National
Filibuster threat makes ENDA unlikely in 2010
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.
The U.S. has granted asylum to a Guatemalan LGBTQ activist who fled his country in 2019.
Estuardo Cifuentes and his partner ran a digital marketing and advertising business in Guatemala City.
He previously told the Washington Blade that gang members extorted from them. Cifuentes said they closed their business after they attacked them.
Cifuentes told the Blade that Guatemalan police officers attacked him in front of their home when he tried to kiss his partner. Cifuentes said the officers tried to kidnap him and one of them shot at him. He told the Blade that authorities placed him under surveillance after the incident and private cars drove past his home.
Cifuentes arrived in Matamoros, a Mexican border city that is across the Rio Grande from Brownsville, Texas, in June 2019. He asked for asylum in the U.S. based on the persecution he suffered in Guatemala because of his sexual orientation.
The Trump administration forced Cifuentes to pursue his asylum case from Mexico under its Migrant Protection Protocols program that became known as the “remain in Mexico” policy.
Cifuentes while in Matamoros ran Rainbow Bridge Asylum Seekers, a program for LGBTQ asylum seekers and migrants that the Resource Center Matamoros, a group that provides assistance to asylum seekers and migrants in the Mexican border city, helped create.
The Biden-Harris administration in January 2021 suspended enrollment in MPP. Cifuentes entered the U.S. on March 3, 2021.
“We are profoundly relieved and grateful that my husband and I have been officially recognized as asylees in the United States,” Cifuentes told the Blade on Monday in an email. “This result marks the end of a long and painful fight against the persecution that we faced in Guatemala because of our sexual orientation.”
Vice President Kamala Harris is among those who have said discrimination and violence based on sexual orientation are among the root causes of migration from Guatemala and other countries in Central America.
Cifuentes is now the client services manager for Lawyers for Good Government’s Project Corazón, a campaign that works “hard to reunite and defend the rights of families impacted by inhumane immigration policies.” He told the Blade he will continue to help LGBTQ asylum seekers and migrants.
“In this new chapter of our lives, we pledge to work hard to support others in similar situations and to contribute to the broader fight for the rights and acceptance of the LGBTQ+ migrant community,” said Cifuentes. “We are hopeful that our story will serve as a call to action to confront and end persecution based on gender identity and sexual orientation.”
U.S. Supreme Court
US Supreme Court rules Idaho to enforce gender care ban
House Bill 71 signed in 2023
BY MIA MALDONADO | The U.S. Supreme Court has allowed Idaho to enforce House Bill 71, a law banning Idaho youth from receiving gender-affirming care medications and surgeries.
In an opinion issued Monday, the U.S. Supreme Court granted the state of Idaho’s request to stay the preliminary injunction, which blocked the law from taking effect. This means the preliminary injunction now only applies to the plaintiffs involved in Poe v. Labrador — a lawsuit brought on by the families of two transgender teens in Idaho who seek gender-affirming care.
Monday’s Supreme Court decision enforces the gender-affirming care ban for all other trans youth in Idaho as the lawsuit remains ongoing in the Ninth Circuit Court of Appeals.
The American Civil Liberties Union and the ACLU of Idaho, both of whom represent the plaintiffs, said in a press release Monday that the ruling “does not touch upon the constitutionality” of HB 71. The groups called Monday’s ruling an “awful result” for trans Idaho youth and their families.
“Today’s ruling allows the state to shut down the care that thousands of families rely on while sowing further confusion and disruption,” the organizations said in the press release. “Nonetheless, today’s result only leaves us all the more determined to defeat this law in the courts entirely, making Idaho a safer state to raise every family.”
Idaho Attorney General Raúl Labrador in a press release said the state has a duty to protect and support all children, and that he is proud of the state’s legal stance.
“Those suffering from gender dysphoria deserve love, support and medical care rooted in biological reality,” Labrador said. “Denying the basic truth that boys and girls are biologically different hurts our kids. No one has the right to harm children, and I’m grateful that we, as the state, have the power — and duty — to protect them.”
Recap of Idaho’s HB 71, and what led to SCOTUS opinion
Monday’s Supreme Court decision traces back to when HB 71 was signed into law in April 2023.
