Editors' Note: Guest blogger Tico Almeida is a civil rights litigator at the boutique law firm of Sanford Wittels & Heisler LLP, which was recently named by Law360 as the only plaintiff-side law firm on the 2010 list of the Top Five employment law practices in the United States. From 2007 to 2010, Mr. Almeida served as the lead counsel on the proposed Employment Non-Discrimination Act (ENDA) in the U.S. House of Representatives.
Tomorrow, Rep. Barney Frank (D-MA) and Rep. Ileana Ros-Lehtinen (R-FL) will introduce the bipartisan Employment Non-Discrimination Act (ENDA) of 2011. The bill prohibits most employers from discriminating against workers based on sexual orientation or gender identity. However, barring a civil rights miracle, ENDA will not pass during the current Congressional session. In the best case scenario, a re-elected President Barack Obama will sign a fully inclusive ENDA at a Rose Garden ceremony on a lovely spring day two years from now in 2013.
A two-year delay is sadly the best we can hope for, and only if we as the lesbian, gay, bisexual, and transgender community do better ENDA advocacy, and if countless numbers of federal elections go to pro-equality candidates (regardless of political party) in November 2012. Filibuster reform in the U.S. Senate would not hurt either. However, if many of those elections go the other way, we might be waiting until 2015, 2017 or possibly longer for ENDA's long-overdue enactment.
This is depressing because it did not have to be this way. ENDA had a small, but real chance to pass during the 111th Congress (2009-2011) that just ended with Democrats losing control of the U.S. House.
ENDA would have reached a majority of votes in the U.S. House of Representatives, and in the next step, ENDA possibly could have survived the procedural move called a Motion to Recommit that would have stripped transgender protections from the bill. That second vote in the House would have been quite close in either direction.
I also believe - though I admit it was less likely - that ENDA might have just barely reached a filibuster-proof 60 votes in the U.S. Senate. After all, 65 Senators voted in December to repeal the Don't Ask Don't Tell statute. It is at least plausible that 60 of those 65 Senators would have also voted to enact ENDA during the same December session.
But as we all know, none of that happened.
I had a front-row seat to most of this legislative process because of my position as ENDA's lead counsel in the U.S. House of Representatives, where I worked for three years as Labor Counsel for a longtime progressive leader named George Miller (D-CA). Until the Congress changed hands three months ago, Mr. Miller served as Chairman of the House Labor Committee, which has primary jurisdiction over ENDA. As Mr. Miller's committee staff, it was our job to shepherd ENDA through: 1) committee hearings; 2) committee mark-up; and 3) a final vote on the floor of the House of Representatives. Our ENDA committee hearing in September 2009 was fantastic, but unfortunately, the other two of three things never happened.
So with ENDA's reintroduction in Congress tomorrow, it strikes me as the right time to learn from the past, in order to strategize for the next few years of ENDA advocacy. To that end, I propose three concrete areas where we as an LGBT community need to do much better in order to increase our chances of successfully enacting a fully inclusive ENDA in 2013, as opposed to 2015, 2017 or even later:
- Address the trans-phobia among some staffers and members on Capitol Hill and let all LGBT Americans - especially transgender Americans - tell Congress and the American people their stories of workplace discrimination and harassment;
- Out-and-out brag openly about ENDA's broad religious exemption, in order to use that hugely popular and bi-partisan clause to sway the votes of moderate Republicans and conservative Democrats to our side on ENDA; and
- Work harder and smarter in what U.S. Supreme Court Justice Brandeis called the "laboratories of democracy" by passing more state-level ENDAs and litigating more state ENDA cases in state courts to demonstrate why a federal law is so badly needed.
I will cover one topic per day for the next three days, and I will conclude the series of Bilerico posts by offering some richly deserved praise for a number of individuals - on Capitol Hill and off - who worked smartly and tirelessly on behalf of a fully inclusive ENDA over the past several years. Their efforts are why we will - eventually - win.
1. Overcoming Fear of Transgender Americans on Capitol Hill
I am not going to list every awkwardly worded remark, or down-right ignorant comment, I heard various Capitol Hill staffers make about transgender people while I worked there for three years. Nor will I "name any names" of the individuals who said these things. But a general survey of what happened on Capitol Hill over the past few years is very much worthwhile.
During the two-year period from September 2007 to September 2009, my colleagues on the House Labor Committee held three separate ENDA hearings, and we called five separate transgender witnesses to testify. One of the three hearings was specifically focused on workplace discrimination against transgender Americans. We of course also called several gay and lesbian witnesses, and straight-allies too.
I had a significant role in selecting the witness list for two of the three ENDA hearings, and I made it a priority to invite transgender Americans to tell Congress their stories. I vividly remember sitting in the Counsel's Chair on the Committee Dais as Vandy Beth Glenn testified somberly about being fired on the same day she told her employer that she planned to transition from male to female. I watched as several members of Congress quietly teared up and shook their heads in sadness while listening to her speak.
