hunter of justice

Barney, still Frank

Following is a quintessentially irreverent and irascible swan song from our main man Barney (I have excerpted quite a bit; full text is here):

Washington Blade: To what degree have you seen support for LGBT equality increase in the U.S. Congress since you took office as a congressman in 1981?

Rep. Barney Frank: Oh, enormously. When I first got here, the first vote we had was in 1981 when the House – as it was able to do then by a one-house vote – overturned the D.C. Council’s repeal of the [city’s] sodomy law. It was a heavy vote against us. And we’ve just made very great progress since then. It’s to the point where now — and it’s unfortunate that it’s gotten very partisan. The country has gotten much better in its view on LGBT rights. The Democrats have gotten better — equal to or ahead of the country. But the Republicans have gotten much worse. So it’s now one of the major partisan issues... 

Blade: When you came out in Congress did you sense you were being held back from advancing because of a so-called glass ceiling due to your sexual orientation?

Frank: I think there was one at first. I think, now, yes and no. Certainly it didn’t interfere with my being the chair of a very powerful committee and being, frankly, because of the circumstances, one of the major leaders. In fact I said that on the floor. I remember saying when we were talking about the hate crimes bill, ‘I’m a big shot now but I used to be 15 and I remember what it was like.’ … If I were running for a leadership position it might be a problem in the House. Some of the Democrats come from the few areas left where they’re afraid. But now we have almost all the Democrats on board. We have a handful that aren’t. So no... 

Blade: Some of the more outspoken trans activists... say they are outraged because [the new Massachusetts law prohibiting gender identity discrimination] includes employment, housing and other protections but not public accommodations protections.

Frank: ... I would say ridiculous trans activists who are outraged, who would prefer there be no rights for employment than this - - [t]hat is an example of their political stupidity. They may be very bright about other things. I don’t see how anybody can see that as a rational argument right now, nor, by the way, do I think it represents five percent of our community. I don’t even think it represents a majority of the transgender people. How can it possibly be – and by the way, these people don’t know history, because I will tell you that Martin Luther King and the other civil rights leaders would not for a second have hesitated to accept that deal... 

Blade: Some, like Hillary Clinton when she ran for president in 2008, said her husband signed DOMA because it would act as a safeguard against passing a federal constitutional amendment to ban gay marriage.

Frank: That’s nonsense. Her husband signed it because he was afraid politically about what would happen if he didn’t sign it. It has nothing to do with a constitutional amendment. He signed it because it was politically necessary to sign it. And I understood that. The Republicans threw it on his lap three months before the election. [Liberal, gay-supportive Senator] Paul Wellstone [D-Minn.] voted for it. He was up for re-election that year and he was afraid of it...

Blade: Do you have any predictions of what the Supreme Court might do if the Proposition 8 case gets there?

Frank: I think that’s not a good case. I think the better case is Mary Bonauto’s case [the attorney with the LGBT litigation group in Boston, Gay & Lesbian Advocates & Defenders, which is challenging the Defense of Marriage Act, or DOMA, in court on behalf of a same-sex couple.]

Blade: Everybody’s talking about the presidential election. Are the Republican presidential candidates as horrible as a lot of gay activists are saying they are on LGBT issues?

Frank: Yes – they are. Romney is a total faker, having said he was going to be more pro-gay rights than Ted Kennedy and he’s moved against us on everything, not just on marriage. And Gingrich was the leader of homophobic stuff when he was here. Gingrich was the man who put the Defense of Marriage Act on the agenda in 1996 when he was the Speaker... [I]n general the Republicans have become a 90 plus percent anti-gay party...  I’m not at all confident that a Republican president won’t reinstate ‘Don’t Ask, Don’t Tell.’

Blade: Is there a chance that the Congress would block that, even if there’s a Republican-controlled House?

Frank: Well Congress couldn’t reinstate it because they would never get it through the Senate and the president would veto it. But if the Republicans win the presidency they don’t need the Congress. The president could reinstate it by executive order.

Blade: Is it completely settled now that every gay civil rights bill will include gender identity and expression protections or it won’t be introduced, whether it would be ENDA or another bill?

Frank: I think it’s unlikely that it wouldn’t but that doesn’t necessarily mean it will pass. I think you’ll see transgender protections included. We’ve made progress on transgender. But my view is the same in that we still have the problem with the situation where people get naked together. But short of that, I think the next time we have a Democratic House, Senate and president...  we’ll be able to pass a transgender-inclusive ENDA. But like the Massachusetts law, probably not allowing full and unrestricted access to locker and shower rooms...

