Five Things to Know About the Employment Non-Discrimination Act

ENDA passed the Senate, but can it get past John Boehner in the House?

John Boehner
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House Speaker John Boehner (R-Ohio) has stated his opposition to the historic non-discrimination law.
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On Friday, November 7th, the U.S. Senate voted to pass the Employment Non-Discrimination Act, a bill that would outlaw discrimination against LGBT people in the workplace. The vote passed by a wide two-to-one margin, with 64 Senators voting in favor and 32 opposing the bill. Currently, only 21 states have legal protections for their LGBT workers, and advocates have been fighting for legislation at the national level since the bill was first introduced almost two decades ago.

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As the bill moves to the House – where Speaker John Boehner recently claimed the legislation has "no basis or need" – here are five things you need to know about ENDA:

1. This is the first time in history a transgender employment non-discrimination bill has passed in the Senate.

An earlier version of the bill made its way through the Senate in 2007, but that version lacked protections for transgender workers. According to Rick Garcia, senior policy advisor for The Civil Rights Agenda, this was due to hesitancy from advocacy groups like the Human Rights Campaign. "They thought it had a better chance of passing if you took gender identity out," says Garcia. In 2007, the Daily Kos referred to the compromised bill as "throwing trans people under the bus."

Chicago House CEO Rev. Stan Sloan argues that transgender people should be the highest priority in non-discrimination legislation. "LGBTQ people generally earn less than their straight counterparts," says Sloan, "but in particular, one in five trans people have been homeless." Statistics from the National Center for Transgender Equality additionally show that 26 percent of trans people have been fired from their job because of their gender identity and 97 percent have been discriminated against.

Rev. Sloan argues that prejudice particularly faces those who have been made "invisible" in the movement, particularly transgender people of color. "We're becoming a more tolerant nation toward diversity, as long as it's the right type of diversity," says Sloan. "We need to be inclusive of the full sum of our rainbow and say that we won't pass this unless all of us get the benefits of it."

2. It wasn't just Senate Democrats who went for ENDA. The bill passed with a bipartisan majority.

Ten Senate Republicans voted in favor of ENDA, including Illinois Senator Mark Kirk, former presidential candidate John McCain and Arizona's Jeff Flake. Flake, who also voted for the bill in 2007, had allegedly been concerned about gender identity language in the bill and only solidified his decision on Thursday. "While I had concerns about expanding protections beyond those House provisions," says Flake, "after consideration, I believe supporting this bill is the right thing to do."

Ian Thompson of the American Civil Liberties Union argues that the bill's bipartisan consensus is indicative of the wide popularity of non-discrimination laws among the general public. According to Thompson, internal polls conducted by Mitt Romney's presidential campaign showed support of over 57 percent in each of the 50 states. It never dipped lower than that, even in Republican strongholds like Texas and Mississippi.

"On issues of LGBT equality, the American public has far surpassed our elected officials," says Thompson. "We're bringing our federal laws up to where the American people already are."

3. Despite Republican support in the Senate, the legislation will face a tough battle in the Boehner-led House.

"Our biggest challenge is opposition from speaker John Boehner and the Republican leadership," says Thompson. "In the House, the leadership gets to determine what comes to the floor for a vote. When the leadership is opposed to something, they can just kill it."

Boehner has claimed that "People are already protected in the workplace." He believes that the legislation would lead to "frivolous lawsuits" for businesses and "cost American jobs, particularly small business jobs."

Dr. Raechel Tiffe, a visiting professor at Merrimack College, says that's "absurd… To say that these lawsuits are unnecessary implies that the rights of LGBT people don't matter." Unfortunately, Tiffe adds, "That's in John Boehner's hands now."

Rick Garcia is similarly pessimistic about ENDA's chances in the House: "Unless [House Democrats] have a miracle up their sleeve, I don't see it happening."

4. Whether or not the bill passes, Obama has the opportunity to make a statement on LGBT discrimination.

Thompson notes that President Obama has the ability to pass "an executive order to prohibit workplace discrimination by federal workplace contractors." Says Thompson, "This would put in place binding LGBT workplace discrimination laws in all 50 states, providing the same protections as those based on race, sex or disability." UCLA's Williams Law institute estimates such a measure would affect over 16 million workers.

"President Obama and his administration have been real champions for LGBT equality," states Thompson. "Taking a step like this is very consistent with other actions that they have taken, and this should be such a no-brainer. This is something that President Obama has previously committed to doing and something he needs to get done."

5. The bill won't pass without public mobilization.

While Garcia believes in the ability of advocates and politicians to further ENDA legislation, he argues that the people will make the difference. "It comes down to the people in the districts who call their legislator, go to their legislator and tell their legislator what's important," says Garcia. "That's how it's going to get done. That's how it's always gotten done."

"It's going to be long and hard, but it doesn't mean we stop trying," says Garcia. "It means we keep pushing along."