The Employment Non-Discrimination Act may be losing momentum this year based on a strategic impasse caused by what many insiders say is a lack of support in the Senate.
“This issue is just not ready for the Senate,” said an LGBT advocate and political insider who spoke on the condition of anonymity. “The procedural aspects of debate would make it way too easy for a [Sen. Jim] DeMint or a [Sen. Tom] Coburn to demagogue.”
Concerns about whether a vote would take place before the end of the session surfaced on June 11 after House speaker Nancy Pelosi told The Washington Blade that lawmakers need to complete their work on “don’t ask, don’t tell” before moving on to ENDA. “Our work is not finished in that regard, so one thing at a time,” Pelosi said.
DADT has been approved as an attachment to the National Defense Authorization Act by the full House and in the Senate Armed Services Committee, but it awaits action on the Senate floor, which is likely to come sometime this summer.
A House Democratic aide confirmed with The Advocate that DADT must reach resolution in the Senate before a House vote on ENDA is considered but added that soft Senate support for the bill is also a hindrance.
“The main point here is that the community and others wanted to do a DADT repeal because of the logical vehicle,” the aide said. “Now we have to make sure that’s finished. Bringing up another bill could jeopardize a DADT repeal. But people should look to encourage the Senate to have a plan for ENDA, which they do not.”
A spokesman for Rep. Barney Frank of Massachusetts said the congressman was not concerned by Pelosi's comments and still anticipates a vote taking place this year.
"He doesn't think the vote is in jeopardy," Harry Gural said. "Having spoken to the speaker about this many times, [he believes] she’s committed to ENDA."
A source familiar with the Senate strategy said they were counting on a House vote to help spirit the legislation through in the Senate. The bill currently has 45 Senate cosponsors, but insiders say supporters
are at least a handful of votes shy of the 60 needed to move the measure.
“For better or worse, there has been a Democratic leadership consensus that, because we don't have the required 60 votes in the Senate yet to end a filibuster of an inclusive ENDA, the strategy going forward should be to leverage the momentum that would be created by passage in the House in order to increase pressure on individual senators,” said the source, who agreed to speak on the condition of anonymity. “Plus that's usually the way these things work. A bill originates in the House.”
But the LGBT advocate and political insider noted that the lack of support in the Senate has put Pelosi in a bind with her caucus.
“The fact that there’s not a path in the Senate makes it a very heavy lift,” the source said. “It’s not enough to say that Pelosi needs to ram this through. The reason she isn’t able to ram it through is because members don’t want to vote for something that is politically difficult like this issue.”
The source added that in general work remains to be done on the gender identity portion of the bill.
“There’s a reason why there are a lot less states with trans-inclusive nondiscrimination laws than just sexual orientation. I think we need to own that,” the source said. “The bottom line is that we have largely — not entirely — beat people down on sexual orientation. We haven’t yet achieved that state on gender identity and expression.”
Firing someone based on their gender identity is illegal in 12 states plus the District of Columbia, and 21 states plus the district have outlawed firing people based on their sexual orientation.