Sen. Al Franken standing next to a picture of Justin Aaberg on the Senate floor
Sen. Al Franken standing next to a picture of Justin Aaberg on the Senate floor

The United States Senate blocked an amendment offered by Sen. Al Franken, a Democrat from Minnesota, that would have added sexual orientation and gender identity to federal education civil rights law. The vote needed 60 votes to be added to the Elementary and Secondary Education Act reauthorization bill. It only garnered 52 votes.

Franken offered the amendment on Monday, and spoke form the Senate floor about its importance.

The Student Nondiscrimination Act, Franken said, “takes the same protections that children have against discrimination in the basis of race and national origin and gender and disability and extends those protections to lesbian, gay, bisexual, and transgender children. LGBT children. That’s it. It’s a simple bill. It stands for the principle that LGBT kids have a right not to be bullied just because of who they are.”

Franken gave his colleagues some practical examples of how the law would work.

“If a principal tells a girl that she can’t go to her senior prom because she wants to bring another girl as her date, or if a school just stands by as teachers students and other administrators refer to a transgender child not as ‘he’ or ‘she’ but as ‘it,’ there is no law that is written to protect those children,” he said. “Our laws fail those children and that is just wrong but we can change that.”

Franken told the stories of three students who lost their struggle with bullying, harassment and discrimination, including Anoka-Hennepin School District student Justin Aaberg who took his own life in 2010.

“[The amendment] says that school would have to listen when a parent calls and says, ‘My child isn’t safe,’ and that the school has to do something about it,” he said. “This is not a revolutionary idea… In fact, more than a dozen states have already passed laws that protect students from discrimination based on sexual orientation and gender identity, and it is working: In states that have protections for sexual orientation and gender identity in schools, LGBT students report nearly one-third fewer instances of physical harassment and nearly half as many instances of physical assault as in states lacking these protections.”

Several senators rose in support of Franken’s amendment, including Sen. Tammy Baldwin, a Democrat from Wisconsin.

“Unfortunately, there are still far too many stories of harassment or bullying and discrimination against lesbian, gay, bisexual, and transgender students at the hands of their peers but also sadly sometimes at the hands of their teachers or administrators as well,” Baldwin said. “There remains no federal law that explicitly protects these students and provides them and their families recourse when they face bullying that limits their educational opportunities. No student can achieve if he cannot feel safe at school. No student will excel if she spends each day in fear of just being herself.”

No action was taken on the amendment on Monday, so the debate continued on Tuesday afternoon.

Sen. Patty Murray, a Democrat from Washington started the debate with remarks in support of the amendment.

“This amendment would offer LGBT students similar protections that currently exist for student who are bullied based on race or gender or religion or disability or country of national origin. So unless you think LGBT students don’t deserve protection from discrimination the way these other students do, this should be easy to support.”

Sen. Dick Durbin, a Democrat from Illinois, said that the amendment is part of the work still yet to be done following the legalization of same-sex marriage.

“A few weeks ago the Supreme Court had a historic decision when it came out stating same couples have the right to marry,” he said. “While this decision is a major historic achievement, there’s more that needs to be done. Students who are, or perceived to be, lesbian, gay, bisexual or transgender continue to face extraordinary discrimination. A recent survey showed that 85 percent of these students reported harassment. The survey also found these students didn’t perform well when they were subject to this harassment. That’s no surprise. Research also shows these teenagers are four times more likely to attempt suicide. 40 percent of the homeless students and children in america are LGBT. I support Sen. Franken’s amendment. Let’s end this discrimination.”

Franken gave one last appeal to his colleagues:
“Sometimes kids cannot endure the taunting,” Franken said, pointing to pictures behind him of three young people who took their own lives after being bullied. “These boys — 11 years old, 13, 15 — committed suicide because they were harassed relentlessly and they are just three of the many tragic cases, and in case after case the parents begged the schools to do something only to be ignored.

He added, “Our laws failed these children but we can change that. Think about the LGBT people you know: family, friends, staff. Now imagine them as children just beginning to discover who they are but doing so in the face of taunts and intimidation. You can’t get a good education if you dread going to school. My amendment just says that schools would have to listen when a parent says my kid isn’t safe and then do something about it.”

The only Republican to speak against the bill, Sen. Lamar Alexander, a Republican from Tennessee, is also the author of the larger education bill being discussed. He acknowledged an epidemic of bullying, but urged colleagues to vote against Franken’s amendment, in part because he was concerned it might lead to transgender-inclusive schools.