The law makes it a felony punishable for up to 10 years for doctors to provide surgeries, puberty-blockers and hormones to trans people under the age of 18. However, gender-affirming surgeries are not and were not performed among Idaho adults or youth before the bill was signed into law, the Idaho Capital Sun previously reported.
One month after it was signed into law, the families of two trans teens sued the state in a lawsuit alleging the bill violates the 14th Amendment’s guarantee of equal protection under the law.
In late December, just days before the law was set to take effect in the new year, U.S. District Judge B. Lynn Winmill blocked the law from taking effect under a preliminary injunction. In his decision, he said he found the families likely to succeed in their challenge.
The state of Idaho responded by appealing the district court’s preliminary injunction decision to the Ninth Circuit, to which the Ninth Circuit denied. The state of Idaho argued the court should at least enforce the ban for everyone except for the plaintiffs.
After the Ninth Circuit’s denial, the Idaho Attorney General’s Office in February sent an emergency motion to the U.S. Supreme Court, the Idaho Press reported. Monday’s U.S. Supreme Court decision agrees with the state’s request to enforce its ban on trans health care for minors, except for the two plaintiffs.
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Mia Maldonado joined the Idaho Capital Sun after working as a breaking news reporter at the Idaho Statesman covering stories related to crime, education, growth and politics. She previously interned at the Idaho Capital Sun through the Voces Internship of Idaho, an equity-driven program for young Latinos to work in Idaho news. Born and raised in Coeur d’Alene, Mia moved to the Treasure Valley for college where she graduated from the College of Idaho with a bachelor’s degree in Spanish and international political economy.
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The preceding piece was previously published by the Idaho Capital Sun and is republished with permission.
The Idaho Capital Sun is the Gem State’s newest nonprofit news organization delivering accountability journalism on state politics, health care, tax policy, the environment and more.
We’re part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
Kansas
Kansas governor vetoes ban on health care for transgender youth
Republican lawmakers have vowed to override veto
BY TIM CARPENTER | Gov. Laura Kelly flexed a veto pen to reject bills Friday prohibiting gender identity health care for transgender youth, introducing a vague crime of coercing someone to have an abortion and implementing a broader survey of women seeking abortion that was certain to trigger veto override attempts in the Republican-led House and Senate.
The decisions by the Democratic governor to use her authority to reject these health and abortion rights bills didn’t come as a surprise given her previous opposition to lawmakers intervening in personal decisions that she believed ought to remain the domain of families and physicians.
Kelly said Senate Bill 233, which would ban gender-affirming care for trans minors in Kansas, was an unwarranted attack on a small number of Kansans under 18. She said the bill was based on a politically distorted belief the Legislature knew better than parents how to raise their children.
She said it was neither a conservative nor Kansas value to block medical professionals from performing surgery or prescribing puberty blockers for their patients. She said stripping doctors of their licenses for serving health interests of patients was wrong. Under the bill, offending physicians could be face lawsuits and their professional liability insurance couldn’t be relied on to defend themselves in court.
“To be clear, this legislation tramples parental rights,” Kelly said. “The last place that I would want to be as a politician is between a parent and a child who needed medical care of any kind. And, yet, that is exactly what this legislation does.”
Senate President Ty Masterson (R-Andover) and House Speaker Dan Hawkins (R-Wichita) responded to the governor by denouncing the vetoes and pledging to seek overrides when legislators returned to the Capitol on April 26. The trans bill was passed 27-13 in the Senate and 82-39 in the House, suggesting both chambers were in striking distance of a two-thirds majority necessary to thwart the governor.
“The governor has made it clear yet again that the radical left controls her veto pen,” Masterson said. “This devotion to extremism will not stand, and we look forward to overriding her vetoes when we return in two weeks.”
Cathryn Oakley, senior director of the Human Rights Campaign, said the ban on crucial, medically necessary health care for trans youth was discriminatory, designed to spread dangerous misinformation and timed to rile up anti-LGBTQ activists.
“Every credible medical organization — representing over 1.3 million doctors in the United States — calls for age-appropriate, gender-affirming care for transgender and nonbinary people,” Oakley said. “This is why majorities of Americans oppose criminalizing or banning gender-affirming care.”
