This is a copy of the article on ENDA that will run in tomorrow’s issue of Colorez!, southern Arizona’s GLBTS newsmagazine. Props to ENDAblog contributor justkelly, from whom I stole the headline pun that was just too good to not steal.
The Never-ENDA Story: the Baldwin Amendment, a Veto Threat, and Another Delay
By Kynn Bartlett
The Employment Non-Discrimination Act, a landmark civil rights law designed to protect GLBT employees from workplace discrimination, is stalled again after a tumultuous fortnight of political wrangling — and some GLBT-community in-fighting.
As reported in the Oct. 11 issue of Colorez!, Rep. Barney Frank, D-Mass., and Speaker of the House Nancy Pelosi, D-Calif., conducted a “whip count” of the Democratic members of the House and found there were not enough votes to pass ENDA with gender identity protections included. There were, Frank said, enough Democratic votes to overcome Republican opposition if gender identity language were removed from the bill; ENDA would pass the House if it only provided protection based on sexual orientation.
“I am convinced that we have the votes to pass in this House a bill that has been the number one goal of the gay and lesbian and bisexual community and our allies for many years, a bill to ban discrimination based on employment,” said Frank on Oct. 10, in a speech on the floor of the House. “I think it will be an extraordinarily good thing for America if we are able to do that.”
Frank introduced H.R. 3685, a revised version of ENDA that addresses sexual orientation, and H.R. 3686, a version only for gender identity. These bills were designed to replace Frank’s H.R. 2015, the version of ENDA introduced in April 2007, which included gender identity for the first time since federal legislation establishing protection from workplace discrimination was first proposed in 1974.
Lambda Legal, in a joint statement with the American Civil Liberties Union, the National Center for Lesbian Rights, Gay & Lesbian Advocates & Defenders and the Transgender Law Center, analyzed H.R. 3685 and found that the revised version of ENDA failed to adequately protect even gay and lesbian employees from workplace discrimination, not to mention transgender employees.
“Lesbians, gay men and bisexuals need adequate protection against discrimination based on gender nonconformity – as well as sexual orientation – for two reasons,” Lambda Legal wrote in an Oct. 16 statement. “First, many lesbians, gay men and bisexuals do not conform to gender stereotypes. Certainly not all, but many appear or have mannerisms or other characteristics that at least are perceived as different from some people’s stereotypes of what a ‘real’ man or woman should be like.”
Second, lawyers for employers who discriminate against employees based on factors such as race or disability will often claim they are doing so on legally solid ground, Lambda Legal wrote.
“We fear that, even when a lesbian, gay man or bisexual has been discriminated against based on sexual orientation and not gender nonconformity, those lawyers will argue that what was going on was actually discrimination based on gender identity and expression, which makes it very important to have a law that does not permit that dodge,” Lambda Legal wrote.
In addition to the removal of gender identity from H.R. 3685, the new version of ENDA also has changes in the exceptions granted to religious organizations. Under H.R. 2105, the bill granted exceptions to “a religious corporation, association, educational institution, or society which has as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief.” Religious groups which don’t fit that first description were exempt for jobs that involve teaching or other religious leadership.
H.R. 3685, on the other hand, states simply that “This Act shall not apply to a religious organization.” A religious organization is defined as “a religious corporation, association, or society” or a school run for religious education purposes.
These exemptions were apparently added at the request of religious groups who met with Congressional Democrats.
“The religious exemption in the ENDA legislation scheduled for floor consideration this week was negotiated with several of the nation’s leading religious organizations, including the U.S. Conference of Catholic Bishops and the Union of Orthodox Jewish Congregations,” wrote Rep. George Miller, D-Calif., chairman of the House Education and Labor Committee, in a statement released on Oct. 23.
Leading GLBT organizations — including the National Gay and Lesbian Task Force, PFLAG, National Stonewall Democrats, Transgender Legal Defense and Education Fund, TransYouth Family Advocates, Equality Arizona, and Wingspan — continue to oppose passing a version of ENDA without gender identity included.
“In an unprecedented act, Congressional leadership is moving forward to pass civil rights legislation that is not supported by a single organization within the LGBT community that the bill is intended to protect,” wrote Barbara McCullough-Jones, executive director of Equality Arizona, in an Oct. 15 email message to Equality Arizona supporters.
