For 20 years, LGBT advocates have tried, unsuccessfully, to block companies in the U.S. from firing workers for being gay. The federal Employment Non-Discrimination Act (ENDA) was introduced in 1994 by Massachusetts Democrats Ted Kennedy in the Senate and Gerry Studds in the House. It was reintroduced in almost every congressional session and finally made it through the House in 2007, but wasn’t debated in the Senate that year because of disagreement among Democrats over whether to include transgender as well as gay employees. In 2013 a version passed the Senate, which was Democratic-controlled, only to die in the Republican-controlled House.
Now liberal lawmakers are setting the workplace-focused legislation aside in favor of a more ambitious approach. In July, congressional Democrats plan to put forward legislation that would outlaw LGBT discrimination not only in employment but also in education, credit, federal programs, housing, and jury service, as well as at restaurants and hotels. “We have, over time, taken a strategy of saying, ‘Let’s chip away at discrimination,’ ” says Senator Jeff Merkley, an Oregon Democrat who’s sponsored past ENDA bills and will introduce the comprehensive legislation. “I think the time has come, and the American public has moved far enough that we have a strong prospect."
LGBT advocates and supporters such as Merkley got a big boost from the business community earlier this year when Wal-Mart Stores and Apple joined other large companies in pressuring the Republican governors of Indiana and Arkansas to backtrack on religious freedom bills that would have shielded businesses that discriminated against LGBT customers. They are also hoping the national shift in favor of same-sex marriage will help soften opposition to expanding discrimination protection. According to a May Gallup poll, 60 percent of Americans support same-sex marriage, compared with 37 percent in 2005. The U.S. Supreme Court is expected to rule by June 30 on whether same-sex couples have a constitutional right to marry.
Historically, LGBT advocates have been split on how much to compromise in order to get federal legislation passed. In 2007, unable to secure majority support even in a Democratic-controlled Congress for a version of ENDA that included transgender employees, then-Representative Barney Frank, the Massachusetts Democrat, reintroduced a draft that dealt only with antigay discrimination. Many LGBT groups opposed the bill. The largest, the Human Rights Campaign, drew heat from allies for supporting it. “You sometimes get a little bit of a disconnect between those who want to achieve something and get something passed and those who want to hold out for the ideal,” says David Stacy, who directs government affairs for the group. “I think the lesson over time—and in fact the lesson that not only our community has learned, but other communities have learned—is inclusion is the better path to take,” counters Rea Carey, executive director of the National LGBTQ Task Force.
The path for antidiscrimination legislation is even narrower now that Republicans control both the House and the Senate. LGBT groups and their Democratic allies say replacing ENDA with a broader bill offers a better vehicle for raising public awareness about the scope of discrimination experienced by gay, lesbian, bisexual, and transgender people. It also creates a vehicle for putting pressure on Republicans ahead of an election year. “They are going to squirm,” says California Representative Xavier Becerra, the House Democratic Caucus chairman. “They are in a soup that they cooked, and the flame is getting higher.”
Conservatives who support anti-discrimination legislation say Democrats are politicizing the issue at the expense of getting anything passed. “Democrats are obsessed with exclusively owning this issue and deliberately excluding Republicans,” says Gregory Angelo, executive director of the gay conservative group Log Cabin Republicans. Any broader anti-discrimination bill needs the buy-in of Republicans, he says, “before it is introduced, not after.”
Republicans in Congress who have opposed anti-discrimination bills in the past say they just want to make sure any legislation adequately balances civil rights against other concerns. “I’m certainly very much in favor of not discriminating against anybody,” says Arkansas Republican Senator John Boozman. “My problem is that you don’t want to give special rights, OK, and make it such that somebody that’s gay can’t be fired even if they’re not doing their job.”
If Republicans do offer a compromise, Democrats pushing the comprehensive approach will face pressure to abandon it. “Any insistence that this bill has to be passed as a giant bill and can’t be dealt with in pieces would be suicidal,” says Frank. Still, Rhode Island Democratic Representative David Cicilline, who will spearhead the anti-discrimination bill in the House, says he’s not planning to back down. “I think we undermine the argument when we just say, ‘Oh, OK, we’ll do it here,’ or ‘we’ll do it there,’” he says. “We should be demanding and fighting for full equality.”