ENDA, we hardly knew ya

In a scenario that will look all too familiar to those who were watching in 2007, we’re about to kill ENDA again.

The Employment Non-Discrimination Act (aka ENDA) is legislation that would ban employment discrimination against gay and trans people, under federal law. Currently, it’s legal under federal law to fire someone for being gay or transgender, though it has been outlawed in a number of states and municipalities.

ENDA has been around since 1974, and the community has been trying to pass the legislation ever since.

It’s a long story as to what happened between then and now, but suffice it to say, ENDA never went very far, though it lost by only one vote in the US Senate in 1996 (I was there, in the gallery, watching, since I was working on the bill as a volunteer for Senator Kennedy).

ENDA, via HRC.

ENDA, via HRC.

The bill came up again in 2007, where two bills ended up being introduced in the House, one covering sexual orientation, and the other including gender identity as well. (Up until that point, the previous versions of ENDA had only covered sexual orientation.) The gender identity version died in committee. Openly-gay Cong. Barney Frank then introduced the previous year’s version of ENDA, that only covered sexual orientation, and it passed the US House and went to the Senate.  The legislation subsequently died in the Senate, after the gay community had a quite vocal, and quite angry, split between those advocating ENDA’s passage and those advocating that the legislation be killed because it didn’t include gender identity.  Subsequently, a group of those who had opposed the non-trans version of ENDA, calling themselves “United ENDA,” promised to easily obtain passage of the trans-inclusive version of the legislation, and nothing happened for another six years.

Fast forward to last year, 2013.  A version of ENDA that included gender identity passed the US Senate, but is expected to go nowhere under GOP House Speaker Boehner’s tutelage. Boehner has already said he won’t let the bill come up.

In the meantime, there’s been an effort going on for several years now to get the White House to issue an executive order, mandating ENDA’s protections for federal contractors of a certain size.  That has gone nowhere, though the President had previously supported it. We’ll come back to that in a moment.

Fast forward to this year. After demanding that the House pass the version of ENDA that already sailed through the Senate, and demanding that the President issue an ENDA executive order, many of the same gay/lgbt groups that called for the Senate to kill ENDA in 2007 are now calling on the House to kill the Senate-passed version of ENDA as well. This time, they are concerned that the bill’s religious exemption is too broad; some are arguing that we should simply amend the 1964 Civil Rights Act, and add sexual orientation and gender identity to the already-existing civil rights law.

(I know that back in the day, in the early 90s, I’d asked why we weren’t doing just that, amending the Civil Rights Act instead of trying to pass a free-standing bill. And I was told that, among other concerns, the Republicans would like nothing better than for us to open the Civil Rights Act to their amendments, effectively permitting them to gut it. I also suspect that not including us in the Civil Rights Act was a nod to some allies who might object. Do those same concerns exist today? Probably.)

The concern over the religious exemption arose last year during the Senate debate, with the ACLU expressing their displeasure, but also indicating they would not oppose the bill. The exemption was broadened, reportedly, to win GOP Utah Senator Orrin Hatch’s support, which it did.

I asked one of the groups now calling for the Senate-passed version of ENDA to be killed if the executive order had the same problems. I was told that while the executive order was likely less problematic, it was still problematic.

So, where does that leave us today?

We’ve been pushing the House to bring up a bill that some vocal parts of the community now want killed. And we’ve been asking the President to sign an executive order that we might now oppose.  Where does that leave the White House and the US House? Confused; and ENDA in limbo.

I’m often asked why the repeal of Don’t Ask, Don’t Tell and ongoing legalization of gay marriage seem to have sailed through so quickly, while ENDA is going nowhere.  Here are my thoughts.

Nothing went anywhere quickly. The ban on gays in the military goes back a long time, and DADT itself goes back to 1993. We’ve been fighting 20 years on that one alone.  As for marriage, ditto. The issue has been burning for a good two decades plus in the community.

Yes, but we finally won on those two issues, but ENDA, not so much.  Why?  In part, because DADT and marriage had some pretty delicious victims — the military members, in their dress blues, were coming out of the woodwork on a weekly basis, while the TV was filled with images of happy gay couples running to city hall, starting in Massachusetts back in 2004, and then proceeding state by state.  As for ENDA, name one gay or trans person who is the poster child for ENDA.  The lack of sympathetic, visible victims isn’t helping move things along any quicker.

And finally, at this point, it’s not clear how the White House issues an executive order, or how the US House brings up the bill itself, when the community is, in an echo from 2007, divided as to what it even wants.  Uncertainty does not breed political courage.

That’s why prospects for the ENDA legislation and executive order continue to look dim, in contrast to our success on DADT and marriage.

Plus ça change.

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CyberDisobedience on Substack | @aravosis | Facebook | Instagram | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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