With Senate Hearing, Hope for a Jumpstart on ENDA

Advocates for the Employment Non-discrimination Act put the focus on
the long overdue legislation during the first Senate hearing in nearly
three years, which included historic testimony from a transgender
witness.

BY Julie Bolcer

June 12 2012 9:19 AM ET | UPDATED: June 12 2012 5:08 PM ET

[Photo: Clockwise from upper left: Senators Mark Kirk, Susan Collins,
Jeff Merkley, and Olympia Snowe.]

The long-running campaign to secure federal workplace protections for
LGBT employees took another step Tuesday when a Senate panel held the
first hearing on the Employment Non-discrimination Act in nearly three
years. Almost 90 minutes of proceedings in the Health, Education,
Labor and Pensions Committee included the first-ever Senate testimony
from an openly transgender witness, who joined three other speakers in
making a robust case for the legislation as necessary for workers and
helpful for business.

“We are talking about a fundamental American value: equal treatment
for all,” said Senator Tom Harkin, chairman of the committee in his
opening remarks. “Decent, hardworking Americans are being hurt by
discrimination every day.”

The panel heard from four witnesses in support of ENDA and one opposed
during 45 minutes of mid-morning testimony, followed by a question and
answer session. Witnesses called by the Democratic majority spoke
about the legal, economic and, for the first time in the Senate, the
personal impact of discrimination based on gender identity.

“I am a transgender American,” said Kylar Broadus, founder of the
Trans People of Color Coalition of Columbia, Missouri in his
testimony. He told the panel that he had been born a woman and
transitioned to become a man. “People have always related to me as a
man. That is my essence and my soul. The transition was actually
living the truth.”

The attorney spoke about his experience being fired from work and set
back economically. He said that he had suffered post traumatic stress
and dealt with quadrupling in student loan debt because of
unemployment and undereomployment. Broadus said his experience was not
unique.

“It’s devastating, it’s demoralizing and dehumanizing to be put in
that position. I sit here as a 50-year-old man wondering what I am
going to do, and other people are in much worse situations than I.”

Harkin acknowledged the historic nature of the moment.

“I’m proud of this committee,” he said. “I’m proud of the people in
this committee that would invite you here. I want to commend you for
your courage in being here and in being who you are because you’re
going to give courage to a lot of other people.”

Ken Charles, vice president of diversity and inclusion for General
Mills, spoke about the benefits of non-discrimination to employers and
employees. The Minnesota-based cereal company is among the 50% of
Fortune 500 companies that have a policy in place that includes gender
identity. Some 90% of the companies have a policy that protects for
sexual orientation.

“It is absolutely critical that employees are able to bring their full
self to work every day,” he said. “That allows our organizations to
grow and thrive. We believe that ENDA will unleash the potential of
thousands and millions of employees to be their full selves.”

The committee asked Charles whether he thought ENDA would lead to
“costly accommodations and needless litigation" for corporations. He
responded “not at all.”

M.V. Lee Badgett, research director at the Williams Institute for
Sexual Orientation Law and Public Policy at the University of
California at Los Angeles, argued that the legislation would  improve
conditions in the workplace and the bottom line for companies.

“ENDA is necessary to fight discrimination and would benefit both
employees and employers," she concluded.

While action may be unlikely in the Republican-controlled House of
Representatives for now, advocates are hoping for movement in the
Democratic-led senate to showcase the lack of substantial opposition
and generate public pressure. A poll
<http://www.americanprogress.org/issues/2011/06/protection_poll.html>
last year by the Center for American Progress found that almost
three-fourths of voters, including a majority of Republicans, support
workplace protections for LGBT employees, but 9 out of 10 respondents
mistakenly believe such protections already exist in federal law.

“We build important momentum for ENDA’s eventual passage by having it
pass in one chamber,” said Tico Almeida of Freedom To Work, which is
organizing the effort with other groups including CAP and the Human
Rights Campaign. “There is significant value to having an affirmative
vote on ENDA in the Senate. Given that [Senate Majority Leader] Harry
Reid has the ability to make that happen, we believe he should, and we
will push him to do so.”

Almeida said that because every Democrat on the committee is a sponsor
of ENDA, its successful markup and referall for a floor vote would be
a “ preordained conclusion.”