Federal court case in Cleveland shows weakness of local anti-discrimination laws

Late last month, U. S. District Judge James Gwin denied summary judgment to the defendants in Hutchinson v. Cuyahoga County Board of County Commissioners (2011 WL 4452394). Shari Hutchinson alleged that she was denied several jobs in the county agency responsible for child support enforcement because she is lesbian. Hutchinson was able to produce indirect evidence of discrimination from statements by other employees to the effect that, while she consistently was ranked as a leading contender for the jobs, the Commissioners themselves repeatedly singled her out to block promotions despite excellent performance reviews.

Cuyahoga County is bascally the greater Cleveland area. Its voting patterns are heavily Democratic, so no surprise that there were official policies against discrimination based on sexual orientation when the alleged discrimination against Hutchinson occurred. According to the complaint, Cleveland has an ordinance barring such discrimination in employment and the county has the same provision in its employment policies. Unfortunately, these laws appear to have provided no protection for Hutchinson. 

This decision is not of great legal import because it is unlikely to establish new law. Under the Fourteenth Amendment's Equal Protection Clause, public employers cannot treat lgb employees differently based on their sexual orientation without demonstrating a rational basis for doing so, and dislike of or discomfort with gay people does not satisfy even the rational basis test in ordinary public employment cases.

But the Hutchinson case does illustrate how employers that have adopted anti-discrimination policies or that are subject to local civil rights ordinances can nonetheless engage in informal, unstated, but repeated patterns of hostile conduct toward lgb workers. No form of law is a panacea, of course, but a federal law with the same authority as Title VII would be far more likely to be effective.  

It's called ENDA.

How the Obama position on DoMA will strengthen public employment rights

Following are excerpts from a column posted on Bilerico by former Hill staffer Tico Almeida:

...[C]onsider the hypothetical examples of a lesbian employee of the Alabama State Department of Agriculture, a gay male employee of the Arizona State Department of Transportation, and a bisexual employee of the Alaska State Department of Tourism. These three states have more in common than alphabetical privilege. Alabama, Arizona, and Alaska each currently lacks a state ENDA statute that protects against discrimination based on sexual orientation. As noted, there is no federal ENDA statute either. 

As of today, the lesbian employee in Alabama can be fired just because she is a lesbian. The gay employee in Arizona can receive lower pay and fewer promotions just because he is gay. The bisexual employee in Alaska can be severely harassed and subjected to hostility just because he is bisexual. Without a state ENDA statute or the proposed federal ENDA, these three employees would have very little to absolutely no legal recourse for sexual orientation discrimination in either state or federal court. 

Now imagine that the U.S. Supreme Court eventually agrees with President Obama and Attorney General Holder that gays and lesbians deserve "heightened scrutiny." At that point, the lesbian employee in Alabama, the gay employee in Arizona, and the bisexual employee in Alaska have a far greater chance of successfully arguing in federal court that the discrimination by their employers - each one a state government actor - was a violation of the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. 

Under current constitutional law, it is possible, though sadly unlikely, that a gay or lesbian employee of a state government could win this type of constitutional case based on the lower level of constitutional protection called "rational basis review." Some plaintiffs have won cases at this lower level of protection, but it is such an uphill climb that victory is the exception and not the rule. The spillover effect of the Obama Administration's decision to argue for "heightened scrutiny" in the DOMA cases is that these three hypothetical employees would have a far greater chance than they currently do of winning their lawsuit based on sexual orientation discrimination and securing justice in the workplace - even if neither a state ENDA nor the proposed federal ENDA has passed yet... 

ENDA, R.I.P.

Kudos to Chris Geidner, who has published an in-depth examination of the political moves that led to ENDA's legislative death this year. It's Rashomon-style history, which we've seen before - dispiriting, no matter whose story you believe. The piece is long, so I have excerpted it:

...As the members of Congress put in place the final priorities for the lame-duck session of the 111th Congress, nary a word has been heard about [ENDA] – the longest-standing piece of legislation, in one form or another, sought by LGBT advocates.

''It's dead for now,'' the bill's blunt House sponsor, Rep. Barney Frank (D-Mass.), said on Dec. 14. And things had started so well.

The bill had a hearing in the House Education and Labor Committee, with supportive testimony from the Obama administration. Then, Chairman George Miller (D-Calif.) slated ENDA for a mark-up in the House Education and Labor Committee in November 2009.

But Miller canceled the mark-up and that was, more or less, the last that was heard of the bill, which would prohibit employment discrimination on the basis of sexual orientation and gender identity for most employers with 15 or more employees.

Soon enough, ''Don't Ask, Don't Tell'' moved to the fore – both in Congress and in the public's consciousness. By January of this year, it already appeared that the employment measure ... had taken a back seat to ending the 1993 law banning openly gay or lesbian military service.