After working on ENDA for three years in Congress, my most certain conclusion is that we will surely win this legislative battle if more victims of senseless workplace discrimination can tell their stories - to Congress, to the media, and to their neighbors and friends - and demonstrate to the American people that all they are seeking is a federal law that gives them an equal shot to hold down a job and build a happy life for themselves. ENDA is fundamental to the American dream.
Now, contrast what we accomplished on the House side with the work of the United States Senate. Our counterparts on the Senate Labor Committee have organized only one ENDA hearing in recent memory, and despite urging from various LGBT advocates, the Senate staffers refused to call a single transgender American to testify at that hearing.
I first heard about the Senate's proposed witness list a week or two before their ENDA hearing in November of 2009. I called a Senate committee staffer to ask if it was really true that no transgender witness would be among the seven people who would testify. That fact was confirmed.
I suggested politely that perhaps they would be smart to add another witness slot and invite Vandy Beth Glenn. That suggestion was declined. I proposed several other possible transgender witnesses. No interest. I calmly stated my belief that calling a transgender witness was both the right thing to do, and might avoid some controversy for the Senate Labor Committee. That did not go over well at all. The call ended and I went about my business.
Diego Sanchez from Rep. Barney Frank's office also called the Senate staffers to explain the importance of calling a transgender witness. Obviously that is a message that he delivers with significant gravitas, given that he is transgender himself. But it did not help. Next, it is my understanding that lobbyists from the Human Rights Campaign and the National Center for Transgender Equality also called Senate staffers to urge them to call a transgender witness at the upcoming ENDA hearing. This did not help either.
Eventually, Senator Jeff Merkley - ENDA's lead sponsor on the Senate side - realized there was a problem, and although he could not persuade the Senate Labor Committee staffers to call a transgender witness, or perhaps it was too late at that point, Merkley did hold a slapdash press conference the morning of the ENDA hearing and he did invite transgender individuals to speak there. He deserves credit for trying.
I should note here that to my knowledge, the decision to not call a transgender American to the Senate's ENDA hearing was made at the staff level, and not by Senator Tom Harkin of Iowa, who is a progressive champion and Chairman of the Senate Labor Committee. From what I know of Mr. Harkin and his commitment to advancing workplace justice, he would have insisted upon inviting a transgender witness to his hearing if he had known in advance there was a controversy.
The Senate hearing went really well in many ways. Thomas Perez, the Assistant Attorney General for Civil Rights at the Department of Justice, spoke passionately about confronting discrimination and called passage of ENDA "a top legislative priority for the Obama administration." Indeed, the Obama administration's recent moves regarding marriage equality will have the positive spillover effect of strengthening ENDA.
However, the controversy from the Senate ENDA hearing did not go unnoticed. According to the Advocate magazine, Mara Keisling, executive director of the National Center for Transgender Equality, expressed concern over the lack of a transgender witness at the Senate hearing. Diego Sanchez also expressed his disappointment to the media: "If the biggest piece of discussion about this bill is gender identity, then it's only logical that you would want to cast the light on the one part that people understand the least." He explained further that the problem with excluding transgender witnesses is that it sends a "signal that [transgender people] are disposable."
In fact, the decision to exclude transgender people from the witness list did send all the wrong signals. Over in the U.S. House of Representatives, some individuals surely concluded that if the Senate would not even call a transgender witness to a hearing, our colleagues in the higher chamber of Congress were highly unlikely to actually call a vote on a fully inclusive ENDA before the end of the session. In fact, during the 111th Congress, Speaker Nancy Pelosi successfully passed over 400 bills through the House that the Senate never considered. By late 2009, many House Democrats were getting scared about large losses in the 2010 mid-term elections, and they were sick of "walking the plank" by voting for progressive legislation that we all knew the Senate would never take up.
As we all know, beginning in late 2009, ENDA's movement was repeatedly delayed in the U.S. House. I stand by the need for the first delay of the mark-up in the House Labor Committee in November 2009 - which was intended to be for one month or two months tops - but I disagreed strongly with the later repeated delays throughout the spring and summer of 2010.
According to Chris Geidner at Metro Weekly, after the House finished with health care reform in March 2010, both Representatives Barney Frank and Tammy Baldwin were led to believe ENDA would move forward. It did not. All spring and summer, Mr. Frank lobbied doggedly to convince his House colleagues to bring ENDA to a vote. He deserves credit for his efforts.
But that is history. ENDA will be reintroduced tomorrow, and it is time to look forward. What can we reasonably hope to accomplish in Congress on ENDA in the next year?
Now that my old boss, George Miller, no longer chairs the House Labor Committee, we are not very likely to see any more House hearings on ENDA. However, Senator Tom Harkin still presides as the distinguished Chairman of the Senate Labor Committee. He can and should organize an ENDA hearing for the upcoming year. He can and should call one or more transgender Americans to testify at the hearing. I have the highest respect for Mr. Harkin, and I am willing to bet he will be on our side.
Come back to Bilerico Project tomorrow for part two of "Three Ways to Improve ENDA Advocacy."
Read the whole series
3 Ways to Improve ENDA Advocacy: Overcome Fear of Trans Americans
3 Ways to Improve ENDA Advocacy: Religious Exemptions
3 Ways to Improve ENDA Advocacy: Take the Fight to the States