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3 things to watch during the ENDA markup

Senate panel set to vote Wednesday on LGBT anti-bias job bill

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United States Senate, Democratic Party, Republican Party, Massachusetts, Iowa, Wisconsin, Alaska, Elizabeth Warren, Tom Harkin, Tammy Baldwin, Lisa Murkowski, gay news, Washington Blade
United States Senate, Democratic Party, Republican Party, Massachusetts, Iowa, Wisconsin, Alaska, Elizabeth Warren, Tom Harkin, Tammy Baldwin, Lisa Murkowski, gay news, Washington Blade

Sen. Elizabeth Warren (D-Mass.), Sen. Tom Harkin (D-Iowa), Sen. Tammy Baldwin (D-Wis.) and Sen. Lisa Murkowski (R-Alaska) are members of the Senate committee that will vote Wednesday on ENDA. (Photos public domain).

LGBT advocates will be watching a Senate committee Wednesday when it votes on long-sought legislation to protect LGBT workers from discrimination.

The Senate Health, Labor, Education & Pensions Committee will hold its markup Wednesday at 10 a.m. on the Employment Non-Discrimination Act. A successful vote would mark the first time a version of ENDA with transgender protections advanced in Congress.

Here are three things to watch for during the markup before the final vote:

1. What will Republicans do?

Given that all 12 Democrats on the committee ā€” in addition to one Republican, Sen. Mark Kirk (R-Ill.) ā€” are co-sponsors of ENDA, the legislation will almost assuredly be reported to the Senate floor regardless of Republican action if the final vote is on the bill as it was introduced.

Progressive advocates like lesbian Sen. Tammy Baldwin (D-Wis.) and Sen. Elizabeth Warren (D-Mass.) will almost certainly take the opportunity to weigh in on their first opportunity to vote on a bill entirely dedicated to LGBT issues since the start of the 113th Congress.

But support for ENDA from one Republican member of the committee during the markup ā€” Sen. Lisa Murkowski (R-Alaska) ā€” is seen as crucial for ENDA’s prospects for finding 60 votes to end an expected filibuster on the Senate floor.Ā It’ll be difficult for her to change her vote in the full Senate once her position becomes known based on her vote in committee.

Murkowski’s office didn’t respond to a request for comment on ENDA, but she’s known for being supportive of LGBT rights. Just before the Supreme Court rulings on the Defense of Marriage Act and California’s Proposition 8, Murkowski became the third sitting U.S. Senate Republican to come out in favor of marriage equality. She’s also voted for hate crimes protection legislation and “Don’t Ask, Don’t Tell” repeal.

One LGBT advocate, who spoke on condition of anonymity, said Murkowski staffers have said she voted in favor of the Anchorage LGBT non-discrimination ordinance that came before voters in the city last year and was voted down.

Michael Cole-Schwartz, an HRC spokesperson, said his organization is lobbying senators on both sides of the aisle as the Senate markup approaches.

“The first Senate mark-up of an inclusive ENDA is a tremendous step toward floor passage and HRC has been lobbying senators on the bill, Republicans and Democrats alike,” Cole-Schwartz said. “Our efforts include both meetings with staff and senators in Washington as well as generating grassroots support in targeted states around the country.”

Tico Almeida, president of Freedom to Work, said his organization has been lobbying Republicans on ENDA.

“Iā€™ve also asked Freedom to Workā€™s Republican Legislative Director, Christian Berle, to lobby any and every Republican member of Congress who will take our meeting to hear why ENDA is good for business and consistent with American values about hard work and success,” Almeida said.

Almeida declined to comment on which Republicans his organization has met with, but said there are more GOP members of Congress who’ll vote for a trans-inclusive ENDA than are commonly known.

But Almeida also gave credit to the American Unity Fund, a newly formed Republican LGBT group funded by Republican philanthropist Paul Singer, saying he’s “really impressed by their work on ENDA, and Iā€™m told thereā€™s much more to come.” That group didn’t respond to a request for comment.

The actions of GOP members during the markup are important because Republicans who oppose the legislation may take the opportunity to offer “poison pill” amendments that, if adopted, would make ENDA less palatable for final passage or limit its scope.

Sen. Lamar Alexander (R-Tenn.), the top Republican on the committee, may be the one to carry water for the Republican opposition to ENDA during the committee markup and during the vote on the Senate floor. In the previous Congress, Alexander earned a score of 15 out of 100 on HRC’s congressional scorecard.

