Federal Bill on Employment Non-Discrimination Moving Forward

The Washington Blade this morning has an interview of Rep. Barney Frank of Massachusetts discussing the planned re-introduction of ENDA, the Employment Non-Discrimination Act, next month. The article suggests that the new bill will include not only "sexual orientation" as a protected category, but that it would also include the "gender identity" provision that would protect employees from discrimination based on non-conformity to gendered stereotypes of identity and expression. In the last introduction of that bill in 2007, "gender identity" was originally included, but was later removed into a separate bill because it appeared to some in Congress that there was insufficient support for its inclusion. This move was very controversial within the LGBT community.

The section of the article discussing ENDA is available by clicking here.

In a hopeful sign, Congressman Frank said he expects congressional hearings on ENDA before the measure sees a vote because lawmakers must still be educated on the bill’s gender identity provisions. This suggests that Congressional Democrats are now more committed to the necessary education efforts than at the time of the last introduction. While hearings were held on the issue of "gender identity" last time, they were held only after "gender identity" protection was stripped from the bill.

The politics and legal interpretation of ENDA are very complex. I will write a series of articles over the next weeks and months to highlight specific issues crucial to an understanding of this bill. These issues include the following:

• How should gender identity be defined?
• Does "gender identity" language protect employees other than transgender people?
• What are the scope of the exemptions from coverage included in the bill?
• Who supports ENDA, and why?
• Who opposes ENDA, and why?
• What education do Members of Congress need?
• What should I tell my Congressperson?
• How will the relationship between transgender advocates and the wider LGBT advocacy community play out in this go-round?
• What has been the experience of organizations in jurisdictions with current gender identity protections?
• What types of issues have come up with transgender workers in the workplace?
• Is ENDA beneficial, detrimental, or neutral for the organizations that it covers?

ENDA is something that all human resources people should be aware of, whether pro or con. I hope to provide some useful contribution to that education.