Weakened ENDA Means Less Protection for Everyone
"Definitions of who is protected by the bill leave gaping loopholes so that no one will be fully protected against discrimination. Congress should finish the work it began 44 years ago when it made employment discrimination based on sex illegal, and once and for all rid the workplace of sexual stereotypes."
The American Civil Liberties Union, Lambda Legal, the National Center for Lesbian Rights, Gay & Lesbian Advocates & Defenders and the Transgender Law Center are dedicated to establishing and preserving the civil rights and civil liberties of lesbian, gay, bisexual and transgender (LGBT) people. Between us, we have been responsible for most of the public interest litigation about the rights of LGBT people in this country.
We have been working for the day when the federal government makes the workplace discrimination LGBT people face illegal since the first such proposal was introduced in Congress in 1976. But as much as we wish that day had already arrived, it will not do much good if all we get is a bill that would not protect our community's basic rights. While the first version of the Employment Non-Discrimination Act (ENDA) introduced this year would have protected our community, the version introduced last week would not.
We see three significant problems with this weakened version of the bill:
- Protections for transgender people were removed.
- Definitions of who is protected by the bill leave gaping loopholes so that no one will be fully protected against discrimination.
- The blanket exemption for religious employers is broader than the exemptions in other civil rights laws and leaves many workers with no legal protections.
1. Protections for transgender people were removed. This is unacceptable. Transgender people have been a part of our community's fight for civil rights since it began, and there is no principled reason to pass a law that does not cover gender identity and expression. We have come too far in our understanding of discrimination based on gender, sexual orientation and gender identity to leave anyone behind, unprotected by law.
2. Definitions of who is protected by the bill leave gaping loopholes so that not even lesbians, gay men and bisexuals are likely to be fully protected against discrimination. This new version of the bill says that it prohibits discrimination based on actual or perceived sexual orientation, which it defines as "homosexuality, heterosexuality or bisexuality." That definition not only leaves out transgender people, but creates a gaping loophole that we are concerned may leave out others as well.
There is a serious risk that courts will say a law banning only sexual orientation discrimination offers no protection to men who are fired because their employers think they are effeminate and women who are fired because employers think them too masculine. Focusing on the definition of sexual orientation, courts may well say that Congress only intended this new version of ENDA to cover discrimination against a person because of the simple fact that he or she is or is thought to be gay, straight, or bisexual and could further say that sexual orientation is defined only by a person's choice of sexual or relationship partners. In other words, the courts could rule that the law does not cover discrimination because a person is seen as not meeting others' expectations of how a "real" man or woman should look and act. Congress could have included that kind of gender nonconformity and stereotypes in ENDA, they may rule, but quite explicitly chose not to.
While some might argue that the prohibition on discrimination based on "actual or perceived" sexual orientation protects against that, courts might rule that an employer has not violated this new version of ENDA if the employer simply says that it has no problem with gay people but just did not want a worker whom the employer thinks was too feminine or masculine — something an employer might say about almost any gay man, lesbian or bisexual. That is why the protection this new version of the bill purports to provide could prove illusory for many people.
If this sounds unlikely, it isn't. We have already seen very similar, super technical interpretations of what is prohibited under laws that ban discrimination based on marital status, sex or disability.
Moreover, discrimination based on sex, sexual orientation and gender identity at some level are all discrimination based on stereotypes about what is or is not appropriate for men and women; what jobs are appropriate, what relationships are appropriate, what kind of personal and public identity is appropriate. Trying to split them apart makes little sense and invites the kind of legal hairsplitting that has made so many civil rights laws less effective.
Splitting sexual orientation from gender identity in ENDA would also have the perverse effect of leaving those who most need the protections of federal law out in the cold. Between our organizations, we have many, many years of experience working with people who have been discriminated against. No one suffers more than those who appear most visibly to depart from the conventions of gender.
Congress should finish the work it began 44 years ago when it made employment discrimination based on sex illegal, and once and for all rid the workplace of sexual stereotypes.
3. The blanket exemption for religious employers is broader than the exemptions in other civil rights laws and leaves many workers with no legal protections. Every federal civil rights law has a limited exemption for religious organizations. The 1964 Civil Rights Act says it is not illegal religious discrimination for a religious organization to give preferences to members of its own church. The Americans With Disabilities Act (the ADA) has a similar exemption, and also allows a religious organization to require employees to comply with its religious tenets.
The first version of ENDA this year had exemptions for churches and for jobs outside the church for ministers and religious teachers and administrators. It also allowed religious groups to require people who work for them in other jobs to comply with all the major tenets of the religion. But this first version of ENDA did not allow employers to refuse to hire someone just because of a religious objection to LGBT people. If employers chose to require adherence to religious tenets, their policy had to require compliance with all major tenets including those, for example, about marriage and divorce. Under this earlier version of ENDA, if employers such as hospitals and universities did not require adherence to all of their major religious tenets, they could not invoke the religious exemption only to single out and discriminate against LGBT people..
The newest version exempts all religious groups from the law completely. It is not a broad exemption; it is a total exemption. It would give religiously affiliated hospitals, social service agencies, shelters and universities complete freedom to discriminate against LGBT people.
Sincerely held religious belief has been used to justify segregation, race discrimination, sex discrimination, and discrimination against people with disabilities, not in the 19th century, but within the last 25 years. And while the separation of church and state may require some accommodation of religious bodies, what is new about this latest version of ENDA — and unacceptable – is the idea that civil rights protections should completely give way to religious organizations. What people choose to believe, and how they choose to worship are their business, and the Constitution rightly keeps the government out of it. But when an employer uses religion to justify taking away a job from an orderly, custodian, secretary, social worker or doctor, the government has an overriding interest in preserving equal opportunity.
It should be no different with discrimination against LGBT people. Congress should treat religiously held beliefs that being gay is sinful just as it treated religiously held beliefs that women are unequal and that segregation was God's law. It should uphold a person's right to believe it, but keep it out of the workplace.
Our common goal is passage of a fair and inclusive employment non-discrimination statute and we pledge to work with members of Congress to ensure that the new law serves its important purpose — securely to protect our community against workplace discrimination. A law that does not actually do that is a law not worth having.