The question on most people's minds about ENDA is: can it really pass?
The National Center for Transgender Equality, along with the Transgender Law Center, and the Coalition of State/City Transgender Advocacy Organizations, held a conference call last night on the status of ENDA, the Employment Non-Discrimination Act.
Those on the call learned that the legislators on the Hill have completed the weeks-long, extra-careful whipping process. (Whipping refers to asking Congressmembers how they will vote on a bill.) We learned that legislators are "comfortable" that there are well beyond a majority of votes to pass ENDA, right now. We learned that, specifically with regard to a potential motion to strip gender identity from the bill, there are enough votes to defeat that motion. We also learned that Congressmembers are getting calls and letters 2 to 1 in favor of ENDA.
After all of its ups and down, ENDA is ready to pass!
Here is a nifty new site that will give you one click-access to your legislators. Click here for one-click sending of an ENDA letter to your Congressmember and your Senators. Please send it to your friends on Facebook. I mean, how easy is this?
The word on the street is that ENDA will proceed like greased lightning, once it goes. Markup will be scheduled without much warning and it will go almost immediately to the House floor for a vote. ENDA has flown pretty much under the radar, and its proponents mean to keep it that way.
Here's what Mara Keisling, Executive Director of NCTE said on the call: "In my seven years working on LGBT issues, I have never seen an issue where the volume is in favor of the LGBT issue. We have in the past heard that it is a thousand to one against. Now, we are hearing that it is 2 to 1 in favor."
She also said "That will not last. Once the markup is announced, conservatives will start dumping form letters by the thousands."
How can we make sure that we keep up the pressure in favor of ENDA? Click here for one-click sending of an ENDA letter to your Congressmember and your Senators.
Concerns About Transgender Inclusion
One of the major concerns addressed during the call was the meaning of the following quote found in Sunday's Roll Call newspaper from Rep. Barney Frank meant: "...transgender people with "one set of genitals" would not be able to go to a bathroom for people with another set of genitals."
This raised fears by some transgender people that there would be some sort of requirement that employers do "genital checking" of transgender employees in order to use bathrooms.
Mara Keisling, the Executive Director of NCTE said that she had spoken to Rep. Frank's office about this issue.
Fortunately for HR managers everywhere, there will be no "genital checks" under ENDA.
While the exact language isn't known at this moment, we know approximately what it will say.
Here's what Ms. Keisling said:
Employees will not be allowed to sue about bathrooms, as long as not they are not making us use the wrong one. Or, if not letting us use the right one when occupied by other people, they have to make a reasonable accommodation, defined as following all federal, state and local rules about bathroom access, meaning they are safe and within a particular local area. Also the EEOC will create model policies for nondiscriminatory use of bathrooms.
The situation now is that they can make you use the wrong bathroom. They won't be able to do that any more. As far as using the right bathroom, they will have to let you if it is a single use bathroom. They can still do the stuff they do now, like putting up a closed sign while you use it, or using the unisex bathroom downstairs. ENDA will not cause anyone to lose any bathroom rights.
While no one currently knows what exact language will be put into the bill at markup, that will be the effect, according to Ms. Keisling. She suggested that may be done by simply including bathrooms in the current language in ENDA with regard to dressing rooms. That language currently says as follows:
Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee's gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.
The suggestion is that the word "bathroom" will simply be added to this language.
It's not ideal from the point of view of many transgender people, but it would improve the current legal situation of trans employees.
One Click Access to Your Legislators
Now is time for us to do our part in helping to pass ENDA. Click here for one-click sending of an ENDA letter to your Congressmember and your Senators.