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The Employment Non-Discrimination Act, or ENDA, has had a pretty tumultuous year. After weeks of hearings, amendments, and fierce debate, last November the Senate passed a version of ENDA that included protections for transgender people for the first time. Unfortunately, in the 10 months since then, the bill has languished because Speaker of the House John Boehner refuses to allow a vote on the measure, as he feels the bill is “unnecessary” and will cause “frivolous lawsuits.” In response to Congress dragging its feet on the bill, President Obama signed an executive order earlier this year banning discrimination based on sexual orientation and gender identity by federal contractors. Following the sweeping Burwell v. Hobby Lobby decision that enshrined the religious rights of corporations, numerous LGBT rights organizations withdrew their support for the Senate-approved version of ENDA, concerned that the religious exemption included in it was now too broad in light of the Hobby Lobby decision. In a press conference to move the bill forward, Rep. Jared Polis of Colorado is using a procedural move known as a discharge petition to force a vote on a version of ENDA with narrowed exemptions, despite Boehner’s blockade.
A discharge petition is a formal motion in the House of Representatives that requires the signatures of 218 members of the chamber (an absolute majority of members). If the required number of signatures are gathered, it allows the bill or resolution that’s been filed to be placed on the voting calendar 7 days later. Think of it as a kind of referendum petition inside of Congress. It’s a rule intended as a check on the heavy control the leadership has within the House. This is far from the first time the Democrats have tried to force a vote via discharge petition in the last year. Back in April, Minority Leader Nancy Pelosi filed a discharge petition to attempt to force a vote on a bill for comprehensive immigration reform. Last October Rep. Chis Van Hollen from Maryland attempted the maneuver to pass a bill to end the government shutdown. Both attempts ultimately failed. In fact, the last time a discharge petition was successful was back in 2002, forcing a vote on the McCain-Feingold campaign finance reform act.
Polis’s amendment scales back the scope of the religious exceptions to those groups specified in Title VII of the Civil Rights Act, namely private clubs and very specific kinds of religious groups. The Senate version contains language that covers any organization partially owned by or with religious affiliations, which would include religious universities and hospital. It was this amendment that secured the support of ten Senate Republicans and allowed the sponsors to overcome a filibuster. Organizations like the National Gay and Lesbian Task Force and Lambda Legal believe these exceptions would, in light of Burwell v Hobby Lobby, allow any company to discriminate so long as they claim a religious belief. So far, the White House has expressed vague support for a vote on LGBT protections, but without mentioning ENDA in particular, or endorsing the narrowed religion exceptions. It does not appear the White House is working to pressure House members to sign the petition at this time. The Human Rights Commission has been the first major LGBT rights organization to laud the Democrats for pressing the narrowed bill forward, stating they “appreciate the leadership of Leader Pelosi and Congressman Polis in seeking every possible avenue to advance ENDA.”
Were the discharge petition to succeed, and this version of ENDA to pass in the House, it would need to return to the Senate with the narrower language, where many believe it would face a difficult battle for final passage. With the midterm elections just around the corner, both parties will be looking to shore up the support of their constituents, so it may be a particularly unpalatable time to seek Republican support for an LGBT rights bill, despite the fact that a majority Americans (and Republicans) support these protections. One might hope for one last push for the bill’s passage during December’s lame duck session (historically a time for controversial legislation to see the floor), but all indications are that this year’s lame duck won’t quack very loudly. Unfortunately, if the GOP takes the Senate in November, as many are predicting, it may be a long time before we see an ENDA bill this close to passage again.