Non-Discrimination Bill Gives the Religious the Right to Discriminate
The Employment Non-Discrimination Act (ENDA) was reintroduced into Congress on Thursday, but a number of pro LGBT legal groups are not happy with a particular aspect of the bill — its sweeping religious exemptions that they say give religiously-affiliated facilities a blank check to discriminate.
ENDA Introduced into the 113th Congress
ENDA was introduced on Thursday, April 25 as (H.R. 1155) in the House, where the bill enjoys bipartisan support from 159 co-sponsors (3 Republican and 159 Democratic legislators), and (S. 815) in the Senate, where the bill has five co-sponsors (two Republican and three Democratic legislators).
The bill was introduced in the House by Congressman Jared Polis (D-CO) and Congresswoman Ileana Ros-Lehtinen (R-FL), and in the Senate by Senators Jeff Merkley (D-OR), Mark Kirk (R-IL), Tom Harkin (D-IA), Susan Collins (R-ME) and Tammy Baldwin (D-WI).
In both instances, the legislation has now been referred to committee.
What Exactly Would ENDA Do?
At the time of writing, the language of the bill is not yet available, but it is said to resemble previous incarnations very closely and the main purpose of the bill remains unchanged.
With that in mind, we know that the bill will prohibit private employers with more than 15 employees from discriminating on the basis of sexual orientation, gender identity and gender expression. Non-profit membership-only clubs, except labor unions, would be exempt, and the bill has always excluded the military, except in instances of civilian employment.
During the 111th Congress, the legislation had added to it a provision that stated ENDA could not be used to challenge the federal Defense of Marriage Act. The ACLU and Lambda Legal, who have both seen the text of the bill, confirm that this provision is no longer included. This is seen as a significant victory because it represents DOMA’s further decline.
While it is still not yet clear how the bill will square civil unions and domestic partnerships, ENDA has, sine the 110th Congress, carried exemptions stating that an employer will not be required to treat non-marital legal relations like civil unions and domestic partnerships in the same way as marriages. Due to the patchwork of legal recognition states currently afford same-sex couples, it is unlikely this provision will be abandoned in the near future.
The most significant positive change for trans people is the abandoning of language found in previous versions (2009, 2011,) that would have compromised a trans person’s coverage in certain public accommodations such as shower and locker rooms.
Why Have Some Pro-LGBT Legal Groups Raised “Grave Concerns” About the Bill?
ENDA has always carried exemptions for religious entities, but a new framework for religious exemptions said to be present in this bill’s text has a number of legal groups worried because it could give religiously-affiliated public facilities like universities and hospitals the right to fire LGBT staff.
This is because the bill draws on Title VII of the Civil Rights Act of 1964, which carries broad exemptions for religiously-affiliated entities. Crucially, Title VII does not allow discrimination on grounds of race, ethnicity, sex, or national origin, but it does not enumerate sexual orientation or gender identity or expression and as such would leave LGBTs vulnerable.
Lambda Legal explains in its press release on the bill why this is worrying:
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.
There has been growing concern over the religious exemptions fever that seems to be sweeping the United States with a number of Legislatures including Kansas, Michigan and Tennessee, to name but a few, working hard to enshrine a religious right to discriminate in law and often at the expense of LGBTs.
Lawmakers would likely argue that, given ENDA or ENDA-like legislation has languished in Congress since 1974, some concessions are necessary. Certainly, carving out appropriate concessions is part of every legislative process. However, critics say this aspect of the bill sheers off vast swathes of protections and goes too far.
Will ENDA Pass the 113th Congress?
Unlikely. It would be remarkable should the bill even make it out of House committee, in fact. Rather, this reintroduction is to set the stage for such a time as when Democratic legislators hold a majority in the House and can (unlike in previous sessions) muster the will to take action on the bill.
Given that only 21 states and the District of Columbia have passed laws prohibiting employment discrimination based on sexual orientation, and only 16 states and the District of Columbia prohibit discrimination relating to gender identity, it is hard to overstate how important ENDA is to the LGBT community.
This also largely explains the continued frustration over the Obama administration’s refusal to issue a ENDA-like executive order while we wait for Congress to act.
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