Even the spokesman for House Speaker Nancy Pelosi (D-Calif.) acknowledged this week, ''The long-agreed-upon order was hate crimes; ENDA; 'Don't Ask, Don't Tell.''' But, speaking with Metro Weekly, Pelosi spokesman Drew Hammill said, ''We then went into health care, and obviously that took much longer than anticipated.'' As Frank acknowledged, ''One of the things that delayed [ENDA] was the health bill – because it was in the same committee.''

Then, Hammill said, ''There were issues with the motion to recommit...Everyone thought we had the votes on the underlying measure, but it depended on what language the GOP [brought up] on the motion to recommit. 'Many felt it would be a troublesome sign to take it to the floor and not to be able to overcome the motion to recommit.''

Frank [clarified], ''What they were worried about was a motion to recommit, like saying that an elementary school teacher can't transition in the middle of the year.''

But, as Rep. Tammy Baldwin (D-Wisc.) explained, ''[O]ur vote counts – for two sessions in a row – we didn't reach the same conclusion [as the House Democratic leadership] about the confidence in, not so much passage, but being able to defeat a motion to recommit.''

A House Democratic leadership aide, who asked not to be named to present an open assessment of the whip process, criticized the count of members or the advocacy organizations, saying, ''You'd have the whip check it or the speaker check it, and it wasn't there. At the end of the day, there were serious problems with the motion to recommit. People who they had on the list, people who signed on as co-sponsors because they never thought it would come to the floor…. The 'yes' was not there.''

Baldwin said, however, [that] "there's a reason why there wasn't a complete match-up. The conversation that individual has with the leadership whip team may not end up with his revealing how he's going to vote. He may simply say, 'I'm asking you, as leaders, don't bring this up. Don't make me take this vote. You're the ones who decide.''' But, when she or other members press them for how they would vote, she said, they get an answer, and she had a good deal of confidence in the ability to defeat a motion to recommit related to the gender-identity protections.

Frank was not as sure, saying, ''I'm not confident how it would have turned out. I think people in the community underestimate the opposition.'' He added that, without the gender-identity provisions, ''We clearly have the votes for that.''

Baldwin concluded, though, ''I certainly articulated, both sessions, that I felt we should move forward. I know others shared that.'' Frank, despite his reservations, agreed. ''I wanted to go to the floor,'' he said. ''I agreed with Tammy.''

[According to Hammill,] ''Everyone wanted to go forward. I don't think I disagree with that at all.'' But, he added, ''As you well know, and [Speaker Pelosi has] said this a number of times, moving on two priorities at the same time would be problematic and could endanger the outcome of both.''

...Hammill said, ''There was a decision made with some of the groups – some of them wanted to move forward with 'Don't Ask, Don't Tell.''' National Center for Transgender Equality Executive Director Mara Keisling said that, if such a decision was made, that was unacceptable. ''The problem,'' she said, ''is that they were signaled that it was okay to pick one over the other.''...

[Spokespersons for both HRC and the Task Force denied pushing DADT repeal in front of ENDA.]

As to the specter of a lame-duck vote on ENDA, which had been floated as a possibility throughout the summer and fall, Baldwin said, ''If I were to give you my best opinion on this, [chances of a lame-duck ENDA vote] disappeared when it became clear that if we had any chance of repealing 'Don't Ask, Don't Tell,' that that would happen in the lame duck.''...

''[The delay] had to do with there being staff members in leadership who were afraid of the trans part,'' [Keisling] said. ''And leadership stalled on it. They stalled and they stalled.''

Other LGBT advocates concurred, with different advocates pointing to varying members of the Democratic leadership team as the individuals most responsible for holding back the bill from a vote. All, though, acknowledged that the motion to recommit was the main concern and that, because of that, Pelosi was unwilling to bring the bill to a vote.

Hammill, however, also noted another major concern for the speaker's office, saying, ''Possibly we could get it out of the House, but I don't think anyone sees a path in the Senate.''...

Despite Obama's ''continue[d] support'' of the legislation, White House spokesman Shin Inouye did not sound hopeful about passage of the bill in the near future, telling Metro Weekly of the president's view, ''As the public continues to learn about the need for this legislation, he hopes that Congress will take on this issue to help bring fairness and equality to our nation's laws.''

As to that education, Frank had a message for LGBT advocates, saying, ''In the interim what the community needs to do is educate on the transgender issue.'' The point was echoed by the Democratic leadership aide, who said ''there has not been the work done by the community in the Senate'' to ensure the passage of an inclusive ENDA.

As Frank said, ''I would point out to you that they still have not been able to get transgender protections in liberal places. If you can't do it in Massachusetts, New York and Maryland, it doesn't get easier when you add in South Dakota, Oklahoma and Utah.''

