October 03, 2007
New ENDA weaker than the old?
Posted by: Chris
As usual, Lambda Legal has managed to add substance to a messy controversy that has mostly featured petty grandstanding. I don't always agree with Lambda, but I appreciate how they stick to substance and usually contribute something real to the debate.
That's what they've done here on the debate over whether to remove transgender protections from the Employment Non-Discrimination Act. While the National Gay & Lesbian Task Force and the Human Rights Campaign are posturing, credit Lambda for taking the time to analyze the substance of ENDA, trans-inclusive and gay-exclusive.
The result of that analysis may have been a bit pre-determined by Lambda's position on ENDA, which mirrors that of the Task Force and other groups that demand transgender inclusion, but Lambda actually took the time to compare the legislation and came to interesting conclusions:
The recent version is not simply the old version with the transgender protections stripped out — but rather has modified the old version in several additional and troubling ways.
In addition to the missing vital protections for transgender people on the job, this new bill also leaves out a key element to protect any employee, including lesbians and gay men who may not conform to their employer's idea of how a man or woman should look and act. This is a huge loophole through which employers sued for sexual orientation discrimination can claim that their conduct was actually based on gender expression, a type of discrimination that the new bill does not prohibit.
This version of ENDA states without qualification that refusal by employers to extend health insurance benefits to the domestic partners of their employees that are provided only to married couples cannot be considered sexual orientation discrimination. The old version at least provided that states and local governments could require that employees be provided domestic partner health insurance when such benefits are provided to spouses.
In the previous version of ENDA the religious exemptions had some limitations. The new version has a blanket exemption under which, for example, hospitals or universities run by faith-based groups can fire or refuse to hire people they think might be gay or lesbian.
The last two points raised by Lambda Legal seem valid ones to me. Why allow federal law to override state and local laws that require employers to treat domestic partners the same as married couples? It seems counterproductive unless (again) it's politically necessary for passage.
I'm less concerned about the breadth of the religious exception. Anyone who goes to work for a company controlled by a religious group knows going in that there is a religious purpose behind the enterprise. Even so, it does seem worthwhile to revise ENDA so that again only employers or positions whose primarily purpose is religious are excluded.
The gist of the Lambda Legal analysis, however, is pinned on gay employees needing "gender identity" as a protected category because an employer charged with anti-gay bias can simply claim the real problem was the employee's failure to conform to gender norms Indeed, the term "gender identity" is described in the trans-inclusive ENDA as "the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth."
But as regular readers of this blog know, Title VII already protects employees of all sexual orientations and gender identities from discrimination because they don't live up to their employer's gender norms or stereotypes. Transgender employees have already taken advantage of this interpretation of existing federal law, but gay employees have been hit with the fact that federal law doesn't cover sexual orientation. So once again, it is gay employees, not transgender employees, who need ENDA more.
So while I don't buy Lambda's overall point that a trans-inclusive ENDA is necessary to protect gay workers, I do think Barney Frank and others should pay heed to Lambda's other concerns.
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