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Sen. Merkley bullish on prospects for ENDA

Says he’s talked with Portman, sees committee vote in May or June

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Jeff Merkley, United States Senate, Oregon, Democratic Party, gay news, Washington Blade
Jeff Merkley, United States Senate, Oregon, Democratic Party, gay news, Washington Blade

Sen. Jeff Merkley (D-Ore.) talks about ENDA in an interview with the Washington Blade. (Washington Blade photo by Michael Key)

The lead sponsor of the Employment Non-Discrimination Act in the Senate is excited about the bill’s prospects upon reintroduction and anticipates committee action in May or June.

In an interview with the Washington Blade on Tuesday, Sen. Jeff Merkley (D-Ore.) talked about the future for ENDA, which he’s planning to introduce on Thursday. The bill is set to debut on the same day as the House version by gay Rep. Jared Polis (D-Colo.).

Merkley, who prior to being elected as U.S. senator was Oregon State House Speaker, said he’s “very excited” about leading the fight on ENDA for two reasons: it builds off the state LGBT non-discrimination legislation he helped usher into law in 2007, and it honors the legacy of the late Sen. Edward Kennedy, who previously championed ENDA.

“Part of the reason it’s exciting to me is I led the fight in Oregon for basic rights,” Merkley said. “It was a huge honor to have Sen. Kennedy ask me to carry the torch on this bill. And I want to fulfill the responsibility he gave me of getting the bill passed in the Senate. I think we’re going to be a lot of closer. We have a chance of getting this done, and getting it done this year.”

Merkley said he’s spoken with the Senate Health, Education, Labor & Pensions Committee Chair Tom Harkin (D-Iowa), who’s already pledged to have a panel vote on ENDA this year, and received assurances a markup would happen in the coming months.

“He was very publicly saying the moment he got the bill in his hands — as soon as it was introduced — that he wanted to move forward quickly,” Merkley said. “My understanding, to be confirmed obviously in conversations with him, is he’d like to have the markup in May or June.”

The Oregon senator affirmed the Senate version of the bill would have five original co-sponsors: himself, Harkin as well as lesbian Sen. Tammy Baldwin (D-Wis.) and Republican Sens. Susan Collins (Maine) and Mark Kirk (Ill.). On Friday, the legislation will be open to additional co-sponsors.

Merkley also confirmed that two areas that were previously under reconsideration with respect to ENDA — the religious exemption and no mention of disparate impact — would be unchanged upon reintroduction.

However, Merkley said ENDA would be different because other provisions were modified following conversations with stakeholders and with Republican partners.

Among the changes relates to shared facilities. The previous version of ENDA stated an employer wouldn’t be in violation of the law if it denied a transgender person access to dressing facilities in which being seen unclothed is unavoidable — provided that the company provides access to adequate facilities consistent with the employee’s gender identity. Merkley said the new version of ENDA won’t address the issue of shared facilities.

“We’re going to adopt the model that has been the dominant state model, which is simply not to have discussion on facilities in any of the sections of the bill, which is what the states have done and it’s worked very well,” Merkley said.

The Oregon senator is eager for a full Senate floor vote on ENDA once the bill is moved out of committee, saying, “I think it’s time for every senator to have to take a position on this.”

“We have senators who have been silent on where they stand,” Merkley said. “We have other senators who may have been recognizing they have been hesitant before, but really there’s a hugely compelling principle at stake here: that of equal opportunity to be a full participant in our economy. It’s only right and just that people not be discriminated against in employment.”

And Merkley was bullish about reaching the 60-vote threshold in the Senate to end a filibuster on the legislation in the wake of additional senators coming out in support of marriage equality.

“I think I was the ninth,” Merkley said. “Now there are over 50. That’s a huge transformation in four years. I can’t imagine that anyone who is supportive of marriage equality wouldn’t also fully be there on non-discrimination.”

All eyes will be one of those lawmakers in particular, Sen. Rob Portman (R-Ohio), who came out in favor of marriage equality after learning that his son is gay. Merkley said he’s spoken to Portman about ENDA, as well as other Republican senators, but wouldn’t divulge what the response was in these conversations.

“I’ve lobbied him and let him know I’m going to bring him back the details and work with him, and he acknowledged it,” Merkley said. “So, he’ll have to choose his own moment of what he says to the public.”

Asked whether ENDA stands a better chance at becoming law now than it did in the 112th Congress, Merkley replied, “Yes, society is way ahead of Congress. The attitudes in state after state are changing. Certainly the conversations regarding marriage equality have changed.”

As Merkley lobbies his colleagues on ENDA, the senator said he doesn’t think pressure from the White House would be useful to move forward with the legislation. Groups like Freedom to Work have been asking President Obama to call publicly for a floor vote and lobby senators on ENDA.

