Friday, November 9, 2007

The Democratic Side on the ENDA Debacle in the House

A review of the November 7, 2007 debate in the House of Representatives on H. Res. 793 to set up the rules for debate on H.R. 3685, the Employment Non-Discrimination Act, leads me to the following conclusions regarding the Democrats in the House (Republicans will be covered in a separate blog entry):

The carefully choreographed rule was designed to limit debate and to allow the introduction, brief discussion and withdrawal of the Baldwin Amendment to restore the protection for "gender identity" that had been stripped from the bill while it, or rather its predecessor, H.R. 2015, was in committee. This was a Kabuki-like dance of words designed only to bring the idea of protecting transgendered people from employment discrimination onto the floor of the House without permitting adequate timne for real debate, and no time at all for a vote.

As a result, there are perhaps only seven Democrats I can really count on for support, because they voted against the flawed bill on principle because it does almost nothing for anyone. They are: Rep. Yvette Clark (D-NY), Rep. Rush Holt (D-NJ), Rep. Michael Michaud (D-ME), Rep. Jerrold Nadler (D-NY), Rep. Ed Towns (D-NY), Rep. Nydia Velazquez (D-NY), and Rep. Anthony Weiner (D-NY). I applaud their principled stand, while not condemning the principled stand taken by those other Democrats in the House who voted in favor of the flawed bill because they would not vote against any bill to extend civil rights to even part of an oppressed minority. Some of them expressed as much in their remarks on the House floor and some inserted their remarks into the Congressional Record. I can respect that position.

I am appalled by the lack of moral fiber on the part of the House leadership that arranged this piece of choreographed theater without giving the Baldwin Amendment a chance at a vote. I do not blame Rep. Tammy Baldwin, because I believe the only opportunity the leadership gave her when the rule for debate was crafted, was to permit the introduction of the Amendment on condition that it be withdrawn prior to a vote. It was reported that this became the Speaker’s strategy because a couple of conservative Democratic first-term Representatives went to Speaker Nancy Pelosi to ask that there not be a vote. Rep. Baldwin would not have had the opportunity to introduce the Amendment without agreeing to ask for a withdrawal. I believe the failure to allow a vote was a serious tactical error, as bad an error as dropping the "gender identity" prpotection and watering down the "religious" loophole.

I am encouraged by the statements of Rep. Castor (D-FL), Rep. Barbara Lee (D-CA), Rep. Jerrold Nadler (D-NY), Rep. Dennis Kucinich (D-OH), Rep. Carolyn Maloney (D-NY), Rep. Rush Holt (D-NJ), Rep Welch (D-VT), Rep. Davis (D-CA), Rep. Moran (D-VA), Speaker Nancy Pelosi (D-CA), Rep. Linda Sanchez (D-CA), Rep. Langevin (D-RI), Rep. Stark ( ), Rep. Honda ( ), Rep. DeGette ( ), Rep. Waxman ( ), and Rep. Hirono ( ) (I plan to revisit this to get the states and fuller names for the imcomplete representatives).

Here are some of their trans-positive remarks, for those who wish to read but don;t want to poke around the Congressional Record:

Rep. Castor (D-FL): I do wish Ms. Baldwin would allow a vote on the amendment . I strongly support the amendment , as many of those in the Congress do. But this was her request, and this is the way the rule has been structured.

Rep. Barbara Lee (D-CA): The Baldwin amendment , which recognizes that transgendered Americans should have all of the protections and the rights of any person in America, should be included in this bill. It should include the Baldwin amendment . Because if we believe in who we are as a country, and if we believe that discrimination is wrong against anyone, then how in the world can we leave out a significant number of Americans in this bill? So, if it becomes law, transgendered Americans will still face discrimination in the workplace. And we must not let up until we ban discrimination against everyone.

Rep. Jerrold Nadler (D-NY): While I may disagree with some of my colleagues on strategy, I assure you that we are united in support of the ultimate goal, protection from employment discrimination for the entire LGBT community. . . . Transgender Americans, because of a lack of familiarity and understanding, are more likely to face employment discrimination and, therefore, more in need of protection from irrational discrimination that an inclusive ENDA would afford. And removing gender identity from ENDA may also leave lesbian and gay employees vulnerable to discrimination for failing to conform to gender stereotypes. In other words, some employers and courts may take an overly restrictive view that an exclusive ENDA fails to protect lesbians who appear ``too masculine'' or gay men who appear ``too effeminate.'' . . . . When the House considers ENDA today, I will support the amendment introduced by Congresswoman Baldwin to restore the protections from discrimination based on gender identity. Should that amendment fail, I will not be able to vote for the underlying bill because it fails to uphold adequately the American values of fairness, equality and inclusion, but I will continue to fight for a proper ENDA bill that includes all the people who need its help.