Prior to the July 4 recess, Alexander was tight-lipped while speaking with the Washington Blade on Capitol Hill.

“I’m reviewing that now; I’m reviewing that now,” Alexander said.

Asked whether he’s leaning one way or the other on the legislation, Alexander said, “No. I’m still reviewing it. I’m working on immigration and that doesn’t come up until ā€” that’s about a month away.”

2. Will ENDA be updated following Supreme Court decisions on job bias?

As amendments are offered up to ENDA during the markup, technical changes will likely be made to the legislation in the aftermath of recent Supreme Court rulings related to employment discrimination.

One such ruling was in 2009 in the case of Gross v. FBL Financial Services, which raised the standard of proof for making a claim of age discrimination in the workplace based on the Age Discrimination in Employment Act.

The ruling was issued in such a way that, if the current version of ENDA were to become law, would also make allegations of LGBT workplace discrimination more difficult to pursue. The LGBT group Freedom to Work has called for a change in the wording of ENDA to ensure meritorious cases of LGBT workplace discrimination would succeed.

In a statement, Senate HELP Committee Chair Tom Harkin (D-Iowa) said he supports the idea of updating ENDA in accordance with other legislation he previously introduced known as the ProtectingĀ OlderĀ Workers Against Discrimination Act to address issues the Gross ruling created.

ā€œLast Congress, I introduced Ā a bill with Sen. Grassley to reverse the Supreme Courtā€™s decision inĀ Gross v. FBL Financial, and I intend to do so again soon,” Harkin said. “I believe the same standard of proof already applicable for plaintiffs alleging discrimination based on race, sex, national origin and religion should also apply to age and disability, as well as sexual orientation and gender identity.”

Another issue is whether ENDA will be updated in the wake of more recent Supreme Court rulings last month in the case of Vance v. Ball State University and the case ofĀ University of Texas Southwestern Medical Center v. Nassar.

In the Vance case, the court ruled thatĀ a person must be able to hire and fire someone to be considered a supervisor in discrimination lawsuits. In the Nassar case, the courtĀ limited how juries can decide retaliation lawsuits and said victims must prove employers only took action against them only for the intention to retaliate.

Writing the dissent in these rulings, Associate Justice Ruth Bader Ginsburg said the decisions dilute the strength of Title VII of the Civil Rights Act, adding the “ball is once again in Congressā€™ court to correct the error.”

Harkin’s office didn’t respond to a request for comment on whether the senator would support updating ENDA to ensure meritorious cases of LGBT workplace discrimination would succeed in the wake of those decisions.

Almeida predicted the committee would make technical changes to ENDA “to fix some loopholes and mistakes in ENDAā€™s current text”Ā in a way that would update it in the wake of these Supreme Court decisions.

“In fact, I imagine some Republican senators will want to see technical corrections to certain drafting mistakes that accidentally make ENDA slightly more liberal than it should be,” Almeida said. “I think these technical corrections will be non-controversial and will help us create a better, smarter ENDA that can pass the Senate with 60 or more votes this year.ā€

Matt McNally, a spokesperson for ENDA’s chief sponsor Sen. Jeff Merkley (D-Ore.), said in a statement to the Blade the senator is prepared to make changes that Harkin deems fit.

ā€œSen. MerkleyĀ supports the current bill and will be working with his colleagues on the HELP committee, under the leadership of chairman Harkin, on any potential changes to the bill during markup,” McNally said.

3. Will lawmakers narrow ENDA’s religious exemption?

Another issue to watch ā€” although the chances of any movement are unlikely ā€” is whether efforts to limit ENDA’s religious exemption will gain Ā traction. LGBT groups are divided on whether the provision should stay as it is, or be restricted to enable greater protection against anti-LGBT workplace discrimination.

Currently, ENDA has a religious exemption that provides leeway for religious organizations, like churches or religious schools, to discriminate against LGBT employees. That same leeway isn’t found under Title VII, which prohibits religious organizations from discriminating on the basis of race, gender or national origin.

Ian Thompson, legislative representative for the American Civil Liberties Union, said lawmakers should at least consider rethinking the idea of narrowing the religious exemption during the upcoming markup.

