IS THIS JUST ABOUT DONATIONS?
By Melanie Nathan, November 04, 2013.
On Thursday the Senate Majority Leader Harry Reid (D-Nev.) filed cloture on the Employment Non-Discrimination Act (ENDA). It stands before the Senate as I write. But is it right? For the past few weeks we have been bombarded with e-mails from Senators and LGBT organizations alike, to support ENDA, as it currently stands in the Senate, noting, that each and every e-mail we receive has the usual “donate now” button attached to the call for action. I do not understand why almost all in our community, organizations and politicians alike, on the side of equality, support a Bill that has such great potential to cause more harm than good. And in any event we all know it will not pass the House. So what is the point-especially if there are already protections in place, with less onerous religious exemptions and about which no one seems to want to talk.
ENDA in its current form is riddled with broad and onerous religious exemptions, which are unacceptable. Yet HRC, Freedom to Work, Democratic leadership and many others are urging its passage in the Senate, as is!
What most fail to mention are the protections already in place for LGBT people through the Mia Macy case where the Equal Employment Opportunity Commission (EEOC), ruled in April 2012, that the federal discrimination law will now protect employees based on gender identity. Employers who discriminate against an employee or potential employee is in violation of Title VII of the Civil Rights Act of 1964. As of a few weeks ago the law goes further to apply to contractors and may also apply to lesbians and gays under the notion of “gender stereotyping.”
The ENDA Bill is being described as a critically necessary and a politically risky bill at the same time. It is also being touted as the most profound gay rights bill to be heard in the Senate since the repeal of DADT. Yet we have barely heard from anyone, at this critical time, about the risks the religious exemptions actually pose to LGBT people, especially given the gains in case law, such as in the Mia Macy case and the other cases mentioned in that ruling.
Only one Senator is talking about the harm that the bill can cause for LGBT people and that is Senator Sherrod Brown. Even Speaker Boehner has fallen for the political ploy that passage would be a victory for LGBT people. In fact the religious exemptions are so onerous and so broad that if Boehner had half a brain he would push it through this Congress so quickly, as in essence, it gives license for discrimination against LGBT people in a manner that may not otherwise be there unless passed. John Boehner told MSNBC he will not support ENDA in the House as he believes it will increase frivolous litigation and cost American jobs. I am actually grateful that Boehner does not have the brain to get that the religious exemptions serves his side far better than than the progressive side of the argument, especially given the ground we have won through existing case law and via the EEOC.
When ENDA was introduced earlier this year, the ACLU called for a narrowing of the religious exemptions and along with groups like the National Center for Lesbian Rights, Lambda Legal, the Transgender Law Center, the National Gay & Lesbian Task Force, expressed serious concern for the exemptions. Except for GetEQUAL, a group which is making it known, at this time, that the exemptions are still a concern, all the groups are currently silent about their prior concerns, and all seem to be participating in the current push for ENDA.
Earlier in the year, NCLR, The Transgender Law Center and others noted:
While we applaud the progress that has been made, we stand united in expressing very grave concerns with the religious exemption in ENDA. It could provide religiously affiliated organizations – far beyond houses of worship – with a blank check to engage in employment discrimination against LGBT people. Some courts have said that even hospitals and universities may be able to claim the exemption; thus, it is possible that a religiously affiliated hospital could fire a transgender doctor or a religiously affiliated university could terminate a gay groundskeeper. It gives a stamp of legitimacy to LGBT discrimination that our civil rights laws have never given to discrimination based on an individual’s race, sex, national origin, age, or disability. This sweeping, unprecedented exemption undermines the core goal of ENDA by leaving too many jobs, and LGBT workers, outside the scope of its protections.
We are fully committed to continuing to work for the passage of ENDA and an appropriate exemption for religious organizations. We remain hopeful that our allies in Congress will agree that singling out LGBT people alone for this kind of unequal and unfair exemption to otherwise applicable non-discrimination laws has no place in this historic legislation.
American Civil Liberties Union
National Center for Lesbian Rights
Transgender Law Center
Only GetEQUAL is speaking out today against the above broad exemptions and most organizations have failed to keep the concern about it alive and in the public eye.
