Dr. Jillian T. Weiss

Rumors of ENDA Slow-Down In The House

Filed By Dr. Jillian T. Weiss | November 11, 2009 12:00 PM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: 3017, employment discrimination, Employment Non-Discrimination Act, ENDA

Congressional offices are closed today for Veterans Day, so we can take a break from calling our Senators. As you know, we have been working on moving the Employment Non-Discrimination Act in the U.S. Senate, where the real fight is expected to take place. We are missing 4 votes in the Senate, but the House is considered by insiders to have a solid grip on ENDA.

If hints of rumors that I'm getting are good indicators, however, then their grip may be slipping, just a tiny bit. I have heard from D.C. insiders that some of the more conservative House Democrats are beginning to raise concerns about ENDA. The right-ward shift indicated by the New Jersey and Virginia gubernatorial races and the Maine vote makes them nervous, and they don't want to be forced to vote on controversial legislation. This crisis of confidence is not unexpected, of course, as the same thing happened in 2007. ENDA was considered to have very good chances of passage in 2007, but when crunch time came, first-term Democrats in conservative districts came forward to express their concerns. The device used to mollify them was the removal of gender identity protections from the bill, and the bill then sailed through the House.

Could the same thing happen again? Fortunately not. It would be impossible because Representatives Frank, Baldwin and Polis have emphatically stated that they would not permit that to happen.

Wait....just kidding....these are politicians we're talking about. Of course it could happen again, and from what I'm hearing, we're not moving in a good direction.

Am I misinterpreting? Read on, and you tell me.

What They Were Saying Before Yesterday

After the House hearing in September, I learned from various sources that the next steps were a Senate hearing, and markup in the House, followed by a vote in the House before Thanksgiving. DC insiders were very confident about the House vote, feeling that they would have at least 230 votes for ENDA. I myself was wondering, because I didn't see 230 votes, and was only able to get a read on 214 likely yes votes. I tried to confirm some of those I considered unconfirmed, but I was told that the problem was in the Senate, not the House. The Senate, the Senate, the Senate. Not the House, not the House, not the House.

The timelines I heard were loose, and contingent on health care reform, but the thinking was a Senate hearing the first week in November, and markup in the House the following week. The Senate vote would take place in the New Year, perhaps January or February. Of course, as we get closer to midterm election campaigns, it becomes less and less viable to be pushing controversial bills.

The Senate hearing followed this timeline, but it also raised some eyebrows. While I thought it was very effective in addressing objections of businesses and religious organizations, there were only three Senators in attendance other than the Chair of the Committee and the bill's sponsor. There was only one gay witness and no transgender witnesses. But the testimony of the witnesses was well done, and the performance of Senator Franken gave no quarter to the witnesses who were trying to obfuscate the issues. I was satisfied.

The next thing I heard after the hearing was that markup would take place in two weeks, instead of the following week. I was not surprised because health reform was rightly taking precedence as an issue of tremendous importance. Then came the vote in the House on Saturday night, and the health reform bill was passed. I was glad to hear of the passage, but not glad to hear of the Stupak amendment, which effectively banned any insurance companies from covering abortions. That is outrageous and goes far beyond the current Hyde Amendment, which restricts federal funding for abortions. The conservative Democrats were themselves surprised, I heard, to be able to throw their weight around so effectively. This emboldened them, of course, and changed the thinking in DC about the power of the conservaDems. It didn't help that the margin of passage in the House was 5 votes.

Now that health care reform had moved through the House, in whatever damaged form, we could proceed to ENDA, right? Not right.

What They're Saying Now

Yesterday, I read the following in the Blade:

Progress on ENDA, DP benefits expected

Action on other pro-LGBT legislation seems more imminent. Frank said Congress could advance the Employment Non-Discrimination Act and a bill providing partner benefits to LGBT federal employees in the near future.

And the prospects for passing the Domestic Partnership Benefits & Obligations Act, he said, are the most promising.

"That one I'm the most confident is going to become law because I think you have Senate support for it -- enough to get to the 60" votes needed to overcome a filibuster, Frank said.

Okay, so Rep. Frank is saying that another bill is more likely to pass than ENDA, the Domestic Partnership Benefits & Obligations Act. That bill would provide domestic partnership benefits to federal workers.

Wait, what just happened?

