January 27, 2010 at 3:36 pm EDT | by Lou Chibbaro Jr.
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.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

  • I’ve got an idea. Pass an inclusive ENDA and make the Republicans filibuster it. And pass Health Care Reform and make the Republicans filibuster it. And pass a jobs bill and make the Republicans filibuster it. And pass the end to DOMA and make the Republicans filibuster it. And end DADT and make the Republicans filibuster it. Stop whining about the filibuster bluster and PASS SOMETHING.

  • This dead horse keeps raising it’s head, Same musings continue concerning tg inclusion in ENDA. HRC still educating on what? How many ways can you say, TG’s are not some strange sub-species related to the GLB community? The same issue we faced in mid 90’s. Frank ‘still’ singing only (potty) song that separates outright discrimination with true issue. We work daily as police off/attyn’s/docs etc & haven’t heard of workers running “enmass” into Sts. of U.S. shouting “What is that in the bathroom?”

  • I’m tired of hiring this garbage about filibusters too. And the idea that the Dems won’t bring it up for a vote because they think it will get filibustered isn’t cutting it. Two of the Republicans in the senate, (Collins & Snowe) from Maine are supporting it, so the only reason it could fail would be a betrayal on the part of some Democrats, like my own senators Webb & Warner who may or may not support it. In any event, I agree that it must come up for a vote, because then we will truly know where they all stand on the issue and can feel free to desert any of the Dems who betray us. As for me and my partner, we won’t work for, give money to, or vote for any Democrat until they pass the Pro-LGBT legislation they promissed us. At the very least they can try and not give us this crap about not wanting to go ahead with it because there might be a filibuster.

  • If the Dems put it up and it gets voted down or can’t overcome a filibuster, at least we will know to whom to donate our money. If they don’t put it up for a vote, all the GOP operatives who, along with quite a few Dems who do not understand incremental progress, will keep telling gay people not to donate to the Dems or, worse, that the two parties are the same and stupid folks will believe them.

  • There’s no need to fold on this. Congress has several alternatives available. They can add general provisions to ENDA so that a wider range of lawmakers will support it. For example, they can strengthen protections for older people, veterans, or women; they can strengthen the Civil Rights Act of 1964 for all citizens, or add provisions against physical violence. This is why the Hate Crimes Act was successful: provisions for LGBT people, and also for many others. If they really care, they can use reconciliation, or tie ENDA to a budget in the House and Senate.

  • Don’t they just usually attach 6,000 bills to a war funding bill and then they all pass on a single vote because nobody has the balls to be “unpatriotic” or “soft on terror”? Throw some pork over in this direction.

  • The Dems have 59 votes in the Senate and we have 2 supportive GOPers, and yet the EDNA STILL won’t pass?!? Where is the Dem leadership on this? I’m continually disappointed by the Dems.

  • It is amazing to me the Democrats put their tail between their legs and run at the sign of a Filibuster by the Republicans. The last time I checked we need only 51 votes to pass a bill not 60. What happen to compromise and politics? The only conclusion I can come to is that they do not want to pass ENDA. They where and still are playing us for fools.

  • I just don’t see why the dems don’t pass ENDA without the provision for the transgender folks for now and then pass an ENDA version covering Gender Identity in the coming years when there’s more support for it. Take what you can get NOW!!!!!!!!!!!!!!!

    Just because we pass ENDA without a gender identity provision now doesn’t mean that we will stop fighting to include gender identity as a protected class in the very near future. It is just that the votes in the Senate aren’t there right now in 2010, but might be there at some point in the next 10 years especially as this country gets more educated and more aware of transgendered people.

    Let’s not throw the baby out with the bathwater here people!!!!!

  • Well GPP it’s thinking like yours that shows just how uninformed & bigoted people are when it comes to trans people. We fought very hard to get in the bill to begin with & our inclusion isn’t stopping it from being passed. That was already tried thanks to out lgb “friends” The same ole “will come back for you” BS is just thst..BS And trans people not only don’t have protection in the job place cuz your kind of thinking just keeps adding to our list of MURDERED trans people so soon won’t be many of us left!

