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. This is part three of a three part series: 3 Ways to Improve ENDA Advocacy.
Yesterday, Rep. Barney Frank held a press conference on Capitol Hill regarding the introduction of the bipartisan Employment Non-Discrimination Act (ENDA) of 2011. Frank decided he would continue collecting original co-sponsors for another few days before actually "dropping" the bill "in the hopper." But his ENDA game plan for the next two years is clear.
Mr. Frank's stated purpose for introducing ENDA now - when Republicans control the U.S. House of Representatives - is to give our LGBT community something around which to organize so we are ready to quickly move ENDA through Congress once Democrats re-gain control of the U.S. House of Representatives in 2013, 2015, 2017 or sometime thereafter.
I think Mr. Frank's strategy is sound. The remaining question, however, is how should we strategically divide our time, dollars, and energy between now and then? Of course the choice is not an either/or, but should we put the majority of our efforts during the next two years into ENDA lobbying in Washington D.C. or state-level ENDA advocacy in the state legislatures?
During the Next Two Years, We Can Accomplish Some Incremental but Very Significant Steps on ENDA Through Our Efforts in Washington, D.C.
I can think of three concrete deliverables we can achieve in our nation's capital through our ENDA efforts between now and the end of the current Congressional session. First, and this should be the easiest, we should encourage our friend, Chairman Tom Harkin of the Senate Labor Committee to organize an ENDA hearing this year, and for the love of equality, this time the hearing absolutely should include at least one transgender witness. Indeed, a Senate ENDA hearing will garner significant media attention, which will allow the American people to continue learning about the workplace discrimination that LGBT people face all too frequently.
Second, Mr. Frank is correct that we should spend time lobbying and educating all of the new members of Congress who were just elected - both Democrats and Republicans alike - about what ENDA does and does not do. If I were on one of those lobby teams, I would spend considerable time during the meetings with new Republican members of Congress discussing ENDA's broad religious exemption. I happen to think that ENDA's religious exemption is the correct policy for constitutional reasons, so I would of course explain it to new Democratic members of Congress too.
Mr. Frank also pointed out at his press event yesterday that we should focus on some members of Congress who voted for a non-inclusive ENDA in 2007, but who are undecided on the fully inclusive version of the same bill. A big "get" here would be to persuade Republican Budget Committee Chairman Paul Ryan of Wisconsin to support a fully inclusive ENDA. Although he was a surprise "yes" vote on ENDA in 2007, he is a long-shot to become an actual ENDA co-sponsor ahead of time. However, lobbying him now still makes sense.
I suspect that on the day a fully inclusive ENDA gets a vote on the House floor in 2013 or sometime thereafter, some Republican members of Congress are going to wait to see how Paul Ryan votes, and if he votes "yes," that will free some of them up to follow suit. As I said in an earlier post, Ryan is staunchly conservative and the rising star of the House Republicans. His vote will matter to other Republicans. So does the vote of Republican Committee Chairwoman Ileana Ros-Lehtinan (R-FL), who is an original co-sponsor for ENDA once again this year.
Third, we can and should urge our friends in the Obama Administration to adopt an Executive Order or Presidential Memo stating that federal contractors must guarantee workplace fairness for LGBT employees. Once this policy is in place, the responsibility for enforcement will be with U.S. Labor Secretary Hilda Solis, who is a wonderful advocate for workers and lifetime friend to our LGBT community.
During the Next Two Years, We Can Accomplish Some Even More Significant Steps Building Momentum for ENDA Through Our Efforts in the States Legislatures
During the first seven years after the turn of the millennium - basically the mid-2000s -
LGBT advocates racked up an impressive series of wins on state-level ENDA laws in the various state legislatures. The first trans-inclusive ENDA law had been passed by Minnesota in the early 1990s, and for almost a decade, Minnesota was alone.
However, we began to achieve some momentum around 2000: Rhode Island was next in 2001; more than several states followed in the middle of the decade; and during the first part of 2007 alone, we passed inclusive state-ENDAs in Colorado, Iowa, Oregon and Vermont. According to Mara Keisling of NCTE, only four percent of transgender Americans had state-level workplace protections in 2000, and that coverage jumped dramatically to almost 40 percent by 2007. A ten-fold increase is certainly impressive.
Then, in September 2007, our community's attention turned to ENDA in the U.S. House of Representatives. Not a single trans-inclusive state-ENDA has been enacted since then. Four years is a long gap with no progress.
But the policy and legislative advocates at both NCTE and the National Gay and Lesbian Task Force think it is plausible that we can now make progress and pass strong - though maybe imperfect - state workplace laws barring gender identity discrimination in Maryland, New York, Connecticut, Massachusetts, Nevada, and Hawaii. However, they caution that our community will have to direct more resources into those six campaigns if we want to win.