“I’m going to ask for a no vote on this amendment. There is no doubt that bullying or harassment of children based on actual or perceived sexual orientation or gender identity is a terrible problem and has become in some parts of our country an epidemic but the question is: Is this an argument that is best addressed to the local school board or to the state board of education or to a national school board in Washington, DC?”

Alexander claims that the Student Nondiscrimination Act would “substitute the judgment of Washington bureaucrats for” local school boards, teachers, and administrators and would “regulate and dictate local school gender identity policies such as those related to restrooms, sports teams, locker rooms and dress codes. It will lead to costly lawsuits.”

Franken countered:

“This isn’t about lawsuits. This is about schools doing the right thing,” he replied. “It’s the same protections granted to kids by virtue of their race. That wasn’t a local issue that was a federal right we had to pass. The same with Title IX for girls. That’s why we just won the World Cup. This is the right thing to do. We are adults here. Let’s protect children. This is not about lawsuits, it’s about adults, about a parent calling the principal saying my kid is being harassed and then the principal will do something because they aren’t in may many cases.”

The Senate then took a vote on the amendment which failed to get the 60 votes needed to pass. All Democrats voted for the amendment and were joined by 7 Republicans and one independent. Those who voted for the bill include:

Ayotte (R-NH)
Baldwin (D-WI)
Bennet (D-CO)
Blumenthal (D-CT)
Booker (D-NJ)
Boxer (D-CA)
Brown (D-OH)
Cantwell (D-WA)
Cardin (D-MD)
Carper (D-DE)
Casey (D-PA)
Collins (R-ME)
Coons (D-DE)
Donnelly (D-IN)
Durbin (D-IL)
Feinstein (D-CA)
Franken (D-MN)
Gillibrand (D-NY)
Heinrich (D-NM)
Heitkamp (D-ND)
Heller (R-NV)
Hirono (D-HI)
Johnson (R-WI)
Kaine (D-VA)
King (I-ME)
Kirk (R-IL)
Klobuchar (D-MN)
Leahy (D-VT)
Manchin (D-WV)
Markey (D-MA)
McCaskill (D-MO)
Menendez (D-NJ)
Merkley (D-OR)
Mikulski (D-MD)
Murkowski (R-AK)
Murphy (D-CT)
Murray (D-WA)
Peters (D-MI)
Portman (R-OH)
Reed (D-RI)
Reid (D-NV)
Sanders (I-VT)
Schatz (D-HI)
Schumer (D-NY)
Shaheen (D-NH)
Stabenow (D-MI)
Tester (D-MT)
Udall (D-NM)
Warner (D-VA)
Warren (D-MA)
Whitehouse (D-RI)
Wyden (D-OR)

Voting against the amendment:
Alexander (R-TN)
Barrasso (R-WY)
Blunt (R-MO)
Boozman (R-AR)
Burr (R-NC)
Capito (R-WV)
Cassidy (R-LA)
Coats (R-IN)
Cochran (R-MS)
Corker (R-TN)
Cornyn (R-TX)
Cotton (R-AR)
Crapo (R-ID)
Cruz (R-TX)
Daines (R-MT) Enzi (R-WY)
Ernst (R-IA)
Fischer (R-NE)
Flake (R-AZ)
Gardner (R-CO)
Grassley (R-IA)
Hatch (R-UT)
Hoeven (R-ND)
Inhofe (R-OK)
Isakson (R-GA)
Lankford (R-OK)
Lee (R-UT)
McCain (R-AZ)
McConnell (R-KY)
Moran (R-KS) Paul (R-KY)
Perdue (R-GA)
Risch (R-ID)
Roberts (R-KS)
Rounds (R-SD)
Sasse (R-NE)
Scott (R-SC)
Sessions (R-AL)
Shelby (R-AL)
Sullivan (R-AK)
Thune (R-SD)
Tillis (R-NC)
Toomey (R-PA)
Vitter (R-LA)
Wicker (R-MS)

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Andy Birkey
Andy Birkey has written for a number of Minnesota and national publications. He founded Eleventh Avenue South which ran from 2002-2011, wrote for the Minnesota Independent from 2006-2011, the American Independent from 2010-2013. His writing has appeared in The Advocate, The Star Tribune, The Huffington Post, Salon, Cagle News Service, Twin Cities Daily Planet, TheUptake, Vita.mn and much more. His writing on LGBT issues, the religious right and social justice has won awards including Best Beat Reporting by the Online News Association, Best Series by the Minnesota chapter of the Society of Professional Journalists, and an honorable mention by the Sex-Positive Journalism awards.

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