  • Pass ENDA without gender protections and it might as well clearly state, “Discrimination against masculine but gay white men and some women is prohibited. All else are fair game.” Without gender protection lgb’s will still be discriminated against and the reason given will be based on gender expression not sexuality. But the same people will get fired, not rented to, etc..

    Like it or not, all LGBT are transgender. To be a transgender person is to live outside of our society’s expectations of 100% masculine or 100% feminine:

    –Wear the clothes of the opposite gender?
    You are trans.
    –Perform the social role of the opposite gender?
    You are trans.
    –Need the body of the opposite gender?
    You are trans.
    –Love or lust the same sex as the opposite gender?
    You. Are. Trans.

  • “They where and still are playing us for fools.”

    QFT. Democrats are no more committed to LGBT issues than Republicans are to smaller government. Both major parties are mystery cults; what they say to the masses and what they say among themselves are dramatically different.

  • Actually Anthony Barreto-Neto it does sound like the inclusion of the Gender Identity language is EXACTLY what is preventing otherwise supportive democratic senators from joining in support of ENDA this year. For your information, I am not a bigot. I would like to see gender identity as a a protected status in law, but the votes just aren’t there in the U.S. Senate here in 2010, but they might be at some point in the next 10 years.

    Oh, and by the way, I AM NOT RESPONSIBLE FOR TRANSGENDERED PEOPLE BEING KILLED. You’re not going to win any allies by insulting people with differing opinions as to how to go about achieving the SAME OBJECTIVES.

    I want to see gender identity covered in anti-discrimination employment laws as much as you do Anthony Barreto-Neto. But unlike you, I also want to see Sexual Orientation covered in anti-discrimination employment laws as soon as possible as well.

  • GPP is right. Because public understanding of transgender people lags behind public understanding of gay people, the transgender provisions–especially the restroom rules–are what is, unfortunately, rendering the bill unpassable in the Senate. None of this should be surprising. The problem has been the same in trying to enact gender-identity bills in several states lately. The political reality is that there aren’t 60 votes for the inclusive bill. The question is whether to pass the gay-only version or delay passage for, probably, years, if not a decade or more, because the Democrats won’t have this many seats in the Senate again for a while, and no one knows who will be in the White House to sign or veto a bill after 2012. This has always been the uncomfortable choice that our “leaders” have tried to pretend doesn’t exist.

  • I can’t believe there are lgb people dumb enough to support a version of ENDA without gender identity provisions. It’s a legal loophole that corporate lawyers will exploit mercilessly. ENDA without gender identity protections is a total fake and a scam.

  • Let’s pass what we can now.

    In most polls, over 80% of the American people support non-discrimination in employment and housing. Interestingly, many of the less politically-informed straight people I have met (in states without any laws protecting us) already thought such discrimination was illegal and were shocked to know that one could still be fired just for being gay in this country.

    Anything that reduces discrimination helps us all, even those not covered. Each time someone else comes out of the closet, more people are educated. It is easy to hate abstract groups but hard to hate people you already know and see everyday. Having a law also set the tone for other situations and helps make discrimination socially unacceptable.

    So find the compromises. Exempt religious organizations broadly if needed, or owner-operated businesses with fewer than 5 employees, or landlords living in their buildings — just get it done! If 90% of us are protected that is a BIG step forward from 0%.

    Let’s not the rights of 4% to 8% of the American population hostage to the 0.001% who want to argue about which restroom to use.

  • No doubt the liability that the Transgender present is part of the battle. I see friction from the medical community, insurance companies, Dept of Defense over decades of denial, and mostly religious bigotry. It is all about votes and money. We are not a valid entity into both re-election votes, or Wall Street revenue…. We are simply a liability. A liability to the LGB(t) community as well.

  • So let me try to understand this stupidity – people who are transgender should not be given the opportunity to work because some str8s don’t want to go to the bathroom with them? I suppose in some heteroidiotic way this would make sense in heterosupremacy land, but in the real world everyone has the right to earn a living without fear. These heteros have obviously gone completely potty.

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