Tomorrow, I am going to call my congressman to urge him to vote NO on H.R. 3685, the Employment Non-Discrimination Act of 2007 (ENDA for short), as introduced on September 27, 2007.
H.R. 3685 is the version of ENDA that prohibits employment discrimination on the basis of sexual orientation alone. The original version of ENDA, H.R. 2015, prohibits employment discrimination on the basis of sexual orientation or gender identity.
It is my opinion that the current version of ENDA, H.R. 3685, is a toothless bill which will protect in a meaningful way only a small fraction of the gay, lesbian, and bisexual community, and virtually no one who is transgender or otherwise gender variant. Because of its legislative history of being derived from a broader bill, there is little chance that it will be interpreted more broadly by the courts to include some gender-based protections, even for gays, lesbians, and bisexuals. Simply put, it does not offer enough protection to warrant the political compromises needed to ensure its passage.
The original ENDA, H.R. 2015, is far more comprehensive and would give meaningful employment protection not just to the entire GLBT community, but to a significant portion of the non-GLBT community as well. I'll explain why below the fold.
The Protections of the Original ENDA Bill
According to the bill, the purposes of H.R. 2015 are to:
- to federally prohibit employment discrimination based on sexual orientation and gender identity;
- to provide for meaningful and effective remedies for such discrimination; and
- to invoke congressional powers under the Constitution to make such prohibitions.
Clearly these prohibitions mean nothing unless we define sexual orientation and gender identity. The bill gives us the following two definitions:
- the term sexual orientation means homosexuality, heterosexuality, or bisexuality;
- the term gender identity means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.
The definition of sexual orientation is simple enough, but take a look at how broad the definition for gender identity is. Specifically, using this definition, the gender identity part of this bill is not just a narrow prohibition against employment discrimination against individuals who are transgender; rather it protects anyone against employment discrimination based on having gender-related characteristics which do not correspond to their perceived sex. This bill, were to become law, would apply to a large precentage of our population. Here are some examples, in no particular order:
- Jessica, 32, has recently transitioned from male to female, and is in the middle of the one year waiting period before she have sex reassignment surgery. She applies for and is offered a job under her new court-ordered female name and designated sex, but a week later the job offer is rescinded because the employer receives a no-match letter from the Social Security Administration stating that her social security number belongs to a male with the same last name. At no time did Jessica lie on her application and at no point did the employer ask for previous aliases; Jessica simply had the misfortune of living in a state where a person could change their gender marker before surgery, whereas the SSA requires that a person have surgery before it will change the person's gender marker. Under this version of ENDA, Jessica has recourse.
- Mark, 42, is gay and works for Big Bucks National Bank. He's received excellent performance reviews from his supervisor, but has been passed up for promotion to a management position three years in a row. In this management position, Mark would be interacting with outside clients. He finds out from several sympathetic colleagues (who are willing to testify on his behalf) that his boss's boss, Ben, who is also gay, refuses to promote Mark because Mark is effeminate, and Ben does not like the idea of an effeminate gay man being an outside face for the bank. Under H.R. 2015, Mark has cause to sue because the discrimination is based on gender-related mannerisms.
- Jamie, 25, is intersexed. Specifically, she has congenital adrenal hypospasia (CAH). Jamie is legally female and identifies as a woman, but because of her disorder, her body has masculinzed to the point where she is visibly muscular and has a deep voice. Jamie has great interpersonal and organizational skills, however, and she has an associate degree in office management. Every interview she goes on, however, is a failure, and at the last one, the interviewers bluntly told her that because of her looks and her voice, she would be an "inappropriate public face for their business." Jamie can claim hiring discimination under this bill.
- Andrew, 18, lives in a small town and works at the local grocery store. Several months ago, Andrew started growing his hair long. It's now long enough to tie back, which he does at work and at school to keep his hair neat. His girlfriend loves his long hair, but the owner of the grocery store, Max, feels differently about it. One day, Max pulls Andrew aside and says, in no uncertain terms, that "young men are supposed to have short hair," and "if you want a job tomorrow, get a real haircut." The next day, Andrew keeps his hair and loses his job. Under H.R. 2015, what Max did was illegal since he fired Andrew based on his appearance not conforming to Max's traditional image of someone who is male.
