There has been a recent ruse over ENDA, the Employment Non-Discrimination Act. As Katie McDonough noted in Salon, after the recent Hobby Lobby decision “progressive and LGBTQ groups one-by-one withdrew their support from the measure” including groups like the “National Gay and Lesbian Task Force [NGLTF], the Transgender Law Center and the American Civil Liberties Union.” What was their reason for not supporting the bill? The measure’s “gaping exemptions for religious organizations” specifically, making the bill, in their view, worthless. At worst, some said that this exemption locked in discrimination for millions as argued by groups like the Center for Inquiry in their statement withdrawing support of ENDA. Even 100 religious leaders sent a letter to President Obama telling him to remove a religious exemption from an ENDA-like executive order (Obama has since signed the executive order). On the religious exemption in ENDA alone, one of my friends, who is trans*, told me that she did not want to participate in lobbying for the law, after I had sent her an article about groups dropping their support since I thought she’d be interested in the subject.

One group remained a strong supporter of ENDA: the Human Rights Campaign or HRC, the biggest Gay Inc. organ, with Fred Sainz, as noted in the liberal gay publication The Advocate, saying that they support ENDA “because it will provide essential workplace protections to millions of LGBT people.”Other groups such as Freedom to Work and the National Center for Transgender Equality still support the bill, as do weird allies: Republican backers like the gay conservative group Log Cabin Republicans and the American Unity Fund. Even gay conservative Andrew Sullivan, who has some reservations about the law, supports it. In contrast, Matt Barber, who has previously claimed that homosexuals openly ridicule Christianity and engaged in fearmongering by falsely claiming that a House bill on HIV/AIDs prevention paid for gender-reassignment surgery, absurdly claimed that ENDA was “the crown jewel of homofascism” and that left-leaning groups were mad since it did not “outlaw” Christianity.

It is strange that the religious exemption in the law is being brought up as an issue now. Back in April of last year, if not earlier, the ACLU, the National Center for Lesbian Rights, and others criticized the law’s religious exemption but they did not withdraw their support for the bill. If the Hobby Lobby decision had never happened, it is a likely that these groups would still be supporting the bill, despite their ‘reservations.’ Lest us forget that even though the Democratic Party theoretically supports ENDA, but they “have allowed it to languish on paper for a decade without ever hitting the floor of Congress,” as noted by Sherry Wolf in CounterPunch. More importantly, as Wolf noted in the same article, then-President Bill Clinton “held a closed-door meeting in 1997 with advocates of ENDA” which she said had “been chiseled away at to include notable exemptions for small businesses, the armed forces and religious organizations.”

In my critique of ENDA, in an article I wrote for Dissident Voice last November, I said I was uneasy with a section that showed that the law applied “to a great majority of the workforce, but only to a sliver of the overall businesses.” I further noted that volunteers are not covered by the law, that “those fired for gender ID or sexual orientation before the act is enacted will not benefit from the legal repercussions of the law” and a section of the law I still find utterly chilling, since it “allows employers to continue (or begin) to set ‘dress or grooming standards’ of employees.” In this article, I also went through all of the corporate sponsors of the bill, most of whom were part of the so-called “Business Coalition for Workplace Fairness,” ranging from Intel to Microsoft to Chevron, showing that the corporate sector believes that the lesbians and gays (mainly) constitute a new “marketplace to sell goods and services.” I concluded the article saying that ENDA reinforces “the capitalistic status quo by not challenging corporate power or the power elite in any serious way” and I warned that the “the corporate sector is going full-speed ahead” as they try to rapidly turn the whole community of gender, sexual and radical diversity “into a market so they can get millions of dollars in profits.” Looking back, my argument was a moderate one which didn’t even oppose ENDA, but I still agree with most of what I wrote, other than the multiple uses of the term GSRM, which I’ve since learned is not a positive term.