Pelosi hasn't given up on ENDA, but lame duck vote unlikely

From Politico:

As Democrats discuss what, if anything, they can deliver to the base in the lame-duck session, one possibility may be the Employment Non-Discrimination Act, seen by many as the easiest lift among various pieces of stalled gay rights legislation. 

... Speaker Nancy Pelosi talked about wanting to do ENDA on a leadership conference call today. Pelosi didn't set a timeline, but [the] source said she appears to want a vote before the lame-duck session ends.

Then the response, as reported in The Blade:

A gay rights activist with the connections to the speaker’s office, who spoke on condition of anonymity, said a blog posting in Politico on Thursday reporting that Pelosi wants a vote on ENDA before lawmakers adjourn for the year is “not true.”

“The speaker brought it up during a leadership call in a list of unfinished bills, and all of the sudden, it got leaked out as she is going to bring this to a vote by the end of the year,” the activist said. “Whoever did leak that took it completely out of context.”

The activist said the speaker didn’t mention “anything else that would have implied she was foretelling a vote by the end of the session.”

Drew Hammill, a Pelosi spokesperson, said “no decisions” have been made on any legislative items for lame duck.

Similarly, Aaron Albright, spokesperson for the House Education & Labor Committee, where ENDA currently sits, said nothing has been scheduled for the committee and “no decisions on the legislative agenda for the lame [duck] have been made.”...

“She’s been very, very, very, very clear that ['Don't Ask, Don't Tell'] needs to be finished before she’ll schedule a vote on ENDA,” the activist said. “I think this is being misconstrued.”

ENDA down for the count

The Hill reports the obvious: it's all but over for ENDA in this session of Congress, except for a hail mary lame duck strategy. Unfortunately every Dem-affiliated interest group in DC has a long and lengthening list of goals for which not much hope is left except for a HMLD strategy.

Amazingly, everyone agrees on who's at fault with ENDA: the other guy.

Gay-rights activists say they are resigned to the fact that the House will not vote before the midterm elections — and perhaps not this year — on the Employment Non-Discrimination Act (ENDA), a bill adding workplace protections for sexual orientation and gender identity.

With Democrats bracing for big GOP gains in November, the legislation could be dead for the foreseeable future if it isn’t passed this Congress.

“I am not too optimistic,” said Mara Keisling, executive director of the National Center for Transgender Equality. “It was never a top priority [for Democratic leaders], and we ran out of time.”

Keisling blamed the media for elevating the issue of gays in the military over ENDA. She said she doesn’t question the importance of ending “Don’t ask” but noted “ENDA has always been the community’s No. 1 legislative priority.”

ENDA has been a cause for the gay community for years, but it has taken a backseat to the push to end the ban on gays serving openly in the military...

 “Speaker Pelosi made a commitment to our community that this would come up for a vote during this session of Congress,” said Fred Sainz, chief spokesman for the Human Rights Campaign. “A commitment has been made, and we expect that commitment to be fulfilled.”

Advocates are turning their attention to the lame-duck session of Congress, when they have been told there is a chance ENDA could be brought to the floor...

Rep. Barney Frank (D-Mass.) — the chief architect of ENDA — said he is working on bringing the bill up during the lame-duck session but did not know if it would happen. He placed part of the blame for ENDA’s delay on gay activists.

 “They haven’t been doing a good enough job of lobbying their members,” Frank said.“People have demonstrations. They don’t lobby their members. I want all of the groups that I agree with to be like the NRA," Frank said...

The House in 2007 passed a version of ENDA that included protections for sexual orientation but not gender identity. That bill gained 35 Republican votes, but the addition of the protection for transgendered people has scared off some centrist Democrats and Republicans wary of wading into a sensitive social issue in an election year...

Federal court judge finds anti-trans discrimination unconstitutional

U.S. District Judge Richard Story has ruled in Glenn v. Brumby that the Georgia state legislative counsel's office acted unconstitutionally when it fired Vandy Beth Glenn from her job as an editor after learning that she would transition from her former identity as male. Glenn, who was a terrific witness at the ENDA hearing before the House Education and Labor Committee last September, is the most recent in what is becoming a long list of successful trans plaintiffs suing on sex discrimination grounds. Lambda Legal brought the case on her behalf.

The caveat in this case is that the court accepted the defendant's argument that the anticipated negative consequences of Glenn's use of the women's restroom (lawsuits by coworkers) was a rational basis for her firing. The standard of review in sex discrimination cases requires that the defendant show that its actions were substantially related to an important government interest. Because he found that speculation about reactions to bathroom use did not meet that standard, Judge Story granted summary judgment to Glenn on her sex discrimination claim. However, he denied summary judgment to her on her other ground for relief, which asserted an Equal Protection violation based on her medical condition. Medical condition claims require only a rational basis for governmental actions.

