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Would ENDA have a shot as a ‘jobs bill?’

Some see room for movement, others not so sure

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LGBT rights supporters see room for passage of the Employment Non-Discrimination Act in the U.S. Senate during the upcoming Congress — even as Republican control of the House makes final passage of the legislation highly unlikely.

The 2010 elections left the Senate in Democratic control — although by a reduced margin — providing an opportunity for passage in that chamber if certain conditions are met.

A Republican aide, who spoke on condition of anonymity, said passage of ENDA in the Senate is “possible” provided that President Obama strongly advocates for its passage.

“You would need the kind of push that you had behind ‘Don’t Ask, Don’t Tell,'” the aide said.

Mara Keisling, executive director of the National Center for Transgender Equality, said “in theory” the Senate could pass ENDA because Democrats retained control of the chamber, although the conversations haven’t taken place yet about moving the bill forward.

Keisling added that the Senate is in a different position than it was in the previous Congress because it’s no longer trying to pass legislation that is being sent over by the House. With Republican control of the lower chamber, the Senate would be more inclined to vote on its own legislation.

“I don’t think of any us know what the Senate is going to be like this year,” she said. “The Senate wasn’t moving a lot of stuff regularly last Congress, but now that they have a different Democratic caucus, the Senate is now in a different position than they were before.”

Fred Sainz, vice president of communications for the Human Rights Campaign, said the prospects of ENDA passing in the Senate are “unknown” at this stage, but said his organization will continue to pursue all important pieces of legislation in both chambers of the next Congress.

“We think that it is important whether or not there’s Republican or Democrat control of the House that there would be a factual record that those pieces of legislation have been approved with even more co-sponsors in them,” Sainz said.

As it was introduced in the last Congress, ENDA would bar job discrimination against gay and transgender workers in most situations in the public and private workforce. Gay Rep. Barney Frank (D-Mass.) introduced the legislation in the House and Sen. Jeff Merkley (D-Ore.) introduced the bill in the Senate.

The legislation stalled in the last Congress and saw no movement in either the House or the Senate. In the House, there was speculation that opponents would use a maneuver called the motion to recommit on the floor to target the transgender language and derail the legislation. Then-House Speaker Nancy Pelosi said she wouldn’t bring ENDA up for a vote until legislative action was complete on “Don’t Ask, Don’t Tell.”

Entering the early days of the 112th Congress, activists are uncertain about the timeline for moving forward with ENDA the next time around, such as when the bill would be introduced or when hearings might take place. Julie Edwards, a Merkley spokesperson, said the senator plans to reintroduce the legislation, although she said she doesn’t yet “have a sense of timing.”

Whether Senate Majority Leader Harry Reid (D-Nev.) would bring up the legislation for a vote remains in question. Regan Lachappelle, a Reid spokesperson, said the majority leader supports ENDA, but said “Republican cooperation” will be necessary “to do anything.”

“It’s still early right now, so we’re still working on the schedule for this Congress, but it is something that he supports,” she said.

A Democratic aide, who spoke on condition of anonymity, said the possiblity for action on ENDA in the Senate would become more clear following the week on Jan. 24 when Senate leadership makes it decisions on what the legislative priorities will be.

Even if it were passed in the Senate, most observers agree that the new Republican leadership makes passing ENDA highly difficult — if not impossible. Passage in the Senate could be a symbolic vote that would build momentum in a future Congress.

Keisling said the legislation has “zero chance” of making its way to Obama’s desk because of Republican control, citing a recent Washington Blade interview with Frank in which he said there was no chance of passing any pro-LGBT legislation this Congress.

“I never say never, but I can’t imagine the circumstances in which it’ll be signed into law this Congress,” she said.

The Republican aide said just because a clear path to passage doesn’t exist in the House, advocates shouldn’t give up on moving forward in the Senate.

“You have to approach this as kind of putting bricks in the wall,” the aide said. “With hate crimes, we were lobbing it left and right for years … but that also set us up to deal with passing it rather quickly when everything happened because we were able to say it passed the Senate five times.”

Sainz said emphasizing that ENDA is at its core a “jobs” bill could enable it to pick up support in the Republican House.

“From that sense, it should appeal to members of the House — and the Senate for that matter — because it’s really doing nothing more than putting people to work, and if they can’t work, then they’re reliant on government assistance,” Sainz said. “So it should be fairly intuitive to Republicans that this is really a ‘jobs’ measure.”

At the end of the last Congress, ENDA had 45 co-sponsors in the Senate, although former Sens. Roland Burris, Ted Kaufman, Edward Kennedy and Paul Kirk were listed as co-sponsors even though they were no longer in the Senate at the end of last year. Former co-sponsors Arlen Specter, Chris Dodd and Russ Feingold have since left the Senate.

