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HISTORIC: SENATE PASSES ENDA

10 Republicans join 54 Dems to approve pro-LGBT bill for first time

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Tammy Baldwin, United States Senate, Employment Non-Discrimination Act, ENDA, Democratic Party, Jeff Merkley
Tammy Baldwin, gay news, Washington Blade, Employment Non-Discrimination Act, United States Senate, Democratic Party, Wisconsin, religious exemptions

Sen. Tammy Baldwin (D-Wis.) is among the supporters of the Employment Non-Discrimination Act (Washington Blade photo by Michael Key).

For the first time in history, the U.S. Senate approved with bipartisan support a long sought piece of legislation that would bar employers from discriminating against or firing workers based on their sexual orientation or gender identity.

By a vote of 64-32, the Employment Non-Discrimination Act passed the Senate, marking the first time that either chamber of Congress has passed a version of the bill with protections for transgender workers.

A total of 10 Republicans voted in favor of the bill: Sens. Orrin Hatch (R-Utah), Susan Collins (R-Maine), Mark Kirk (R-Ill.), Rob Portman (R-Ohio), Pat Toomey (R-Pa.), Dean Heller (R-Nev.), Kelly Ayotte (R-N.H.), John McCain (R-Ariz.), Jeff Flake (R-Ariz.) and Lisa Murkowski (R-Alaska). All 54 Democrats present voted in favor of the legislation.

The vote also marks a turnaround for the Senate. In 1996, a version of ENDA came to the floor as part of a deal to bring up the Defense of Marriage Act for a vote, but the pro-gay bill failed at that time.

Prior to the vote, Sen. Jeff Merkley (D-Ore.), ENDA’s chief sponsor, delivered a speech on the Senate floor recognizing the historic nature of the moment.

“I look forward to this vote, this vote for liberty, this vote for freedom, this vote for opportunity, this vote for a fair and just America,” Merkley said.

Merkley also recognized the “champions of liberty” he said helped move ENDA forward like lesbian Sen. Tammy Baldwin (D-Wis.), Sen. Tom Harkin (D-Iowa) and Republican senators who joined in support of the bill.

Senators approved ENDA after three days of debate on the legislation, which began on Monday morning. Many senators spoke out in favor of the legislation ranging from Democrats like Sens. Barbara Boxer (D-Calif.) and Sherrod Brown (D-Ohio) to Republicans like Sens. Susan Collins (R-Maine) and Kelly Ayotte (R-N.H.).

Sen. Al Franken (D-Minn.) invoked the LGBT non-discrimination law in Minnesota as evidence the country can enact a similar statute on a nationwide basis.

“We have had this law in place for over 20 years in Minnesota, and what has been the effect?” Franken said. “For LGBT Minnesotans, it has meant that they don’t have to live in fear of being fired, or discriminated against in hiring, just because of who they are or whom they love. That is a big deal.”

The only senator to speak out in opposition to the legislation was Sen. Dan Coats (R-Ind.). On Thursday morning, Coats said he couldn’t bring himself to support ENDA out of concern for religious liberties of employers — despite the exemption in the bill for religious institutions.

“I oppose discrimination of any kind, and that includes discrimination of individuals or institutions for their faith and values, which often gets lost and has been lost in this discussion,” Coats said. “So there’s two types of discrimination here we’re dealing with and one of those goes to the very fundamental right granted to every American through our Constitution, a cherished value of freedom of expression and religion. And I believe this bill diminishes that freedom.”

Flake, who initially expressed opposition to the bill over its transgender protections, said he ultimately voted “yes” on the bill “to protect the rights of individuals.” In 2007, Flake voted as a U.S. House member for a version of ENDA with sexual orientation-only protections.

“While I had concerns about expanding protections beyond those House provisions, after consideration, I believe supporting this bill is the right thing to do,” Flake said. “I am hopeful that the bill moves forward in a way that works for employers as well as employees.”

McCain issued a similar statement saying he voted in favor of ENDA because of his opposition to employment discrimination.

“I have always believed that workplace discrimination – whether based on religion, gender, race, national origin or sexual orientation – is inconsistent with the basic values that America holds dear,” McCain said. “With the addition of an amendment I co-sponsored with Senators Rob Portman and Kelly Ayotte strengthening protections for religious institutions, I am pleased to support this legislation.”

