Sens. Jeff Merkley (left) and Mark Kirk introduced ENDA in the Senate on Thursday (Blade photo by MIchael Key)

The junior senator from Oregon introduced the Employment Non-Discrimination Act in the U.S. Senate on Thursday as he voiced support for an executive order that would bar the federal government from contracting with companies that don’t have their own workplace protections for LGBT people.

Sen. Jeff Merkley (D-Ore.) endorsed the idea of an executive order an as interim alternative to passing ENDA during a news conference on Capitol Hill in response to a question from the Washington Blade after he announced the Senate introduction of the legislation

“Certainly, I share the perspective that it would be tremendous to accomplish this by legislation,” Merkley said. “But I also feel that this is a conversation that is going to reverberate at a number of levels. You have counties, you have state action and certainly, I feel, it’s a legitimate possibility, and I would support the president saying that contractors who are beneficiaries of federal funds should in fact practice non-discrimination, so I would support that.”

The executive order endorsed by Merkley has been seen as an interim alternative to ENDA passage while Republicans are in control of the House and progress on the measure in the lower chamber of Congress is unlikely. The White House hasn’t said one way or the other whether Obama would be open to issuing such a directive. Last month, Gay Rep. Jared Polis (D-Colo.) also expressed support for the executive order.

However, Sen. Mark Kirk (R-Ill.), an original co-sponsor of ENDA who was present at the conference, didn’t offer the same support for an executive order that was voiced by Merkley.

“I would just say when you have executive action without the statute, then quickly that would be wiped out by the next administration,” Kirk said. “The best way to go is a statute where you have a stable decision that can only be overturned by a subsequent act of Congress.”

Kirk also advised against an executive order because of what he said was a “tremendous of uncertainty right now” in the U.S. economy, which is still climbing its way out of recession.

“If we load executive order upon executive order, all which would be wiped out the day after the president of the other party takes power, you really haven’t advanced the ball much,” Kirk said. “That’s why the legislation is absolutely necessary.”

Merkley endorsed the executive order on the same day he introduced ENDA to the Senate, which as of the end of Thursday had 38 co-sponsors. The legislation would bar job discrimination against LGBT people in most situations in the public and private workforce.

Job discrimination on the basis of sexual orientation is legal in 29 states and legal in 38 states on the basis of gender identity. More than 85 percent of Fortune 500 companies already have their own workplace protections based on sexual orientation and more than one-third on the basis of gender identity.

Merkley said passage of ENDA is necessary because the “right to work and earn a living” for all Americans — including LGBT people — is a “fundamental right.”

“It is essential to the success of an individual, it is essential to the success of a family,” Merkley said. “It’s certainly essential to the pursuit of happiness — that value that we place right up front in our Declaration of Independence — and it’s part and parcel of equality under the law.”

Kirk said his support for ENDA, which puts him in the minority among Republicans, fits his model of public service in the image of the late U.S. Senator from Illinois Everett Dirksen, whom Kirk described as a “strong national security conservative, fiscal conservative and social moderate.”

“It was Sen. Dirksen that clinched the deal on the [1964] Civil Rights Act,” Kirk said. “I see this legislation as in that tradition to make sure that our country is a country not of equal outcomes, which would be a Communist state, but of equal opportunities, and to make sure that everyone has that opportunity regardless of orientation.”

A number of LGBT advocacy groups issued a statements on Thursday praising Merkley for introducing ENDA and calling on Congress to take action to pass the legislation.

Joe Solmonese, president of the Human Rights Campaign, said ENDA passage is essential to ensure LGBT Americans have equal access to the American workplace.

“In today’s economy job security is important to all Americans, especially LGBT people who can be fired for no other reason than their sexual orientation or gender identity,” Solmonese said. ”Passing ENDA is essential to ensuring that all Americans have an equal opportunity to work and contribute to this country’s economy.”

Jeff Krehely, director of the LGBT Research at the Center for American Progress Action Fund, pointed to a 2009 Out & Equal Workplace Survey that found that 44 percent of gay, lesbian, and bisexual people have said they’ve faced workplace discrimination and at least 47 percent of transgender people have made the same claim.

“ENDA will help end this discrimination by requiring workplaces to make their hiring and firing decisions based on a person’s ability to get the job done, and not irrelevant factors such as their sexual orientation or gender identity,” Krehely said.