Most supporters of the law do not realize the obvious reality that surrounds the law itself. The business community wants to tap a new market, while using it boost their profits with policies of ‘diversity’ and ‘inclusiveness’ that follow the law’s enactment and subsequent implementation. Still, the law itself, as I noted in the previous paragraph, has deep problems. People like Robyn Pennacchia of Death and Taxes magazine say that ENDA should be passed because it is “geared towards protecting the rights of American citizens” but not with any of the religious exemptions, because it is an “exercise in futility.” Even if there was no religious exemption in the law, there would still be the section allowing “an employer from requiring an employee, during the employee’s hours at work, to adhere to reasonable dress or grooming standards,” or another defining one’s sexual orientation as “homosexuality, heterosexuality, or bisexuality,” rather than using an open definition like that of the American Psychological Association. A pro-ENDA article, in Gay Star News, interestingly enough, notes that the law “bars significant remedies available under the Civil Rights Act in cases of race or sex discrimination” and doesn’t allow LGBT plaintiffs to “file disparate impact claims seeking to show that an employer’s policy has disproportionately negative consequences on [their] community.” Any sort of program that mimics affirmative action for gays, lesbians, trans* people, bisexuals and others, is also not required under the law which declares that

“nothing…shall be construed or interpreted to require or permit…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…[or] the adoption or implementation by a covered entity of a quota on the basis of actual or perceived sexual orientation or gender identity.”

Georgetown University law student Noah Baron brought this up in an article published last month in the Huffington Post, and went even further. He argued that the law was awful before the Hobby Lobby decision, noting that it “prohibits both public and private employers from making use of most affirmative action programs” but only when it is “applied to LGBT people” and it “may roll back significant progress made in protecting transgender Americans from employment discrimination.” Baron later called ENDA “a token, but ultimately simply another reminder that LGBT persons are regarded as less-that,” while noting that the Title VII protection that has been won by transgender people could be lost with ENDA’s passing. In the final sentence of his article, he remarked that ENDA “would achieve” something that is deeply disconcerting: the “enshrining into federal law anti-LGBT bias as an officially more-acceptable form of bigotry.”

There is something disturbing that is getting little coverage: how restrictions put in place by President George W. Bush which allow “faith-based hiring” would not be affected by the law or by Obama’s executive order. Additionally, the law basically institutionalizes discrimination not only through the religious exemption, but it also does so through “dress and grooming standards” which infringes on the freedom of expression of individuals especially those such as trans* or queer people, who are not as accepted by society than others, could be forced to groom or dress a certain way that would be harmful to their well-being. Why are groups not putting up a fuss about that? Why just this religious exemption? And why now?

There is another deeper problem with ENDA, which could easily be called the Ensuring National Discrimination Act. It could be an example of how efforts to make “social injury” illegal “powerfully legitimizes law and the state as appropriate protectors against injury and casts injured individuals as needing such protection by such protectors,” as argued by political theorist and political science professor at the University of California at Berkeley, Wendy Brown, in the introduction to her book, States of Injury (see page 27). If applied to ENDA, the “injured individuals” would be people who are lesbian, gay, bisexual, trans*, queer, etc… and the mechanisms of enforcing the anti-discrimination measures would be the legitimization of the state. In the instance of ENDA, it is hard to apply this idea completely since the law has many exemptions and leaves out the power of the state in many instances, giving individuals more leeway at times.

Some folks in the vast community of gender, sexual and radical diversity will be angry and enraged at this article, saying that there must be non-discrimination measures that protect their community. I agree that such measures can be useful and can help. Stopping discrimination of people of any sexual orientation, color or creed is a laudable goal. However, ENDA as it currently stands, is a bill that institutionalizes discrimination, even without the religious exemption, whether supporters of the law will admit it or not. The nature of ENDA and the corporate support behind it, which is connected to an exploitation of ‘new’ market of ‘wanting’ consumers, is why I cannot lend my support to this legislation. There are a number of questions you could ask of the legislation (What will the law do about homelessness and poverty? What will it do to address the harassment of trans* individuals by police? What will it do to stop the criminalization of young trans* and queer people?) and the answer is always: NOTHING. In the end, it is best to remember what Linda Zerilli, a professor at the University of Chicago, writes in her book, Feminism and the Abyss of Freedom (page 122), something that supporters and their allies pushing ENDA often forget, but should not be forgotten: “rights are not things to be distributed from above, but a demand for something more made from below.”

 

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