Advocates praise vote, look to House of Representatives, White House

LGBT advocates heaped praise on the Senate for passing ENDA as they turned their attention to the House of Representatives, where Republican control makes passage significantly more challenging, and the White House.

Chad Griffin, president of the Human Rights Campaign, said the Senate made history “by standing up for a fundamental American truth.”

“Each and every American worker should be judged based on the work they do, and never based on who they are,” Griffin said. “This broad Senate coalition has sent a vital message that civil rights legislation should never be tied up by partisan political games.”

Tico Almeida, president of Freedom to Work, commended the Senate for approving ENDA on a bi-partisan basis and said the House should take the same action.

“The Senate has taken a bi-partisan and historic step toward ensuring that gay and transgender Americans have the same workplace protections that give all Americans a fair shot to succeed on the job,” Almeida said. “Our fight now moves to the House of Representatives where Speaker Boehner and the Republican Conference will have to decide which side of history they want to stand on.”

Both Griffin and Almeida said President Obama should follow up on the Senate vote by issuing an executive order barring federal contractors from engaging in LGBT discrimination.

Griffin said the directive would send a clear signal against “in support of workplace fairness” in addition to a House vote.

“This order is not a silver bullet, and ENDA is vitally necessary after the order is signed,” Griffin said. “But the Human Rights Campaign has long argued that, by signing the order, President Obama can extend workplace protections to over 16 million American workers.”

Tony Perkins, president of the anti-gay Family Research Council, responded to Senate passage of ENDA with dismay.

“Americans should be free to disagree, but ENDA would lead to a form of reverse discrimination,” Perkins said. “Anyone who expresses or promotes a view of family or morality that can be interpreted to be a disapproval of homosexual or transgender conduct will be subject to retaliation and discrimination.”

Despite claims like these from social conservatives, LGBT advocates have insisted that the bill would do nothing more than prohibit employers from discriminating against LGBT employees.

Speaking with the Washington Blade prior to the vote, Merkley said the task now for ENDA supporters is taking the momentum from the Senate to “create an irresistible pressure” for consideration in the House.

“With no shred of an argument to sustaining this type of discrimination, and a strong bi-partisan vote in the Senate, I hope we can create the pressure in the House to act,” Merkley said.

Similar to prior claims made by Senate Majority Leader Harry Reid (D-Nev.), Merkley predicted that ENDA would pass the House if Republican leadership held a vote on the legislation.

“I do believe that if an up-or-down vote was held on what we would pass through the Senate that it would pass the House,” Merkley said. “If a majority of the House is ready to say ‘no’ to discrimination, it is wrong for the leadership to block that vote, and I hope that they’ll come to see that view and allow such a vote to happen.”

White House Press Secretary Jay Carney addressed the vote on Thursday during his routine news briefing taking place at the same time, saying passage of ENDA in the House would be the “right thing to do because we’re all equal.”

“To oppose this kind of legislation is to announce that you want to be left behind by history,” Carney said. “The necessity of making sure that every American has equal rights is fundamental to our history and to who we are. And that’s what this legislation represents. Some of the objections that I’ve heard from members in the House are reminiscent of objections that opponents of other civil rights legislation put forward. And they were wrong then and they’re wrong now.”

The vote on final passage took place about 45 minutes after the Senate invoked cloture by a vote of 64-34 to end debate on the legislation.

The Senate earlier held a cloture vote Monday on ENDA, but that vote was to begin debate on the legislation. A second cloture vote was necessary to end debate and proceed to final vote.

ENDA amendments debated

Two amendments were also discussed with respect to the legislation. One was adopted, the other was not.

On Thursday, the Senate defeated an amendment proposed by Sen. Pat Toomney (R-Pa.) that would have expanded the groups eligible under ENDA’s religious exemption. That amendment, which required 60 votes to pass, failed on a 43-55 vote.

Prior to the vote, Toomey said his measure was an attempt to “strike an appropriate balance,” saying he opposes discrimination against LGBT people, but “another important American value is freedom, and particularly religious freedom.”

But Harkin spoke out on the Senate floor against the Toomey amendment for going too far. Noting ENDA already has a religious exemption, Harkin said if the Toomey amendment were approved, “thousands of for-profit businesses” would be allowed to discriminate.

Baldwin also said the expansion of the religious exemption that Toomey proposed wasn’t the appropriate balance.

“A capable employee in a non-religious [institution] should not be fired, or not be hired, because of his or her employer’s individual religious beliefs,” Baldwin said.