“What we have seen over the past several months is an increasing array of voices weighing in on the need to appropriately narrow ENDA’s sweeping religious exemption ā€” from prominent editorials in the Los Angeles Times and New York Times to the chairman emeritus of the NAACP, Julian Bond,” Thompson said. “As more pro-equality members of Congress understand the potential harms of the current exemption, I think there will be even more support for narrowing it. That foundation is being laid now.”

Immediately after the introduction of ENDA in April, the ACLU ā€” along with Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center ā€” made public a letter saying they have “grave concerns” about ENDA’s religious exemption.

Informed sources, speaking on condition of anonymity, have told the Washington Blade the ACLU proposed a change in language related to the religious exemption prior to the bill’s reintroduction at the beginning of the year, but Merkley rejected the proposal out of concern that Republicans would bolt from the bill.

In a statement to the Blade, Harkin indicated a lack of interest in restricting ENDA’s religious exemption by emphasizing he opposes discrimination against LGBT employees by secular employers.

ā€œI believe that ā€” as with all other anti-discrimination protections ā€” a capable employee working for a secular, non-religious organization, should not be fired, or not hired, because of his or her sexual orientation or gender identity,” Harkin said.

Voting in favor of narrowing the religious exemption would also be difficult for lesbian Sen. Tammy Baldwin (D-Wis.), who’s a member of the HELP committee, because as a U.S. House member in 2007 she voted in favor of the current religious exemption when it was offered up as an amendment on the floor.

Despite these calls to limit the religious exemption in ENDA, many prominent LGBT groups working on ENDA say they support the religious exemption as it stands. Among them is Freedom to Work’s Almeida, who noted many religious groups support ENDA because of the exemption.

“Some churches and religious organizations will choose discrimination and some churches will choose inclusion of all of Godā€™s children,” Almeida said. “ENDA does not force the choice of the federal government upon any church, and therefore ensures that ENDA will not be struck down someday by the U.S. Supreme Court for violating religious freedom.ā€

In a report dated June 11, 2012, the Center for American Progress also endorsed the religious exemption, saying it’s “politically” necessary for ENDA to advance and secure employment protections for LGBT Americans.

“At its core ENDA is about ensuring that all Americans can go to work in an environment free of discrimination,” the report states. “By including such a broad exemption for religious organizations, ENDA is also about protecting religious freedoms.”

One of the authors of the report is Jeff Krehely, who has since departed the Center for American Progress to join as vice president and chief foundation officer for the Human Rights Campaign.

Paul Guequierre, an HRC spokesperson, affirmed Krehely’s views on the religious exemption reflect the view of HRCĀ and said the National Center for Transgender Equality and the National Gay & Lesbian Task Force share that position. NCTE affirmed it supported the exemption.

Mark Daley, a Task Force spokesperson, said his group supports the bill but wants to see the religious exemption narrowed as ENDA progresses.

“The Task Force strongly supports S. 815 and will be working hard for its passage this year,” Daley said. “We also favor narrowing the religious exemption as ENDA moves towards becoming law. We will be working to get the votes needed to pass S. 815 in the 113th Congress.”

If the Senate does take action to limit the religious exemption, it might happen on the Senate floor. During an event hosted by the moderate group Third Way last week, Sen. Kirsten Gillibrand, who isn’t a member of the HELP committee, expressed support for the idea of removing ENDA’s religious exemption.

During the Q&A session, audience member Ellen Sturtz ā€” the lesbian activist affiliated with GetEQUAL who gained notoriety by confronting first lady Michelle Obama ā€” asked Gillibrand whether she’s willing to amend ENDA to remove the religious exemption.

The New York senator responded simply, “Oh, yes. Yes, I am.” Asked by the Blade to elaborate, Bethany Lesser, a Gillibrand spokesperson, said, “Sen. Merkley is leading the ENDA bill and Sen. Gillibrand will offer any help she can provide to help him pass it.”

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Congress

House passes spending bill as Greene threatens to oust Johnson

51 of 52 anti-LGBTQ riders were defeated

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Rep. Marjorie Taylor Greene (R-Ga.) speaks at a press conference on Sept. 20. (Washington Blade photo by Michael Key)

The U.S. House of Representatives averted a government shutdown on Friday with a vote of 286-134 to pass the $1.2 trillion spending bill, over the objections of hard-right members like U.S. Rep. Marjorie Taylor Greene (R-Ga.).

