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Religious Tolerance logo

Ending employment discrimination based
on sexual orientation and gender identity

Progress of the Employment Non-
Discrimination bill of 2007 (ENDA)

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Status of the bill:

Reps. Barney Frank (D-MA), Deborah Pryce (R-OH), Tammy Baldwin (D-WI) and Chris Shays (R-CT) introduced H.R. 2015 -- the federal Employment Non-Discrimination Act of 2007 (ENDA) into the House on 2007-APR-24. Unlike previous versions, it initially would have protected against workplace discrimination based on gender identity as well as sexual orientation. Protection for persons on the basis of gender identity was subsequently dropped as an attempt to increase its chances of becoming law.

The bill's text is available online. 1

During early 2007-SEP, the House Health, Employment, Labor and Pensions Subcommittee held a hearing on the bill.

Facts, misinformation, and disinformation about the bill:

As in the case of the hate-crimes bill that was also introduced to the Congress in 2007, there has been a massive amount of misinformation and disinformation circulated about this bill.

Contrary to claims by those opposed to the bill:

bulletThis bill offers no "special rights" to any one or any group based on sexual orientation. It would equally protect persons of all sexual orientations: heterosexuals, bisexuals and homosexuals -- that is, all adults in America. It is not simply a pro-homosexual bill as has so often been charged. If you see an information source that claims otherwise, it is either lying or is bending the truth by telling only one side of the story.
bulletThis bill does not only protect transsexuals. It protects all persons, regardless of their gender identity. It protects the vast majority of adults whose gender identity matches their genetic/physical sex. It also protects transsexuals where the two do not match.
bulletThe bill does not set up any type of quota system for persons of different sexual orientations and sexual identities.

CitizenLink, a publication of Focus on the Family Action, a fundamentalist Christian group, published an article on their web site titled: "U.S. House Set to Vote on Special Rights for Gay Employees. Under the Employment Non-Discrimination Act, even churches may be forced to comply." They quoted Tony Perkins, president of the Family Research Council, who said that ENDA "... could put the rights of homosexuals above employers." 2 That is true. It could also put the rights of heterosexuals and bisexuals above those of employers by saying that employers cannot discriminate in employment because of the actual or perceived sexual orientation of an employee or potential employee. This is simply an extension of other laws already on the books that prohibit discrimination on the basis of race, gender, etc.

Perkins continued: "Once this law goes into effect, I don't think you can guarantee that even churches themselves would be exempt." 2

House Minority Whip Rep. Roy Blunt, (R-MO) said:

"This Employment Non-Discrimination Act would do terrible things. [While the bill purports to exempt religious groups] It really doesn't do that. The court has to decide if your purpose is sufficiently religious enough in character. Are you a church? Are you only a church? Do you do other things? Do you have a daycare center?

"It's a terrible policy. We've worked hard over the years to continue to strengthen rather than weaken the ability of faith-based organizations to truly be faith-based in their hiring. And I think that's important, and it's a big part of the debate we need to have on this bill."

The term "faith-based in their hiring" is a reference to the policies of some religious denomination to discriminate in hiring against people on the basis of their gender, marital status, sexual orientation, gender identity, race, and/or disability.

Perkins and Blunt are referring to Section 6 of the bill, titled "Exemption for religious organizations." Sections a and b state:

"a) In General- This Act shall not apply to any of the employment practices of a religious corporation, association, educational institution, or society which has as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief."

"(b) Certain Employees- For any religious corporation, association, educational institution, or society that is not wholly exempt under subsection (a), this Act shall not apply with respect to the employment of individuals whose primary duties consist of teaching or spreading religious doctrine or belief, religious governance, supervision of a religious order, supervision of persons teaching or spreading religious doctrine or belief, or supervision or participation in religious ritual or worship." 1

So, in the example cited by Blunt, a day care operated by a church would be exempt as long as the primary purpose of the church is religious. That is, a church could discriminate against heterosexuals, homosexuals, and/or bisexuals unless its day care activities are the church's main purpose. There is probably no church in the U.S. whose main function is day care.

