This morning's meeting on ENDA was crucial to the bill's passage. Thankfully, the witnesses really knocked the ball out of the park; hard facts, touching stories, and legal implications were all handled in turn. Rep. Barney Frank's testimony and its final focus on transgender issues really says it all:
Let me just say to my colleagues -- there's nothing to be afraid of. These are our fellow human beings. They aren't asking you for anything other, in this bill, than the right to earn a living. Can't you give them that?
If you don't like them, if you don't want to be friends, I think you're missing out on something but that's your choice. But how can we, as the people who make the laws in this wonderful country, under our great constitution, say to one small group of our fellow citizens - "You know, there's something about you that some people don't like, so you are not eligible for work? You can be fired. You can't get a promotion." I cannot understand why anybody would want to say that to a group of our fellow citizens. And that's all that this bill does. Thank you.
You can read each witness's written statement here. A brief summary of every witnesses' testimony appears after the jump:
Chairman Miller began with his opening statements. He recounted the historical context of the bill: the 2007 ENDA, the resulting progress in congressional hearings, and the changes in leadership that made passing ENDA a possibility. He mentioned that a large number of private organizations have adopted inclusive anti-discrimination policies because it "helps the bottom line." His pullquote-worthy summary of the situation:
For 3 decades, GLBT Americans have waged a courageous campaign for their workplace rights. I regret that they had to wait so long for us to respond.
Ranking minority member Kline presented his party's opening statement. His comments were, unsurprisingly, in opposition to ENDA. His focus was twofold: one, that the inclusion of gender identity and perceived sexual orientation would result in an explosion of lawsuits; and two, that the religious exemptions presented in the bill are not strong enough. The first statement is unsurprising, as gender identity has long been attacked as a sort of "weakest link" in LGBTQ legislation. The second, however, is a lot of hot air, as our resident Dr. Jillian T. Weiss previously refuted. The bill's actual text is posted here:
SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.
This Act shall not apply to a corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Acts of 1964 pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a); 2000e-2(e)(2)).
William Eskridge, a faculty member at Yale, made a case for the federalization of anti-discrimination laws. He did so by referencing state-level agencies that have a history of discriminating against LGBT Americans on the basis that they were "engaged in moral and illegal activities," "treacherous and predatory," and "disruptive influences that would undermine public policy." He submitted into the public record a document outlining some state governments' attempts to purge LGBTQ staffers from state positions. He also talks about his own run-in with discrimination at the 3:20 mark:
Tammy Baldwin (D-WI) described her state's experience with non-discrimination laws. Notably, she mentioned the bipartisan support of the bill. She also mentioned some eye-popping statistics: 85% of Fortune 500 companies have protections based on sexual identity, 30% of LGBTQ Americans experience discrimination in the workplace, and 89% of respondents in a NYT poll oppose discrimination based on sexual orientation. Notably, she testified that ENDA does not afford special rights, but it affords basic rights to all Americans. (3:00)
Vandy Beth Glenn testified next. She was a closeted trans woman working for the state legislature in Georgia for two years. When she came out about her transition plans to friends and family, she found a supportive community. When she brought her concerns to her supervisor, she was told that "other people would think she was immoral" and that her transition was "unacceptable" and "inappropriate." She was then fired. It is notable that Vandy Beth Glenn is the first transgender woman to ever testify in a full congressional hearing. We can only hope the story touched some hearts. (Her discussion on her supervisor's reaction begins at the 1:40 mark.)
Steward Ishimaru testified on behalf of the EEOC. His written statement touched on the realities involved with discrimination complaints in ways that the current law doesn't outline. The resulting quote is certainly bumper-sticker worthy:
When our EEOC investigators hear complaints about sexual orientation discrimination or gender identity discrimination from members of the public to whom we serve, hoping to find justice, we usually we have to say "We can't help you; the law doesn't apply." (2:00)
Camille Olson testified as a neutral witness, gauging the impact of ENDA in future legal situations. The material is certainly worth reading, but is really too dense to be aptly summarized here. However, the report does feature - big surprise! - the bathroom question:
H.R. 3017 creates the following ambiguity and uncertainty:
Whether Title VII and ENDA will provide duplicate causes of action for sex
Whether disparate impact claims are available under ENDA;
Whether ENDA was intended to provide more robust remedies for
attorney's fees than those available under Title VII;
Determining what triggers an employer's affirmative obligations with
regard to shared facilities and application of its dressing and grooming
Whether "certain shared facilities" include restrooms; and
Whether employers are required to modify existing facilities
Craig Parshall, representing the National Religious Broadcasters Association, presented the only dissenting testimony. His written testimony assumes that religious organizations retain a right to discrimination and bigotry based on tradition and common law, and are reposted here soley for the purpose of education:
It is clear that some proponents of this form of legislation view Christian objectors to the creation of new "sexual orientation" and "gender identity" rights to be hypocritical and mean-spirited. In the 110th Congress, one witness, a Congressional Representative, noted that he had often listened to religious radio on that subject (styled "an act of self-torture") and was forced to indict Christian dissenters this way: "How can an American who claims to embrace God and uses that theology to then discriminate against another individual." Hearing Before the Subcommittee on Health, Employment, Labor and Pensions, Committee on Education and Labor, House of Representatives, September 5, 2007, Statement of Hon. Emanuel Cleaver, page 15-16.
