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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Wednesday, October 17, 2007

Dramatic Twists and Turns of ENDA

In a sensational development in the topsy-turvy path of ENDA, the Emploment Non-Discrimination Act legislation that would prohibit employment discrimination based on sexual orientation and gender identity, UnitedENDA.org issued a dramatic statement yesterday evening. (UnitedENDA.org is a coalition of 300 GLBT organizations supporting an inclusive ENDA bill.)

Last week, I discussed my guesses regarding the strategic thinking of those who introduced the non-inclusive ENDA in ENDA: An Embarassment My guess about this new turn of events is that it means that the Democratic strategists have decided on a new strategy for ENDA. I don't think it was planned this way from the beginning, but it might have been.

According to the statement, Rep. Tammy Baldwin (D-WI) announced yesterday that she has secured an agreement from the Democratic leadership to introduce an amendment to H.R. 3685 that would restore gender identity protections to the Employment Non-Discrimination Act (ENDA). The amendment would be considered on the House floor next week, after the bill moves through the House Education and Labor Committee this Thursday.

For those of you not familiar with the issue, the past few weeks have seen a lot of activity in the legislative maneuvers regarding ENDA, the Employment Non-Discrimination Act. The bill, originally introduced into the U.S. House of Representatives as House Resolution 2015, included protection against discrimination based on both sexual orientation and gender identity. This bill had over 170 co-sponsors. After a whip count allegedly showed lagging support among Democrats for the gender identity/expression language, an alternative bill was introduced containing only sexual orientation, H.R. 3685. The House Education and Labor Committee is due to send ENDA to the House Floor on Thursday, and it can choose to send the inclusive bill or the non-inclusive bill.

If I were a Democratic strategist, I would slyly suggest to the House Education and Labor Committee that it forward the non-inclusive bill. This is the wrong way to go, of course, because it undermines the fairness message of ENDA and leaves out a lot of gay employees who are fired for gender non-conformity. Nonetheless, this strategy insures that a bill likely to win gets to the floor of the House. When the amendment is offered to add-in gender identity and expression, if the support is there, the bill will be amended to include it, and no harm done. The United ENDA organizations will be happy, and the bill is assured of passage. On the other hand, if the amendment is defeated, then the votes were not there for an inclusive ENDA anyway, but there is still a viable bill on the House floor, and no one can be tarred with the brush of anti-transgender sentiment (except Representative Frank and the members of the House Committee who vote for the non-inclusive ENDA).

It also means that UnitedENDA.org and its allies needs to keep working their fannies off, as they have been for years now, to educate members of Congress. When the amendment gets to a floor vote, the debate is going to be vicious, and those who are merely sympathetic, but don't know much about gender identity and expression, will be helpless to explain it to the rest of the Congress members. Someone should buy 435 copies of a good book on Transgender Workplace Diversity and send one to each member of Congress. Anyone know of a good book on the subject?

I would not suggest to anyone that this type of cynical thinking is good. It is not, because it puts desire to win above fairness and justice. However, it is the way some people think, and a lot of those people wind up in Washington. So, for what it is worth, there are my guesses about the way this will go.

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