By Lisa Keen
WASHINGTON, D.C. – U.S. Rep. Barney Frank said Tuesday evening that House leadership has agreed to strategy on the ENDA bill to insert gender identity through an amendment to the bill once it reaches the floor of the House.
Early reaction to the plan was positive, in stark contrast to the trading of sharp barbs for the past week over Frank's strategy to split the Employment Non-Discrimination Act (ENDA) provisions on sexual orientation and gender identity into two separate bills.
Frank had the support of Speaker Nancy Pelosi on the two-bill strategy, but an increasingly large and vocal coalition of LGBT and civil rights groups, numbering more than 280, refused to give up.
But after an unprecedented two weeks of increasingly public debate and intra-community fighting over the strategy, members of the House Committee on Education and Labor met with Reps. Frank and Tammy Baldwin (D-Wisc.) and agreed that Baldwin would introduce an amendment to the sexual orientation bill once it reaches the floor.
Frank said ENDA still does not have enough support on the Committee to include gender identity protection when it comes out of Committee. But after Tuesday morning's caucus of committee members, he said, he was convinced the "best way to advance the cause of non-discrimination" was to attempt to amend the bill once it reaches the floor.
Mara Keisling, executive director of the National Center for Transgender Equality, said Tuesday evening that she had just received word about the new strategy and was "very excited" about the possibilities.
"We are 100 percent very excited and supportive of the Baldwin amendment," said Keisling. "We still greatly, greatly prefer an inclusive bill coming out of committee, however, we will be supporting the Baldwin amendment."
Offering the pro-active amendment to add gender identity to the bill, said Frank, has the added benefit of preventing Republicans from seeking a motion to recommit the bill to Committee in order to remove gender identity. Such a motion, said Frank, would essentially kill the bill for this session.
House Speaker Nancy Pelosi's office issued a statement late Friday evening saying the Committee on Education and Labor would proceed with consideration of a version of ENDA which includes only sexual orientation protection.
Subsequent statements from other parties involved in either supporting or opposing the legislation indicated that Pelosi's office expects the Committee to vote on the bill Thursday, Oct. 18, and then move to the floor of the House as early as Oct. 23.
The Oct. 12 statement from Pelosi's office, attributed to press secretary Drew Hammill, said "the Speaker is committed to passing a fully-inclusive bill once it is proven that the commitments to pass the legislation exist."
Keisling was among more than a dozen representatives of at least 10 LGBT groups who met with the staff of several House leaders Friday evening. The groups represented more than 280 groups which formed an unprecedented coalition to campaign against taking a vote on the ENDA bill with sexual orientation only.
The Coalition, called the United ENDA Coalition, argued that the bill with sexual orientation only (HR 3685) leaves out protections for transgender people and seriously diminishes protections for gay, lesbian, and bisexual people in the workplace.
Rep. Frank has held steadfastly to his strategy of seeking the anti-discrimination legislation through a two-bill strategy with sexual orientation only and with gender identity only in another. And both Frank and Pelosi have indicated they believe that strategy is the best chance for achieving such legislation.
Speaker Pelosi, in an interview with The Washington Blade, a gay newspaper in Washington, D.C., addressed criticism of the LGBT groups Friday evening, saying, "If we went into Congress saying 'all or nothing on all of our bills,' we might as well just go home, because it doesn't always happen all at once."
Following that meeting, in a statement issued Saturday, Keisling took the gloves off, calling the sexual orientation ENDA a "vanity bill" for the Human Rights Campaign and said it is one that "no one wants and no one thinks will become law." Keisling and others who oppose the two-bill strategy said that, even if the House passes the narrow version of ENDA, the Senate is not likely to approve it until next year at the earliest and President George Bush is likely to veto it. (President Bush has not issued any statement concerning ENDA but his administration has indicated he intends to veto hate crimes legislation passed last month, which also includes sexual orientation and gender identity.)
Keisling said Pelosi's office called for the meeting last Friday, but apparently had come to an agreement already with HRC that the transgender protections would be considered only after LGBT activists secured the votes.
HRC did not respond to a call for comment, but a statement posted on its website Oct. 15, said it had "collaborated with House Speaker Nancy Pelosi to craft a solution to the controversy surrounding the Employment Non-Discrimination Act." The solution, it said, was Pelosi's "unprecedented step" of "giving H.R. 2015, the fully-inclusive version of the bill, a floor vote in the House once enough support for it to pass has been secured."
