The Human Rights Campaign can now confirm the House Education and Labor Committee will vote on Wednesday, November 18, 2009, at 10:00 a.m. on legislation to end the widespread practice of employment discrimination based on sexual orientation and gender identity. The vote was noticed moments ago.

The Employment Non-Discrimination Act (H.R. 3017), introduced by Reps. Barney Frank (D-MA) and Ileana Ros-Lehtinen (R-FL), would prohibit employment discrimination, preferential treatment, and retaliation on the basis of sexual orientation or gender identity by employers with 15 or more employees.

Currently, it is legal to discriminate in the workplace based on sexual orientation in 29 states and to discriminate based on gender identity in 38 states. You can view a map of the states online: http://www.hrc.org/documents/Employment_Laws_and_Policies.pdf

Earlier today the Human Rights Campaign announced that as Congressional action looms on the federal Employment Non-Discrimination Act (ENDA), it is extending the grassroots “No Excuses” campaign to increase constituent contact with Congress and awareness of the comprehensive website: www.PassENDANow.org.

We launched a national action alert this week to grassroots members and supporters urging them to contact Congress and express their support for a fully-inclusive ENDA. HRC also plans to release details next week on its participation of a national call-in day organized by a coalition of groups urging members and supporters to call the Congressional switchboard in support of ENDA.

Meanwhile, HRC members and supporters have been overwhelmingly responsive this week to the organization’s national call to action on ENDA by sending off more than 62,000 emails or letters to members of Congress and newspapers urging for swift passage.

http://www.hrcbackstory.org/2009/11/breaking-committee-to-hold-vote-on-enda/

http://help.senate.gov/Hearings/2009_11_05/2009_11_05.html

BEFORE THE COMMITTEE ON HEALTH, EDUCATION, LABOR AND PENSIONS, UNITED STATES SENATE

“EMPLOYMENT NON-DISCRIMINATION ACT: ENSURING OPPORTUNITY FOR ALL AMERICANS”

PRESENTED NOVEMBER 5, 2009

 Mr. Chairman, Ranking Member Enzi and members of the HELP Committee, thank you for the opportunity to appear before you today. It is a privilege to represent the Obama Administration and the Department of Justice at this hearing to consider the Employment Non- Discrimination Act (ENDA), and to voice the Administration’s strong support for fully-inclusive legislation that prohibits discrimination on the basis of sexual orientation and gender identity.

The Civil Rights Division, which I have the great honor to lead, serves as the conscience of the federal government. Our mission is clear: to uphold and protect the civil and constitutional rights of all Americans, particularly some of the most vulnerable among us. We seek to advance this Nation’s long struggle to embrace the principle so eloquently captured by Dr. Martin Luther King, Jr., that persons should be judged based on “content of their character,” and not on their race, color, sex, national origin, religion or any other irrelevant factors. Our civil rights laws – laws enforced by the Civil Rights Division – reflect and uphold this noble principle.

Just last month Congress passed and the President made history when he signed the first federal law that provides civil rights protections to lesbian, gay, bisexual and transgender (LGBT) individuals. I applaud you for recognizing the critical need for the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, and I assure you the Department of Justice is prepared to fulfill its new duties under that law. Its enactment filled a critical gap in our enforcement abilities.

Today, I come before you because passage of ENDA would provide us with the tool we need to fill another hole in our enforcement authority.

On an issue of basic equality and fundamental fairness for all Americans, we cannot in  good conscience stand by and watch unjustifiable discrimination against lesbian, gay, bisexual and transgender individuals occur in the workplace without redress.

We have come too far in our struggle for “equal justice under the law” to remain silent or stoic when our LGBT brothers and sisters are still being mistreated and ostracized for reasons that have absolutely nothing to do with their skills or abilities and everything to do with myths, stereotypes, fear of the unknown, and prejudice.

No American should be denied a job or the opportunity to earn promotions, pay raises and other benefits of employment because of his or her sexual orientation or gender identity, which have no bearing on work performance. No one should be fired because he or she is gay, lesbian, bisexual or transgender. Period. ENDA would provide much needed and long overdue federal protections for LGBT individuals, who still face widespread discrimination in workplaces across the Nation. For this reason, the passage of ENDA is a top legislative priority for the Obama Administration.

