With Senate Hearing, Hope for a Jumpstart on ENDA

The long-running campaign to secure federal workplace protections for LGBT employees took another step Tuesday when a Senate panel held the first hearing on the Employment Non-discrimination Act in nearly three years. Almost 90 minutes of proceedings in the Health, Education, Labor and Pensions Committee included the first-ever Senate testimony from an openly transgender witness, who joined three other speakers in making a robust case for the legislation as necessary for workers and helpful for business.

"We are talking about a fundamental American value: equal treatment for all," said Senator Tom Harkin, chairman of the committee in his opening remarks. "Decent, hardworking Americans are being hurt by discrimination every day."

The panel heard from four witnesses in support of ENDA and one opposed during 45 minutes of mid-morning testimony, followed by a question and answer session. Witnesses called by the Democratic majority spoke about the legal, economic and, for the first time in the Senate, the personal impact of discrimination based on gender identity.

"I am a transgender American," said Kylar Broadus, founder of the Trans People of Color Coalition of Columbia, Missouri in his testimony. He told the panel that he had been born a woman and transitioned to become a man. "People have always related to me as a man. That is my essence and my soul. The transition was actually living the truth."

The attorney spoke about his experience being fired from work and set back economically. He said that he had suffered post traumatic stress and dealt with quadrupling in student loan debt because of unemployment and undereomployment. Broadus said his experience was not unique.

"It's devastating, it's demoralizing and dehumanizing to be put in that position. I sit here as a 50-year-old man wondering what I am going to do, and other people are in much worse situations than I."

Harkin acknowledged the historic nature of the moment.

"I'm proud of this committee," he said. "I'm proud of the people in this committee that would invite you here. I want to commend you for your courage in being here and in being who you are because you're going to give courage to a lot of other people."

Ken Charles, vice president of diversity and inclusion for General Mills, spoke about the benefits of non-discrimination to employers and employees. The Minnesota-based cereal company is among the 50% of Fortune 500 companies that have a policy in place that includes gender identity. Some 90% of the companies have a policy that protects for sexual orientation.

"It is absolutely critical that employees are able to bring their full self to work every day," he said. "That allows our organizations to grow and thrive. We believe that ENDA will unleash the potential of thousands and millions of employees to be their full selves."

The committee asked Charles whether he thought ENDA would lead to "costly accommodations and needless litigation" for corporations. He responded "not at all."

M.V. Lee Badgett, research director at the Williams Institute for Sexual Orientation Law and Public Policy at the University of California at Los Angeles, argued that the legislation would improve conditions in the workplace and the bottom line for companies.

"ENDA is necessary to fight discrimination and would benefit both employees and employers," she concluded.

While action may be unlikely in the Republican-controlled House of Representatives for now, advocates are hoping for movement in the Democratic-led senate to showcase the lack of substantial opposition and generate public pressure. A poll last year by the Center for American Progress found that almost three-fourths of voters, including a majority of Republicans, support workplace protections for LGBT employees, but 9 out of 10 respondents mistakenly believe such protections already exist in federal law.

"We build important momentum for ENDA's eventual passage by having it pass in one chamber," said Tico Almeida of Freedom To Work, which is organizing the effort with other groups including CAP and the Human Rights Campaign. "There is significant value to having an affirmative vote on ENDA in the Senate. Given that [Senate Majority Leader] Harry Reid has the ability to make that happen, we believe he should, and we will push him to do so."

Almeida said that because every Democrat on the committee is a sponsor of ENDA, its successful markup and referall for a floor vote would be a " preordained conclusion."

Freedom To Work released a letter as the hearing began Tuesday calling for Reid to hold a vote on the bill this summer. "LGBT Americans need to know whether our elected officials stand with us," said the letter. In an acknowledgement of election year politics, the letter raised the possibility that "some radical Senator may launch a filibuster to block the ENDA legislation that is supported by super-majorities of the American people, in the same way that your attempt to pass the Paycheck Fairness Act for women was filibustered just last week."

