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Barney Frank defends position on ENDA

By Lisa Keen

Originally printed 10/18/2007 (Issue 1542 - Between The Lines News)

U.S. Rep. Barney Frank predicted this week that a version of ENDA with sexual orientation only will proceed in Congress this month and pass.

But in remarks on the floor of the House Tuesday, and in a press conference Thursday morning, October 11, he expressed disappointment, frustration, and anger over efforts by many LGBT organizations in the past week to "kill the bill" because it does not include protections for transgender people.

"We do not have the votes to pass the bill with transgender" protections, said Frank, in a press conference on Capitol Hill that was piped telephonically to reporters with gay news organizations around the country. While there are those in the LGBT community who believe "we should kill the bill," said Frank, "I have a very profound difference of opinion."

Frank has taken the brunt of criticism for the decision to cut "gender identity" out of this year's original Employment Non-Discrimination Act (ENDA) and put it into a separate bill to be considered later. Frank predicted the current bill, which seeks to prohibit job discrimination based on sexual orientation only (HR 3685), can pass the House in the next few weeks with a 15 to 20 vote margin.

Frank said he wouldn't expect the Senate to take up the bill until next year and that he does not expect the president to sign it until a Democrat is in the White House.

But stopping the bill now, he warned, would constitute a dramatic setback for the movement for LGBT civil rights.

Banning sexual orientation discrimination, said Frank, has been the LGBT community's goal for "a long time." But members of Congress, he said, have not been adequately lobbied and educated on the need for adding "gender identity" to the legislation.

Frank said he has already asked the chairman of the House Committee on Education and Labor to schedule a hearing on a second Employment Non-Discrimination Act (ENDA) that would prohibit discrimination in the workplace based on gender identity.

Asked what would happen if he kept both sexual orientation and gender identity in the bill, Frank predicted Republicans would have the votes necessary to send the bill back to committee indefinitely.

Although she did not mention Frank in her remarks, Rep. Tammy Baldwin (D-Wisc.) issued a statement later that day, saying, "I believe it is a mistake to concede defeat on any issue, before our opponents even raise it."

"The House leadership afforded supporters of the fully inclusive bill two weeks to demonstrate that sufficient support exists to withstand worst-case scenario assaults on the bill," said Baldwin. "...I hope that the effort will culminate in sufficient evidence that the votes exists to withstand attacks and pass a fully inclusive bill."

Frank's comments came in response to an unprecedented campaign to stop the two-bill strategy from proceeding. More than 200 LGBT groups around the nation have, in the past 10 days, signed onto a letter to House leaders asking them to "oppose any substitute legislation that leaves part of our community behind."

He questioned the motive of stopping a bill that would provide protections for "millions" in the LGBT community because it doesn't protect all.

But Mara Keisling, executive director of the National Center for Transgender Equality which, along with the National Gay and Lesbian Task Force and Lambda Legal Defense and Education Fund, has led the effort to stop Frank's two-bill strategy, says Frank's interpretation of what they're saying is "absolutely not what anybody is saying."

"This is not a question of somebody gets their rights or nobody does," said Keisling. "Nobody, including Frank, really expects any form of ENDA to go into law this year.

"What almost 300 LGBT groups, and all five of the national legal organizations, are saying," said Keisling, "is that gender identity protections are equally important for non-transgender gay people."

Keisling was referring to a legal analysis by Lambda Legal that contends that the loss of the words "gender identity" in the legislation seriously weakens the bill by making it possible for employers to claim that they are not firing someone based on their sexual orientation, but for being too effeminate or too mannish.

Frank says Lambda's analysis is flawed because, he says, no court has ever allowed an employer to get around sexual orientation discrimination in that way. But Lamda Legal Director Jon Davidson says cases on such discrimination is hard to find because people who are fired over their appearance or mannerisms often can't afford to file a lawsuit or, when they do, conservative judges rule against them at early stages when the cases are seldom published.

Meanwhile, the Human Rights Campaign continues to be the one organization that has not signed onto the letter to House leadership to oppose the bill.

HRC has argued that, as the premiere lobbying organization for the LGBT community, it cannot sign onto a letter that "opposes" the ENDA bill with sexual orientation only and expect to remain "part of the legislative process," explained HRC President Joe Solmonese in a statement October 5. But in that statement, Solmonese added his voice to those who say the two-bill strategy is "not acceptable."

Keisling said the group's absence is more a matter of "semantics" than substance. "They don't want to oppose" a gay civil rights bill, said Keisling, "but they do not want and don't support a split up bill."