Education and Labor Committee Staff Does Excellent Job on ENDA Report

Press Release

EDUCATION AND LABOR COMMITTEE STAFF DOES EXCELLENT JOB ON ENDA REPORT -- (Extensions of Remarks - November 13, 2007)

[Page: E2399]

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SPEECH OF
HON. BARNEY FRANK
OF MASSACHUSETTS
IN THE HOUSE OF REPRESENTATIVES
TUESDAY, NOVEMBER 13, 2007

* Mr. FRANK of Massachusetts. Madam Speaker, during the debate on the Employment Non-Discrimination Act, critics of the bill--both those who objected that it did too little and those who claimed that it did too much--made a number of arguments about the bill that were flatly wrong. Fortunately, under the leadership of the chairman of the committee, the gentleman from California Mr. Miller, and the Chairman of the subcommittee, the gentleman from New Jersey Mr. Andrews, the staff of that committee did a first-rate report rebutting those inaccurate criticisms. Often, reports of this sort, while reflecting a great deal of work, are ignored. In this case, Professor Dale Carpenter, a law professor who has been an excellent source of accurate information about the true meaning of the legislation, called attention to the committee staffs work in a recent internet posting.

* Madam Speaker, as Professor Carpenter points out, ``This sort of legislative history does not dispose of controversies over the meaning of ENDA. But it does offer a reasonable and persuasive interpretation of the bill that will likely play a role in future litigation. The committee legal counsel who worked on this report anticipated many of the objections to ENDA from President Bush's advisors and from transgender and gay activists ..... They did an extraordinary job walking the fine line between an interpretation of ENDA that is unduly crabbed and one that is objectionably expansive.''

* Madam Speaker, in the interest of disseminating in the widest possible way the accurate interpretation of ENDA that is reflected in this report, the importance of which is underlined by Professor Carpenter, I ask that the part of Professor Carpenter's posting dealing with the report be printed here.

* Excerpt from Professor Dale Carpenter's internet posting:

Little noticed in the run-up to the House vote was the Labor Committee report that accompanied the bill. The report was prepared by attorneys who work for the committee. Much of the report is devoted to recounting the history of the numerous attempts over the past 33 years--beginning with the first bill introduced by Bella Abzug in 1974--to get Congress to deal with anti-gay employment discrimination. That history tells a story of painfully slow political progress made in each session of Congress, with more co-sponsors backing an anti-discrimination bill in every session. Other parts of the report document the prevalence of anti-gay job discrimination, as well as the economic and psychological impact of such discrimination.

In the section-by-section analysis of the committee report, I noticed a couple of passages relevant to the recent controversy over adding ``gender identity'' to the bill. On p. 31, the report notes that ENDA forbids discrimination based on ``actual or perceived sexual orientation.'' Thus, ``ENDA creates a cause of action for any individual--whether actually homosexual or heterosexual--who is discriminated against because that individual is `perceived' as homosexual due to the fact that the individual does not conform to the sex or gender stereotypes associated with the individual's sex.'' Obviously, this interpretation of ENDA offers some protection to those employees whose gender nonconformity leads others to assume they're gay or lesbian and then suffer discrimination on that basis. It doesn't protect transsexuals or crossdressers as fully as adding ``gender identity'' to the bill would have, but the bill moves in that direction.

Additionally, on p. 33, the report puts to rest any fears that stripping ``gender identity'' from the bill would lead federal courts to conclude that Congress meant to impliedly reverse Price Waterhouse v. Hopkins, a 1989 case in which the Supreme Court held that sex stereotyping violates Title VII. The report concludes that Section 15 of ENDA, entitled ``Relationship to Other Laws'':

Preserves provisions in other Federal, state, or local laws that currently provide protection from discrimination. For example, Congress does not intend to overrule, displace, or in any other way affect any U.S. Supreme Court or other federal court opinion that has interpreted Title VII in such a way that protects individuals who are discriminated against because they do not conform to sex or gender stereotypes. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female plaintiff brought successful Title VII claim after she was denied partnership in an accounting firm because she did not conform to female sex stereotype); Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (male plaintiff brought successful Title VII claim after he was subjected to a hostile work environment because he failed to conform to a male stereotype).''

This sort of legislative history does not dispose of controversies over the meaning of ENDA. But it does offer a reasonable and persuasive interpretation of the bill that will likely play a role in future litigation. The committee legal counsel who worked on this report anticipated many of the objections to ENDA from President Bush's advisors and from transgender and gay activists disappointed that the bill isn't more comprehensive. They did an extraordinary job walking the fine line between an interpretation of ENDA that is unduly crabbed and one that is objectionably expansive.

ENDA is the product of decades of work by gay advocates whose efforts once seemed quixotic. In 1974, Abzug's bill had only four co-sponsors and was completely ignored by the House Judiciary Committee. Yesterday 235 members of the House backed the same basic idea.

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