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No-Trans ENDA Passes
by Lisa Keen
2007-11-14

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In what could be argued was the most important gay vote ever taken in Congress, the U.S. House of Representatives voted 235 to 184 Nov. 7 to approve the Employment Non-Discrimination Act ( ENDA ) . Passage came after openly gay Rep. Barney Frank made an emotional plea to his colleagues.

'There are people who are your fellow citizens who are being discriminated against,' said Frank, his voice choking in a rare display of emotion. '….Please don't turn your back on them.'

The House erupted into applause.

Frank's appeal came after Republicans made an eleventh-hour attempt to kill the bill through a motion to send it back to committee. The specific type of 'motion to recommit' they sought—a motion to recommit promptly—would have held the bill in committee for nine calendar days. That, said Frank, would effectively kill the legislation for this session because Congress is scheduled to adjourn in five calendar days.

Frank, saying he was taking the vote 'personally,' pleaded with members of the House not to buy into what he called a political 'sham.'

His remarks also came just minutes after another emotional plea from the House's only other openly gay member, Rep. Tammy Baldwin of Wisconsin. Baldwin had led efforts in recent weeks to have 'gender identity' added to the legislation. Backed by more than 300 LGBT groups, Baldwin had sought the amendment as a way to provide protection for transgender people and as a way to strengthen the bill's protections for gay people. ( Some believe that, without 'gender identity' in the legislation, an employer can discriminate against a person for having the appearance or mannerisms of a gender other than their own. )

On the floor of the House Tuesday, Baldwin said that while she believed there was 'strong support' in the House for adding gender identity to the bill, she also expected it would 'fall short of adoption.'

'I have been asked why I pressed for and insisted on this amendment,' said Baldwin. 'I believe those who will be left behind by this bill deserve to hear on this House floor that you are not forgotten and our job will not be finished until you, too, share fully in the American dream.'

Baldwin said she would withdraw the amendment, then, added that she was doing so 'with a commitment to my colleagues and all Americans committed to equality of opportunity and ending discrimination that I will do everything within my power to make this measure whole again.'

The House erupted in applause.

Although it was never formally debated, Baldwin's amendment had been the focus of much of the five hours of debate Wednesday, as Republicans cried foul over a Rules Committee stipulation that Baldwin could introduce her amendment and withdraw it without first getting unanimous consent to do so.

Rep. Doc Hastings, R-Wash., said he was disappointed that the House was being denied the opportunity to have a 'full and fair debate' on the Baldwin Amendment. But Frank, ENDA's chief sponsor, came to the floor and teased Hastings for his 'eagerness' to discuss the plight of transgender people.

'I'm impressed by the sincerity of the gentleman from Washington on behalf of people who are transgender,' said Frank. He then chided Hastings for seeking to use debate on the amendment 'as a weapon with which to defeat the whole bill.'

After about an hour of discussion about the rules surrounding the Baldwin Amendment, Hastings made a motion to adjourn—a tactical move to buy time or to stall movement on a bill. That motion failed on a roll call vote of 164 to 254. Ultimately, the vote on whether to accept the rules governing consideration of the bill and its amendments was the closest vote of the day, with the rules being accepted on a 218 to 205 vote.

It was during debate on the rules that Republicans laid out their objections to ENDA, saying it would impinge upon the free exercise of religion, endanger the institution of marriage, and lead to endless litigation over such terms as 'perceived' sexual orientation.

ENDA prohibits discrimination in employment based on 'actual or perceived' sexual orientation. Rep. Ginny Brown-Waite, R-Fla., said she believed many Republicans, including herself, would support ENDA 'without the perception language in it.'

But most Republicans who spoke against the legislation claimed it would lead to situations in which Christian employees would be forbidden to have Bibles sitting on their desks. Rep. Roy Blunt, R-Mo., minority whip, said that if an employee chose to keep a Bible at his work station and a co-worker could see it, the co-worker might 'bring suit against you saying that the mere presence of religious symbols constitutes a hostile work place.'

Those speaking for ENDA were mostly Democrats, although at least two Republicans spoke in favor of the legislation—Reps. Deborah Pryce of Ohio and Mark Steven Kirk of Illinois.

Among the more impassioned remarks in support of the legislation came from African-American members, who likened efforts to protect gays from discrimination to the civil rights movement in the 1960s.

James Clyburn of South Carolina invoked the memory of Blacks being refused service at lunch counters in the South, and John Lewis of Georgia recalled the signs that designated different entrances for 'Whites' and 'Coloreds.'

'I, for one, fought too long and too hard to end discrimination based on race and color not to stand up against discrimination against our gay and lesbian brothers and sisters,' said Lewis. 'During the 1960s, we broke down those signs that said 'White' and 'Colored.' Call it what you may: to discriminate against someone because they're gay is wrong….