There was no evidence that the defendant's concern with restroom use was an actual reason for the decision to fire Glenn, rather than an argument offered after the fact, nor was there any evidence that Glenn had used the women's restroom or would have been likely to do so, since there were multiple single-occupancy bathrooms available near her office. Under the higher standard of review applicable to sex discrimination, these missing facts - plus the supervisor's admission that he decided to fire her because he felt that a biologically male person presenting as female would be "unnatural" - were fatal to the defense. The court distinguished this case from decisions in the Sixth and Tenth Circuits in which plaintiffs lost on the ground that employers feared that women co-workers would sue the employer if an MTF person were allowed access to the women's bathroom. In those cases, the Georgia judge said, there was evidence that bathroom use issues were the actual reasons for the firings.

The most distressing part of the Glenn decision was the court's reasoning that

Terminating an employee with male genitalia who intends to present as a woman and thus could use women's restrooms would further the purpose of avoiding lawsuits resulting from that use. Avoiding the costs of lawsuits, even meritless suits, is a rational legitimate government interest. Terminating an individual that could increase the prospects of such suits is rationally related to the goal of avoiding such suits.

What we see, therefore, is the development of a line of employment cases in which trans plaintiffs have essentially succeeded in establishing the legal principle that discrimination based on gender identity is a form of sex discrimination. However, even those courts may ultimately rule against the plaintiff if the defendant can demonstrate that it acted pursuant to what a judge may perceive as legitimate bathroom access issues.

It is starting to seem that it matters less and less whether job discrimination based on gender identity is dealt with under ENDA or Title VII. At the same time, however, the need to resolve the bathroom access problem through negotiated statutory language is becoming more important.  That is the sticking point that is holding up ENDA's progress in Congress and, as these cases demonstrate, it is also the issue on which advocates are most vulnerable under a sex discrimination approach.

ENDA: The slog continues; it's a sure thing "within five years"

A member of Congress from the San Francisco area told Bay Area Reporter that, "being realistic," the time frame for enacting ENDA could be five years:

Congresswoman Jackie Speier put a damper on hopes for swift House passage of the Employment Non-Discrimination Act, telling the Bay Area Reporter over the weekend that she doesn't see the LGBT workplace protections becoming law anytime soon.

Addressing the crowd of gay and straight political and community leaders at Sunday's Alice B. Toklas LGBT Democratic Club Pride breakfast, Speier said, "Speaker [Nancy] Pelosi is doing all she can to ensure a majority for next year so we can pass ENDA." Asked later in a brief interview if that meant the House would not vote on ENDA this year, Speier told the B.A.R., "The rest of the year is in question."

"There's no question 'Don't Ask, Don't Tell' will be history this year," she said. "ENDA, we will have that law for sure within the next five years." "I'm being realistic," she said.

With Congress leaving Washington, D.C. for its Fourth of July recess, and the summer recess in August, there's not much time left before members head out on the campaign trail in the fall ahead of the November midterm elections. Speier also said that right now there are 290 bills in the Senate awaiting action that the House has already passed. Pelosi spokesman Drew Hammill said Monday that the number was now over 300 bills.

"A lot depends on the Senate," Speier said.

According to Lisa Keen's report, White House Domestic Policy Council Director Melody Barnes echoed the theme that ENDA is in limbo until the votes are there in the Senate in her meeting with lgbt leaders and journalists. Unfortunately, she also signaled that the President wouldn't be spending any fierce advocate chips on pressing the Senate to move forward:

“We look to the Senate leadership to also say to us, ‘These are issues we are prepared to move forward on’,” said Barnes. “They’re doing that based on a whole number of variables. And when they are talking about moving forward with ENDA, they’re also getting an indication from us that we support it.”

Pelosi confirms that ENDA vote is on hold until completion of DADT repeal

From the transcript of House Speaker Pelosi's press conference today, as reported by Chris Johnson of The Blade:

Blade: Madame Speaker, a question on the Employment Non-Discrimination Act. How confident are you that if that measure came to the floor there would be enough votes for passage and to overcome a motion to recommit?

Pelosi: Well, first of all, we still have to finish “Don’t Ask, Don’t Tell.” We were able to pass the bill with a 40-vote majority in the House of Representatives last Thursday before the break. We’re very proud of that vote.

I was disappointed, however, the next day, when the full measure came to the floor to pass the defense authorization bill. Only nine Republicans voted to pass the defense bill. This is historic. Republicans are now voting against the defense authorization bill — only nine did — because “Don’t Ask, Don’t Tell” was in the bill.