Sen. Lindsey Graham (R-S.C.) initially cast a vote “no” vote in opposition to the amendment. But just before the vote was called, he rushed into the Senate chamber to inform the clerk he wanted to vote “yes” on the measure.

Notably, even though his amendment failed, Toomey voted “yes” in favor of ENDA during final passage.

On Wednesday, the Senate adopted with no controversy by voice vote an amendment to ENDA, introduced by Sens. Rob Portman (R-Ohio) and Kelly Ayotte (R-N.H.), to ensure that institutions that invoke the religious exemption under ENDA won’t face retaliation from state, local or federal governments. LGBT advocates didn’t oppose the measure because they said it would simply reinforce the status quo.

Speaking on the floor, Ayotte commended the Senate for adopting the amendment to ENDA, which she said enables her to come on board in support.

“I have long been a strong supporter of the rights of conscience, of the rights under the First Amendment of the Constitution to religious freedom, and these protections are very important within this bill,” Ayotte said.

Two other amendments that were filed — one proposed by Sens. Mitch McConnell (R-Ky.) and Rand Paul (R-Ky.) to attach a national right-to-work law to ENDA, another proposed by Sen. David Vitter (R-La.) that reportedly would have banned sex-selective abortions — didn’t come up for a vote.

Merkley said only the Portman and Toomey amendments were allowed to come up as a part of a unanimous consent agreement reached on Wednesday.

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Kansas

Kansas governor vetoes ban on health care for transgender youth

Republican lawmakers have vowed to override veto

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Democratic Gov. Laura Kelly vetoed two abortion bills and a measure criminalizing transgender health care for minors. House and Senate Republican leaders responded with promises to seek veto overrides when the full Legislature returned to Topeka on April 26. (Photo by Sherman Smith/Kansas Reflector)

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

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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Colorado

Five transgender, nonbinary ICE detainees allege mistreatment at Colo. detention center

Advocacy groups filed complaint with federal officials on April 9

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(Photo courtesy of GEO Group)

Five transgender and nonbinary people who are in U.S. Immigration and Customs Enforcement custody at a privately-run detention center in Colorado say they continue to suffer mistreatment.

The Rocky Mountain Immigrant Advocacy Network, the National Immigration Project and the American Immigration Council on April 9 filed a complaint with the Department of Homeland Security’s Offices for Civil Rights and Civil Liberties, Immigration Detention Ombudsman and Inspector General and ICE’s Office of Professional Responsibility on behalf of the detainees at the Aurora Contract Detention Facility near Denver.

Charlotte, one of the five complainants, says she spends up to 23 hours a day in her room. 

She says in the complaint that a psychiatrist has prescribed her medications for anxiety and depression, but “is in the dark about her actual diagnoses because they were not explained to her.” Myriah and Elsa allege they do not have regular access to hormones and other related health care.

Omar, who identifies as trans and nonbinary, in the complaint alleges they would “start hormone replacement therapy if they could be assured that they would not be placed in solitary confinement.” Other detainees in the complaint allege staff have also threatened to place them in isolation.

“They have been told repeatedly that, if they started therapy, they would be placed in ‘protective custody’ (solitary confinement) because the Aurora facility has no nonbinary or men’s transgender housing unit,” reads the complaint. “This is so, despite other trans men having been detained in Aurora in the past, so Omar is very likely receiving misinformation that is preventing them from accessing the treatment they require.”

Omar further alleges staffers told them upon their arrival that “they had to have a ‘boy part’ (meaning a penis) to be assigned to” the housing unit in which other trans people live. Other complainants say staff have also subjected them to degrading comments and other mistreatment because of their gender identity. 

“Victoria, Charlotte and Myriah are all apprehensive about a specific female guard who is assigned to the housing unit for transgender women at Aurora,” reads the complaint. “Victoria has experienced this guard peering at her through the glass on the door of her form. Charlotte, Myriah and the other women in her dorm experienced the same guard making fun of them after they complained that she had confiscated all of their personal hygiene products, like their toothbrushes and toothpaste, and replaced them with menstrual pads and tampons, which she knows they do not need.”

“She said something to them like, ‘If you were real women, you would need these things,'” reads the complaint. “The same guard told them that they had to ask her for their personal hygiene products when they wanted to use them, stripping them of their most basic agency.”

Victoria, who has been in ICE custody for more than two years, also says she does not have regular access to hormones. Victoria further claims poor food, lack of access to exercise and stress and anxiety because of her prolonged detention has caused has made her health deteriorate.