The congresswoman subsequently filed a motion to remove House Speaker Mike Johnson (R-La.), who is himself an ultraconservative legislator. The move marked the second time in six months that the party has called for a vote to oust their own leader.

ā€œToday I filed a motion to vacate after Speaker Johnson has betrayed our conference and broken our rules,ā€ said Greene, who refused to say whether she would call up the resolution to call for a snap vote, which likely means the matter will be delayed until after the two-week recess.

Greene and Johnson are at odds over the content of the minibus appropriations package, with the congresswoman calling it a “Chuck Schumer, Democrat-controlled bill” that does not contain conservative policy demands on matters like immigration and LGBTQ issues.

The speaker, meanwhile, proclaimed, ā€œHouse Republicans achieved conservative policy wins, rejected extreme Democrat proposals, and imposed substantial cuts while significantly strengthening national defense.ā€

With respect to anti-LGBTQ riders submitted by Republican members, more than 50 were ultimately stripped from the bill, which the Human Rights Campaign celebrated as “a victory,” crediting lawmakers for their “bipartisan, bicameral negotiations.”

Of the 52 anti-LGBTQ riders, only one survived in the $1.2 trillion package passed on Friday: A ban on flying Pride flags at U.S. embassies.

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Congress

Massive defeat for anti-trans, anti-LGBTQ riders in spending bill

Proposal has only one rider that would target community

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U.S. Capitol
U.S. Capitol (Washington Blade photo by Michael Key)

On Thursday, Congress unveiled the much-anticipated spending bill to avert a government shutdown. The bill, which includes funding for major government departments such as Health and Human Services and Education, featured fierce negotiations over conservative ā€œpolicy riders.ā€ 

These policy riders included bans on coverage for gender-affirming care, DEI bans, sports bans and more. Despite some indications that Democrats might compromise due to the sheer number of conservative policy riders, it appears those fears did not come to fruition. Democrats held firm in negotiations, and the most impactful anti-trans and anti-LGBTQ riders were nowhere to be found.

One policy rider proposed for the Food and Drug Administration would have defunded any hospital that ā€œdistributes, sells or otherwise uses drugs that disrupt the onset of puberty or sexual development for those under 18,ā€ a measure targeting not only transgender youth but also those experiencing precocious puberty. 

Another rider sought to bar any government funding toward ā€œsurgical procedures or hormone therapy for the purposes of gender-affirming careā€ in the Department of Health and Human Services. This move would have significantly impacted private and subsidized insurance in the Healthcare Marketplace. It also aimed to bar the enforcement of President Joe Bidenā€™s executive order titled ā€œPreventing and Combating Discrimination on the Basis of Gender Identity,ā€ which broadened anti-discrimination protections for trans individuals.

Additional riders included bans on funding for any organization thatĀ ā€œpromotes transgenderism,ā€Ā Title IX protections for trans youth, bans on legal challenges against states over anti-LGBTQ+ laws, book bans, DEI bans and more.

In total, over 40 riders were proposed and negotiated in the spending bills. None of these were found in the final bill.

Ultimately, the final spending bill released contained only a single anti-LGBTQ rider: A ban on Pride flags being raised or displayed above foreign embassies. The policy, while certainly qualifying as anti-LGBTQ and a regression to Trump-era policies, notably does not bar personal displays of Pride flags by embassy workers.

In the past, some embassies have gotten around such bans by not ā€œflying a flag over the embassyā€ but rather, painting portions of the embassy in rainbow colors or draping flags on the side of buildings.

News of the defeat of the most impactful anti-trans and anti-LGBTQ riders comes after a significant push from Equality Caucus Democrats and the Biden administration against the riders. ā€œAs you negotiate government funding for Fiscal Year 2024 (FY24), we write to strongly urge you to reject any attempts to include anti-LGBTQ+ provisions in any final FY24 funding agreement,ā€ said a letter signed by 163 representatives on behalf of the Congressional Equality Caucus to the Biden administration.

However, Republicans also pushed hard for their inclusion. In a shutdown threat issued Feb. 21 from the House Freedom Caucus, Republicans indicated that bans on gender affirming care and trans participation in sports were necessary to prevent a potential shutdown.

Previously, U.S. Dan Crenshaw (R-Texas) stated that such bans are the “hill we will die on.” In a report published by Axios, one Republican lawmaker stated, ā€œPeople are predicting a shutdown even if it’s just for a few days.ā€ Others concurred, citing gender affirming care riders as one of the potential reasons for such a shutdown.