And now, of course, we’ll go — after the bill passes in the Senate — we’ll go to conference. But our work is not finished in that regard, so one thing at a time.

ENDA is personal priority for me, and I [understand] the focus for that, but because the defense bill came up now, we did “Don’t Ask, Don’t Tell” first. But we want to finish that.

It’s nothing to take for granted in terms of nine Republicans voted for the defense authorization bill. Five Republicans voted for the repeal of “Don’t Ask, Don’t Tell.” Only four more voted for the DOD bill, which is something they usually vote for 100 percent.

Conference of Catholic Bishops leaves Leadership Conference on Civil Rights, opposes ENDA

Last week the U.S. Conference of Catholic Bishops (USCCB) terminated its membership in the Leadership Conference on Civil Rights (LCCR), a coalition of more than 200 organizations that is the more-or-less official voice of civil rights in Washington. The Bishops Conference stated that its primary reason for leaving was LCCR's endorsement of Elena Kagan's nomination to the Supreme Court; Kagan supports abortion rights.

At the same time, the Bishops Conference sent a letter to members of Congress announcing that it would oppose the enactment of ENDA. In previous years, the Bishops had neither opposed nor supported ENDA. The Conference explained its about face as follows:

The USCCB continues to oppose “unjust discrimination” against people with a homosexual inclination, but we cannot support a bill – such as ENDA in its current form – that would legally affirm and specially protect any sexual conduct outside of marriage.

Moreover, because the passage of such a bill could be used to punish as discrimination what the Catholic Church teaches, the USCCB has always sought as comprehensive a religious exemption as is achievable, in order to protect the religious freedom of the Church, and of all others who hold similar views. One partial solution to this problem is to apply Title VII’s prohibition on religious discrimination, which is already incorporated in the current version of the bill.

But this is insufficient alone, as the Title VII protection does not cover all religious employers, and recent experience teaches that even covered institutions may face government retaliation for relying on such exemptions. Without such additional protection, ENDA would be applied to jeopardize our religious freedom to live our faith and moral tenets in today’s society.

The movement to redefine marriage to include two persons of the same sex (a.k.a. same-sex “marriage”) has changed the law substantially toward that end, at both the state and federal level, and it has become increasingly clear that laws like ENDA have been instrumental to those changes.

Gay rights issues in general and ENDA in particular probably played a big role in the group's withdrawal from LCCR. The Religion News Service reported that "Sister Mary Ann Walsh, a spokeswoman for the bishops' conference, said the LCCR's expansion of civil rights to include protections for gays and lesbians was another potential point of disagreement." The Bishops' announcement stated in part, "The interests of the Leadership Conference and those of the USCCB have diverged as the LCCR has moved beyond advocacy of traditional civil rights to advocacy of positions which do not reflect the principles and policies of the bishops’ Conference."

This is unfortunate news for lgbt rights advocates within the beltway. The Bishops' Conference is big, powerful and genuinely progressive on many issues, such as poverty, race and immigration. The loss of its neutrality on ENDA is a setback, especially because its reasons are bogus; the religious exemption in Title VII that would be part of ENDA has worked well for 45 years. The withdrawal of the bishops from LCCR signals both the increasing power of conservatives within that faith and the increasing power of lgbt issues to create schisms in American politics.

ENDA slips behind DADT repeal in Congressional timeline

Despite new compromise language on gender identity and bathroom use, House members seeking to pass ENDA remain unsure of whether the bill will survive intact when Republicans offer a motion to recommit on the House floor.  Even though no one - perhaps including the Republicans themselves - yet knows exactly how such a motion will be worded, one possibility would be a motion to delete gender identity from the scope of the bill. The revised bill language being offered by the Dems, negotiated with lgbt organizations, provides that employers can impose some restrictions on restroom use, but - given the near absence of any protections today in the majority of states - the compromise still constitutes a net gain in anti-discrimination protection for the great majority of trans workers.

Without a whip count indicating majority opposition to a motion to recommit, House leaders have delayed moving the bill forward, despite calls by several lgbt organizations for an immediate vote. Some organizations have argued that it would be better to risk losing the bill than to prolong the delay, on the theory that the chances of enactment after the November elections will be much diminished if anti-incumbent sentiments produce widespread losses for Democrats.

This tactical question now seems to have been resolved by the calendar, at least for the next couple of months and possibly for the rest of the year. The defense authorization bill is scheduled for floor debate in the House on May 27 and 28, when Rep. Patrick Murphy is expected to offer an amendment to repeal DADT. The defense bill will come before the Senate Armed Services Committee at roughly the same time that it is on the House floor. Committee Chair Sen. Carl Levin will move to add DADT repeal to the Senate version if he has the support of a majority of committee members. By Memorial Day, then, there should be a vote on DADT by the full House, with perhaps a vote in the full Senate to follow soon after.

