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OutRight: Thanking Frank


One person in recent history is responsible for ENDA’s passage in the House.

On November 7, the House of Representatives passed the Employment Non-Discrimination Act (ENDA). 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. There are many people to thank for this accomplishment.

Some Senate Republicans are predicting ENDA 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 spokesperson told the New York Times that the White House will examine changes made to the bill before a final decision is made about whether to sign it.

Only seven Democrats voted “no” because the bill did not include “gender identity,” a provision that would have protected transsexuals and cross-dressers from employment discrimination. Six of those seven came from the New York City area. The vote thus exposed the political irrelevance of the United ENDA coalition of activist groups that tried to defeat the bill. They don’t represent most gay people and don’t have any sway in Congress.

The 35 Republicans supporting ENDA—almost 20 percent of the Republican caucus—more than made up for the Democratic defections and were critical to House passage. These Republicans mostly came from districts outside the traditionally conservative South.

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. ENDA is the product of decades of work by gay advocates whose efforts once seemed quixotic. In 1974, Bella Abzug’s original gay civil rights bill had only four co-sponsors and was completely ignored. Painfully slow political progress was then made in each session of Congress.

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 in 2009. The vote creates political momentum for eventual enactment.

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.

In the committee report, there are a couple of passages relevant to the recent controversy over adding gender identity to the bill. The report notes that ENDA forbids discrimination based on “actual or perceived sexual orientation.” Thus, says the report, “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.”

This interpretation of ENDA offers some protection to those employees—including transgendered people—whose gender nonconformity leads others to assume they’re gay or lesbian and then suffer discrimination on that basis.

Additionally, the report puts to rest any fears that stripping gender identity from the bill would lead federal courts to conclude that Congress meant to reverse or weaken the protection already given to effeminate men and masculine women under Price Waterhouse v. Hopkins , a 1989 case in which the Supreme Court held that sex stereotyping violates federal law.

The report concludes that Section 15 of ENDA “[p]reserves 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.”

This sort of legislative report does not dispose of controversies over the meaning of legislation. 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. They did an extraordinary job walking the fine line between an interpretation of ENDA that is unduly crabbed and one that is objectionably expansive.

Lots of other people deserve credit for passing ENDA, including gay activists (many long dead) and their heterosexual allies, law professors, lawyers, members of Congress and their staffs, and bloggers and commentators who refused to be cowed by the falsehood that “the community” opposed the bill. But one person in recent history, more than anyone else, is responsible for this 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 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 have taken one huge step closer to the day when all gay Americans—especially the millions of them in the South, Midwest, and Mountain West who currently have no employment protection—can live their lives without the debilitating fear and devastating consequences of losing their jobs because of whom they love.
Writing from the conservative side, Dale Carpenter began his column for OutSmart in 1994, when he lived in Houston. Now residing in Minneapolis, Carpenter is a University of Minnesota Law School professor.


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