ENDA (Employment Non-Discrimination Act) Redux: Its History and Importance for All of Us

Just as we aren't satisfied with protections at one level of government, and keep pushing for state and local protections in addition to federal protections, adding more explicit federal protections can only help the trans community cement its protections.
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Last week the Employment Non-Discrimination Act, known as ENDA, was introduced in the Senate (S.815) and the House. This bill, in its current form (with the exception of trans inclusion, first offered in 2007), has been considered in every Congress, with one exception, since 1994, and originally was introduced in more comprehensive form back in 1974 by Congresswoman Bella Abzug. While today's bill is limited only to employment protections, this has been, and continues to be, the signature federal LGBT civil rights bill.

Contrary to the beliefs of the vast majority of Americans, including, reportedly, at least one senator, it is perfectly legal to fire or refuse to hire gender-conforming gay, lesbian and bisexual people. Given that ENDA has not come up for a Senate vote since 1996, it's hard to believe that a Senator would believe it had already passed, but that most Americans, who as Americans strongly oppose discrimination as a core moral imperative, believe it should be law is not a surprise. Look at the progress we've made in this country, particularly under the Obama administration -- how could it possibly be legal to discriminate? And now that a majority of Americans support marriage equality, does it really make any sense that gay persons can get married but can be refused a job, or denied housing, or be discriminated against in a restaurant or movie theatre?

One ironic little twist is that while transgender and gender non-conforming persons are currently protected under Title VII of the 1964 Civil Rights Act, the majority of gay persons who happen to be perceived as gender-conforming are not yet covered. The irony derives from the particular difficulty the trans community has had historically being considered along with the gay community for anti-discrimination protections, a difficulty which exploded around ENDA in 2007. Since then, every bill has been trans-inclusive, and with last year's Macy decision, the trans community leap-frogged the gay community in obtaining employment protections. Those protections apply in the 50 states, the federal government, and the federal contractor workspace.

That is the state of LGBT discrimination in this country today, and why ENDA has been reintroduced. One more irony is that the vast majority of federal contractors and Fortune 500 companies already protect LGBT persons. Very recently it was reported that 98 percent of the Fortune 50 protect gay workers and 88 percent protect trans workers. Sixty percent of small businesses already have gender identity protections, and, unsurprisingly, 63 percent of small business owners support ENDA. And Congress has still not passed ENDA.

Last year the Senate held a panel on ENDA, the first such panel with testimony from a trans person. Sen. Tom Harkin (D-Iowa), who chairs the Senate HELP Committee (Housing, Employment, Labor and Pensions), and plans on retiring next year, remarked at the close of the panel that it was way past time to finally get this bill passed. With support from a wide range of businesses and advocacy groups, including unions, with 46-52 percent of Americans already living in jurisdictions with state and/or local protections, it's long past time to get this done on the federal level. Please note that there are the usual exemptions for very small business and religious organizations, exemptions that were first instituted in the 60s. Religious freedom is a foundational American value, and should be respected alongside the value of equality for which we are fighting.

Now, it has been asked, that since transgender persons are already protected under Title VII, should they be lobbying for ENDA as well? For me, personally, I believe we should "leave no gay behind." I advocate for civil rights for all, not just myself, so for me that's an absurd question at its root. I also realized the other day that I am often perceived as a gender-conforming gay woman, so I can easily empathize with those who are currently unprotected. But there are other, equally valid reasons.

Just as we aren't satisfied with protections at one level of government, and keep pushing for state and local protections in addition to federal protections, adding more explicit federal protections can only help the trans community cement its protections. It also important, symbolically as well as practically, for our contemporary Congress to state explicitly that gay and trans persons deserve equality with all Americans.

Maybe most importantly is the opportunity for educating the public, which as I mentioned earlier already believes we have these protections in law. I don't see law as a tool for punishment; I see law as a means of educating people to do the morally correct thing, making them aware of problems they might never have thought to consider. Once they've pondered the issue, they are far less likely to run afoul of the law, and generate lawsuits, both because it's the right thing to do and because it would be embarrassing and expensive to act otherwise. We see HR departments re-writing their policies to accommodate the Macy decision, and media coverage of ENDA will remind those who have yet to follow through to get their act together. Passage of ENDA in the Senate, and, finally, in the House, and a signing ceremony at the White House will add more pressure, and the cultural climate will continue to evolve so that discrimination becomes less and less common.

There will be a Congressional Lobby Day next month on June 17th, organized by NCTE, in association with the Trans People of Color Coalition.

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