Despite the opposition of more than 300 national, state, and local organizations, the House leadership scheduled a committee hearing on H.R. 3685 — ENDA sans gender identity — for Oct. 18. The United ENDA coalition (www.unitedenda.org) urged their supporters to ask members of the Education and Labor Committee to reject H.R. 3685 and instead approve the more inclusive H.R. 2015.
On Oct. 16, Rep. Tammy Baldwin, D-Wisc. — Congress’s only openly lesbian member — announced that she would introduce an amendment to H.R. 3685, when it reached the floor of the House, to add gender identity to the bill. United ENDA issued a statement supporting the Baldwin amendment, as it would come to be known.
“Clearly, our preferred strategy is to pass the original ENDA (H.R. 2015) out of committee,” United ENDA wrote in a statement. “However, if we are faced with a non-inclusive bill following the committee vote, we will work with Congresswoman Baldwin to repair ENDA to include protections on the basis of gender identity.”
The committee vote on H.R. 3685 passed 27 to 21 to approve the bill for consideration by the whole House, in a vote that was mainly along party lines, although four Republicans voted in favor of the bill. Four Democrats — Rep. Yvette Clarke, D-NY, Rep. Rush Holt, D-NJ, Rep. Dennis Kucinich, D-Ohio, and Rep. Linda Sanchez, D-Calif. — voted against the bill because it did not include gender identity.
Rep. Raul Grijalva, D-Tucson and a member of the Education and Labor committee, voted in favor of H.R. 3685, although he has stated that he supports the inclusion of gender identity in the final form of the bill.
“Raul voted for the ENDA bill in committee to get it out of committee and onto the House floor. He actually does not support it in its current form because it does not include transgendered people, only gays and lesbians,” wrote a Grijalva spokesperson in response to a question from a transgender rights supporter that was published on the Southern Arizona Gender Alliance mailing list.
Grijalva supports the Baldwin amendment, the email said.
“If the amendment succeeds, Raul will support the amended bill. If the amendment fails, Raul will vote against this ENDA bill,” wrote Keith Bagwell.
Frank, despite being opposed to bringing H.R. 2015 to a vote, has publicly supported the Baldwin amendment.
“I will on the floor of the House be repeating essentially the arguments in favor of transgender inclusion which I made in the September 5 hearing, because we will now be able to do that in a procedural setting that allows us to maximize support for an inclusive bill without endangering our chances of getting any bill at all,” he wrote in an Oct. 19 press release.
Having passed the hurdle of committee approval, H.R. 3685 was scheduled for a vote on Oct. 24; supporters of the more inclusive ENDA pushed for the Baldwin amendment as the last opportunity to add gender identity to the bill before the House vote.
On Oct. 23, prompted by conservative religious groups, the White House issued a statement of administration policy that spelled out the George W. Bush administration’s objections to H.R. 3685.
“The bill raises concerns on constitutional and policy grounds, and if H.R. 3685 were presented to the President, his senior advisors would recommend that he veto the bill,” wrote the administration. “H.R. 3685 is inconsistent with the right to the free exercise of religion as codified by Congress in the Religious Freedom Restoration Act (RFRA).”
The same day, House Democrats decided to delay the H.R. 3685 vote for at least a week, according to news reports. Democratic spokespeople denied that the rescheduling was related to the Bush veto threat.
The delay does give more time for lobby for full inclusion via the Baldwin amendment, and GLBT civil rights activists are happy to have more time to make their case.
“This gives us more time to do our work, and we’ve got a lot of persuading to do,” said Miki Odawa of Wingspan’s Southern Arizona Gender Alliance. “There are a lot of congresspeople who need to know that they have GLBT people in their districts, and there’s a lot of congresspeople who need to know — even if they know that they have GLBT people in their district — that 3685 without the Baldwin amendment is not worth anything.”
Odawa said the unified response of most leading GLBT organizations shows that the community stands together.
“We are standing strong,” she said. “We’ve got over 300 organizations who are absolutely united. GLBT is one integral whole, and you can’t split some of us off and get us fighting against each other.”