ENDA again

Last week Sen. Ted Kennedy (D-Mass.) told the Associated Press that he planned to bring the controversial Employment Non-Discrimination Act (ENDA) up for a vote in the Senate before the year's end - raising the specter of the brutal infighting among LGBT advocates that accompanied the tumultuous debate over ENDA in the House last fall.

But some advocates are skeptical that Kennedy could bring ENDA up for a vote by the end of the session, and even proponents of the bill say it is unclear whether the bill would garner enough support to successfully pass the Senate. Regardless of whether Kennedy brings ENDA forward in the Senate, there is no sign that the battles over whether or not to include transgender-inclusive language in the bill will be resolved anytime soon.

While Kennedy told the AP that he planned to bring up ENDA this session, there is no timetable for bringing up the legislation. Melissa Wagoner, a spokeswoman for Kennedy, told Bay Windows in a statement that Kennedy and Sen. Majority Leader Harry Reid have not yet scheduled a vote and are working together to do so.

Kennedy plans to bring forward the version of ENDA passed by the House last November, which offers protections based on sexual orientation but not gender identity. House leadership stripped the gender identity language from ENDA last fall before the vote, after a headcount showed that including the gender identity language would drive away enough supporters to allow Republicans to kill the bill procedurally. House leadership, Congressman Barney Frank and the Human Rights Campaign (HRC) advocated passing the bill in its sexual orientation-only form in the short term and pressing for a more inclusive bill in later sessions. However, a coalition of more than 300 national and regional LGBT organizations called United ENDA urged lawmakers to defeat the sexual orientation-only version of ENDA and argued that only a fully inclusive ENDA bill was acceptable. The rift caused by the difference in strategy led to protests by United ENDA supporters outside HRC fundraising dinners and prompted heated exchanges between both sides in the LGBT media and blogosphere.

And now, ENDA proponents are fighting not only Republicans, but time as well.

"The biggest problem right now for any legislation in the Senate is simply the clock. There's only so much floor time on the Senate to consider legislation, and there are some important must-pass pieces of legislation, particularly the appropriation bills that fund the government," said Christopher Anders, legislative counsel for the American Civil Liberties Union (ACLU), which supports passing ENDA in the Senate, and one of the organization's lead lobbyists on LGBT issues. Anders said if Kennedy plans to bring up ENDA as a free-standing bill he will likely need to do so between now and mid-June. After that, the only viable option would be to attach it as an amendment to one of the aforementioned "must-pass" bills.

Still, Anders said that if Kennedy is determined to bring the bill up for a vote, he may have enough clout in the Senate to beat the odds.

"Sen. Kennedy has an amazing ability to move legislation, so that certainly weights heavily," said Anders.

One of ENDA's biggest boosters in its current form, HRC president Joe Solmonese, made remarks at HRC's Los Angeles fundraising dinner last month that some have taken as a signal that HRC considers the legislation dead for the session.

"Two years ago, we put a Congress in power that began to think like we think. With your help, HRC lobbied that Congress to pass a hate crimes bill that covered the entire GLBT community, and we began the long legislative process of the Employment Non-Discrimination Act. These were historic events. A number of hurdles made it impossible to move those bills any further, this session," said Solmonese, according to a transcript provided to Bay Windows by HRC.

HRC spokesman Brad Luna said that Solmonese's comments were not meant to suggest that ENDA was stalled for the rest of the session, but rather that the bill has not progressed as far as HRC hoped. Allison Herwitt, HRC's legislative director, said that if Kennedy and Reid decide to bring the bill up for a vote, HRC will work to try to aid its successful passage.

"Obviously Sen. Kennedy and Sen. Reid are going to make the decisions about what bills make it to the Senate floor or not," said Herwitt. "If they find the time for ENDA, which I think is a possibility, then we would be supportive in working for every vote we can get."

Herwitt said she is confident that a majority in the Senate that would vote to pass ENDA in its current form, but she said it is unclear if there are the 60 votes needed to force the Senate to take an up-or-down vote, a threshold that could prove crucial to passing the bill.

Mara Keisling, executive director of the National Center for Transgender Equality (NCTE), one of the most visible organizations in the United ENDA coalition, also said it is unclear whether Kennedy will be able to bring the sexual orientation-only version of ENDA up for a vote.

"It still very much could happen, but the clock's ticking. ... Sen. Kennedy seems like he wants to do it, and the question is, are they going to have the time to do it?" said Keisling, adding that NCTE and its allies have urged Kennedy's office not to bring forward the version of ENDA without the gender identity language. "We have expressed to Sen. Kennedy and other senators that we oppose passing the exclusive version of the bill, or what some people are starting to call the broken version of the bill."

NCTE will make sure the Senate hears that message loud and clear later this month. On April 14 and 15, supporters of NCTE from around the country plan to gather in D.C. for the organization's lobby days, and Keisling said while the emphasis will be on having constituents tell their personal stories of discrimination and violence to lawmakers, she expects that participants will likely discuss ENDA with lawmakers.

Among those constituents taking part in the lobby day will be six Bay Staters, a contingent sponsored by the Massachusetts Transgender Political Coalition (MTPC). MTPC executive director Gunner Scott, who will be part of the delegation in D.C., said that the six MTPC supporters will visit Kennedy's office and make the case for passing a trans-inclusive ENDA bill.

This visit is part of a years-long campaign by local and national transgender activists to urge Kennedy to support transgender-inclusive legislation. Ethan St. Pierre, a Haverhill-based activist who will also be traveling with MTPC down to D.C. for the lobby day, said that he has been lobbying Kennedy on a regular basis on adding gender identity language to gay rights legislation since 1999. That year, he met with Kennedy's staff as part of a contingent organized by GenderPAC, urged Kennedy to support a trans-inclusive hate crimes bill, and told the story of the anti-trans murder of his aunt, Debra Forte. In the years since, he has lobbied Kennedy to support trans-inclusive language in both hate crimes and ENDA legislation.

"I have spoken to many staff members over the years, and they've been very polite and very honest about feeling as though gender identity should be included. I just think they need to take that step and go to bat and stand firm with the rest of the community," said St. Pierre.

Scott said MTPC has started lobbying Kennedy's office in the last couple years, meeting with staffers in Washington, D.C. in 2006 and lobbying for trans-inclusive hate crimes legislation, which he said at the time seemed a more immediate possibility to come up in the Senate than ENDA. MTPC also had supporters turn out at a handful of LGBT Kennedy fundraisers to raise the visibility of the transgender community with his office. Scott said Kennedy's sponsorship of a successful trans-inclusive hate crimes bill in the Senate last year suggests that his office is moving forward on transgender issues.

"I do think Sen. Kennedy's office has moved on trans issues. The inclusion of gender identity in the [hate crimes bill] is a huge step, so I think there is room toward inclusion of gender identity on the federal level," said Scott. "The unfortunate thing is ENDA moved forward in the way it did in the fall and a lot more work needs to be done."

But while Scott and other supporters of United ENDA believe that the version passed in the House hurts the cause of passing a trans-inclusive bill, HRC remains committed to passing ENDA in its current form.

"Our ultimate goal is to have a fully inclusive ENDA move through the House and the Senate, and all of the work we are doing from last year to this year is a building process to make that possible," said Herwitt, adding, "As the House bill was coming to the floor we felt it's much better to lock in support on a sexual orientation-only bill and build on that, and that's what we're doing."