ENDA Update: Three More Ways “New ENDA” Fails

As the 150+ citizens groups gathered together as UnitedENDA continue to fight for
HR 2015, the fully inclusive employment nondiscrimination act,
vital information regarding the failings of the new bill, HR 3685,
is coming to light.

By now most of you know that the new bill no longer protects
transgender people within our LGBTQ community. Protections for
“gender identity” were specifically left out in the new bill.
But that’s not all that happened to the ENDA this community has
been working so hard to pass. According to Lambda Legal’s analysis of the new
*, three other vital provisions are vulnerable in

1. ENDA-2 does not protect people from discrimination based
on “gender nonconformity.”
In other words, it may be
unlawful under ENDA-2 to fire someone for being “gay” or
“lesbian,” but it will not be unlawful to fire that same person
for being “nelly” or “butch.”

2. ENDA-2 no longer claims that an employer’s refusal to
grant domestic partner health benefits to same-sex couples in a
situation where they otherwise offer health benefits to
opposite-sex spouses is discrimination.
This backpedaling
is based on marriage equality fears, not on the reality of what
constitutes employment discrimination. Benefits given to some
employees because their relationships fit “the norm” and not to
others is a form of discrimination that should rightly be covered
by any legitimate ENDA.

3. ENDA-2 gives in to religious-based discrimination by
granting a blanket exemption to groups that claim a religious
Religious exemptions should apply to
legitimate faith-based institutions, not private companies that are
run by religious zealots.

In other words, the issue of whether to support the original bill
or the eleventh-hour substitute does not hinge solely on whether
trans people are included or not. ENDA-2 is a watered down version
of the ENDA we’ve all been fighting for. In this community we
know we do not have many chances to pass legislation like the
Employment Nondiscrimination Act. If we push an ineffective bill
through now, we squander the opportunity to true achieve equality
in the workplace. Still, even if these other provisions had
remained intact, we would not support a bill that sacrifices unity
for the benefit of some. A trans-inclusive ENDA is the only ENDA we
want. For more information and opportunities to act, visit UnitedENDA.org.

*Note: Representative Barney Frank, who has championed ENDA for
years and who most recently made waves by authoring the new version
of ENDA, HR 3685, has
responded to Lamdba Legal’s criticism in a blog post on
. On a personal note, I highly respect Rep. Frank
and his outspoken efforts on behalf of the LGBTQ community. His
thoughtful criticism was taken into account in writing this post.
It should be noted, however, that Rep. Frank’s response to Lambda
Legal has more to do with whether it’s politically feasible to
include in ENDA the provisions discussed above, the provisions he
altered or left out of the new bill. While I recognize the need to
discuss political possibilities, I focused on Lambda Legal’s
analysis in this post because I wanted to share a legal perspective
on what the new bill does and doesn’t do, not whether it’s
possible to pass a bill that does or does not do those things.