The idea of comprehensive federal legislation to ban discrimination against LGBT people in areas other than employment is gaining traction, despite the difficulties in passing such a bill with expanded Republican control of Congress.
Sen. Jeff Merkley (D-Ore.), who has championed the Employment Non-Discrimination Act as lead sponsor in the U.S. Senate, formally announced during an event at the Center for American Progress in D.C. on Wednesday his intent to introduce in the 114th Congress comprehensive legislation banning anti-LGBT discrimination in employment, housing, public accommodations, federal programs, credit and education.
“In North Carolina, a gay man can be fired from his job simply for being gay, and it would be perfectly legal,” Merkley said. “In Michigan, a young couple could be denied the chance to buy their first house because they are both women, and it would be perfectly legal. In Pennsylvania, a transgender woman could be denied service and kicked out of a restaurant for simply being who she is, and it would be perfectly legal. This type of discrimination is simply wrong and it must end.”
During his opening remarks, Merkley read from the words of Eleanor Roosevelt and said the federal government could learn from the example of Oregon, where in 2007 as speaker he led the way in passing a statewide non-discrimination LGBT bill, and the late Rep. Bella Abzug of New York, who in 1974 introduced the Equality Act to amend civil rights law to include protections based on sexual orientation.
“Last year, we passed in the Senate employment non-discrimination, but isn’t it time to do what Oregon did in 2007 and so many other states have done and pass a law that broadly prohibits discrimination throughout the world of the individual, as Eleanor Roosevelt put it, so that housing is covered, financial transactions are covered, public accommodations, restrooms, theaters are covered?” Merkley said. “If discrimination is wrong in marriage, it’s wrong in employment. If it’s wrong in employment, it’s wrong in housing. If it’s wrong in housing, it’s wrong in financial transactions and public accommodations. In 1974, Bella Abzug introduced the Equality Act of 1974. Here we are 40 years, and 41 years later, we’re looking ahead to 2015. Isn’t it time to pass a broad non-discrimination act, an Equality Act of 2015?”
Following his remarks, Merkley affirmed that he would be lead sponsor of the bill in response to a question from Winnie Stachelberg, executive vice president of external affairs at the Center for American Progress. In the House, Rep. David Cicilline, a gay lawmaker, is expected to introduce companion legislation, according to a recent report in The New York Times.
The event at the Center for American Progress coincides with the publication of a report from the progressive think tank titled, “We the People: Why Congress and U.S. States Must Pass Comprehensive LGBT Nondiscrimination Protections,” which recommends passage of a comprehensive non-discrimination bill. The report comes a week after the publication of a similar report from the Human Rights Campaign titled “Beyond Marriage Equality: A Blueprint for Federal Non–Discrimination Protections” and another report led by the Movement Advancement Project, titled, “Understanding Issues Facing LGBT Americans.”
Stachelberg told the Blade passage of the legislation will “take some time” and the immediate goal for the legislation would be educating the American public that discrimination against LGBT people in employment is “a slice of our lives, not our complete lives” to make the case for a measure with protections expanded into other areas.
“This morning, Sen. Merkley definitively stated that the time is now for Congress to act and protect LGBT Americans in every facet of life,” Stachelberg said in a statement. “The Center for American Progress looks forward to continuing to work with Sen. Merkley —and others in the Senate and House — as he introduces a comprehensive nondiscrimination act and leads the effort in the U.S. Senate for full federal equality. As our report released today demonstrates, discrimination against LGBT people and their families happens far too frequently, and a federal response is necessary to address this problem.”
Merkley announced his plans to introduce the comprehensive legislation as lawmakers failed to pass ENDA before adjourning the 113th Congress. Last year, the Senate passed ENDA on a bipartisan basis by a 64-32 vote, picking up support from 10 Republicans. But House Speaker John Boehner (R-Ohio), who said he sees “no basis or no need” for the legislation, never brought up the legislation for a vote. On Tuesday, Rep. Chris Gibson (R-N.Y.), a Republican supporter of ENDA, affirmed ENDA is “not going to become law this Congress” during remarks at a Human Rights First reception.
