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The Employment Non-Discrimination Act (ENDA), is a proposed bill in the United States Congress that would prohibit discrimination against employees on the basis of sexual orientation or gender identity for civilian nonreligious employers with over 15 employees.

ENDA has been introduced in every Congress, except the 109th, since 1994, albeit without gender identity protections, but gained its best chance at passing after the Democratic Party broke twelve years of Republican Congressional rule in the 2006 midterm elections. However, some sponsors believed that even with a Democratic majority, ENDA did not have enough votes to pass the House of Representatives with transgender inclusion, and dropped it from the bill, which passed and subsequently died in the Senate. LGBT advocacy organizations were divided over support of the changed bill.

In 2009, on the heels of the 2008 elections that strengthened the Democratic majority, and after the debacle of the 2007 ENDA divisions, only a transgender-inclusive ENDA has been introduced by House representative Barney Frank. President Barack Obama supports the bill's passage unlike his Republican predecessor, who threatened to veto the measure.

Existing law

State law

Minnesota was the first state to ban discrimination based on both sexual orientation and gender identity when it passed the Human Rights Act in 1993. Currently, 12 states and the District of Columbiamarker have policies that protect against both sexual orientation and gender identity discrimination in employment: Californiamarker, Coloradomarker, Iowamarker, Illinoismarker, Mainemarker, Minnesotamarker, New Jerseymarker, New Mexicomarker, Oregonmarker, Rhode Islandmarker, Vermontmarker, and Washingtonmarker in the public and private sector. An additional nine states -- Connecticutmarker, Delawaremarker, Hawaiimarker, Marylandmarker, Massachusettsmarker, Nevadamarker, New Hampshiremarker, New Yorkmarker, and Wisconsinmarker -- have state laws that protect against discrimination based on sexual orientation only.

Five states have an executive order, administrative order, or personnel regulation prohibiting discrimination against public employees based on sexual orientation and gender identity: Indianamarker, Kansasmarker, Michiganmarker, Ohiomarker, and Pennsylvaniamarker. And an additional three states prohibit discrimination against public employees based on sexual orientation only: Arizonamarker, Montanamarker, and Virginiamarker, although Bob McDonnell has stated he will not renew the executive order protecting Virginia's state employees when he takes office in January 2010.

Fifteen other states have laws that have been interpreted to protect transgender persons.

Federal employees

As with other employers in most states, there is no federal statute addressing employment discrimination based on sexual orientation or gender identity in the federal government. However, in 1998, the administration of President Bill Clinton interpreted the Civil Service Reform Act of 1978, prohibiting federal government workplace discrimination "on the basis of conduct not related to job performance", as meaning sexual orientation [as a factor not related to job performance], and issued an executive order to more strongly cover the executive branch, over which the President has more control. In 2009 Barack Obama did the same for gender identity. However, remedies pursued under this law are limited.

Existing workplace policies

Many large companies already provide equal rights and benefits to their lesbian, gay, bisexual and transgender employees, as measured by the Human Rights Campaign through their Corporate Equality Index. This tool found that 260 large companies received a 100% rating. Additionally, each year, corporations send thousands of employees to the Out & Equal Regional Summit, a conference that intends to create a more inclusive work environment for lesbian, gay, bisexual and transgender employees. Furthermore, there are workplace resources for how allies can create a more inclusive work environment, including programs available through PFLAG and the Out & Equal publication, Allies at Work, by David M. Hall.

Current version provisions

The current version of the bill under consideration in Congress would prohibit private employers with more than 15 employees from discriminating on the basis of sexual orientation or gender identity.

Religious organizations are provided a special exception to this protection, similar to the principles of the Civil Rights Act. Non-profit membership-only clubs (except labor unions) are likewise not bound to this rule.

The defines that service in the military is not "employment" and thus it does not affect the don't ask, don't tell policy of the United States military. (This matter is addressed in another bill, the Military Readiness Enhancement Act.)