Broadly stated, ENDA would prohibit intentional employment discrimination on the basis of actual or perceived sexual orientation or gender identity, by employers, employment agencies, and labor organizations. Its coverage of intentional discrimination parallels that available for individuals under Title VII, and the principles that underlie this coverage have been well-established for decades. Under ENDA, we would share responsibility for its enforcement with the Equal Employment Opportunity Commission (EEOC). Our role would be to challenge prohibited discrimination by state and local government employers.

The Civil Rights Division and other federal civil rights agencies regularly receive letters and inquiries from individuals all over the country complaining of sexual orientation and gender identity discrimination in employment. This ongoing discrimination and abuse takes many forms, ranging from cruel instances of harassment and exclusion to explicit denials of employment or career-enhancing assignments because of the individual’s sexual orientation or gender identity.
It is painfully disappointing to have to tell these working men and women that,in the United States of America in 2009, they may well be without redress because our federal employment anti-discrimination laws either exclude them or fail clearly to protect them.

Many letters sadly describe the same kind of hostility, bigotry and even hatred that other groups faced for much of our history, and which Congress responded to by passing the landmark Civil Rights Act of 1964. That Act prohibited employment discrimination on the basis of race, color, religion, sex, or national origin.

At the time the bill was debated, many of the same arguments that we hear today about ENDA – that it would open the floodgates to litigation, it would overburden employers and afford special rights to certain groups – were vociferously offered by the bill’s opponents.

No one would seriously contend that the parade of horribles predicted at the time ever became reality, and the 1964 Act, which, like ENDA, was introduced over multiple Congresses before it finally passed, has become a rock-solid foundation for our laws ensuring equality of opportunity in the workplace.

Throughout the decades that followed passage of the 1964 Act, we as a nation have recognized a need to attend to unfinished business in the fight for justice in the workplace.

Accordingly, Congress has expanded the scope of employment protections on several occasions, passing the Age Discrimination in Employment Act of 1967, the Pregnancy Discrimination Act of 1978, and the Americans With Disabilities Act of 1990. The Obama Administration believes that ENDA must be the next step, and that this Act will be a worthy addition to its venerable predecessors.

NEXT PAGE: Eight million workers need protection

It is estimated that there are more than one million LGBT individuals working in state and local governments and just under seven million LGBT individuals employed in the private sector.

A large body of evidence demonstrates that employment discrimination against LGBT individuals remains a significant problem. The Williams Institute, a national research center on sexual orientation and gender identity law and public policy at the UCLA School of Law, conducted a year-long study of employment discrimination against LGBT individuals.

The study reviewed the numerous ways in which discrimination has been documented – in judicial opinions; in surveys of LGBT employees, state and local government officials; and in extensive evidence presented to Congress over the past fifteen years during which ENDA has been considered.

The study concluded that discrimination based on sexual orientation and gender identity is widespread and persistent in terms of quantity, geography and occupations. The study focused primarily on discrimination against LGBT employees of state and local governments, but also reviewed broader surveys that indicate that the problem is equally widespread in the private sector.

To combat the widespread employment discrimination against LGBT individuals, some states have passed laws banning discrimination based on sexual orientation and gender identity.

However, 29 states still provide no protections for lesbian, gay and bisexual individuals and 38 states provide no protection for transgender workers. State laws therefore leave large numbers of LGBT individuals without recourse for workplace discrimination on the basis of sexual orientation or gender identity.

Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and other bedrock civil rights laws recognize that protecting valued members of our workforce from discrimination should not be left to a patchwork of state and local laws that leaves large gaps in coverage. Discrimination in my home state of Maryland is just as wrong as discrimination in Montana.

As with those laws, federal legislation prohibiting discrimination based on sexual orientation and gender identity will help eradicate workplace discrimination that should be neither tolerated nor condoned.

To underscore the need for a federal statute, I would like to review the current scope of the law. 21 states – including Connecticut, Nevada, New Hampshire, and Maryland – prohibit employment discrimination based on sexual orientation.

Another 12 states – including Iowa, New Mexico, Oregon, Colorado, Minnesota, Washington, Rhode Island, and Vermont – as well as the District of Columbia, prohibit discrimination based on sexual orientation and gender identity.

A number of local jurisdictions contain similar protections in their local laws. For example, in my home state of Maryland, Baltimore City and Montgomery County have expanded the protections available under state law by banning employment discrimination against transgendered individuals.