It remains to be seen whether their successors would support ENDA, although new Democrats Richard Blumenthal (D-Conn.) and Chris Coons (D-Del.) would be likely to support the legislation. Sens. Pat Toomey (R-Pa.), Scott Brown (R-Mass.), Ron Johnson (R-Wisc.) support “Don’t Ask, Don’t Tell” repeal and may also support ENDA. The offices of those senators didn’t respond to the Blade’s request for comment.

Kate Dickens, a spokesperson for Sen. Mark Kirk (R-Ill.), said the senator’s positions would be consistent “with his position on it while serving in the House — where he has been a supporter.”

One lingering question is whether a bill that includes protections on the basis of sexual orientation only — excluding the gender identity and expression provisions — would stand a better chance in the Senate or have a shot at passing in the House. In 2007, the U.S. House under Democratic control passed a non-inclusive ENDA that never saw a vote in the Senate.

The Republican aide said discussion about removing the transgender protections is a moot point because activists wouldn’t permit the removal of the legislation.

“They’re not going to, so I don’t even think it’s worth considering,” the aide said. “It’s just not worth saying ‘yes’ or ‘no.’ If it’s going to pass, it’s going to pass with the transgender in it. That’s all there is to it.”

Keisling said she thinks both a trans-inclusive and non-trans inclusive bill would have the same zero chance of making it through the House.

“There’s this weird notion that somehow Congress is fine with gay people,” she said. “It’s just not true. You saw how they tried to lay down in the road over ‘Don’t Ask, Don’t Tell.’ If Congress was so good with gay people, why are 90 percent of the gay congress people closeted?”

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State Department

State Department releases annual human rights report

Antony Blinken reiterates criticism of Uganda’s Anti-Homosexuality Act

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(Photo courtesy of the Library of Congress)

Secretary of State Antony Blinken on Monday once again reiterated his criticism of Uganda’s Anti-Homosexuality Act upon release of the State Department’s annual human rights report.

“This year’s report also captures human rights abuses against members of vulnerable communities,” he told reporters. “In Afghanistan, the Taliban have limited work opportunities for women, shuttered institutions found educating girls, and increasing floggings for women and men accused of, quote, ‘immoral behavior,’ end quote. Uganda passed a draconian and discriminatory Anti-Homosexuality Act, threatening LGBTQI+ individuals with life imprisonment, even death, simply for being with the person they loved.”

Ugandan President Yoweri Museveni last May signed the law, which contains a death penalty provision for “aggravated homosexuality.”

The U.S. subsequently imposed visa restrictions on Ugandan officials and removed the country from a program that allows sub-Saharan African countries to trade duty-free with the U.S. The World Bank Group also announced the suspension of new loans to Uganda.

Uganda’s Constitutional Court earlier this month refused to “nullify the Anti-Homosexuality Act in its totality.” More than a dozen Ugandan LGBTQ activists have appealed the ruling.

Clare Byarugaba of Chapter Four Uganda, a Ugandan LGBTQ rights group, on Monday met with National Security Council Chief-of-Staff Curtis Ried. Jay Gilliam, the senior LGBTQI+ coordinator for the U.S. Agency for International Development, in February traveled to Uganda and met with LGBTQ activists who discussed the Anti-Homosexuality Act’s impact. 

“LGBTQI+ activists reported police arrested numerous individuals on the basis of their sexual orientation or gender identity and subjected many to forced anal exams, a medically discredited practice with no evidentiary value that was considered a form of cruel, inhuman, and degrading treatment and could amount to torture,” reads the human rights report.

The report, among other things, also notes Ugandan human rights activists “reported numerous instances of state and non-state actor violence and harassment against LGBTQI+ persons and noted authorities did not adequately investigate the cases.”

Report highlights anti-LGBTQ crackdowns in Ghana, Hungary, Russia

Ghanaian lawmakers on Feb. 28 approved the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill. The country’s president, Nana Akufo-Addo, has said he will not sign the measure until the Ghanaian Supreme Court rules on whether it is constitutional or not.

The human rights report notes “laws criminalizing consensual same-sex sexual conduct between adults” and “crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer or intersex persons” are among the “significant human rights issues” in Ghana. 

The report documents Hungarian Prime Minister Viktor Orbán and members of his right-wing Fidesz party’s continued rhetoric against “gender ideology.” It also notes Russia’s ongoing crackdown against LGBTQ people that includes reports of “state actors committed violence against LGBTQI+ individuals based on their sexual orientation or gender identity, particularly in Chechnya.”

The report specifically notes Russian President Vladimir Putin on July 24 signed a law that bans “legal gender recognition, medical interventions aimed at changing the sex of a person, and gender-affirming care.” It also points out Papua New Guinea is among the countries in which consensual same-sex sexual relations remain criminalized.

