitution or any other Federal law, or to permit unlaw- 8 ful viewpoint discrimination. No policy established under 9 this part may prevent or punish a student’s expression of 10 religious, political, or philosophical beliefs in the classroom 11 or at school activities when such expression takes place 12 on equal terms with similar expressions of belief allowed 13 by the school in the same setting. 14 ‘‘SEC. 4706. RULE OF CONSTRUCTION. 15 ‘‘Nothing in this part shall be construed to prohibit 16 a State or local entity from enacting any law with respect 17 to the prevention of bullying or harassment of students 18 that is not inconsistent with this part.’’. 19 SEC. 7. PROHIBITION ON RETALIATION AND UNEQUAL 20 TREATMENT. 21 Title XI of the Civil Rights Act of 1964 (42 U.S.C. 22 2000h et seq.) is amended by adding at the end the fol- 23 lowing: 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00059 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 60 •HR 5331 IH ‘‘SEC. 1107. NONRETALIATION. 1 ‘‘(a) IN GENERAL.— 2 ‘‘(1) No government shall take any adverse ac- 3 tion because of— 4 ‘‘(A) the existence or invocation of any ex- 5 emption, defense, or remedy under this Act; or 6 ‘‘(B) the existence or invocation of any 7 protection from discrimination under this Act. 8 ‘‘(2) Nothing in this subsection shall be con- 9 strued to invalidate or supersede a law without evi- 10 dence that it was enacted, enforced, or administered 11 for reasons prohibited by paragraph (1). 12 ‘‘(b) PROHIBITION ON CERTAIN GOVERNMENT AC- 13 TIONS.— 14 ‘‘(1) PERSONS PROTECTED FROM DISCRIMINA- 15 TION.—No government shall take any adverse action 16 that, as applied, conflicts with any protection from 17 discrimination under this Act. 18 ‘‘(2) CERTAIN RELIGIOUS PROPERTIES AND RE- 19 LIGIOUS EMPLOYERS.— 20 ‘‘(A) No government shall take any ad- 21 verse action that, as applied, is inconsistent 22 with the exemptions under section 201(b)(11). 23 ‘‘(B) No government shall take any ad- 24 verse action that, as applied, abridges the ex- 25 emptions provided under section 702(a)(2)(B). 26 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00060 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 61 •HR 5331 IH ‘‘(C) Nothing in this subsection shall be 1 construed to invalidate any other law that oth- 2 erwise applies to a religious property exempt 3 under section 201(b)(11) or a religious em- 4 ployer exempt under section 702(a)(2)(B). 5 ‘‘(3) ADOPTION AND FOSTER CARE FUNDING, 6 LICENSURE, AND CERTIFICATION.—No State shall 7 enforce a law with respect to a particular contract, 8 cooperative agreement, grant, guarantee, or benefit 9 if that law, as applied, abridges any right or benefit 10 under section 610, unless the State demonstrates 11 that the contract, cooperative agreement, grant, 12 guarantee, or benefit is solely funded by revenues of 13 a State or political subdivision thereof. A State or 14 its political subdivision may commingle its revenues 15 with Federal financial assistance for the purpose of 16 providing financial aid to adoption agencies; such 17 commingled revenues shall be deemed Federal finan- 18 cial assistance. No government may deny, withhold, 19 or suspend the license or certification of a religiously 20 affiliated adoption or foster care agency because of 21 its religious teachings or practices, provided that the 22 agency complies with generally applicable health and 23 safety standards. 24 ‘‘(c) RELIGIOUS EDUCATIONAL INSTITUTIONS.— 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00061 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 62 •HR 5331 IH ‘‘(1) NO ADVERSE ACTION FOR RELIGIOUS MIS- 1 SION.—No government shall take any adverse action 2 against a religious educational institution, its fac- 3 ulty, students, or graduates because of its religious 4 mission. 5 ‘‘(2) ACCREDITATION.—No accrediting agency 6 shall take an adverse action against a religious edu- 7 cational institution for noncompliance with an ac- 8 creditation standard that would require the institu- 9 tion to act inconsistently with its religious mission 10 as related to marriage, family, sexuality, or gender 11 identity, except as these matters pertain to race, 12 color, or national origin. Nothing in this provision 13 shall be interpreted to deny an accrediting agency 14 the authority under section 496(a) of the Higher 15 Education Act (20 U.S.C. 1099b(a)) to take action 16 necessary to ensure that the courses or programs of 17 instruction, training, or study offered by an institu- 18 tion of higher education are of sufficient quality to 19 achieve the stated objective for which the courses or 20 the programs are offered. An accrediting agency 21 does not demonstrate that its adverse action against 22 a religious educational institution is authorized 23 under section 1099b(a) merely by showing that the 24 action results from a rule of general applicability. 