The answer to that question lies at the very core of the concept of religious liberty. Neither the Congress nor the courts have jurisdiction over the religious beliefs of people of faith. Holding the faithful in contempt because they advance unpopular religious doctrines itself evidences a form of cultural discrimination. Christian ministries that object to those sexual preferences which are in clear violation of the standards of the Bible are standing on a long and well-worn road. Those doctrines are proscribed in both the Old and New Testaments and have endured for several thousand years. The rights to preach and practice those beliefs spring from a Bill of Rights that is two hundred and twenty years old, and in turn which reach back to hundreds of years of English common law. Against all of that comes H.R. 3017 and similar measures, which can claim to have newly-minted a set of sexual orientation and gender-identity privileges which, at most, are just a few decades old in their very recent cultural currency.
We Jews have historical sensitivities raised by the effort to ban job discrimination for we have been among the quintessential victims of group hatred, persecution, and discrimination in western civilization. We know all too well the impact of discrimination and second class citizenship, of what it is like to be denied opportunities for jobs or other benefits because of who we are. Even after the Enlightenment began and the promise of equality existed without laws to enforce it, we often were forced to hide our identity, keeping our Judaism in our private lives while remaining ambiguous about who we were in our public lives if we wished to find employment or advancement in the educational, social, political, or business arenas of our societies. So we feel a keen empathy for those who can still be victimized because of who they are, deprived of opportunities, jobs, or advancement because of their identity.
And then, about title XII:
There are still some who argue that including the Title VII exemption in ENDA would not go far enough. Most commonly, the reason given is that reasonable expressions of faith in the workplace will result in an onslaught of lawsuits by gay and lesbian employees who will claim that since the Bible condemns sexual relations between men, other employees who display Bibles or religious verses in their own work area will create a "hostile workplace."
The argument is deeply troubling on several grounds. First, as a rabbi, I can affirm that faith is not the express domain of straight Americans. There exists in the faith community many gay and lesbian people of devout belief, who attend church or synagogue or mosque each week, and who rely on their faith for purpose and meaning in their lives. To suggest that such individuals will be offended by seeing a Bible on a coworker's desk, for example, is absurd.
The final witness, Brad Sears, presented a study performed by the Williams Institute. The study showed a "widespread and persistent pattern of unconstitutional discrimination by state governments." Notably: one in five LGB public sector employees reported being discriminated against - the transgender number was 70% -- and that "13% of these workers experienced discriminatory treatment or harassment during the past year alone." His statement paints the bleak picture:
What is missing in all of these cases is any rational reason for the adverse employment action, whether or not the law provides a remedy. In none of these cases do employers assert that sexual orientation or gender identity impacts an employee's performance in the workplace. To the contrary, among the examples of public servants who have been discriminated against are a gay faculty member at Louisiana State University who had received a Distinguished Service Award; a transgender sheriff in Oregon who had received a commendation for delivering a baby on the side of a highway, and a lesbian social worker in Mississippi who was told she was one of the best employees at her center helping mentally disabled children.
The irrationality of the discrimination is also vividly indicated by the harassment that many of these workers have been subjected to. With my apologies, here is a very limited sense of what they are called in the workplace: an officer at a state correctional facility in New York, "pervert" and "homo;" a lab technician at a state hospital in Washington, a "dyke;" an employee of New Mexico's Juvenile Justice System, a "queer." The language that you can read in the report gets worse from there. What is also striking about these examples of workplace harassment is the degree to which the words are accompanied with physical violence. A gay employee of the Connecticut State Maintenance Department was tied up by his hands and feet; a firefighter in California had urine put in her mouthwash; a transgender corrections officer in New Hampshire was slammed into a concrete wall; and a transgender librarian at a college in Oklahoma had a flyer circulated about her that said God wanted her to die. When employees complain about this kind of harassment, they are often told that it is of their own making, and no action is taken.
How effective will these testimonies be in passing ENDA? Leave your thoughts in the comments.