No Longer at Zero: An Update on ENDA

When we started the National Center for Transgender Equality ten years ago, we could only have imagined a year like 2013. Organizationally, we're still around and stronger than ever, and that's great. But the very realistic policy goals we have for this year are truly dazzling. Our goals, released last week include thirteen things we think can get done this year--thirteen very significant advances for trans people in one year, each of which would have been the biggest victory ever just ten years ago.

As forward leaning as the list is though, one item will stand out to transgender people and all LGBT people as something that seems surprisingly modest and horribly overdue. We believe that this year, we may be able to get the U.S. Senate to take action on the Employment Non Discrimination Act (ENDA). To be more precise, we think that the Senate can act in the 103rd Congress, so by December 2014, but to be assertive, we are saying this year and will work to see that happen.

To be clear, we don't yet see a clear pathway for ENDA to become law this Congress by making it to the White House for a near certain signature from a very supportive President Obama. The House of Representatives is still controlled by a strongly anti-LGBT majority, even though in this instance, the Republicans are certainly a minority in opposing ENDA. Each year, more and more Republicans have come around on ENDA and we think a vote in the House would very likely go our way. But, undoubtedly, the Republican leadership is unlikely to willingly let ENDA come up for a clean vote.

And thus, our progress on ENDA this year seems limited to two possibilities. The first is passage in the Senate. We have so many great champions in the Senate from lead sponsor Jeff Merkley (D-OR), and Tom Harkin (D-IA), the Chair of the Health, Education, Labor and Pension (HELP) Committee, who has been integral in previous Congresses with hearings that have advanced the cause. And of course now in the Senate we have Senator Tammy Baldwin, who will continue her fierce support of ENDA. I just can't get enough of writing the words "Senator Tammy Baldwin." All signs point to very feasible movement in the Senate during this Congress.

The second opportunity is in strengthening the protections in ENDA so the bill is better when it finally passes. Along with our allies in other LGBT organizations, NCTE should advocate for updating certain parts of ENDA to better reflect changes that have occurred since ENDA was written--advances in the rights we have already won under existing law and the dramatic increase of LGBT power in the Washington power structure.

When ENDA's progenitor, the "Gay Civil Rights Bill" was first introduced in 1974, the community really was starting from scratch. We as LGBT people had no recognized federal legal rights and the bill was written with that understanding. Almost forty years later, while ENDA advanced haltingly, our employment rights have advanced apace. ENDA needs to reflect these advances and at least not do them harm.

Not only have our rights advanced, but our standing in DC and on Capitol Hill has advanced even more. In 1974, gay people were barely supplicants in DC, no doubt extremely thankful even that a single member of Congress from New York City would stand up for us. Now LGBT people have real power here. There are 7 out LGBT members of Congress, dozens of lobbyists for LGBT organizations, hundreds or thousands of LGBT Congressional staffers, and a well-established LGBT electoral donor base in whom the Hill power structure takes noticeable interest. In other words, we have immeasurably more power in DC than we had when the gay rights bill was written in 1974, when ENDA was first introduced in 1994 or even in 2010 when ENDA was last compromised.

ENDA's language should reflect these changes, these advances. Indeed, because the House of Representatives will likely stall ENDA again this Congress, ENDA's content should reflect the continued growing power we will have 2-4 years from now when it can get a fair vote in both chambers of Congress. And it should reflect and compliment the advances to the rights we will win between now and then. For instance, another goal we have for this year is a very important Executive Order we want the President to issue that would outlaw employment discrimination by federal contractors.

The changes to ENDA many of us would like to see are actually quite modest and fall into two categories. There are changes meant to reflect advances in our existing rights, especially newer and more favorable interpretations of Title VII sex discrimination law and the inevitable advance of marriage equality. And there are changes meant to reflect our current political station--rolling back compromises made in earlier versions of ENDA to appease members of Congress concerned with entitled and entrenched business, religious and scaredy-cat interests.

As we face a new Congress with our rapidly growing power and a quickly filling armamentarium of legal remedies, we need to make sure that ENDA, when it passes in a few years, moves our rights forward. We are no longer powerless mendicants. We are no longer starting from zero.

But we still have LGBT people all over the country losing their jobs, being harassed and disrespected at work or hiding like hell to avoid it. And though we don't think ENDA will become law this year, NCTE is committed to making ENDA better and moving it forward along with our other important and aggressive goals.