Baldwin fights for trans-inclusive ENDA
by Lisa Keen
LGBT organizations and community activists continued to rally after last week's bruising intra-community battle over whether to seek a vote on a version of ENDA that includes only sexual orientation protection or insist that the legislation retain its protection for people based on gender identity.
But the line is drawn – between those who believe a two-bill strategy has the prospects for success in the near future and those who believe the stand-alone sexual orientation version is both a flawed version and a betrayal of transgender people in the LGBT community.
Representative Tammy Baldwin (D-Wisconsin), one of two openly gay members of Congress who are leading efforts to pass pro-LGBT legislation, broke her public silence on the controversy this week.
Baldwin said she is putting "100 percent" of her effort into "making sure have the support necessary to pass a transgender inclusive bill." While she said there is no definitive date for when the House Committee on Education and Labor will begin consideration on some form of the Employment Non-Discrimination Act, "everything I know tells me to urge readers who are supportive of an inclusive ENDA to exercise their citizen responsibility in communicating that and making sure all members of Congress are hearing that we want to move forward with a [transgender] inclusive ENDA."
"I don't know how this is going to end up playing out," said Baldwin. "But if we don't speak out, it's less likely to be a positive result. And if we do speak out, it will matter, and it may matter a lot in the next few days."
Representative Barney Frank (D-Massachusetts) is the other openly gay member of Congress pushing for passage of protection against employment discrimination. Frank startled many in the LGBT community late last month when he revealed a two-bill strategy just prior to a scheduled vote in the House education and labor committee. That strategy would split ENDA into two bills. One bill, HR 3685, would prohibit discrimination in the workplace based on homosexual, heterosexual, or bisexual sexual orientation.
In the past week, that version's co-sponsors have grown from four to nine – seven Democrats and two Republicans. (Four of the Democrats are from California – George Miller of Martinez, Bob Filner of San Diego, Lynn Woolsey of Santa Rosa, and Jan Harman of Venice.)
The other bill, HR 3686, would prohibit discrimination in the workplace based on "the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth." Its co-sponsors have increased from two to seven since last week – the same as HR 3685 but without Democrat Steve Cohen of Tennessee and Republican Deborah Pryce of Ohio.
This year's original version of ENDA (HR 2015), which included both sexual orientation and gender identity, had 171 co-sponsors at its peak.
But in addition to the idea of splitting that version into two bills to be voted on separately, the legislation has, according to Lambda Legal Defense and Education Fund, suffered some revision that renders the sexual orientation stand-alone bill "far weaker" than its predecessor.
Difference of analysis
Frank took on Lambda Legal's criticism of the plan. In an October 3 statement, he said the new sexual orientation only bill was not changed in such a way as to make it possible for an employer to fire a gay person based on his or her "gender expression," or appearance, as Lambda had contended.
"It neither adds nor deletes any reference to employers' rights to fire people based on how they appear," said Frank. "The sexual orientation language in HR 3685 is the same language that has been in every version of ENDA since its first introduction in 1994."
Frank acknowledged that the new version no longer includes a provision that would have preserved the ability of state and local laws requiring that the domestic partners of gay employees receive the same benefits as the spouses of straight employees. A federal ERISA law ( Employee Retirement Income Security Act) sets minimum standards for the pension and health plans of many private employers. But Frank noted that it also "preempts all state efforts to mandate employee benefits" and is "a deeply held principle for all of the employer organizations in America."
While the original version of ENDA this year included a preemption of ERISA, said Frank, "It was a mistake. ..."
"We have in fact insisted all along that ENDA was only about job discrimination in the sense of firing, hiring, promotion etc.," said Frank, "and was not an effort to get domestic partner benefits, civil unions etc." Trying to slip that ERISA preemption in, he said, would have triggered "vigorous opposition" to ENDA by pro-business lobbyists and "guaranteed the defeat of the bill."
Frank said he advised legislators in early August to drop the partner benefit provision "based on a political calculation wholly apart from the transgender issue. ..."
"The fairly broad religious exemption that is in the new bill," said Frank, "is essentially the same broad exemption that we had to give religious groups in previous years." While the original ENDA bill this year tried to mitigate that exemption, said Frank, "opposition from religious groups" to that change "would keep the bill from going forward."
Lambda Legal responded, emphasizing that its disagreement with Frank was over legal analysis and not goals, but it stood by its analysis.
"As our original analysis indicated," wrote Lambda Executive Director Kevin Cathcart in an open letter to Frank October 4, "a version of ENDA that does not prohibit discrimination based on gender nonconformity is inadequate. In cases brought under Title VII [the federal law that prohibits sex discrimination and sexual harassment], employers often try to argue that employees who have been discriminated against or sexually harassed were really discriminated against or harassed based on their sexual orientation, not their sex. ...
"In just the same way, we are very concerned that employers may argue that a law that prohibits sexual orientation discrimination but that intentionally eliminated the protections against discrimination based on gender nonconformity would provide no protection to employees judged by an employer to be non-conforming – that is, men who were judged too effeminate or women judged too masculine."
Lambda Legal also complained that the new version of ENDA eliminates some of the "stronger provisions" of the original version, such as the religious exemption, "without there even being a debate or vote on them."
But its main point, said Lambda Legal, is its opposition to excluding gender identity from the bill.
"It simply is wrong for lesbians, gay men, and bisexuals to seek protection for themselves and leave transgender people in the dust," wrote Cathcart. "... Imagine if the proponents of the 1964 Civil Rights Act had decided that the prohibition against race discrimination included only some racial groups but not others. For gay people to sacrifice transgender people to get protection only for themselves would be wrong."
HRC holds to neutral ground
Meanwhile, more than 150 LGBT groups – with the exception of the Human Rights Campaign – have signed onto a letter to House leadership to "oppose legislation that leaves part of our community without protections and basic security that the rest of us are provided."
HRC, the LGBT community's premiere congressional lobbying organization, is trying to remain neutral in the conflict in order to retain its "relationships with Congress." But, in an October 5 statement, HRC President Joe Solmonese acknowledged that the organization had "come under fire" and that it considers the "incremental" two-bill strategy "not acceptable."
But HRC spokesman Brad Luna reiterated Tuesday that the organization "will not oppose" a stand-alone sexual orientation ENDA if it proceeds.
He said that more than 100 members of HRC's board of governors, lobbyists, and volunteers lobbied members of Congress October 4 for passage of "legislation covering the entire gay, lesbian, bisexual and transgender community."
Two days after that lobby effort, HRC presented House Speaker Nancy Pelosi (D-San Francisco) with its National Equality Award at its annual national gala in Washington, D.C. Demonstrators stood outside the dinner hall with signs urging the organization stand by gender identity. One sign said, "You can't spell equality without a 'T.'" Another said "Leave HRC behind."
In receiving the award, Pelosi said she was committed to "fight for the most inclusive ENDA possible."