The Employment Non-Discrimination Act, which would prohibit job discrimination based on sexual orientation and gender identity, has been reintroduced in Congress. We know ENDA is not going to pass because of the Republican majority. Why bother?
The answer is that the introduction of a bill into the legislature serves many purposes other than simply enacting a law.
The truth is that even after ENDA gets passed, employment discrimination based on sexual orientation and gender identity will not grind to a quick halt. A prime example is the Civil Rights Act of 1964, which prohibited discrimination based on race, national origin, sex and religion. That law can only stop overt discrimination, such as job advertisements which say "men only." In fact, it took several years for the Equal Employment Opportunity Commission, which enforces that law, to rule that such advertisements were a violation.
We must educate, educate, educate. I refer not only to Members of Congress and their staffs, but also those in the LGBT community and the wider community who do not understand ENDA, who don't see why such protections are necessary, who wonder at the inclusion of gender identity. While ENDA is not going to pass with a Republican majority in Congress, the question we must address is what will it take to pass it when Democratic majorities again come to Congress.
The future will be determined by what we do now.
Law, to be effective, requires education and consensus from society that its goals are legitimate. There are many players involved in enforcing law, and if they disagree with the law's aims, the law falls flat. Judges, who are perforce drawn from those who are inside the power structure, must agree that the law is worth enforcing. There are many ways to create legal loopholes.
A prime example of the ineffectiveness of rights law is the Equal Pay Act, which held that women must receive equal pay for equal work. What is equal? There are a myriad of court cases in which jobs which were very, very similar, but held by a woman who was paid less, were adjudged not to be sufficiently similar to sustain a case. In addition, there are many reasons why people do not file discrimination claims, even when there is plenty of proof. Often times, people feel they cannot be protected from retaliation and social ostracism, and they are correct in that judgment.
The reintroduction of ENDA serves an important purpose. We must educate legislators, judges, administrative officials and the people that discrimination based on sexual orientation and gender identity is wrong. Too many people currently do not believe it is wrong. Thus, it is time for a new ENDA campaign, focused not on passage, but on winning advocates for the idea that discrimination against LGBT people is a moral and ethical wrong that our society cannot tolerate.
Guest Blogger Tico Almeida has written an excellent post on this subject here on Bilerico, and has promised to write more in the following days. I highly recommend that we all read his words carefully. He was ENDA's lead counsel in the U.S. House of Representatives, where he worked for three years as Labor Counsel for longtime progressive leader George Miller (D-CA). He knows the legislative process from the inside, and that knowledge is key.
He suggested three areas of advocacy, and I applaud his judgment. He called for the following.
1. Address the trans-phobia among some staffers and members on Capitol Hill and let all LGBT Americans - especially transgender Americans - tell Congress and the American people their stories of workplace discrimination and harassment;
2. Out-and-out brag openly about ENDA's broad religious exemption, in order to use that hugely popular and bi-partisan clause to sway the votes of moderate Republicans and conservative Democrats to our side on ENDA; and
3. Work harder and smarter in what U.S. Supreme Court Justice Brandeis called the "laboratories of democracy" by passing more state-level ENDAs and litigating more state ENDA cases in state courts to demonstrate why a federal law is so badly needed.
We do not need to rush on this. In the past, I wrote a series of posts called "ENDA Legislator of the Day," knowing that we had to get to work on a large number of legislators in order to get the bill enacted into law. Ultimately, we failed to make that happen, but the good news is that the House ENDA bill had the largest number of co-sponsors of any LGBT rights bill. The Senate was the problem, and swaying Senators, who represent the large and diverse population of entire States, is much harder than swaying Members of the House, who represent smaller and generally more homogenous areas. Furthermore, the movement of the country to the right over the past decades, even among Democrats and Independents, means that we are starting behind the mark.
Thus, I call for a campaign of education of Congress, and particularly Blue Dog Democrats and moderate Republicans and their staffers. If they begin to see that their constituencies feel that job discrimination is wrong, they will begin to soften their positions against ENDA.
Each week, I will post information about a member of Congress who is in need of education. I ask that you post these to Facebook and Twitter and other social media. Send them to your friends in the district or state, as constituents have much more effect than the general public. Call and write to these legislators with your stories of job discrimination and the horrendous consequences to people's lives and happiness. It could be a personal story, the story of a friend, or a story in the news. Please feel free to send me a copy and I will post them online to share them with a wider audience. (Use pseudonyms if confidentiality is needed.)
These personal narratives are much more effective than simply asking people to support ENDA. It adds the human element that is a necessary part of any political issue campaign.
We won't get ENDA this term. But what happens when Democrat majorities come back into Congress? Will we be starting at the front of the line, or the back of the line? Now is the time to answer that question. We cannot wait until 2012 or 2013.
Now is the time.