RIP ENDA (1974-2014)

The Employment Non-Discrimination Act (ENDA) passed away last week with the close of the 113th Congress. It was 40 years old. ENDA had been surviving on life support in the House of Representatives for slightly over a year, its suffering ending when Speaker John Boehner formally withdrew care by not scheduling a vote.

ENDA was born as the Equality Act of 1974, a broad bill seeking to end discrimination in various parts of the public sphere, including employment, housing and businesses. It was the first law aimed at ending discrimination against gays and lesbians. Protections were also included for singles and women, but not transgender individuals.

The Equality Act failed to pass Congress, and led a quiet life through the 1970s and ‘80s. It returned to the public sphere in 1994 as the Employment Non-Discrimination Act, and was introduced in Congress by Rep. Gerry Studds and Sen. Ted Kennedy. ENDA’s proudest moment of the decade was in 1996, when it received a floor vote in a Republican controlled Senate and failed by only one vote (49-50 with Vice President Al Gore poised to break any tie). At the time, it covered only sexual orientation.

ENDA survived as legislation through the late ‘90s and early 2000s, but never received a floor vote in either chamber. It was out of sight during the 109th Congress, but came back to the public eye after Democrats regained Congressional majorities in 2006.

When it returned in 2007, ENDA brought with it protections based on gender identity as well as sexual orientation. Rep. Barney Frank tried to shepherd it through the House of Representatives, but the new protections were met with resistance and eventually stripped from the bill. The non-inclusive ENDA passed a House floor vote for the first time, but a potentially historic victory turned into ENDA’s darkest days. The decision to remove the transgender protection caused a schism within the LGBT community and supporters between those who believed in standing by legislators supportive of the limited ENDA as a good first step and those who felt the transgender community could not be left behind. The battle within the LGBT community effectively ended ENDA’s hope for Senate passage that year.

The idea of excluding the transgender community from ENDA effectively died in that 110th Congress, and it was never again introduced without protections based on gender identity. ENDA didn’t receive a floor vote in the next two Congresses, but prompted historic achievements, including Kylar Broadus’ testimony to the U.S. Senate, the first ever by an openly transgender person.

ENDA’s best days came in November 2013, when it passed the Senate with a bipartisan majority. It was believed to have enough “Yea” votes in the House of Representatives to pass, but despite an attempt by Rep. Jared Polis to force a vote and pleas by supportive Republicans, ENDA was never given a floor vote. ENDA’s final chance at survival was a Rules Committee vote whose negative outcome was so assured that some friends didn’t even show up for its last breaths.

Even in its final days, ENDA contained exemptions for religious institutions with stances against LGBT Americans. In light of the Supreme Court decision in the Hobby Lobby case, many LGBT advocacy groups feared those exemptions would prove too broad and withdrew their support, making revival of ENDA for the next Congress unlikely.

ENDA is survived by committed activists and organizations who will continue the fight for workplace equality and legislators like Rep. Susan Davis and Sen. Jeff Merkley, who are looking for ways to achieve the goals of ENDA and more with comprehensive legislation to remove discrimination in numerous areas and perhaps throughout the federal code.