- Emily, 37, works as a realtor for a real estate agency. She's happily married, and she and her husband have two children. The founder of the real estate agency, Jane, has direct control over who gets to work with the larger clients. Even though Emily has been working at this agency for several years and has been very successful at her job, Jane never assigns her any of the big clients. One day Emily has a meeting with Jane and asks her what she needs to do to get assigned a big client. Jane, who is very feminine, says to her, "well, to be honest, you just don't look the part. You have short hair, you never wear makeup, and I don't think I've ever seen you in heels. Our clients are looking for a certain image. Perhaps if you dressed the role..." This isn't the first time Emily has heard this lecture from Jane, but it is the first time Jane has make it clear that Emily is being held back in her career because she does not meet Jane's standards of femininity. Jane would be in an actionable position were H.R. 2015 to become law, since her reason for denying Emily the larger clients essentially was that she didn't look feminine enough.
The first example is that of an individual who is transgender, making this a classic example of what this bill would cover. The second example is that of a gay man being discriminated against not because he was gay, but because he was effeminate. It's the gender identity part of the bill which protects him, not the sexual orientation part. The third example is that of someone who is intersex. She is not transgender. It's her gender variant appearance, not her sexual orientation (which we do not know), which is preventing her from landing a job.
The fourth example is of an unambiguously heterosexual man, and the fifth is of an unambiguously heterosexual woman. We've all met people like Andrew and Emily, and we've all met people like Max and Jane. Max and Jane believe that they can enforce their notions of gender on their employees. They may also be hostile towards non-heterosexuals, but in these examples their employment decisions are based solely on issues relating to gender. H.R. 2015, the original version of ENDA, would allow people like Andrew and Emily to hold people like Max and Jane accountable for their actions.
Protecting the Andrews and Emilys of the nation is as much of the reason why we should support ENDA in its original form as is protecting the Jessicas, Marks, and Jamies of the nation, and, when you think about it, there are a lot more Andrews and Emilys out there then there are Jessicas, Marks, and Jamies. How many of the people you've met have lost a job or have been held back in a career because they just didn't look or act the part of their sex in someone's eyes? How many other people have modified their looks or their mannerisms to fit gender stereotypes? What about you?
The Reduced Protections of the Current ENDA Bill
In its current form, without gender identity, ENDA becomes rather hollow in its protections. There are at least two reasons for this. The first is clear from the last section of this diary: none of the examples listed above would be covered under the current version of ENDA, H.R. 3685. This includes protections for individuals in all parts of the GLBT spectrum, heterosexuals, and individuals who are intersexed. I would argue that the gender identity part of the original ENDA bill was the dominant feature of the bill, and without it, the current ENDA bill bears little resemblance to the original version.
There is a second, even more insidious problem with protections under the current version of ENDA, based on its legislative history. ENDA has been introduced in every congress since 1996. Before the 110th Congress, ENDA resembled H.R. 3685, with sexual orientation protected, but not gender identity. Under pressure from GLBT organizations, gender identity protection were added this year, giving rise to H.R. 2015.
Before the 110th Congress, had ENDA passed and become law, our federal judiciary would have had some reason to interpret sexual orientation broadly to include discrimination based on effeminate behavior in men and masculine behavior in women. This is how several state courts and state attorney generals have interpreted state versions of ENDA. Thus, before 2007, the term sexual orientation would have included some (but not all) of the protections afforded under the gender identity provisions of H.R. 2015, since both the actual and perceived state of being gay, lesbian, or bisexual were covered under the sexual orientation provisions, and it would have been reasonable for a judge to assume that some Congress did indeed intend for some gender-related behaviors that often correlate with someone being non-heterosexual to be covered under the concept of perception of sexual orientation.
This all changed as soon as gender identity protections were added to the bill this year. At this point, were H.R. 3685 to become law, even though it is for all practical purposes the same bill that has been introduced since 1996, it would have far less effect than, say, the 1996 version, since it would be reasonable for a judge to assume that, had Congress wanted gender identity protections included, they would have passed H.R. 2015, the version of ENDA with gender identity protections. An employer would have a reasonable defense if it chose to dismiss an employee based on his or her mannerisms, rather than his or her sexual orientation, and a judge would have little choice but to interpret ENDA in this narrow light. Here are two examples of situations which might have been covered under the 1996 version of ENDA, but would not be covered under reasonable interepretations of the current version of ENDA:
- Amy, 19, works in Edith's women's clothing store. Beth, 20, applies for a job at Edith's shop and does not get the job. Amy and Beth are both lesbians and know each other from the local PFLAG support group. Amy is feminine in appearance, while Beth has more of masculine, tomboy look. Amy asks Edith why Beth didn't get the job. Edith says, "Beth is a little too rough around the edges, if you know what I mean. There's lesbians, and then there's lesbians. You know how to fit in. She doesn't."
