ENDA has the votes, but does it have the priority?

Supporters of the Employment Non-Discrimination Act (ENDA) say they have the votes to pass the bill, they are just waiting for the Democratic leadership to call the bill to the floor. But the leadership has grown quiet.

Mara Keisling
Mara Keisling

Some LGBT activists say the votes are there to pass the Employment Non-Discrimination Act (ENDA) and they are just waiting for the Democratic leadership to call the bill to the floor. But the leadership has grown quiet—no more regular expressions of optimism and predictions for when Congress will take up the bill, and the waiting game is wearing on nerves.

“The community and the movement have done everything we’ve been asked to do,” said Mara Keisling, executive director of the National Center for Transgender Equality, this week. NCTE is one of the key groups lobbying for the bill this session, taking the lead on the additional language that seeks to prohibit discrimination based on gender identity, as well as sexual orientation.

“We’ve worked and worked and gotten sufficient votes to make sure gender identity stays in the bill,” said Keisling, “but the bill is not being prioritized.”

Rea Carey, executive director of the National Gay and Lesbian Task Force, said, “We have heard that the official whip is completed and that there are enough votes to pass ENDA in committee and in the House, which tells us that our vigorous lobbying and grassroots engagement efforts are being effective.”

“Leadership needs to do the right thing, right now,” said Carey, “and schedule a markup and pass an inclusive ENDA.”

One of those leaders is Rep. Barney Frank (D-Mass.), the most veteran of Congress’ three openly gay representatives, chairman of the House’s influential Finance Committee, and sponsor of the bill. Through a spokesman, Frank had no new information this week about when a vote will happen but that the vote count is not a certain and unchanging thing.

“The whip count is ongoing. It’s not done,” said Frank spokesman Harry Gural on Friday. “There’s not a scoreboard up there and once you hit that number, you’re done. It’s got to be ongoing.”

“What we need is for everyone to be calling their rep—even if it’s a rep who has said he would vote for the bill,” said Gural. “Phone calls are effective and we need to make these phones ring off the hook.”

Frank introduced the bill, H.R. 3017, in June of last year and the House Committee on Education and Labor held a hearing on it last September. But a long-sought hate crimes bill got the nod last year; Democratic leadership attached it to the annual bill authorize spending by the Department of Defense. And an enormously contentious and time-consuming debate over health care reform kept most everything else off the table until March of this year.

After the health reform legislation passed and was signed into law in late March, Frank said the way was now cleared for the House to take up ENDA. He predicted then that a vote would likely come as soon as Congress returned from a spring recess—in early April. It is now mid-May. On May 10, Roll Call newspaper, specializing in coverage of Congressional legislation, reported that “senior Democratic aides and lawmakers” believe ENDA could be on the House floor this month.

One such aide told this reporter that Democratic leaders would likely be discussing timing next week and there should be “more clarity” on timing “by the end of this month.”

Meanwhile, the remaining days in which the House can vote on anything are ticking away—House Majority Leader Steny Hoyer’s legislative calendar shows a total of 48 full days for voting and 14 part days before adjournment and mid-term elections.

Roll Call ran two articles in late April suggesting support for ENDA has been suffering because some supporters of the legislation in 2007 are suddenly getting cold feet over the inclusion of gender identity protection in the bill this year. But Frank told Roll Call this week the provision will stay in the bill and that he’s still optimistic for passage.

Some LGBT activists expressed upset over Frank’s comments to Roll Call that the bill, in addressing the gender identity issue, does give employers the right to expect that employees have a “consistent gender presentation” before they can sue claiming gender identity discrimination.

“They can’t sit there with a full beard and a dress,” Frank told Roll Call. But NCTE said Frank’s comment was simply reiterating the current state of the law.

“Barney was not really saying anything new,” said NCTE legal counsel Harper Jean Tobin. “It was troubling to a lot of transpeople, but people forget that ENDA puts rules on employers, not employees. And most employers don’t have gender-based dress codes.”

So, if the votes are there and a vote has been promised, why hasn’t a vote happened yet?

People on the Hill who are close to the action offer several explanations, though none would do so with their name attached. One said Democratic leaders worry about a repeat of last week’s debacle on a bill to encourage homeowners to adopt energy-saving measures. The bill passed the House 246 to 161 but not before Republicans attached provisions that could prevent it from being successful. One amendment requires that it cannot go into effect unless supporters can prove that it will not add to the deficit. Another amendment requires that contractors participating in the program ensure that they do not have any sexual predators among their employees.

Conservative Republicans are almost certain to try similar amendments on ENDA, as well as an effort to recommit the bill to committee, as a way of thwarting it.

But Keisling said these types of efforts are simply part of the game in Congress and that she’s “extremely confident” the support is there to pass ENDA.

“It’s just a question of getting prioritization” from Democratic leaders, said Keisling. “I know they’re busy—I get it. But apparently we’re not being prioritized. . . . The clock is running out.”

Big push building for DADT, ENDA votes

It is the end of April. Spring has sprung and all hell is breaking out in Washington, D.C. Not wishing to be left behind in this biennial political morass, LGBT activists have stepped up their pleas to be heard.

pelosi_nancy
Nancy Pelosi

It is the end of April. Spring has sprung and all hell is breaking out in Washington, D.C.

There, Congress is racing through the final months of its 111th session, trying to fix everything from the nation’s financial system and the street policing of citizenship to climate change and next year’s budget. Around the corner awaits a soon-to-be-announced Supreme Court nominee and the contentious mid-term election campaigns.

Not wishing to be left behind in this biennial political morass, LGBT activists have stepped up their pleas to be heard. To push for repeal of the military’s “Don’t Ask, Don’t Tell” policy, a new activist group called GetEqual handcuffed six uniformed protesters to the fence in front of the White House this month. That was one day after the group staged a highly publicized interruption of President Obama’s speech in Los Angeles, beckoning him to make repeal happen.

On April 21, GetEqual interrupted a House committee hearing to demand a committee vote on the Employment Non-Discrimination Act (ENDA). That same day, more than 200 LGBT organizations of every size and scope signed onto a one-sentence “Statement to members of the United States Congress: Pass the Employment Non-Discrimination Act NOW.” Along with the expected national LGBT groups, the signers included the Massachusetts Lesbian & Gay Bar Association, the San Francisco LGBT Community Center, the Michigan AIDS Coalition, the Transgender Education Network of Texas, Atlanta Stonewall Democrats, Equality Illinois, Florida Together, the Freedom to Marry chapter of San Diego, and the L.A. Gay and Lesbian Center.

The following day, a panel of national LGBT leaders, participating in a live broadcast of the Michelangelo Signorile Show on SiriusXM radio, gave both President Obama and Congress failing grades on LGBT issues. (Where a “D” earns one point and an “A” earns four, President Obama scored 1.8 and Congress 1.5.)

This week, the Servicemembers Legal Defense Network (SLDN) launched a daily online open letter campaign aimed at illustrating the “personal stories on how this terrible law [DADT] has impacted them.” The effort is being magnified through the re-posting of letters by 16 different and well-established LGBT blogs.

Meanwhile, GetEqual was back on Capitol Hill, going door-to-door and politely distributing a toughly worded flyer to members of the Senate Armed Services Committee which states: “You’re Next! We demand ‘Don’t Ask, Don’t Tell’ be repealed now or you will become a target for non-violent direct action.”

With this sense of urgency, they face a Congress wrestling with an overload of legislative priorities, an obstructionist minority party, and a Democratic party skittish over its grasp on the majority. Thus, the LGBT community can be forgiven for reading too much or too little into a statement coming out of the office of House Speaker Nancy Pelosi (D-Calif.) on Monday.

That statement, reported in a blogpost by reporter Chris Johnson in the D.C. gay newspaper D.C. Agenda (which is re-assuming the name Washington Blade this week), quoted Pelosi’s press secretary, Drew Hammill, as saying: “It is the Speaker’s intention that a vote will be taken this year on [‘Don’t Ask, Don’t Tell’] in the House.”

In an interview with this reporter on Tuesday, Hammill made clear that he was not announcing any new commitment by the Speaker, only reiterating a “long-stated plan” for the bill.

And Diego Sanchez, a senior legislative advisor to Rep. Barney Frank (D-Mass.), said Frank has been urging activists to stop “armchair speculating” about when a vote will occur “and focus on getting the votes.”

Just getting a vote on DADT or ENDA will be a victory of sorts, but unless there are enough votes to pass either bill favorably and to sustain a victory on the floor, those votes could be for naught.

And there’s another complication, noted one senior Democratic aide: The House is getting a little frustrated with the Senate’s inaction on numerous bills passed by the House—more than 300 of them this session.

Joe Solmonese, president of the Human Rights Campaign, told the Signorile Show last week that his organization and others are focusing their lobby efforts in the senate. They are focused on six senators on the Senate Armed Services Committee: Jim Webb of Virginia, Bill Nelson of Florida, Ben Nelson of Nebraska, Robert Byrd of West Virginia, Evan Bayh of Indiana, and Scott Brown of Massachusetts.

Brown is the lone Republican among the group and the man who famously hobbled the Democratic majority in the Senate with his winning of the late Senator Ted Kennedy’s seat in January. MassEquality field operations manager Ryan Brown said his group has coordinated members to call Brown’s office to inquire about his position on DADT and, so far, have verified only that he has not taken a position.