One issue that hampered passage of ENDA was discontent with the scope of the Senate-passed bill’s religious exemption, which, unlike protections for other groups under Title VII of the Civil Rights of 1964, would continue to allow religious-affiliated employers to discriminate against LGBT workers in non-ministerial positions. A number of pro-LGBT groups — including the National LGBTQ Task Force, the American Civil Liberties Union, GetEQUAL, Lambda Legal and the National Center for Lesbian Rights — declined to support that version of ENDA over its religious exemption, although other LGBT groups, including the Human Rights Campaign and Freedom to Work, continued to support the bill.
In response to a question from the Washington Blade during the question-and-answer portion of the event, Merkley said he expects discussions among stakeholders to take place on the religious exemption for the legislation, but he wants language that should track “identically the provisions that we currently have for race.”
Given his support for legislation that would have a religious exemption mirroring existing civil rights law, one idea, as opposed to a standalone bill for comprehensive protections, is amending the Civil Rights Act and the Fair Housing Act to include sexual orientation and gender identity. Merkley wouldn’t rule out the possibility of that path when asked about it by the Blade.
“That certainly is a possible strategy,” Merkley said. “And because I want to bring forward a coalition and work in partnership with the stakeholders, I won’t now say that there is only one path to get there, but that is certainly one of the strong candidates.”
LGBT advocates who took part in a panel discussion after Merkley’s remarks, including Human Rights Campaign President Chad Griffin, expressed a strong preference for a comprehensive bill with a narrow religious exemption.
Sarah McBride, a special assistant for LGBT Progress at the Center for American Progress and co-author of the organization’s report, said based on the U.S. Supreme Court’s recent ruling in the Hobby Lobby case LGBT people would place themselves in “danger” if they allowed a religious exemption broader than the one in existing civil rights law.
“If we create substandard protections for ourselves that provide broader exemptions that clearly treat LGBT discrimination differently than race discrimination, it provides for the court a rationale to expand those exemptions in a way that they did in Hobby Lobby conception, and we are to some degree providing the court with the ammunition to nullify our law,” McBride said.
Griffin said there’s “universal agreement” from LGBT groups on what the religious exemption should look like, but LGBT advocates have to make a better case for that language on Capitol Hill by saying LGBT people want the same exemption that exists for other groups under existing law.
“It already exists in law,” Griffin said. “There’s already a religious exemption, and that’s what we’ve got to do a better job of talking about.”
Following the event, the Blade asked Griffin to clarify whether those words mean HRC would decline to support a non-discrimination measure in the upcoming Congress with a broader religious exemption. Griffin replied that he addressed this issue during the event, reiterating that HRC will “support a religious exemption that is the same religious exemption that already exists under law, and I think all of us, all of us — whether advocates, journalists or otherwise — can better make the point that there already is a model religious exemption.”
Asked again by the Blade whether that means HRC won’t support a bill with a broader religious exemption, Griffin insisted he answered that question directly, adding he doesn’t think LGBT allies on Capitol Hill would support a bill with a greater religious carve-out than what’s already enshrined under existing civil rights law.
Tico Almeida, president of Freedom to Work, didn’t take part in the event, but after its conclusion said in a statement he appreciates Merkley’s vision for a narrow religious exemption and wants other changes made to the employment portion of the comprehensive bill upon its introduction in the next Congress.
“Freedom to Work applauds LGBT champion Senator Jeff Merkley for announcing today that he will introduce a 2015 full federal equality bill to create strong legal protections for LGBT Americans,” Almeida said. “We are glad that Senator Merkley has pledged to narrow the religious exemption for next year’s bill, but that’s not enough: We also need improvements in the bill’s pleading standards, burden of proof and protections to ensure that mandatory arbitration does not lock LGBT Americans out of the courtroom door.”
Another issue brought up during the panel was the expected timing for passage. Rep. Mark Takano (D-Calif.) said the “chances are probably zero” of the bill advancing in the short-term because of the expanded Republican control in Congress and the unwillingness of the GOP-controlled House to bring up ENDA in the current Congress, although he expects efforts will ultimately prevail.
Griffin also expects a long battle leading up to passage of the comprehensive bill, but added he was “optimistic” those efforts would lead to enshrining non-discrimination protections for LGBT people in federal code.
“I think in the coming months — and years — because this is going to take a long time, and it’s going to be perhaps the biggest battle we’ve ever had when it comes to federal legislation to get this done,” Griffin said. “So how we get there — there will be ups and there will be downs, I guarantee you, but it’s important for all of us to have the bill that is ultimately what all citizens in this country deserve: Full federal equality under the law.”