ENDA is dead, but the Equality Act yet lives.
The Employment Non-Discrimination Act (ENDA), first introduced in the 103rd Congress in 1994 and in every Congress since then, except the 109th and the current 114th, would have forbidden an employer with 15 or more employees:
(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.
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The “gender identity” provision was added beginning in 2009. The bill generally died in committee, but most recently (Dec. 2013) passed the Senate by a vote of 64-32, only to die in the House.
In its place, the more onerous Equality Act was introduced on July 23, 2015, in both Houses of Congress. In the House, H.R.3185 has 172 cosponsors (only 1 of them a Republican). In the Senate, S.1858 has 40 cosponsors (only 1 of them a Republican).
The Equality Act is a bill “to prohibit discrimination on the basis of sex, gender identity, and sexual orientation, and for other purposes.” It would amend the Civil Rights Act of 1964 “to include sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation in places of public accommodation.” It would also expand the categories of public accommodations to include places or establishments that provide
- exhibitions, recreation, exercise, amusement, gatherings, or displays;
- goods, services, or programs, including a store, a shopping center, an online retailer or service provider, a salon, a bank, a gas station, a food bank, a service or care center, a shelter, a travel agency, a funeral parlor, or a health care, accounting, or legal service; or
- transportation services.
“Establishment” is prohibited “from being construed to be limited to a physical facility or place.” The legislation authorizes the Department of Justice (DOJ) to bring a civil action if it receives a complaint from an individual who claims to be:
- denied equal utilization of a public facility owned, operated, or managed by a state (other than public schools or colleges) on account of sex, sexual orientation, or gender identity; or
- denied admission to, or not permitted to continue attending, a public college by reason of sexual orientation or gender identity, thereby expanding DOJ’s existing authority to bring such actions for complaints based on race, color, religion, sex, or national origin.
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The Equality Act also:
Revises public school desegregation standards to provide for the assignment of students without regard to sexual orientation or gender identity.
Prohibits programs or activities receiving federal financial assistance from denying benefits to, or discriminating against, persons based on sex, sexual orientation, or gender identity.
Prohibits employers with 15 or more employees from discriminating based on sexual orientation or gender identity, subject to the same exceptions and conditions that currently apply to unlawful employment practices based on race, color, religion, sex, or national origin. Requires employers to recognize individuals in accordance with their gender identity if sex is a bona fide occupational qualification that is reasonably necessary to the normal operation of that particular business or enterprise.
Provides government employees with protections against discrimination based on sexual orientation or gender identity.
Authorizes DOJ to intervene in equal protection actions in federal court on account of sexual orientation or gender identity.
Requires protections against discrimination based on race, color, religion, sex, sexual orientation, gender identity, or national origin to include protections against discrimination based on: (1) an association with another person who is a member of such a protected class; or (2) a perception or belief, even if inaccurate, that an individual is a member of such a protected class. Prohibits the Religious Freedom Restoration Act of 1993 from providing a claim, defense, or basis for challenging such protections.
Prohibits an individual from being denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity.
Amends the Fair Housing Act, the Equal Credit Opportunity Act, and jury selection standards to add sexual orientation and gender identity as classes protected against discrimination under such laws.
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Major corporations like Apple, General Mills, Facebook, Nike, and American Airlines have expressed support for the legislation. This follows the signing by over 100 prominent leaders in the tech industry of the “Joint Statement from Tech Industry Leaders” calling on legislatures “to add sexual orientation and gender identity as protected classes to their civil rights laws and to explicitly forbid discrimination or denial of services to anyone.”
Late last year, the Obama Administration endorsed the legislation after reviewing the bill “for several weeks.” Said White House press secretary Josh Earnest: “Upon that review it is now clear that the administration strongly supports the Equality Act.” The president’s endorsement came on the same day that he became the first sitting U.S. president to be featured on the cover of an LGBT publication.
Naturally, all current and former Democratic presidential nominee aspirants have expressed their support for the Equality Act.
With the exception of Robert Dold and Mark Kirk, both moderates from Illinois and the lone Republicans in the House and Senate who are cosponsoring their chamber’s respective bills, Republicans in and out of Congress are balking at the legislation. But not because they have any philosophical objection to federal anti-discrimination legislation or because of any commitment to the principles of individual liberty, free association, free assembly, voluntary interaction, and private property.
The Civil Rights Act of 1964—an unconstitutional expansion of federal power that destroyed the rights of private property, freedom of assembly, freedom of association, free enterprise, and freedom of contract—currently prohibits discrimination in public accommodations based on race, color, religion, sex, or national origin. The Fair Housing Act of 1968 adds to this list discrimination based on disability and familial status.
