ENDA Reintroduced With Half As Much Support

by Kilian Melloy

EDGE Staff Reporter

Thursday April 7, 2011

In the last Congressional session before the midterm elections, the Employment Non-Discrimination Act (ENDA)--a bill that would bar workplace discrimination against GLBTs--had strong support, with 203 representatives--close to half the total number in the House--having signed on as sponsors. With only 14 more sponsors, the bill would have had a majority and been a shoe-in for passage; even without those additional sponsors, the bill stood a strong chance, but it was never brought to a vote.

Now it may be too late to get the bill passed in the foreseeable future. MetroWeekly reported on April 6 that the re-introduction of the anti-discrimination measure by openly gay Rep. Barney Frank earlier that same day had the support of only 111 representatives, indicating that support for the bill had fallen by half.

This was not a surprise, the MetroWeekly article said, recollecting a remark that Frank had made to the publication prior to re-introducing the bill.

"Obviously, with the Republicans in power, you're not going to get the bill even considered," Frank noted.

MetroWeekly reported that the newly re-introduced bill is headed for the Committee on Education and the Workforce, which is headed by Republican Rep. John Kline of Minnesota. Kline does not support the measure, the article said.

A spokesperson for Frank told the press that the loss of 70+ seats in the House to Republicans accounted for the significant loss of support for the measure.

Proponents told the publication that the task now would be to reach out to GOP representatives and convince them of the need to ensure federal protections for GLBT workers. Moreover, the number of sponsors on the day of the bill's re-introduction is not set in stone, the National Center for Transgender Equality told the publication.

"It's not like today was some sort of a deadline," said Mara Keisling. "There will be more in the next couple of days. If you look through the list, you're going to find some obvious people who want to be and will be co-sponsors and just haven't gotten around to it yet."

MetroWeekly also reported last December on ENDA's lack of progress despite having had such strong support. Among other factors, the chamber's concentration on health care reform was more time intensive than had been anticipated; moreover, congressional attention shifted to the repeal of "Don't Ask, Don't Tell" late in the session. Congress did vote to repeal DADT, but that repeal has yet to take effect.

In addition, no vote was brought because Democrats feared that GOP opponents of ENDA would call for a "motion to recommit," a procedural hurdle that some thought might sink the bill.

There was also concern that the bill would not have had a chance of being approved by the Senate.

ENDA has been introduced to every Congress, save one, since 1994, but it has never made it to the president's desk.

At one point, in order to make ENDA more "palatable" to the Senate, sponsors in the House revised ENDA and made it applicable only to gays, lesbians, and transgender workers. The measure still failed to pass the Senate, while a resulting outcry in the GLBT community at the perception of abandoning transgender Americans created fissures in the community. Subsequent versions of ENDA have included protections for transgender workers, though Frank has said that more outreach and education around the issue of gender identity is needed if the bill is ever going to become law while keeping provisions for transgender workers intact.

A Hard Sell

Frank also pointed out that even in liberal states, gender identity protections are a tough sell. In Frank's home state of Massachusetts, for example--the state that first extended marriage equality to gay and lesbian families--lawmakers have yet to expand anti-discrimination protections to cover transgender individuals.

An attempt by Massachusetts lawmakers to pass such a bill last year was derailed when a candidate for governor, Charles Baker, seized on the measure, adopting the language of anti-trans protections activists by calling the measure a "bathroom bill" that would leave girls vulnerable to sex criminals who might use the law to infiltrate women's restrooms while posing as transgender people, an April 5 Boston Globe article recollected.

Other anti-gay individuals and organizations took up the theme, with the Massachusetts Family Institute organizing a lobby day on April 8, 2010, to protest the bill. The "biology-based bathrooms" argument was prevalent at the lobby day, reported Bay Windows in an April 25, 2010, article.

"[F]ormer Fall River school superintendent Joseph Martins addressed attendees and painted a nightmarish scenario in which school officials would be powerless to stop hordes of teenage boys from charging into the girls' locker rooms to get a peek at their female classmates," the Bay Windows article reported.

"It is difficult enough to control student behavior, prevent discrimination of all students, and ensure the safety of all students without having to distinguish between truth and a lie of some student claiming, at will, a gender-related identity, appearance, expression or behavior other than that assigned sex at birth, simply to gain access to the opposite-at-birth-sex locker-rooms, showers, or lavatory facilities," Martins declared.

"Nothing in House Bill 1728 protects students using their birth-sex locker-rooms, showers, and lavatory facilities that may be in various stages of undress from unwanted eyeing or so-called, on purpose 'unintended' body touching by students of the opposite sex," Martins went on to assert.

The Massachusetts Family Institute also issued warnings to state lawmakers that depicted the bill as practically being an invitation to sex criminals, Bay Windows reported.

"Due to this wording, any man can legally gain access to facilities reserved for women and girls simply by indicating, verbally or non-verbally, that he inwardly feels female at the moment," an MFI-written brief stated. "There is no way to distinguish between someone suffering from 'Gender Identity Disorder' and a sexual predator looking to exploit this law. This is the dangerous reality of this bill."

The Globe article noted that following the midterm elections, the bill lost 35 supporters who did not run for re-election, or who were defeated at the polls. However, the bill reportedly still enjoys a great deal of support among the state's legislators; moreover, the article said, 135 clerics support the measure.

Meantime, one anti-gay Massachusetts group has taken a share of credit for a similar bill in Maryland being exiled to legislative oblivion.

"The homosexual lobby was hoping to get it passed by the Senate and signed by the Governor by April 11, when the Maryland legislative session ends," text at massresistance.com read. "But it appears the Senate leadership has had enough!"

The site's text went on to say that the bill was sent to the Rules Committee of the Maryland State Senate, which is a repository for bills that lawmakers do not wish to have to address.

"When we are through with the budget we'll have time to deal with other issues that might have a chance of passage," said Mike Miller, the president of the state senate, according to local newspaper the Baltimore Sun. "At this point in time I'd say the chances of passage of that bill are next to none."

"Gave all the Republicans your pics to get them fired up against this bill," an opponent of the Maryland bill wrote to MassResistance, which regularly publicizes photos of gays and transgender people, including minors. "Once again, I really can't thank you enough for all your help and moral support," the Maryland correspondent wrote.

"We're glad we could be part of the fight," text at MassResistance.com read. "MassResistance will continue to help around the country in any way we can."

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.