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00062 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 63 •HR 5331 IH ‘‘(3) REMEDIES.—A religious educational insti- 1 tution harmed by a violation of this subsection may 2 obtain injunctive relief against the responsible ac- 3 crediting agency. Upon receiving a copy of such an 4 injunction, the Department of Education shall deem 5 the affected religious educational institution as ac- 6 credited for all purposes under Federal law. The De- 7 partment shall deny recognition for any purpose to 8 an accrediting agency that knowingly violates this 9 subsection. An accrediting agency that loses its gov- 10 ernment recognition may apply with the Department 11 to restore its recognition if the agency demonstrates 12 that the violation resulted from mistake or inadvert- 13 ence. Within two years of the enactment of this Act, 14 the Department shall issue final rules prescribing 15 the procedures governing this section. 16 ‘‘(d) NO RELIGIOUS TESTS.—No government shall— 17 ‘‘(1) exclude a person from an occupation by 18 depriving a person of professional credentials or im- 19 posing a fine or penalty, including through a private 20 right of action, because of the person’s religious be- 21 liefs or affiliations, provided that the person other- 22 wise complies with occupational or professional 23 standards that, in purpose and effect, are neutral to- 24 ward religion and generally applicable; or 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00063 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 64 •HR 5331 IH ‘‘(2) determine eligibility for public office be- 1 cause of religious beliefs or affiliations. 2 ‘‘(e) SCOPE OF APPLICATION.—Subsections (a) 3 through (d) apply in any case in which— 4 ‘‘(1) section 5 of the Fourteenth Amendment to 5 the Constitution of the United States grants law- 6 making power to Congress; 7 ‘‘(2) action by a government or an accrediting 8 agency would affect commerce with foreign nations, 9 among the several States, or with Indian Tribes; 10 ‘‘(3) a State or political subdivision receives 11 Federal financial assistance, to the full extent per- 12 mitted by Congress’ authority under the Spending 13 Power in article I, section 8 of the Constitution; 14 ‘‘(4) Congress has power under the Necessary 15 and Proper Clause of article I, section 8 to effec- 16 tuate the exercise of its enumerated powers; or 17 ‘‘(5) the Constitution grants Congress any 18 other lawmaking power. 19 ‘‘(f) JUDICIAL RELIEF.— 20 ‘‘(1) CAUSE OF ACTION.—A person or organiza- 21 tion may assert an actual violation of this section, 22 or a credible threat of such a violation, as a claim 23 or defense in a judicial, administrative, or arbitra- 24 tion proceeding and obtain appropriate relief against 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00064 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 65 •HR 5331 IH a government or accrediting agency, including attor- 1 neys’ fees. A State shall not be immune under the 2 Eleventh Amendment to the Constitution of the 3 United States from a claim under this section. 4 ‘‘(2) REMOVAL.—Any proceeding brought in a 5 State court for which a claimant invokes this section 6 as a claim, counterclaim, or defense may be removed 7 by the claimant to the district court of the United 8 States for the district and division embracing the 9 place where such action is pending. 10 ‘‘(g) DEFINITIONS.—In section 1107: 11 ‘‘(1) The term ‘abridges’ means to diminish, 12 burden, hinder, or obstruct. 13 ‘‘(2) The term ‘accreditation’ means the status 14 of public recognition that an accrediting agency 15 grants to an educational institution or program that 16 meets the agency’s standards and requirements. 17 ‘‘(3) The term ‘accrediting agency’ means a 18 legal entity, or part of a legal entity, that conducts 19 accrediting activities through voluntary, non-Federal 20 peer review and makes decisions concerning the ac- 21 creditation or preaccreditation status of institutions, 22 programs, or both. 23 ‘‘(4) The term ‘adverse action’ includes action 24 that suspends, revokes, or withholds licenses, per- 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00065 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 66 •HR 5331 IH mits, certifications, professional credentials, guaran- 1 tees, contracts, or cooperative agreements; denies or 2 revokes scholarships, grants, loans, a tax exemption 3 or tax-exempt status; denies access to government- 4 sponsored facilities, activities, or programs; or that 5 imposes any other penalty or denies an otherwise 6 available benefit. Except for a violation of subsection 7 (a)(1) of this section, adverse action does not include 8 a State’s refusal to subsidize contracts, grants, 9 loans, or cooperative agreements with exclusively 10 State revenues because of noncompliance with State 11 standards that, in purpose and effect, are neutral to- 12 ward religion and generally applicable. Commingled 13 State and Federal revenues shall be deemed Federal 14 revenues. Adverse action does include suspending, 15 revoking, or withholding scholarships, grants, and 16 loans, or access to government-sponsored facilities, 17 activities, or programs to qualified students or grad- 18 uates of religious educational institutions, notwith- 19 standing that the scholarships, grants, loans, facili- 20 ties, activities, or programs are funded with State 21 revenues. 