Rep. Dennis Kucinich (D-OH): I am very concerned, as my Republican colleagues are, that the Baldwin amendment can be offered and pulled back without a vote, because if it was given a vote, I would vote for the Baldwin amendment.

Rep. Carolyn Maloney (D-NY): I rise in strong support of the underlying bill and the Baldwin amendment. . . . I strongly support providing protection from discrimination to transgender Americans, and I will not rest until their right to live their lives free of fear, discrimination, and intolerance is the law of this land.

Rep. Rush Holt (D-NJ): Mr. Speaker, as a strong supporter of inclusive ENDA that provides employment protections for sexual orientation as well as gender identity, I am an original cosponsor of the original ENDA that was introduced earlier this year, the legislation we should be taking up today.

(Rep. Holt also added to the Congressional Record a letter from himself, Rep. Yvette Clark, Rep. Linda Sanchez, and Rep. Dennis Kucinich, dissenting from H.R. 3685, though only two of them (Reps. Holt and Clark) actually voted against the flawed bill.)

Rep Welch (D-VT): "I am glad that the rule makes in order the amendment by Representative Baldwin to include ``gender identity'' protections in the bill. I urge all my colleagues to support the rule, support the Baldwin amendment , and support the underlying bill."

Rep. Davis (D-CA): I rise in support, but I am sorry we are not debating a more inclusive gender identity bill today, which I would have supported, and let me tell you why. Employment discrimination strikes at a fundamental American value, the right of each individual to do his or her job without facing unfair discrimination. Transgendered people are among the most marginalized and vulnerable groups within the LGBT community.

Rep Moran (D-VA): As a sponsor of ENDA, I would have favored the further amendment by Congresswoman Baldwin , but the fact is that this is a civil rights struggle, and struggles take time.

Speaker Nancy Pelosi (D-CA): While ENDA's victory will represent an historic victory, I share the disappointment of TAMMY BALDWIN , BARNEY FRANK and others who support including protection for transgender individuals in ENDA.

Rep. Linda Sanchez (D-CA): . . . at the outset, I'd like to note that I did not vote for this bill in Committee, not because I don't support its goals--I do--but because I strongly believe that we could have done better by protecting more people from discrimination. That is why I am proud to support the amendment by my colleague from Wisconsin, that will add a prohibition against gender identity discrimination. This amendment is needed because protecting transgender people is the right thing to do. We're talking about a small group of people, but a group that faces tremendous discrimination and that deserves to be protected from workplace discrimination just as much as anybody else. Now that this bill is out of committee and on the floor, let me be clear, I will vote for it because it extends a basic right to millions of Americans. And that right is the right to go to work and earn a living.

Rep. Langevin (D-RI): I also want to voice my strong support for an amendment to be offered by the gentlewoman from Wisconsin, Ms. Baldwin , which would prevent discrimination based on gender identity. Rhode Island is one of 12 States that protect gender identity in employment, and our experience has been a positive one. Transgender individuals often have their own set of challenges in the workplace, and we must ensure that their rights are protected as well. I am deeply disappointed that the underlying bill does not include gender identity, especially as I am a cosponsor of a fully inclusive ENDA.

Rep. Stark ( ): No job applicant should be discriminated against because of his or her race, religion, gender, ethnicity, age, disability, political affiliation--or sexual orientation or gender identity. . . . This legislation succeeds in advancing civil rights. However, it still falls short of what needs to be accomplished. By no means is this bill as inclusive as it should be. It fails to include gender identity as a protected class. I commend Congresswoman BALDWIN for her efforts to include the transgender community in today's legislation. Had her amendment reached a vote on the House floor, I would have proudly supported it.

Rep Honda ( ): Sadly, more inclusive language was narrowed to exclude the most vulnerable, least understood group within the LGBT community, transgender men and women. I congratulate Representative BALDWIN on offering an amendment to re-insert this wording into the underlying bill and I proudly support her effort. Although this amendment was withdrawn, I was prepared to vote in its favor.

Rep. DeGette ( ): I will cast my vote with deep regret the trangendered community has been denied the protections offered to gays and lesbians in this bill. I did not support its removal from the overall legislation and am extremely disappointed that it will not be included when the House passes H.R. 3685.

Rep. Waxman ( ): As an original cosponsor of H.R. 2015, a more comprehensive version of this legislation, I am disappointed that H.R. 3685 does not protect against discrimination based on gender identity. I strongly support the amendment Representative Baldwin will offer to include gender identity in H.R. 3685 and if that amendment is not adopted, I pledge to work for an ENDA that includes gender identity.

Rep. Hirono: As an original cosponsor of the original ENDA, H.R. 2015, I am glad to be able to have this opportunity to debate the BALDWIN amendment to include anti-discrimination protections for transgender individuals. It is unfortunate that political realities made it difficult to bring an inclusive ENDA to the floor today in the first place.

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