“I’m not sure that that’s helpful,” Merkley said. “We have the business community on board, we have commerce, we have the majority of Fortune 500 companies. I think people hearing from their home state businesses that have recognized that this is the right and good thing to do is a very powerful voice — home state interest groups as well.”

Still, Merkley said he continues to want to see administrative action against LGBT workplace discrimination in the form of an executive order barring it among federal contractors. The senator has been one of the leading lawmakers on Capitol Hill calling for the directive.

“I’ve been encouraging the administration to do what they can within their own world, which is of government contractors in employment discrimination among the contractors,” Merkley said. “I think discrimination is so abhorrent that it should be ended through any means available. I’ll keep encouraging them to do that, but maybe we can pass this bill and get it to the president and accomplish it for the entire working world at once.”

The White House continues to say in response to questions about the executive order that it prefers a legislative approach to address the issue of LGBT workplace discrimination. Merkley said he’s received no indications that the administration is reconsidering its position.

“My impression is they’re not moving quickly in that area,” Merkley said.

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Congress

Ritchie Torres says he is unlikely to run for NY governor

One poll showed gay Democratic congressman nearly tied with Kathy Hochul

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U.S. Rep. Ritchie Torres (D-N.Y.) (Washington Blade photo by Michael Key)

Gay Democratic Congressman Ritchie Torres of New York is unlikely to challenge New York Gov. Kathy Hochul (D) in the state’s next gubernatorial race, he said during an appearance Wednesday on MSNBC’s “Morning Joe.”

“I’m unlikely to run for governor,” he said. ““I feel like the assault that we’ve seen on the social safety net in the Bronx is so unprecedented. It’s so overwhelming that I’m going to keep my focus on Washington, D.C.”

Torres and Hochul were nearly tied in a poll this spring of likely Democratic voters in New York City, fueling speculation that the congressman might run. A Siena College poll, however, found Hochul leading with a wider margin.

Back in D.C., the congressman and his colleagues are unified in their opposition to President Donald Trump’s signature legislation, the “Big Beautiful Bill,” which heads back to the House after passing the Senate by one vote this week.

To pay for tax cuts that disproportionately advantage the ultra-wealthy and large corporations, the president and Congressional Republicans have proposed massive cuts to Medicaid and other social programs.

A provision in the Senate version of the bill that would have blocked the use of federal funds to reimburse medical care for transgender youth was blocked by the Senate Parliamentarian and ultimately struck from the legislation, reportedly after pressure from transgender U.S. Rep. Sarah McBride (D-Del.) and lesbian U.S. Sen. Tammy Baldwin (D-Wis.).

Torres on “Morning Joe” said, “The so-called Big Beautiful Bill represents a betrayal of the working people of America and nowhere more so than in the Bronx,” adding, “It’s going to destabilize every health care provider, every hospital.”

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Congress

House Democrats oppose Bessent’s removal of SOGI from discrimination complaint forms

Congressional Equality Caucus sharply criticized move

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Treasury Secretary Scott Bessent (Washington Blade photo by Michael Key)

A letter issued last week by a group of House Democrats objects to Treasury Secretary Scott Bessent’s removal of sexual orientation and gender identity as bases for sex discrimination complaints in several Equal Employment Opportunity forms.

Bessent, who is gay, is the highest ranking openly LGBTQ official in American history and the second out Cabinet member next to Pete Buttigieg, who served as transportation secretary during the Biden-Harris administration.

The signatories to the letter include a few out members of Congress, Congressional Equality Caucus chair and co-chairs Mark Takano (Calif.), Ritchie Torres (N.Y.), and Becca Balint (Vt.), along with U.S. Reps. Nikema Williams (Ga.), Hank Johnson (Ga.), Raja Krishnamoorthi (Ill.), Delia Ramirez (Ill.), Joyce Beatty (Ohio), Lloyd Doggett (Texas), Eleanor Holmes Norton (D.C.), Josh Gottheimer (N.J.), and Sylvia Garcia (D-Texas).

The letter explains the “critical role” played by the EEO given the strictures and limits on how federal employees can find recourse for unlawful workplace discrimination — namely, without the ability to file complaints directly with the Employment Opportunity Commission or otherwise engage with the agency unless the complainant “appeal[s] an agency’s decision following the agency’s investigation or request[s] a hearing before an administrative judge.”

“Your attempt to remove ‘gender identity’ and ‘sexual orientation’ as bases for sex discrimination complaints in numerous Equal Employment Opportunity (EEO) forms will create unnecessary hurdles to employees filing EEO complaints and undermine enforcement of federal employee’s nondiscrimination protections,” the members wrote in their letter.

