ENDA to Be Separated Into Two Bills: Sexual Orientation and Gender Identity

Rep. Barney Frank will be introducing two separate versions of the Employment Non-Discrimination Act: one that prohibits discrimination on the basis of sexual orientation and another one that does the same regarding gender identity. The ENDA bill without trans inclusion will be marked up by the chamber's Education and Labor Committee next Tuesday so that it can be sent to the House floor for a vote, Steven Adamske, a spokesman for Frank, told The Advocate.

BY keleveld

September 28 2007 11:00 PM ET

Rep. Barney Frank
will be introducing two separate versions of the
Employment Non-Discrimination Act: one that prohibits
discrimination on the basis of sexual orientation and
another one that does the same regarding gender
identity. The latter would protect transgender
people, including those who have had sexual
reassignment surgery and those who are living as the
opposite sex from which they were born.

The ENDA bill
without trans inclusion will be marked up by the chamber's
Education and Labor Committee next Tuesday so that it can be
sent it to the House floor for a vote, Steven Adamske,
a spokesperson for Frank, told The Advocate.

“The other
one, GENDA if you will, will move on a separate track and
will give the ability for the committee and other
lawmakers to hold hearings on it and better educate
other lawmakers,” Adamske added.

The original bill
that was cosponsored by Frank included protections for
sexual orientation and gender identity. Frank and House
leadership decided to split the measure in two after
they said a preliminary “whip” vote
revealed the original bill didn’t have enough votes
to pass due to the trans-inclusive language.

Advancing two
separate bills has, at least temporarily, set House leaders
and LGBT activists on opposite sides of the fence.

Mara Keisling,
executive director of the National Center for Transgender
Equality, said she wasn’t convinced the original
trans-inclusive bill couldn’t pass. “We
think the bill was pulled prematurely and abruptly,”
said Keisling. “Because they pulled the bill,
we’ll never know.”

Keisling said the
language of the two new bills was probably close to
identical, with the exception that the gender identity bill
had some shower and dressing room provisions that were
specific to trans people.

“It is
disheartening to see that a bill, drafted over several years
through a collaborative effort of LGBT advocates and allies,
would be rejected without the counsel or assent of a
single one of these organizations,” read a
statement released by NCTE Friday morning.

On Thursday, 11
other organizations, including the National Gay and
Lesbian Task Force and National Stonewall Democrats, joined
NCTE in opposing removal of the transgender
protections from the original bill. The Human Rights
Campaign said it did not “assent” to stripping
trans language from ENDA but had yet to indicate how
it will proceed now that two separate bills have
emerged.

The Washington Post
editorialized about the
controversy Friday morning, saying, “It requires
time and patience to educate the public and lawmakers
about how prejudice harms some people.…
Delaying passage of ENDA, which was first introduced in the
House in the mid 1970s by Rep. Bella Abzug (D-N.Y.), until
the transgender community changes enough hearts and
minds would be a mistake.”

UPDATE: HRC, Rep. Barney Frank, and Speaker of
the House Nancy Pelosi released statements Friday
afternoon. HRC's statement can be found here, while statements from Pelosi
and Frank follow.

Speaker Nancy
Pelosi:

“For my 20
years in Congress, ending discrimination against gays and
lesbians has been a top priority of mine. The Employment
Non-Discrimination Act, ENDA, sponsored by Congressman
Barney Frank, is an historic advancement for gays and
lesbians and their families. I am proud to be the
first speaker to bring this legislation to the House
floor, which was first introduced in 1994.

“While I
personally favor legislation that would include gender
identity, the new ENDA legislation proposed by
Congressman Frank has the best prospects for success
on the House floor.

“I will
continue to push for legislation, including language on
gender identity, to expand and make our laws more
reflective of the diverse society in which we
live.”

Rep. Barney
Frank:

“Being in
the legislative minority is easy -- pulling together to
block bad things does not require a lot of agonizing
over tough decisions. Being in the majority is a mixed
blessing. On the one hand, we have the ability to move
forward in a positive way on important public policy
goals. Detracting from that is the fact that it is never
possible for us at any given time to get everything
that we would like, and so we have to make difficult
choices. But it is important to remember that the good
part of this greatly outweighs the bad. Going from a
situation in which all we can do is to prevent bad
things from happening to one in which we have to
decide exactly how much good is achievable and what
strategic choices we must make to get there is a great
advance.

“The
current manifestation of this is the difficult set of
decisions we face regarding the Employment
Non-Discrimination Act. We are on the verge of an
historic victory that supporters of civil rights have been
working on for more than thirty years: the passage for
the first time in American history by either house of
Congress of legislation declaring it illegal to
discriminate against people in employment based on their
sexual orientation. Detracting from the sense of
celebration many of us feel about that is regret that
under the current political situation, we do not have
sufficient support in the House to include in that bill
explicit protection for people who are transgender.
The question facing us -- the LGBT community and the
tens of millions of others who are active supporters
of our fight against prejudice -- is whether we should pass
up the chance to adopt a very good bill because it has
one major gap. I believe that it would be a grave
error to let this opportunity to pass a sexual
orientation nondiscrimination bill not go forward, not
simply because it is one of the most important
advances we’ll have made in securing civil
rights for Americans in decades, but because moving
forward on this bill now will also better serve the ultimate
goal of including people who are transgender than
simply accepting total defeat today.