Shin Inouye, a White House spokesperson, also reiterated President Obama’s support for passage of ENDA and noted the administration’s previous efforts in pushing for the legislation.

“The president’s support for an inclusive ENDA is well established,” Inouye said. “It’s worth noting that last Congress, when [Equal Employment Opportunity Commission] Acting Chairman Stuart Ishimaru testified on behalf of the Obama administration on ENDA before the House Education & Labor Committee, it was the first time that any administration offered its support for this legislation.”

Despite the enthusiasm behind ENDA, most Capitol Hill observers says the legislation’s prospects for passage during the 112th Congress are slim at best. Last week, Rep. Barney Frank, a gay lawmaker, introduced the House version of ENDA as he categorically said the legislation wouldn’t pass with Republicans in control of the House.

A Senate Democratic aide, who spoke on condition of anonymity, was pessimistic about the chances of passing ENDA even in the Democratic-controlled Senate.

“The prospects for passing ENDA in the Senate during the 112th Congress are not great, unless there is a major push from President Obama,” the aide said. “The Senate is narrowly controlled by Democrats, who generally will support ENDA. But unless there are enough common-sense Republicans who can help bring the total to 60 votes to overcome a Republican filibuster, ENDA won’t pass the Senate.”

Despite the challenges facing ENDA passage, the notable Republican support the legislation upon introduction could be a sign of hope. Three GOP senators — Kirk, Sen. Susan Collins (R-Maine) and Olympia Snowe (R-Maine) signed on — have signed on as original co-sponsors.

Kirk said he’s hopeful that he can find enough Republican support for the legislation to reach the 60-vote threshold necessary to end a filibuster if the legislation came to the Senate floor.

“I asked Sen. Merkley, ‘Let’s start this out very balanced with members that have reputations to be able to move legislation, and I think we’ve done that today,’” Kirk said.

R. Clarke Cooper, executive director of Log Cabin Republicans, said he talked with Kirk following ENDA’s introduction about finding sufficient Republican support to move forward with ENDA and was told “the votes are there” for passage.

“Our conversation was Senate focused, but could apply to the House as well,” Cooper said.

One possible strategy for passing ENDA in the Senate would be attaching it as an amendment to another legislative vehicle. Such a move could enhance ENDA’s chances for passage because standalone legislation could be vulnerable to hostile amendments on the Senate floor.

The anonymous Senate Democratic aide said ENDA would be fare better as an amendment on the Senate floor as opposed to standalone legislation because “any stand alone bills are tough to pass in the Senate these days.”

During the news conference, Kirk suggested that plans are in place to pass ENDA in the Senate as an amendment to another vehicle. The Illinois senator said he wants to move the legislation “as I’m now learning, hopefully by amendment.”

Following Kirk’s remark, Merkley said ENDA’s proponents have “no specific plans” to pass the legislation as an amendment to another bill at this time, but are on the lookout for potential opportunities to pass legislation that “may have trouble getting to the floor as a freestanding piece.”

Asked whether there would any candidates for legislation that would serve as vehicles for ENDA, Merkley replied, “If only I could forecast all the bills that are going to be on the floor.”

Whatever the prospects for pushing ENDA through both chambers of Congress, LGBT advocates are hoping for progress at least in the committee that holds jurisdiction over ENDA. Supporters of the legislation are already calling on Senate Health, Education, Labor and Pensions Committee Chair Tom Harkin (D-Iowa), an original co-sponsor of the legislation, to hold a hearing on the legislation during the 112th Congress.

Tico Almeida, a civil rights litigator at Sanford, Wittels & Heisler in D.C., said a Senate hearing on ENDA would allow LGBT victims of workplace discrimination a public venue to tell their stories.

“Sen. Tom Harkin, chairman of the Senate [HELP] Committee, can and should organize an ENDA hearing during the upcoming year,” Almeida said. “He can and should call one or more transgender Americans to testify at that hearing,”

In response to calls for a hearing, Justine Sessions, a Harkin spokesperson, said is committed to working with Merkley and other co-sponsors to move the legislation forward.

Merkley said he’s spoken with Harkin about an ENDA committee hearing or markup and said he’s “working with him and committee staff about that direction.”

