Senate Holds Historic ENDA Hearing

The Senate Health, Education, Labor, and Pensions Committee on Thursday held its first hearing on a transgender-inclusive employment nondiscrimination bill, a session that was perhaps most notable for who didn't show up: Republicans.

Not a single GOP senator surfaced during the entire two-hour hearing to voice opposition.

"Even opponents of the bill understand that their position is indefensible, which is why they didn't show up to defend it," said one Senate Democratic aide.

The chair of the HELP committee, Sen. Tom Harkin of Iowa, opened the hearing by framing the legislation as a basic matter of justice. "This issue could not be more simple," Harkin said. "What we are talking about here is a fundamental American value -- equal treatment for all."

Sen. Jeff Merkley of Oregon, lead sponsor of the bill, said, "This bill takes us a major step forward in the path toward equality in America."

Merkley also paid tribute to the late Sen. Edward Kennedy, who introduced the first bill forbidding employment discrimination based on sexual orientation more than 15 years ago. "I know he would have liked to be in this hearing room to continue to push and see the ultimate victory in this battle for civil rights," said Merkley.

Five witnesses testified for the Democrats -- including one gay man but no transgender individuals -- and two for Republicans.

Thomas Perez, assistant attorney general at the Department of Justice, called passage of ENDA "a top legislative priority for the Obama administration."

"The Civil Rights Division and other federal civil rights agencies regularly receive letters and inquiries from individuals all over the country complaining of sexual orientation and gender identity discrimination in employment," Perez said. "It is painfully disappointing to have to tell these working men and women that, in the United States of America in 2009, they may well be without redress because our federal employment antidiscrimination laws either exclude them or fail clearly to protect them."

Colorado School of Law professor Helen Norton highlighted the point by citing a number of cases in which rulings rejected discrimination claims due to lack of legal standing.

"Sidney Taylor alleged that his coworkers repeatedly subjected him to a wide range of abusive behaviors that included groping his genitals," said Norton. Although a federal court wrote that Taylor's coworkers' actions were "deplorable and unacceptable," she said, "it ruled against him on grounds that current law does not prohibit harassment based on sexual orientation or perceived sexual orientation."

Michael Carney, an out Massachusetts police officer, gave personal testimony about staying closeted to avoid discrimination. "Every time my partner and I rolled into a domestic or a gun call, all I could think of was, Who would notify my life partner?" he said of the prospect of being wounded or killed on the job. "Would he first learn of my shooting on the 11 o'clock news?"

The two witnesses testifying for the Republicans also appeared at the House hearing: Craig Parshall, senior vice president of the National Religious Broadcasters; and Camille Olson, a partner at the law firm Seyfarth Shaw LLP.

Parshall said the bill would create "massive uncertainty" among religious groups and impinge on their religious freedoms.

Professor Norton flat-out rejected his assertion, explaining that the legislation actually adopts even stronger religious protections than those that are included in Title VII, the employment nondiscrimination portion of the 1964 Civil Rights Act.

Title VII permits certain religious employers to discriminate based on someone's religious beliefs but not based on their race or gender. The Employment Non-Discrimination Act actually allows religious organizations more latitude by permitting them to discriminate based on sexual orientation and gender identity.

"ENDA for the first time would exempt religious institutions from other civil rights protections," Norton explained after the hearing.

Although no transgender witness testified, Meghan Stabler, a trans woman who sits on the HRC board of directors, said she was pleased with the discussion of trans issues.

"For me, gender identity came across enough times to be forceful enough in all the testimony as well as the questions," said Stabler, adding that she still would have preferred to have a member of the trans community testify.

Diego Sanchez, a trans man and staffer for Rep. Barney Frank, said having a transgender witness would have been particularly helpful since the subject is so misunderstood. "If the biggest piece of discussion about this bill is gender identity, then it's only logical that you would want to cast the light on the one part that people understand the least," he said.

Following the hearing, Senator Harkin said he expected to take action on the bill next year.

But he declined to speculate about where it stood on the legislative priority list alongside issues like immigration reform and climate change. "I wouldn't put it in any kind of a line up," Harkin said. "It's one of the those kinds of things where, if the leadership - Senator Reid - sees an opening, we'll move it."

Senator Merkley acknowledged that other priorities were slowing down the process. "Health care reform is having an impact on all the major conversations we're having in this building," he said. "But our goal was to have a hearing on this legislation this fall in preparation for trying to move this legislation next spring."

Asked if there was any consideration that transgender protections might be dropped from the bill, Merkley said simply, "No."