- Employment Non-Discrimination Act
The Employment Non-Discrimination Act (ENDA), is a proposed U.S. federal law that would prohibit
discriminationagainst employees on the basis of sexual orientation. Currently, there are two versions of the bill:
*USBill|110|H.R.|2015, introduced on April 24, 2007 by Representatives
Barney Frank, Chris Shays, Tammy Baldwin, and Deborah Pryce, "does" include gender identitywithin its protections; and
*USBill|110|H.R.|3685, introduced by Representative Frank on September 27, 2007 and passed by the Education and Labor Committee on October 18, does "not" include
gender identitywithin its scope. On November 7, 2007, H.R. 3685 was passed by the House of Representatives by a vote of 235 to 184 (14 members did not vote). [http://clerk.house.gov/evs/2007/roll1057.xml]
Under both versions, the bill provides employment protections similar to those of the
Civil Rights Act of 1964[http://finduslaw.com/civil_rights_act_of_1964_cra_title_vii_equal_employment_opportunities_42_us_code_chapter_21 Civil Rights Act of 1964] ] (also known as "Title VII"), but specifically directed to gay, lesbian, bisexual (and under HR 2015, transgender) employees. The bill is different from Title VII in that it contains exemptions concerning employer dress codes. While the first bill on the subject of sexual orientation discrimination was introduced in Congress in 1974, the first bill using the current title of "Employment Non-Discrimination Act" was introduced in 1994. It failed in 1994 and 1995, though by 1996, missed passage in the Senate by a 49-50 vote. [Manley, Roslyn. (June 17, 2003) [http://www.tgcrossroads.org/news/?aid=740 New "Unified" Bill to Replace ENDA: A Left Coast Perspective] TG Crossroads. Accessed October 20, 2007.] The most recent version of the bill, introduced by Representative Frank, no longer includes language regarding protections for transgenderpeople and has been protested by many LGBTrights organizations in the United States, with the exception of the Human Rights Campaign. [Schindler, Paul. (October 4, 2007) [http://www.gaycitynews.com/site/news.cfm?newsid=18883568&BRD=2729&PAG=461&dept_id=568864&rfi=6 HRC Alone in Eschewing No-Compromise Stand] Gay City News. Accessed October 8, 2007.]
Currently, 13 states and the
District of Columbiahave policies protect against both sexual orientationand gender identitydiscrimination in employment: California, Colorado, Connecticut, Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washingtonin the public and private sector. Hawaii, Maryland, Massachusetts, Nevada, New Hampshire, New Yorkand Wisconsinhave state laws that protect against discrimination based on sexual orientation only. Fifteen other states have laws [Weiss, Jillian Todd. (July 23, 2007) [http://transworkplace.blogspot.com/2007/03/how-many-states-have-law-covering.html How many states have law coverning gender identity?] Transgender Workplace Diversity Blog. Accessed October 20, 2007.] that have been interpreted to protect transgender persons.
Arguments in favor of ENDA
Most proponents of the law intend it to address cases where
gay, lesbianand/or transgenderemployees have been discriminated against by their employer because of their sexual orientation or gender identity. Currently, these employees are unable to find protection in the judicial systemof most US states. Proponents argue that such a law is appropriate in light of the US Constitution's guarantees of equal protection and due process to all. Advocates say that being gay, lesbian, bisexual or transgender is not a "lifestyle," but an identity [ [http://www.apa.org/pi/lgbc/publications/enda.html Examining the Employment Nondiscrimination Act (ENDA): The Scientists Perspective] American Psychological Association. Accessed October 20, 2007.] , and that the "special rights" argument does not apply to a group subject to widespread prejudice. According to a study published in 2001 by the Williams Institute at the UCLA School of Law, reports of discrimination based on sexual orientation are roughly equal to those on race or gender. [Rubenstein, William B. (January 30, 2002) [http://www.law.ucla.edu/williamsinstitute/programs/dogayrightslawsmatter.pdf Do Gay Rights Laws Matter?: An Empirical Assessment] The Williams Institute, UCLA School of Law. Accessed October 20, 2007.] There are also studies showing that local anti-discrimination laws are ineffective, and federal law is needed. [Flatt, Victor. (November 21, 2006) [http://uhlawblog.lexblognetwork.com/tags/employment-nondiscrimination-act/ We need Federal Law to Protect Gays and Lesbians from Discrimination] University of Houston Law Center Faculty Blog. Accessed October 20, 2007.]