“We’re taking that as a good sign,” said Brown, who is not related to the senator. Ryan Brown said the senator’s office has also agreed to “one meeting” between the senator’s staff and LGBT activists about DADT. MassEquality is pushing for that meeting prior to the May 11, the date for HRC ‘s large lobby day effort on Capitol Hill to push for DADT repeal.

Mara Keisling, executive director of the National Center for Transgender Equality, told the Signorile Show that she is still “very optimistic” ENDA will get its vote in committee in the next two weeks, but that “we have to be marching in the streets.”

And things are looking a little tough for ENDA these days. The right-wing has stepped up its rhetoric considerably in recent days, sounding an alarm.

An editorial in the conservative Washington Times in D.C. on April 23 said: “First-graders should not be forced into the classrooms of teachers undergoing sex changes. Religious broadcasters and faith-based summer camps should not be forced to hire cross-dressers. Women should not be forced to share bathrooms with people with male body parts who say they want to be females. Yet those are some of the likely results if Congress passes” ENDA, said the editorial.

The Capitol Hill newspaper Roll Call ran two articles on Monday reporting that support was slipping for ENDA because of the inclusion of gender identity in this year’s bill. Rep. Judy Biggert (R-Ill.), who voted for the “sexual orientation only” ENDA in 2007 said she’s now undecided and pointed to how the expansion of the law could affect schools as her concern. Ditto Rep. John Campbell (R-Calif.).

But the paper said at least some Republicans are staying onboard with their support, including Reps. Mary Bono Mack of California, Ileana Ros-Lehtinen of Florida, and Mark Kirk of Illinois.

But is it reasonable to expect both houses of Congress to take up both DADT and ENDA this year?

“It’s definitely possible,” said David Smith, HRC vice president of programs and a long-time legislative activist on Capitol Hill. “But is it going to be tough? On this issue, in this environment—yes.”

9th Circuit nominee grilled over Prop 8

The confirmation hearing Friday, April 16, for a well-known liberal nominee to a federal appeals court deteriorated quickly into a political battlefield. Republicans seemed intent on settling old scores.

Goodwin Liu
Goodwin Liu

The confirmation hearing Friday, April 16, for a well-known liberal nominee to a federal appeals court deteriorated quickly into a political battlefield. Republicans seemed intent on settling old scores—over Democratic passage of a major health reform law, gun control, and over the current nominee’s opposition to certain nominees of President Bush.

And Democrats seemed all too happy to trot out evidence that every weakness Republicans complained about in the nominee had been true of numerous Republican nominees who had been approved.

For his part, the nominee—Goodwin Liu of California—sought to distance himself from his many public statements in support of various liberal positions on a wide range of social issues.

Very soon along the way, Proposition 8 came up.

Senator Tom Coburn (R-Okla.) brought it up, noting that in Liu’s writings, the law professor had appeared to argue for the democratic process on some issues, like gun control, but against it on others, like same-sex marriage.

“Can you please explain why a court should consider the will of the majority as it is expressed through the legislative process when restricting gun rights but not when upholding the law protecting traditional marriage?” asked Coburn.

Liu suggested his legal position on Proposition 8 was mischaracterized. He said that, in October 2008—just before California voters passed Proposition 8 to ban same-sex marriage—he testified as a “neutral” legal scholar before a California legislative committee. And he said he told the legislature, “Proposition 8 should be upheld by the California Supreme Court.”

“Not struck down, but upheld by the California Supreme Court under existing precedents,” said Liu. “Despite whatever other views I might have had about Proposition 8 on the merits – my personal views, whatever, and even my legal views of the past—I testified before that committee that the California Supreme Court should uphold that proposition in deference to the democratic process.”

Coburn challenged Liu’s recollection, saying Liu had testified that the California Supreme Court “could” uphold the proposition, not that it “should,” as Liu recalled.

Inconsistency might be a polite word for Coburn’s own remarks. He arrived at the confirmation hearing late and, before posing the first question, told Liu he was sorry he had missed Liu’s opening statement. But, he added, “I’ve read it.” Liu had not made an opening statement.

Liu’s decision not to make an opening statement was a surprise to many.

“Oh, my goodness, that’s very unusual,” said an apparently startled Senator Dianne Feinstein (D-Calif.), who was acting as chair of the proceeding, even though Senate Judiciary Chairman Patrick Leahy was at the hearing.

Feinstein then, almost without missing a beat, posed the first question, tackling the recent news report that Senator Jeff Sessions (R-Ala.) was accusing Liu of deliberately withholding 117 documents from the committee.

Every judicial nominee fills out a lengthy questionnaire to provide a great deal of information to the Senate Judiciary Committee, including a list of all “published writings and public statements.”

Liu acknowledged having provided an incomplete list and apologized for having to make a supplemental submission. (He did not offer any excuses, but parents watching the proceedings probably took note of the fact that his second child was born just four weeks ago.)

Liu said he “redoubled” his efforts to search for additional materials, including occasions on which he conducted brown bag lunch conversations as a law professor.

“I’m sorry that the list is long and I’m sorry that I missed things the first time,” said Liu. “For better, for worse, I’ve lived most of my professional life in public and my record is an open book. I absolutely have no intention, and frankly no ability, to conceal things I’ve said, written or done.”

But Sessions implied that Liu’s failure was deliberate. And Senator John Cornyn (R-Tex) echoed Sessions complaint, saying he was concerned with Liu’s “sloppiness” in his response to the questionnaire and implying that it rose to the level of contempt.

The attacks rang hollow some minutes later when Senator Feinstein noted that Chief Justice John Roberts Jr. “failed to provide documentation for over 75 percent” of his speeches and writings and had to submit—not 117 but—15,000 supplemental documents “just four days before his confirmation hearings were scheduled to being.

Many of the Republican Senators seemed intent on grilling Liu over remarks he had made in opposing the nominations of both Roberts and Sam Alito—both appointees of Republican President George W. Bush.

In opposing Alito’s nomination, Liu had stated: “Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some. Mr. Chairman, I humbly submit that this is not the America we know. Nor is it the America we aspire to be.”

Senator Jon Kyl (R-Ariz.) these words, characterizing Alito’s various decisions, demonstrated that Liu lacked the “tempered language” of a judge. He said the critique amounted to a “vicious, emotionally and racially charged, very intemperate” attack on the nominee that “calls into question your ability to approach and characterize people’s positions in a fair and judicious way.”

Sessions accused Liu of advocating for unlimited power for the courts; Kyl accused him of advocating for unlimited power of the federal government.

Liu repeated that his personal views would not be part of his approach to an issue on the court. Although he did not discuss his personal views on Proposition 8 during the hearing, in one of many essays he has published in various newspapers and publications, Liu told the Los Angeles Times, “there is no question that [Proposition 8] targets a historically vulnerable group and eliminates a very important right.” He has predicted that same-sex marriage will eventually “become an unremarkable thread of our social fabric” and that those opposing it now will eventually be viewed as a “narrow and ultimately temporary majority.”

There is no date scheduled for the full Senate to take up Liu’s nomination but the aggressiveness of Republican opposition to Liu demonstrated at the confirmation hearing suggests a filibuster is likely.

President Obama nominated Liu, a professor of law at the University of California Berkeley School of Law, in February and his confirmation hearing has been delayed twice due to Republican opposition.

If confirmed, he would take a seat on the 9th Circuit U.S. Court of Appeals, which covers California and eight other western states. The American Bar Association gave him a “unanimously well-qualified” rating.

Feldblum sworn in to EEOC

Lesbian law professor Chai Feldblum was sworn in as one of five commissioners on the U.S. Equal Opportunity Commission (EEOC). President Obama nominated Feldblum in September and she was approved along with other EEOC nominees during a Senate committee vote in December. But a Republican senator put Feldblum’s nomination, along with others, on an indefinite hold.

Chai Feldblum
Chai Feldblum

Lesbian law professor Chai Feldblum was sworn in Wednesday as one of five commissioners on the U.S. Equal Opportunity Commission (EEOC).

President Obama nominated Feldblum in September and she was approved along with other EEOC nominees during a Senate committee vote in December. But a Republican senator, who chose not to identify himself or explain his reason, put Feldblum’s nomination, along with others, on an indefinite hold.

Senate rules enable any senator to delay a floor vote on any nomination and to do so without identifying himself for several days. But senators have been able to circumvent a rule that requires them to eventually identify themselves by taking turns putting a hold in place.

But rules also enable a president to get around such obstacles by putting nominees into office during a Congressional recess. President Obama used such a “recess appointment” procedure on March 27, the day after Congress went on recess. He used the procedure to put 11 other nominees into office as well.

Feldblum had been the target of considerable opposition from right-wing conservative groups, who said she was “radical” and hostile to the rights of religious groups.

Feldblum acknowledged during her confirmation hearing that she had signed onto a statement, “Beyond Same-Sex Marriage: A New Strategic Vision for All Our Families & Relationships,” that expresses support for “committed loving households in which there are more than one conjugal partner.” The statement had been developed in 2006 by a group of 20 LGBT activists who met to discuss “marriage and family politics” in the United States.

But Feldblum told the U.S. Senate Committee on Health, Education, Labor and Pensions that she does not support polygamy, was “sorry I signed that document,” and had asked that her name be removed. As of today, however, her name is still listed as a signatory.

