House Holds ENDA Hearing

The House Education and Labor Committee Wednesday convened a hearing on the transgender-inclusive Employment Nondiscrimination Act [H.R. 3017], which would expand federal employment protections to workers on the basis of sexual orientation and gender identity.

"H.R. 3017, the Employment Nondiscrimination Act, will ensure that employment decisions are based on merit and performance and not prejudice," said Representative George Miller of California, who chairs the committee. "For more than three decades, gay, lesbian, bisexual, and transgender Americans have waged a courageous campaign for their workplace rights. I regret that they had to wait so long for us to respond."

The 3.5-hour hearing was mostly dominated by the testimony of pro-LGBT witnesses and questions from lawmakers who generally favor the bill. Those who opposed the legislation were few and even their arguments mostly lacked the incendiary rhetoric that sometimes accompanies LGBT issues.

"The questions that we heard, even from members who may not be thrilled with ENDA, were actually very technical issues," said Rea Carey, executive director of the National Gay and Lesbian Task Force. "They were not the arguments that we have heard over the past 20 years that have been degrading, insulting and inhumane. I think that bodes well for the passage of ENDA."

Representative Barney Frank of Massachusetts, lead sponsor the bill, kicked off the testimony with his usual flair.

"I find it hard to argue for legislation that bans discrimination," he said. "It just seems to me so self evident that an American who would like to work and support himself or herself ought to be allowed to do that judged solely on his or her work ethic and talents ... Sometimes, we've been accused -- those of us who are gay and lesbian -- of having a radical agenda. As I look at radicalism through history, trying to get a job or trying to join the military have not been the hallmarks of radicalism."

Those who testified in favor of the bill also included Representative Tammy Baldwin of Wisconsin; The Honorable Stuart Ishimaru, chairman of the U.S. Equal Opportunity Employment Commission; Professor William Eskridge of Yale Law School; Rabbi David Sapperstein, director of the Religious Action Center of Reform Judaism; Brad Sears, executive director of The Williams Institute; and Vandy Beth Glenn, a former Georgia state legislative aide who had been fired due to her gender identity.

Glenn recounted being asked by her supervisor, Sewell Brumby, whether she really intended "to come to work as a woman" at which point she responded, yes.

"Then Mr. Brumby told me that people would think I was immoral. He told me I'd make other people uncomfortable, just by being myself. He told me that my transition was unacceptable. And, over and over, he told me it was inappropriate," she said. "Then he fired me."

Shannon Minter, legal director at the National Center for Lesbian Rights, later observed, "You could physically see the impact of Glenn's testimony on a number of the representatives that were here today."

Sears of the Williams Institute presented statistical data that led him to conclude, "There is a widespread and persistent pattern of unconstitutional discrimination" against LGBT state and local government employees.

In one example, Sears cited a 2009 survey of over 1,900 LGBT employees of state universities nationwide that showed more than 13 percent of respondents had been discriminated against that year.

The main opposition came from GOP Representative John Kline of Minnesota and Craig Parshall, senior vice president and general counsel for the National Religious Broadcasters Association.

In his opening statement, Kline said the legislation "creates an entirely new protected class that is vaguely defined and often subjective. For instance, the legislation extends protections bas on - quote - 'perceived' sexual orientation." These "vaguely defined" terms would result in an "explosion of litigation," he added.

Kline also raised concerns that trying to discern someone's gender identity while they were in transition or prior to gender reassignment surgery would be "ambiguous."

Parshall focused much of his criticism of ENDA on what he deemed to be its insufficient religious protections, saying the bill "would impose a substantial and crippling burden on religious organizations."

The language of the bill currently adopts even stronger religious protections than those that are included in Title VII, the employment discrimination portion of the 1964 Civil Rights Act.

NCLR's Minter explained that Title VII permits certain religious employers to discriminate based on religion but not based on "race" or "gender." ENDA actually allows those religious organizations more latitude by permitting them to discriminate based on sexual orientation and gender identity.

But Parshall worried that future courts might conclude that "gender identity" discrimination is tantamount to discrimination based on "sex" and, therefore, find that discriminating against someone because of their gender identity is a violation of Title VII.

Representative Rob Andrews of New Jersey tried to diffuse the Title VII argument early in the hearing by demonstrating that Title VII protections were never questioned by conservatives during President George W. Bush's term.

"During the eight years of the Bush Administration, was there any attempt to broaden the religious exemptions in Title VII," he asked EEOC Chair Ishimaru, who testified on behalf of the Obama Administration.
"Not that I'm aware of," Ishimaru responded.

Following the hearing, Congressman Frank told The Advocate that he was "optimistic" about the prospects for the bill and expected a House vote to take place "before the end of the year."

"I'm not worried about getting to 218," he said of the magic number for passage in the House. "The key is whether we can get to 60 in the Senate."
Frank added that one potential hurdle could arise if Republicans offer a "motion to recommit" in an attempt kill the legislation by sending it back to committee.

During the 2007 vote on ENDA, which passed 235-184 with 35 Republicans, GOP members offered a recommittal motion that was ultimately blocked by majority vote.

"The problem is this, in the past, Republicans who have been with us substantively, have defected on the recommittal motion," he explained. "We got a lot of Republicans on the final bill, but that was almost meaningless because most of them voted for a recommittal motion that would have killed it. Fortunately, we were able to stop the motion."

Frank said Republicans could make another attempt to block the bill this year, possibly by targeting gender identity protections.

"There is some potential that the Republicans will come up with a recommittal amendment that will try to exacerbate or exploit some fear about transgenders," he said.

Whatever the Republicans decide will remain a mystery until shortly before the vote. "They won't tell us until about 20 minutes before," he said.

But Frank added that "there's no question" opposition to the bill has diminished due to lobbying efforts by the transgender community and the House hearings on trans workplace discrimination last summer.

"It also helped that we went through with [a vote on] the bill last session," he said, "because we had people nervous about voting for ENDA at all. Now, most of them having voted for it and not having any political problems aren't worried about it."