The bill exempts small businesses, religious organizations and the military. Religious businesses (such as Christian book stores) are not exempted.
Cost estimates from the Congressional Budget Office from 2002 show that the EEOC estimated that their complaint caseload would rise by only 5 to 7%. [(April 24, 2002) [http://www.cbo.gov/showdoc.cfm?index=3527&sequence=0 CBO Cost Estimate: S. 1284 Employment Non-Discrimination Act of 2002] Congressional Budget Office. Accessed October 20, 2007.] Regarding constitutionality, the act incorporates language similar to that of Title VII of the Civil Rights Act of 1964 which has consistently been upheld by the Courts.
Arguments against ENDA
ENDA has raised concerns over conflicts between gay rights and religious freedoms. [cite news
title=Collision of religious and gay rights in the workplace
last=Ritter] Judith Moldover explained that "The conflict between sexual orientation discrimination and the duty to accommodate religious bias against homosexuals typically arises in three types of situations: refusal to service homosexual clients, refusal to participate in diversity programs and training, and supervisory conduct." [cite news
title=Employer's Dilemma: When Religious Expression and Gay Rights Cross
publisher=New York Law Journal
date=October 31, 2007]
Some opponents say that groups as Christian book stores would be forced to either close or hire employees who do not share the basic teachings of their faith [Association of Christian Schools [http://www.aacs.org/news.php?id=90 Congress Puts Christian Liberties At Risk.] Accessed November 8, 2007] . (Rep. George Miller (D-CA) has introduced an amendment to ENDA that expands the religious exemption to include all religious organizations).
Some opponents of the law also argue that "sexual preference" is a choice. They say the law creates a protected class that "promotes" homosexuality [Bilson, Vic. [http://www.jeremiahproject.com/trashingamerica/enda.html Affirmative Action for Homosexuals] Jeremiah Project. Accessed October 20, 2007.] and negatively affects their interpretation of family values. [Knight, Robert H. and Ervin, Kenneth L. (February 27, 2002) [http://www.cultureandfamily.org/articledisplay.asp?id=2578&department=CFI&categoryid=papers Talking Points: The Employment Non-Discrimination Act] Concerned Women for America: Culture and Family Issues. Accessed October 20, 2007.]
History of ENDA
On May 14, 1974, the fifth anniversary of the
Stonewall Rebellion, Representatives Bella Abzug and Ed Koch [(October 13, 2007) [http://www.stonewallvets.org/BellaAbzug.htm U.S. Congressmember Bella S. Abzug] Stonewall.org. Accessed October 20, 2007.] introduced H.R. 14752, the "Gay Rights Bill." The bill would have added "sexual orientation" to the 1964 U.S. Civil Rights Act.
In the early 1990s, a new strategy emerged. Rather than trying to obtain all of the rights in the Civil Rights Act, the legislative efforts focused on employment rights, and the "Equality Act" was renamed the "Employment Non-Discrimination Act," (H.R. 4636/S.2238) and introduced by Rep. Gerry Studds on June 23, 1994. [Congressional Record, 103rd Congress, 2d Session, 140 Cong. Rec. E 1311; Vol. 140 No. 81 (June 23, 1994).] The legislation failed in 1994 and 1995. [Wendland, Joel. (April 9, 2007) [http://www.law.ucla.edu/williamsinstitute/press/ANewBeginningforENDA.html A New Beginning for ENDA] The Williams Institute, UCLA School of Law. Accessed October 20, 2007.] In 1996, the bill came within one vote passage in the Senate and was not voted on in the House [Bull, Chris. (May 13, 1997) [http://findarticles.com/p/articles/mi_m1589/is_n733/ai_19736014 No ENDA in sight - Employment Non-Discrimination Act of 1996] The Advocate. Accessed October 20, 2007.] , its success perhaps spurred by backlash from the recently passed DOMA, the "Defense of Marriage Act" that permitted states to ignore same sex marriages from other states. HRC sets out the timeline of ENDA introductions.
