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from Political News
Summary Of Troubling Provisions In H.R. 2015, The Employment Non-Discrimination Act Of 2007 (ENDA)
By Bill Duncan, Chairman, NARTH Legal Committee
Under this proposed law, any employer with more than fifteen employees would be subject to Federal regulation regarding the "sexual orientation" or "gender identity" of their employees. Specifically, those employed by such an employer would be able to bring a complaint alleging they'd been discriminated against because of orientation or gender identity not only in workplace interactions but in employment recruiting, hiring decisions, workplace facilities and other issues.
The law defines "gender identity" as "the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth." Since sex discrimination is already covered by Federal law, this language is meant to provide coverage to people who are trying in various ways to appear to be members of a sex different than the one they are. An umbrella term used in some sectors is "transgender" and it encompasses, men who dress in women's clothes (and vice versa), people who undergo sex-change surgery or hormone treatment so they will look like a man or woman and similar behaviors.
The law would define "sexual orientation" as "homosexuality, heterosexuality or bisexuality."
The law would also allow for complaints of discrimination that individuals say are directed against them because of the people with whom they associate.
The current version of the bill has a "religious exemption" but there are significant problems with it and the bill drafters have made the exemption much narrower that it could be. The law, as written, exempts a religious organization if "its primary purpose [is] religious ritual or worship or the teaching of spreading of religious doctrine or belief." It is not clear that this would cover something like a non-denominational Christian bookstore or something of that nature.
The law says that religious employers "may require that applicants for, and employees in, similar positions conform to those religious tenets that such corporation, association, institution, or society declares significant." In other words, the law requires all religious organizations to make some kind of statement as to what they believe is significant enough to the organization to justify making it a condition for employment. This may provide some protection for religious groups but is a significant overreach in that religious groups should not have to justify themselves to the government before they are able to make internal interpretations of their own doctrines and beliefs.
The other "exception" is for "certain shared facilities." Again, there is a lot missing here. The law says a person cannot bring a complaint for "gender identity" discrimination "due to the denial or access to shared shower of dressing facilities in which being seen fully unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee's gender identity." So, an employer will have to make a dressing or shower facility available to any "transgender" employee that suits the sex they want to be. The only exception is where the current facility presents the "unavoidable" situation of an employee "being seen fully unclothed." Even in these situations, the employer is not off the hook because the employer will be required to make another facility available that fits the employees self designation. This exception says nothing about bathrooms, so they would be covered by the law.
At a number of points, the bill uses the language, referring to gender identity, "has undergone or is undergoing gender transition." Thus, an employee may be hired as a man but then decide he wants to appear as a woman (the law does not require any surgery just a "transition") and so announce one day that he will come to work as a woman from then on.
Updated: 8 February 2008
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