Legislative progress

103rd through 108th Congresses

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. Versions of ENDA inroduced in the 103rd through 108th Congresses did not include provisions that protect transgender people from discrimination.

109th Congress

ENDA was not introduced in the 109th Congress.

110th Congress

In the 110th United States Congress there were two versions of the bill:
  • , introduced on April 24, 2007 by Representatives Barney Frank, Chris Shays, Tammy Baldwin, and Deborah Pryce, does include gender identity within its protections; and
  • , introduced by Representative Frank on September 27, 2007 and passed by the Education and Labor Committee on October 18, does not include gender identity within 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).


Under both versions, the bill provided employment protections similar to those of the Civil Rights Act of 1964 (the employment section is also known as "Title VII"), but specifically directed to gay, lesbian, bisexual (and under HR 2015, transgender) employees. The bills were different from Title VII in that they contained exemptions concerning employer dress codes.

 does contain provisions that protect transgender people from discrimination, including a specific definition of gender identity, as well as exemptions for employer dress codes and locker rooms The bill defines gender identity as "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." The bill also specifically allowed employers to require adherence "to the same dress or grooming standards for the gender to which the employee has transitioned or is transitioning."


After H.R. 2015 died in committee, Frank proposed a new bill, , that contained only prohibitions on sexual orientation discrimination, excluding gender identity. Some LGBT activist organizations responded by refusing to support H.R. 3685. This version was protested against by many LGBT rights organizations in the United States, with the exception of the Human Rights Campaign.

Many have claimed that excluding transgender people would undermine the underlying principle of ENDA, which is that fairness is a fundamental American principle. 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. Those favoring exclusion counter that it will ease the process of passing some changes in civil rights.

111th Congress

House

The Washington Blade reported on June 17, 2009 that Rep. Barney Frank (D-MA) had announced plans to introduce an ENDA bill ( ) that includes gender identity in June 2009, with original cosponsors slated to include 4 Republicans. The lead Republican cosponsor is Rep. Ileana Ros-Lehtinen (R-FL).

On June 24, 2009, Rep. Barney Frank introduced to ban workplace discrimination based on sexual orientation and gender identity. The Advocate reported that "the 2009 Employment Nondiscrimination Act (ENDA) has 114 original cosponsors, up from 62 cosponsors for the trans-inclusive bill of 2007." Republican Main Street Partnership members Mark Kirk (R-IL), Mike Castle (R-DE), Todd Russell Platts (R-PA), Judy Biggert (R-IL), and Leonard Lance (R-NJ) were among the original cosponsors. As of November 18, 2009, H.R. 3017 had 192 cosponsors in the House. Earlier in June Frank had introduced for the same purpose.

H.R. 3017 is currently pending before the House Education and Labor Committee. A hearing was held before the committee on September 23, 2009.

Senate

The Washington Blade reported on August 5, 2009 that Sen. Jeff Merkley introduced an ENDA bill ( ) that included gender identity, with 38 original cosponsors including Sens. Ted Kennedy (D-MA), Susan Collins (R-ME), Olympia Snowe (R-ME) and Chris Dodd (D-CT), according to a statement released by Merkley’s office. Sen. Merkley was quoted by The Advocate as noting that while he has yet to consult with others, “[i]t’s certainly possible that this could be passed by year’s end, though the [congressional] schedule is very crowded."

Blue Oregon, a progressive Oregon blog, commented on the suitability of Sen. Merkley to be lead sponsor of ENDA, noting that as Speaker of the Oregon House of Representatives Merkley had successfully guided Oregon's state version of ENDA, the Oregon Equality Act, to become law.

As of November 9, 2009, S. 1584 had 43 co-sponsors and was pending before the Health, Education, Labor, and Pensions Committee. A hearing was held before the committee on November 5, 2009.

Arguments in favor of ENDA

Most proponents of the law intend it to address cases where gay, lesbian and/or transgender employees 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 courts because sexual orientation is not considered to be a suspect class by the federal courts and by many U.S. states. Proponents argue that such a law is appropriate in light of the United States 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, 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. There are also studies showing that local anti-discrimination laws are ineffective, and federal law is needed.