And though many groups had signaled they would raise opposition to her nomination, none materialized during her confirmation hearing. Instead, Feldblum took the occasion to highlight her credentials in supporting religious organizations. She has been a law professor for 19 years at the Catholic-run Georgetown University, where her Federal Legislation Clinic has represented such clients as Catholic Charities USA. She noted, too, that her father was a rabbi and survivor of the Holocaust.

“I do not think it is possible to grow up as the daughter of a Holocaust survivor and not be committed to principles of pluralism and tolerance,” Feldblum said in a statement released today. “My entire professional life has been focused on civil rights and social welfare rights. In my legal work and in my scholarship, I have sought to advance the civil rights of all Americans, no matter their race, creed, gender, sexual orientation or gender identity. I look forward to continuing that important work as a Commissioner of the EEOC.”

During her confirmation, Feldblum added that she “strongly” supports religious exemptions provided in Title VII of the Civil Rights Act, as well as in the Employment Non-Discrimination Act (ENDA).

ENDA is expected to receive a vote in both houses of Congress this year and, if it does, Feldblum’s position at EEOC will require her to help write the regulations for its implementation.

Feldblum has considerable experience in drafting such legislation and regulations. In addition to helping draft ENDA, she helped draft the Americans with Disabilities Act (ADA), which passé din 1990 and provided landmark protections for people with HIV and other disabilities.

Feldblum graduated from Barnard College and Harvard Law School, then clerked for Judge Frank Coffin of the 1st Circuit U.S. Court of Appeals and for Justice Harry Blackmun of the U.S. Supreme Court.

The EEOC’s new chairperson, Jacqueline Berrien, was also sworn in today, and a fifth and final EEOC member will be sworn in later this month, bringing the commission to its full, five-member status.

The agency has the authority to investigate, resolve, and file lawsuits over violations of federal laws prohibiting discrimination based on race, color, religion, sex, pregnancy, national origin, age, disability, and genetic information.

Obama clears Feldblum for EEOC seat

Using a constitutional provision known as a “recess appointment,” President Obama on Saturday appointed lesbian law professor Chai Feldblum and three others to positions on the U.S. Equal Employment Opportunity Commission.

Chai Feldblum
Chai Feldblum

Using a constitutional provision known as a “recess appointment,” President Obama on Saturday appointed lesbian law professor Chai Feldblum and three others to positions on the U.S. Equal Employment Opportunity Commission.

Feldblum and the others had been approved by a Senate committee in early December but their confirmation vote was put on indefinite hold by a Senate Republican.

In making the direct appointments for the EEOC, Obama also made 11 other recess appointments of nominees to “critical administration posts.” In a statement, the White House referred to “months of Republican obstruction” to nominees and noted that while the Senate has yet to approve 217 of President Obama’s nominees, President Bush had only 5 still pending at this point in his first term.

Numerous right-wing groups voiced opposition to Feldblum shortly after she was nominated. The Traditional Values Coalition called Feldblum “yet another radical Obama nominee,” saying she would “use her power to strip nearly all First Amendment rights of freedom of expression/free exercise of religion from businesses.” Concerned Women for America said she “represents one of the most serious threats to religious freedom we have seen in a long time.” And The Family Research Council said Feldblum “openly admitted to supporting polygamy.”

Some predicted that opposition would surface during her confirmation hearing in November. But it didn’t, at least in part because Tom Harkin, the chairman of the Senate Health, Education, Labor and Pensions Committee, which handled the nomination, met the controversy head on.

“Something has come to our attention here—a petition,” said Harkin, “…that you signed onto” that expresses support for “committed loving households in which there are more than one conjugal partner.”

“That says polygamy to me,” said Harkin, noting that it is illegal in the United States and that, in the 20-plus years he has worked with her, he never knew she supported polygamy.

“I do not support polygamy,” said Feldblum. “I am sorry I signed that document and I have asked that my name be removed.”

A spokesperson for Senate Majority Leader Harry Reid said March 1 that Feldblum’s nomination, and that of the other EEOC nominees, had been put on hold by a Republican senator. Any senator can put any nominee on indefinite hold for a period of time without identifying himself or herself. While rules require that a senator must identify themselves within a few days, senators have been able to get around that rule by taking turns putting the hold in place.

Feldblum is probably best known for her work on the Americans with Disabilities Act (ADA), which passed in 1990, prohibiting discrimination in employment, public accommodations, and other areas against people with disabilities. The law also covered people with HIV infection. She was also involved in last year’s bill that made amendments to the original law.

But Feldblum is best known to the LGBT community as a key counsel on the drafting and negotiations over the Employment Non-Discrimination Act (ENDA). She also served for a time as legislative counsel for the American Civil Liberties Union in Washington, D.C. Feldblum served for a year as a law clerk to U.S. Supreme Court Justice Harry Blackmun. She is currently a professor of law at Georgetown University and serves as co-director of the university’s Federal Legislation and Administrative Clinic.

During her confirmation hearing, Feldblum made prominent mention of her affiliation with another Catholic institution, Catholic Charities USA. The Georgetown University Law School’s Federal Legislation Clinic, which Feldblum founded in 1993, worked for many years representing Catholic Charities.

Feldblum assured the Committee that she is aware of and comfortable with the religious exemptions in Title VII of the Civil Rights Act and in ENDA.

“I strongly support that exemption,” said Feldblum, “…and I would not have a problem at all enforcing that exemption.”

Should ENDA pass, a position on the EEOC puts Feldblum in position to be one of five commissioners to develop regulations for its implementation.

The Fair Housing rush: Three bills now pending

Three U.S. representatives have introduced separate bills in the past week designed to protect LGBT people from discrimination in housing. The flurry of interest comes when more popular LGBT bills are still awaiting critical votes and during an election year fraught with political tugs-of-war.

Jerrold Nadler
Jerrold Nadler

Three U.S. representatives have introduced separate bills in the past week designed to protect LGBT people from discrimination in housing. The flurry of interest comes when more popular LGBT bills are still awaiting critical votes and during an election year fraught with political tugs-of-war.

Reps. Jerrold Nadler (D-N.Y.), Joe Sestak (D-Penn.), and Edolphus Towns (D-N.Y.) have submitted bills that would amend the federal Fair Housing Act (FHA) to prohibit discrimination in housing on the basis of sexual orientation or gender identity. Each of them has a strong record as an LGBT ally, and all three are members of the LGBT Equality Caucus.

The original FHA was a groundbreaking piece of civil rights legislation enacted in 1968 in response to widespread housing discrimination against people of color. At first, it prohibited discrimination based on race, color, religion and national origin. It was later amended to also prohibit discrimination based on sex, disability, and familial status.

Individuals seeking redress under the FHA may bring a lawsuit in federal district court or file an administrative complaint with the Department of Housing and Urban Development (HUD).

Twenty states plus the District of Columbia have additional housing protections based on sexual orientation, and 13 states plus the District have protections based on gender identity.

Rea Carey, executive director of the National Gay and Lesbian Task Force, said in an interview that federal protections are still necessary, however, because of the variability or absence of state and local laws.

All three new bills would amend the FHA to add sexual orientation and gender identity as protected categories in the sale, rental, and financing of housing. Rep. Towns’ bill would additionally amend the Civil Rights Act of 1964 to ban such discrimination in public accommodation and facilities. Rep. Sestak’s bill would add provisions for a public awareness campaign related to the measures.

Rep. Nadler had been planning for a long time to look into LGBT housing discrimination, said a spokesman from his office. As for the other bills, he said, “We’re all after the same goals. . . . At some point we’ll agree on what bill we’ll put our weight behind.”

A spokesman for Rep. Sestak says his office had not been aware that the other bills were being submitted but that they look forward to working with Reps. Nadler and Towns.

No spokesperson from Rep. Towns’ office returned calls before press time.

Both Rep. Nadler’s and Towns’ bills have been referred to the House Judiciary Committee, where Nadler chairs the Subcommittee on the Constitution, Civil Rights and Civil Liberties. Rep. John Conyers, Jr. (D-Mich.), chair of the Judiciary Committee, is a co-sponsor of Nadler’s bill. Rep. Sestak’s bill has not been referred yet.

Brian Moulton, chief legislative counsel for the Human Rights Campaign (HRC), said Rep. Towns’ office had approached HRC about his bill and they have been working with him for several weeks. HRC has also been working with Rep. Nadler, but is not at the moment working with Rep. Sestak on this issue.

There is, as of this writing, no similar bill in the Senate.

Rep. Nadler held a subcommittee hearing last week to examine a variety of ways in which the FHA could be improved, one of which was by including LGBT protections. Among the witnesses was the National Gay and Lesbian Task Force’s Rea Carey. She said, in an interview, that the hearing was a rare, if not the only, instance of an expert from an LGBT organization being asked to testify in the context of a broader piece of legislation. Joe Solmonese, president of the Human Rights Campaign (HRC), submitted written testimony, but did not speak.

No national study exists that quantifies how many LGBT people have faced housing discrimination but, at the hearing, Carey cited small studies, court cases, and individual examples that point to a sobering problem. A study by the Michigan Fair Housing Centers in 2007, for example, found 30 percent of same-sex couples were treated differently—and negatively—when attempting to buy, rent, or finance a home.

Surveying transgender people specifically, a national study by the Task Force and the National Center for Transgender Equality last year found that 11 percent of the more than 6,400 transgender people surveyed had been evicted and 19 percent had become homeless because of their gender identity.