“When the
bill banning sexual orientation discrimination was first
introduced by Bella Abzug and Paul Tsongas more than thirty
years ago, it was a remote hope. Over time because of
a good deal of work, education of the general public,
and particularly the decision by tens of millions of
gay and lesbian people over that time to be honest about our
sexual orientation, we have finally reached the point
where we have a majority in the House ready to pass
this bill. Those of us who are sponsoring it had hoped
that we could also include in the prohibition discrimination
based on gender identity. This is a fairly recent addition
to the fight, and part of the problem we face is that
while there have been literally decades of education
of the public about the unfairness of sexual
orientation discrimination and the inaccuracy of the myths
that perpetuated it, our educational efforts regarding
gender identity are much less far along, and given the
prejudices that exist, face a steeper climb.

“We
introduced legislation opposing sexual orientation
discrimination with explicit inclusion of gender
identity for the first time this year. Earlier this
session under the leadership of Speaker Pelosi, we were able
to get through the House a hate crimes bill that provided
protection against crimes of violence and property
damage for lesbian, gay and bisexual people and people
who are transgender. There was some initial resistance
to the inclusion of transgender people but a very organized
effort on the part of Congresswoman Baldwin, who took a
major role in this, myself, and the Democratic
leadership allowed us to overcome it, with the support
of some of our Republican colleagues.

“We then
began the work on passing a transgender inclusive ENDA. I
was optimistic at first that we could do this,
although I knew it would be hard. One of the problems
I have found over the years of discussing this is an
unwillingness on the part of many, including leaders in the
transgender community, to acknowledge a fact: namely that
there is more resistance to protection for people who
are transgender than for people who are gay, lesbian
and bisexual. This is not a good fact, but ignoring
bad facts is a bad way to get legislation passed. I have for
some time been concerned that people in the
transgender leadership were underestimating the
difficulty we faced in a broadly inclusive bill being
adopted.

“Still
this seemed to me an effort very worth trying, and, when I
testified before the Education and Labor Committee on ENDA I
spent much of my time explicitly addressing the need
to include transgender people. In fact, I believe I
spent more time on that than any other witness. Sadly,
as the time approached for the vote to be taken in the
Committee, we encountered a good deal of resistance.
The great majority of Democrats remained committed to
this, but with Republicans overwhelmingly likely to be
opposed -- even on hate crimes on the critical vote we were
able to retain only nine Republican supporters out of
two hundred Republican Members -- it became clear that
an amendment offered by Republicans either to omit the
transgender provision altogether or severely restrict
it in very obnoxious ways would pass.

“Responding thoughtfully to this requires people to
accept facts. Some have tried to deny this unpleasant
reality. The Democratic leadership, which is in
complete sympathy with a fully inclusive bill, did a special
official Whip count -- a poll of the Members. There had been
earlier informal counts that had shown significant
support for a bill that included transgender, although
even these informal checks never showed that we had a
majority. But Members will sometimes be inclined to give
people the answers they think the people who are asking the
questions want until the crunch comes. In the crunch
-- the official Whip count taken in contemplation of
the bill -- it became very clear that while we would
retain a significant majority of Democrats, we would lose
enough so that a bill that included transgender
protection would lose if not amended, and that an
anti-transgender amendment would pass.

“The
question then became how to proceed. There were several
choices. One was to go forward with the bill
understanding that an amendment would be offered to
strike the transgender provision. There was a proposal to
have the Democratic leadership do that in what is
known as a manager’s amendment, in the hopes of
avoiding a divisive roll call on the subject. But the
Democratic leadership did not want to take the lead in
killing a provision to which its Members are committed
as a matter of principle, and in fact, given
Congressional procedures, there is no way to prevent a
roll call even on that. People have claimed that the desire
to avoid a roll call is aimed solely at protecting
some Democrats from having to make a tough choice.
That is of course a factor, and asking your supporters
to vote with you on a matter that is doomed both to lose
itself and to lose you votes is not a good way to build up
support. But it is also the case that a number of the
Democrats were prepared to vote for the inclusion of
the transgender provision even though they knew that
it would hurt them politically. The main reason not to put
this to a vote is our interest in ultimately adopting
transgender protection. If we were to push for a vote
now, knowing that the transgender provision would be
defeated by a majority, we would be making it harder
ultimately to win that support. As recent campaigns
indicate, Members of Congress who are accused of
switching their position on votes are pilloried, even when
this is done unfairly as it was to Senator Kerry. Thus,
forcing a vote on transgender inclusion now, which
would without any question result in a majority
against it, would make it harder to win when we have done
better in our educational work, because Members who
vote no now will be harder to persuade to switch their
votes than to persuade them to vote yes in the first
instance.