In states where no remedies exist, LGBT employees have no opportunity to combat egregious workplace discrimination and harassment. The recent report of the Williams Institute documents a distressing number of such allegations. For example:

NEXT PAGE: A gay police officer is beaten by a coworker

• A police officer at the Pineville City Police Department in West Virginia reported regular harassment by his coworkers because of his sexual orientation, who deliberately sent him on calls without back-up. After learning of the officer’s sexual orientation, one coworker allegedly hit him across the face with a night stick, breaking the officer’s glasses and cutting his eye. The officer believes that his eventual discharge was based on his sexual orientation and not his job performance.
• An openly lesbian probation officer in Carroll County, Indiana, was allegedly denied promotion to chief probation officer because of her sexual orientation. A superior court judge allegedly told her that he would not promote her because she was a lesbian, that she was embarrassing the court by dating a woman, and that he had asked other court employees about her sexual orientation and personal life. A man with no prior probation experience was promoted to the position.
• An employee of the Virginia Museum of Natural History, a state agency, was allegedlyforced to resign because of his sexual orientation shortly after receiving a positive evaluation that otherwise would have resulted in a raise. The Executive Director of the Museum reportedly expressed concerns that the employee‘s sexual orientation would jeopardize donations to the museum. A Virginia appellate court dismissed his sexual orientation employment discrimination claim, holding that the governor‘s executive order prohibiting such discrimination did not create a private right of action.

These examples – which would fall within the Civil Rights Division’s enforcement authority under ENDA – are but a sampling of a disturbing number of reports of workplace discrimination against LGBT Americans in recent years. Unfortunately, the above LGBT employees have no opportunity to prove their claims, because they live in states that do not afford them redress.

The Williams Institute estimates that there are more than 200,000 LGBT employees in the federal workforce, yet, as in the case of state and local governments, we also lack strong statutory protection from sexual orientation and gender identity discrimination in this arena.

The Civil Service Reform Act, which prohibits discrimination on the basis of conduct not affecting job performance, has been interpreted by the Office of Personnel Management to prohibit discrimination on the basis of sexual orientation. In addition, Executive Order 13087 prohibits employment discrimination on the basis of sexual orientation in much of the Executive Branch.

But the administrative remedies available under both of these provisions are far more limited than those available to federal employees who experience other forms of discrimination, such a race, sex, or disability discrimination.

Moreover, although some courts have held that Title VII’s prohibition against sex discrimination can protect LGBT persons from certain types of discrimination under certain circumstances, the extent of such protection varies significantly from court to court. Enactment of legislation prohibiting discrimination against LGBT individuals in employment is needed to meaningfully and unambiguously prohibit employment discrimination on the basis of sexual orientation and gender identity and to give victims of such discrimination adequate remedies.

NEXT PAGE: Helping LGBT’s will help the economy

Preventing employment discrimination on the basis of sexual orientation and gender identity and providing the victims of such discrimination with a means to protect their rights not only is a matter of basic fairness, it is also a matter of enlightened economic self-interest.

As the global marketplace becomes increasingly competitive, and as we work to revitalize and strengthen our economy, America cannot afford to waste talent or allow workplace bias and hostility to impede productivity, especially when many businesses operate in multiple cities and states.

There is no reason why, for example, LGBT employees working for a company in Wisconsin, which was the first state to prohibit discrimination against LGBT individuals, should have their right to earn a living jeopardized or taken away if they are transferred across the lake to Michigan, which has not yet passed such a law.

Many of America’s top businesses already recognize that discrimination of any kind, anywhere, is bad for business and costs money. Indeed, hundreds of companies now bar employment discrimination on the basis of sexual orientation and/or gender identity.

According to the Human Rights Campaign’s recently published Corporate Equality Index 2010, as of

September 2009, 434 (87%) of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation, and 207 (41%) had policies that include gender identity.

This, of course, is just the tip of the iceberg. Although most of the nation’s largest businesses have started addressing workplace fairness for LGBT employees, significant numbers of individuals still face discrimination on the basis of sexual orientation or gender identity and desperately need the nationwide protections and remedies that ENDA would provide.

I have explained why legislation like ENDA is sorely needed in the private and public sectors and why it makes good business sense. We look forward to working with you on legislation as it advances in the Congress and are currently reviewing the proposed legislation.