LGBT seniors are particularly at risk when it comes to housing security, testified Carey. They struggle to retain family homes or to find “virtually non-existent” LGBT-friendly elder housing. Adding LGBT protections to the Fair Housing Act, she said, would provide “a critical safety net” for the estimated 2 to 7 million LGBT people who will be 65 or older in the next decade.

In order to gain a better understanding of the extent and impact of anti-LGBT housing discrimination, the Department of Housing and Urban Development (HUD) recently began to develop plans for a national study. The study is expected to offer support for any LGBT housing discrimination bill.

HRC’s Moulton said the study would be a “tremendous asset” as a lobbying tool, but added that he thinks “it may be further down the line before there’s action” on any related bill.

Carey said, however, that she thinks the chances of an LGBT-inclusive anti-discrimination bill moving forward are good. She notes that both the House and Senate have already voted in favor of legislation—the Hate Crimes Prevention Act—that is inclusive of sexual orientation and gender identity.

The question may be more in the timing. Carey observed that Congress is at the moment “consumed by health care.” Moulton also noted that there is already momentum in Congress for other LGBT-related legislation, such as the Employment Non-Discrimination Act (ENDA) and a repeal of “Don’t Ask, Don’t Tell.”

Grilling of 9th circuit nominee delayed

The Senate Judiciary Committee was squaring up for a showdown this week over President Obama’s most controversial judicial nominee to date, but that showdown has been indefinitely delayed, while Republicans use a parliamentary delaying tactic on the companion bill to the health care reform law.

Goodwin Liu
Goodwin Liu

The Senate Judiciary Committee was squaring up for a showdown this week over President Obama’s most controversial judicial nominee to date, but that showdown has been indefinitely delayed, while Republicans use a parliamentary delaying tactic on the companion bill to the health care reform law.

The nominee is Goodwin Liu, a professor of law at the University of California Berkeley School of Law. President Obama nominated him last month to a seat on the 9th Circuit U.S. Court of Appeals, which covers California and eight other western states. The American Bar Association gave him a “unanimously well-qualified” rating.

But he also has a paper trail a mile wide and a mountain high. That trail reads like good news for the LGBT community, but it screams “liberal” to Republicans. Fox News has reported that Republicans are “champing at the bit to grill Liu, who has described the Constitution as a living document, advocated for same-sex marriage and suggested health care is a right.”

Fox says Liu’s nomination “is getting extra attention because conservatives are concerned that he could be on the fast track for the Supreme Court.”

Liu is one of four people President Obama has named to federal appeals court positions since February 24. The other three—Ray Lohler Jr. and Robert Chatigny for the 2nd Circuit, and Scott Matheson for the 10th—have relatively quiet credentials.

But Liu has been very much part of the public discourse on a number of civil rights issues, including Proposition 8, the initiative which voters in California passed in November 2008 to ban same-sex marriage.

In one of many essays he has published in various newspapers and publications, Liu told the Los Angeles Times, “there is no question that [Proposition 8] targets a historically vulnerable group and eliminates a very important right.” He has predicted that same-sex marriage will eventually “become an unremarkable thread of our social fabric” and that those opposing it now will eventually be viewed as a “narrow and ultimately temporary majority.”

And he’s characterized U.S. Supreme Court Chief Justice John Roberts as a partisan and divisive figure who is “unfriendly to civil rights.”

He signed onto a friend-of-the court brief, prepared by lesbian law scholar Kathleen Sullivan, in the same-sex marriage lawsuit before the California Supreme Court in 2008. The brief argued that the California constitution’s guarantee of equal protection required same-sex couples have the same access to marriage licenses as straight couples.

Keeping Faith with the Constitution, a book he co-authored with two others, praised the U.S. Supreme Court’s 2003 decision, Lawrence v. Texas, striking down sodomy laws.

“In worrying that criminalization of private homosexual conduct invites public discrimination against homosexual persons,” said Keeping Faith, “the Court understood that the lives and identities of gay people transcend what they do in their bedrooms to encompass who they are in civil society. Protecting gay people’s choices within the intimacy of their homes serves essentially as a safeguard of their dignity in a more public sphere.”

Liu also criticized the nomination of John Roberts Jr. to the Supreme Court, calling it a “seismic event that threatens to deepen the nation’s red-blue divide.” Roberts’ legal career, wrote Liu, “is studded with activities unfriendly to civil rights, abortion rights, and the environment.”

Not surprisingly, Liu’s legal career has been studded with activities friendly to civil rights, abortion rights, and the environment.

Liu clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg during the 2000 to 2001 session and was a member of the Obama-Biden transition team’s Education Policy Working Group. He’s also a board member of the ACLU-Northern California, the National Women’s Law Center, and the American Constitution Society. He graduated from Stanford University, won a Rhodes Scholarship to Oxford, was editor of the Yale Law Journal, and numerous other awards. His wife is a senior fellow at the Center for American Progress, a liberal think tank.

Liu was scheduled to come before the Senate Judiciary Committee on Wednesday. But Republicans employed an obscure tactical maneuver to block almost all Senate committee hearings from taking place—including Liu’s confirmation hearing. Their purpose is purportedly to exert some leverage on the bill of “fixes” to the just signed health care reform bill.

A spokesman for the Judiciary Committee said it’s impossible to predict when the Liu hearing will be able to proceed.

No gay provisions in health care

Rep. Tammy Baldwin acknowledged that the pro-gay provisions she sought in the health care reform legislation have not survived. But Baldwin also said that she has counted the votes in the House on two major pro-gay pieces of legislation and believes the votes for passage are there.

Tammy Baldwin
Tammy Baldwin

Rep. Tammy Baldwin (D-Wisc.) acknowledged Thursday, March 18, that the pro-gay provisions she sought in the health care reform legislation have not survived. But Baldwin also said, during an interview in Boston last weekend, that she has counted the votes in the House on two major pro-gay pieces of legislation and believes the votes for passage are there.

Baldwin had sought and secured four pro-gay provisions in the original House version of health care reform, including a prohibition on discrimination based on sexual orientation and gender identity in health care.

But neither the Senate bill nor President Obama’s proposal late last month included those provisions. Baldwin had held out hope, as late as Thursday morning, that at least two of the provisions might be added back under whatever legislative package the House and Senate would eventually vote on. But by Thursday afternoon, when the text of that final package was posted on the Internet, that hope was quashed.

The version of health care reform legislation being considered now by Congress—with the final critical votes scheduled to begin this weekend—does include some relief for people with HIV on Medicare who must purchase expensive AIDS-related medications. But it does not include the anti-discrimination provision or three others. Those others included the “Early Treatment for HIV Act,” which sought to allow states to provide Medicaid coverage to low-income HIV positive individuals; the Tax Equity for Health Plan Beneficiaries Act, which sought to end the tax for gay employees whose partners/spouses are covered under their work health insurance coverage; and a provision to collect data toward ending disparities in health care for LGBT people.

But Baldwin does believe the votes are in place to pass ENDA and a DADT repeal bill in the House.

“As someone who has actually counted the votes, I believe that there are,” Baldwin said, in response to a question during an interview in Boston. “That’s one of the things the LGBT Equality Caucus does is to [focus] attention to making sure we can tell [House] leadership, with accuracy, what the vote would be if they bring the measures up to the floor.”

The Congressional LGBT Equality Caucus is a group of legislators in the House who are strong supporters of equal rights for LGBT people. The Caucus is organized similarly to the Congressional Black Caucus and the Congressional Hispanic Caucus.

Baldwin and Rep. Barney Frank established the LGBT Equality Caucus in June 2008. It now includes nearly 90 members of Congress. President Obama has recently met with both the Congressional Black and Congressional Hispanic caucuses, but not yet the LGBT one. Baldwin says this is because “we haven’t put a spotlight on it of late.” She said the group “probably” would press for a meeting with the president “in the future.”

Pressure has grown dramatically in recent days for a spotlight on LGBT-related issues in Congress.

On Thursday, March 18, the same day Congress began reviewing a report from the non-partisan Congressional Budget Office estimating the costs of health care reform, gay civil rights activists, frustrated that Congress has yet to take a vote on ENDA or repealing DADT, staged peaceful acts of civil disobedience at both the Capitol and the White House.

Lt. Dan Choi, who is being discharged from the Army because he identified himself as gay, and former service member Capt. James Pietrangelo II handcuffed themselves to the wrought iron fence surrounding the White House. Both were arrested, along with Robin McGehee of a new group called GetEqual, who assisted them.

(A spokesperson for U.S. Park Police said Choi and Pietrangelo were held overnight and would be arraigned on Friday, March 19.)

McGehee is with a new group called GetEqual. The group has pledged to take “strategic, coordinated, bold action to demand equality, and to hold accountable those who stand in the way.”

That same afternoon, other activists with the group staged sit-ins in both the San Francisco and Washington, D. C., offices of House Speaker Nancy Pelosi. Capitol Police arrested four of the protestors at Pelosi’s Congressional office. San Francisco Police arrested six people.

Responding to the protests, Pelosi spokesperson Drew Hammill released a statement saying, “The Speaker believes passing ENDA is a top priority and hopes that we can bring ENDA up as soon as possible. That being said, the right time to bring the measure to the floor will be when we have the votes.”

It was during the Boston interview, five days earlier, that Baldwin said she had counted the votes on ENDA and DADT and believes the votes are there.

