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Barney Frank's ENDA:

Yesterday the House passed the Employment Non-Discrimination Act. The vote was 235-184, with 35 Republicans in favor and 25 Democrats against. It's the first time either house of Congress has ever passed a gay civil-rights bill.

Ted Kennedy is expected to introduce ENDA in the Senate soon. Some Senate Republicans are predicting it has a good chance of passing early in the new year, assuming it's not expanded. The bill would then go to President Bush, whose advisors suggested a presidential veto two weeks ago. But now the White House is telling the New York Times that it will examine changes made to the bill before a final decision is made.

However it comes out this session, the fact that the bill has passed even a single house of Congress is a sign of tremendous political progress for gay Americans. Similar attempts to pass employment-discrimination protection have languished in Congress for more than three decades. Now a strong majority of the House is on record in an actual recorded vote supporting the bill. This record can be used to reinforce their resolve should ENDA need to be reintroduced after the next election. The vote creates political momentum for eventual enactment.

The voting patterns were noteworthy. Of the 25 Democrats who voted "no", 18 come from rural and conservative districts, mostly in the South. The remaining seven Democrats who voted "no" did so because the bill did not include "gender identity," a provision that would have protected transsexuals, crossdressers, and other gender nonconformists from employment discrimination. The seven are: Rep. Yvette Clarke (D-N.Y.), Rush Holt (D-N.J.), Michael Michaud (D-Maine), Jerrold Nadler (D-N.Y.), Edolphus Towns (D-N.Y.), Nydia Velazquez (D-N.Y.) and Anthony Weiner (D-N.Y.). Thus, six of the seven come from the New York area, and all represent states that already protect gays from employment discrimination.

The 35 Republicans supporting ENDA — almost 20% of the Republican caucus — more than made up for the Democratic defections and were critical to House passage. These Republicans, with one exception (Rep. Jim McCrery--Louisiana), come from districts outside the traditionally conservative South.

Little noticed in the run-up to the House vote was the Labor Committee report that accompanied the bill. The report was prepared by attorneys who work for the committee. Much of the report is devoted to recounting the history of the numerous attempts over the past 33 years — beginning with the first bill introduced by Bella Abzug in 1974 — to get Congress to deal with anti-gay employment discrimination. That history tells a story of painfully slow political progress made in each session of Congress, with more co-sponsors backing an anti-discrimination bill in every session. Other parts of the report document the prevalence of anti-gay job discrimination, as well as the economic and psychological impact of such discrimination.

In the section-by-section analysis of the committee report, I noticed a couple of passages relevant to the recent controversy over adding "gender identity" to the bill. On p. 31, the report notes that ENDA forbids discrimination based on "actual or perceived sexual orientation." Thus, "ENDA creates a cause of action for any individual — whether actually homosexual or heterosexual — who is discriminated against because that individual is 'perceived' as homosexual due to the fact that the individual does not conform to the sex or gender stereotypes associated with the individual's sex." Obviously, this interpretation of ENDA offers some protection to those employees whose gender nonconformity leads others to assume they're gay or lesbian and then suffer discrimination on that basis. It doesn't protect transsexuals or crossdressers as fully as adding "gender identity" to the bill would have, but the bill moves in that direction.

Additionally, on p. 33, the report puts to rest any fears that stripping "gender identity" from the bill would lead federal courts to conclude that Congress meant to impliedly reverse Price Waterhouse v. Hopkins, a 1989 case in which the Supreme Court held that sex stereotyping violates Title VII. The report concludes that Section 15 of ENDA, entitled "Relationship to Other Laws":

Preserves provisions in other Federal, state, or local laws that currently provide protection from discrimination. For example, Congress does not intend to overrule, displace, or in any other way affect any U.S. Supreme Court or other federal court opinion that has interpreted Title VII in such a way that protects individuals who are discriminated against because they do not conform to sex or gender stereotypes. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female plaintiff brought successful Title VII claim after she was denied partnership in an accounting firm because she did not conform to female sex stereotype); Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (male plaintiff brought successful Title VII claim after he was subjected to a hostile work environment because he failed to conform to a male stereotype).

This sort of legislative history does not dispose of controversies over the meaning of ENDA. But it does offer a reasonable and persuasive interpretation of the bill that will likely play a role in future litigation. The committee legal counsel who worked on this report anticipated many of the objections to ENDA from President Bush's advisors and from transgender and gay activists disappointed that the bill isn't more comprehensive. They did an extraordinary job walking the fine line between an interpretation of ENDA that is unduly crabbed and one that is objectionably expansive.

ENDA is the product of decades of work by gay advocates whose efforts once seemed quixotic. In 1974, Abzug's bill had only four co-sponsors and was completely ignored by the House Judiciary Committee. Yesterday 235 members of the House backed the same basic idea.

Many people deserve credit for making yesterday happen, including gay activists (many long dead) and their heterosexual allies, law professors, lawyers, members of Congress and their staffs, and commentators. But one person in recent history, more than anyone else, is responsible for yesterday's historic and precedent-setting vote.

That person is Barney Frank. I disagree with Frank about many things. But without his work over the years, without his dogged determination, without his eloquence and parliamentary skill, without his willingness to stand up to critics on his left and his right, and without his pragmatic understanding of the nature of incremental progress in civil rights, there would be no ENDA in any form. Period. Thanks to Barney Frank, we took one huge step closer yesterday to the day when all gay Americans — including especially the millions of them in the South, Midwest, and Mountain West — can live their lives without the debilitating fear and devastating consequences of losing their jobs because of whom they love.

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