22 ‘‘(5) The term ‘government’ means— 23 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00066 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 67 •HR 5331 IH ‘‘(A) a State, county, municipality, or 1 other government entity created under the au- 2 thority of a State; 3 ‘‘(B) any branch, department, agency, in- 4 strumentality, or official of an entity listed in 5 subsection (g)(5)(A); 6 ‘‘(C) any other person acting under color 7 of State law; and 8 ‘‘(D) the United States, a branch, depart- 9 ment, agency, instrumentality, or official of the 10 United States, and any other person acting 11 under color of Federal law. 12 ‘‘(6) The terms ‘religion’ and ‘religious’ include 13 all aspects of religious belief, observance, and prac- 14 tice, whether or not compelled by, or central to, a 15 system of religion. 16 ‘‘(7) The term ‘religious corporation, associa- 17 tion, educational institution, or society’ include— 18 ‘‘(A) a church, synagogue, mosque, temple, 19 or other house of worship; 20 ‘‘(B) a nonprofit corporation, association, 21 educational institution, society, or other non- 22 profit entity that is, in whole or in substantial 23 part, owned, supported, controlled, or managed 24 by a particular religion or by a particular 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00067 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 68 •HR 5331 IH church, denomination, convention, or associa- 1 tion of churches or other houses of worship; or 2 ‘‘(C) a nonprofit corporation, association, 3 educational institution, society, or other non- 4 profit entity that holds itself out to the public 5 as substantially religious, has as its stated pur- 6 pose in its organic documents that it is reli- 7 gious, and is substantially religious in its cur- 8 rent operations. 9 ‘‘(8) The term ‘religious educational institution’ 10 means any organization covered by section 11 703(e)(2). 12 ‘‘(9) The term ‘religious mission’ includes reli- 13 gious affiliation, religious tenets, religious teachings, 14 and religious standards, including policies or deci- 15 sions related to such affiliation, tenets, teachings, or 16 standards with respect to housing, employment, cur- 17 riculum, self-governance, or student admission, con- 18 tinuing enrollment, or graduation. 19 ‘‘(h) CONSTRUCTION.—This section shall supersede 20 State or local law as provided for expressly herein. Noth- 21 ing contained in section 1107 shall be construed as indi- 22 cating an intent on the part of Congress to occupy the 23 field in which this Act operates to the exclusion of State 24 or local laws on the same subject matter.’’. 25 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00068 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 69 •HR 5331 IH SEC. 8. PRESERVATION OF TAX-EXEMPT STATUS. 1 Section 501(c)(3) of the Internal Revenue Code (26 2 U.S.C. 1 et seq.) is amended— 3 (1) by inserting ‘‘(A)’’ before ‘‘Corporations, 4 and community chest . . .’’; and 5 (2) by adding at the end the following: 6 ‘‘(B)(i) For purposes of Federal law, any deter- 7 mination whether an organization is organized or op- 8 erated exclusively for religious, charitable, scientific, 9 literary, or educational purposes or complies with 10 legal standards of charity shall be made without re- 11 gard to the organization’s religious beliefs or prac- 12 tices concerning marriage, family, or sexuality, ex- 13 cept insofar as such practices pertain to race or 14 criminal sexual offenses punishable under constitu- 15 tionally valid Federal or State law. 16 ‘‘(ii) As used in subsection (B)(i), the term ‘re- 17 ligious’ includes all aspects of religious belief, ob- 18 servance, and practice, whether or not compelled by, 19 or central to, a system of religion.’’. 20 SEC. 9. SEVERABILITY. 21 If any provision of this Act, or the application of any 22 provision to any individual or circumstance, is held to be 23 invalid, the remainder of this Act and the application of 24 VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00069 Fmt 6652 Sfmt 6201 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS 70 •HR 5331 IH its other provisions to any other individuals or cir- 1 cumstances shall not be affected thereby. 2 Æ VerDate Sep 11 2014 02:14 Dec 12, 2019 Jkt 099200 PO 00000 Frm 00070 Fmt 6652 Sfmt 6301 E:\BILLS\H5331.IH H5331 pamtmann on DSKBC07HB2PROD with BILLS