A number of high profile LGBT rights groups have announced they cannot support the current version of the employment protection bill known as ENDA. Why are they doing this, and where do we go from here?
The National Gay and Lesbian Task Force was among the first groups to announce it was formally dropping its support for the bill. ENDA (the Employment Non Discrimination Act) was originally was designed to end anti-LGBT discrimination in the workplace. ENDA legislation passed the US Senate in November last year but it came with a major compromise. Chiefly, the language appears to allow broad religious exemptions that would mean businesses who claim to have sincerely held religious beliefs could still discriminate against LGBT employees and make hiring, firing and promotion decisions solely on the basis of sexual orientation.
Many groups had already raised serious concerns about this aspect of the legislation, and then came the Supreme Court “Hobby Lobby” decision. While that case dealt narrowly with an exemption based upon religious beliefs, the Religious Right has seized upon it as a window of opportunity for carving out exemptions from LGBT-inclusive nondiscrimination laws and ordinances. The Task Force seems to think the ENDA loophole, teamed with this appetite to undermine civil rights laws, creates a similarly dangerous precedent.
“The morning after the Supreme Court’s Hobby Lobby ruling, we all woke up in a changed and intensified landscape of broad religious exemptions being used as an excuse to discriminate. We are deeply concerned that ENDA’s broad exemption will be used as a similar license to discriminate across the country. We are concerned that these types of legal loopholes could negatively impact other issues affecting LGBT people and their families including marriage, access to HIV/AIDS treatment and prevention and access to other reproductive health services. As one of the lead advocates on this bill for 20 years, we do not take this move lightly but we do take it unequivocally – we now oppose this version of ENDA because of its too-broad religious exemption. We cannot be complicit in writing such exemptions into federal law,” said Rea Carey, Executive Director, National Gay and Lesbian Task Force Action Fund.
It should be highlighted and reiterated that the Task Force isn’t withdrawing support from the spirit of ENDA. In fact, one could argue that it is withdrawing support precisely because the religious exemptions defeat the bill’s purpose; the Task Force maintains it wants a bill that puts LGBT employment protections on the same footing as other legally protected classes like race and sex/gender.
Had the Task Force acted alone, this may not have been news–but that isn’t the case. LGBT legal group Lambda Legal has now also dropped its support for the bill, as has the ACLU. All of them cite the religious exemptions and concerns over the Right’s apparent agenda to use the Hobby Lobby ruling to push for yet more scope to discriminate. It appears that at least 8 LGBT/human rights groups have pulled their support for the bill.
As a side-note, this should instruct the Obama administration to resist calls to add religious exemptions to his planned executive order that would ban federal contractors from discriminating on grounds of LGBT identity. The Right has intensified its pressure on Obama, but so have LGBT and other civil rights groups. If the order does carry religious exemptions, we can expect the Right to try to undermine the order swiftly and with precision.
Back on the subject of the ENDA bill, other LGBT groups pulling their support has put the Human Rights Campaign in a difficult spot. It has championed ENDA, even with the religious exemptions, and earlier this week was forced to defend its continued support for the bill. Now, however, the Human Rights Campaign appears to have also decided ENDA isn’t going to work in its current form, and perhaps that it is outmoded. Arkansas native Chad Griffin, President of the HRC, penned an op-ed to explain that, while the HRC still supports ENDA with the religious exemptions minimized, the group actually wants a new, comprehensive LGBT rights bill.
This has been talked about in the past but at that time it was thought that it would never get through Congress. Well, with the current ultra conservative Republican House leadership, it still wouldn’t. But when the House falls back under Democratic control at some point in the next few years, a more comprehensive bill that incorporates ENDA along with many other nondiscrimination provisions, for instance covering education (like the SENDA bill), and housing/credit, should at least have a chance of passing.
But regardless of whether or not ENDA passes in this session of Congress, it is time for the LGBT movement to throw its weight behind a fully comprehensive LGBT civil rights bill. A bill that, at long last, would bar discrimination on the basis of sexual orientation and gender identity in all core civil rights categories–including housing, public accommodations, credit, education and, if ENDA fails to pass, in employment. This is a visionary idea that Congresswoman Bella Abzug brought to Congress in 1974. Its time has come.
Griffin maintains that the HRC will continue to fight for ENDA in this legislative session, but with the House Speaker refusing to bring the legislation to the floor, it’s probably dead and I’d wager the HRC knows it.
What all this adds up to, then, is a significant escalation of our expectations from Congress and a clear message that LGBTs are no longer prepared for incremental gains–but this comprehensive legislation will need to be without religious exemption compromises, or it will be just as toxic as the current form of ENDA has already become.
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