ENDA: Lost, pending, or obsolete?

Barney Frank

First of two parts

Did Democrats squander an opportunity to pass the Employment Non-Discrimination Act (ENDA) last year? Should they even bother to re-introduce the bill this year? And does a bill like ENDA, focused only on workplace discrimination, still make sense?

The answers to those three questions—for those readers who have reached their word-consumption threshold—are “not if you’re assessing the real-world prospects,” “yes,” and “maybe.”

A closer study finds the political reality for ENDA in the 111th Congress was one with sharp edges, blurs of movement, and obscured details. Yes, the votes were probably there in the House, but the votes in the Senate—as demonstrated by two failed attempts to repeal Don’t Ask, Don’t Tell—were unpredictable. The Democratic majority in the both chambers was losing power, and nobody knew for sure what hostile language Republicans might push in a last-ditch attempt to kill ENDA. They just knew they’d try something.

Still, it troubled some people recently when a legislative aide to U.S. Rep. Barney Frank, Diego Sanchez, told a “virtual forum” sponsored by eQuality Giving that the votes were there in the House to pass ENDA and to defeat any Republican attempt to kill the measure with some heinous “motion to recommit.”

Sanchez made his remarks in response to a question from a listener who asked for the “true reasons” why ENDA was not put up for a vote last year.

“The thing that breaks my heart the most,” responded Sanchez, “is that we did have the votes this time.”

Actually, ENDA has had the votes to pass before. In 1996, it came one vote shy of passing the Senate. In 2007, it passed the House on a vote of 235 to 184. But both of those bills prohibited discrimination based on sexual orientation only. And in between those two votes, the LGBT community grew to need more. It came to need both “sexual orientation and gender identity” to protect transgender people and to protect people who simply did not conform their outward appearance to that of the gender people perceived them to be.

So, in 2009, Rep. Frank introduced what is commonly referred to as a “fully inclusive ENDA”—a bill that seeks to prohibit discrimination based on “sexual orientation and gender identity.”

Both the House and Senate held committee hearings on the fully inclusive ENDA, but neither committee voted on the measure. And neither the House nor the Senate voted on the measure.

“ENDA didn’t come up because of two things, primarily,” said Sanchez. Those two things, he said, were health care reform and the “Don’t Ask Don’t Tell” repeal legislation. In other words, a two-year session of Congress lasts only two years and the hourglass ran out of sand before a very busy, ambitious, and contentious 111th Congress could get to everything on its to-do list.

Yes, Congress does tend to put off its more difficult battles until the end. To some extent, that’s human nature, and to some extent that’s because there’s always the hope—however remote—of trying to work something out between opposing sides.

But this wasn’t just another “thing” on the LGBT movement’s to-do list. Passage of ENDA has been the top legislative priority for the LGBT community for many years.

When first introduced, in 1974 by U.S. Rep. Bella Abzug (D-NY), it was a bill to prohibit discrimination based on sexual orientation in employment, housing, and public accommodations. By the mid-1990s, supporters decided to narrow the proposal to cover just employment discrimination. And ten years later, a movement had begun to add protection against discrimination based on gender identity.

With Democrats controlling a majority of both the House and the Senate, as well as the White House, the 111thCongress seemed to present ENDA with its best prospects ever for passage. In late 2009, the fully inclusive ENDA appeared to have the attention of Democratic leaders in the House. Health care reform took until March 2010 but, even as late as May 2010, then-House Speaker Nancy Pelosi was reassuring LGBT leaders that ENDA would get a vote in 2010.

Of course, the difference between a political promise and reality is political. Republicans waged an openly obstructionist campaign in the Senate on virtually all legislation, and they escalated that effort in both chambers after the GOP made strong gains in the 2010 mid-term elections. Suddenly, the hourglass on the 2009-10 Congressional session was nearly spent and, for the LGBT community, only repeal of Don’t Ask Don’t Tell got through before there came a new Congress and a new reality—Republicans took over control of the House.

Rep. Frank said, through a spokesman, that he was not “as confident as Diego [Sanchez] about whether we had the votes to pass a fully-inclusive ENDA.” For one thing, Democrats could not know for sure what sort of issue Republicans would raise in order to seek a motion to recommit the bill back to committee –a sort of back-handed way of killing a bill. Some Republicans had already started making noises about the bill enabling men to use women’s restrooms and potentially causing gender confusion issues for first-graders.

Such scare tactics tend to work on non-LGBT people who are not paying attention, but they are inane. Ask any heterosexual man interested in keeping his job whether he would like to wear a dress to work in order to use the women’s bathroom, and the response will likely be an incredulous guffaw. Employees who are upset that a transgender person is using the same restroom can often be accommodated through simple common sense adjustments, such as the timing of bathroom breaks.

