July 16, 2014 | by Peter Rosenstein
Another fight over ENDA
GetEQUAL, Employment Non-Discrimination Act, ENDA, White House, President Obama

A White House ENDA protest last month. (Blade file photo by Michael K. Lavers)

Today’s headlines are eerily reminiscent of the acrimonious debate within the LGBT community over the ENDA bill that passed the House of Representatives on Nov. 7, 2007.

Rep. Barney Frank (D-Mass.) made a personal and emotional speech on the floor of the House that culminated in passage of the bill. Then came the vicious backlash from many individuals and groups, including Stonewall Democrats, a group Frank founded, because the bill didn’t include protections for transgender people.

At the time, Frank and others said that the question was getting protections for the many, which was possible, versus getting protections for none. In 2007, a bill including protections for transgender people had zero chance of passing. It turned out with or without the inclusion of trans people that bill didn’t get through the Senate.

Now once again the LGBT community is fighting over ENDA. This time it passed the Democratic-controlled Senate with the leadership of lesbian Sen. Tammy Baldwin (D-Wisc.), another hero to our community. It’s now stalled in the Republican-controlled House. On July 8, a group of LGBT and civil rights organizations formally dropped their support for the bill, which apparently still has the support of President Obama and the Human Rights Campaign. The reason given by the groups to formally withdraw their support is based on the recent Supreme Court decision in the Hobby Lobby case.

The Hobby Lobby ruling has given credence to the view that the wide religious exemption in the current ENDA bill would allow for gaps in how the bill could be applied and open the door to continued discrimination against many in the LGBT community. The national groups that pulled their support for ENDA include the National Gay and Lesbian Task Force, the American Civil Liberties Union, Gay and Lesbian Advocates & Defenders, Lambda Legal, the National Center for Lesbian Rights, the Transgender Law Center and Pride at Work.

HRC, the largest LGBT advocacy group, has not withdrawn its support for the bill. HRC spokesperson Fred Sainz said, “HRC supports ENDA because it will provide essential workplace protections to millions of LGBT people.” Following some backlash, HRC President Chad Griffin released a statement that still indicated support for the bill but noted HRC wants changes made to the section on religious exemptions. He also tried to change the subject by saying HRC supports an overarching civil rights bill for the LGBT community. This would be a bill similar to the one first introduced by Rep. Bella S. Abzug (D-N.Y.) in 1974.

The debate in the community over whether to pull support for the current bill may be moot as it appears the House will not take up ENDA this session. Speaker John Boehner (R-Ohio) has said he will not bring it to the floor for a vote even in the lame-duck session. That means the next Congress will begin the process anew. This debate will, however, draw heightened attention to the question of what will be included in the executive order banning discrimination against the LGBT community in federal contracting ,which after six years of stalling, the president has said he would sign. He has to be questioning what the LGBT community’s response would be if religious exemptions are in the EO. There appears to be broad opposition to providing those exemptions.

Baldwin is now in a bind and being demonized by some in the community. She, like Frank before her, worked hard to get the best bill she could pass. She worked with colleagues to draft a bill that would attract the needed votes. We need to remember that Baldwin will have to continue to work with those colleagues in the next Congress and gain their votes for a new bill if this one doesn’t pass. House members like Jerrold Nadler (D-N.Y.) will be in a bind if Boehner decides to bring up the bill in the lame-duck session. Baldwin, like Frank before her, understood that to pass any legislation compromise is needed. She worked with the support of the community on the assumption that if we could protect the rights of the huge majority of LGBT persons that was better than protecting none. Clearly many groups now disagree, with legitimate reason, but we must also remember that when the bill passed it had overwhelming community support.

The next flashpoint in this debate may come when the president issues the long-awaited executive order.

 

11 Comments
  • Compromise may be necessary, but yielding is not compromise. Religious exemptions in the current version of ENDA are designed to elevate the rights of one religious group over the rights of all others at the expense of the entire LGBT community. Also, Frank's decision in 2007 was not compromise, that was offering a sacrifice in the form of the transgender community. For too long have we been told to wait, for too long we have been told our time will come. In many states, like New York, the strategy of incrementalism was used and we remain waiting. These two "compromises" were not balanced and were, in fact, concessions to an ideology that does not know what compromise means or looks like…

  • Compromise may be necessary, but yielding is not compromise. Religious exemptions in the current version of ENDA are designed to elevate the rights of one religious group over the rights of all others at the expense of the entire LGBT community. Also, Frank's decision in 2007 was not compromise, that was offering a sacrifice in the form of the transgender community. For too long have we been told to wait, for too long we have been told our time will come. In many states, like New York, the strategy of incrementalism was used and we remain waiting. These two "compromises" were not balanced and were, in fact, concessions to an ideology that does not know what compromise means or looks like…

  • While the events spoken of by Peter Rosenstein transpired in the fall of 2007, and the chronology might be hard to discern, I shall endeavor to shed light to the true sequence of actions .

    Rosenstein writes:

    "Rep. Barney Frank (D-Mass.) made a personal and emotional speech on the floor of the House that culminated in passage of the bill. Then came the vicious backlash from many individuals and groups, including Stonewall Democrats, a group Frank founded, because the bill didn’t include protections for transgender people."

