Senate Committee Holds Hearing Into ENDA; Harkin Gives No Commitment on Mark-Up Session

[Photo: Lee Badgett, left, and Kylar Broadus are seated as Sens. Tom Harkin (D-Iowa), right, and Al Franken (D-Minn.) introduce themselves to Sam Bagenstos, third from left, and Ken Charles. (Photo by Chris Geidner.)]

The Senate Health, Employment, Labor and Pensions Committee held a hearing this morning into the Employment Non-Discrimination Act, which has been pending in Congress off and on since 1994. Although a majority of the committee is co-sponsoring the legislation to ban private employers from discriminating on the basis of sexual orientation and gender identity, HELP Committee Chairman Tom Harkin (D-Iowa), after the hearing, would not commit to a mark-up session on the legislation, which would be the next step forward for the bill before a committee vote.

“I’m going to poll my committee and see,” Harkin said, noting that his first priority is getting legislation addressing the powers of the Food and Drug Administration — passed in May by the Senate — “put to bed,” which will require working with the Republican-led House to reach agreement on the final bill.

If a committee vote can be held, though, Harkin said further: “I wish we could have a floor vote. I would like to see a vote on this because I think it’s something the American people ought to know where we stand on this issue. Listen, this is not an issue that bothers me. It might be difficult for some people, but it’s not difficult for me.”

No Republicans attended today’s hearing, and Republicans only used one of the two witness spots allocated to them. Sens. Susan Collins (R-Maine), Mark Kirk (R-Ill.) and Olympia Snowe (R-Maine) are the only Republican co-sponsors of the bill’s 42 co-sponsors.

Referencing the bipartisan support achieved during the passage of the Americans With Disabilities Act, the final Senate vote on which was 91-6, Metro Weekly asked Harkin, who sponsored the ADA, why the experience with ENDA has thus far been so different. 

Harkin sighed, then said, “I don’t know. There’s some psychology involved here or something because, obviously, we have corporations and companies that probably lean more to the Republican side of the issues than the Democratic side that are very supportive of this. I don’t know. I just — I’m not going to speculate. I’ll have more on that later.”

The witnesses who testified today in support of ENDA today included Lee Badgett, the research director of the Williams Institute for Sexual Orientation Law and Public Policy at UCLA; Kylar Broadus, the founder of Trans People of Color Coalition, Columbia, Missouri; Samuel Bagenstos, professor of law at University of Michigan Law School; and Ken Charles, vice president of diversity and inclusion at General Mills.

In opening the hearing, Harkin said, “The issue here could not be simpler or more straightforward: it is long past time to eliminate bigotry in the workplace and ensure equal opportunity for all Americans. It is time to make clear that lesbian, gay, bisexual and transgender Americans are first-class citizens. They are full and welcome members of our American family. And they deserve the same civil rights protections as all other Americans.”

The only witness opposing the bill was the same person who testified at the most recent ENDA hearing, which was in the 111th Congress. Craig Parshall, the senior vice president and general counsel of the National Religious Broadcasters Association, spent most of his testimony discussing the religious exemption to the bill. 

Of claims by opponents of the bill, Harkin said, “Just as in debates leading to passage of … earlier civil rights bills, we are hearing claims today that ENDA will lead to a flood of lawsuits or be an undue burden on religious organizations or businesses. I think these claims are baseless.”

After Broadus’s opening statement, Harkin acknowledged the bit of history being made at the hearing, saying, “I have been told by my staff that you are indeed the first transgendered individual to testify before the U.S. Senate. I am proud of this committee. I am proud of the people on this committee that would invite you here.

He added: “And, as chairman, and [for] my staff, I thank you for being here. I want to commend you for your courage for being here and for being who you are because you’re going to give courage to a lot of other people, so I commend you for that.”

When questioned about the impact of anti-transgender discrimination in the workplace, Broadus said, “People lose their career. It’s over, once people find out your transgender, if you choose not to hide it. It also, if you choose to hide it, limits your productivity … because you’re so fixated on pretending to be somebody that you’re not. And, then, the lasting longevity of the emotional scars if you suffer discrimination in workplace, as well as the economic scars, which I still extremely struggle with. They’re just phenomenal.”

In describing his opposition, Parshall said, “It’s my opinion that ENDA, as it stands now in the form of Senate Bill 811, would impose a substantial unconstitutional burden on religious organizations. Furthermore, it would interfere with their ability to effectively pursue their missions.”

Although Parshall and Bagenstos engaged in a respectful back-and-forth discussion about those claims regarding the current language, others say the language is too broad and should be narrowed.

In proposing the narrowing of the current religious exemption in ENDA, Laura Murphy, the director of the ACLU’s Washington legislative office, and Ian Thompson, ACLU’s legislative representative, wrote to Harkin and the committee’s ranking Republican, Sen. Michael Enzi (R-Wyo.), “We believe that the existing Title VII exemption — which allows religious organizations the ability to restrict their hiring based on religion, but not to engage in race, sex, or national origin discrimination, for example, offers sufficient protection to religious organizations. There is no reason to adopt a different exemption for LGBT discrimination by those organizations.” 

In addition to Harkin, one of ENDA’s lead sponsors, Sen. Jeff Merkley (D-Ore.), attended the hearing, as did Sens. Al Franken (D-Minn.) and Patty Murray (D-Wash.). Collins, who is not on the committee, asked for and was granted the chance to issue a statement that will be placed in the record in support of the legislation. Kirk, who is on the committee and a lead sponsor of the bill in this Congress, suffered a stroke in January of this year and has not been in the Senate since then.

Freedom to Work president Tico Almeida said he was “heartened” that Murray told Harkin during the hearing that she hoped Harkin would act to move the bill out of committee “expeditiously.” Almeida added, “LGBT Americans deserve a vote of the full Senate …. Sen. Reid promised three years ago that a vote was coming ‘soon,’ and almost three years have passed without any vote.”

Addressing the longstanding nondiscrimination protections of Minnesota law, Franken at one point remarked, “Most Minnesotans still go to church, we’re still entitled to our own personal opinions, but LGBT workers are protected from discrimination at work.

“We can extend these common-sense protections to all workers by passing ENDA.”

[NOTE: The story was expanded and updated after today’s hearing, with the final update at 5:15 p.m.]