By Lisa Keen
U.S. Rep. Barney Frank re-introduced the Employment Non-Discrimination Act today, characterizing it as "winnable."
But the bill, which seeks to prohibit discrimination based on sexual orientation and gender identity by employers, is unlikely to move during the current Congressional session because the Republican Party controls the House.
The bill is typically assigned to the House Committee on Education and Labor, now chaired by Rep. John Kline, R-Minn. In 2009, during a committee hearing on the bill, Kline said his many concerns about the bill in previous years "have not been alleviated" by its recent rewrite.
Kline said then that ENDA "creates an entirely new protected class that is vaguely defined and often subjective." Specifically, he objected to the language of the bill prohibiting discrimination based on "perceived sexual orientation."
"Attempting to legislate individual perceptions is truly uncharted territory," Kline said, "and it does not take a legal scholar to recognize that such vaguely defined protections will lead to an explosion in litigation and inconsistent judicial decisions."
Kline also said he thought legislators should consider the "consequences" ENDA might have on "religious and family-based organizations."
A press person for Kline's committee office did not return a call by deadline Wednesday.
Supporters of the measure say it's important to have the bill in the Congressional hopper, as it provides a tool around which supporters can lobby legislators to support the measure in a future session.
Julie Edwards, a spokeswoman for Senator Jeff Merkley, D-Ore., said yesterday that Merkley is working with his fellow co-sponsors to prepare ENDA for re-introduction "in the next few weeks."
The Senate is still controlled by Democrats and the bill received a hearing in the last session. But it did not get a vote in committee.
The last time ENDA got a vote in the Senate was 1996, when it came within one vote of passage. The Senate was controlled then by Republicans.
A version of ENDA passed the House in 2007.
But in both the House and Senate vote, the version of ENDA on the floor was one that included only sexual orientation, not gender identity.
By 2009, the LGBT community of organizations stood firm and insisted that ENDA also include a prohibition on discrimination based on gender identity. And in 2009 and this year, ENDA does include both.
The Transgender Legal Defense and Education Fund issued a press release Wednesday, saying that 47 percent of transgender people surveyed reported being fired or denied a job because they are transgender.
The "gender identity" language would protect not just people who are transitioning from one sex to another, but also those whose outward appearance does not conform with common expectations for their gender.
A press release from Frank's office noted that there are no laws in 29 states to prohibit sexual orientation discrimination in employment and none in 38 states to prohibit gender identity discrimination.
Human Rights Campaign President Joe Solmonese issued a statement, pitching ENDA as a jobs bill, an appeal that would presumably attract more Republican support.
"Passing ENDA is a key element of making sure all Americans can get back to work and get our country moving again," said Solmonese.
Republicans have said publicly they want to focus on jobs.
But Republicans have also indicated they want broad exemptions for religious organizations, and that is something that does not set well for many supporters of ENDA.