“In
addition, going forward in this situation leaves us open to
Republican procedural maneuvers in which they could succeed
not only in getting rid of the transgender provision.
This would not kill the bill, but it would
substantially delay it, and would be have very bad
psychological effect in a situation in which maintaining the
right psychology –optimism – is
important.

“That is
why I believe that a strategy of going forward with a
transgender inclusive provision that would certainly be
stricken at some point in the procedure by a vote in
the House would be a mistake.

“Leaders
in the GLBT community, who strongly support the inclusion of
transgender, now acknowledge that this would be the case
– namely that the transgender provision would
lose – so their proposed alternative was simply
to withhold the bill from the House altogether.

“That is,
their recommendation was that the Speaker simply announce
that she was not going to allow the Employment
Non-Discrimination Act to come up at all. I believe
that would be a disaster – politically, morally, and
strategically. While their reason for this would be the
debate over how ultimately to achieve transgender
inclusion, the impression that would be given to the
country was that Speaker Pelosi, the first Democratic
Speaker in thirteen years, and a lifelong strong supporter
of LGBT rights, had decided that we could not go
forward on what had been the major single legislative
goal of gay and lesbian people for over thirty years.

“Some in
the transgender community and those who agree with them have
given a variety of strategic arguments why they think it
would be better not to go forward. One variant is that
since the President is likely to veto the bill anyway,
it does not make any difference if we fail to vote on
it. But it should be noted that this is directly
contradictory to the arguments that the LGBT community
has been making for years. That is, we have been very
critical of arguments that we should not push for votes on
anti-discrimination legislation simply because it
wasn’t openly going to win. People have
correctly pointed to the value of getting people used to
voting for this, of the moral force of having majorities in
either the House or the Senate or both go on record
favorably even if the President was going to veto it,
and have in fact been getting Members ready so if that
if and when we get a president ready to sign this, we are
closer to passage. To repeat, the argument that we
should not take up legislation unless we are sure the
President is going to sign it is directly opposite to
all of the arguments LGBT advocates have been making for as
long as I can remember.

“The real
reason that people are now arguing that we should withhold
any action on the antidiscrimination bill unless it
includes transgender as well as sexual orientation is
that they are, as they have explicitly said, opposed
in principle to such a bill becoming law. That is the crux
of the argument. There are people who believe – in
the transgender community and elsewhere – that
it would be wrong to enact a law that banned
discrimination based on sexual orientation unless it fully
included people who are transgender. I think this argument
is deeply flawed.

“First, I
would note that since I first became a legislator
thirty-five years ago, I have spent a lot of time and
energy helping enact legislation to protect a variety
of groups from discrimination. In no case has any of
those bills ever covered everybody or everything.
Antidiscrimination legislation is always partial. It
improves coverage either to some group or some subject
matter, but never achieves everything at once. And
insistence on achieving everything at once would be a
prescription for achieving nothing ever.

“To take
the position that if we are now able to enact legislation
that will protect millions of Americans now and in the
future from discrimination based on sexual orientation
we should decline to do so because we are not able to
include transgender people as well is to fly in the
face of every successful strategy ever used in expanding
antidiscrimination laws. Even from the standpoint of
ultimately including transgender people, it makes far
more sense to go forward in a partial way if that is
all we can do. Part of the objection to any
antidiscrimination legislation is fear of consequences,
which fears are always proven to be incorrect. There
is a good deal of opposition now to passing even
sexual orientation legislation. Enacting legislation to ban
discrimination based on sexual orientation and getting a
year or two’s experience with it, will be very
helpful in our ultimately adding to it protection for
people who are transgender. That is, if you always insist
on doing all the difficult things in one bite, you will
probably never be successful. Dismantling the
opposition piecemeal has always worked better.

“For these
reasons I have proposed along with the Democratic leadership
the following strategy. First, we have introduced two bills.
One will be ENDA as it has historically existed,
banning discrimination on sexual orientation. A second
will add transgender protections to that basic scheme.
We will move forward with the ban on sexual orientation for
which we finally – after thirty-plus years have
the votes. After we are successful in winning that
vote, I will urge the Committee on Education and Labor
to proceed with our next step, which will be to continue the
educational process that I believe will ultimately lead to
our being able to add transgender protections. This
will mean within a month or two a hearing in the
Committee on Education and Labor which, unlike the
hearings we previously had on this bill, will focus
exclusively on transgender issues, and will give
Members a chance to meet transgender people, to
understand who they really are, and to deal with the fears
that exist. The other options are either to bring a bill to
the floor in which the transgender provision will be
defeated by a significant majority, making it less
likely that we will be able to succeed in this area in
the future, or ask the Speaker of the House in effect put
aside her lifelong political commitment to fairness
and be the one who announces that we will not pass a
bill banning discrimination based on sexual
orientation even though we have the votes to do it. Passing
ENDA in part and then moving on to add transgender
provisions when we can is clearly preferable to either
of these approaches.” (Kerry Eleveld, The
Advocate
)

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