Associated Press - August 27, 2009

The Employment Non-Discrimination Act, or ENDA, would prohibit workplace discrimination -- including decisions about hiring, firing and wages -- based on sexual orientation or gender identity. It would exempt religious organizations, the military and businesses with less than 15 workers.

The driving force behind the bill has been Rep. Barney Frank, D-Mass., the longest-serving of the three openly gay members of Congress. He expects hearings on the measure to be held this fall.

Frank pushed ENDA in 2007, but it foundered because of insufficient backing in the Senate and a split within the gay and transgender communities. Many activists were irate because Frank -- seeking support from wavering colleagues -- was open to covering sexual orientation but not gender identity, excluding transgender people from protection.

This time around, several factors have changed:

--Barack Obama is now president, and is on record supporting ENDA. A veto was considered possible if the 2007 bill had reached then-President George W. Bush.

--ENDA's core supporters, including Frank, have agreed they will push only for a bill that includes gender identity.

--The bill has picked up key support in the Senate, where it was introduced earlier this month by Oregon Democrat Jeff Merkley and Maine Republicans Susan Collins and Olympia Snowe. Even without other GOP senators, Merkley believes it has a good chance of obtaining the 60 votes that likely will be needed to pass the Senate.

The main Senate champion of ENDA in the past had been Sen. Edward Kennedy of Massachusetts, who died Tuesday. That role was passed on to Merkley earlier this year.

There is another difference from 2007. Frank now has a policy adviser who is a female-to-male transsexual. Diego Sanchez is the first transgender person hired for a senior congressional staff position on Capitol Hill.

Sanchez has done extensive face-to-face lobbying for ENDA, and Frank says that's enabled some members of Congress to get to know a transsexual for the first time.

"He interacts with a lot of people," Frank said. "Prejudice is literally ignorance."

Frank says he now doubts votes will be cast against ENDA solely because it extends to transgender people.

Sanchez is a longtime activist who worked for the AIDS Action Committee of Massachusetts and was a delegate to the Democratic National Convention last year before joining Frank's staff. Back in 2007, he was among a minority of transgender activists who accepted Frank's tactical decision to drop gender identity from that version of ENDA.

"He's called on the entire community since then to lobby, work -- and the community has said, 'OK, we've got one game plan, and it's Barney,"' Sanchez said. "There's broader support this time."

Opponents of ENDA -- led by several national conservative groups -- concede that the bill has enough support to clear the House, and expect a closely fought battle in the Senate.

Ashley Horne, federal issues analyst for Focus on the Family, promised that her conservative Christian ministry would encourage tough opposition.

"It's definitely a bill we will put a lot of resources toward fighting," she said. "Our primary concern is the chipping away of religious liberties."

Twenty-one states already have laws prohibiting workplace discrimination on the basis of sexual orientation, and 12 extend those laws to gender identity -- California, Colorado, Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. Several other states protect public employees who are gay or transgender.

The experience of these states shows that passage a federal law is unlikely to unleash a flood of litigation and conflict, Frank and Merkley say.

Minnesota, for example, has had a non-discrimination law covering transgender people since 1993 that rarely triggers controversies. Oregon passed a comparable bill in 2007.

"There were concerns there'd be a huge number of lawsuits -- it simply didn't materialize," Merkley said.

However, attorney Jim Campbell of the Alliance Defense Fund, a Christian legal group, said ENDA would impose its provisions on more conservative states with more business owners who have religious objections to hiring gays and transsexuals.

Campbell also worries that ENDA will serve gay-rights activists' long-term strategic interests.

"One of the really big problems with enacting ENDA is in the future litigation battles dealing with same-sex marriage," Campbell said. "It will provide ammunition for homosexual activists in the future to push their agenda in the court system throughout the country."

Some conservatives say ENDA is unnecessary.

"There is no epidemic of homosexuals being fired; in fact, they are increasingly being courted by major corporations," contends Peter LaBarbera of Americans for Truth About Homosexuality. "It's religiously devout employees ... who face reprisals for opposing homosexuality."

The National Center for Transgender Equality disagrees. It recently released a survey of 6,500 transgender Americans that said 91 percent had faced bias at work.

Among those claiming harassment was Toni Maviki, a former corrections officer in New Hampshire who said she was pummeled by a fellow guard who learned she was transitioning from being a man to being a woman.

"I carried a badge and I protected all you people and there was no law to protect me from harm," Maviki testified earlier this year.

Maviki said she filed complaints that led to further harassment, and finally quit her job. Her testimony failed to sway a state Senate committee, which voted against extending anti-bias provisions to transgender people.

National gay-rights groups will be watching ENDA closely this year.

"We're further than we've ever been, but there is certainly still work to be done," said Joe Solmonese, president of the Human Rights Campaign. "It is frustrating sometimes, having to explain to the community that there are so many procedural hurdles in our way."
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