HR 2015 is this year's original version of ENDA, which included both sexual orientation and gender identity. It is also a version which has a much narrower exemption for religious organizations and a requirement that employers respect state and local laws requiring that employees with domestic partners get equal benefits to employees with spouses.
Rep. Frank, one of only two openly gay members of Congress and a chief leader on gay civil rights legislation, took the unusual tack late last week of defending his strategy through a lengthy statement on the floor of the House, a press conference, and a memorandum. He expressed disappointment, frustration and anger over efforts by the coalition of LGBT organizations to "kill the bill" because it does not include protections for transgender people.
"We do not have the votes to pass the bill with transgender" protections, said Frank, in the press conference on Capitol Hill, which was piped telephonically to reporters with gay news organizations around the country. While there are those in the LGBT community who believe "we should kill the bill," said Frank, "I have a very profound difference of opinion."
Frank called the vote on the sexual orientation ENDA a "moment of truth" for the LGBT civil rights movement and for the Democratic Party. While it is responsible to work with everybody, said Frank, "you go forward" based on the reality of the situation.
"There are some people who can't handle the truth," said Frank, "and they should stop denouncing those who tell the truth."
The truth, according to Frank, is that a version of ENDA with gender identity does not have the votes to pass. He also said no version of the bill can pass without an expanded exemption for religious organizations and omission of a provision that seeks to require employers to honor local and state laws regarding equal benefits for domestic partners.
Frank also lashed out at groups insisting on inclusion of gender identity, saying they had failed to lobby sufficiently for that inclusion and had been simply "talking to each other."
While he agreed that President Bush is unlikely to sign any form of ENDA passed this year, he said voting on the measure now "puts [the bill] in better position" to pass in 2009, when many hope a Democrat will occupy the White House.
Frank issued another statement Tuesday saying that the LGBT community has agreed to incremental strategies on civil rights legislation before.
"[E]ven after sexual orientation became an issue," wrote Frank, "we have been passing civil rights acts prohibiting discrimination based on race, gender, age, disability, and ethnicity without including gay men or lesbians." For example, said Frank, he "along with virtually all of the gay and lesbian groups" opposed including sexual orientation in the Equal Rights Amendment "because it would have jeopardized the passage of the amendment."
But Chai Feldblum, a longtime attorney-activist for the LGBT community, says Frank's strategy is making concessions to opponents before it's necessary.
Feldblum was a key lobbyist for the Americans with Disabilities Act (ADA) of 1990, which provided protections for people with disabilities, including HIV infection. She said that the House version of the bill sought to exclude food handlers with HIV and other contagious diseases, but that the coalition of groups working on the bill stood firm against the effort. Feldblum then worked with the staff of a key senator who supported the bill, to craft an alternative amendment that excluded only those food handlers who had a contagious disease that could be transmitted by food handling, thus retaining full protection for people with HIV.
"The main tragedy going on now," said Feldblum, who has been working behind the scenes with groups seeking to retain gender identity in ENDA, "is that Barney Frank has unilaterally taken action forcing a decision [to make concessions on the legislation] long before we have to."
That criticism was echoed in an Oct. 11 from Rep. Tammy Baldwin (D-Wisc.), though she did not mention Frank by name.
"We know that opponents of workplace protections may offer any number of amendments designed to derail the bill, including, perhaps, an effort to remove protections based upon gender identity," said Baldwin. "I believe we must boldly face these challenges. Perhaps some of these hostile efforts will be successful. That should not deter our work. We must bring the strongest possible bill to the floor of the House for a vote. If our adversaries wish to erode protections in the bill, we must be prepared to face that challenge and make our case. However, I believe it is a mistake to concede defeat on any issue, before our opponents even raise it."
Keisling said the United ENDA Coalition would continue to lobby Committee members to include gender identity in the bill coming out of committee but left no doubt that she is happy about the strategy to attempt to add the gender identity language on the floor if necessary.
"People have never seen the LGBT community, the grassroots, mobilize like this before," said Keisling. "And I can tell you, the transgender community is feeling really, unequivocally welcomed now in the LGBT movement."