The Oregon senator recalled that in 2009, Harkin held the an committee hearing on ENDA in which Assistant Attorney General Thomas Perez, head of the Civil Rights Division of the Justice Department, represented the Obama administration during the hearing.

Rep. Jerrold Nadler is set to introduce UAFA in the House (Blade file photo by Michael Key)

Two key pieces of pro-LGBT legislation — the Uniting American Families Act and the Employment Non-Discrimination Act — are set for introduction in Congress on Thursday, according to an informed source.

An LGBT rights advocate, who spoke on condition of anonymity, said on Thursday Rep. Jerrold Nadler (D-N.Y.) would introduce UAFA in the House and Sen. Jeff Merkley (D-Ore.) would introduce ENDA in the Senate.

“It’s actually kind of a big gay week,” the advocate said. “We also have the civil unions bill in Delaware expected on Thursday and then Friday is the DOMA hearing. So it’s actually a pretty active week where our issues are concerned.”

Nadler’s office didn’t respond on short notice to respond to confirm that UAFA would see introduction in the House on Thursday. Last week, Ilan Kayatsky, a Nadler spokesperson, said the lawmaker would introduce the bill “shortly.”

As it was introduced in the 111th Congress, UAFA would enable gay Americans to sponsor their foreign partners for residency in the United States as straight Americans can do for their foreign spouses. Based on U.S. Census data from 2000, current immigration law threatens to tear apart 36,000 bi-national same-sex couples in the United States.

It wasn’t immediately clear if the House introduction of UAFA would be concurrent with the Senate introduction. In the 111th Congress, Sen. Patrick Leahy (D-Vt.) was the sponsor of UAFA.

Erica Chabot, a Leahy spokesperson, said her boss would again introduce the legislation in the 112th Congress, but added she doesn’t have a date for when that would happen.

“Sen. Leahy is committed to reintroducing UAFA, but I don’t have a date certain at this time,” she said.

On the same day Nadler is expected to introduce UAFA in the House, Merkley is expected to introduce ENDA in the Senate.

Julie Edwards, a Merkley spokesperson, said in response to a request to confirm whether the bill would be introduced Thursday that the legislation would be debut “soon” and she could say more later.

The Senate version of ENDA, according to Capitol Hill sources, is set to have Republican support immediately upon introduction from Sens. Susan Collins (R-Maine), Olympia Snowe (R-Maine) and Mirk Kirk (R-Ill.),

Kevin Kelley, a Collins spokesperson, said his boss and Kirk would be original co-sponsors along with Sen. Tom Harkin (D-Iowa), chair of the Senate Health, Education, Labor & Pensions Committee. But Kelley said he couldn’t confirm the date of introduction at this time.

Christian Berle, deputy executive director of Log Cabin Republicans, said Snowe would also be an original co-sponsor for ENDA. Snowe and Collins were both original co-sponsors in the 111th Congress.

“I just got confirmation from Sen. Snowe’s office that she will be an original co-sponsor of ENDA,” Berle said.

ENDA would bar job discrimination against LGBT people in most situations in the public and private workforce. Job discrimination on the basis of sexual orientation is legal in 29 states and legal in 38 states on the basis of gender identity.

Last week, gay Rep. Barney Frank (D-Mass.) introduced the House version of ENDA. As of Monday, the legislation had 117 co-sponsors. Frank has said Republican control of the House will prevent passage of ENDA during the 112th Congress.

UPDATE: On Wednesday, Chabot confirmed Leahy is set to introduce UAFA on Thursday in the Senate, which would be concurrent with the introduction of the bill in the House. She said she’d have information on co-sponsors upon introduction.

Clinical trial discrimination investigation sought

WASHINGTON — Five U.S. senators are asking Health & Human Services Secretary Kathleen Sebelius to investigate reports that gays and lesbians are being excluded from medical clinical trials.

A recent study conducted by the New England Journal of Medicine found that gay and lesbian patients were barred from participating in clinical trials, many dealing with sexual function. The letter from Sens. Sherrod Brown (D-Ohio), Kirstin Gillibrand (D-N.Y.), John Kerry (D-Mass.), Robert Menendez (D-N.J.) and Jeff Merkley (D-Ore.) asks Sebelius to determine if there is any proven medical rationale behind the practice.

“The New England Journal of Medicine is the gold standard for the medical community, and their study set off alarm bells,” Kerry said. “This is more than an equality issue. It raises huge questions about the quality of medical information from flawed trials.”

