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Momentum Bolsters Workplace Discrimination Bill

In June, several lawmakers received a visit from Kristin Beck, a Florida native who, after serving for more than 20 years as a male U.S. Navy SEAL, recently revealed her identity as a transgender woman.

She was at the Capitol to talk about workplace discrimination among the lesbian, gay, bisexual and transgender community, specifically to lobby on behalf of the Employment Non-Discrimination Act, a bill that was dormant in the Senate for 17 years after being defeated on the floor by one vote in 1996.

“I do hope we can come to a conclusion to end this prejudice against this small part of America’s nation, because it really has a big impact,” Beck told Sen. Bill Nelson, D-Fla., and the chief counsel to Sen. Marco Rubio, R-Fla., along with several of the state’s House representatives.

Bolstered by the momentum of two Supreme Court victories, and on the heels of a year marked by a flurry of Republican lawmakers coming out in favor of gay marriage, Beck and the LGBT community are hoping for a similar triumph with ENDA. And it looks like their message is beginning to get through.

The Senate Health, Education, Labor and Pensions Committee cleared the bill (S 815)Wednesday on a bipartisan 15-7 vote, and Majority Leader Harry Reid, D-Nev., has said he intends to bring the legislation to the floor swiftly.

“I look forward to taking up the Employment Non-Discrimination Act soon, to prohibit such job discrimination across the nation,” Reid said in June.

The bill would prohibit employers from firing, refusing to hire or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity.

Such federal protections are already in place prohibiting discrimination based on race, religion, gender, national origin, age and disability. And while some states and cities have their own laws on the books — and more than 88 percent of Fortune 500 companies already extend workplace protections based on sexual orientation and 57 percent on the basis of gender identity — the LGBT community is not explicitly protected from workplace discrimination by any federal law.

According to a June 13 poll by the Pew Research Center, 21 percent of LGBT adults say they have been treated unfairly by an employer in hiring, pay or promotions. In addition to workplace discrimination, LGBT employees face wage disparities; studies show that the transgender population is disproportionately affected.

Indeed, a joint study by the National Gay and Lesbian Task Force and the National Center for Transgender Equality found that 26 percent of transgender people lost a job because they were transgender and 50 percent were harassed for being transgender.

Battling Misconceptions

Efforts to pass a non-discrimination law that protects LGBT workers dates back two decades to the 103rd Congress, when the then-Senate Labor and Human Resources Committee held the first hearing on the bill in 1994.

A version of the legislation has been introduced in every Congress except one since then, but it hasn’t gone much further than committee hearings. Although the House passed a bill in 2007 that stripped out protections for transgender workers, the measure later died in the Senate without action.

Perhaps nothing has hindered Congress from passing workplace discrimination legislation for LGBT employees more than the widespread misconception that such a law already exists.

“ENDA is a bill whose time is long overdue,” said Stacey Young, policy director of the National Gay and Lesbian Task Force. “The vast majority of Americans … erroneously believe these protections are already in place.”

In reality, only 21 states and the District of Columbia have laws prohibiting discrimination in employment based on sexual orientation, according to a June report by the Movement Advancement Project. Transgender workers facing workplace discrimination may seek federal legal recourse by filing a complaint with the Equal Employment Opportunity Commission, but only 16 states and the District of Columbia explicitly prohibit discrimination based on gender identity or expression.

“We have been intentional in explaining the need for ENDA to people who live in places where there are city-level protections, state-level protections or corporate protections,” Young said, noting that 45 percent of the U.S. population is covered by state, city or corporate laws that protect LGBT workers from discrimination. “They don’t necessarily think about what would happen if they moved and those protections that they took for granted evaporated.”

Another hurdle for the bill as currently drafted is the inclusion of language that prohibits discrimination against “perceived” sexual orientation or gender identity, and “gender identity” in general. Opponents have argued that it creates an entirely new protected class that is often subjective.

“Attempting to legislate individual perceptions is truly uncharted territory, 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,” said Rep. John Kline, R-Minn., the chairman of the Education and the Workforce Committee, during the last House hearing on the bill in 2009.

Religious and family-based organizations also oppose the bill over concerns that they may be forced to make hiring decisions not consistent with their faith and mission. While the legislation includes an exemption for those institutions, some still worry about how it would be applied.

Shifting Support

The bill is gaining momentum in the Senate. It currently has 53 co-sponsors, including two Republicans: Sens. Mark S. Kirk of Illinois, one of the original co-sponsors, and Susan Collins of Maine. GOP Sens. Lisa Murkowski of Alaska and Orrin G. Hatch of Utah support the legislation but are not co-sponsors. During Wednesday’s committee vote, Kirk, Murkowski and Hatch were the only Republicans voting in favor.

Kirk and Collins said they expect more Republicans to support the proposal when Reid brings it to the floor. “We have a growing number of supporters for this legislation,” Kirk said. “The time has now come.”

“I’m optimistic that the bill will pass and that there will be bipartisan support,” Collins said.

Indeed, the bill will need that additional support to break the 60-vote threshold to begin debate. Supporters say they are optimistic about garnering the extra support needed to break any filibuster, especially in light of the recent Supreme Court victories on two same-sex marriage cases.

“Most of the negativity about LGBT people in the right wing has been politically motivated,” contended Mara Keisling, executive director of the National Center for Transgender Equality. “Now that everyone understands that it’s a political loser, the reasonable folks on that side are coming over very quickly. Will we get all of them? No. Will we get most of them? Probably not this year, but eventually.”

Even if the bill passes the Senate, it’s not clear whether a path exists through the House. Reps. Jared Polis, D-Colo., and Ileana Ros-Lehtinen, R-Fla., have introduced a companion Employment Non-Discrimination Act (HR 1755) that has 177 co-sponsors, including three Republicans.

The bill would likely be a hard sell to the conservative House Republican Conference, especially with the language to prohibit employers from discriminating on the basis of “perceived” sexual orientation and “gender identity.” Still, supporters are optimistic about the progress they’ve made so far.

“We’re incredibly excited that we have reached this point and are really very, very keen on making sure that the momentum that we have garnered from the Supreme Court decisions evolves,” Young said. “It’s a very interesting moment in time, and I think we’re headed in the right direction. We’ve got what’s just and what’s right on our side.”

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