The Hungarian Parliament on April 4, 2024. Prime Minister Viktor Orbán and his right-wing Fidesz party in 2023 continued their anti-LGBTQ crackdown. (Washington Blade photo by Michael K. Lavers)

The Cook Islands and Mauritius in decriminalized homosexuality in 2023.

The report notes the Namibia Supreme Court last May ruled the country must recognize same-sex marriages legally performed outside the country. The report also highlights the Indian Supreme Court’s ruling against marriage equality that it issued last October. (It later announced it would consider an appeal of the decision.)

Congress requires the State Department to release a human rights report each year. 

The Biden-Harris administration in 2021 released a memorandum that committed the U.S. to promoting LGBTQ+ and intersex rights abroad.

The full report can be read here.

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National

Same-sex couples vulnerable to adverse effects of climate change

Williams Institute report based on Census, federal agencies

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Beach erosion in Fire Island Pines, N.Y. (Photo courtesy of Savannah Farrell / Actum)

A new report by the Williams Institute at the UCLA School of Law finds that same-sex couples are at greater risk of experiencing the adverse effects of climate change compared to different-sex couples.

LGBTQ people in same-sex couple households disproportionately live in coastal areas and cities and areas with poorer infrastructure and less access to resources, making them more vulnerable to climate hazards.

Using U.S. Census data and climate risk assessment data from NASA and the Federal Emergency Management Agency, researchers conducted a geographic analysis to assess the climate risk impacting same-sex couples. NASA’s risk assessment focuses on changes to meteorological patterns, infrastructure and built environment, and the presence of at-risk populations. FEMA’s assessment focuses on changes in the occurrence of severe weather events, accounting for at-risk populations, the availability of services, and access to resources.

Results show counties with a higher proportion of same-sex couples are, on average, at increased risk from environmental, infrastructure, and social vulnerabilities due to climate change.

“Given the disparate impact of climate change on LGBTQ populations, climate change policies, including disaster preparedness, response, and recovery plans, must address the specific needs and vulnerabilities facing LGBTQ people,” said study co-author Ari Shaw, senior fellow and director of international programs at the Williams Institute. “Policies should focus on mitigating discriminatory housing and urban development practices, making shelters safe spaces for LGBT people, and ensuring that relief aid reaches displaced LGBTQ individuals and families.”

“Factors underlying the geographic vulnerability are crucial to understanding why same-sex couples are threatened by climate change and whether the findings in our study apply to the broader LGBTQ population,” said study co-author Lindsay Mahowald, research data analyst at the Williams Institute. “More research is needed to examine how disparities in housing, employment, and health care among LGBT people compound the geographic vulnerabilities to climate change.”

Read the report

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Federal Government

Lambda Legal praises Biden-Harris administration’s finalized Title IX regulations

New rules to take effect Aug. 1

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U.S. Secretary of Education Miguel Cardona (Screen capture: AP/YouTube)

The Biden-Harris administration’s revised Title IX policy “protects LGBTQ+ students from discrimination and other abuse,” Lambda Legal said in a statement praising the U.S. Department of Education’s issuance of the final rule on Friday.

Slated to take effect on Aug. 1, the new regulations constitute an expansion of the 1972 Title IX civil rights law, which prohibits sex-based discrimination in education programs that receive federal funding.

Pursuant to the U.S. Supreme Court’s ruling in the landmark 2020 Bostock v. Clayton County case, the department’s revised policy clarifies that discrimination on the basis of sexual orientation and gender identity constitutes sex-based discrimination as defined under the law.

“These regulations make it crystal clear that everyone can access schools that are safe, welcoming and that respect their rights,” Education Secretary Miguel Cardona said during a call with reporters on Thursday.

While the new rule does not provide guidance on whether schools must allow transgender students to play on sports teams corresponding with their gender identity to comply with Title IX, the question is addressed in a separate rule proposed by the agency in April.

The administration’s new policy also reverses some Trump-era Title IX rules governing how schools must respond to reports of sexual harassment and sexual assault, which were widely seen as imbalanced in favor of the accused.

Jennifer Klein, the director of the White House Gender Policy Council, said during Thursday’s call that the department sought to strike a balance with respect to these issues, “reaffirming our longstanding commitment to fundamental fairness.”

“We applaud the Biden administration’s action to rescind the legally unsound, cruel, and dangerous sexual harassment and assault rule of the previous administration,” Lambda Legal Nonbinary and Transgender Rights Project Director Sasha Buchert said in the group’s statement on Friday.

“Today’s rule instead appropriately underscores that Title IX’s civil rights protections clearly cover LGBTQ+ students, as well as survivors and pregnant and parenting students across race and gender identity,” she said. “Schools must be places where students can learn and thrive free of harassment, discrimination, and other abuse.”

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