Many anti-LGBTQ leaders in the Republican Party reacted negatively to the bill. U.S. Rep. Matt Gaetz (R-Fla.)Ā expressed angerĀ at funding for the New Jersey Garden State Equality in Education Fund, calling it ā€œforce feeding the LGBT agenda in schoolsā€ and stating that it enables ā€œgender mutilation surgeries in minors,ā€ ā€œbiological menā€ in womenā€™s bathrooms and trans participation in sports.

U.S. Rep. Marjorie Taylor Greene (R-Ga.) decried the lack of a DEI ban. U.S. Rep. Andrew Clyde (R-Ga.) stated that Republicans ā€œsurrenderedā€ to Democrats on hormone therapy. The House Freedom Caucus published a lengthy list of healthcare and equality centers that the budget would fund, urging the GOP to vote ā€œnoā€ and to shut down the government.

In a press release published by House Appropriations Democrats, they stated that the bill rejected over a hundred poison-pill riders, many of which targeted LGBTQ people. For example, the Labor-HHS-Education portion of the bill blocked provisions around gender affirming care, sports bans and nondiscrimination.

See the House Appropriations Democrats statement:

Press release, House Appropriations Democrats on Labor-HHS-Education

The bill must pass by Friday evening to avert a government shutdown, though the impacts of such a shutdown would likely not be felt until Monday. If passed, the bill would keep the government funded through September, at which point all of the riders could resurface during the peak of the 2024 presidential election.

However, for the next several months, LGBTQ riders will not pose a significant threat in a year where trans and queer individuals have faced attacks at historic levels.

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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.

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The preceding article was first published at Erin In The Morning and is republished with permission.

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Congress

Padilla, FCC introduce measure to improve 988 Suicide and Crisis Lifeline

HHS launched effort in 2022

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U.S. Sen. Alex Padilla (D-Calif.) (Screen capture: YouTube)

U.S. Sens. Alex Padilla (D-Calif.) and Thom Tillis (R-N.C.), joined by U.S. Rep. Tony CƔrdenas (D-Calif.), Federal Communications Commission Chairwoman Jessica Rosenworcel and U.S. Secretary of Health and Human Services Xavier Becerra, introduced a measure on Thursday to improve the 988 Suicide and Crisis Lifeline.

Calls are currently routed to mental health professionals and local public safety officials based on the caller’s area code ā€” even though, as the lawmakers and officials noted during their announcement ā€” in many cases, the area code, especially for cell phone numbers, does not match the location from which they are calling.

Under the new proposal, Padilla said, “We’re going to be in a position to be able to provide care as quickly and as safely as possible.”

“In the same way that 911 calls in the case of an emergency are routed to local providers, local first responders, so ambulances can come out and help quickly when you call 911, 988 should be tied to a caller’s location, not their area code,” he said.

Calling Padilla, Tillis, and CĆ”rdenas “great champions of mental health,” Rosenworcel noted, “that’s not our stock and trade” at the FCC.

“We are people who deal with technology and communications,” she said, “but we came to realize that we could work with Congress to make sure that everyone in this country who’s going through a crisis has someone to call and someone who can listen ā€” and that’s why in 2022, we set up 988, the easy-to-remember three digit number for anyone who is in crisis.”

A press release from Padilla’s office explains the details for how the update to the 988 Suicide and Crisis Lifeline will work:

“The Notice of Proposed Rulemaking (NPRM) announced today seeks to address the discrepancies and inefficiencies of the current system by proposing the adoption of a rule that would require a georouting solution to be implemented for all wireless calls to the 9-8-8 Lifeline while balancing the privacy needs of individuals in crisis. 

Georouting refers to technical solutions that enable calls to be directed based on the location of the caller without transmitting the callerā€™s precise location information.Ā These solutions would permit wireless calls to the 9-8-8 Lifeline to be directed to nearby crisis centers based on factors such as the cell tower that originated the call rather than the area code of the wireless device used to place the call.”

The 988 Suicide and Crisis Lifeline offers LGBTQ-affirming counseling, which is accessible by pressing three.

A 2023 survey by the Trevor Project, which included more than 28,000 LGBTQ participants aged 13-24, found that 41 percent had seriously considered suicide within the past year and 56 percent wanted ā€” but were unable to get ā€” mental health care within the last year.

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