- Steve, 39, works for a mid-size corporation. Steve consitently receives good reviews from his boss, Bill, and is well liked among his colleagues for both the quality of his work and his interpersonal skills. Steve's colleagues know that Steve is gay, and while there's an occasional joke about Steve being "swishy," everyone seems fairly positive about it. One day, before a big presentation, Bill brings Steve into his office and says, "Look, Steve, we have these important clients coming in tomorrow and they're a bit conservative. Steve, you know I'm not a bigot, but just this once, you need to tone it down a bit. Be a team player, okay?" The next day, Steve is his usual self, his big presentation goes well, and everyone, including the clients, are impressed. Everyone, that is, except for Bill. In his next evaluation, Bill writes that Steve is "unprofressional" and "not a team player," and when bonuses are announced, Steve is left out in the cold.
In these two examples, Beth and Steve are discriminated against by an employer because of gender-related behaviors associated with their sexual orientation. In both cases, the employers could claim that they did not discriminate based on sexual orientation. Before H.R. 2015, this claim would likely fall flat, since a reasonable judge could interpret ENDA as covering not just sexual orientation, but the gender-related behaviors associated with sexual orientation. With H.R. 3685, however, a reasonable judge could interpret ENDA narrowly, and the claims of both employers could be viewed as having merit.
Why I Believe H.R. 3685 Should Be Defeated
Despite the clear drawbacks of H.R. 3685, it does afford some protections to gays, lesbians, and bisexuals. There is something to be said for passing any bill that improves civil rights for the GLBT community. Some protections are better than none. The perfect is the enemy of the good. In this case, though, I think that we need to view the passage of this bill as what it is: a political compromise among members of the House of Representatives. For any bill to become law, there is a political price to be paid. This is especially true with a controversial bill like ENDA.
Clearly, Speaker Pelosi and Congressman Frank want some version of ENDA to pass the House this session. The fact that Congressman Frank removed the gender identity part of the bill after our causus held a whip count is evidence enough to show this. I won't speculate on their motives here; there is more than enough such speculation around the blogosphere to satisfy anyone. I just wonder, based on their willingness to remove the gender identity protection from the bill, what else they have promised to other members of Congress to secure the votes needed for passage. This is the political price: favors granted, markers called, threats made, quid pro quos and all of that. This is all political currency that could be spent on something else this session, or, hopefully, a better ENDA in the future.
I recognize that some people in the GLBT community would benefit from H.R. 3685 were it to become law, and normally I would support a bill like this. That said, I see the Speaker of the House and the lead sponser of ENDA hollowing out the original bill to make it passable, and I can't help but get the sense that they're more interested in getting any bill passed than with getting the right bill passed. I've weighed the benefits of the current version of the bill with the effort and the political capital needed to pass it in its present form, and I've found the bill wanting.
You may have a different opinion. In the end, it's your call. I just want to put my thoughts out there for everyone to consider.
[Update 00:50 CDT 02 Oct 2007]: As homogenius points out below, Lambda Legal has done a preliminary analysis of H.R. 3685. H.R. 3685 is NOT the original ENDA bill with the gender identity protections removed. There have been several changes. I did a line-by-line comparison of both bill in Thomas, and here is a preliminary list of all of the changes (sorry for not citing paragraphs; the changes are in order from top to bottom):
- There's a whole new definition of religious organization, and it's broad.
- They partially gutted the retaliation part of the bill.
- They completely gutted the religious exemption part of the bill, and with the new definition of religious organization, it's a BIG deal.
- As Lamba Legal noted, they also knocked out the shared facilities and dress and grooming standards part of the bill, and
- the employee benefits part of the bill has been significantly modified.
- The effective date has been moved from 60 days after enactment to 6 months.
I'll put up another diary tomorrow with a more detailed list, but if anyone wants to do this themselves, feel free. We need to get some sunshine on this bill.