Merkley noted that for years, women were excluded from participating in clinical trials of medical treatments.

“This meant that American women were not represented in medical research of diseases and treatments that were prevalent among both men and women,” he said. “Today, this trend continues with individuals being excluded on the basis of sexual orientation. This is just wrong — it undermines rigorous scientific testing and it is morally reprehensible.”

Gillibrand and Menendez also said the any forms of discrimination must be eliminated from the clinical trials.

“Discrimination is wrong in any context, but discrimination in clinical trials is particularly troubling because it limits an entire community’s access to medical care,” Menendez said. “Getting answers on this will help us make sure that these trials are open to every member of our society.”

9 porn agencies to be targeted in labor complaints

LOS ANGELES — An AIDS advocacy group said April 15 it had filed labor complaints against nine porn talent agencies for promoting actors who are willing to have unprotected sex on camera.

The Associated Press reported AIDS Healthcare Foundation President Michael Weinstein said the Los Angeles-area agencies were knowingly exposing the porn actors to sexually transmitted diseases.

The agencies should abide by state labor codes that prevent their licensing if they endanger the health, safety or welfare of their artists, Weinstein said.

“If there were a construction employment agency, they couldn’t say John Doe is available to dangle 100 feet over the ground without a harness,” Weinstein said. “That would be shut down instantaneously.”

The agencies named in the complaint sent last week to the Department of Industrial Relations are A List Talent, ATMLA, Gold Star Modeling, LA Direct Models, Lisa Ann’s Talent Management, Metro Talent Management, SpieglerGirls.com, Type 9 Models Inc. and World Modeling, according to Weinstein.

A porn performer and owner of ATMLA who identified herself as Shy Love said the risks faced by porn actors are similar to those in sports entertainment, where fighters can be exposed to blood, sweat and mucus.

The advocacy group was unfairly targeting the adult industry, Love said.

“We know the risks going in, the same way a fireman or a policeman knows the risks,” Love said. “We are adults, and it is up to us to choose what risks we face. It is not up to the government.”

In February, Los Angeles County public health director Dr. Jonathan Fielding said regulating condom use on porn sets is nearly impossible, citing typically clandestine porn shoots that require little more than a bed and a camera.

The nonprofit foundation has been pushing for mandatory use of condoms in porn films since an HIV outbreak in 2004 spread panic through the industry and briefly shut down production at several studios.

Confinement sought for N.Y. man who spread HIV

ALBANY, N.Y. — A New York man who was convicted of knowingly infecting at least 13 women with the AIDS virus has completed his prison sentence, but he may face civil confinement as a sex offender.

The Associated Press reported Attorney General Andrew Cuomo wants Nushawn Williams held under a law that allows for keeping the most dangerous sex offenders out of communities after they have served their sentences. Williams completed a 12-year sentence April 13.

Williams infected the women in western New York in the late 1990s. He had said at the time that he didn’t believe health officials who told him he was HIV positive.

The process of determining whether Williams’ mental state justifies confinement or intensive supervision could take months. Williams will be held until then. He now goes by the name Shyteek Johnson.

U.S. Rep. Barney Frank said ENDA supporters should ‘call senators and lobby them’ to help build momentum for the bill in the Senate. (Photo by Joe Tresh)

With supporters of the Employment Non-Discrimination Act expecting a favorable House vote on the measure in May or June, LGBT lobbyists are turning their attention to 16 Democratic senators who have yet to sign on as co-sponsors of the legislation.

The bill, also known as ENDA, bars employment discrimination based on someone’s actual or perceived sexual orientation and gender identity.

Its supporters say it’s needed to end job discrimination in 29 states, where it remains legal to fire or refuse to hire someone who’s gay, lesbian or bisexual. Supporters also note that employers in 38 states can fire or refuse to hire someone solely because of their gender identity or expression, a practice the bill would similarly prohibit.

Multiple sources have told DC Agenda that supporters in the Senate don’t appear to have the 60 votes needed to overcome a filibuster that Republican opponents are expected to invoke to block an up or down floor vote.

“I’ve tried to get a sense of what’s going on here,” said Rep. Barney Frank (D-Mass.), ENDA’s lead sponsor in the House. “But I think the best thing I can do about the Senate and ENDA is to get it passed [in the House] and send it over there.”