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%. 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

Some opponents of the law argue, in opposition to one scientific study, that "sexual preference" is a choice.

History

On May 14, 1974, the fifth anniversary of the Stonewall Rebellion, Representatives Bella Abzug and Ed Koch introduced H.R. 14752, the "Gay Rights Bill." The bill would have added "sexual orientation" to the Civil Rights Act of 1964.

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. In 1996, the bill came within one vote passage in the Senate and was not voted on in the House, its success perhaps spurred by backlash from the recently passed DOMA, the "Defense of Marriage Act" that permitted the states and mandated the federal government to ignore same sex marriages from other states. HRC sets out the timeline of ENDA introductions.

Transgender inclusion in ENDA

The inclusion of transgender employees in ENDA has long been debated in the LGBT community. 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 Force became the first LGBT civil rights organization to stop work on ENDA because of its lack of transgender-inclusion. From 1999 to 2007, 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 LGBT organization 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. A 2004 article by Matt Foreman, the executive director of the National Gay and Lesbian Task Force discusses.

Legislative history

Congress Short title Bill number(s) Gender identity included? Date introduced Sponsor(s) # of cosponsors Latest status
111th Congress Employment Non-Discrimination Act of 2009 Yes June 24, 2009 Rep. Barney Frank (D-MA) 192 Referred to the House Judiciary Committee
Yes June 19, 2009 Rep. Barney Frank (D-MA) 10 Referred to the House Judiciary Committee
Yes August 5, 2009 Sen. Jeff Merkley (D-OR) 43 Referred to the Senate Health, Education, Labor, and Pensions Committee
110th Congress Employment Non-Discrimination Act of 2007 Yes April 24, 2007 Rep. Barney Frank (D-MA) 184 Died in the House Subcommittee on the Constitution, Civil Rights and Civil Liberties
No September 27, 2007 Rep. Barney Frank (D-MA) 9 Passed the House (235-184), Died in the Senate
108th Congress Employment Non-Discrimination Act of 2003 No October 8, 2003 Rep. Christopher Shays (R-CT) 180 Died in the House Subcommittee on Employer-Employee Relations
No October 2, 2003 Sen. Ted Kennedy (D-MA) 43 Died in the Senate Committee on Health, Education, Labor, and Pensions
107th Congress Employment Non-Discrimination Act of 2001 No July 31, 2001 Rep. Christopher Shays (R-CT) 193 Died in the House Subcommittee on Employer-Employee Relations
No July 31, 2001 Sen. Ted Kennedy (D-MA) 44 Died in the Senate
106th Congress Employment Non-Discrimination Act of 1999 No June 24, 1999 Rep. Christopher Shays (R-CT) 173 Died in the House Subcommittee on Employer-Employee Relations
No June 24, 1999 Sen. Jim Jeffords (R-VT) 36 Died in the Senate Committee on Health, Education, Labor, and Pensions
105th Congress Employment Non-Discrimination Act of 1997 No June 10, 1997 Rep. Christopher Shays (R-CT) 140 Died in the House Subcommittee on Employer-Employee Relations
No June 10, 1997 Sen. Jim Jeffords (R-VT) 34 Died in the Senate Committee on Labor and Human Resources
104th Congress Employment Non-Discrimination Act of 1995 No June 15, 1995 Rep. Gerry Studds (D-MA) 142 Died in the House Subcommittee on the Constitution
No June 15, 1995 Sen. Jim Jeffords (R-VT) 30 Died in the Senate Committee on Labor and Human Resources
No September 5, 1996 Sen. Ted Kennedy (D-MA) 3 Failed in Senate (49-50)
103rd Congress Employment Non-Discrimination Act of 1994 No June 23, 1994 Rep. Gerry Studds (D-MA) 137 Died in the House Subcommittee on Select Education and Civil Rights
No July 29, 1994 Sen. Ted Kennedy (D-MA) 30 Died in the Senate Committee on Labor and Human Resources


