A Game Plan for ENDA

Transgender inclusive Senate hearings would build a pathway to future success

Representatives Barney Frank (D-Mass.) and Ileana Ros-Lehtinen (R-Fla.) recently introduced the bipartisan and fully inclusive Employment Non-Discrimination Act (ENDA). But let’s be honest. ENDA is not going to pass this year.

The Obama administration may well create an executive order requiring federal contractors to guarantee workplace fairness for LGBT employees. But what can we reasonably hope to accomplish in Congress on ENDA in the short run?

Sen. Tom Harkin (D) of Iowa – a longtime progressive leader – currently presides as chairman of the Senate Labor Committee. He can and should organize an ENDA hearing during the upcoming year. Making up for mistakes made in the past, he can and should call one or more transgender Americans to testify at that hearing.

To begin, a quick survey of ENDA’s recent history on Capitol Hill is worthwhile. I had a front-row seat to most of this legislative process because of my role as ENDA’s lead counsel in the U.S. House of Representatives, where I worked for three years as labor counsel for Rep. George Miller (D-Calif.).

During the period from 2007 to 2009, our staff on the House Labor Committee organized three separate ENDA hearings, and we called five transgender witnesses to testify. One of the three hearings was specifically focused on workplace discrimination against transgender Americans. We of course also called many gay and lesbian witnesses, and straight allies, too.

I had a significant role in selecting witnesses for our ENDA hearings, and I made it a priority to invite transgender Americans to tell Congress their stories. I vividly remember sitting in the counsel’s chair on the committee dais as Vandy Beth Glenn testified somberly about being fired on the same day she told her employer that she planned to transition from male to female. I watched as several members of Congress quietly teared up and shook their heads in sadness while listening to her speak.

After working on ENDA for three years in Congress, my most certain conclusion is that we will surely win this legislative battle if more LGBT victims of senseless workplace discrimination can tell their stories – to Congress, to the media, and to their neighbors and friends – and demonstrate to the American people that all we are seeking is a law granting us an equal shot to hold down a job and build a happy life. ENDA is fundamental to the American dream.

Now, contrast our three House ENDA hearings with the lone hearing during the same period by the Senate Labor Committee. Despite urging from various LGBT advocates well in advance of that hearing, the Senate staffers refused to call a single transgender American to testify.

On the day of the Senate hearing, Diego Sanchez from Rep. Frank’s office explained to The Advocate magazine that the problem with excluding transgender witnesses is that it sends a ”signal that [transgender people] are disposable.” In fact, that decision did send all the wrong signals. Over in the U.S. House of Representatives, some concluded that if the Senate would not even call a transgender witness to a hearing, our colleagues in the higher chamber of Congress were unlikely to actually call a vote on a fully inclusive ENDA before the end of the session.

I should note here that to my knowledge, the decision to omit transgender Americans from the witness list was made at the staff level. From what I know of Chairman Harkin and his commitment to advancing workplace justice, he would have insisted upon inviting a transgender American to speak at his hearing if he had known in advance there was a controversy.

But that is history. ENDA has been reintroduced, and we should look forward. During the upcoming year, Chairman Harkin can and should organize an ENDA hearing. He can and should call one or more transgender Americans to testify. I have the highest respect for Mr. Harkin, and I am willing to bet he will be on our side.

Tico Almeida is a civil rights litigator at Sanford Wittels & Heisler LLP.