We may offer some technical comments on the bill. Now let me take a few moments to briefly dispel some misconceptions about the scope and impact of the legislation.

As you know, ENDA covers cases of intentional discrimination and explicitly precludes disparate-impact claims, does not permit the use of quotas or other forms of preferential treatment. Moreover, ENDA does not apply to small businesses with fewer than 15 employees, tax-exempt private membership clubs, or religious organizations.

Indeed, ENDA contains a broad exemption for religious organizations and states that it does not apply to any corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of Title VII.

In addition, nothing in ENDA infringes on an individual’s ability to practice his or her faith, to hold and adhere to religious beliefs, or to exercise First Amendment rights of free speech on these or other issues. In addition, ENDA does not apply to the relationship between the federal government and members of the armed forces, and does not affect federal, state, or local rules providing veterans’ preferences in employment decisions.

 Lastly, there is nothing to suggest that ENDA will burden employers, unleash a flood of complaints that would threaten to overwhelm the EEOC or the Department of Justice, or clog the federal courts. On the contrary, the experience of states and local governments with sexual orientation and gender identity discrimination statutes for decades demonstrates that complaints under these statutes make up a relatively small portion of total employment discrimination complaints.

Moreover, the jurisdictions that prohibit discrimination on the basis of sexual orientation and gender identity have been able to implement and enforce these laws in an entirely workable manner. We fully expect that the same would hold true at the federal level.

I will conclude by noting what a great honor it is for me to testify about a legislative initiative of the late Senator Ted Kennedy, who championed ENDA for more than a decade and who constantly reminded us that civil rights are the great unfinished business of our nation.

I can think of no better way to honor his life and work than to pass ENDA and provide sorely needed protections from arbitrary and unjustified discrimination to LGBT individuals in the workplace throughout our nation.

Thank you once again for the opportunity to testify. I welcome your questions.

He said, “The Administration strongly supports fully-inclusive legislation that prohibits discrimination on the basis of sexual orientation and gender identity.”

Perez thanked Congress for passing the Matthew Shepard hate crimes legislation and said that ENDA was just as crucial for law enforcement.

He said, “On an issue of basic equality and fundamental fairness for all Americans, we cannot in  good conscience stand by and watch unjustifiable discrimination against lesbian, gay, bisexual and transgender individuals occur in the workplace without redress.”

Perez noted that the same objections brought against ENDA had been previously brought against the 1964 Civil Rights Act and were found to be baseless.

The 1964 Civil Rights Act also prohibited discrimination in housing, public spaces, schools and government. ENDA is a much narrower bill and includes only employment.

Twenty-nine states currently provide no emoloyment protections for gays, lesbians and bisexuals; 38 states provide no protections for transgender workers.

“This is the best opportunity we will ever have as a community and shame on us if we don’t succeed,” said John Berry, director of the U.S. Office of Personnel Management.

A House vote Thursday put Congress on the verge of significantly expanding hate crimes law to make it a federal crime to assault people because of their sexual orientation. Later this year, Congress is expected to hold hearings on a measure prohibiting workplace discrimination – including decisions about hiring, firing and wages – based on sexual orientation or gender identity.

“The clock is against us,” Berry said in a speech at the Out & Equal Workplace Advocates conference in Orlando. “If we lose this, it could be years if not a decade before this opportunity comes around.”

He said a political climate like the current one – with the president, Congress and public opinion open to passing gay rights legislation – may not come again for a long time.

Berry oversees the agency that manages the federal government’s workplace. His speech at the Orlando conference came a day before President Barack Obama was set to address the Human Rights Campaign, the nation’s largest gay rights group.

Obama has taken a cautious approach to following through with campaign promises to end a ban on gays and lesbians from serving openly in the military and pushing tough nondiscrimination policies. But Berry said Obama was “clear in his support for our community and his commitment to full equality.”

The testimony from Reps. Barney Frank, D-Mass., and Tammy Baldwin, D-Wis., comes as supporters of the measure believe Congress is closer than ever to banning discrimination on the basis of sexual orientation.

Frank told the House Education and Labor Committee that opponents of the bill often accuse the gay rights community of pushing a “radical agenda.”

“Trying to get a job or join the military has not been the hallmark of radicalism,” he said.

Baldwin, whose home state of Wisconsin was the first to pass a law protecting gay employees from bias in 1982, said it was time “to bring our laws in line with the reality of American life.”

