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One Inch at a Time

On the Employment Non-Discrimination Act

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The House of Representatives is poised to take a long overdue step by catching up with the American public and corporate America in addressing workplace discrimination based on sexual orientation. This follows successful votes in the House of Representatives and the United States Senate to add hate crimes protections based on gender, disability, sexual orientation, and gender identity and expression.

The Employment Non-Discrimination Act, H.R. 3685, introduced by Rep. Barney Frank (D-MA), would make it illegal to fire, refuse to hire, or fail to promote employees simply based on sexual orientation. Protections for the LGBT community exist in a patchwork of states due to the hard work of the LGBT community, but there are surprisingly no federal prohibitions on discriminating against individuals based on their sexual orientation or gender identity.

Only a little over a year ago the U.S. Congress was casting votes on whether to write LGBT discrimination into the Constitution in the form of a “marriage protection” amendment. We should applaud the new progressive Congress for their leadership. Unfortunately, this progress is still challenged by an intense debate in Congress, and what was a bill to protect against discrimination due to sexual orientation and gender identity has been pared down to include only sexual orientation.

The vast majority of Americans continue to believe that individuals should be judged on their work, not on their sexual orientation or gender identity. And nearly 90 percent of the Fortune 500, including household names such as Boeing Co., Ford Motor Co., and BP America, have implemented policies prohibiting discrimination based on sexual orientation.

The House bill is not as inclusive as policies in many major companies and a growing number of states. But history may inform us that while passing legislation that only prohibits discrimination based on sexual orientation may not be the perfect strategy, it may hasten, and be a critical predicate for, legislation that protects the entire LGBT community over time.

Rep. Tammy Baldwin (D-WI) will offer an amendment to include gender identity in the bill on the House floor. Gaining the needed votes to pass this amendment will be challenging, but getting the best vote possible on the Baldwin amendment is an important step in the congressional education process.
And the transgender community isn’t the only group that will likely be left out of this narrower version of the legislation, including employees of small businesses, employees of religious institutions, and gay and lesbian individuals in the armed forces. But this bill was built on compromise; it was never intended to be the whole package, and should therefore be seen as a first step.

This kind of discrimination is wrong and has no place in our country. None. And it is wrong  to fire someone because of their sexual orientation or gender identity. But right now the votes to pass an inclusive bill are just not there.

Since the first introduction of LGBT non-discrimination legislation in Congress by Rep. Bella Abzug (D-NY) in the 1970s, a tremendous amount of effort and time have been spent educating federal policy makers about the need to protect gay, lesbian, and bisexual Americans from workplace discrimination.

Progress in the states has been similarly slow, but steady. Currently 13 states and the District of Columbia have explicit policies that protect against employment discrimination based on sexual orientation and gender identity; seven more have laws that protect against sexual orientation discrimination only.

New Mexico and a few other states were able to pass the full package of protections at once. But other states, such as Rhode Island, passed sexual orientation discrimination laws first and followed them with gender identity protections later when there was more public knowledge and support. New York finally compromised after a 21-year-long battle to protect against sexual orientation and gender identity discrimination and passed legislation that prohibits sexual orientation workplace discrimination only.

Promoting a firm understanding of the need for legislation is the critical first step toward moving legislation through Congress. Groups have also begun educating Congress and the public in recent years about the need to protect the transgender community, and these efforts must continue with increased vigor. Going forward, we need to harness the energy of all of our progressive allies and redouble our collective efforts to educate policy makers and the rest of America on the importance of protecting the entire LGBT community from bias and harm.

When expanding the hate crimes measure was first proposed in 1997, it extended existing hate crimes protections afforded to people based on race and religion to protections based on real or perceived sexual orientation, gender, and disability. There were disputes on whether the transgender community would be appropriately and adequately protected in this original bill under the definition of “real or perceived gender.” Advocates from within the LGBT community and throughout the civil rights community worked together, building a legislative track record to achieve the strongest bill possible.

Despite the incredible odds of an unfriendly leadership in Congress through most of the formative years of the hate crimes legislation, proponents were able to engineer a series of votes. Some of these votes were procedural and some had more legislative “weight.” Each successive vote built on the solid foundation laid by the first vote on what was an imperfect bill.

This slower progress allowed advocates inside and outside of Congress to build upon their earlier victories and allow us to stand where we do today—with a bipartisan and fully inclusive hate crimes bill about to land on the president’s desk that provides protections based on sexual orientation, gender, disability, and gender identity and expression.

Gaining equality for everyone remains at the core of how we view America achieving its true promise. President Clinton once said, “I believe … if you have ideas and you’re willing to work, and you’re not so pig-headed that you think you’ve got the total truth, and you work with other people, and you just keep working at it, and you’re willing to win in inches as well as feet, that a phenomenal amount of positive things can happen.”

I believe we can and should make progress—one step, and one inch, at a time.

To speak with our experts on this topic, please contact:

Print: Allison Preiss (economy, education, poverty)
202.478.6331 or apreiss@americanprogress.org

Print: Tom Caiazza (foreign policy, health care, energy and environment, LGBT issues, gun-violence prevention)
202.481.7141 or tcaiazza@americanprogress.org

Print: Chelsea Kiene (women's issues, Legal Progress, Half in Ten Education Fund)
202.478.5328 or ckiene@americanprogress.org

Spanish-language and ethnic media: Tanya Arditi
202.741.6258 or tarditi@americanprogress.org

TV: Rachel Rosen
202.483.2675 or rrosen@americanprogress.org

Radio: Chelsea Kiene
202.478.5328 or ckiene@americanprogress.org