ENDA cometh

by on September 23, 2009  •  In Congress, ENDA, Transgender

The campaign to enact ENDA will begin anew at 10 a.m. today with a hearing before the House Committee on Education and Labor. The hearing will be in Room 2175 of the Rayburn House Office Building. If you inhabit the DC environs, get there early – there will probably be heavy demand for seats.  If that's not an option, the webcast should be available here, or check out Jillian Weiss's liveblogging. Witnesses will include Representatives Tammy Baldwin and Barney Frank; EEOC Acting Chair Stuart Ishimaru; Yale Law Professor Bill Eskridge; and Williams Institute Executive Director Brad Sears.

This year's version of ENDA is HR 3017. It prohibits gender identity as well as sexual orientation as a basis of discrimination. In other respects, it is essentially the same as the version of ENDA that passed the House two years ago (HR 3685).

No bill is perfect, and a number of problematic exceptions have been built into this legislation over the years in the effort to ensure its passage. Section 4(g) expressly limits ENDA's coverage to disparate treatment (facially discriminatory practices) and excludes disparate impact claims (claims based on facially neutral practices which have a discriminatory effect that disadvantages lgbt workers). Section 8(b) provides that ENDA shall not be construed to require any employer to give unmarried couples the same benefits offered to married couples; and Section 8(c) effectively limits the term "married" to heterosexual couples. Section 6 provides that any religious organization that is allowed to discriminate based on religion under Title VII can also discriminate based on sexual orientation or gender identity. 

With regard to dress and grooming codes, ENDA would allow employees to abide by the rules for whichever sex aligns with their gender identity [Section 8(a)5)].  In other words, a transwoman could comply with the dress or grooming code (if any) that applies to all women employees. The problems will come in cases like Jesperson v. Harrah's, 444 F.3d 1104 (9th Cir. 2006) (en banc), which upheld the firing of a (non trans-) woman who did not want to wear make-up at work. The Ninth Circuit found that the make-up requirement was reasonable, and that the requirements imposed on men and women were comparable (clean shaven rule for men, make-up rule for women). Although ENDA forbids discrimination based on "gender-related…appearance," the dress and grooming code carve-out would leave the holding of Jesperson undisturbed.  

Will ENDA finally pass? That question breaks down into two parts: will it pass the House, and will it pass the Senate?  Since essentially the same bill but for the inclusion of gender identity passed the (then more conservative) House two years ago, the outcome in the House will almost certainly turn entirely on the gender identity issue.

When it goes go to the House floor, the Republicans will probably have the opportunity to offer only one amendment (that's how the majority party runs things in the H of R). There is no way to predict whether the Rs will fashion their one shot at killing or crippling the bill around gender identity or around some other issue (like marriage or religion). If the Dems hold it together, the Rs' effort – whatever it is – will fall short. I'm betting that the good guys will win and that ENDA will pass the House intact (although don't press me for anything more than a gut instinct in support of that).

Then it's on to the Senate, where everything is iffier. No version of the bill has been put to a vote in that chamber for more than 10 years (long before gender identity language).  I doubt that there is yet a clear read on its chances of going through with gender identity protection intact. Given everything else the Senate has to deal with this fall, my main prediction is that ENDA won't come up for a full Senate vote until some time in 2010.

Whatever lies ahead, the action starts today.


One Response to ENDA cometh

  1. Jillian Weiss September 23, 2009 at 6:34 AM

    Thank you, Nan, for this as-usual insightful commentary. The only thing I would note is that it is still early in the legislative process, and things could look a lot worse in the Senate. My calculations show 58 likely yes votes, and 60 are needed at a bare minimum to overcome the likely filibuster. The Senate spreadsheet is here: link to bit.ly This is, of course, no guarantee of anything, and I note that we lost the Senate by one vote in 1996. If anyone wants to know who the Senators on the fences are, click here to email 18 crucial Senators: link to bit.ly

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