Abortion coercion
Kelly also vetoed House Bill 2436 that would create the felony crime of engaging in physical, financial or documentary coercion to compel a girl or woman to end a pregnancy despite an expressed desire to carry the fetus to term. It was approved 27-11 in the Senate and 82-37 in the House, again potentially on the cusp of achieving a veto override.
The legislation would establish sentences of one year in jail and $5,000 fine for those guilty of abortion coercion. The fine could be elevated to $10,000 if the adult applying the pressure was the fetuses’ father and the pregnant female was under 18. If the coercion was accompanied by crimes of stalking, domestic battery, kidnapping or about 20 other offenses the prison sentence could be elevated to 25 years behind bars.
Kelly said no one should be forced to undergo a medical procedure against their will. She said threatening violence against another individual was already a crime in Kansas.
“Additionally, I am concerned with the vague language in this bill and its potential to intrude upon private, often difficult, conversations between a person and their family, friends and health care providers,” the governor said. “This overly broad language risks criminalizing Kansans who are being confided in by their loved ones or simply sharing their expertise as a health care provider.”
Hawkins, the House Republican leader, said coercion was wrong regardless of the circumstances and Kelly’s veto of the bill was a step too far to the left.
“It’s a sad day for Kansas when the governor’s uncompromising support for abortion won’t even allow her to advocate for trafficking and abuse victims who are coerced into the procedure,” Hawkins said.
Emily Wales, president and CEO of Planned Parenthood Great Plains Votes, said HB 2436 sought to equate abortion with crime, perpetuate false narratives and erode a fundamental constitutional right to bodily autonomy. The bill did nothing to protect Kansas from reproductive coercion, including forced pregnancy or tampering with birth control.
“Planned Parenthood Great Plains Votes trusts patients and stands firmly against any legislation that seeks to undermine reproductive rights or limit access to essential health care services,” Wales said.
Danielle Underwood, spokeswoman for Kansas for Life, said “Coercion Kelly” demonstrated with this veto a lack of compassion for women pushed into an abortion.
The abortion survey
The House and Senate approved a bill requiring more than a dozen questions be added to surveys of women attempting to terminate a pregnancy in Kansas. Colorful debate in the House included consideration of public health benefits of requiring interviews of men about reasons they sought a vasectomy birth control procedure or why individuals turned to health professionals for treatment of erectile dysfunction.
House Bill 2749 adopted 81-39 in the House and 27-13 in the Senate would require the Kansas Department of Health and Environment to produce twice-a-year reports on responses to the expanded abortion survey. The state of Kansas cannot require women to answer questions on the survey.
Kelly said in her veto message the bill was “invasive and unnecessary” and legislators should have taken into account rejection in August 2022 of a proposed amendment to the Kansas Constitution that would have set the stage for legislation further limiting or ending access to abortion.
“There is no valid medical reason to force a woman to disclose to the Legislature if they have been a victim of abuse, rape or incest prior to obtaining an abortion,” Kelly said. “There is also no valid reason to force a woman to disclose to the Legislature why she is seeking an abortion. I refuse to sign legislation that goes against the will of the majority of Kansans who spoke loudly on Aug. 2, 2022. Kansans don’t want politicians involved in their private medical decisions.”
Wales, of Planned Parenthood Great Plains Votes, said the bill would have compelled health care providers to “interrogate patients seeking abortion care” and to engage in violations of patient privacy while inflicting undue emotional distress.
Hawkins, the Republican House speaker, said the record numbers of Kansas abortions — the increase has been driven by bans or restrictions imposed in other states — was sufficient to warrant scrutiny of KDHE reporting on abortion. He also said the governor had no business suppressing reporting on abortion and criticized her for tapping into “irrational fears of offending the for-profit pro-abortion lobby.”
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Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International.
The preceding story was previously published by the Kansas Reflector and is republished with permission.
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The Kansas Reflector is a nonprofit news operation providing in-depth reporting, diverse opinions and daily coverage of state government and politics. This public service is free to readers and other news outlets. We are part of States Newsroom: the nation’s largest state-focused nonprofit news organization, with reporting from every capital.
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Kansas governor vetoes ban on health care for transgender youth