Frank’s advice for ENDA backers worried about the Senate is to “call senators and lobby them” rather than dwell too much on “arm chair strategizing.”

But with the 2010 congressional elections fast approaching, only two GOP senators have so far committed to vote for ENDA, making it essential for supporters to line up most of the 16 uncommitted Democrats to secure the bill’s passage in the Senate.

Nearly all political observers predict the Democrats’ majorities in the House and Senate will shrink as a result of the November election, making it far more difficult to pass ENDA and other LGBT rights bills next year.

As of this week, there were 45 Senate co-sponsors of ENDA, along with chief sponsor Sen. Jeff Merkley (D-Ore.), bringing the total committed votes to 46. Of the 46, 42 are Democrats and two are independents. Maine senators Olympia Snowe and Susan Collins are the only Senate Republicans that have signed on as co-sponsors.

Thirty-nine Republican senators have declined to co-sponsor the bill compared to the 16 Democrats who chose not to become a co-sponsor. Sen. Jim Webb (D-Va.) signed on as a co-sponsor on March 10, reducing the number of uncommitted Democrats from 17 to 16.

For the first of a series of reports on the Democratic senators uncommitted on ENDA, DC Agenda contacted experts and activists in the states that five of those senators represent, seeking to assess how they would vote if the measure reaches the Senate floor sometime this year.

The five senators include Blanche Lincoln (D-Ark.), Mark Pryor (D-Ark.), Thomas Carper (D-Del.), Evan Bayh (D-Ind.), and Clare McCaskill (D-Mo.). Spokespeople for the five did not return calls this week seeking to determine their position on ENDA.

Many political observers in Arkansas believe Lincoln is facing an uphill fight in her re-election bid, with the state’s lieutenant governor, Bill Halter, challenging her in the Democratic primary. As of April 1, each of four Republicans seeking the nomination to oppose her in the general election was ahead of her in a Rasmussen public opinion poll by margins of 51 percent to 36 percent.

Officials with the state’s sole statewide LGBT group, Center for Artistic Revolution, did not respond to calls for comment by press time.

Hastings Wyman, editor of Southern Political Report, a recognized authority on politics and elections in the South, said support for ENDA would not help Lincoln in the current political environment.

“I can’t say how she would vote on ENDA, but the politics would say it would help her if she did not vote for it,” he said.

Wyman noted that Pryor, who is not up for re-election this year, has a record as a moderate on most issues, even though he projects an image of a conservative Democrat.

“I would not be surprised if he voted for it,” he said.

Steve Elkins, executive director of Camp Rehoboth, an LGBT advocacy group and community center in Rehoboth Beach, Del., said he has spoken with Carper at gay-related events and believes the state’s senior senator would vote for ENDA.

“He has been to Camp Rehoboth and has attended a number of LGBT events,” including meetings of the state’s LGBT Democratic group, Stonewall Democrats of Delaware, Elkins said. “There is no reason for me to think he would not vote for the bill.”

Delaware’s other senator, Democrat Ted Kaufman, who was appointed to fill the Senate seat vacated when former Sen. Joe Biden was elected vice president, is an ENDA co-sponsor.

By comparison, Indiana political consultant Mark St. John, a member of the board of the statewide LGBT group Indiana Equality, said Bayh has a longstanding reputation as a cautious politician and has yet to give any indication of how he would vote on ENDA.

“I wish I had a better answer,” he said. “Evan is certainly Mr. Cautious on that issue … but this is not to say he would vote no on ENDA. He has always held his cards close to his chest.”

St. John said Indiana Equality is lobbying Bayh to support both ENDA and a proposal to repeal “Don’t Ask, Don’t Tell,” the law that bars gays, lesbians and bisexuals from serving openly in the military.

Although McCaskill’s office has not responded to at least two inquiries from DC Agenda seeking her position on ENDA, A.J. Bockelman, executive director of the Missouri statewide LGBT group Promo, said McCaskill told members of the group at a meeting in Kansas City in February that she supports ENDA and would vote for it.

“We have talked to her office about the trans provisions in the bill and she is OK with that,” Bockelman said.