Why is the Domestic Partnership Benefits bill being mentioned in the same breath with ENDA, and not only in the same breath but as being more likely to pass than ENDA?

I have seen this happen before. Time and time again, bills on non-discrimination that would cover transgender people are loudly touted as "the next thing," an argument used to justify ignoring them in favor of other issues favored by more prominent gays, such as marriage, and domestic partnerships. After all, those more prominent gay people are not subjected to discrimination. They live in large, gay-friendly cities. They don't necessarily even know any one of their friends who have been subjected to blatant discrimination. Why get bent out of shape over ENDA? If conservaDems are concerned about ENDA, then no sense pushing it, right? We can always push something easier, like Domestic Partnership Benefits & Obligations Act that will affect only people in DC. That should be easy for the conservaDems to shrug off in their home districts,

You may wondering why I am being so trigger-hair sensitive. All that Representative Frank said is that the domestic partnership bill is doing well. Why should I get upset at that?

The Blade goes on to solidify these remarks.

DPB&O Noses Out ENDA

Here's the Blade again:

Frank, who's sponsoring ENDA in the House, said the bill is "in very good shape" and predicted the House Education & Labor Committee would mark up ENDA before year's end. He noted that a House floor vote is expected to occur no later than February.

February? Did he say House vote in February? Not...before Thanksgiving? Not...before the end of the year?

So wait, let me count....if the House vote takes place in February, and then proceeds to the Senate, which will need some time to do various procedural things before bring it to the Senate floor, that means that the Senate will be considering ENDA right around the time that midterm election campaigns begin.

That's a terrible time to ask the Senate to vote on this. If the conservaDems are nervous now, imagine how they will feel about taking a vote on homosexual rights and having it show up in bold on the news when people are focusing on the elections.

But wait, there's more.

"So I say," Frank said, "the schedule is the federal domestic partner benefits anytime in the next few months, ENDA out of the House in December or in February with the Senate voting in the spring, [and] 'Don't Ask, Don't Tell' part of the military authorization, which means into the summer."

So now, domestic partner benefits have jumped in front of ENDA? And they're going to try to do ENDA around the same time as DADT? How many sponsors does ENDA have in the House? 189. How many for DPBO? 127. ENDA is way ahead of DPBO.

If things happen this way, ENDA supporters are in a LOT of trouble. They have just put ENDA on an ice floe and sent it toward the Bering Straits.

But the Blade follows with words of comfort from Allison Herwitt, legislative director for the Human Rights Campaign.

Herwitt, however, said HRC remains hopeful that a House vote on ENDA could take place before year's end, and that House and Senate committee markups for the Domestic Partnership Benefits & Obligations Act could also happen by that time.

They're "hopeful." Translation: All we've got are hopes. Not facts.

Never one to mince words, Rep. Frank was more blunt.

Still, Frank said there's a question of whether advocates can find 60 votes in the Senate to overcome a filibuster on ENDA and the proposed "Don't Ask, Don't Tell" repeal.

Excuse me, Representative Frank. We've got 42 co-sponsors in the Senate, and 56 likely yes votes in the Senate, and another 8 possibles in the Senate. What have you got on DPBO in the Senate? 24 Co-sponsors. I'm not against DPBO by any means, but saying that it has better chances than ENDA is not based on any evidence I can see.

My DC insider friends are telling me to calm down, there are no indications of an ENDA slow-down. There's not need to panic yet, they say. Why are you going off the deep end?

My answer is 2007.

I will wait to see what I hear tomorrow. Rep. Frank has rightly said in the past that we should spend our time lobbying Representatives and Senators who need lobbying, who are on the fence about ENDA. I have agreed with him wholeheartedly. We have been doing just that.

But if Rep. Frank is going to start saying let's put DPBO in front of ENDA and tack ENDA near a DADT vote, and do it during midterm campaign elections, I say that Rep. Frank, respectfully, you need to rethink that. We may need to start calling you, Rep. Frank, and Rep. Pelosi too, with demands for moving ENDA forward.


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Congress simply has no spine. They fail to do the right thing over and over and over again. The American people are way ahead of Congress on this issue. No reasonable person wants to see someone lose their job because of who they are. ENDA needs to pass this month.

Jill, my nearly decade-long friend. (and for other people who might read this, I am NOT the person who talked to Jill about a deep end. I would find that comment disrespectful, and I like my friend Jill. She'd confirm that I didn't say that to her, that I only said that there's no delay on ENDA in the House.)

