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to Section One | to Arts & Entertainment
posted Friday, June 20 2014 - Volume 42 Issue 25
LGBT groups have second thoughts about ENDA
Section One
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LGBT groups have second thoughts about ENDA

by Mike Andrew - SGN Staff Writer

A number of LGBT rights groups are having second thoughts about ENDA (the Employee Non-Discrimination Act).

Although the measure - which would prohibit employers from discriminating against LGBT workers - was once part of the platform of every LGBT group, many people have come to believe that the broad religious exemptions included in the language of the bill would be harmful to the LGBT community.

Specifically, many LGBT rights advocates charge that ENDA's religious exemptions would allow employers who claim religious affiliation to discriminate against LGBT workers even if they are not employed in ministerial or pastoral positions. Such broad exemptions, once thought to be essential to passing the legislation, are unprecedented in U.S. civil rights legislation, and some fear they could gut the nondiscrimination protections.

Shannon Minter, legal director of the National Center for Lesbian Rights, said in an email that NCLR now 'strongly oppose[s] any religious exemption in ENDA or any other federal, state, or local non-discrimination law that is broader than the religious exemption that already exists in federal civil rights laws.'

'We do not support legislation that will create a new and broader exemption for LGBT people than exists for other protected groups,' Minter said. 'While we are confident the current discriminatory religious exemption in ENDA will not be part of the final legislation, we will not continue to support ENDA if it is not changed to be consistent with Title VII's religious exemption.'

Title VII of the 1964 Civil Rights Act contains an exemption that addresses a narrow issue, specifically the interest of a church-affiliated organization to create a community of fellow believers.

Therefore, Title VII's exemption allows such organizations to hire employees based on their religion, which would otherwise be prohibited, in order for the employer to maintain its religious identity. Title VII does not restrict protections in the law against workplace discrimination based on race, sex, or national origin.

'There is a long history now of accommodating religious beliefs, by permitting certain narrowly defined religious employers to favor individuals from the same faith,' Minter explained. 'That Title VII exemption is reasonable' because 'religious liberty is important. That kind of accommodation, we have decided for a long time now, makes sense.'

'But never, ever,' he added, 'has a civil rights law - certainly not at the federal level or state level - said in addition to that, you can also discriminate on the basis of other protected categories, such as race, gender, disability, sexual orientation or gender identity...

'[S]anctioning that type of discrimination is antithetical to the whole purpose of an anti-discrimination statue. And to set the precedent that there is somehow something special or different about anti-discrimination laws for LGBT people that warrant that kind of unprecedented and unprincipled exemption would open a door that we do not want to open. I think it is very dangerous.'

Mark Snyder, communications manager for the Transgender Law Center said that his organization is also 'unable to support ENDA in its current form.'

'We are fully committed to continuing to work for the passage of a law like ENDA that contains an exemption for religious organizations that is no broader than the exemption in Title VII,' Snyder added.

GetEqual and Queer Nation also say they no longer support ENDA in its current version.

Queer Nation has called for a comprehensive civil rights law that would ban discrimination in employment, housing, public accommodations, education and federally-funded programs.

In a recent joint statement, TLC joined with NCLR, ACLU, and Lambda Legal to explain their reservations about ENDA as it now stands.

'Some courts have said that even hospitals and universities may be able to claim the exemption; thus, it is possible that a religiously affiliated hospital could fire a transgender doctor or a religiously affiliated university could terminate a gay groundskeeper,' the statement says.

HRC, Lambda Legal, ACLU, and the National Center for Transgender Equality say they would support passing the current draft of ENDA, but they remain concerned about any religious exemption carve-out provisions.

Several state LGBT groups have also withdrawn support from ENDA. FreedomOhio, Equality New Mexico, the Transgender Education Network of Texas, and Wyoming Equality now say they do not support the bill with the current exemption.

Other state LGBT groups say they still support the legislation, but are deeply concerned about the effects of the broad religious exemption.

'Equality Michigan supports the passage of ENDA because our role as advocates is to stop harm, and in Michigan, a report from our own Civil Rights Department showed that discrimination against LGBT people in our state is pervasive,' said Emily Dievendorf, executive director.

'Equality Michigan does not support the religious exemptions and holds onto enough concerns around the exemptions that we reserve the right to withdraw support for ENDA should the exemptions prove likely to endanger its ability to provide the intended protections and/or to do no harm - two criteria any quality policy must meet the first time around.'

Equal Rights Washington did not respond to a recent Washington Blade poll on the issue.

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