We should do everything we can to rack up these six additional legislative victories, as that will help us build significant political momentum for passing a fully inclusive federal ENDA in 2013. Indeed, when a member of Congress is undecided on new legislation, it is often reassuring if she hears that her own state has already passed similar legislation without any adverse or unintended consequences.
Therefore, if I had to propose a new budget for ENDA advocacy, I would shift funds toward state-level efforts during the next two years. If the Democrats win back the U.S. House in 2012, my proposed budget for 2013 would shift some - though of course not all - ENDA advocacy resources back to Washington, D.C.
Don't Forget the Important Role of Civil Rights Litigators as We Push for ENDA
Our movement's litigation organizations - such as Lambda Legal, NCLR, GLAD and the ACLU LGBT Rights Project - play a crucial role in the struggle to pass a fully inclusive ENDA. First, the lawyers at these organizations have significant experience actually litigating employment civil rights cases, which makes their opinions and perspectives particularly important to those who work in the legislative process on Capitol Hill.
As I was drafting or re-drafting certain parts of ENDA, the question often was how the different possible word choices might be interpreted by federal judges and federal juries. Therefore, I had many of the litigators from the organizations listed above on speed-dial.
In addition, those litigation organizations were the source for the witnesses we selected to present testimony at our three House Labor Committee hearings on ENDA. For example, Lambda Legal represented Vandy Beth Glenn, and the ACLU represented Diane Schroer. Both of these women gave important testimony before Congress that I believe helped sway votes in favor of ENDA.
As these groups continue to litigate employment discrimination lawsuits based on state-ENDA laws in the future, they will not only help secure justice for their clients, they will also help provide Congressional staffers with compelling witnesses for the ENDA Congressional hearings in the House and Senate that are yet to come.
This Three-Part ENDA Series is so Long-Winded, It Might As Well Have a Thank You Section
I am grateful to Bil Browning for suggesting I write this series of Bilerico posts, and I am particularly happy that what I have written has triggered some debate among Bilerico's commenters. I want to close with some richly deserved praise for a number of individuals who worked smartly and tirelessly on behalf of a fully inclusive ENDA over the past several years. The following list is long, but inevitably does not include numerous, talented ENDA advocates.
With that disclaimer in mind, when I think of my three years of working on this issue, I think of individuals like: Mara Keisling and Harper Jean Tobin of NCTE, who make up ENDA's most effective lobbying/legal team in Washington, D.C.; Brad Sears, Nan Hunter, Christy Mallory, Laurie Hasencamp, Matt Strieker and everyone else at the Williams Institute at UCLA Law School, because if and when ENDA survives a right-wing constitutional challenge at the U.S. Supreme Court sometime in the next ten years, it will be because of your excellent research and exhaustive report; Diego Sanchez, who has always been a wonderful colleague and partner on ENDA, and who treated me like we were brothers on the day I needed his help the most; Lisa Mottet of NGLTF, Hayley Gorenberg and Mike Kavey of Lambda Legal, Shannon Minter of NCLR, Chris Anders of the ACLU and Brian Moulton of HRC for their sharp legal thinking and counsel.
On Capitol Hill, I appreciate wonderful ENDA colleagues like Joe Onek, John Lawrence, Mike Tecklenburg and Reva Price (Democratic Leader Nancy Pelosi), Joe Racalto and Pilar Falo (Rep. Frank), Heather Sawyer (Rep. Nadler), Todd Metcalf (Rep. Clyburn), and Brian Branton (Rep. Polis). We also received strong support from our friends in the Obama Administration like Tom Perez, Matt Nosanchuk and Judy Applebaum of the U.S. Department of Justice, as well as Stuart Ishimaru, Chai Feldblum and their wonderful staff at the E.E.O.C. On issues of mobilizing the ENDA grass-roots, Nancy Zirkin and Rob Randhava of LCCR, Elizabeth Fregiato of PFLAG, and the GetEqual protesters who went to Harry Reid's home turf and Nancy Pelosi's office all deserve significant credit.
Finally, thank you to Rep. George Miller, Rep. Barney Frank, and my friends on Mr. Miller's labor staff: Jody Calemine, Michele Varnhagen, Brian Kennedy, Joe Novotny, Megan O'Reilly, Celine McNicholas, Aaron Albright, Rachel Racusen, Melissa Salmanowitz, Lynn Dondis, Richard Miller, my officemate Therese Leung and my sister in workplace solidarity Stephanie Moore, Gordon Lafer, Carlos Fenwick, Meredith Regine, Bryce McKibben, Liz Hollis, Tylease Alli, Daisy Mintor, Marjie Hamilton, Ria Ruiz, James Schroll, Ben Miller and Courtney Rochelle.
With that, I conclude my proposal for three ways we can improve ENDA advocacy. I am quite certain others will add to this list of strategies.
Please discuss. Then let's get to work.
A new session of the U.S. Congress is only 21 months away.
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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