Transgender inclusion in ENDA
Previous versions of ENDA have not included provisions that protect
transgenderpeople from discrimination. The latest version of the proposed legislation does contain such provisions, including a specific definition of gender identity, as well as exemptions for employer dress codes and locker rooms [Weiss, Jillian Todd. (April 26, 2007) [http://transworkplace.blogspot.com/2007/04/text-of-enda.html The text of ENDA] Transgender Workplace Diversity Blog. Accessed October 20, 2007.] , however these provisions will be removed from ENDA again and put into a separate bill. [Eleveld, Kerry. (September 29, 2007) [http://www.advocate.com/news_detail_ektid49439.asp ENDA to Be Separated Into Two Bills: Sexual Orientation and Gender Identity] The Advocate. Accessed October 20, 2007.]
The inclusion of transgender employees in ENDA has long been debated [Weiss, Jillian Todd. (November 1, 2006) [http://transworkplace.blogspot.com/2006/11/us-federal-bill-for-gender-identity.html U.S. Federal bill for gender identity protection] Transgender Workplace Diversity Blog. Accessed October 20, 2007.] [Curry, Wendy. (September 28, 2007) [http://curriedspam.livejournal.com/6903.html No ENDA without "T"] Curried Spam. Accessed October 20, 2007.] in the
LGBTcommunity. One argument is that transgender individuals are already covered under existing laws prohibiting employment based on gender stereotypes.
In 1999, the
National Gay and Lesbian Task Forcebecame the first LGBT civil rights organization to stop work on ENDA because of its lack of transgender-inclusion. In the years until now, it has worked to build a LGBT community consensus to only support a trans-inclusive bill, and participated in redrafting the fully trans-inclusive version for the 110th Congress. ENDA now enjoys the unequivocal support of a large coalition of civil rights, labor and religious organizations. In August 2004, the Human Rights Campaign– an LGBTorganization that is among the primary lobbyists for the bill – announced that it will only support passage of ENDA if it included gender identity protections as well. However, in November 2007, it reneged on its stance and supported a non-inclusive ENDA instead. [Sandeenm, Autumn. (November 6, 2007) [http://www.pamshouseblend.com/showDiary.do?diaryId=3543 Breaking: The HRC Now Supports ENDA Without Perceived Gender Protections] Accessed May 2008.] A 2004 article by Matt Foreman, the executive director of the National Gay and Lesbian Task Force discusses. [Foreman, Matt. (August 3, 2004) [http://www.tgcrossroads.org/news/?aid=935 ENDA as We've Known It Must Die] TG Crossroads.org. Accessed October 20, 2007.]
Here are the sections pertinent to gender identity:
Section 3 (a) (6) GENDER IDENTITY- The term 'gender identity' means 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.
Section 8(a)(3) CERTAIN SHARED FACILITIES- Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen fully unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee's gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.
Section 8(a)(4) DRESS AND GROOMING STANDARDS- Nothing in this Act shall prohibit an employer from requiring an employee, during the employee's hours at work, to adhere to reasonable dress or grooming standards not prohibited by other provisions of Federal, State, or local law, provided that the employer permits any employee who has undergone gender transition prior to the time of employment, and any employee who has notified the employer that the employee has undergone or is undergoing gender transition after the time of employment, to adhere to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning.
After an unofficial whip count conducted by the House Democratic leadership on or about September 26, 2007, it allegedly appeared that some members of Congress were unsure about voting for ENDA in its inclusive form, that is, including both sexual orientation and gender identity. This suggested there were not enough definite yes votes to ensure passage. However, if the legislation only contained prohibitions on sexual orientation discrimination, there were enough votes. As a result, one of the lead sponsors, Representative Frank, proposed a new bill, H.R. 3685, that contained only prohibitions on sexual orientation discrimination.
This posed a problem for GLBT advocacy organizations, many of which had pledged not to support a non-inclusive ENDA. Approximately 250 such organizations stated, in response, that they would not support H.R. 3685. See [http://www.thetaskforce.org/activist_center/ENDA_oct1_letter for the letter] setting forth these organizations and their position. A campaign began to call members of Congress to ask they support the original bill, and the scheduled markup of H.R. 3685 was postponed by the Democratic leadership. See http://nosubstitutes.org for one example of such a campaign. No decision has yet been announced regarding which bill will move forward.
