Dr. Jillian T. Weiss

Weekly ENDA Update: What Did The Senate Hearing Accomplish?

Filed By Dr. Jillian T. Weiss | November 09, 2009 10:30 AM | comments

Filed in: Politics, Politics
Tags: Employment Non-Discrimination Act, ENDA

The Senate held hearings to a nearly empty Committee chamber last week regarding the Employment Non-Discrimination Act. Only five Senators showed up, all Democrats, including the Chair of the Committee, Senator Harkin, the lead sponsor, Senator Merkley, and three other Senators, Senators Franken, Casey and Bennet. It left me with some fundamental questions about the process.

Senate ENDA Hearing.jpg

There was a stark difference between the House hearings, held in September, and the Senate hearings. The House testimony took a broad approach, full of stories by LGBT employees and statistics regarding discrimination, as well as discussions about various potential objections to the bill. The Senate hearing, to the contrary, was more narrowly focused on business and religious objections to the bill. There was one gay witness and no transgender witnesses. There were two government witnesses, a law prof, one witness from industry, and two witnesses who presented objections to the bill.

The question I have been asking myself is: Why did the Senate hearing look like this? Is it indicative of lack of interest in the bill by the Senate? Was it a sign that ENDA is going down in flames? Does the Senate care so little for transgender people that they included no transgender witnesses?

The answer to these questions are clearly no, no and no. The Senate hearing, to the contrary, upon reflection, showed a great deal of thought and care about ENDA. It showed that the people planning this hearing understand the political process intimately, and are doing everything in their power to pass ENDA, including the gender identity protections that will protect transgender employees.

It must be remembered that most of the Senate is on board with ENDA. Most of the Senate does not need to be convinced to vote for ENDA. If it were a simple majority vote, we would have ENDA, no problem. The problem is going to be the filibuster, which requires 60 votes.

So why was the hearing so sparsely attended, and why was the range of witnesses so narrow? Why was there only one gay witness and no transgender witnesses? I was a little disturbed by that at first. But I have come to the conclusion that the Senate hearing was actually very cleverly designed and orchestrated. It was very specifically targeted by some very smart people to appeal, not to the public, not to millions of viewers, but to 4 people.

According to my calculations, there are 56 likely yes votes according to my calculations. We need 4 more votes to overcome a filibuster. This entire hearing was designed to show the facts necessary to get those four to sign on to ENDA.

When I say the hearing was designed to appeal to 4 Senators, I don't mean that there are only 4 more Senators who might potentially sign on to ENDA. In fact, there are 8 Senators who may wind up supporting ENDA, but we need at least 4 to overcome the Republican filibuster.

Who are these eight? They are pictured here. They haven't said much of anything about ENDA, except that they're undecided. Other than that, they have been pretty quiet. Do you know their faces? You should. These are the Senators who are on the fence.
ENDA Undecided Senators 2.jpg
From left to right, top to bottom, these are Senators Pryor, Byrd, Hagan, Bill Nelson, Murkowski, Lugar, Voinovich and Conrad.

And what are these Senators' major objections? There are basically two:

1) Business objections - it may cost businesses, especially small businesses.

2) Religious freedom - it may require churches and religious schools to hire people who offend their religious principles.

These are not the Senators who are violently against LGBT people - such conservative Senators are a lost cause. The Senators targeted by the hearing need ammunition to understand the very narrow objections regarding businesses and religious freedom.

By the same token, it's not surprising that they did not show up for the hearing. Firstly, only two of them are members of the Senate HELP Committee, so only two of them really could show up: Senators Murkowski and Hagan. Both are in very conservative districts. Both are known to be fair-minded about LGBT issues, and probably supportive of ENDA. But they, like the others i mentioned, are in moderately conservative districts, and the major objections there are the business objection and the religious freedom objection. If you can overcome those objections, you can bring those Senators on board.

That's why the Senate hearings were very, very smart. Time and again, the hearing turned to discussions of how only a few lawsuits had been brought based on similar state laws, how businesses, in fact, profited from diversity and "bringing your whole self to work," how almost no religious organizations had lawsuits against them, and how major religious organizations supported the religious exemption included in ENDA. Senator Franken was merciless in returning fire at the witnesses who questioned the religious exemption, and bringing the issue back there, over and over again, to the extent that he apologized for taking up the Committee's time.

My guess is that Senator Franken didn't just randomly show up and decided to ask a few questions. He was clearly prepared, and, despite his protests that he is not a lawyer, understood with devastating clarity exactly how the religious exemption worked. He fumfered a little over the questions, but I am prepared to completely forgive this, for in the end, he made the point well that the religious exemption in ENDA works differently from the religious exemption in Title VII. The ENDA exemption removes religious organizations entirely from the effect of the bill, whereas the Title VII exemption only gives religious organizations a pass on discrimination based on religious differences. The witness against ENDA on that point, Craig Parshall, tried to obfuscate and Senator Franken nailed him to the wall. The objections based on alleged harm to small businesses was rebutted by testimony about the very small number of lawsuits in states with ENDA-type laws. I'm surprised the small business exemption in the bill and the recent GAO report wasn't discussed more. You can read more about that here.

Go Senator Al! Here's the You Tube of Senator Franken. The part I refer to starts at 4:00.

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Angela Brightfeather | November 9, 2009 11:22 AM


Untouched in any comments made, was the immediacy of the hearing and when it was called.