Speaker Nancy Pelosi has told lgbt organizations that a successful House vote for DADT repeal could make it easier for conservative Dems to vote for ENDA, and - more critically - also vote to reject the Republicans' motion to recommit. Press reports differ as to whether Pelosi promised that she will move both DADT repeal and ENDA to the House floor this year, or hedged by promising to move only when she was sure of winning.

Given the Memorial Day recess that will follow consideration of the defense bill, no vote on ENDA will be possible until at least mid-June. The Hill quoted an anonymous House member who supports ENDA as saying that the vote on it is not likely to occur until months later, probably just before the November election.

To me this strategy translates roughly as follows: Don't force any vulnerable Dems to vote for gender identity protection until the last possible moment before the election, when at least some of them may feel less skittish (and others may be already looking for other jobs). Then Pelosi can try to work her magic on ENDA the way she did on health reform, cobbling together just enough votes to squeak it through.  If that succeeds, and if the White House is committed enough to the issue, ENDA can go on the agenda for the lame duck session of the Senate, which will convene after the election but before the new Congress is sworn in. Conservative Dems in the Senate will either have been re-elected or defeated, and either way will feel they have nothing to lose by supporting ENDA. Then the big O signs it, and everyone celebrates their winter holiday of choice with a little extra oomph.

It might actually work.

ENDA not yet ready for its close-up?

This was supposed to be the week when ENDA went to mark-up, but that doesn't seem to be in the cards. The House Education and Labor Committee does not have ENDA on its calendar, and since the Committee is meeting in California on Friday, Wednesday is probably the last day this week when a mark-up could happen.  Maybe next week.

Meanwhile the right-wing knives are out in anticipation that ENDA will move soon. According to Roll Call, the 35 Republicans who voted for ENDA in 2007 are getting cold feet now that the bill includes protection against discrimination based on gender identity. Roll Call quoted three Republicans, including one co-sponsor of the bill, as saying that they were reconsidering their previous support. The Washington Times thundered that ENDA was "a direct attack on common sense."  So cheers to House Majority Leader Steny Hoyer, who despite his role as a moderate often voicing the concerns of blue dogs, told Congressional Quarterly that his support for ENDA and the principle of non-discrimination was a core commitment. 

This could be a squeaker.

ENDA: Time to nail down the new language and move it

Congress returned from its spring holiday recess today, and Karen Ocamb has just posted an interview she did with Rep. Barney Frank, who was in Los Angeles this past weekend, about a variety of lgbt-related bills.

Most important to me, Barney indicated that ENDA is ready to move, with the negotiations completed on its final language. I know that these sorts of negotiations, between lgbt advocates and Congressional staff, can be prolonged. But the ENDA talks have been going on for months, and the prospects for passing it, especially in the Senate, are more likely to diminish than to increase as the clock ticks away.  IMHO, passing ENDA ought to be the number one priority - out of all lgbt issues - until we see POTUS signing it into law.

Here is Barney's current take:

“I’m hoping to get a vote on it in committee [House Committee on Education and Labor]... And we’ve worked hard. The chairman of the committee involved – George Miller – had a major role in health care. But within the last few weeks, just before we left [for recess], we had a meeting in the Speaker’s office [Speaker Nancy Pelosi] with the Majority Leader [Steny Hoyer] and myself and chairman of the committee George Miller – and we had a lot of things worked out. So what the committee needs to do now is make sure we have the votes...."

 Consistent with what I have heard elsewhere, Barney described the compromise language agreed to by lgbt advocates, which is necessary to get the bill through with trans inclusion:

“Essentially, there are full protections for people who are transgender with a couple of provisos: One – the employer can ask for a gender consistent dress code. No mustaches and dresses. Two – people with one set of genitals do not have a legal right to get naked in front of the other set, is the basic way to put it. Some accommodation has to be made there. If you insist on the right for unrestricted access to bathrooms – we lose. And we’re making some accommodations here. And we worked it out with the transgender community." 

I haven't seen the precise language of the changes, but even with them, even if the other side's concerns are silly and offensive, there is no question that ENDA will be a huge breakthrough for everyone covered by it, and one that is long overdue. Time to put a bow on it.

Moving forward on employment with or without ENDA

One implicit message of President Obama's State of the Union address last week lies in what he did not say. He promised to move ahead with prioritizing a repeal of Don't Ask Don't Tell; he did not mention ENDA. While a vote on ENDA in the House is probably still likely sometime in 2010, prospects in the Senate are very tough.  The harsh truth is that because the bill includes protection for gender identity - which I believe it should - it may take considerably longer to enact.  If Dems lose a significant number of seats in either chamber, it will be an even bigger lift next year. On the other hand, if the 2010 elections go well for the Dems, there will be more momentum to move ENDA through both chambers in 2011. We'll know in about 10 months how that will turn out.