First, I'm taking a break from quiet reflection this afternoon usually dedicated to pray for Veterans including my Dad, who I lost 9 years ago on this very day, Nov. 11. I'm breaking to write to you and respond to your post to share what I know is true.

Shortest response: Calm down; listen up.

Shorter response: Keep working; don't worry. ENDA is not being displaced; FEDP is strategically near-located to it and has been since it was completed.

Short response: Maybe you didn't have months-old information, but I promise that leading DC advocate organizations with lobbyists and office-visitors did. Hence, the advice you're getting -- because you're surprised doesn't make it a surprise.


Little longer: Stay vigilant on your 'Legis of the Day' project, but don't mistake what might be new to your ears as 'new.' We've been touting and co-discussing Congresswoman Baldwin's important FEDP bill with ENDA since it was laid out for co-sponsors. And Federal Employees are not just in DC. They are across the US and probably in its territories.

Even more: Please keep telling people to focus on their state's US Senators, and on their district's US Rep. in the House, but mostly, as we working on the bill have said, the Senate.

Whoever the 'insider' is (and I am not curious about who it is), they are not inside the conversations on the bills if they're arming you with information that left out the critical role we've held for the FEDP bill (as soon as it was completed) alongside ENDA and the timing sequence and bill relationships. They're just not in the room or on the phone line, clearly.

Even my Twitter and Facebook entries will back up mentioning both. I think that you can check them. It's no surprise, and Googling for stories with Congressman Frank talking about bill sequence and topics will bear that out, too.

My Tweets and FB updates followed exactly what Reps. Baldwin and Frank planned, along with Rep. Polis as Co-Chairs of the LGBT Equality Caucus. Our staff briefings back that up. It's no surprise that work to secure votes for those two LGBT civil rights bills is unified. At least it's no surprise to we who are working these bills, inside of Congress and in the lead organizations at our side, also working to secure support for our rights.

I don't work in the Senate, but we have had joint ENDA Member and staff AND Member/Staff/Advocate meetings with House and Senate together. I've never been told to plan for or expect a Senate vote in Jan or Feb. It's always been expected to be later next year.

Congressman Frank addressed the National Gay & Lesbian (GLBT) Chamber of Commerce's LGBT Business Leaders & Allies Reception on Thurs. Nov. 5 and the Maryland GLBT Chamber of Commerce's inaugural breakfast on Tues. Nov. 10 (yesterday) and repeated the same sequencing that he has in news reports of past months. I said the same thing on Nov. 5 to the NGLCC's Executive Committee when I briefed them on the sequencing of bills. It's what my colleagues and our bosses have said to anyone who asks us the question.

Congressman Frank told a reporter that he expects a vote in the House on ENDA no later than Feb., and it means just that -- no later than. As soon as healthcare reform was deemed to be consolidated into a lump bill per chamber, he said then that it would come first. It did. He said that ENDA and FEDP would be next. They are.

Even with healthcare reform on the front burner (and I am the staffer for both healthcare and ENDA), we held a great House hearing followed by a great Senate hearing. Both were successful, productive and done.

The House hearing had to wait for that incredible study by The WIlliams Institute to be completed. The Senate hearing had to follow the one in the House. The Williams Institute data documented discrimination and was used in oral and written testimony in both the House and Senate hearings. It added strength.

Next is the House markup for H.R. 3017 (ENDA). It's coming soon, as promised. Since healthcare surfaced, our leading Members have said it would occur in late November or early December. We're not at either of those calendar markers yet. It's coming soon, as of this very moment.

My dear friend Diego:

First let me say I am sorry to hear of your loss, and thank you for taking the time on such a day to respond to my concerns. You are a dear friend and a staunch advocate for our community and thank you for your tireless work on our behalf.

You say that domestic partner benefits have been long discussed and that is true. But they have not been discussed in the context of taking precedence over ENDA. That's new.

You also say you've never expected a Senate vote in Jan or Feb. You say it's always been expected to be later next year. But our community activists and media had been led to expect a markup in September followed by a vote in October. Then we were told a House vote by December. Some expected a Senate vote by December, too. A House vote in February or later is something completely new.

In August and September, HRC and the Blade were told there would be a markup in September followed by a vote in October. I'm not making this up. See http://bit.ly/dLKJf and http://bit.ly/4DZkC6 It's there in black and white.