Baldwin was in Boston to receive an award from the Fenway Health organization March 13, a local LGBT community medical center. There, she acknowledged that health care reform has essentially held up all legislation in Congress in recent weeks, including the Domestic Partnership Benefits and Obligations Act. This Domestic Partnership bill seeks to provide equal pay for equal work in the federal workplace by granting to the domestic partners/spouses of gay federal workers the same health and life insurance, government pensions, and other employment related benefits provided to the spouses of straight federal employees who are married.

The bill, which garnered words of support from President Obama during one of his first Oval Office ceremonies for an LGBT issue last June, passed a House committee in November and a Senate committee in December. But neither House Speaker Nancy Pelosi nor Senate Majority Leader Harry Reid has moved it to the floor.

“I know [the Speaker] is supportive of the bill,” said Baldwin, “but right now, nothing moves until health care passes.”

Asked whether the LGBT community can expect a vote on ENDA and DADT this year even though mid-term elections are coming up, Baldwin said, “We want the votes [taken] as soon as possible.”

“Certainly there are members of Congress who are nervous because of the economy, the rate of joblessness,” she said. “Across the country, people are agitated. On the other hand, my constituents want to see bolder and quicker change, and so I actually see positive signs to follow through [on DADT and ENDA].”

Rep. Frank: ENDA will get House vote this month

Legislation can be like a train: It runs on a track, makes certain stops along the way, and is often attached to other trains. But, in Congress, the train doesn’t run on time.

Last October, Rep. Barney Frank (D-Mass.) said the Employment Non-Discrimination Act (ENDA) would likely get a House committee vote in September and a floor vote that fall. Didn’t happen.

Barney Frank
Barney Frank

Legislation can be like a train: It runs on a track, makes certain stops along the way, and is often attached to other trains. But, in Congress, the train doesn’t run on time.

Last September, Rep. Barney Frank (D-Mass.) said the Employment Non-Discrimination Act (ENDA) would likely get a House committee vote in September and a floor vote that fall. Didn’t happen.

And last December, when Reps. Tammy Baldwin (D-Wisc.) and Jared Polis (D-Colo.) told a gathering of gay leaders that ENDA would pass the House in January, they weren’t making a promise. They were making an educated guess.

What has been happening, of course, has been a contentious partisan fight over a major effort to ensure that most Americans have health care and an urgent push to pass a bill to preserve and create jobs for the country’s growing number of unemployed. Add to that, two major earthquakes requiring U.S. assistance, one major Democratic loss of a critical Senate seat, and a persistent pushback or roadblock by Republicans on everything from judicial nominees to unemployment checks.

The Senate just Tuesday night was able to finally vote on an emergency measure to simply extend unemployment benefits and several other programs for 30 days until Congress can approve a more permanent measure. The temporary bill was delayed for five days by the refusal of one Republican senator to allow a routine vote of unanimous consent.

With this as a backdrop, Rep. Frank’s prediction this week is that ENDA will have its vote in the House Committee this month. And he said House Speaker Nancy Pelosi (D-Calif.) has assured him it will go swiftly to the floor.

Baldwin gave the same assessment of Pelosi’s commitment to ENDA when she spoke to the Gay & Lesbian Victory Fund’s Leadership Institute last December in San Francisco. Pelosi’s commitment on ENDA, she said, “is unflinching.” She said Pelosi “wants to have very quick movement of the bill from committee to floor, hopefully within a week” of the bill’s passage in Committee.

Mara Keisling, head of the National Center for Transgender Equality, said Wednesday she is “extremely optimistic” ENDA will get its vote in the House Education and Labor Committee this month.

Keisling said delays last fall could be attributed to a need to make some “language tweaks” and that she is not entirely sure right now what the language will be concerning the so-called “bathroom issue.” Opponents of ENDA have often argued that the measure would enable men to use women’s bathrooms.

Frank said Tuesday that there has been a general agreement reached to resolve certain language changes, including on the use of bathrooms. Keisling said she doesn’t know what that language is and that “it might be harmless or it might be horrible.”

“We’ve been strenuously arguing that we don’t need clarification,” said Keisling. “But legislation is too often about compromise.”

Keisling noted that other compromises have included an exemption for military service and a stipulation that the bill does not require an employer to “treat an unmarried couple in the same manner as…a married couple for purposes of employee benefits.”

Keisling said Rep. Frank has been “working very hard” on the bill, “and we’ve been working closely with his office.”

“I want to be clear, Congressman Frank’s not saying he wants bathroom language,” said Keisling. “He’s saying they really think we need it to pass.”

“They,” she said, are the variety of Democratic leaders working on passing the bill. And the conclusion is that the clarifications are “not helpful substantively or legally,” she said, “but they say they are helpful politically.”

Feldblum confirmation on secret hold for now

At least one senator has put a secret hold on the confirmation of openly gay law professor Chai Feldblum and four others to the Equal Employment Opportunity Commission (EEOC).

Chai Feldblum
Chai Feldblum

At least one senator has put a secret hold on the confirmation of openly gay law professor Chai Feldblum and four others to the Equal Employment Opportunity Commission (EEOC).

A Senate committee approved all the nominations, including Feldblum’s, as a group in December.

A spokesperson for Senate Majority Leader Harry Reid said Monday that Reid is “working to get an agreement” with Republicans to consider the nomination of Feldblum and other EEOC commissioners.

There has been no public indication yet of which senator has placed the hold on the EEOC nominees’ full Senate confirmation vote.

Senator Richard Shelby (R-Ala.) put a hold on more than 70 nominations last month to leverage support for sending certain Defense contracts to his home state. But following negative publicity surrounding the tactic, he removed “all but a few,” saying, through a spokesperson, that he was keeping holds only on those “directly related” to national security issues. The names of those nominees have not been made public.

There is no indication in the Congressional Record or the Senate Calendar as to who has put the hold on the confirmation of Feldblum and the others. While the Congress recently enacted legislation to make it harder for senators to anonymously put such holds on confirmations and bills, there are still ways in which they can do so.

The “Honest Leadership and Open Government Act,” passed in 2007, requires that a senator placing a hold on a nominee or bill to notify in writing either the Senate Majority or Minority Leader of his or her intent to do so. Then, he or she submits a notice of this intent to the Congressional Record.

But, according to a Congressional Research Service report in March 2008, the legislation provides “limited circumstances” under which an anonymous hold can still be implemented. One way is by making a public statement; but, so far, no senator has made a public statement that he or she intends to block consideration of the EEOC nominations.

Another means is to “privately inform their party leader” and, if that party leader is in the majority, the “majority leader never requests” the matter be brought to the floor.

Numerous right-wing groups voiced opposition to Feldblum shortly after she was nominated, and some predicted that opposition would surface during her confirmation hearing. But it didn’t, at least in part because the chairman of the Senate Health, Education, Labor and Pensions Committee, which handled the nomination, met the controversy head on. Senator Tom Harkin (D-Iowa) asked Feldblum to explain why she had signed onto a 2006 statement that expressed a number of views on marriage, including support for polygamy.

“I do not support polygamy,” said Feldblum. “I am sorry I signed that document and I have asked that my name be removed.”

Still, Focus on the Family, the Traditional Values Coalition, the Liberty Counsel, the American Family Association, and a number of other ultraconservative groups signed onto a letter to the Committee, saying they “strongly oppose” Feldblum’s nomination. They said they believed she was a threat to religious liberty.

A position on the EEOC could put Feldblum in the position of being one of five commissioners to develop regulations for the Employment Non-Discrimination Act (ENDA), should that bill ever pass Congress.

“Ultimately,” said the CRS report, “it is up to the majority leader of the Senate—who sets the chamber’s agenda after consulting various people—to decide whether, or for how long, he will honor a colleague’s hold.”

One of President Obama’s judicial nominees is scheduled to be voted on by the full Senate Tuesday—Barbara Keenan to serve on the 4th Circuit U.S. Court of Appeals, which covers Virginia, Maryland, North Carolina, South Carolina, West Virginia, and the District of Columbia.

Keenan, who has served since 1991 on the Supreme Court of Virginia, wrote the dissent from the state court’s 1995 decision denying Sharon Bottoms custody of her child because Bottoms was openly gay. More recently, she wrote the unanimous decision respecting a decision of a Vermont family court that granted joint custody of a child to both the biological mother, Lisa Miller, and her former civil union partner, Janet Jenkins. In both cases, however, Keenan’s reasoning was based on procedural issues.

In a recent op-ed essay, Senator Arlen Specter (D-Penn.) noted Republican “obstructionism” had delayed the confirmations of 46 executive nominees for at least three months and 45 for at least four months. Nine nominees, he said took six months or more to go from committee approval to a full Senate vote.

“The Senate can force a vote by resorting to the time-consuming step known as cloture, which takes up two days of the Senate’s time,” wrote Specter, in the February 25 essay, which appeared in the Scranton Times-Tribune. “If cloture were to be invoked in each of the 67 currently pending nominations that have been approved by committee, it would take most of the year to deal with nominations. This is an intolerable imposition on the Senate’s time and business.”

The March 2 Senate calendar indicates there are 86 nominees awaiting confirmation, and a cloture vote is scheduled for the Keenan nomination.

Gates, Mullen ready to repeal DADT, but GOP ready to fight

Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Admiral Mike Mullen told a Senate committee they have appointed a high-level working group to report on how the military can adapt should Congress choose to repeal “Don’t Ask, Don’t Tell.”

