The joint statement issued last week by all the major lgbt rights organizations designed to generate alarm about the delay in ENDA should be heeded. ENDA is over for 2009. Why? Not because members of Congress are lazy or dismissive, but because the reality of tough issues is hitting the fan. ENDA is not in danger at this point, but the moment of pushback has come.
The next step in the process of enactment is for the House Ed and Labor Committee, which held a hearing on ENDA in September, to go through the "mark-up" process. This means that the language of ENDA will be revised from its original version at the time it was introduced. The bill in its revised, marked-up form will go to the committee, where adoption is essentially certain. (House Ed and Labor is probably the farthest left committee in Congress.)
Additional changes can be adopted by the committee during its mark-up session, but if the staff and leadership have done their homework, that won't happen. Before the bill goes through the committee vote, the necessary revisions will have been made to assure not just a majority vote in committee, but also to guarantee the bill's passage in the full House.
In essence, now is the moment when vote counting starts for real. It should come as no surprise that ENDA's provision of job protection for transgender persons, which two years ago likely would not have survived a Republican amendment to strike, is proving to be a sticking point, especially to "blue dog" Dems who represent districts that voted for George Bush and/or John McCain and who are worried about getting re-elected next year. Without some mixture of blue dogs and moderate Republicans, there is no majority in the House. Nancy Pelosi and Barney Frank are power hitters, but they can't change that reality.
Advocates are tweaking and talking, trying to achieve effective wording on issues such as restroom use that can stand up under the Republican ugliness that will kick into high gear when a floor vote is scheduled. This is one reason why referenda votes within the last year in Kalamazoo and Gainesville were so important - in both cases, conservatives sought a popular repeal of a local anti-discrimination law covering both sex/o and GI by singling out trans people for attack. In both cities, voters reaffirmed the anti-discrimination laws. You can bet that advocates on Capitol Hill will be mentioning Kalamazoo and Gainesville every chance they get.
In addition to trans issues, there are also some fairly technical legal questions regarding the bill as well, for which clarifying language may be added.
The job now is to do whatever rewriting is necessary to move the bill as early as possible in 2010. The Senate will take up the version of the bill that the House passes. In the Senate, there could well be more debates over additional amendments, although the goal is to fashion deals at this point in the process that will be sufficient for both chambers.
With a lot of work and a little luck, there could be a White House signing in the spring.
Cross-posted at hunter of justice