    That speech was October 7, 2007 in which he chastised the LGBT community on the floor of the House for refusing to move forward with a non-inclusive ENDA.

    Let's first address the fact that the backlash wasn't AFTER the bill passed the House nor his impassioned "speech", it was after he recommends the bill be split into two bills prior to House action, specifically with the understanding that the trans bill would not be pushed.

    On September 14 2007, HRC President Joe Solmonese spoke to the nearly 1,000 transgender community members who were gathered in Atlanta for the Southern Comfort Conference, where he pledged HRC's support for transgender folks and its inclusion.

    "I know, I was there" (why does that sound familiar?)

    https://www.youtube.com/watch?v=p-6ZoNJj-bU

    That was 12 days before Barney Frank announces ENDA does not have the votes to pass in it's inclusive form. He recommends passing a non-inclusive ENDA and suggests it is not sound practice to push a vote that could result in defeat as it makes it harder to bring up later due to concerns of legislators that they could be accused of flip-flopping on a controversial issue.

    "At the time, Frank and others said that the question was getting protections for the many, which was possible, versus getting protections for none. In 2007, a bill including protections for transgender people had zero chance of passing. It turned out with or without the inclusion of trans people that bill didn’t get through the Senate."

    October 5, 2007 Leaders of 150 state and national gay groups led by National Gay & Lesbian Task Force sign a statement demanding that members of Congress oppose any version of ENDA that lacks trans protection. The group eventually claims to represent more than 300 organizations and calls itself United ENDA. Members argue that, with President Bush in office, the bill is unlikely to become law anyway — so Congress should proceed with a fully-inclusive version.

    The backlash was there before Frank's speech, and before the splitting of the bill into two, and well before the ultimate demise of a bill, in any incarnation, that had zero chance of passage.

    Regardless of whether a inclusive bill passed both Chambers or if only a partial bill passed both Chambers, there was ZERO chance of being signed into law by President George W. Bush. Thus, there was NO chance of passing any form of ENDA in 2007 with complete passage and signing by the President.

    The year our communities had that opportunity was 2009 when Democrats controlled both Chambers and the White House, but homosexual monied interests pushed marriage before ENDA. It sat, waiting action, as time in the session expired.

  • While the events spoken of by Peter Rosenstein transpired in the fall of 2007, and the chronology might be hard to discern, I shall endeavor to shed light to the true sequence of actions .

    Rosenstein writes:

    "Rep. Barney Frank (D-Mass.) made a personal and emotional speech on the floor of the House that culminated in passage of the bill. Then came the vicious backlash from many individuals and groups, including Stonewall Democrats, a group Frank founded, because the bill didn’t include protections for transgender people."

    That speech was October 7, 2007 in which he chastised the LGBT community on the floor of the House for refusing to move forward with a non-inclusive ENDA.

    Let's first address the fact that the backlash wasn't AFTER the bill passed the House nor his impassioned "speech", it was after he recommends the bill be split into two bills prior to House action, specifically with the understanding that the trans bill would not be pushed.

    On September 14 2007, HRC President Joe Solmonese spoke to the nearly 1,000 transgender community members who were gathered in Atlanta for the Southern Comfort Conference, where he pledged HRC's support for transgender folks and its inclusion.

    "I know, I was there" (why does that sound familiar?)

    https://www.youtube.com/watch?v=p-6ZoNJj-bU

    That was 12 days before Barney Frank announces ENDA does not have the votes to pass in it's inclusive form. He recommends passing a non-inclusive ENDA and suggests it is not sound practice to push a vote that could result in defeat as it makes it harder to bring up later due to concerns of legislators that they could be accused of flip-flopping on a controversial issue.

    "At the time, Frank and others said that the question was getting protections for the many, which was possible, versus getting protections for none. In 2007, a bill including protections for transgender people had zero chance of passing. It turned out with or without the inclusion of trans people that bill didn’t get through the Senate."

    October 5, 2007 Leaders of 150 state and national gay groups led by National Gay & Lesbian Task Force sign a statement demanding that members of Congress oppose any version of ENDA that lacks trans protection. The group eventually claims to represent more than 300 organizations and calls itself United ENDA. Members argue that, with President Bush in office, the bill is unlikely to become law anyway — so Congress should proceed with a fully-inclusive version.

    The backlash was there before Frank's speech, and before the splitting of the bill into two, and well before the ultimate demise of a bill, in any incarnation, that had zero chance of passage.

    Regardless of whether a inclusive bill passed both Chambers or if only a partial bill passed both Chambers, there was ZERO chance of being signed into law by President George W. Bush. Thus, there was NO chance of passing any form of ENDA in 2007 with complete passage and signing by the President.

    The year our communities had that opportunity was 2009 when Democrats controlled both Chambers and the White House, but homosexual monied interests pushed marriage before ENDA. It sat, waiting action, as time in the session expired.

  • " like New York, the strategy of incrementalism was used and we remain waiting."

