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Monday, November 11, 2013

ENDA: Why LGBT's and Straights Should Care.

A few months ago a U.S. Senate committee passed the Employment Non-Discrimination Act, or ENDA. Thursday the Senate voted 64-32 to approve ENDA. The National Gay and Lesbian Task Force, a LGBT grassroots organization and think tank, monitors the progress on range of LGBT issues one of which is the ENDA. On its website the group keeps a running tally of Senators who are “evolving” their viewpoint in favor of EDNA legislation. The bill would ban discrimination based on sexual orientation or gender identity — protections that are, as yet, not explicitly guaranteed under federal statutes.

It seems as if an American social paradigm shift is accelerating when it comes to issues concerning civil rights and equality. You might think that it's just an academic exercise conducted for and by legal scholars and lawmakers. If that's true, then as evidence you would surely invoke both The Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 as landmark pieces of legislation guaranteeing equal treatment as an American citizen under the constitution. The former ensures equal civic rights to all Americans which was spearheaded by fundamental civil rights being granted to African-Americans in the America. The latter endows equal opportunities and anti-discrimination measures to Americans with physical and mental handicaps.

If you thought the premise of anti-discrimination was merely an enforcement question of laws and statutes already on the books, then you would be dead wrong. The inherent nature of intricate legalese prohibits generalizations and “blanket” uniform coverage under the law.

The recent advancements of same sex marriages as well as the dismantling of the Defense of Marriage Act has sent the centrists, leftists and right wingers down a rabbit hole that appears to be bottomless. One of the newest and simultaneously longest running bills which would protect equality in the workplace is gaining notoriety and traction in all three camps. The bill in question is the Employment Nondiscrimination Act: ENDA for short.

What exactly is ENDA; why has it taken almost 30 years to pass and what is its shared pedigree with other landmark civil rights bills? Here is a guided tour through the rabbit hole of civil rights legislation as it pertains to ENDA.

Assuming the momentum continues and it passes Congress, the bill would ban discrimination based on sexual orientation or gender identity. An issue, as yet, not explicitly guaranteed under federal statutes.

Of course, there are numerous labor laws which have been adopted to ensure protection of civil rights which are already on the books. However, Stetson Law School assistant professor, Jason Bent, says ENDA addresses issues other laws don’t.

“...The Civil Rights Act of 1964 only covered certain categorical things. Right, it covers race, national origin, and religion and so other things. But that sort of set the tone. It now, if you want to extend protections to another class; some other defined by some other characteristic. If you want to protect them from private discrimination then you need a separate piece of legislation.”

This appears to say that the hastening zeitgeist of total equality is only impeded by the verbiage of the particular Acts and statutes. Specifically, the LGBT community would receive implicit and explicit protection in the workplace as it pertains to sexual orientation and gender identity. How you express those ideals in a working environment is the crux of the debate and the centerpiece of the legislation.

Alfred Kinsey, the full-time biologist and part-time sexologist, in his seminal research and books on the sexuality of males and females revealed that pigeonholing sexuality is a slippery slope. His bell curve scale detailed the false tenacity of orthodox sex role definitions. The scale he developed had completely homosexual on one end with its polar opposite, completely heterosexual, on the other end. The conclusion he drew is that a small minority of people fall into either extreme. In other words, the majority of us are all a combination of both ends. The scale doesn't address bisexuality or transsexuality as such but the gist of the argument is clear.

This brings up an interesting conundrum. What if sexual discrimination in the workplace isn’t limited to the LGBT community? Felipe Souza-Rodriquez is the co-director of Get Equal, a grassroots advocacy group which provides LGBT communities a forum in which to tell, receive feedback and discuss their stories about job discrimination. He said, as the law stands now, even heterosexuals could fall victim to discrimination on the job based on “perceived” sexual orientation or gender identity.

”Discrimination based on perceived sexual orientation is where people...who are straight, but people think they are gay, bisexual or lesbian and then they often get fired. So, I mean we're talking about the full spectrum of everyone. Even straight people who are discriminated the quote/unquote look gay.”

The current language in the bill allows for some dubious escape clauses and loopholes. Occasionally employers make assumptions regarding workers’ sexual orientation. As stated earlier, this is what some call perceived orientation. Daniel Tilley, a staff attorney for the ACLU of Florida says this concept plainly highlights the shortcomings of the bill.

”...they give a wide berth for employers to discriminate against employees based on sexual orientation or gender identity if they're not just a religious institution but religiously affiliated. So if you're a religiously affiliated hospital you could fire a gay groundskeeper or a trans(exual) doctor. And this is troubling for a number of reasons. One, those obviously have no...those positions have no relation whatsoever to a particular religion. But secondly, those exemptions don't exist in other civil rights laws.”

The transgender community has been brought to the forefront, principally, because of ENDA’s use of the term “gender identity.” Staff attorney of the New York City based Transgender Legal and Education Fund, Noah Lewis, says the uncanny high rate of transgender job discrimination will be addressed if ENDA is enacted.

”transgender people face extraordinarily high rates of discrimination. Nine out of ten transgender people report experiencing harassment or discrimination on the job. Nearly half have been fired or denied promotion or not hired because of being transgender. One out of four transgender individuals have lost a job simply because they're transgender. So this is just a question of basic fairness. No one should be fired simply for being gay or transgender.”

Before the St Pete Pride event this year, Steve Kornell, a St. Pete city council member, commented on a remark by Republican Florida Senator Marco Rubio’s. Rubio had said he would not support ENDA because it would give preferential treatment to a certain group of people. Kornell rejects that statement out of hand. He says minorities can’t be given their rights.

”Gay people and the people covered under the 1964 Civil Rights Act, especially African-Americans, and other minorities don't have to be given their rights. They're entitled their rights by the (US) constitution; which says that all men are created equal. And to me that definition should include all people. And does include all people to me. And certain groups have fought to deny people their rights. So that's all people are asking for. They're not asking for preferential treatment. That's laughable. That's just not true.”

There are numerous other civil rights issues being debated in the public forum, like many of the amendments laid out in the US Bill of Rights. Unlawful search and seizure, freedom of the press and free speech, right to bear arms as well as abortion, euthanasia and dominion over ones body, along with gender identity and sexual orientation are all portions of a redistricting of America's psychosocial map. This psychosocial map is slowly being conjoined through a zeitgeist of inclusion and equality for all Americans. In this way an otherwise worrisome journey down the rabbit hole feels more like a pleasant stroll down an unfamiliar country lane.

Shortly after the Senate voted to approve ENDA, president Obama released a statement commending the Senate and appealed to the House of Representatives to do the same.

I urge the House Republican leadership to bring this bill to the floor for a vote and send it to my desk so I can sign it into law. On that day, our nation will take another historic step toward fulfilling the founding ideals that define us as Americans.”

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