Sources familiar with ENDA have said several senators and House members raised objections to the transgender provision, a development that prompted Frank to work with transgender activists to come up with proposed revisions in the bill’s language pertaining to gender identity. The changes are expected to be disclosed when the House version of the bill is marked up in committee in late April or early May.

“Everyone signed off on the changes,” said one transgender activist, who spoke on condition of anonymity. “We’re not crazy about them, but they’re acceptable and they’ll help us get the bill passed.”

A small corps of LGBT political insiders, speaking on condition that they not be identified, believe the Employment Non-Discrimination Act is headed for almost certain defeat this year because supporters can’t line up the 60 votes in the Senate needed to overcome a filibuster.

Breaking what some have called an informal code of silence adopted by mainline LGBT political organizations, at least four sources familiar with the gay and transgender civil rights bill said the lack of Senate votes became clear long before Republican Scott Brown won his upset victory last week in Massachusetts.

“What we’re hearing is there is just no clear path to pass ENDA in the Senate,” said one activist familiar with the bill’s lobbying effort. “They don’t think they have 60 votes to pass it.”

Another source with ties to Capitol Hill and national LGBT political groups based in Washington was more definitive.

“ENDA has been off the agenda since before the Massachusetts election because they couldn’t secure the votes in the Senate,” the source told DC Agenda.

The bill would bar private sector employment discrimination based on an individual’s sexual orientation or gender identity.

Opposition to the gender identity provision, included to help protect transgender people, is among the contributing factors that’s prevented supporters from lining up the needed 60 votes to break a filibuster, one of the sources said.

The Human Rights Campaign, National Gay & Lesbian Task Force, and National Center for Transgender Equality — three leading groups working on ENDA — say they are confident the House of Representatives will pass ENDA in the summer or early fall.

Officials with HRC and NCTE have said they remain hopeful that Democrats and a few moderate Republicans in the Senate will unite to defeat a filibuster and pass the long-awaited LGBT civil rights measure.

“I’m still optimistic,” said veteran transgender activist Mara Keisling, executive director of NCTE. “The Senate’s always been the harder challenge on every piece of legislation, not just on LGBT legislation. So the Senate’s a challenge; we’ll get there.”

As of this week, the bill had 194 co-sponsors in the House and 44 co-sponsors in the Senate. Only two of the Senate co-sponsors are Republicans: Sens. Susan Collins and Olympia Snowe, both from Maine.

When combined with its lead sponsor in the House, Rep. Barney Frank (D-Mass.), and the lead sponsor in the Senate, Sen. Jeff Merkley (D-Ore.), the measure has what most observers believe to be at least 195 certain votes in the House and 45 assumed votes in the Senate.

Frank and Speaker of the House Nancy Pelosi (D-Calif.), a longtime supporter of ENDA, have said they were confident that backers would line up more than the 218 House votes needed to pass the bill.

But in the Senate, LGBT civil rights lobbyists have been reluctant to reveal the findings of their highly confidential head counts, including leanings of the 17 Senate Democrats that have not signed on as co-sponsors. Among them are Sens. Jim Webb and Mark Warner, both of Virginia.

A longtime practice in Washington lobbying has been to hold off on publicly disclosing the names of lawmakers who are uncommitted or say they are leaning against a bill, with the hope that they could be persuaded to change their minds. If a lawmaker is pressured to publicly declare his or her position, the lawmaker is less likely to switch positions out of fear of being labeled a flip-flopper, according to seasoned lobbyists and members of Congress.

One of the sources who told DC Agenda that ENDA appears dead in the Senate said that groups like HRC, the Task Force and NCTE are diligently working behind the scenes to line up more Senate Democrats to commit to voting for cloture, the parliamentary procedure used to end a filibuster. Sixty votes are needed to invoke cloture.

Most political observers believe supporters have the 51 votes to pass the bill in the 100-member Senate, if a filibuster can be broken.

Allison Herwitt, HRC’s legislative director, was circumspect about ENDA’s prospects in the Senate in an interview earlier this month with DC Agenda.

“We have education that we need to do and have conversations,” she said. “I know that Sen. Merkley and his staff have been really on top of this, and having those conversations staff-to-staff — and the senator is having colleague-to-colleague conversations. And we just need to continue some of that process and then see where we are with the vote count.”