References

  1. Cal Civ Code sec. 51
  2. C.R.S. 24-34-402 (2008)
  3. State votes to end gay bias | Delawareonline.com | The News Journal:
  4. HRC | Maps of State Laws & Policies
  5. Weiss, Jillian Todd. (July 23, 2007) How many states have law covering gender identity? Transgender Workplace Diversity Blog. Accessed October 20, 2007.
  6. http://www.hrc.org/issues/workplace/cei.htm
  7. http://outandequal.org/annual-summit
  8. http://www.outandequal.org/Allies-At-Work
  9. Manley, Roslyn. (June 17, 2003) New "Unified" Bill to Replace ENDA: A Left Coast Perspective TG Crossroads. Accessed October 20, 2007.
  10. FINAL VOTE RESULTS FOR H R 3685
  11. Civil Rights Act of 1964
  12. Weiss, Jillian Todd. (April 26, 2007) The text of ENDA Transgender Workplace Diversity Blog. Accessed October 20, 2007.
  13. Eleveld, Kerry. (September 29, 2007) ENDA to Be Separated Into Two Bills: Sexual Orientation and Gender Identity The Advocate. Accessed October 20, 2007.
  14. http://www.thetaskforce.org/activist_center/ENDA_oct1_letter
  15. http://nosubstitutes.org
  16. Schindler, Paul. (October 4, 2007) HRC Alone in Eschewing No-Compromise Stand Gay City News. Accessed October 8, 2007.
  17. http://www.bilerico.com/2007/09/a_moment_of_truth.php
  18. http://ga4.org/ct/5dwu1Cp1kmiv/
  19. http://www.salon.com/opinion/feature/2007/10/08/lgbt/index_np.html?source=rss
  20. Frank Introduces Trans-Inclusive ENDA|News|Advocate.com:
  21. Search Results - THOMAS (Library of Congress)
  22. Search Results - THOMAS (Library of Congress):
  23. [1]
  24. Search Results - THOMAS (Library of Congress):
  25. [2]
  26. Examining the Employment Nondiscrimination Act (ENDA): The Scientists Perspective American Psychological Association. Accessed October 20, 2007.
  27. Rubenstein, William B. (January 30, 2002) Do Gay Rights Laws Matter?: An Empirical Assessment The Williams Institute, UCLA School of Law. Accessed October 20, 2007.
  28. Flatt, Victor. (November 21, 2006) We need Federal Law to Protect Gays and Lesbians from Discrimination University of Houston Law Center Faculty Blog. Accessed October 20, 2007.
  29. (April 24, 2002) CBO Cost Estimate: S. 1284 Employment Non-Discrimination Act of 2002 Congressional Budget Office. Accessed October 20, 2007.
  30. American Psychiatric Association. Examining the Employment Nondiscrimination Act (ENDA): The Scientists Perspective Accessed January 15, 2008.
  31. (October 13, 2007) U.S. Congressmember Bella S. Abzug Stonewall.org. Accessed October 20, 2007.
  32. Wendland, Joel. (April 9, 2007) A New Beginning for ENDA The Williams Institute, UCLA School of Law. Accessed October 20, 2007.
  33. Bull, Chris. (May 13, 1997) No ENDA in sight - Employment Non-Discrimination Act of 1996 The Advocate. Accessed October 20, 2007.
  34. Weiss, Jillian Todd. (November 1, 2006) U.S. Federal bill for gender identity protection Transgender Workplace Diversity Blog. Accessed October 20, 2007.
  35. Curry, Wendy. (September 28, 2007) No ENDA without "T" Curried Spam. Accessed October 20, 2007.
  36. Sandeenm, Autumn. (November 6, 2007) Breaking: The HRC Now Supports ENDA Without Perceived Gender Protections Accessed May 2008.
  37. Foreman, Matt. (August 3, 2004) ENDA as We've Known It Must Die TG Crossroads.org. Accessed October 20, 2007.


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