When I did not see anything out in the past week about the broad religious exemption concern as a current issue, and only noted the the push-push for ENDA, as is, I contacted a few groups:
Ilona Turner, Legal Director fro Trasgender Law center responded:
“Just to clarify, Title VII, the law that the EEOC was applying in Macy — a case brought by Transgender Law Center — does have a limited religious exemption. It’s just much narrower than the exemption in the current version of ENDA, which is why we are concerned.Transgender Law Center is very proud of our win in the Macy case, and we have said repeatedly that it’s critical to get the word out to transgender people and employers everywhere in the country that after Macy, transgender folks across the country now have recourse if they face discrimination on the job. We described the likely impact of the Macy decision in an FAQ we issued last year: http://transgenderlawcenter.org/issues/employment/eeocfa and also in a guide to filing complaints with the EEOC that we put out earlier this year: http://transgenderlawcenter.org/issues/employment/eeoccomplaint “
Yet, in truth all the groups are not speaking out publicly at this time, except GETEQUAL, about their concerns and they are simply allowing ENDA to pass the Senate as is.
Also the LGBT organizations are not only seeming to accept the onerous broad religious exemptions currently attached to ENDA, but no one is providing the critical information needed to the transgender, as well as lesbian and gays communities, that they already have full legal protection against employment discrimination through the impact of the Mia Macy case rulings. Why have we not been educated, on a large scale, by these organizations to assume our rights under the EEOC. Why is the information on this barely out in there? Why have the LGBT organizations not held seminars and sent out notifications that LGBT people can lodge discrimination complaints to the EEOC under current law? Why is everyone so silent about the gains we have made? Yet so noisy about the passage of ENDA? While constantly hitting us with e-mails about ENDA – we barely hear about the remedies that are there in place, already.
Amidst a barrage of e-mails, to include those from Senators Leahy, Gilibrand, Franken, Baldwin and others, President Obama led the charge with yesterday’s OPED in the Huffington Post, calling for swift passage of ENDA. Neither the President nor any Senator even so much as mentioned the broad religious exemptions. And no one is talking about the Mia Macy case either.
Chad Griffin, of The Human Rights Campaign, who together with the Center for American Progress and Freedom to Work, not only justified but also endorsed the current broad religious exemptions in ENDA. Griffin appeared on MSNBC a few minutes ago, calling for unconditional passage of ENDA as it stands now. He noted:
“Lets take stock of this vote. It is a no brainer for the American public. It has incredible bi-partisan support. Its a common sense American value.”
But not once did Griffin mention the onerous exemptions. Like the others, Griffin is setting us up for the idea that a win in the Senate for the Bill, as is, is a victory for LGBT equality. I disagree!
Protecting folks from being fired seems to be Griffin’s reason for pushing this form of ENDA, yet he failed to mention we are already protected under Title VII of the Civil Rights Act of 1964. Why?
The Washington Blade, one of the few in addition to us here at OBLOGDEE, reports on the concern for these exemptions and notes that Derek Washington, lead organizer for the LGBT group GetEQUAL Nevada, said he raised these concerns with Senator Reid on a telephone call on Thursday.
The column notes that the language of the religious exemptions currently in ENDA is onerous and broader than similar exemptions under Title VII of the Civil Rights Act of 1964 for categories of race, gender, religion and national origin.
“I mentioned to him that it was something that just was not palatable,” Washington said. “I asked him what he felt about it, and he felt that the main thing to do was get the vote taken care of, and then deal with it later. As often times happens, you don’t get something perfect the first time around, you go back and fix it later, so that was basically his take on it.”
Why are all the LGBT organization, which had previously expressed serious concern on the exemptions, now silent on the issue of the broad exemptions? Is this a safe way to conduct business on the Hill? To hope that maybe somebody on the floor or at some point in the process will bring up a discussion on the religious exemptions. And what is the chance of that when no one from our lead groups are mentioning it at all?
To me it feels like Russian roulette – especially when our own lead organizations have actually endorsed the exemptions and are publicly seen as satisfied with ENDA, the way it currently stands – with the broad and onerous religious exemptions. Their justification – to get it past the conservatives? Is that a good reason to marginalize our equality? To give license to discriminate when we already have laws to protect us? We are better off without it at all. Or surely we should be waiting for an emboldened Congress, one that is on our side, not against us, where we do not have to resort to legislation that includes the “right” to discriminate against us based on these broad religious exemptions.
Where are the progressive Democrats on the issue? Judging by the myriad of e-mails I have been receiving from every corner, it seems all are complicit in the marginalization, without any antecedent explanation as to intent when it comes to a later amendment or modification of these exemptions.
It seems all anyone wants is a so-called “victory” at any cost, and such seems to include our own marginalization. Clearly if HRC or any of the others were to talk about the ‘bad’ exemptions, then there is no victory and all will lose yet another fund raising opportunity.