They further explain the legal basis behind LGBTQ inclusive nondiscrimination protections for federal employees in the EEOC’s decisions in Macy v. Holder (2012) and Baldwin v. Foxx (2015) and the U.S. Supreme Court’s decision in Bostock v. Clayton County (2020).

“It appears that these changes may be an attempt by the department to dissuade employees from reporting gender identity and sexual orientation discrimination,” the lawmakers wrote. “Without forms clearly enumerating gender identity and sexual orientation as forms of sex discrimination, the average employee who experiences these forms of discrimination may see these forms and not realize that the discrimination they experienced was unlawful and something that they can report and seek recourse for.”

“A more alarming view would be that the department no longer plans to fulfill its legal obligations to investigate complaints of gender identity and sexual orientation and ensure its
employees are working in an environment free from these forms of discrimination,” they added.

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Congress

Senate parliamentarian orders removal of gender-affirming care ban from GOP reconciliation bill

GOP Senate Leader John Thune (S.D.) hoped to pass the bill by end-of-week

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(Washington Blade photo by Michael Key)

Restrictions on the use of federal funds for gender-affirming care will be stripped from the Republican-led Senate reconciliation bill, following a ruling by the Senate parliamentarian on Tuesday that struck down a number of health related provisions.

The legislation banned coverage for transgender medical care through Medicaid and the Children’s Health Insurance Program, language that was also included in the House version of the bill passed on May 22 with a vote of 215-214.

The parliamentarian’s decision also rejected Republican proposals for a Medicaid provider tax framework, which allows states to charge health care providers and use the funds to support their programs, along with broader cuts to Medicaid.

Amid calls to override Tuesday’s ruling from Republicans like U.S. Rep. Greg Steube (Fla.), GOP Senate Majority Leader John Thune (S.D.) told reporters “That would not be a good outcome for getting a bill done.”

He also acknowledged that the timing and schedule might have to be adjusted. Senate Republicans had hoped to pass the reconciliation bill by the end of this week, though this was not a legal or procedural deadline.

Dubbed the “one big, beautiful bill” by President Donald Trump, the legislation would extend tax breaks from 2017 that overwhelmingly benefit the wealthiest Americans and corporations. To cover the cost, which is estimated to exceed $4 trillion over 10 years, the bill would make drastic cuts to social welfare programs, particularly Medicaid.

Democrats are not in a position to negotiate across the aisle with Republicans holding majorities in both chambers of Congress, but for months they have been calling attention to the effort by their GOP colleagues to strip Americans of their health insurance to pay for the tax breaks.

The Congressional Budget Office estimates that 10.9 million people would lose their coverage, either through Medicaid or the Affordable Care Act marketplaces. Some Republicans like U.S. Sen. Josh Hawley (Mo.) are pushing back against the deep cuts to Medicaid, arguing they would be devastating for many of their constituents and also to hospitals, nursing homes, and community health care providers in rural areas.

In a statement emailed to the Washington Blade on Tuesday, U.S. Senate Democratic Whip Dick Durbin (Ill.) said, “Anti-trans extremists are attempting to use the full power of the government to hurt kids, and recent Supreme Court decisions in Skrmetti and Medina are enabling their quest.”

While today’s ruling by the Senate parliamentarian is a temporary win, I will keep pushing back on these shameful attempts to harm trans kids and their families for trying to live authentically,” said the senator, who also serves as ranking member of the powerful Senate Judiciary Committee.

U.S. Rep. Mark Takano (D-Calif.), who is gay and chairs the Congressional Equality Caucus, also shared a statement with the Washington Blade addressing the parliamentarian’s ruling:

“This ruling by the Senate Parliamentarian is a win for the transgender people who rely on Medicaid and CHIP to access the healthcare they need to live fuller, happier, and healthier lives—but the fight is not over yet,” the congressman said.

 “Republican Senators must abide by her ruling and remove the ban from the final version of Trump’s Big Ugly Bill,” he said. “Yet, even with this provision removed, this bill is terrible for the American people, including trans Americans. Every Equality Caucus member voted against it in the House and we’re ready to do so again if the Senate sends it back to the House.”

The Human Rights Campaign issued a press release with a statement from the organization’s vice president for government affairs, David Stacy:

“The fact remains that this bill belongs in the trash. It continues to include devastating cuts to health care programs — including Medicaid — that would disproportionately harm the LGBTQ+ community, all so the already rich can receive huge tax cuts,” Stacy said.

“While it comes as a relief that the Senate parliamentarian concluded that one provision in the nightmarish reconciliation bill that would have denied essential, best practice health care to transgender adults does not belong, we aren’t done fighting,” he said. “With attacks on our community coming from many directions, including the Supreme Court, we will work to defeat this bill with everything we’ve got.”


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