Asked whether the gender identity provision could be a problem in the Senate, Herwitt said, “I think what I’m saying is we’re still in the process of figuring all of that out. The conversations are still happening; the education process is still ongoing.” She added that HRC is pushing hard for a “fully inclusive bill.”

Spokespeople for the Task Force, National Stonewall Democrats, Lambda Legal Defense & Education Fund and the ACLU’s LGBT Rights Project did not return calls this week seeking comment on the reports that ENDA backers may be unable to break a Senate filibuster.

Jim Manley, a spokesperson for Senate Majority Leader Harry Reid (D-Nev.), said it’s too soon for Reid to assess ENDA’s chances on the Senate floor because the bill has yet to be reported out of committee.

Last November, the Senate’s Health, Education, Labor & Pensions Committee, chaired by Sen. 
Tom Harkin (D-Iowa), an ENDA co-sponsor, held a legislative hearing on the bill. At the time of the hearing, Harkin promised to hold a markup hearing on the bill this year, but he did not set a date for the markup.

Markup hearings are required under both House and Senate rules for making final revisions of bills before voting in committee to send them to the floor for a vote by the full House or Senate.

“In the hearing, Sen. Harkin said that he wants to move the bill this year,” said Bergen Kenny, Harkin’s press secretary, in an e-mail this week to DC Agenda. She did not respond to questions about when Harkin would hold the markup or whether he was aware of reports that supporters lacked the votes to break a filibuster.

Julie Edwards, Merkley’s press secretary, pointed to a statement by Harkin at the legislative hearing last November that he would like to see the bill moved to the Senate floor in the spring of 2010.

“I would say that’s the goal,” Edwards said. “That’s what we’re working toward. We continue to reach out to other offices. I know supporters of this legislation are doing the same.”

Asked if Merkley believes he has 60 votes to break a filibuster, Edwards said, “We haven’t done a whip count on this. But we’re continually building support for the bill.”

Although many Capitol Hill observers think the House will pass ENDA sometime this year, Frank raised concerns among some activists earlier this month when he told the Advocate that lawmakers still have problems with the bill’s transgender provision.

“There continues 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.,” the Advocate quoted him as saying.

“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,” he said.

Frank was out of the country on House business this week and could not be reached. His press secretary, Harry Gural, said Frank’s comments to the Advocate should not be interpreted to mean that the congressman feels the bill is in trouble in the House.

“They don’t expect a holdup on this,” said Gural, who added that no one familiar with the bill believes an attempt will be made to remove the transgender provision.

He was referring to a blowup in 2007, when Frank and House Democratic leaders determined there weren’t enough votes in the House to pass a trans-inclusive version of ENDA. At Frank’s urging, House Democrats introduced and pushed through the full House a revised bill that didn’t include protection for transgender people. The bill died a year later when the Senate failed to act on it following an outcry by many activists urging the Senate not to pass it.

“Barney said that is not going to happen this time,” Gural said.

As lawmakers hash out the 2010 legislative schedule for Congress, LGBT rights supporters are anticipating a House markup for the long-sought Employment Non-Discrimination Act within the next month.

Sources familiar with Capitol Hill said the House Education & Labor Committee will take up ENDA, which would bar job bias against LGBT people in the public and private workforce, shortly after lawmakers return from holiday break.

Last year, House and Senate committees held hearings on legislation that would provide workplace protections for LGBT people. The next step in both committees — the Education & Labor Committee in the House and the Health, Education, Labor & Pensions Committee in the Senate — is reporting out the legislation so floor votes can take place.

Rep. Jared Polis (D-Colo.), a gay lawmaker who serves on the House Education & Labor Committee, said he’s expecting a markup of the legislation either this month or in February and a floor vote soon after.

“Once it’s been marked up in committee, it’s simply a matter of scheduling it for the floor, and that of course depends on what else is coming to the floor, whether it’s health care or what[ever] it is, but it shouldn’t take very long,” he said.

Also expecting an ENDA markup in the House shortly is Allison Herwitt, legislative director for the Human Rights Campaign.

“We’re hopeful that it will be either January or February and we’re pushing for that,” she said.

Still, it’s unclear exactly when the House committee will take up the legislation. Aaron Albright, spokesperson for the House & Education Labor Committee, said, “nothing has been scheduled yet.”

Meanwhile, in the Senate, Jeff Merkley (D-Ore.), who sponsors ENDA in that chamber, has said the HELP Committee will take up ENDA in the spring, but Herwitt said the timing in the Senate “is a little less clear.”