Chairman of the Joint Chiefs of Staff Adm. Mike Mullen responds to questions during testimony with Under Secretary of Defense Comptroller Robert Hale, Secretary of Defense Robert M. Gates, before the Senate Armed Services Committee, in Washington, D.C., Feb. 2, 2010.  DOD photo by Cherie Cullen (released)
Chairman of the Joint Chiefs of Staff Adm. Mike Mullen responds to questions during testimony with Under Secretary of Defense Comptroller Robert Hale, Secretary of Defense Robert M. Gates, before the Senate Armed Services Committee, in Washington, D.C., Feb. 2, 2010. DOD photo by Cherie Cullen (released)

Defense Secretary Robert Gates and Joint Chiefs of Staff Chairman Admiral Mike Mullen told a Senate committee Tuesday that they have appointed a high-level working group to report, by the end of 2010, on how the military can adapt should Congress choose to repeal the “Don’t Ask, Don’t Tell” policy.

“Simultaneous with launching this process,” said Gates, “I have also directed the Department to quickly review the regulations used to implement the current Don’t Ask, Don’t Tell law and, within 45 days, present to me recommended changes to those regulations that, within existing law, will enforce this policy in a more humane and fair manner.”

In remarks that appeared to stun and anger Republican conservatives on the Senate Armed Services Committee, Mullen said he personally believes repeal of the military’s policy excluding openly gay service members is “the right thing to do.”

But the Committee’s minority leader John McCain and most of his Republican colleagues made clear they were unhappy to hear Gates and Mullen were preparing to follow orders for repealing the policy, signaling that another bruising political battle in Congress over the issue is almost a certainty.

President Obama promised during his 2008 presidential campaign that he would seek repeal of the policy and he and members of his administration met with Pentagon officials on some number of occasions since taking office to discuss how and when this might be done. Then, last week, the president used the high-profile bully pulpit of his State of the Union address to move the promise into the realm of action.

Gates told the Senate committee that the working group would be headed by DOD General Counsel Jeh Johnson and Commander of the U.S. Army in Europe General Carter Ham.

The group’s mandate, Gates said, is to “thoroughly, objectively, and methodically examine all aspects” associated with “properly implementing a repeal” of the policy. The working group will consider the effects of a repeal on the military on the armed forces, what “policies and regulations” that may have to change, and what impact a change in the law might have, if any, on “military effectiveness,” including and “unit cohesion” recruitment, retention, and “overall performance of the force.”

“My personal belief,” said Mullen, “is that allowing gays and lesbians to serve openly would be the right thing to do.”

“I have served with homosexuals since 1968,” Mullen said, adding that the current policy creates a dissonance with the integrity of the military as an institution.

“Putting individuals in a position where they wonder ‘Is today going to be the day?’ and devaluing them in that regard, just is inconsistent with us as an institution,” he said.

Senator Jeff Sessions (R-Ala.) criticized Gates and Mullen for expressing their views in support of repealing the policy, saying it would create “undue command influence” on the working committee to return with a recommendation that conforms to that view.

“I hope you’ll recognize that Congress will have to make the decision and don’t use your power to influence the discussion or reevaluation of the issue,” said Sessions.

Mullen shot back, politely, that “it’s not about command influence, but leadership, and I take that very seriously.”

Repealing the 16-year-old “Don’t Ask, Don’t Tell” (DADT) policy has been a long-standing goal among the nation’s leading LGBT civil rights organizations and reaction to the Gates and Mullen presentation was met with a uniformly positive response.

“We strongly applaud Secretary Gates supporting the President’s view that DADT needs to go,” said Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, which seeks to provide information and assistance to service members threatened or ejected by the policy. “We also strongly applaud Chairman Mullen who unambiguously personally supported gays and lesbians serving openly. The top military brass of the United States just laid out a roadmap for full repeal.”

Sarvis said his group will “welcome the new direction coming out of the Pentagon over the next 45 days.” He said he expects that could focus on reducing the number of DADT discharges in the near future.

Gates indicated that one key change that could come about through the 45-day recommendations is a change in how the policy is enforced. He said it may be the service could require more than just an allegation from a third-party in order to launch an investigation. Another possible change, he said, could be to require that discharges under the policy be done only by flag officers, such as admirals and generals, rather than lower ranking officers.

“Today is a historic step forward in repealing a shameful law that has harmed the military, discharged thousands of talented and patriotic Americans and prevented thousands more from serving their country,” said Joe Solmonese, president of the Human Rights Campaign.

Solmonese also lauded the president for his leadership role.

“We acknowledge and appreciate President Obama’s leadership in bringing the military into line with his ideal,” said Solmonese. “Make no mistake—this would not have happened without his insistence. And we’ll need more of that commitment in the months ahead.”

HRC recently launched a lift-the-ban initiative, called “Voices of Honor,” to organize veterans in key states that may lobby for critical to votes in the House and Senate to repeal Don’t Ask, Don’t Tell.

Another group, the Courage Campaign, announced it had collected nearly half a million letters addressed to the president, members of Congress, and the Pentagon, calling for repeal.

“‘Don’t Ask, Don’t Tell’ contradicts the military honor code requiring those in uniform to tell the truth,” said Lt. Dan Choi, a spokesperson for the Courage Campaign. A West Point alumnus, Choi is a high-profile Arabic language expert whose discharge is currently pending under “Don’t Ask, Don’t Tell.”

“Don’t Ask, Don’t Tell” was passed by Congress in 1993 and signed into law by President Bill Clinton and mandates the discharge of openly gay, lesbian, or bisexual service members. Nearly 14,000 service members have been fired for forced out under the law since its implementation in 1994, including 800 people with specialties such as Arabic language expertise, according the SLDN.

SLDN has pointed to a trend boding well for the repeal of “Don’t Ask, Don’t Tell.” Discharges for the four services – Army, Air Force, Navy and Marines—under the policy declined in 2009—down a third from the year before. “Don’t Ask, Don’t Tell” discharges totaled 428 in 2009 compared to 619 in 2008, according to data provided by the Department of Defense to Capitol Hill.

“It’s very good news that discharges continue to drop during a time of two wars, particularly in 2009,” said Sarvis. “But it is 428 too many. We need to see the number go to zero and will continue to urge Congress and the White House to pass full repeal in 2010 through the defense authorization bill to end this law once and for all.”

Public opinion has changed, too, with the American people’s increasing support of allowing gays to serve in the military. A Washington Post/ABC News poll conducted in July 2008 found that 75 percent of Americans believe openly lesbian and gay citizens should be able to serve in the U.S. military.

The Gates and Mullen testimony is expected to boost repeal efforts already underway on Capitol Hill. The Military Readiness Enhancement, a bill introduced to lift the ban by Rep. Patrick J. Murphy (D-Pa.), an Iraqi war veteran, now has 187 House Sponsors—just 31votes shy of the 218 votes to assure repeal in the House. The momentum in the Senate, where the Democratic majority recently lost a critical seat to Republicans, is less positive. No bill has yet been introduced there.

The state of the new landscape in the Senate doesn’t kill chances

Scott Brown’s special election victory this month, taking the late Ted Kennedy’s Senate seat, could have the power to derail passage of pro-gay civil rights legislation this year.

Scott Brown
Scott Brown

Scott Brown’s special election victory this month, taking the late Ted Kennedy’s Senate seat, could have the power to derail passage of pro-gay civil rights legislation this year. The GOP Massachusetts state lawmaker’s come-from-behind win January 19 eliminates the Democrats’ supermajority of 60 votes in the Senate—a margin necessary to stop a filibuster-prone Republican minority from stalling any liberal-leaning legislation for the remainder of the Congressional session.

But key gay civil rights supporters in Congress are not conceding any fight.

“I am continuing to push for full LGBT civil rights,” said Rep. Tammy Baldwin (D-Wisc.), one of three openly gay members of Congress. “It’s up to every single one of us to fight for those rights and not allow one election to dampen our efforts or destroy our morale.”

Bay State lawmaker, U.S. Rep. Barney Frank, the most veteran of the three –which includes newcomer Rep. Jared Polis (D-Colo.)—is also optimistic. He says the House will soon act on the Employment Non-Discrimination Act (ENDA) and will still repeal the military’s “don’t ask, don’t tell” policy ban on out service members.

“The key issue, with both ENDA and ‘don’t ask, don’t tell,’” said Frank, “is that we get to 60.”

Frank said he’s been working with the House committee on transgender inclusion [on ENDA] and that there’s been “real progress” in the House.

“I had a meeting last week with the transgender community and with the staff of the committee of the House, and … we have agreements on what can be done. It’s not going to be 100 percent, it’s going to be a very, very substantial amount, and it’s based on the fact that we had a vote on ENDA two years ago, over the objections of many in the community.”

Two years ago, the House passed a version of ENDA that did not include coverage for gender identity. The vote was 235 to 184. But the vast majority of LGBT groups were furious about the omission of gender identity coverage and the bill was not pursued in the Senate.

This year, said Frank, “There’s support.”

Both the House and Senate versions of ENDA this year include gender identity. Both have had hearings in committee and are awaiting votes.

Human Rights Campaign Deputy Legislative Director David Stacy says he is hoping for the best but acknowledged that Brown, the new Massachusetts senator, hasn’t yet indicated where he stands on ENDA.