The Employment Nondiscrimination Act would ban employers from making any decisions about hiring, firing, promotions or pay based on a worker’s sexual orientation or gender identity. It would exempt the military, religious groups and businesses with fewer than 15 employees.

Opponents complain some of the bill’s language is too murky. It offers protection based on “perceived” sexual orientation and for workers who have “undergone” or are “undergoing” gender transition without defining those terms.

“It does not take a legal scholar to recognize that such vaguely defined protections will lead to an explosion in litigation and inconsistent judicial decisions,” said Minnesota Rep. John Kline, the committee’s top Republican.

Craig Parshall, general counsel for the National Religious Broadcasters, warned lawmakers the bill would subject religious groups to “a crazy quilt” of inconsistent court decisions and send a “chilling pall” over their activities.

He also argued that for-profit faith-based groups, like Christian radio stations, would be denied any exemption at all from the measure.

The House passed a similar bill two years ago – without protections for transgender workers – but it stalled in the Senate and faced the possibility of a veto from President George W. Bush. This time, President Barack Obama supports the bill.

Stuart Ishimaru, acting chairman of the U.S. Equal Employment Opportunity Commission, said the measure would not create the chaos and confusion predicted by opponents.

Frank says chances have improved for passage, given a stronger Democratic majority this year. A House vote is expected later this year, but the Senate is not expected to consider it until next year.

Twenty-one states already ban employment discrimination based on sexual orientation, and 12 states also prohibit discrimination based on gender identity.

The report, “Degrees of Equality: A National Study Examining Workplace Climate for LGBT Employees,” found that, despite significant advances in employment policies at major U.S. corporations, a majority of LGBT workers continue to experience a range of negative consequences because of their sexual orientation and gender identity.  Younger workers are even more likely to hide their LGBT identity – only 5 percent of LGBT employees ages 18 to 24 say they are totally open at work, compared to more than 20 percent in older age cohorts.

The report is available for download at www.DegreesOfEquality.org.

“Overall attitudes towards LGBT people have come a long way, but we can’t forget that people still struggle at work and that this has a profound impact on LGBT workers’ careers,” said Joe Solmonese, president of the Human Rights Campaign Foundation.  “Degrees of Equality helps us bridge the gap between policy and practice to fully understand LGBT workers’ experiences.  The more we understand the workplace, the more we can help usher it to a place where all employees can thrive.”

The study examined why workers chose to disclose their LGBT identity or not, how these issues arise in the workplace, the impact they have for businesses and what can be done to improve productivity and retention.  In recent years, businesses have engaged in sustained efforts to implement policies aimed at creating safe and productive workplaces for talented LGBT employees.  The number of companies that receive top ratings on the Human Rights Campaign Foundation Corporate Equality Index, for example, rose from just 13 in 2002 to 305 in the 2010 report released last week.

Nevertheless, significant numbers of LGBT employees continue to experience a negative workplace climate that affects productivity, retention and professional relationships.  At least once in the past year, 42 percent of LGBT employees report lying about their personal lives, 27 percent have felt distracted, 21 percent have job searched and 13 percent have stayed home from work as a result of working in an environment that is not always accepting of LGBT people.

As reasons for hiding their identities, 39 percent fear losing connections, 28 percent fear not being considered for advancement, 17 percent fear getting fired and more than one in ten (13 percent) fear for their personal safety.  Transgender workers are much more likely than other groups to report fearing for their personal safety – 40 percent compared to 20 percent of gay men.

And 42 percent of transgender workers feared getting fired if they revealed their LGBT identity, compared to 22 percent of gay men.

An employee’s sexual orientation or gender identity are often unavoidable in casual, non-work related conversations.  These conversations occur frequently and are an essential component to building productive work relationships.

At least once per week, 89 percent of LGBT employees say conversations about social lives, 80 percent confront conversations involving spouses, relationships and dating at least once per week and 50 percent say the topic of sex arises at least once a week.  These conversations are the most likely to make LGBT employees feel uncomfortable: fewer than half feel very comfortable talking about any of these topics.

Derogatory comments and jokes still happen at work and are a major indicator that it is unsafe to be open about their sexual orientation and/or gender identity at work.  A total of 58 percent of LGBT workers say someone at work makes a joke or derogatory comment about LGBT people at least once in a while.