An important part of the controversy is whether it is better to move forward to pass a bill now that protects the majority of GLBT people, and to try to enact a bill on gender identity protection in the future, or whether it is better to move forward with an inclusive bill and to use it to educate members of Congress and their constituents, even though the bill may not pass.
Those who argue that ENDA should move forward as an inclusive bill note that President Bush is expected to veto it regardless of whether it contains gender identity or not, so this is not a choice between protecting some people or none. In addition, unfairly excluding transgender people would undermine the underlying principle of ENDA, which is that fairness is a fundamental American principle, and it is unfair to fire or refuse to hire people based on identity, rather than job performance or qualifications. They also claim that the process of moving the inclusive bill forward will educate people about transgender identity, which will make it easier to pass in a future Congress when there is a Democratic president. In addition, failure to include gender identity/expression will weaken the protection for the portion of the gay population that needs it most: gender non-conforming gays, who are discriminated against in greater numbers than their gender-conforming compatriots. The courts would narrowly interpret a sexual-orientation-only ENDA as not covering anti-gay discrimination that stems from gender expression. See [http://ga4.org/ct/5dwu1Cp1kmiv/] and [http://transworkplace.blogspot.com/2007/09/enda-sin-of-omission.html] and [http://www.bilerico.com/2007/09/a_moment_of_truth.php] for examples of an argument to move ENDA forward as an inclusive bill, and [http://www.salon.com/opinion/feature/2007/10/08/lgbt/index_np.html?source=rss] as a counterargument.
Those who argue that ENDA should move forward with sexual orientation only, with another bill to be introduced on the subject of gender identity, say that there is a grave risk if the inclusive bill fails in the House. It will make it almost impossible to pass any form of ENDA in the near future because members of Congress would be concerned about charges of flip-flopping if they vote against it now and vote in favor of it later on. Furthermore, they note that creating a sexual-orientation-only bill is not a slight against transgender people, but rather, recognition of a political reality that the bill cannot pass with gender identity included. More education is needed on the subject of transgender identity, which will take some years, and then, in the more favorable climate created once ENDA is passed, a gender identity bill can be enacted. Lastly, they argue that a sexual-orientation-only ENDA will protect gender non-conforming gays and lesbians because any gender expression discrimination is virtually always accompanied by sexual orientation discrimination. They dispute the contention that courts would narrowly interpret ENDA, and note that the one case put forward in support of this contention, See [http://volokh.com/posts/1191697324.shtml] and [http://www.bilerico.com/2007/09/guest_post_on_enda_from_congressman_fran.php] as examples of the argument in favor of moving forward with a non-inclusive ENDA, and [http://transworkplace.blogspot.com/2007/10/volokh-conspiracy-gets-it-wrong.html] as an example of a counter-argument.
As of November 7, 2007 5:00 EST, the Baldwin amendment, HR 2015 has been withdrawn. ENDA will move forward without gender identity language.
* [http://www.unitedenda.org United ENDA]
* [http://www.transgenderlawcenter.org/one_bill.htm One Bill, One Vote]
* [http://www.nosubstitutes.org Website for NoSubstitutes.org, a group that endorses trans-inclusion in ENDA]
*http://www.hrc.org/laws_and_elections/enda.asp Website for the Human Rights Campaign, a group that endorses ENDA
* [http://transworkplace.blogspot.com Transgender Workplace Diversity blog] discusses gender identity inclusion issues
* [http://www.nela.org National Employment Lawyers Association website (endorsing ENDA).]
* [http://www.apa.org/pi/lgbc/publications/enda.html A pro-ENDA examination of the bill]
* [http://www.tgcrossroads.org/news/?aid=740 An article regarding adding transgender protections to ENDA]
* [http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_senate_hearings&docid=78-032 Transcript of the 2002 Senate Hearings on ENDA]
* [http://www.ahrf.org/Portals/0/ENDA.pdf A 2005 analysis by the Arizona Human Rights Foundation discusses ENDA's history, the corporate response to it, religious issues and gender identity inclusion issues]
* [http://campusprogress.org/opinions/2188/infighting-enda A Campus Progress debate about ENDA and gender-identity protections.]
* [http://www.eeocoffice.com Directory of EEOC and state anti-employment discrimination agencies]
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