Rep. Frank specifically said there would be House vote by December. Reps. Baldwin and Polis also thought it would pass the House and Senate by December. See http://bit.ly/3uiGkv

I am surprised to hear you suggest that the vote was always supposed to be in February. Not so, as pointed out above. It was expected first in October, and then in December. February or later is a new idea.

So I am calm, I am listening, I am appreciative of your advice. But I am still capable of reading the newspaper and seeing that the schedule has changed.


I'm listening, but I'm also reading between the lines.

Diego, from the outside, it seems as if we've seen this pattern before.

Assuming that Trans are stripped out again; and it never gets passed in the Senate; again; and the Dems take a clubbing in the mid-terms, so passage for the rest of the presidential term is impossible; again....

Just assuming... what would you do? I man, personally? Knowing that you've been led up the garden path by experts at it?

Heck, I'm Australian, and we've had ENDA-like protections for years now, but "calm" is something I'm not.

I lost one friend to suicide after 2007, when she lost her livelihood, and then lost hope with the ENDA debacle.

There's no others I know this year who are vulnerable, but they exist. You know we're talking life-or-death here for some Trans people.

Diego, you I trust implicitly, the Democratic Congressional leadership, not so much.

Personally, I share Jill's concerns, especially in the light of the way we were kept in the dark about what was really going on in '07 until the very last minute.

Your confidence in the process makes me feel better, but I'd be lying if I said I felt completely confident. There was a transperson in a position to be "in the know" last time, and we now know that she was proactively avoided and kept out of the loop until it was too late.

Diego, I hope you're right and all goes as we hope. That said, as far as I'm concerned these people still have a long way to go to earn our trust after not only just what they did to us last time but the also the underhanded way in which they did it.

Please understand that this is in no way an attack on your credibility, but it most certainly is a questioning of theirs. Trust must be earned through action and thus far, Congressional Democrats haven't shown themselves worthy of it.

Hate crimes is not enough evidence to base such trust upon. That was a "gimme" which had already successfully passed both houses previously. ENDA is where the rubber truly meets the road for me as far as trust goes.

I'll take what Democrats say at face value once they prove to me that doing so wouldn't be as much of a mistake as it was in 2007.

I don't think you're misinterpreting. I've been expecting a repeat of 2007 ever since the legislation was introduced. I hope I'm wrong, but I don't have very high expectations for ENDA this time around, either.

Here's my comment. This sucks. Keep pushing us down the road. I think it's the wrong strategy. Unless of course you don't want to be placed in a position of having to vote for the bill. Then it's a perfect strategy for mid-term protection.

Angela Brightfeather | November 11, 2009 4:46 PM

Jillian,

This from NY via the Pride Agenda:

"Senate Leadership Commits to Marriage Vote in 2009
Last night for the first time ever we received a commitment from the Senate Majority to vote on the marriage equality bill in the next six weeks:
"An agreement was reached to bring the marriage equality legislation for a vote before the end of the year and we will commit the full spectrum of our energies to making marriage equality a reality in the state of New York," said Austin Shafran, spokesman for the Senate Majority Conference."

Now tell me that we aren't seeing a trend here!!!!!

Trans people have been waiting for over 12 years to be included in the NY version of ENDA. The Pride Agenda with Matt Forman at the head of it said 12 years ago that they would come back for Trans people in NY and get them added on to job protections that gays and lesbians already have.

They promised and swore they would not drop the ball on it!!!!!!!

So what happened to make the PA divorce itself from GENDA and now put a losing piece of legislation together that will end up getting voted down again and turned around in the elections next year after the right puts it on the ballot, just like Prop 8 and Maine.

The Pride Agenda has had 2 years to get GENDA passed and they have sat on their hands and not met their promise and now they put SSM before GENDA and screw the Trans people again in NY. They don't seem to understand that the number legal marriages of Trans people affected by no protections are incredibly important also.

And can anyone guess why they are doing this and why we also stand the distinct chance of not getting ENDA passed in the Senate? It should be obvious.

In 1993, 16 long years ago when ENDA really became an issue and a piece of legislation to work on, gays and lesbians were getting kicked out of jobs for being who they are left and right. Of course so were Transgender people, right along with them.
But in 2010, how many gays and lesbians are losing their jobs because they are gay or lesbian? Heck, some of them are rubbing shoulders with the CEO's of IBM and Nike as we speak. The fact is that gays and lesbians don't need ENDA any more.