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Bill gutted:

On 2007-SEP-27, Rep. Barney Frank (D-MA) announced that he was introducing new ENDA legislation that would only provide protections on the basis of sexual orientation.

On 2007-OCT-02, Equality Maryland -- an organization promoting equal rights for persons of all sexual orientations and sexual identities issued a newsletter stating:

"Late last week, leadership in the U.S. House abandoned a transgender-inclusive Employment Non-Discrimination Act (ENDA) by splitting the legislation into two bills - one for sexual orientation and another for gender identity and expression."

"In an unprecedented show of unity, more than 90 leading national and state [lesbian, gay, bisexual and transgender (LGBT)] groups, including Equality Maryland, signed onto a letter in support of one inclusive ENDA bill. This letter was delivered to Congress yesterday. ... As a result, Democratic leadership has postponed mark-up of the bill, giving our community a renewed opportunity to pass an inclusive ENDA. If you have not already done so, please urge your member of Congress to support only an inclusive ENDA." 36

The letter of support for an inclusive ENDA is online at: http://thetaskforce.org/

Bill passes the House; to be introduced into the Senate:

On 2007-NOV-07, the House passed the ENDA bill by a vote of 235 to 184. Twenty-five Democrats voted against the legislation; 35 Republicans voted for it.

Some reactions:

bulletHouse Majority Whip James Clyburn, (D-SC) said: "Bigotry and homophobia are sentiments that should never be allowed to permeate the American workplace."
bulletSome conservatives were concerned that people who wish to discriminate against sexual minorities because of their religious beliefs will not be able to refuse to hire, fire, or refuse to promote gays lesbians and bisexuals.
bulletRep. John Kline, (R-MN) said: "This is, frankly, a trial lawyer's dream."
bulletMatt Barber, policy director for cultural issues at Concerned Women for America said: "By passing this Orwellian piece of legislation, the Democrat-controlled House has displayed exceptional arrogance. Congress apparently believes it has carte blanche authority to nullify any constitutional provision which it finds bothersome. In this case, they've drawn a black line through the free exercise clause of the First Amendment."
bulletRoy Blunt (R-MO) was apparently referring to a person's right to follow their religious beliefs by denying employment to homosexuals when he said: "The so-called 'Employment Non-Discrimination Act' creates a legal quagmire for employees who practice, or even acknowledge, their religious beliefs -- depending on where they happen to work, and subject to judicial interpretation. In the process, it erodes a basic, fundamental right bestowed upon us by our Creator and a right guaranteed to every American under the U.S. Constitution."
bulletRep. Barney Frank, (D-MA), one of only two openly gay members of Congress, said he hoped the bill would send a message to "millions of Americans who are gay and lesbian that they are not bad people, that it is not legitimate to fire them simply because of who they are."

Senator Edward Kennedy (D-MA) introduced a similar bill in the Senate. However, the Senate took no action on it, and the bill died. 5

Even if the Senate had passed the bill, all indications were that President Bush would have vetoed the bill, and that Congress would have had insufficient votes to override that veto.

References used in the above essay:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "H.R. 2015: Employment Non-Discrimination Act of 2007," text, at: http://www.govtrack.us/
  2. Jennifer Mesko, "U.S. House Set to Vote on Special Rights for Gay Employees," CitizenLink, 2007-SEP-12, at: http://www.citizenlink.org/
  3. "One, United Community," Equality Maryland, 2007-OCT-02, at: http://www.equalitymaryland.org/
  4. Jennifer Mesko, "Republicans Switch Over to Pass Dangerous ENDA Bill," CitizenLink, Focus on the Family Action, 2007-NOV-08, at: http://www.citizenlink.org/
  5. Lou Chibbaro, Jr., "Another shot for ENDA: Frank says trans-inclusive bill 'on track' to pass this year," The Washington Blade, 2009-JUN-24, at: http://www.washblade.com/

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Copyright © 2007 to 2009 by Ontario Consultants on Religious Tolerance
Original posting: 2007-MAY-05
Latest update: 2009-AUG-07
Author: B.A. Robinson

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