How Will Cory Booker's Election Affect ENDA?
Elections have consequences and the election of
Cory Booker in New Jersey to fill the unexpired term of the late Senator Frank
Lautenberg brings us a loud and definitive vote in favor of the fully inclusive
LGBT Employment Non-Discrimination Act, popularly known as ENDA. Right now in
29 states a person can be fired for being (or being perceived) as gay - and in
33 states for being or being perceived as transgender. That's it... goodbye!
In
Pennsylvania, Ohio and Florida, there are no statewide protections for gay and
trans people. In New York State, you are covered if you are gay or lesbian, but
if you are trans.... Sayonara!
Some
activists have argued that transgender people now have federal employment
protections. Indeed, last month, Cori McCreery, a 29-year-old transgender
woman, reached a $50,000 settlement in an employment discrimination suit
against her former employer. Cori was fired in 2010 after informing her
employer in Rapid City, South Dakota, of her intention to transition from male
to female. A complaint was filed on her behalf asserting that discrimination on
the basis of gender identity is a violation of Title VII of the Civil Rights
Act of 1964, which forbids sex discrimination.
There
have been a handful of discrimination suit victories that have gone in favor of
transgender workers since the April, 2012 landmark case Macy v. Holder,
which established that gender identity is, in fact, protected under Title VII.
However, reliance on Title VII doesn't offer transgender individuals the
protection necessary to close most of the employment and wage gaps they so
often face.
Nearly
90 percent of transgender individuals
note some sort of employment harassment [pdf]. As a result,
transgender individuals experience significantly elevated rates of
unemployment, poverty and homelessness. While Cori McCreery may have found
justice, thousands of others still haven't found theirs.
The
paucity of these cases speaks clearly and broadly just how difficult it is to
establish that discrimination has taken place. The effort necessary to file a
civil rights lawsuit is extraordinary and cases are drawn out for months, if
not years, at a time.
When
a handful of transgender activists and allies attempted to amend New Jersey's
powerful Law Against Discrimination (LAD) in 2005, we were told by progressive
establishment political and legal allies that we were already covered because
of a little known 2001 Appellate Court decision, Enriquez v. West Jersey Health
Systems; it stated that transsexuals were included in
"sex" and also stated that being transsexual was a disability.
That
was all fine and good, but the employment posters I had to show in my business
would not be changed, the housing posters in hotels and rental apartments would
not be changed, nor would the public accommodations posters that are normally
prominently displayed in all shops. None of them would be changed to include
"gender identity or expression", leaving most trans people and
employers and business owners unaware that there are protections under the
existing law. Although ENDA is not as all encompassing as our NJ state law, it
is explicit for employment.
In
2010, when I was disgusted with a Democratic majority Congress, I advocated we kill ENDA and move on to something different. In
2013, things have changed.
Can ENDA Pass in 2013?
With
the retirement of former Congressman Barney Frank we now have a new prime
sponsor of ENDA in the House, Representative Jared Polis of Colorado. While
Rep. Frank had a history of mixed messaging about transgender inclusion in
ENDA, Congressman Polis has only spoken "full inclusion" language. He
also comes to Congress as a successful business person who can relate to
talking about "employment." I've also noticed that Leader Pelosi is
talking more consistently about an inclusive ENDA than Speaker Pelosi did in
2009 and 2010.
Without
passage of a federal bill like ENDA that clearly outlines the illegality of
discrimination against transgender individuals, public perception of
transgender workplace rights will, at best, move slowly.
So,
where are we now? This summer, the Senate HELP Committee passed a bipartisan
ENDA by 15-7 with all Democratic Senators plus three Republicans - Hatch, Kirk
and Murkowski - voting in favor. My Republican grapevine tells me there are
several more Republicans who will vote in favor and with the election of Booker
to the Senate, we now have replaced a maybe or a quiet "yes" for a
big bold "YES!"
A
reasonable person would assume that today's LGBT Community is united for an
"inclusive" ENDA. I actually thought that was the case until I
attended a panel/symposium at NYU Law School organized by the folks at Freedom
to Work. To my dismay, suddenly there was a lively discussion among academic and
other LGBT activist lawyers who obviously have comfortable jobs, that the
religious exemption in ENDA is not good enough.
The
language and exemption in the current legislation is the same as in the last
Congress when Democrats had control and progressives seemed happy with the
wording. Is it possible that my cynical mind wondered if this could be an
excuse for elitists to derail legislation that might help level the playing
field for transgender people?
Over
the weekend I attended a rally for a Democratic gubernatorial candidate Barbara
Buono that featured our new Senator Elect. He makes no bones about championing
ENDA and once he is sworn into the exclusive Club of 100, I believe that will
be the signal to Harry Reid, to start moving ENDA toward passage. We need that
win. We can discuss the significance, in spite of a hostile House at a future
time, but a win in the Senate will at least give us options for progress.
