November 7, 2007

Employment Non-Discrimination Act update – HR 3685 passes the House of Representatives 235-184

In a vote taken just after 6:00 pm, the House of Representatives voted 235-184 to pass the Employment Non-Discrimination Act, HR 3685. The bill provides workplace protections for sexual orientation, but not for gender identity. The Senate has yet to take up its version of ENDA. The White House has said that senior advisors will recommend to this president that he veto any law on this subject that Congress passes.

The bill was debated through the afternoon, positions for and against being largely along party lines, the Republicans opposing. Many speakers, including the Nancy Pelosi, Speaker of the House, spoke of how pained they were that they were considering a non-inclusive bill, and of their commitment to work to expand the protections to include gender identity. Those in opposition spoke often of the threat to marriage and freedom of religion the bill represented, as well as the "agenda" of those in favor of the bill to change these "basic tenets" of what it means to them to be an American.

There were three amendments proposed to the bill.

The first, the Miller-Stupak Amendment, proposed by the Chairman George Miller, D, California, of the House Education and Labor Committee responded to the issues raised earlier by those opposed to the bill by exempting schools, associations, and organizations from the provisions of ENDA if they are exempted under the existing Civil Rights Act, and further stated that no part of ENDA can be used in opposition to the Defense of Marriage Act. After debate, the amendment passed 193-11.

The second, the Souder Amendment, proposed by Rep Mark Souder, R, Indiana, struck paragraph 8.8.3 from the bill. That paragraph prohibited using marital status as a pretext to get round ENDA in order to fire or discipline an employee or discriminate in hiring or promotion actions. Chairman Miller pointed out that in Section 4 of the bill such an action was adequately prohibited and so he intended to vote for the amendment. After debate, the amendment was passed 325-101.

The third, the Baldwin Amendment, proposed by Rep Tammy Baldwin, D, Wisconsin, was read, spoken to by Baldwin and against by Rep Souder. Prior to a vote being called, Rep Baldwin withdrew her amendment, having said that she proposed an amendment that she knew would not pass because "those who are being left behind [by HR 3685] deserve to hear that they are not forgotten." She pledged to persist to expand workplace protections to include gender identity.

Prior to the vote on HR 3685, Rep Randy Forbes, R, Virginia, made a Motion to Recommit [the bill to committee] With Instructions to insert language that nothing in the bill can be used to overturn any state law that defines marriage as between a man and a woman and that nothing in ENDA can be used as a predicate in legal proceedings regarding marriage. Asked by Barney Frank if he would yield to consider his motion "Forthwith," Forbes said he would not. Frank then made an impassioned speech in opposition in which he said the intent was therefore clear. The rules for recommit would require a nine-day period to elapse, which would push ENDA past the start of the Thanksgiving recess. Frank said that one couldn't walk onto the floor and say you were in favor of discrimination, that you wanted to continue oppression, but you could put forward parliamentary trickery that got you what you wanted without having to stand up for it.

Voice vote was declared in favor of the Nays. Yeas and Nays were called for; the Motion was defeated 198-222.

Voice vote on the bill itself was declared in favor of the Yeas. Yeas and Nays were called for and HR 3685, non-inclusive, passed 235-184.

Dave Noble of United ENDA said of today's events, "Despite the fact that today's vote was not what we were pushing for, we all should be incredibly proud of the momentum we have built for gender identity protections within our own community, and within Congress. The last seven weeks have probably been the most fruitful weeks ever in terms of transgender education. That was evident as member after member spoke on the floor today about the importance of gender identity protections. I have been incredibly moved by how our community has come together, and I have the utmost confidence that by working together over the coming months, we will prevail in making sure that the bill that is introduced next Congress – when it might actually become law – is the bill our community deserves."

Below is the United ENDA statement sent to media:

United ENDA Responds to Today's Vote; Remains Committed to Passage of Fully-Inclusive Employment Non-Discrimination Act

Over the past 5 weeks, the more than 360 organizations that comprise United ENDA have affirmed with unwavering clarity that we are one community linked by our united support for civil rights protections for all lesbian, gay, bisexual and transgender people.

In a remarkable flurry of action from coast to coast, from small towns and major cities, the LGBT community has generated unprecedented contact with legislators and in the process has impacted future conversations and legislation.

While the passage in the House of Representatives today of this stripped down ENDA is deeply disappointing, we have seen a tremendous shift in the commitment of a growing number of legislators to only support an inclusive ENDA in the future when passage in the Senate and the signature of a new President make the enactment of comprehensive employment protections a possibility.

We remain frustrated and disappointed that an inferior bill was brought to the floor. The stripping away of gender identity not only abandons transgender people - the most vulnerable within the LGBT community - it ignores the reality that gender identity and expression are at the root of much anti-gay discrimination.

It is distressing that Representatives were put in the untenable position of either voting for a bill that is not supported by most of the community it's supposed to protect, or voting against a bill extending rights based on sexual orientation alone. We look forward to working with those members who voted yes on ENDA today, but who support a fully inclusive bill, to make sure they have an opportunity to vote on a fully-inclusive bill the next time ENDA comes up for a vote.

Despite the action taken today in the House, the United ENDA coalition continues to expand, and we intend to harness the passion, grassroots activism and local, state and national organization leadership. Collectively, we are committed to working with Congress towards the ultimate goal of passing a fully-inclusive ENDA. We also are committed to working with all the organizations in the Leadership Conference on Civil Rights, as the LGBT community needs the support of the entire civil rights community to make certain a fully-inclusive bill is introduced in the next Congress.