The spin today is clear – all I am hearing is that we must pass ENDA. President Obama on Huffington Post, Nancy Pelosi, and all those Democratic senators mentioned above. Not to mention ‘would be’ members of Congress such as Sean Eldridge, also using “Pass Enda” as a call to donate. I have received e-mails from Organizing for Change, Credo, Cyndi Lauper’s Give A Damn, and many more attaching a “donate” button to their calls for this ENDA and not one,of them even mentions the potential risk and harm that this legislation poses if it passes in its current form.
I just don’t get it. It is unconscionable.
Today while ENDA stands before the Senate, no one else is talking about what we already have in place and few are talking about how we must amend those religious exemption if we are going to pass ENDA in the long run.
The Blade article went on to note that:
That symbolizes the situation with narrowing the broad religious exemption in ENDA before the Senate approves the bill. Despite concerns that it’s too expansive, the idea of limiting it at this time — such as the amendment process — isn’t getting a lot of traction either from LGBT advocates or lawmakers.
Instead, those with concerns over ENDA’s religious exemption have more modest aspirations: Get LGBT friendly lawmakers in the Senate to speak out against the language on the Senate floor.
Ian Thompson, legislative representative for the American Civil Liberties Union, is among those saying he’s not seeking an amendment to religious exemption on the Senate floor, but wants the provision addressed in some way.
So does that mean even the ACLU is selling us out? Or will we really see a heartfelt discussion on the floor today?
The Blade: “By doing that, it’s certainly our hope more and more pro-equality members of Congress and their staff will come to understand the potential harm of the current exemption, and I think we’ll see growing support for narrowing it moving forward,” Thompson said.
Heather Cronk, co-director of GetEQUAL, said her organization “didn’t anticipate” being able to change the religious exemption, but is looking for senators to speak out against the language.
“What we were hoping for for — which hasn’t happened yet because the senators haven’t gone to the floor yet — is for some of the more progressive senators to speak out from the floor against the religious exemption,” Cronk said. “So, we’ll wait and see what happens on the floor to see if we get those statements.”
GetEQUAL has petitioned four senators with a reputation for being champions of progressive values — Sens. Kirsten Gillibrand (D-N.Y.), Elizabeth Warren (D-Mass.), Sherrod Brown (D-Ohio) and Al Franken (D-Minn.) — to speak out against the religious exemption. As of Sunday, the petition has just under 6,000 signatures.
Granted, many are of the opinion that Congress will not pass any ENDA through the House, not even an ENDA that is tainted by broad religious exemptions. So what is the point of this fight – the pleas- the money please? Why do we fight for something that is not good enough and maybe even downright bad? Perhaps it IS all about the rah rah of a perceived victory that is really all about money. Another “send us more please,” opportunity!
Also On Nov 01, HRC sent out this statement in an e-mail pushing for the ENDA vote:
“Here’s the problem,” notes the HRC statement, “Right now in 29 states, there is no state law protecting a gay, lesbian, or bisexual person from being fired or denied employment just because of who they are? and the same is true in 33 states for transgender people.”
I ask, does anyone believe this to be an accurate statement, given there is no mention in the e-mail of Mia Macy remedies, and if it is accurate I would like an explanation as to why the Mia Macy case does not cover the cases anticipated by this statement?
I spoke to Mia Macy, who fought to secure transgender rights with her case that ought to now have landmark status, yet is barely cited by lead organizations. She noted that her biggest concern, including the fact that the gains she contributed to with her case yield only narrow religious exemptions and not the broad exemptions that ENDA could now impose, is that there is not an abundance of the critical information out there for LGBT employees and potential employees to note, that they have remedies and valid complaints under current law for workplace discrimination.
She noted that this information, if properly out there now, could actually help and even save lives of so many who have been discriminated against in the workplace. “So many do not know about this EEOC ruling that became law from the case of Macy v. Holder and are despondent when fired.” She told me that she believes because of the hype around ENDA, it is perceived now by so many as the only chance of a remedy, is far from the truth, and many people do not know that they are already protected. It is up to our organizations to provide all of the information and to do it clearly, not selectively. They have failed. And the Democrats seem to be in lockstep. What a shame.
So with that said, ENDA is about to pass the Senate cloture and while it is not good enough and not likely to pass the House, can we please start talking about and spending some of our LGBT dollars on getting the word out that there are remedies available, right now!
UPDATED 11/04/2013- 5:20 PM
UPDATED 9.05 Pm PST Nov 04, 2013.: Here come the Fund Raising letters since ENDA passed the cloture… In fact some organizations are incorrectly are saying it passed the Senate, instead of noting it passed the procedural cloture and is coming up for debate: