A GOP Bill to Ban Anti-LGBT Employment Discrimination Won’t Happen (IMHO)

by on

Via the Washington Blade, a look at the chances of Republicans moving an LGBT anti-discrimination bill.


I agree that Donald Trump might sign a reasonable workplace anti-discrimination bill, and I had forgotten that House Speaker Paul Ryan was a co-sponsor of the Employee Non-Discrimination Act (ENDA), which the Democrats failed to move forward when during the first two years of the Obama presidency they controlled the White House and had supermajorities in Congress.

But I don’t think a Log Cabin-backed measure will go anywhere in the current political climate. For one thing, the establishment (i.e., Democratic) LGBT lobbies won’t support a bill that’s limited to employment discrimination and which includes reasonable religious exemptions. Without the support of the Human Rights Campaign, no Democrats will be on board.

The column’s author, Malcolm Lazin, executive director of the Equality Forum and LGBT History Month, says he would back such as measure. But he’s nevertheless dismissive of efforts to balance the competing rights of employment nondiscrimination and religious freedom, as if the latter was nothing but a right-wing ploy—a popular assertion by secular progressive who assign no value to constitutional protections against being forced by the state to violate deeply held religious convictions because, after all, only our rights matter.

28 Comments for “A GOP Bill to Ban Anti-LGBT Employment Discrimination Won’t Happen (IMHO)”

  1. posted by Houndentenor on

    Yeah, like Republicans would even let such a bill out of committee. Sorry, Stephen, but you’re a little late for April Fool’s Day.

    Also, why would a religious exemption be needed. Churches and other religious orgnanizations are already exempt from employment nondiscrimination laws (which is why, for example, there are still no women Catholic priests). So why an exemption? So people can claim religion as a reason for their discriminatory hiring? If all an employer has to do to be exempt is claim a religious objection, then the law is meaningless. So what would even be the point?

    • posted by Jorge on

      Also, why would a religious exemption be needed.

      Kim Davis, Christian Martyr vs. the American Civil Liberties Union, No Further Explanation Needed.

      • posted by JohnInCA on

        Further explanation needed.

        There is a difference between private and public spheres. Bakers are different then the DMV or county registrar.

        Extending your “exceptions” to government employees? Is a poison pill.

        • posted by Jorge on

          There is a difference between private and public spheres.

          Evil, vindictive, malicious behavior does not suddenly become good just because it is directed at a DMV official instead of a baker.

          • posted by JohnInCA on

            Asking government employees to process paper work is now “evil, vindictive, malicious behavior”?

        • posted by Tom Scharbach on

          Asking government employees to process paper work is now “evil, vindictive, malicious behavior”?

          Yes. It is a fate worse than death. Ask Kim Davis, Christian Martyr™.

      • posted by Tom Scharbach on

        Evil, vindictive, malicious behavior …

        … such as applying for a marriage license or a driver’s license, apparently, or expecting a government employee to do the job that he/she is paid to do.

    • posted by Tom Scharbach on

      oundentenor: Also, why would a religious exemption be needed.

      Jorge: Kim Davis, Christian Martyr vs. the American Civil Liberties Union, No Further Explanation Needed.

      Ah, yes, the Kentucky county clerk who refused to issue a marriage license to a mixed-race couple because of her religious convictions.

      • posted by Houndentenor on

        My point which Jorge completely side-stepped is that the religious reason is pretty much the only reason given for anti-gay discrimination so a religious exception would basically roll back all state and local antidiscrimination laws covering gay people. That’s the real purpose of the law. It’s not to protect religious people. The purpose is to legalize anti-gay discrimination in places where such is currently illegal.

        • posted by Jorge on

          My point which Jorge completely side-stepped is that the religious reason is pretty much the only reason given for anti-gay discrimination so a religious exception would basically roll back all state and local antidiscrimination laws covering gay people. That’s the real purpose of the law. It’s not to protect religious people.

          1) Only religious people are being threatened

          +2) Only religious people are being protected by the law.

          =/= 3) The purpose of the law is not to protect religious people.

        • posted by Tom Scharbach on

          Only religious people are being protected by the law.

          Only some religious people (those who have religious objection to hiring gays and lesbians) are being protected by the LCR-backed proposed law. The rest of the religious people can, as they say, go f*ck themselves as far as the law is concerned.

    • posted by TJ on

      Awww….Its cute that the Log Cabin Republicans want to pretend to play big boy games.

    • posted by TJ on

      Again. Its tough to sell the bill to voters when 1. they think its already the law. 2. Congressmen worry about supporting a bill that gets them pegged as backing the “gay agenda ” or “putting predators in the bathroom “. 3. A tremendous amount of money is funneled into the opposition anytime that anyone suggests regulating the private sector.

  2. posted by Tom Scharbach on

    The LCR-backed bill has no more chance than a prayer in hell of making it to the President’s desk for signature.

    But if the bill’s so-called religious exemption made it into law, it would immediately be challenged in the courts, as Lazin recognizes:

    If the Log Cabin bill is enacted, it will be for the federal courts to determine whether the so-called religious exemption violates the Constitution. With Lawrence v. Texas, Windsor v. U.S. and Obergefell v. Hodges, among others precedents, there is considerable case law to achieve through the courts the full loaf, workplace equality for LGBT Americans.

    And then what?

    Christian conservatives and their Republican allies are counting on the courts to condone government-sanctioned targeted special discrimination against gays and lesbians, and gays and lesbians alone.

    Even with Justice Gorsuch now on the Court, I don’t think that the Court will go along with it.

    After one or more of Justices Breyer, Ginsburg or Kennedy are replaced, conservative Christians and their Republican allies will have a better chance, but even with a Court dominated by right-originalist Justices, legislation like the LCR-backed bill may well be too blatant to withstand scrutiny.

    The LCR-backed bill goes to the heart of the Republican dilemma.

    Republicans cannot enact any pro-equality legislation without including explicit government-sanctioned targeted special discrimination against gays and lesbians, and legislation that broadens so-called religious exemption protections beyond discrimination against gays and lesbians (for example, allowing religious exemption with respect to race, ethnicity, gender and so on) is a political third-rail in American politics.

  3. posted by JohnInCA on

    We’re seriously blaming Democrats for Republicans being unable to pass a bill they haven’t put up for a vote?

    To be clear, I’ll be shocked if Paul Ryan let’s it go to a vote, regardless of how many or few exceptions there are in it. But until he tries, you really can’t blame Democrats for it not passing.

    That said, if he is a poison pill in it, you shouldn’t be surprised that folks aren’t willing to swallow it, Hook line and sinker.

  4. posted by Tom Scharbach on

    My point which Jorge completely side-stepped is that the religious reason is pretty much the only reason given for anti-gay discrimination so a religious exception would basically roll back all state and local antidiscrimination laws covering gay people. That’s the real purpose of the law.

    Of course it is the real purpose of the law. In fact, it is the only purpose of the law.

    If conservative Christians and their Republican political allies were interested in expanding religious freedom they would be seeking religious exemptions to non-discrimination laws that were issue-neutral and class-neutral.

    The fact that the law is so narrowly focused belies the bullshit about supporting religious freedom.

  5. posted by wilberforce on

    As usual, there’s a problem on both sides. Of course the religious exemption is a smoke screen to allow fundamentalists to discriminate against gay people only. And of course a republican congress would never bring enda to the floor.
    Meanwhile, the dems are not ready to bring one without bathroom protections for trans people, which will have a chance of passing sometime in 2060.

  6. posted by Tom Scharbach on

    Of course the religious exemption is a smoke screen to allow fundamentalists to discriminate against gay people only.

    I suspect that this is yet another case of “Give them enough rope …”

    The conservative Christians driving the “religious freedom” bus are getting more and more shrill and outrageous by the day (e.g. consider the escalation from George Will’s “Sore winners …” two years ago to Jorge’s “Evil, vindictive, malicious behavior …” yesterday) and it won’t be too much longer before the American people see through the “religious freedom” nonsense.

    Americans have a strong sense of fair play and solid bullshit detection skills. I think that we’ll see a repeat of the marriage equality battle, during which a majority of Americans turned their backs on the increasingly shrill and outrageous claims of the anti-marriage crowd a year or so before David Blankenhorn was confronted with his lies under oath, and crumpled, in the California Prop 8 trial, bringing down the house of cards forever.

    Meanwhile, the dems are not ready to bring one without bathroom protections for trans people, which will have a chance of passing sometime in 2060.

    I don’t think that it is going to take anywhere near that long for the American people to come to grips with the reality that the law should not prevent transgender men and women from using appearance-appropriate, identity-appropriate facilities, as transgenders now do all over the country without much fuss from anyone.

    The “bathroom bill” fight was ginned up for political advantage, and we are already seeing the house of cards start to shake, when the anti-trans crowd are reduced to using examples of cis men acting badly to make the case against transgender men and women.

    Just to try to channel the ENDA discussion within reality rather than alt-reality, ENDA is about employment discrimination, not about bathrooms:

    4.Employment discrimination prohibited

    (a) Employer practices

    It shall be an unlawful employment practice for an employer—

    (1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation or gender identity; or

    (2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual’s actual or perceived sexual orientation or gender identity.

    (b) Employment agency practices

    It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of the actual or perceived sexual orientation or gender identity of the individual or to classify or refer for employment any individual on the basis of the actual or perceived sexual orientation or gender identity of the individual.

    (c) Labor organization practices

    It shall be an unlawful employment practice for a labor organization—

    (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of the actual or perceived sexual orientation or gender identity of the individual;

    (2) to limit, segregate, or classify its membership or applicants for membership, or to classify or fail or refuse to refer for employment any individual, in any way that would deprive or tend to deprive any individual of employment, or would limit such employment or otherwise adversely affect the status of the individual as an employee or as an applicant for employment because of such individual’s actual or perceived sexual orientation or gender identity; or

    (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

    (d)Training programs

    It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual because of the actual or perceived sexual orientation or gender identity of the individual in admission to, or employment in, any program established to provide apprenticeship or other training.

    (e) Association

    An unlawful employment practice described in any of subsections (a) through (d) shall be considered to include an action described in that subsection, taken against an individual based on the actual or perceived sexual orientation or gender identity of a person with whom the individual associates or has associated.

    (f) No preferential treatment or Quotas

    Nothing in this Act shall be construed or interpreted to require or permit—

    (1) any covered entity to grant preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any actual or perceived sexual orientation or gender identity employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such actual or perceived sexual orientation or gender identity in any community, State, section, or other area, or in the available work force in any community, State, section, or other area; or

    (2) the adoption or implementation by a covered entity of a quota on the basis of actual or perceived sexual orientation or gender identity.

    (g) Disparate impact

    Only disparate treatment claims may be brought under this Act.

    Christio-Republican opposition to ENDA is not about bathrooms. That’s a smokescreen. Republio-Christian opposition to ENDA is about preserving the right of conservative Christians to discriminate in employment.

  7. posted by wilberforce on

    The bathroom issue was ginned up by trans people, who included in enda. The two issues are unrelated, as you point out. Yet trans people insisted it be included in enda, which . That’s not anti-reality. It’s historical fact.
    Your belief that Americans have a sense of fair play and bulls— detection is laughable. If that’s the basis for thinking it won’t take long for bathroom rights, heaven help us. But however long it takes, 10 years or 50, your position is a slap in the face of millions of gay people who need job protection now.
    But of course, the liberal elite have been ignoring working class issues for thirty years, which is why they lost. As long as you keep on with it, we’ll continue to loose, and we’ll have a list of far right nut jobs in office.

    • posted by Tom Scharbach on

      It sounds like you believe that if ENDA were changed to read “because of such individual’s actual or perceived sexual orientation” instead of “because of such individual’s actual or perceived sexual orientation or gender identity“, Republicans would rush to support ENDA.

      That’s been a homocon meme for years now, but I don’t see any evidence that ENDA sans “or gender identity” would pick up significant Republican support in Congress. Like it or not, gays and lesbians aren’t much more popular with Republican politicians than transgender men and women.

      I’m not certain, but I think we have a test case in Congress right now — the LCR-backed ENDA proposal that excludes transgender men and women and contains an religious exemption that is so strong that it permits almost any business to discriminate at will.

      Do you think that the proposal will garner enough Republican support in Congress, specifically in the House? It is the proposal homocons have been telling us about for years now.

      The LCR-backed proposal is not a bill that Democrats will rush to support, but if enough Republicans got behind the bill in the House and brought it to the floor with enough votes to put it within striking distance, I suspect that somewhere in the range of 25-30 Democrats would hold their nose and vote for it.

      The bill would need 218 votes to pass. With 30 Democratic votes, Republicans would need to put together 188 of 238 Republican votes. I don’t think that Republicans will get to that number, but sitting around beating on Democrats isn’t moving the bill forward.

    • posted by Tom Scharbach on

      The bathroom issue was ginned up by trans people, who included in enda. The two issues are unrelated, as you point out. Yet trans people insisted it be included in enda, which . That’s not anti-reality. It’s historical fact.

      I’m just curious. The language I quoted above is the operative language of ENDA 2015 (which is virtually identical to other versions of ENDA).

      What language, specifically, reflects “the bathroom issue ginned up by trans people”, as you put it? I don’t see it, but then I haven’t been following the Washington follies over ENDA all that closely.

      • posted by wilberforce on

        I stand corrected. It wasn’t the bathroom issue. It was including trans job protection in the bill that caused it to fail. There weren’t enough dems to support a bill with trans people in it. That’s the history that you want to ignore.
        Working class gays have suffered from this blunder ever since. And the left focus on the bathroom nonsense is another way to avoid real issues. If society wanted me to use the women’s room, I’d do it in a minute and just use the stall.
        I would also support trans people issues, if they didn’t go out of their way to sabotage ours, or hadn’t been insulting us for the last twenty years. But again, this is another example of the liberal party line screwing over working people. It’s given us President Von Crazy, and there are plenty more where he came from.

      • posted by Tom Scharbach on

        I stand corrected. It wasn’t the bathroom issue. It was including trans job protection in the bill that caused it to fail. There weren’t enough dems to support a bill with trans people in it. That’s the history that you want to ignore.

        Nonsense. I don’t ignore it, or want to ignore it. When you ignore history, it turns on you.

        ENDA 2010 failed in 2010, and inclusion of gender identity was the primary reason it failed.

        That’s part of the history.

        However, ENDA 2013 (with operative language identical to ENDA 2010 and the ENDA 2015 language I quoted above) succeeded in the Senate, 64-32, with 10 Republicans (Ayotte, Collins, Flake, Hatch, Heller, Kirk, McCain, Murkowski, Portman, and Toomey) joining Democrats. The bill did not get a hearing in the House. The Senate vote reflected a major shift in thinking about transgender inclusion among the Senators, and particularly among some Republican Senators.

        That’s part of the history, too.

        It doesn’t seem to me to do any good to nurse old wounds, and that’s what I’m hearing from gays/lesbians who remain fixated on ENDA 2010.

        If we had done that — nursed our wounds — after the Bush/Rove/Mehlman anti-marriage amendments circa 2004-2006, instead of picking ourselves up and fighting, we would not be benefiting from marriage equality now.