But it's a different story when it comes to Transgender people. Sure we have seen more Trans people in the workplace, but only after thay become 100% passable and acceptable to mainstream business. But the other Trans people and their families just don't count. If you don't have $50,000.00 for the right operations and paperwork and lawyers, then don't expect to hang with the HRC types and Pride Agenda types, because you can't cut it. Go suck lemons you big bunch of complaining Trans people!!!!!! The only thing that are acceptable to these people now in the way of Trans people is if you are pretty enough to pass, rich enough to not leave a trail behind you, or your a female to male who can grow a beard and have hairy arms and big enough biceps to pass at the gym while lifting weights and you can sweat like a kick boxer.

This has been trending in this direction for some time and now we are hearing Frank with the same lament of 2007, "educate, educate and educate." The problem with that is you can educate until the cows come home but you aren't going to change anyone's mind if your 6'-2" and the rest of your body is still in transition. They still all agree that you can't use the right rest room.

I hate to say it, but it looks like the Trans community could be outmaneuvered again. One has to wonder though, just how long this plan has been brewing.



What is NCTE saying about this? Mara has been quiet for too long/ If they / she is our trans organization in D.C. and in the know what has NCTE been doing?

Time for you to hear the truth, Mara and NTCE are the property of the HRC and have been from day one.

It was set up because HRC was terrified that NTAC might actually succeed as a true grassroots national trans organization. Those of us who founded it had vision and determination and weren't for sale like those who preceded us. They should have had more faith in the ability of the trans communities to snatch defeat from the jaws of victory via total ego driven me me me nature of too many of them.

Been there seen it looks like round 2 same as round 1.A watered down bill to appease the fense sitters with no T on the bill to be seen.

If there ever had been a thought out, planned LGBt agenda, it would have focused first on anti-bullying legislation, not SSM, ENDA DOMA, DADT etc. Why? because in order to oppose it, which cuts across sexual orientation lines and includes racial and religious as well, you are open (and if anyone had any brains would have been called) pro child abuse, pro bully, anti-child. It would force the right to show their real hand and thus defused using children as a shield for future bigoted arguments once and for all.

This ENDA sell out was inevitable. Trans were being set up to take the fall when it failed, as it will in a political climate where only the conservatives have a backbone and lead all by the nose from a minority position. It's even money if trans are tossed from ENDA before it flames out.

New York trans rights?......never gonna happen. I figured that out in 2002 when our "allies" from the GL's lured several bus fulls of drooling crack addicted street whores with ham sandwiches (this literally happened) to parade in front the the NY legislature as the amendment to add trans to SONDA was introduced to insure it went down in flames.

Foreman and company lied to Sylvia Rivera on her deathbed.....again, literally, the day before she died, about finally including trans in SONDA. SONDA actually undermined existing law in New York. A dear friend of mine, a professional woman, was fired on the day it became law on that basis. She was two weeks out from her surgery.

Trans people are much more screwed than they realize. When the prepublication of the DSM V comes out in a year and a half, that's it for trans civil rights in the US for the next two decades minimum. No coverage right now means none in the near future, period. The latest poll (last night) puts generic republican beating generic democrat.....think about it With "control" of the House and the Senate and the White House, dems cannot bring the DINOs along on even Healthcare reform. The sell out there on women's reproductive rights and the further poison pill no one is talking about of "conscious" based medical denial (yes, like Prego, it's in there) means no cover at all for any GLBT wish list items.

If everyone focused on Federal anti-bullying legislation right now, it might be possible to pull something out of the fire in the future but DOMA, DADT, ENDA are dead dead dead as it stands right now......

You all were set up by masters at the game.

The House Education and Labor Committee announced today it would mark up the ENDA bill next Wednesday, and vote on whether to report it to the House for a floor vote. It is expected to report it to the House for a floor vote. That is very welcome news, and right in line with Diego's point that ENDA is on track. I am, much to my relief, wrong, and friend Diego is exactly correct.

I will post on what I have learned about the markup process, and its likelihood to lead to a House vote, tomorrow.

I'm posting this in May, 2010. It's still in committee.

*SIGH*

I'm posting this in October, 2010. Still in committee.

Yeah, but I bet it'll be enacted into law by 2018, for sure. I'll bet another dollar.