Senator Jeff Merkley, the chief sponsor of the legislation, told reporters in a conference call after the hearing that he would defer to leadership on the strategy, but he left no doubt that he wanted to see the bill move.

"I think it's long past time for the senate as a whole to debate and pass this bill," he said. "What we lack at this point is a debate and vote on the floor of the Senate, and I think the time has come."

Merkley cited the fast-evolving political landscape, from corporate policies to public attitudes to the related announcement from President Barack Obama last month that he personally supports marriage equality. During the hearing, Senator Harkin announced that 90 corporations had signed and submitted a letter in support of ENDA.

First introduced in 1994, ENDA has a long and winding legislative history, including a divisive battle over whether to include protections for gender identity. A non-inclusive version of the bill passed the House in 2007, but died in the Senate. The current version of ENDA would provide protections on the basis of sexual orientation and gender identity in civilian, nonreligious employers with at least 15 employees. Some 29 states lack protections for gay, lesbian and bisexual workers, while transgender workers lack protections in 34 states, according to HRC.

Democratic senators hailing from states with employment non-discrimination laws spoke about the lack of negative effects. In addition to Harkin and Merkley, Senators Patty Murray of Washington and Al Franken of Minnesota attended the hearing.

"I think we can all personally attest that in our states the sky has not fallen," said Franken. Minnesota became the first state to include protections against sexual orientation and gender identity discrimination in 1993.

The bill has bipartisan support in the Senate, but no Republican committee members attended the hearing. Senator Mark Kirk of Illinois, a co-sponsor of the bill and HELP committee member, has been absent due to his recovery from a stroke. Senator Susan Collins and Senator Olympia Snowe, both Republicans from Maine, also sponsor the bill.

Senators Collins released a statement that said, "The right to work is a fundamental one. How can we in good conscience deny that right to someone for no other reason than their sexual orientation or gender identity? Especially in today's economy, job security has taken on a renewed importance to all Americans. How can we tell one segment of Americans that they are not entitled to that security because of whom they love?"

The Republican minority on the panel had the option to call two witnesses, but instead it presented only one. Craig Parshal, senior vice President and general counsel of the National Religious Broadcasters Association, also testified against ENDA in 2009. This year, he revived his criticism of a religious exemption that had received an affirmative vote from Speaker John Boehner, Majority Leader Eric Cantor, and Budget Committee chair Paul Ryan, then in the minority.

"The possibilities of confusion of analysis by future courts, I think, are tremendous, and the chilling effect on religious organizations would be monumental," he said. "While discrimination laws are important, so too are the basic fundamental liberties of religious organizations."

Samuel Bagenstos, a University of Michigan who testified in support of ENDA, disputed the claims by Parshal, while Senator Harkin downplayed the issue. "This is a very technical part of the bill," he said.

The legal landscape for transgender individuals has changed dramatically in the time since the last ENDA hearing. In April, the Equal Employment Opportunity Commission ruled that the Civil Rights Act of 1964 protects transgender workers from discrimination. The ruling, which held that such bias constitutes sex discrimination, gives transgender individuals a layer of protection that gay, lesbian and bisexual people still lack on the federal level.

"The world has changed for the transgender community," said Dana Beyer, executive director of Gender Rights Maryland. "It's important that this Congress comes out and says, 'Yes, we agree with it. The price of liberty is eternal vigilance."

While the EEOC ruling may have lessened some energy in advance of the hearing, advocates said that ENDA is still necessary because a different administration or a more conservative Supreme Court could undo the EEOC ruling. Meanwhile, no workplace protections exist in federal law for gay, lesbian and bisexual employees. During the hearing, Begenstos was asked directly whether Title VII was enough to address the problem of discrimination.

"The answer to that is clearly no," he said. "The courts work very hard to draw a link between discrimination that is based on sex stereotypes versus discrimination based on sexual orientation or gender identity. This leads to a great deal of uncertainty. There is a need for a comprehensive, clear federal standard that applies across the country."