“We are hopeful he would be supportive of it, given that Massachusetts has a non-discrimination law that covers sexual orientation,” Stacy said. But he said Brown is “certainly” against marriage equality and has a hostile record on gay-related issues in his home state.

“On ‘don’t ask, don’t tell,’” said Frank, “we have an Iraq war veteran doing a very good job lining up the votes.” He’s referring to Rep. Patrick Murphy (D-Pa.), the chief sponsor of that bill.

Both Frank and Stacy say Rep. Murphy is working “very hard” to explain the Military Readiness Enhancement Act to other House members and solicit additional co-sponsors. Murphy’s bill would overturn the 17-year-old “don’t ask don’t tell” policy for gay and lesbian service members and allow them to serve openly. HRC is also working with members of key Congressional committees to build support, and with allies in Congress to do “one-on-one” lobbying of other members, Stacy said.

Although there is still no Senate bill yet, Stacy says a repeal of “don’t ask, don’t tell” could come through a Department of Defense authorization bill, not from freestanding legislation. Congress approves such defense measures annually; they contain numerous policies for defense programs.

Frank, citing the “tricky” nature of immigration, said he thinks the chances for movement on legislation supporting non-U.S. partners of gay and lesbian Americans are “very unlikely, very difficult.” But he is hopeful a bill can be passed that recognizes domestic partnerships for federal employees. Baldwin is leading that effort, he said.

HRC’s Stacy said his organization is still “hoping at some point to repeal the Defense of Marriage Act,” too, though he acknowledged Brown will not likely be in favor of that, making Senate passage unlikely. He said HRC does hope, however, to “have a conversation with him on that.”

Stacy says these and other measures, including health care benefits for the domestic partners of federal employees, and Senate confirmation of presidential appointees, will keep lawmakers busy. Early indications are that Brown’s election, however, will make it virtually impossible to advance President Obama’s ambitious health reform legislation in any form that might include some pro-gay provisions that were part of the House version of the bill.

“I think it’s going to be a very active year for us,” said Stacy. “There’s a great opportunity for LGBT legislation. But it’s not going to be easy. It’s really important that people not be discouraged.”

“Elections have consequences,” said Baldwin, “and Scott Brown’s victory in Massachusetts should be a rallying cry that unites us and spurs us forward.”

U.S. Reps call for action against Ugandan bill

Three openly gay members of the U.S. House of Representatives, along with 91 of their colleagues, have sent a letter to President Obama urging him to do everything he can to stop a bill in Uganda that calls for harsh penalties against gays.

Tammy Baldwin
Tammy Baldwin

Three openly gay members of the U.S. House of Representatives, along with 91 of their colleagues, have sent a letter to President Obama urging him to do everything he can to stop a bill in Uganda that calls for harsh penalties—including life imprisonment and the death penalty—against gays.

The proposed law in Uganda, which calls for life imprisonment for anyone convicted of having sex with a person of the same gender, also triggered a U.S. Congressional hearing this month.

The January 21 hearing took place in the House’s Tom Lantos Human Rights Commission, created two years ago to “promote and advocate” for rights adopted in the international Universal Declaration of Human Rights.

Openly gay U.S. Rep. Tammy Baldwin (D-Wisc.), a member of the Commission’s Executive Committee, called the Ugandan legislation, “An extreme and hateful attempt to make people criminals not because of anything they do, but because of who they are and who they love.”

The bill was introduced to the Ugandan Parliament by Member David Bahati and expands upon an already existing statute that outlaws homosexuality. The new bill seeks to impose life imprisonment for anyone convicted of having sex with or trying to contract a marriage with someone of the same sex. In certain cases, such as when the person tests HIV positive, the penalty is death.

In addition to targeting gays, the bill seeks to go after anyone who “promotes” homosexuality or “aids, abets, counsels or procures” someone else to engage in homosexual acts. Such persons could face up to seven years in prison. Anyone who is aware of someone breaking the law but does not report this fact to authorities faces a fine and three years in prison.

“The severity of the Ugandan legislation requires a severe response,” said Baldwin in her opening remarks at the Commission hearing. Bills, such as this, she said, are “contemptible statements of hate and bias,” have “serious consequences,” and are “enormous obstacles to effectively addressing HIV/AIDS.”

At the hearing, Baldwin and Commission Co-Chairman James P. McGovern (D-Mass.), along with other Commission members, heard testimony from Karl Wycoff, Deputy Assistant Secretary of State, as well as a panel of expert witnesses: Cary Alan Johnson of the International Gay and Lesbian Human Rights Commission; Julius Kaggwa of the Civil Society Coalition on Human Rights and Constitutional Law, Uganda; Rev. Kapya Kaoma of Political Research Associates; and Christine Lubinski of the HIV Medicine Association, Infectious Diseases Society of America.

Kaggwa told members of the Commission that, because the Ugandan bill also targets anyone who “promotes homosexuality,” it should be opposed not only by LGBT-rights supporters but also those who advocate for free speech and greater democracy.

Baldwin said in an interview she hopes the hearing will help Congress to “direct our actions in a more focused way.”

Assistant Secretary Wycoff testified that, while it is important for the U.S. and other countries to make public statements and meet privately with Ugandan government officials, many in Uganda view these communications as outside meddling. That, he said, could embolden proponents of the legislation. Wycoff’s remarks led to a discussion of the importance of supporting the activists in Uganda and the coalition they are building to oppose the legislation internally.

But Baldwin said opposition against the bill could take many forms, including support for the non-governmental organizations that are part of the coalition fighting the bill.

“It may also mean figuring out further venues for heartbreaking stories of oppression and violence and humiliation to be told both internally to Uganda, but to a larger world audience,” she said.

On January 21, 94 U.S. representatives—led by Reps. Baldwin, Barney Frank (D-Mass.), and Jared Polis (D-Colo.)—sent a letter to President Obama and one to Ugandan President Yoweri Kaguta Museveni, asking them to help stop the bill. One day earlier, 12 U.S. senators sent a letter to President Museveni with a similar message.

Baldwin said she and the other House members who signed the letter to President Obama think the president could do more than he has. The White House issued a written statement in mid-December, saying that the president “strongly opposes” the legislation. Secretary of State Hillary Clinton has also expressed concern about it. The House letter, however, asks the President to “speak out publicly” on the matter, especially given his popularity in Africa.

This week, Shin Inouye, a spokesperson to the LGBT media for the White House, said, “The President has strongly opposed legislation that would criminalize homosexuality anywhere—including Uganda—and the Department of State has made this opposition clear to the Ugandan government. We appreciate the interest of Congress in that matter, and will continue to make our opposition to this bill clear, and to support human rights around the world.”

The House members believe, too, that they can bring economic pressure to bear. Should the bill pass, they wrote to President Museveni, it could endanger the $300 million in President’s Emergency Plan for AIDS Relief (PEPFAR) funds to Uganda.

“If you can’t reach men who have sex with men and be able to talk honestly about prevention and early intervention and treatment,” said Baldwin, “those [PEPFAR] funds are not going to be used according to congressional intent. Baldwin said no one at the hearing called for a complete halt to the AIDS funding for Uganda, but rather “more a review of who gets it, how it’s used, how it will be overseen and supervised if the law passes.”

Baldwin said the PEPFAR funds comprise 2.6 percent of the Ugandan economy, and thus have significant impact.

Currently, the U.S. and Uganda have extensive bilateral relations. If the bill passes, Baldwin says, it could affect those ties. Sweden has already threatened to cut its assistance to Uganda if the bill passes.

Rep. Frank, who signed the letter but was not at the hearing, agreed that the bill would affect future cooperation between Uganda and the U.S. If it passes, Frank said, he would oppose any debt relief and aid from the World Bank to Uganda, areas where he has some influence as chair of the House Financial Services Committee.

One undercurrent of the issue is the influence of U.S.-based religious groups in Uganda.

“As has happened elsewhere, this proposed legislation appears to be the product of Americans recruiting prominent African religious leaders to campaign to restrict the human rights of LGBT individuals in their countries,” said Baldwin at the hearing.

Last year, three American evangelical Christians gave a seminar in Uganda on “the gay agenda,” saying it threatens traditional families. The speakers were Scott Lively of Abiding Truth Ministries, classified as a hate group by the Southern Poverty Law Center; Caleb Lee Brundidge of the International Healing Foundation (IHF), which encourages people to “heal” themselves of their same-sex attractions; and Don Schmierer of Exodus International, a group that says it promotes “Freedom from homosexuality through the power of Jesus Christ.”

Their Ugandan host was Stephen Langa of the Family Life Network, a non-governmental organization focused on “the restoration of family values and morals.” Langa has admitted helping to draft the anti-gay bill, according to a January 3 report in the New York Times. The report said Lively also acknowledged meeting with Ugandan lawmakers about the legislation.

All three Americans have now posted statements on their organizations’ Web sites denying they intended such harsh actions. Exodus sent a letter to President and Mrs. Yuseveni, condemning the criminalization of consensual homosexuality, saying it interferes with the church’s task of helping homosexuals. IHF sent a similar letter to the Ugandan parliament, saying the bill would “frighten all people from seeking the very help they need, and that many want.”