The GEO Group, a Florida-based company, operates the Aurora Contract Detention Facility.

Advocates for years have complained about the conditions for trans and nonbinary people in ICE custody and have demanded the agency release all of them.

Roxsana Hernández, a trans Honduran woman with HIV, on May 25, 2018, died in ICE custody in New Mexico. Her family in 2020 sued the federal government and the five private companies who were responsible for her care.

Johana “Joa” Medina Leon, a trans Salvadoran woman, on June 1, 2019, passed away at a Texas hospital four days after her release from ICE custody. Kelly González Aguilar, a trans Honduran woman, had been in ICE custody for more than two years until her release from the Aurora Contract Detention Center on July 14, 2020.

ICE spokesperson Steve Kotecki on Friday told the Blade there were 10 “self-identified transgender detainees” at the Aurora Contract Detention Center on April 11. The facility’s “transgendered units” can accommodate up to 87 trans detainees. 

A 2015 memorandum then-ICE Executive Associate Director of Enforcement and Removal Operations Thomas Homan signed requires personnel to allow trans detainees to identify themselves based on their gender identity on data forms. The directive, among other things, also contains guidelines for a “respectful, safe and secure environment” for trans detainees and requires detention facilities to provide them with access to hormone therapy and other trans-specific health care.

“U.S. Immigration and Customs Enforcement (ICE) is committed to ensuring that all those in its custody reside in safe, secure and humane environments,” said Kotecki. “ICE regularly reviews each case involving self-identified transgender noncitizens and determines on a case-by-case basis whether detention is warranted.”

The complaint, however, states this memo does not go far enough to protect trans and nonbinary detainees.

“ICE’s 2015 guidance has some significant flaws,” it reads. “It fails to provide meaningful remedies for policy violations. It does not acknowledge the challenges that nonbinary people face when imprisoned by ICE and the lack of such guidance explains why the needs of nonbinary people are largely misunderstood and unmet.”

“Further, the language used to describe people who are TNB is not inclusive and does not reflect terminology adopted by the community it is meant to describe,” adds the complaint. “Although this list is not exhaustive, it addresses some of the primary concerns voiced by the complaints.”

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Politics

First lady warns Trump is ‘dangerous to the LGBTQ community’ at HRC event

Jill Biden spoke in Arlington, Va., on Friday

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Human Rights Campaign President Kelley Robinson introduces the First Lady Dr. Jill Biden at the Human Rights Campaign's Equality in Action event on Friday, April 12, 2024 in Arlington, Va. (Kevin Wolf/AP Images for Human Rights Campaign)

Delivering a keynote address at the Human Rights Campaign’s Equality in Action event Friday, First lady Jill Biden warned former President Donald Trump is “a bully” who is “dangerous to the LGBTQ community.”

Her appearance at the three-day volunteer and board gathering at the Sheraton Pentagon City in Arlington, Va., comes as part of the Biden-Harris reelection campaign’s “Out for Biden” program, which aims to “mobilize LGBTQ+ voters, communities, and leaders across the country.”

“Today, this community is under attack,” Biden said. “Rights are being stripped away. freedoms are eroding. More and more state laws are being passed targeting this community. Just last month, we had to fend off more than 50 anti-gay amendments that Republicans tried to force into the government funding bill.”

“These were extreme measures aimed directly at this community — measures that would have limited health care and weakened protections for same sex couples,” she said. “And they served only one purpose to spread hate and fear.”

In a nod to her long career as an educator, Biden said, “History teaches us that our rights and freedoms don’t disappear overnight. They disappear slowly. Subtly. Silently.”

She continued, “A book ban. A court decision. A ‘Don’t Say Gay’ law. One group of people loses their rights and then another. And another. Until one day you wake up and no longer live in a democracy … This is our chapter of history and it’s up to us how it ends.”

Biden then highlighted some of the advancements for LGBTQ rights secured under the Biden-Harris administration.

“Thanks to President Biden, marriage equality is now the law of the land,” she said. “He ended the ban on gay and bisexual men donating blood. He’s made it possible for trans Americans to serve openly and honorably in our military. And he’s standing firmly against conversion therapy.”

“Yes, there are forces outside these walls that are trying to erase these hard fought gains, trying to unwind all the progress that we’ve made,” Biden said. “They want to take our victories away, but we won’t let them. Your president will not let them — I will not let them.”

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