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Rights of passage

Politics | Federal gay anti-discrimination bill alarms religious employers and constitutional lawyers

Issue: "Not angry anymore," Dec. 1, 2007

The Employment Non-Discrimination Act (ENDA), which bans bias against lesbians, gays, and bisexuals in the workplace, has little chance of becoming federal law anytime soon. Though it passed in the House of Representatives by a vote of 235-184 in November and could move through the Senate in the coming weeks, a response statement from the White House indicates President George W. Bush would veto the bill should it ever reach his desk.

Such political realities aside, the legislation raises important questions about the creation of protected classes, the defense of religious liberty, and the unity of the lesbian, gay, bisexual, and transgender (LGBT) movement. Many Christian conservatives condemn the bill for treating sexual orientation the same as innate human characteristics like race or gender. On the flip side, many LGBT advocacy groups are upset that the final House version affords no protection for the transgendered, a category that includes transsexuals and cross-dressers.

With so much opposition from the most impassioned and polarized forces on both sides of the issue, the bill's success depended on building a safe middle ground where moderate Democrats and Republicans could hide from significant political consequences. ENDA achieved that center with the removal of its initial transgender clause and the addition of a religious exemption, which allows churches, private religious schools, and explicitly religious businesses to uphold their convictions in employment practices.

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Accordingly, supporters of the bill sought to cast it as a careful step that respects the concerns of all interested parties. The liberal strategy group Third Way encouraged lawmakers to "concentrate on persuading the 'Grays,'" referring to "the large segment of the population that is ambivalent about, but not hostile to, expanding gay and lesbian protections."

Conservative opponents of the bill also sought to reach the undecided center, charging that ENDA is part of an incrementalist approach to a more radical agenda. Indeed, Rep. Barney Frank, D-Mass., one of two openly gay members of Congress and the author of the legislation, promised to continue fighting for anti-discrimination laws to protect transgendered people. Frank's initial version of the bill had included such protection, but he removed it after learning that freshman Democrats from conservative districts would never support it.

That moderating step infuriated much of the LGBT movement. The National Gay and Lesbian Task Force maligned ENDA as "not supported by most in the LGBT community." The United Church of Christ likewise condemned the bill for not including gender identity. Mike Schuenemeyer, the UCC's minister for LGBT concerns, vowed that in future legislation debates "LGBT ministries of the United Church of Christ will work very hard to make sure that the rights of our transgender sisters and brothers are included, as they should have been this time."

The gender-identity piece of the gay-rights movement has struggled to gain traction throughout the country due to widespread concerns among employers over the prospect of hiring cross-dressers. Only 13 states have passed anti-discrimination laws that include transgender protection. Legislation similar to ENDA has passed in 19 states.

The uneventful implementation of such laws in so many states undermines some of the conservative arguments against them. Rep. Buck McKeon, R-Calif., called ENDA "a trial lawyer's dream," but litigation over wrongful termination has not mushroomed in states with similar laws. Other conservatives say the bill would provide activist judges a foothold to advance the same-sex marriage movement, but that charge also has yet to play out in any state.

Conversely, the principled defense of religious liberty is immune to empirical rebuttal. Anti-discrimination laws based on sexual orientation trample the First Amendment rights of business owners. And the current language of religious exemptions provides little to no relief. "For any religious exemption to pass constitutional muster, it would have to apply to the individual business owner," said Matt Barber of Concerned Woman for America. "ENDA would unconstitutionally force business owners to abandon their faith at the workplace door and adopt a view of sexual morality which runs directly counter to central tenets of every major world religion and thousands of years of history."

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