This past Tuesday, the Senate Committee for Health, Education, Labor, and Pensions met in a hearing on the Employment Non-Discrimination Act (ENDA), a piece of currently proposed labor non-discrimination legislation. ENDA, if passed, would add factors of actual or perceived gender identity or sexual orientations to federal protections against workplace discrimination, which currently includes race, color, religion, sex and national origin, as detailed in Title VII of the Civil Rights Act of 1964.
The five witnesses who testified before the Senate in the hearing included Kylar Broadus, an attorney and founder of Trans People of Color Coalition in Missouri, who made history as the first-ever trans person to testify before the US Senate. Broadus focused his testimony on the numerous instances of transphobia in his professional career which have caused severe consequences, including long periods of unemployment and post-traumatic stress. Also testifying was a social scientist and sexual orientation policy specialist at UCLA’s Williams Institute, a high-ranking executive of General Mills, and two lawyers specializing in First Amendment issues and labor policy.
“It is long past time to eliminate bigotry in the workplace, and to ensure equal opportunity for all Americans,” Senator Tom Harkin (D-Iowa) said in his opening statement.
Emphasizing and encouraging a speedy passage of ENDA through the Senate, Harkin, along with the original sponsor of ENDA, Sen. Jeff Merkley (D-Ore.), emphasized through their statements and questions the major points of the bill: that despite dissenters’ arguments, the bill would not cause “a flood of lawsuits,”would extend equal protections as already exist for other groups, would increase businesses’ profitability and would include exemptions for religious groups.
The exemptions for religious groups proved to be the most contentious issue brought to light in the hearing. Craig Parshal, a witness and First Amendment lawyer with the National Religious Broadcasters Association, repeatedly stated his organization’s position that ENDA would present a serious breach of the first amendment of the Constitution. Citing parts of the bill’s sixth section, Parshal contended that the exemption procedures, modeled on those laid out in the Civil Rights Act of 1964, were excessively ambiguous.
In rebuttal, Samuel Bagenstos, a professor of law at the University of Michigan, made clear to the Senate committee that the language of the bill was clear, and that the procedures it called for had already demonstrated effectiveness in practice. In fact, ENDA’s exemptions for religious groups are so broad, Dr. Bagenstos testified, that the bill’s exemption language has been severely criticized by groups such as the Human Rights Campaign and the American Civil Liberties Union. Sen Harkin, following Dr. Bagenstos, also reminded the committee of similar First Amendment issues brought by religious groups in debates over racial and women’s equality, which have been thoroughly accepted as constitutional.
ENDA has had a troubled history. Currently, while sixteen states and 186 cities and counties (including the District of Columbia) have passed workplace equality policies for sexual orientation and gender identity, the policies have consistently lacked support as federal legislation. ENDA, in its current form, has been introduced in every Congress since 2007, and similar legislation providing protection against discrimination based on sexual orientation has been introduced consistently for almost four decades without passage. Additionally, between 2000 and 2008, the Bush administration issued a pre-emptive veto threat applying to all LGBT equality legislation. This year, along with Sen. Merkley’s Senate ENDA bill S 811, Rep Barney Frank (D-Mass) has re-introduced ENDA to the House of Representatives as HR 1397.
This post was written by Robin Banerji, a student at Haverford College and a member of the PSEC Coordinating Committee.