        Think on it.

        Working class gays have suffered from this blunder ever since.

        True, but I think you discount the progress that has been made in the private sector, and in the states.

        I would also support trans people issues, if they didn’t go out of their way to sabotage ours, or hadn’t been insulting us for the last twenty years.

        Each to his own, I guess. I’m old enough to remember the deep rifts in the gay rights movement between gays, on the one hand, and lesbians, on the other, during the 1970’s. The rifts were deep and seemed, to many, to be permanent. Then the AIDS crisis came, and the issues at the heart of the rift became trivial by comparison. The issues remain unsolved in many instances, but most gays and lesbians learned to move on and work together.

        Again, I don’t think that it does anyone any good to nurse resentments about the past conflicts between gays/lesbians, on the one hand, and transgendered men and women, on the other. For good or ill, our cause is linked at this point when it comes to non-discrimination laws like ENDA, and we will go forward together, or not at all.

        Think on it.

        • posted by Wilberforce on

          I have thought about it. And I don’t believe that we will go forward together or not at all. It’s only true because the liberal establishment insist on it.
          It’s what caused enda to fail then. And it’s wasting our time now, by fighting for bathroom rights instead of for enda.
          This is another example of the many working class issues that the liberal elite ignore. They have screwed us over for thirty years, with open immigration that cuts jobs and wages, boutique identity politics, and multiculturalist excuses for the rise of terrorism.
          As I said, there are plenty of far right nut jobs ready to fill the policy void left by out of touch liberals.

        • posted by Tom Scharbach on

          It’s what caused enda to fail then. And it’s wasting our time now, by fighting for bathroom rights instead of for enda.

          After 40 years of going nowhere and with the current LCR-backed version of ENDA so emasculated by religious exemptions that just about any business can discriminate at will, effectively providing no meaningful protection at all, I think that ENDA is dead.

          I hope so, anyway. The current, LCR-backed version of ENDA is less about ending employment discrimination than it is about creating a schema of government-sanctioned special discrimination against gays and lesbians.

          ENDA is a throwback to the days of “special” legislation for gays and lesbians — unmarried domestic partnerships, civil unions, and the like. It is time that we abandoned the “special” legislation road and simply insisted on being treated as other Americans.

          In the last couple of years, Democrats have been focusing on a different solution — including sexual orientation and gender identity as protected classes under the Civil Rights Act of 1964.

          I think that is a better solution, focused on including gays, lesbians and transgendered men and women within the protection of a longstanding, broadly accepted non-discrimination schema that covers employment and public accommodations.

          I’ve never been a fan of “special” legislation for gays and lesbians, and the Equality Act approach puts us in the same pot with all the other ingredients of the American stew.

        • posted by Tom Scharbach on

          This is another example of the many working class issues that the liberal elite ignore.

          It might be instructive to take a look at the state-level ENDA laws.

          Blue states, as a general rule, have had state-level ENDA laws in place for a decade or more. Red states, as a general rule, do not have ENDA laws in place at all.

          The “liberals have abandoned working class gays” meme sounds good, but it doesn’t hold up under analysis.

  8. posted by TJ on

    I doubt that a LGBT civil rights bill would have much better shot in Congress if it said that it didnt apply to bathrooms.

    In North Dakota a similar argument was made. So the bill was split up into four seperate bills ; one for employment, one for housing, one for public accommodation, one for banking.

    If everything but the public accommodation piece past, Id be willing to buy the sincerity of the bathroom concern a bit more. They were all rejected.

  9. posted by Tom Scharbach on

    Your belief that Americans have a sense of fair play and bulls— detection is laughable.

    Perhaps so, but it is true nonetheless.

    When Americans act in a way that betrays the sense of fair play that has characterized our history, usually it is because Americans are afraid. As the demagoguery giving rise to the fear is debunked, Americans move toward fair play. Almost always.

Comments are closed.