Will Trans Folk Become an ENDA Bargaining Chip?

Now that the Employment Non-Discrimination Act has passed the U.S. Senate, it's up to the Republican-controlled House of Representatives to get the long-languishing legislation to President Obama's desk intact.

BY Sunnivie Brydum

November 08 2013 6:00 AM ET

But those scare tactics are exactly what right-wing groups are employing to rile up their bases in opposition to ENDA.

Along with an unhealthy dose of misinformation about the scope and impact of the bill, so-called Christian groups have been hounding their mailing lists with shrill warnings about the dangers of ENDA for months.

"Intended to give special protection to homosexuals and cross-dressers, the bill would further burden small businesses and muzzle those with a biblical worldview," cries the anti-LGBT Liberty Counsel in an email sent to supporters October 29. "In other words, if an employer instructed a male employee he could not use the women’s restroom, that employer could be in violation of ENDA and face federal sanctions."

The Traditional Values Coalition went even further in a frantic fund-raising pitch sent to supporters October 25.

"You see, should ENDA pass it will override the laws in 33 states and force schools to hire and retain transgendered teachers," claimed the group, which purports to focus on "religious liberties, marriage, the right to life, the homosexual agenda, pornography, family tax relief and education." "Every school administrator will be forbidden by law from reassigning or not hiring any transgender, she-male or other psychologically unhealthy teacher, as this would be considered 'discrimination' under ENDA. It will be illegal even to reassign these psychologically unhealthy teachers to office jobs away from children."

Of course, that's patently false. The law would by no means mandate that an employer hire someone who is gay or transgender, but rather prohibit that employer from firing or not hiring an employee for no other reason than their sexual orientation or gender identity.

And those who support ENDA and are closely familiar with the legislation recognize that the transphobic scare tactics hardly pass for legitimate debate.

"It is no longer acceptable, certainly in the [LGBT equality] movement, but really even in the community, to be too exclusionary," explains Keisling. "We're not a community you can bash anymore."

Based on this week's debate in the Senate, legislators realize that too.

Throughout more than two days of testimony, just one senator rose to speak in opposition to the bill. Indiana Republican Dan Coates told his colleagues to oppose the bill because it would infringe upon the religious freedom of business owners. The New Civil Rights Movement notes that Coates lamented that the bill's existing religious exemptions "do not extend to all organizations that wish to adhere to their moral or religious beliefs in their hiring practices."

Yet no one claimed ENDA would allow men to infiltrate women's bathrooms, and even right-wing Tea Party Republicans were notably silent as the chamber considered the bill.

Senators also rejected an amendment proposed by Pennsylvania Republican Pat Toomey that would have expanded the law's religious exemptions to include organizations run by faith-based groups that partake in secular activities. Although the amendment was defeated by a vote of 43-55, Toomey still cast his vote in favor of ENDA Thursday afternoon. Of course, the Senate had already adopted language assuring that religious institutions and clergy would not be compelled to adhere to the law's antidiscrimination stipulations, but even conservative Arizona senator John McCain voted against expanding the religious exemptions.

"It was a real bipartisan effort," says Keisling. "And that's a really big chunk of the United States represented by those Republican senators who stepped up. So yeah, it's a really good first step. But this is really just a first step."

The next step — introducing and debating the bill in the House of Representatives — could be quite a doozy, though.

"The United States House is so incredibly messed up, I don't know if anybody knows how to get anything through the House," Keisling says. "I don't want to say that we can't do it, but it's not obvious yet what the clear path is to get it done."

But just because some advocates are skeptical that the legislation can make it through the House doesn't mean legislators, activists, and even the president aren't putting pressure on the Republican-controlled chamber.

"One party in one house of Congress should not stand in the way of millions of Americans who want to go to work each day and simply be judged by the job they do," said President Obama in a statement released after the Senate's vote Thursday. "I urge the House Republican leadership to bring this bill to the floor for a vote and send it to my desk so I can sign it into law. On that day, our nation will take another historic step toward fulfilling the founding ideals that define us as Americans."

In the past, former vice presidential hopeful Paul Ryan, a House member from Wisconsin, has said that he'll only vote for ENDA if it doesn't include gender identity protections.

In 2007, Ryan was one of 35 House Republicans who voted for the sexual orientation-only ENDA. According to ThinkProgress, Ryan pushed then-bill sponsor Frank to drop the protections for transgender Americans, saying he could not vote for the bill if it included such language.

"It makes it something you can't vote for," Ryan said. "I think ENDA's the right thing to do, but transgender language changes the equation."

A 2010 article from Roll Call indicates similar hesitance to support a trans-inclusive ENDA among other conservative members of the House. Ohio Republican Pat Tiberi told Roll Call he thought protecting transgender Americans from discrimination in the workplace was "going beyond what the original intent [of the bill] was."

But whether or not members of the House will have a chance to debate the bill remains to be seen. On Monday, a spokeswoman for House Speaker John Boehner said the speaker believes ENDA will lead to an increase in "frivolous litigation" and will be bad for business, and falsely claimed that it's already illegal to fire someone for being gay.

While Boehner hasn't provided much hope, advocates who want to see the bill become law aren't letting up on the pressure. Sen. Tammy Baldwin, the first openly gay person elected to the U.S. Senate, delivered a message directly to Speaker Boehner — a man she's likely well acquainted with, after serving with him in the House of Representatives from 1999 until this year. Boehner has been representing Ohio's Eighth Congressional District in the House since 1991.

Speaking with MSNBC just before she cast her final vote for ENDA, Baldwin evoked a recent blight on the Republican's record in urging him to do the right thing.

"I'd say what we said during the shutdown: Just bring it up for a vote," the senator demanded. "Because I feel that the House, if given the opportunity to vote up or down against discrimination in employment, against the LGBT community, that we'd win that vote. We'd win that day."

Beck, the trans former Navy SEAL, agrees, albeit incredulously.

"I find it unbelievable that in a country that touts equality and freedom we are still arguing over rights of equality in the work place for anyone," says Beck. "I think the problem is that people just don't know this truth, and how disrupting it really is to millions of Americans." 

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