The uncertainty over ENDA is no reason to slow down on employment issues, however. No issue has greater material importance than jobs - some of us marry, some of us don't, but we all work, or want to. And in a time of massive economic anxiety, the right to fair treatment for lgbt people in the workplace is critical.

Here are three goals that advocates could prioritize immediately:

1) President Obama could issue an Executive Order adding gender identity to the list of characteristics which are prohibited as the bases for discrimination for federal government workers. (Governor Paterson did this for New York state employees in December.) The federal government is the nation's largest employer and a model for private employers. When ENDA moves forward, it will be a powerful argument if advocates can point to the federal government as a workforce where such discrimination is already prohibited. I know that OPM has issued guidelines designed to achieve the same result, while still flying below the radar. But the advantage and disadvantage of flying beneath the radar is the same: no one knows what you are doing. Having an Executive Order, unlike the current guidelines, not only has an educative effect, it also sets the stage for future actions by the federal government. It's time for the administration to do the right thing.

2) State laws prohibiting employment discrimination still do not exist in a majority of states, and that too makes passing ENDA more difficult.  Take this quiz:

Which of the following states lacks an anti-discrimination law covering lgbt (or any subgroup thereof) workers: Ohio? Pennsylvania? Michigan?

Answer: All of the above.

A couple of years ago, a big chunk of gay money went into New York state legislative races, and the state senate turned Dem for the first time that anyone can remember. The goal was eventual enactment of a marriage statute. The same kind of savvy targeted effort should be undertaken to win an anti-discrimination law in these key states and others like them, where success is within reach.

3) Federal courts have increasingly been willing to extend anti-discrimination protection to trans workers through the prohibition against sex discrimination in Title VII, usually using a sex stereotyping theory. Gender expression as well as gender identity has also been covered. The trend isn't universal; there are still bad decisions happening. But the comparison to how courts were ruling 10 years ago is dramatic.

I have no doubt that the legal groups will continue to litigate carefully selected cases that can extend this principle. But the Obama administration could contribute to this strategy as well, with many more resources than any lgbt group has. During the Clinton administration, a task force within the Justice Department sought to identify good cases in which to litigate a sex stereotyping theory. Now that same kind of effort has begun again. In mid-January, DoJ moved to intervene in JL v. Mohawk School District, on behalf of a student who had been subjected to severe harassment because of his gender expression. DoJ should actively look for employment discrimination cases as well in which it can play a role.

In sum - with a nod to the upcoming Chinese year of the tiger - let's make 2010 the year of employment issues.

Barney Frank: House will vote on ENDA in March

According to an interview with the Advocate, Rep. Barney Frank is predicting that ENDA will go through mark-up in February and be on the House floor for a vote in March. Barney is close to the House leadership, so it's a safe bet that this means that House Speaker Nancy Pelosi's promise that during 2010 she would not force Dems to vote on any controversial bills until after the Senate had voted on them will not apply to ENDA.  Which is a good thing, since ENDA's fate in the Senate is a huge question mark.

What's holding up ENDA?  As I wrote last month, resistance to some aspects of trans inclusion is, not surprisingly, coming from conservative Dems.  According to Barney:
“There continue to be concerns on the part of many members about the transgender issue, particularly about the question of places where people are without their clothes — showers, bathrooms, locker rooms, etc. We still have this issue about what happens when people who present themselves as one sex but have the physical characteristics of the other sex, what rules govern what happens in locker rooms, showers, etc.” Well, that quote isn't up to Barney's usual standard of verbal acuity, but whatever. Developing language to secure these votes, plus revising sections to insure that ENDA is consistent with Title VII, is what advocates are working on now.

Meanwhile, conservatives are opening another attack on ENDA, arguing that it is a stepping stone to same-sex marriage.  A briefing paper from the Heritage Foundation concludes:

Even if courts redefining marriage do not, in a strict sense, construe nondiscrimination laws as creating, allowing, or authorizing same-sex marriage, one cannot deny the effect that nondiscrimination laws and other gay-rights policies might very well have on marriage cases. ... [S]ome courts might cite nondiscrimination laws and other gay-rights legislation as evidence that society has abandoned certain precepts undergirding a policy of defining marriage as the union of husband and wife or as evidence that society has embraced an evolving public policy of protecting homosexuality, either of which could make it more difficult for state officials to defend marriage...

"Certain precepts undergirding a policy of defining marriage as the union of husband and wife" - whatever could that mean?