The International Transformation Network (ITN), another U.S.-based evangelical group that works to turn people away from homosexuality, has reportedly established a training network of approximately 14,000 evangelical churches in Uganda, according to journalist Bruce Wilson of the Web site Talk To Action. Wilson has detailed ITN’s involvement in Uganda and says President Museveni and his wife Janet have hosted ITN representatives at state dinners. Janet Museveni has attended, or sent a representative to, several of ITN’s world conferences. Their daughter Patience runs a church whose members are being trained by ITN, and David Bahati, sponsor of the Anti-Homosexuality Bill, has been one of the attendees of that church.

“We need to be mindful that those voices of the conservative religious evangelicals in Uganda are not being appropriately balanced by voices of truth-tellers who are reaching out,” said Baldwin, in an interview.

“We need to have U.S. voices,” said Baldwin, “and people who have person-to-person cultural exchanges, political exchanges, etc., that have a different message and can counter the lies with truth.”

Baldwin said the January 21 hearing gave the commission a chance to hear ideas for doing just that.

“Most of the women in the Ugandan parliament are supporting the bill, as are some women’s rights groups,” Baldwin related. One idea mentioned by several panelists at the hearing was that First Lady Michelle Obama and women in Congress speak to Ugandan women. There was also a suggestion that the Congressional Black Caucus could make a statement.

“I think we’ll follow up on all those very helpful pieces of advice,” Baldwin said, “especially knowing that they came from people in Uganda who have a sensibility about what will be effective and what won’t.”

The letter to President Obama from members of the House asks the president to not only to speak out publicly against the legislation in Uganda but also to work towards the decriminalization of homosexuality worldwide.

“More than two-thirds of African countries have laws criminalizing consensual same-sex acts, and over 80 countries worldwide currently have in place sodomy laws or other legal provisions that criminalize their LGBT communities,” said Baldwin.

Uganda, she said, is part of “an alarming trend.”

Frank says LGBT still have chance in health reform bill

News on Capitol Hill Wednesday morning suggested there was little hope for keeping pro-LGBT provisions in the health care reform legislation Congress hopes to pass. But Rep. Barney Frank says he’s still “somewhat optimistic.”

Barney Frank
Barney Frank

News on Capitol Hill Wednesday morning suggested there was little hope for keeping pro-LGBT provisions in the health care reform legislation Congress hopes to pass. But Rep. Barney Frank says he’s still “somewhat optimistic.”

According to The Hill, a newspaper that serves Capitol Hill readers, leaders of the House and Senate decided Tuesday evening to stick with the Senate version of the health care reform bill—the one without any pro-gay provisions—rather than go through a conference committee negotiation to merge the two versions. The paper said the decision was made on Tuesday night in a meeting that included only President Barack Obama, Vice President Joe Biden, House Speaker Nancy Pelosi, and Senate Majority Leader Harry Reid.

Under that scenario, the House would be able to amend the Senate bill and send it back to the Senate for a final vote, but the likelihood of pro-LGBT amendments being accepted onto a bill that has already been ravaged with controversy –over how and whether abortions could be covered and the exclusion of a government-run option for insurance— seems small.

But Rep. Frank says there’s still plenty of room for negotiation with the Senate over the legislation to keep some of the pro-LGBT provisions passed as part of the House bill.

“There will still be negotiation between the House and the Senate over what’s in the bill,” said Frank, adding that, because the House will apparently have to make some concessions on major issues, it may have some leverage to keep the pro-LGBT provisions.

Meanwhile, Republicans are reportedly still trying to kill the bill, whatever form it takes, by persuading conservative Democrats to vote against it. Frank says it will be important for LGBT people and their supporters to lobby these conservative Democrats to continue supporting the legislation.

The vote margins in both the House and the Senate were very narrow on initial passage, leaving the effort to pass a bill without a conference fight a still uncertain future. In addition, legal challenges are brewing over enticements that were added to the Senate bill in order to win enough votes for passage there.

Rep. Tammy Baldwin (D-Wisc.), an openly gay representative and strong advocate for both health care and LGBT civil rights, did not respond to a request for comment on the status of the overall bill and the pro-gay amendments she helped champion. Among them were ending the current tax inequity for gay employees who cover their partners or spouses on their work health insurance coverage, prohibiting discrimination in health care based on “personal characteristics,” and launching studies to end health disparities for people based on their sexual orientation and gender identity.

The Human Rights Campaign, in response to a request for comment, issued this statement suggesting it is not yet giving up:

“The decision to forgo a traditional conference does not change the fact that the negotiations between House and Senate leadership to complete health care reform will undoubtedly be complex and difficult on a range of issues. We will continue to strongly push the congressional leadership to ensure that critical protections for LGBT people included in the House-passed bill are part of the final measure.”

Health reform: Gay provisions likely to be lost in conference

It’s still a little bit of a guessing game as to whether the U.S. Senate will pass a health care reform bill this month or next or never, but if and when it does, there’s little likelihood any pro-gay provisions adopted in the House will make into the final version Congress sends to the president.

Allison Herwitt
Allison Herwitt
It’s still a little bit of a guessing game as to whether the U.S. Senate will pass a health care reform bill this month or next or never, but if and when it does, there’s little likelihood any pro-gay provisions adopted in the House will make into the final version Congress sends to the president.

As of Tuesday afternoon, the Senate leadership had signaled yet another revised timeline for passing its bill –Christmas Eve. If the Senate does pass the bill December 24, a House-Senate conference committee is expected to begin meeting as early as next week to hammer out a final version of the bill for both houses to then give final approval. A final bill, they said, could be on the president’s desk before January 19, the state of his State of the Union address.

While both bills are aimed at making health care insurance affordable for millions more Americans, there are a number of differences between the Senate and House bills. The House offers a government-funded insurance option –the so-called “public option;” the Senate bill does not. The House bill prohibits federal funds from being used to cover the cost of an abortion with any insurance plan; the Senate version provides a means by which people could pay for abortion coverage themselves, even if their insurance plan involves federal subsidies.

The House version, passed in early November, has at least four provisions that benefit gay people specifically:

  • eliminating the tax penalty to gay employees who provide coverage for their spouses or partners under their employers’ health insurance policies;
  • calling on the Department of Health and Human Services to address “health disparities” suffered by populations –including those based on “sexual orientation and gender identity’”
  • making people with HIV and low incomes eligible for federal assistance earlier in their illness; and
    prohibiting discrimination based on “personal characteristics” in the delivery of health care.

The Senate version includes none of these. And the battles over public option and abortion have threatened to completely derail the overall health care legislation at numerous points. They are expected to be contentious issues again in conference.

Jerilyn Goodman, a spokesperson for openly gay Rep. Tammy Baldwin (D-Wisc.) who sponsored two of the four pro-gay provisions in the House bill, said Baldwin is “fully committed to a thorough conference of the health care reform legislation in which she can advocate for the LGBT provisions included in the House bill.”

“She is opposed to a straight vote on the Senate bill without the opportunity to add a number of House-only provisions, including those benefitting the LGBT community,” said Goodman.

The Human Rights Campaign’s Legislative Director, Allison Herwitt, said the group is “disappointed that the Senate did not include any of the LGBT-specific provisions that we have been working to advance throughout the health reform debate.”

While Herwitt said HRC would “continue to push the congressional leadership to ensure that critical protections for LGBT people are part of the final measure,” she acknowledged that the conference negotiations “will undoubtedly be complex and difficult on a range of issues.”

Michael Mitchell, the new executive director of the National Stonewall Democrats, says he’s the “eternal optimist” and hopes the pro-LGBT provisions can be retained in the final bill.

Mitchell says Stonewall Democrats endorsed a “robust public option” and support the overall health care reform legislation as a way to help LGBT people. That, he says, is because most health care insurance systems are based on relationship status, making it more difficult for most LGBT people to get insurance in the first place. And those who are able to obtain insurance through their partner or spouse’s employer’s plan have to pay taxes on it.

Charles Moran, national spokesperson for the Log Cabin Republicans, said his group is “firmly opposed” to the overall health care legislation as a matter of core Republican principle. But they do support the pro-gay provisions and are “worried those might get jettisoned” during the conference.

“First they dropped abortion,” said Moran. “We’re next.”

The lion’s quiet roar

The late U.S. Senator Ted Kennedy was seen as one of Congress’ strongest supporters of civil rights for gays, yet in his autobiography, True Compass, he mentions almost no gay people and says almost nothing about civil rights for gays. The one exception was a brief recollection of a meeting he and other senators had with President Bill Clinton who had asked to hear their views concerning gays in the military.

Ted Kennedy - True Compass
Ted Kennedy - True Compass

The late U.S. Senator Ted Kennedy was seen as one of Congress’ strongest supporters of civil rights for gays, yet in his autobiography, True Compass, he mentions almost no gay people and says almost nothing about civil rights for gays. The one exception was a brief recollection of a meeting he and other senators had with President Bill Clinton who had asked to hear their views concerning gays in the military. Kennedy said he spoke in favor of allowing gays to serve but that many of his Democratic colleagues on the Armed Services Committee aired views similar to ones plied against blacks and women. Then came Robert Byrd of West Virginia: “Senator Byrd stood up and declared to the president in emotional tones that except for his relationship with his wife, his most sacred possession … was his grandson. And that he would never, never, ever, ever let his grandson go off to the military if we were going to have gays there.” Then he began speaking of young military boys in ancient Rome “being turned into sex slaves.” To his credit, President Clinton stood up and said there was nothing in the Ten Commandments about homosexuality, and sent the senators on their way. Kennedy said he thinks a new policy could have allowed gays to serve if Clinton “had laid the groundwork in the right way.”