USA: Will New ENDA Be Trans-Inclusive?

With the Democrats in control of Congress for the first time in 12 years, gay rights advocates are optimistic about a vote in the House and Senate later this year on the long-stalled Employment Non-Discrimination Act, or ENDA.

An outgrowth of gay civil rights bills introduced in the U.S. Congress since the 1970s, ENDA has called for banning employment discrimination based on sexual orientation. The most recent version of the bill introduced in October 2003 defined sexual orientation as homosexuality, bisexuality or heterosexuality, whether actual or “perceived.”

Over the past two years, the nation’s most prominent gay rights groups joined forces with transgender advocacy organizations in calling for a modified version of ENDA that also bans discrimination based on “gender identity” and “gender expression.” Legal experts have adopted those terms as a means of defining transgender people in civil rights legislation.

This year, as activists rejoice in the prospects of a Democratic-controlled Congress moving forward on gay rights legislation, alarm bells have sounded quietly and behind the scenes among insiders working on ENDA within the ranks of various advocacy groups.

Gay U.S. Rep. Barney Frank (D-Mass.) is among the lawmakers who once believed that trans-inclusion would kill the bill but has since changed his mind. Last October, Frank said he and other House members planned to introduce a trans-inclusive version of ENDA early this year.

Frank cautioned that conservative Republicans would likely seize on the transgender provision in an effort to kill the legislation. “We expect Republican demagoguery on this, so we had to work on ways to address every contingency,” he said.

Frank and others familiar with the planned trans-inclusive version of ENDA have said language would be included to provide assurances to employers that certain dress code requirements consistent for all employees would be permitted under the bill.

According to Frank, the language would allow dress requirements to be consistent with an employee’s gender so that a man with a beard and mustache could not come to work in a dress.

Activists familiar with past versions of the bill say the new version is expected to retain language that has always made ENDA somewhat different than civil rights bills pertaining to racial minorities or other groups.

For example, ENDA has and is expected to continue to specifically prohibit the use of quotas and “preferential treatment” of persons based on sexual orientation. The bill also has and will ban the collection of statistics on sexual orientation, in marked contrast to civil rights laws that call for data collection based on race or ethnicity.

Similar to the old version, the new ENDA is expected to exempt religious organizations and institutions, such as churches and schools, from its coverage.

However, Anders of the ACLU’s Lesbian and Gay Rights Project, said the new version would likely narrow the scope of the religious exemption. Anders said employees of religious organizations, such as janitors or typists, who are not required to be a member of a given religious denomination, would be protected.

Sen. Edward Kennedy (D-Mass.), the lead Senate sponsor of ENDA in past years, has so far withheld disclosing publicly whether he will support a trans-inclusive version of the legislation.

Kennedy held back on introducing any version of ENDA in the 109th Congress, which covered the years of 2005 and 2006, when most observers believed the then GOP-controlled House and Senate would not pass either version.

Since the new, 110th Congress convened earlier this month, Kennedy’s office has not returned repeated calls from The Washington Blade seeking Kennedy’s position on the issue.

Dave Noble, director of public policy and government affairs for the National Gay & Lesbian Task Force, declined to “speculate” on Kennedy’s position.

“Of course we are for a trans-inclusive ENDA, and will advocate for that,” Noble said. “But it’s far too early to speculate about what will happen and when.”

The Task Force was among the first national gay groups to announce that it would no longer support ENDA without a transgender provision. In an August 2004 statement, Matt Foreman, executive director of the Task Force, said, “ENDA as we’ve known it must die.”

“The first lesson is not to accept what legislators have to say on this subject, which is invariably that trans-inclusion will kill legislation,” Foreman said then.