I think that due to some of the previous conflict and interest in the House Hearings about who would and who would not give testimony on behalf of the GLBT Community, a lot of that pushing inside the ropes has been avoided in this recent Senate Hearing. If anything, I think that more testimony from companies that have inclusive HR policies might have been added, with special note to some smaller businesses that have inclusive policies. I think that small busineses have been left out of these hearings in general and that is important since our adversaries continue to stress the unfairness of ENDA to small businesses and almost cast it in the same light as "taxation".

I also want to put out a notice to those who would hear it about Senator Hagan from NC and my Senator who is fence sitting at present.

Many Trans people I know have called her office and a few like myself have requested meetings with her about ENDA, even positing in my case, that a group of North Carolinians representing the GLBT community to include businesses like SAS, IBM and others, along with religious pastors and well knowns, such as Rev. Jimmy Creech, student groups from Duke and UNC Chapel Hill and others meet with her in her home office.

This has been met by her home office as a bit of a bother and such a meeting could not be scheduled except with a three day notice, which makes coordinating the effort difficult if not impossible.

Senator Hagan was at the HRC Dinner this year (Feb.) and addressed it in Charlotte, NC and painted a rosy picture about her being inclusive. Therefore, it would seem that she is responsive to HRC and it seems that if anyone could get her to committ to ENDA and have a meeting with her in DC, it would be HRC.

Is anyone pressing HRC to press Hagan to committ on ENDA? Isn't that what a lobbying group is supposed to do? Is HRC doing anything to organize and have a meeting with Hagan, since no one else seems to be able to get through to her?

I note that small businesses are specifically excluded from ENDA, Angela. Section 3(a)(4)
Sorry, I should have made that clear in the text of the post.

Stonewall Girl Stonewall Girl | November 9, 2009 1:15 PM

Well analyzed, Jill!

Angela, haven't you learned by now? don't wait on HRC or others, do it yourself! Keep pushing and if you can get 3or 4 people, just do it! there must be North Carolina LGBT donors other than just HRC ... find them!

Meghan Stabler | November 9, 2009 1:35 PM

She has said she will support an inclusive ENDA, but will not co-sponsor (reason unknown). We'll continue to lobby and meet with her to ensure her supportive position is maintained. For those in her state I would keep her on my list to make sure she is feeling the correct amount of pressure from your calls, emails, stories and most importantly face-to-face meetings.

She has said she will support an inclusive ENDA, but will not co-sponsor

When/where did you hear this? This isn't reflected in either Jillian's whip count or the one at actonprinciples, if what you heard is verifiable it would be nice to update those lists...

Angela Brightfeather | November 9, 2009 4:33 PM

OK Meghan. I would really appreciate your stating exactly where you got your referance on that info. I have not heard of anything from her office that would indicate that she suppots ENDA, just generalities.

'Is anyone pressing HRC to press ANY SENATOR to committ on ENDA? Isn't that what a lobbying group is supposed to do?' Which of our National organizations is the lead on this? "The Senate hearing was actually very cleverly designed" by whom? I was at the hearing. When I left I was chatting with folks from the National Gay and Lesbian Task Force. The kid I was talking to about Federal LGTB issues defended his ignorance by saying he was working exclusively on ENDA. When I started asking him about certain Senators and specifically why he was walking right past Sen. Hagan's office; his response was 'wow, your really kicking my a*s on these issues, I should know more.' WHAT THE ....? Your kidding right? This is your JOB! I go into these offices SOLO. Who is leading? How about 50 Senator's in 50 days? How about everyone show up at Sen. Hagan's office on a certain day? I'll be there.

Keep in mind that you are an expert on ENDA if you've been reading my posts, as I believe you have. That's why I've been working triple overtime to work my sources to get info and write a post every day on key target legislators - knowledge is power. It's also why there is no substitute for citizen awareness. Organizations like NGLTF have many issues to deal with and many internal pressures. They're important allies in the fight for ENDA, but they alone cannot do this. Only when people like you start calling and visiting and writing to your Senator and every key Senator like a demon, thinking about it every day, planning the next move, talking to friends and relatives -- that's when something happens. So I don't envy that poor intern when you showed up, but thank goodness you did. So in answer to your question "who's leading"? You are. Good work. Keep kicking butt.

The 'kid' I was talking to about ENDA was an NGLTF employee and policy advocate working exclusively on ENDA. That's who's a*s I was kicking. Pretty sad and frustrating.

Sen. Hagan has been on record in support of ENDA for several years now. She was a sponsor of a non-discrimination bill for state employees that included sexual orientation and gender identity in the NC Senate.

She also keynoted the Carolinas HRC dinner earlier this year.

It's good to keep folks showing her that she has support from constituents, but I'm confident of her support for this bill.

And Richard Lugar is there. grumble grumble.

I did like that video. I haven't watched all of the Senate hearing so I'll be going through YT soon. Thanks, Jillian!

Angela Brightfeather | November 11, 2009 12:42 AM

"Sen. Hagan has been on record in support of ENDA for several years now. She was a sponsor of a non-discrimination bill for state employees that included sexual orientation and gender identity in the NC Senate."

The return letter and emails from Senator Hagan's office note that she is concerned about changres in the bill. There was only one change in the ENDA bill since it's being passed in the House three years ago and that concerns the addition of gender protections and language.

One would have to assume that her "concerns regarding changes could only apply to the addition of gender language. Has ENC talked to her about her concerns? Can you verify that her concerns are not about the gender language? Why won't she commit to ENDA openly and why is she still unconfirmed about her vote.

Bottom line, this is not a time for assuming what Senators might do about ENDA. We need to know how she is going to vote now. It serves absolutely no purpose for Senator Hagan to keep her constituents guessing about this.