Freedom To Work released a letter
<http://www.scribd.com/doc/96813982/Freedom-to-Work-Letter-to-Sen-Majo...>
 as the hearing began Tuesday calling for Reid to hold a vote on the
bill this summer. "LGBT Americans need to know whether our elected
officials stand with us,” said the letter. In an acknowledgement of
election year politics, the letter raised the possibility that “some
radical Senator may launch a filibuster to block the ENDA legislation
that is supported by super-majorities of the American people, in the
same way that your attempt to pass the Paycheck Fairness Act for women
was filibustered just last week.”

Senator Jeff Merkley, the chief sponsor of the legislation, told
reporters in a conference call after the hearing that he would defer
to leadership on the strategy, but he left no doubt that he wanted to
see the bill move.

 “I think it’s long past time for the senate as a whole to debate and
pass this bill,” he said. “What we lack at this point is a debate and
vote on the floor of the Senate, and I think the time has come.”

Merkley cited the fast-evolving political landscape, from corporate
policies to public attitudes to the related announcement from
President Barack Obama last month that he personally supports marriage
equality. During the hearing, Senator Harkin announced that 90
corporations had signed and submitted a letter in support of ENDA.

First introduced in 1994, ENDA has a long and winding legislative
history, including a divisive battle over whether to include
protections for gender identity. A non-inclusive version of the bill
passed the House in 2007, but died in the Senate. The current version
of ENDA would provide protections on the basis of sexual orientation
and gender identity in civilian, nonreligious employers with at least
15 employees. Some 29 states lack protections for gay, lesbian and
bisexual workers, while transgender workers lack protections in 34
states, according to HRC.

Democratic senators hailing from states with employment
non-discrimination laws spoke about the lack of negative effects. In
addition to Harkin and Merkley, Senators Patty Murray of Washington
and Al Franken of Minnesota attended the hearing.

“I think we can all personally attest that in our states the sky has
not fallen,” said Franken. Minnesota became the first state to include
protections against sexual orientation and gender identity
discrimination in 1993.

The bill has bipartisan support in the Senate, but no Republican
committee members attended the hearing. Senator Mark Kirk of Illinois,
a co-sponsor of the bill and HELP committee member, has been absent
due to his recovery from a stroke. Senator Susan Collins and Senator
Olympia Snowe, both Republicans from Maine, also sponsor the bill.

Senators Collins released a statement that said, “The right to work is
a fundamental one.  How can we in good conscience deny that right to
someone for no other reason than their sexual orientation or gender
identity?  Especially in today’s economy, job security has taken on a
renewed importance to all Americans.  How can we tell one segment of
Americans that they are not entitled to that security because of whom
they love?”

The Republican minority on the panel had the option to call two
witnesses, but instead it presented only one. Craig Parshal, senior
vice President and general counsel of the National Religious
Broadcasters Association, also testified against ENDA in 2009. This
year, he revived his criticism of a religious exemption that had
received an affirmative vote from Speaker John Boehner, Majority
Leader Eric Cantor, and Budget Committee chair Paul Ryan, then in the
minority.

“The possibilities of confusion of analysis by future courts, I think,
are tremendous, and the chilling effect on religious organizations
would be monumental,” he said. “While discrimination laws are
important, so too are the basic fundamental liberties of religious
organizations.”

Samuel Bagenstos, a University of Michigan who testified in support of
ENDA, disputed the claims by Parshal, while Senator Harkin downplayed
the issue. “This is a very technical part of the bill,” he said.

The legal landscape for transgender individuals has changed
dramatically in the time since the last ENDA hearing. In April, the
Equal Employment Opportunity Commission ruled that the Civil Rights
Act of 1964 protects transgender workers from discrimination. The
ruling, which held that such bias constitutes sex discrimination,
gives transgender individuals a layer of protection that gay, lesbian
and bisexual people still lack on the federal level.

“The world has changed for the transgender community,” said Dana
Beyer, executive director of Gender Rights Maryland. “It’s important
that this Congress comes out and says, ‘Yes, we agree with it. The
price of liberty is eternal vigilance.”

While the EEOC ruling may have lessened some energy in advance of the
hearing, advocates said that ENDA is still necessary because a
different administration or a more conservative Supreme Court could
undo the EEOC ruling. Meanwhile, no workplace protections exist in
federal law for gay, lesbian and bisexual employees. During the
hearing, Begenstos was asked directly whether Title VII was enough to
address the problem of discrimination.

“The answer to that is clearly no,” he said. “The courts work very
hard to draw a link between discrimination that is based on sex
stereotypes versus discrimination based on sexual orientation or
gender identity. This leads to a great deal of uncertainty. There is a
need for a comprehensive, clear federal standard that applies across
the country.”

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