Similarly, jokes and derogatory comments about other minority groups are equally indicative of a negative climate.  About two-thirds (62 percent) of LGBT employees say negative comments about minority groups are made at least once in a while at work.

Even with inclusive employment policies, significant numbers of employees report negative consequences of an unwelcoming environment for LGBT employees.  Moreover, the vast majority of LGBT workers do not report instances when they hear an anti-LGBT remark to HR or management.  On average, 67 percent ignore it or let it go, 9 percent raise the issue with a supervisor and only 5 percent go to HR.

“We’ve found that inclusive non-discrimination policies and equal benefits are the essential first step toward cultivating a productive and engaged LGBT employee, but they are not the last step,” said Daryl Herrschaft, director of the Workplace Project.  “By understanding how LGBT identity surfaces and unfolds in the workplace, we will be better able to turn policy into practice and address opportunities to improve productivity and retention of LGBT employees.”

The study is the cornerstone of a new project that will provide employers with a climate assessment tool and toolkits for improving their workplaces.

The HRC Foundation conducted 14 focus groups to examine current LGBT workplace experiences and identify key elements of workplace climate. Since there is no uniform LGBT experience, the diversity of the working LGBT community was accounted for by conducting focus groups around race, ethnicity and gender, among other sub-groupings.  In addition, the HRC Foundation commissioned the largest national survey of LGBT workplace experiences to date, administered to 761 LGBT workers from across the country.  Finally, in-depth interviews supplemented the research.

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 transgenders.

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.”

The Human Rights Campaign launched a lobby effort today to muster support for the legislation, asking supporters to send e-mails to their senators urging their support. The e-mail notes that, in 29 states, there is no law to prevent an employer from firing someone because he or she is gay and, in 38 states, no law to prohibit an employer from firing someone for being transgender.

The National Gay and Lesbian Task, the first national gay political organization to push for a federal law to prohibit job discrimination against gays, in 1974, said it hopes the stated support of President Obama will “play a role in assisting with [the bill's] swift passage in both the House and the Senate.”

Rep. Barney Frank (D-Mass.), who is the lead sponsor of the ENDA bill introduced in the House in June, said he is optimistic about its chances of passing that chamber. But he expressed less optimism about reaching a new political threshold of 60 votes in the Senate. The bill needs only 51 votes to pass, but the Democratic majority has sought to ensure 60 votes before bringing legislation to the floor in order, they say, to ward off any filibuster attempts.

A form of ENDA without gender identity passed the House in the last session of Congress but engendered so much opposition for omitting gender identity that it was never brought up in the Senate.

The ENDA bills introduced in the House and Senate this year both seek to prohibit discrimination in the workplace based on sexual orientation and gender identity. Current federal law prohibits discrimination based on race, sex, religion, national origin, age, and disability.

Kennedy (D-Mass.), who has being undergoing treatment for brain cancer since last year, was not in Washington for introduction of the bill but has been working on bills from his home in Massachusetts. He issued a statement saying, “The promise of America will never be fulfilled as long as justice is denied to even one among us. The Employment Non-Discrimination Act brings us closer to fulfilling that promise for gay, lesbian, bisexual and transgender citizens.”

This revised version of the Employment Nondiscrimination Act includes gender and has a better chance of passing, Frank said, because activists have been lobbying for the bill “in the right way.” The bill has 114 co-sponsors, including Frank and openly gay members Tammy Baldwin and Jared Polis; the 2007 gender-inclusive bill had 62.

When the House dropped gender protections in 2007 over the objections of activists, the bill passed – but the Senate took no action. So far, there is no comparable Senate bill, though Frank told the Advocate he was hopeful that one would be introduced there.

If ENDA passes, it would become the first-ever ban on employment discrimination of LBGT people, who are frequently discriminated against in hiring, firing, promotion and compensation decisions.

“If passed, ENDA would promote workplace equality for everyone by expanding protections for sexual orientation and gender identity. Employment discrimination hurts not just families, but also the economy by creating hostile workplaces and reducing the earning power of LGBT people,” said Christopher Anders, ACLU Senior Legislative Counsel, in a statement.

“The introduction of the first-ever federal legislation banning employment discrimination of LBGT people is a fitting tribute to the 40th anniversary of the historic Stonewall riots – the birth of the gay rights movement.”