There have been the rare occasions when a school employee has transitioned from one gender to another while retaining employment at the school.  Such was the case at an elementary school in a small town in Massachusetts, in 2008.  The school superintendant and principal sent a letter to parents at the beginning of the school year advising them that the school’s night custodian was changing his gender and would “begin living and working as a woman.”

“The custodial uniform is the same for men and women,” noted the August 2008 letter. “However, our students may notice and ask about the differences…. If they ask at school, they will be given a simple and straightforward answer. The best thing to tell them is that our custodian used to be a man. She has changed her gender role and is now a woman.”

“Whether or not one agrees with or supports the decision of our custodian,” concluded the letter, “it is important to note that the [school district] does not discriminate on the basis of race, color, sex, religion, national original, sexual orientation, or disability. We expect our custodian to be treated with the same respect as every other employee. We teach respect by demonstrating respectful behavior.”

The Massachusetts state law did not spell out “gender identity” in 2008, but in the above case, the school believed it had an obligation under existing law to treat the employee with respect. Massachusetts Governor Deval Patrick last week signed an executive order to prohibit discrimination against transgender people in state employment, and a bill to prohibit it more widely is under consideration in the state legislature.

That’s what ENDA seeks to encourage: that employers treat employees with respect. At its maximum strength, it would prohibit employers from taking adverse actions against an employee simply because the employer doesn’t like the employee’s sexual orientation (homosexual, heterosexual, or bisexual) or how the employee does or does not conform to common expressions of his or her gender.

Rep. Frank, along with Rep. Ileana Ros-Lehtinen (R-Fla.), introduced ENDA in the 111th Congress. Senators Jeff Merkley (D-Ore.) and Susan Collins (R-Maine) introduced the bill in that chamber. And Rep. Frank spokesman Harry Gural said Frank “did think it was worth the risk to put the bill to a vote” last year. They have not yet introduced it to the 112th Congress.

Should they bother introducing it again, now that the House is dominated by Republicans?

Yes, says Mara Keisling, head of the National Center for Transgender Equality. That’s because lobbyists and constituents trying to persuade legislators to support the measure are helped by having a specific, active bill to point talk about.

“But it needs to be the right bill,” said Keisling.

For Keisling, the right bill needs to be one that does not include the broad exemptions for religious institutions that the last ENDA did. And it would not include restrictions on bathroom usage by transgender people.

NCTE board member Stephen Glassman goes further. He told the  January 30 eQuality Giving forum he thinks it’s time to go back to the scope of the original gay civil rights bill—one that covered not only employment, but also housing and public accommodations.

“For a long time, I have thought that ENDA was not a sufficient bill,” said Glassman, who is chairman of Pennsylvania Human Relations Commission. “In fact, particularly when you’re talking about trans people, it is critically important to have housing protections and public accommodations protections as well.”

Support for that idea came just days later, February 4, when the NCTE and the National Gay and Lesbian Task Force (NGLTF) released the results of a comprehensive survey of more than 6,450 people who are either transgender or gender non-conforming.

The survey found that employment discrimination is pervasive against transgender and gender non-conforming people. Forty-seven percent had experienced some adverse action by their employer because of their gender identity or expression. But it also found high rates of discrimination in other arenas, such as public accommodations and housing. For instance, 53 percent of the survey group reported being verbally harassed or disrespected in a place of public accommodation, such as a hotel, restaurant, or airport. Nineteen percent said they were refused medical care. And 19 percent had been refused housing.

A report by Lee Badgett for the Williams Institute in 2009 found that 15 studies conducted since the mid-1990s showed between 15 percent and 43 percent of lesbian, gay, or bisexual respondents had experienced discrimination in the workplace due to their sexual orientation. Six studies between 1996 and 2006 found 20 percent to 57 percent of transgender people experienced discrimination at work.

Keisling agrees it’s important to seek protection in all three arenas, but she said, “That doesn’t mean [one bill] is the way to do it.”

Keisling notes that there were three bills introduced in the last Congress that sought to prohibit sexual orientation and gender identity discrimination in housing.

“But it is worth having a community conservation about,” said Keisling. “It’s worth having a conversation within the community and with our Congressional allies. We should be having that conversation.”

Keisling said she would also expect there would be people who would say, ‘We couldn’t pass ENDA with just employment, why should we be adding even more weights to it?’”

“But we’re not trying to pass only what we can pass this year,” said Keisling. “We need to be thinking about what we need to pass, what we can pass in two years, or four or six or eight years.”

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