'Today,' he said, 'we have an opportunity to bring down more signs. Now is the time to do what is right, what is fair, what is just. The time is always right to do right. Let us pass this bill.'

In passing the bill, the House approved two amendments. One was a preemptive strike in anticipation of opponents' chief objections. It came from House Education and Labor Committee Chair George Miller, D-Calif., and Rep. Bart Stupak, D-Mich., and stipulated that the religious exemption allowed for in ENDA would be the same as the religious exemption allowed in the Civil Rights Act of 1964. It also stipulated that ENDA 'does not alter the Defense of Marriage Act ( DOMA ) in any way.' It passed on a vote of 412 to 25.

The second amendment, from one of ENDA's chief detractors—Rep. Mark Souder, R-Ind.—struck a paragraph which sought to prohibit employers from conditioning employment on a person being married or being eligible to be married.' Chairman Miller said he would not oppose the amendment because he believed it did not diminish an employee's ability to convince a jury an employer had violated the law by requiring marriage as a pretense for discriminating based on sexual orientation. That amendment passed on a vote of 325 to 101.

When the third amendment, Baldwin's, came up, Souder again raised objections by Republicans that Baldwin was being given an unprecedented privilege to withdraw her amendment without the unanimous consent of the House. Souder said the rule was being used as a political ploy to avoid having an embarrassing vote on the amendment about 'people who dress up as the opposite sex.' Souder attempted to undermine the rule by suddenly calling for a roll call vote on the amendment in the seconds before Baldwin was given the opportunity to say she was withdrawing it. Parliamentary procedure gives precedence to the call for a recorded vote. But Souder was overruled and the House moved on to give Republicans a chance to recommit the bill, as House rules also require.

Rep. Randy Forbes, R-Va., led the recommitment effort, saying it was necessary to 'ensure this bill does not become the building block that some may want to use to destroy the institution of marriage.' His motion sought to send the bill back to committee to add language saying nothing in the bill could be construed as redefining marriage for federal or state purposes beyond the definition of 'one man and one woman.'

That's when Frank stepped up to the podium and asked Forbes if he would allow the House to proceed to vote if Democrats accepted his language by unanimous consent. Forbes balked.

Frank said Forbes' refusal to accept the offer was a clear indication that Republicans were simply seeking to send the bill back to committee with the 'unmistakable intent to put this off until we are due to adjourn.'

'We say here that we don't take things personally and, usually, that's true,' said Frank. 'But the members, Mr. Speaker, will have to forgive me if I take it a little personally.' Frank said that he had been working for passage of the legislation for 35 years and that, because he holds a position of power, he is no longer threatened by employment discrimination.

'But I feel an obligation,' said Frank, his voice choking up, 'to the 15-year-olds dreading to go to school because of the torments, or the person who loses their job at the gas station because of who they love… and so I ask my colleagues here on a personal basis: Don't fall for this sham.

'There are people who are your fellow citizens who are being discriminated against….Please don't turn your back on them.'

The House again erupted into sustained applause. And then it voted 198 to 222 to reject the motion to recommit.

The House then moved quickly to vote on the merits of the overall legislation. The final tally was handed to Speaker Nancy Pelosi, who had herself spoke on behalf of the bill but had spent much of the session on the floor with her colleagues. With a big smile on her face, Pelosi announced the 235 to 184 tally, noting that the bill had passed. And the House again broke into sustained applause.

This is the first time the House had ever voted on the legislation to prohibit employment discrimination based on sexual orientation—legislation that was first introduced more than 30 years ago and which went through many permutations before reaching the floor tonight. It is the first time it had ever passed either chamber of Congress, but it was also a bittersweet victory because of the omission of gender identity.

'It was an historic first step toward a fully inclusive piece of legislation,' said Joe Solmonese, president of the Human Rights Campaign. 'We're in a good place to build on this historic victory and move towards a more inclusive piece of legislation.'

Mara Keisling, executive director of the National Center for Transgender Equality, called passage of the bill without gender identity 'one step backwards but a bunch of steps forward.'

'We're disappointed,' she said, 'but we're very excited about the support that trans people had in the LGBT community and in Congress. We're just looking forward to passing the real ENDA in 2009.'

Many political observers expect that, even if the Senate should pass ENDA during the 2007-08 session of Congress, the White House has already made clear that President Bush will likely veto it.

But Speaker Pelosi, in her remarks on the floor in support of the legislation, said that, while she shares the disappointment of those who want to include protections for transgender people, she was supporting the bill's passage now 'to build momentum for it' in the near future.


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