Congressional democrats, civil rights groups and now the New York Times frame The Employment Non-Discrimination Act as an example of the politics of the possible. But an almost-definite Presidential veto makes it look like a convoluted example.
An ENDA bill to protect employees from sexual orientation discrimination passed the House Wednesday, after Tammy Baldwin's amendment to include protections for transgendered employees was debated but not voted on.
Expect the Senate to also keep transgendered people in the rhetoric but not the legislation. A press release yesterday by Massachusetts Democratic Senator Ted Kennedy pointed out that, "Today it's perfectly legal in most states to fire an employee because of sexual orientation or gender identity." Kennedy declared that, "America stands for justice for all" and "Congress must make clear that when we say 'all' we mean all."
The Senator's solution? To "extend the protection of Title VII [of the 1964 Civil Rights Act] to those who are victimized because of their sexual orientation."
His strategy follows fellow Massachusetts liberal Barney Frank. A longtime champion of GLBT rights, Frank originally wrote House legislation that included transgendered people but took that provision out when Labor Committee Chairman George Miller told him freshmen Democrats from districts that voted for Bush would never support it. "I wish we had the votes to ban all discrimination," Frank said on the House floor Wednesday. "But I will not act on my wishes irresponsibly."
But the committee's compromise has not made Republicans any less aghast. Of course, they can't quite come out and say it's okay to fire someone because they're gay. Which, as Frank noted, is progress in its own way.
"I first filed a bill 35 years ago to say that you couldn't fire someone because he was gay or she was a lesbian, and at the time people were very straightforward in their opposition," Frank recounted to members of the House. "Times have changed: It is no longer fashionable to say that you ought to be able to discriminate against someone based on his or her sexual orientation, so now we get other arguments."
Indeed, Republicans acted like Congress was on the verge of passing the "Mandatory Gay Marriage and Frivolous Lawsuit Act of 2007." Pennsylvania's Joseph Pitts warned in House debate that ENDA is a devious "component in a larger strategy," a "building block to overturn traditional marriage law." And when not implying that ending workplace discrimination for gay and lesbian employees will wreak havoc on heterosexual marriages everywhere, Republicans reverted to hoary whining about "burdensome litigation."
"This is frankly a trail lawyers dream," moaned Buck McKeon of California, warning bill implementation will be a nightmare for the rest of us.
President Bush, who has benefited from GOP voter mobilization efforts around state amendments to ban gay marriage, is not surprisingly on the same page. A White House statement gives the legally dubious argument that ENDA would statutorily recognize state sanctioned same-sex marriages and thereby conflict with the Federal Defense of Marriage Act.
So with those obstacles in mind, New York Democrat Jarrod Nadler argued on the House floor that now was the time to make a "principled stand" and include transgendered people while waiting for a Democratic President to make a bill law.
Protections for transgendered employees is hardly a symbolic issue. A letter to Congress signed by the NAACP, several unions and the Human Rights Campaign, a leading GLBT advocacy group, asserted it was "beyond dispute" that transgendered employees "face far more pervasive and severe bias in the workplace and society as a whole."
But after first opposing "ENDA without gender" those groups now support it. Human Rights Campaign reasons that House passage was historic and that if a bill including transgendered people had been defeated it would have been harder to pass the next time.
It sounds like a politcally sensible strategy from politically sensible progressives. The problem is that its one thing to tell GLBT advocates to compromise and quite another to to tell the Republican Party.