Family Pride’s Blog

As the 150+ citizens groups gathered together as UnitedENDA continue to fight for HR 2015, the fully inclusive employment nondiscrimination act, vital information regarding the failings of the new bill, HR 3685, is coming to light.

By now most of you know that the new bill no longer protects transgender people within our LGBTQ community. Protections for “gender identity” were specifically left out in the new bill. But that’s not all that happened to the ENDA this community has been working so hard to pass. According to Lambda Legal’s analysis of the new bill*, three other vital provisions are vulnerable in ENDA-2:

1. ENDA-2 does not protect people from discrimination based on “gender nonconformity.” In other words, it may be unlawful under ENDA-2 to fire someone for being “gay” or “lesbian,” but it will not be unlawful to fire that same person for being “nelly” or “butch.”

2. ENDA-2 no longer claims that an employer’s refusal to grant domestic partner health benefits to same-sex couples in a situation where they otherwise offer health benefits to opposite-sex spouses is discrimination. This backpedaling is based on marriage equality fears, not on the reality of what constitutes employment discrimination. Benefits given to some employees because their relationships fit “the norm” and not to others is a form of discrimination that should rightly be covered by any legitimate ENDA.

3. ENDA-2 gives in to religious-based discrimination by granting a blanket exemption to groups that claim a religious foundation. Religious exemptions should apply to legitimate faith-based institutions, not private companies that are run by religious zealots.

In other words, the issue of whether to support the original bill or the eleventh-hour substitute does not hinge solely on whether trans people are included or not. ENDA-2 is a watered down version of the ENDA we’ve all been fighting for. In this community we know we do not have many chances to pass legislation like the Employment Nondiscrimination Act. If we push an ineffective bill through now, we squander the opportunity to true achieve equality in the workplace. Still, even if these other provisions had remained intact, we would not support a bill that sacrifices unity for the benefit of some. A trans-inclusive ENDA is the only ENDA we want. For more information and opportunities to act, visit UnitedENDA.org.

*Note: Representative Barney Frank, who has championed ENDA for years and who most recently made waves by authoring the new version of ENDA, HR 3685, has responded to Lamdba Legal’s criticism in a blog post on Bilerico.com. On a personal note, I highly respect Rep. Frank and his outspoken efforts on behalf of the LGBTQ community. His thoughtful criticism was taken into account in writing this post. It should be noted, however, that Rep. Frank’s response to Lambda Legal has more to do with whether it’s politically feasible to include in ENDA the provisions discussed above, the provisions he altered or left out of the new bill. While I recognize the need to discuss political possibilities, I focused on Lambda Legal’s analysis in this post because I wanted to share a legal perspective on what the new bill does and doesn’t do, not whether it’s possible to pass a bill that does or does not do those things.

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