    I concur with your analysis, yet want to speak to others use of "incrementalism"

    That strategy was not incrementalism, it was satisficing. Incrementalism takes the status quo and makes slight changes, small changes at the margin of an issue. The satisficing takes the whatever one can, without regard for all options.

    They used the word incremental in New York, and Wisconsin and Maryland..

    To all of those who couch bias and bigotry behind "incremental" progress…

    https://www.youtube.com/watch?v=G2y8Sx4B2Sk

  • The vast majority of discrimination against the LGBT community is rooted in religious beliefs, or beliefs close enough to religious in nature that the people who hold those beliefs would probably be able to successfully argue that it is in fact part of their religion to be discriminatory. Allowing for a broad religious exemption means the death of freedom of religion, because it allows employers to quite literally force their religious beliefs on other people.

    Additionally, I still find it absurd that a for-profit corporation that deals in entirely non-religious business practices could possibly be said to have a religion, as such corporations are not, in fact, practicing a religion. Hobby Lobby doesn't go to any religious gatherings. Hobby Lobby doesn't pray to or worship a deity. It's a business that sells crafting supplies, and last time I checked, the supplies aren't blessed holy relics, and I'm pretty sure Hobby Lobby stores aren't possessed by the Holy Ghost or anything like that. Indeed, the owners of Hobby Lobby, the closest one could get to actually finding an entity capable of religious belief behind the corporation that is Hobby Lobby, actually own a fair bit of stock in companies that produce several of the birth control options they claim violate their company's "religion".

  • The GBLT community can be its own worse enemy. More often than not, these self-proclaimed leaders of the community take on the shortsighted and stupid all or nothing strategy that has kept us struggling for our rights for decades. Like the US Congress, compromise is a dirty word for them. They act like spoiled children that would rather have nothing than have their way completely.

    I have to wonder if part of this attitude is rooted in the fact that these organizations would be viewed as irrelevant by some if not many if we achieved all our rights under the law and donors would be less inspired to keep pouring money into them without a cause.

    Having achieved Hate crimes protections under federal law and ending DADT and now having a reversal of fortune on the marriage equality front, the only real major goals to achieve are federal protections for work, housing, public accommodations and services. The hot button issues appear to be narrowing. As long as you prolong the agony, you provide yourselves with job security.

    Younger generations of GLBT people think, and I would add naively, that being gay isn’t an issue anymore. You can say the say think about being African American but attacks on their rights and gains are relentless and like social conservatives argue laws that protect them have become irrelevant, we may face the same in the future. The price of freedom is constant vigilance and complacency can lead to losing ground.

    The focus has been so tremendously focused on marriage equality at the expense of everything else. It’s really time to rev up the fight for ENDA and other protections like Housing for GLBT. Not all of us have a partner to marry but most of us do need to work and a place to live. As the population ages, we need to also worry about whether or not we will be discriminated against when it comes to a place to live and the services we need, too.

  • El Dorado, with the Hobby Lobby decision, it’s been made abundantly clear that a religious exemption for nonreligious for-profit corporate entities that claim to have some religious beliefs (a thoroughly ridiculous notion, as I’ve already stated) can and will be used by those corporations to discriminate against people and force their “religion” on them, particularly if it means they get to save some of their precious money. Allowing for this religious exemption makes ENDA entirely useless, because a company could just say, “My religion says supporting you is wrong,” and they get away with damn near whatever they want.

    • Garrett Fox, in the decision, the SCOTUS went out of their way to specifically say the decision only applies to the contraception issue and could not be used to discriminate against a group of people without specifying the group. This leaves it open to say that Hobby Lobby cannot be used against GLBT. Otherwise, every law that protects GLBT could be said to violate a religious conservative’s faith triggering endless litigation and a challenge to all laws that protect us now.

      Regardless of whether we have a religious exemption in ENDA or not, religious conservatives could simply cite the Hobby Lobby and say it trumps ENDA. Even if we get an ENDA without a religious exemption, I would not be surprised that religious conservatives will challenge it. With the Hobby Lobby decision on record as applying to only this issue, it’s not a slam dunk for conservatives. That’s the only glimmer of hope hobby lobby provides.

      • Yes, SCOTUS did specifically say that that decision only applies to contraception, but there is now a history of allowing employers to force their religious beliefs on their employees, restricted decision or no. True, that prevents it from being a slam dunk, but it also doesn’t prevent it from being a substantial and troubling win.

        • Many employers have a history of imposing their beliefs, religious or not, on their employees sometimes extending beyond the workplace which is WRONG! Henry Ford for example did that to his employees. My private life outside of work and the decisions I make within the law are my business.

          People have been invoking their faith to discriminate long before Hobby Lobby. The makeup of the SCOTUS in the future will have a far greater impact. Preventing more Scalia’s getting on the court is what’s important.

          If you constantly worry about outcomes that haven’t happened yet and may never happen you’ll make yourself a lot more miserable than you need to be. Believe me, I’ve been there and know from painful experience. We’ve survived much worse in the past, such as the AIDS crises and its backlash on our movement and despite that and more have managed to turn things around and thrive. We are survivors if nothing else and resilient.

          Focus more on our wins and achievements and our prospects for more rather than wallow in the negative. You’ll be a lot happier. Life’s too short.

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