Republicans have been accepting of these things for at least forty years. Even when Republicans controlled the White House and both Houses of Congress for over four years of Bush’s presidency, there was never any attempt change federal anti-discrimination law or abolish the Equal Employment Opportunity Commission (EEOC). Republicans have no problem with government attempts to prevent individuals and businesses from discriminating against certain groups in the course of renting hotel rooms, serving food, leasing apartments, selling houses, hiring employees, admitting to clubs and organizations, or engaging in commerce.
The main objection Republicans have to the Equality Act is how it will adversely affect religious liberty. Here is Andrew Walker, Director of Policy Studies for the Ethics and Religious Liberty Commission of the Southern Baptist Convention:
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The Equality Act represents the most invasive threat to religious liberty ever proposed. Were it to pass, its sweeping effects on religious liberty, free speech, and freedom of conscience would be historic.
Aside from the enumerated protections that give rise to conflict between sexual identity and religious liberty, by elevating sexual orientation and gender identity to the level of race, the law’s effect would functionally equate those who don’t agree with it with racists and label them perpetrators of irrational bigotry. Indeed, to favor the Equality Act is to oppose and actively stigmatize the moral convictions that millions of Americans adhere to with abiding sincerity and deep religious precedent.
All public accommodations and programs would be prohibited from denying any good or service to persons on the basis of sexual orientation and gender identity. This sounds acceptable in theory, but it leaves no room for accommodating the viewpoints of those whose services, speech, or creativity are used to serve wedding ceremonies. Consider the cases of florists, photographers, and bakers who have had no problems serving gay customers for years, but have objected to providing their services for gay weddings. The Equality Act leaves these individuals defenseless by failing to accommodate their sincere religious beliefs and by failing to distinguish between the dignity of gay individuals and the particular conduct (such as wedding ceremonies) in which some cannot in good conscience participate.
What he says is, of course, absolutely true. As is this:
The bill’s stated intentions and its actual consequences are very different. While the bill purports to protect individuals from discrimination, the Equality Act would discriminate against those who do not agree with a regime of laws premised on sexually permissive understandings of human nature that deny sexual complementarity. It would thus create a new form of discrimination by socially isolating certain beliefs.
What this all comes down to is that Republicans (and most conservatives) believe that discrimination is perfectly okay if it concerns religion. Thus, churches, synagogues, and mosques should be free to hire as ministers, rabbis, and imams only men for leadership positions and discriminate against women. Christian, Jewish, and Muslim schools should be free to hire as teachers just Christians, Jews, and Muslims and discriminate against those of other religions. Religious organizations should be free to admit only heterosexual members and discriminate against homosexual, transgender, and gender fluid individuals. Religious florists, photographers, and bakers should be free to refuse to provide their services for same-sex weddings.
But do Republicans and conservatives really believe what they are saying? Do they actually believe that religious discrimination is okay? Not always. Consider the recent case of Kuwait Airways refusing to carry Israelis on its airplanes.
After thirty-five years of service, Kuwait Airways recently ended its flights between New York City and London rather than have to transport Israelis between the two cities. Kuwait, like sixteen other mostly Arab countries, does not recognize the state of Israel. And Kuwaiti law prohibits domestic companies from conducting business with Israeli citizens. Kuwait Airways does not allow Israelis on its nonstop flights between New York City and Kuwait City because Israelis are granted visas to visit Kuwait. At issue is just the flights from New York City that used to connect in London before going on to Kuwait City. After an Israeli citizen filed a complaint when his attempt to book a flight on Kuwait Airways from New York City to London was refused, the U.S. Department of Transportation (DOT) ruled that the airline’s longstanding policy of prohibiting Israelis from traveling on those flights amounted to “unreasonable discrimination” because Israeli passport holders have the legal right to travel from the United States to the United Kingdom. “An airline does not have the right to refuse to sell tickets to and transport a person between the U.S. and any third country where they are allowed to disembark based on the laws of that country,” said a spokeswoman for the DOT.
I don’t know of a single Republican who has come to the defense of Kuwait Airways for its practice of discrimination against Israelis. Keep in mind that the Kuwaiti attitude toward Israel is ultimately a religious dispute.
Republicans just don’t get it on discrimination.
If discrimination is bigoted, racist, sexist, xenophobic, homophobic, unjust, and just plain wrong, then it doesn’t suddenly cease to be those things when the discrimination is based on some religious conviction.
But discrimination is not “wrong.” In fact, there is nothing inherently “wrong” with discrimination. It is not a dirty word. No one has the right to work any job, be served in any restaurant, shop at any store, enter anyone’s property, rent any hotel room, lease any apartment, buy any house, be admitted to any club or organization, or associate with someone who doesn’t want to associate with him. Discrimination is not aggression—even if it is based on stereotypes, prejudice, bigotry, or racism, and even if it appears to be illogical, irrational, nonsensical, or unreasonable—and should not be prohibited by force of law.
Discrimination means freedom. All discrimination, not just religious discrimination.
A free society is a society free of discrimination laws.