“I think that we’re going to talk to [Chair Tom] Harkin’s staff people, committee staff and try to figure all of that out, what’s the timeframe that they’re looking at, how will we envision the bill moving forward in the Senate,” she said. “I mean, obviously, the Senate provides us more challenges in moving legislation, especially when it is freestanding.”

Advocates are committed to passing a version of ENDA that provides protections on the basis of sexual orientation and gender identity.

The inclusion of transgender people in ENDA has been a sensitive issue. In 2007, Rep. Barney Frank (D-Mass.) came under fire for pushing a version of ENDA that provided protections only on the basis of sexual orientation, saying at the time that Congress lacked the votes to pass an inclusive bill.

This year, the situation is different. Polis said lawmakers expect to pass “an inclusive ENDA that includes protections based on gender identity.”

Herwitt expressed similar optimism that the House would be able to pass ENDA with protections based on sexual orientation and gender identity.

“I think that we’re in a really strong place in the House,” she said. “I think that, again, when we look at our vote count for final passage, it looks good for a fully inclusive bill.”

Still, Herwitt said conversations are more nascent on the Senate side regarding ENDA and the inclusion of gender identity provisions.

“We have education that we need to do and have conversations,” she said. “I know that Sen. Merkley and his staff have been really on top of this, and having those conversations staff-to-staff — and the senator is having colleague-to-colleague conversations. And we just need to continue some of that process and then see where we are with the vote count.”

Asked whether the gender identity provisions could be a sticking point in the Senate, Herwitt replied, “I think what I’m saying is we’re still in the process of figuring all of that out. The conversations are still happening, the education process is still ongoing and obviously we want to make sure that the bill moves forward when it can move forward as a fully inclusive bill.”

Activists want DADT repeal in budget request

The repeal of “Don’t Ask, Don’t Tell,” the 1993 law that prohibits openly gay people from serving in the U.S. military, is also a primary focus for LGBT rights supporters on the Hill.

Advocates are urging President Obama to include language that would overturn the law as part of his defense budget request to Congress for the next fiscal year. The request is expected to be made public early this year.

The Servicemembers Legal Defense Network on Tuesday published a full-page ad in Roll Call newspaper calling on Obama to include repeal in his budget request. Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, writes in the letter that Obama should include repeal in his budget request to stay true to the promise he made to end the ban last year during a speech at an HRC dinner.

“There is no good reason why this White House would pass up this opportunity,” Sarvis said. “It is the logical place to get rid of the discriminatory ban. We urge the president to make good on his words on the campaign trail as well as those said last October when he emphatically declared, ‘I will end Don’t Ask, Don’t Tell.’”

Herwitt said HRC also wants Obama to include repeal of the ban on open service as part of his defense budget request.

“We have been working to make that a reality,” she said. “We are hopeful and it has been part of our plan. We think that having the White House put the policy recommendations through [the] DOD [budget request] forward is important and key.”

Whether the budget request will, in fact, include language that would repeal “Don’t Ask, Don’t Tell” remains to be seen. Shin Inouye, a White House spokesperson, wouldn’t confirm whether administration officials would include such language in the budget request.

“As we are in the midst of the policy process for the FY 2011 Budget, it would be premature to comment on its contents,” he said.

Another bill pending in Congress is the Domestic Partnership Benefits & Obligations Act. The legislation — approved late last year by both House and Senate committees — would allow the same-sex partners of LGBT federal workers to receive the same benefits as the spouses of straight workers, including health and pension benefits.

But the timing for a floor vote is not yet clear. Herwitt said she doesn’t know when floor votes would take place and said HRC is “working with our allies in the House and the Senate to try and figure out what is the schedule, what are they looking at.”

Sen. Joseph Lieberman (I-Conn.), the sponsor of the bill in that chamber, said last month a floor vote wouldn’t take place until lawmakers receive cost offset information from the U.S. Office of Personnel Management for implementing the measure within the agency’s existing budget.

Leslie Phillips, spokesperson for the Senate Homeland Security & Governmental Affairs Committee, which has jurisdiction over the legislation, said Tuesday that lawmakers have “not yet received the offset information from OPM.” The agency didn’t respond to DC Agenda’s request for comment.