By Lisa Keen
The Senate committee vote on the Employment Non-Discrimination Act July 10 brought a happy surprise in the form of yes votes from three Republicans, including a leading conservative from Utah, Orrin Hatch. It was an especial relief, given that the text of the bill this time includes protections for transgender people and nobody tried to amend those out.
The 15 to 7 committee vote in the Senate committee was a relatively low hurdle. The committee is dominated by Democrats.
The tougher barrier will be the full Senate. The chamber is dominated by Democrats, but Republicans have become highly motivated obstructionists. They threaten filibuster on everything these days, a strategy that, then, requires every piece of legislation to get 60 votes just to be considered on the floor.
And even if ENDA supporters do evade hostile amendments and stumble out of the Senate with a bill worth fighting for, the Republican-dominated House will almost certainly stand ready to do nothing, effectively killing the measure for this Congressional session.
In fact, ENDA is a noble but lost cause until either Democrats dominate both houses or Republicans morph into a kinder, gentler people.
Beyond those harsh facts, LGBT civil rights activists tried to accentuate the positive. The July 10 committee vote was the first time the Senate Health, Education, Labor and Pensions (HELP) Committee -or any Congressional committee — has approved a bill that includes both a prohibition against discrimination based on sexual orientation and one against discrimination based on gender identity.
Mara Keisling, executive director of the National Center for Transgender Equality, was “extremely heartened.” Picking up the votes of three Republicans -Hatch, Mark Kirk of Illinois, and Lisa Murkowski of Alaska–makes her feel more optimistic about gaining 60 votes to force a vote in the Senate.
Kirk is a co-sponsor of the bill. The Human Rights Campaign said it arranged for constituent contacts with Hatch (4,107 postcards, emails, and phone calls) and Murkowski (2,229). HRC also directed more than 5,000 to Republican committee member Richard Burr of North Carolina. Burr voted against the measure.
Hatch’s Senate office did not respond to a request for comment. It released three statements to the press on July 10, but none addressed Hatch’s vote on ENDA. But Hatch told the Salt Lake Tribune, “I oppose any form of discrimination, though I do draw the line on the definition of marriage.” The Tribune noted that, as a Mormon, Hatch was not in conflict with the church over his vote because the Mormon church has not taken a position on ENDA. Hatch also noted that the ENDA bill includes a much stronger religious exemption than did the last ENDA bill he voted against, in 1996. But Hatch and Murkowski also voiced some reservations about the bill.
A Murkowski press statement issued after the committee vote saying she wants to be sure that the bill does not “unduly burden” employers with compliance costs, “as well as striking the appropriate balance among legal remedies and redress.” She noted the bill also includes provisions “prohibit preferential treatment and quotas, do not permit disparate impact lawsuits, and provide a religious exemption.”
“Improvements might be in order in the form of floor amendments,” she added, “but discrimination should never be tolerated in the workplace.”
Senator Tom Harkin (D-Iowa) issued a statement noting that the July 10 vote was the first time the committee has voted on ENDA since 2002.
Keisling said the full Senate would likely take up the bill this fall. The Senate consists of 54 Democrats and Independents and 46 Republicans, at least until a special election is held to elect a senator to finish out the term of Democratic Senator Frank Lautenberg of New Jersey, who died in June.
According to Lambda Legal, “only 22 jurisdictions in the United States expressly ban discrimination in employment on the basis of sexual orientation and only 18 cover gender identity and expression explicitly.”