What is ENDA, and Why Does It Matter?

On Wednesday, the U.S. Senate Committee on Health, Education, Labor and Pensions passed the Employment Non-Discrimination Act (more commonly known as ENDA) with bipartisan support, in a procedural move that happened so quickly, many in the audience missed what had happened. Committee Chairman, Tom Harkin (D-Iowa), who earlier this year had promised to move ENDA out of his committee, even apologized for the lack of ceremony surrounding the vote, acknowledging the long struggle that this legislation represented for LGBT rights activists. The moment, though short-lived, may provide some broader insight into the political path forward for LGBT movement.

As Senator Harkin noted, the fight over ENDA has indeed been a long one. The legislation, which would prohibit employment discrimination on the basis of sexual orientation with exemptions for religious institutions, has been introduced in nearly every Congressional session since 1994 with no progress. As Dana Beyer wrote for the Huffington Post, “This [moment] was historic because it was the first time a Senate committee had passed an LGBT employment act, and 17 years had passed since the Senate as a whole had voted on a form of ENDA. That was in 1996, just 10 days after the passage of the Defense of Marriage Act (DOMA).” And importantly for the long-term prospects of the legislation, the bill passed 15-7 with the support of 3 prominent Republicans including Lisa Murkowski (R-Ala.), Orin Hatch (R-Utah), and Mark Kirk (R-Ill.).

Republican supporter Orin Hatch, no traditional ally of the LGBT movement, said “I appreciate that the authors of the bill were willing to include a robust religious exemption in this bill. I voted for it because it prohibits discrimination that should not occur in the workplace, it protects the rights of religious entities, and minimizes legal burdens on employers.”

Fellow Republican Mark Kirk was more emotional saying, “In Illinois, we all measure ourselves against the career of Abraham Lincoln and think about the legacy that that means. I would say that I measure myself against Everett Dirksen and his support for the 1964 Civil Rights Act as Republican leadership as the best moment in his career. [With] this legislation, I'm very proud to do it in the tradition of Illinois' Dirksen and Lincoln.”

These Republican supporters, while politically and symbolically significant, have a challenge before them, however, not only in terms of whipping votes from their Republican colleagues, but in convincing their conservative base that a problem with LGBT workplace discrimination exists in the first place. As the American Family Association has argued, there is “no real problem of discrimination against homosexuals,” which is a surprising claim given that studies show that openly gay job applicants were roughly 40% less likely to be called for an interview, depending on the area of the country in which they were applying. The numbers are even more discouraging for transgender people, 90% of whom reported experiencing “harassment, mistreatment, or discrimination on the job or took actions like hiding who they are to avoid it.” Twenty-six percent had lost a job explicitly because they were transgender.

But this victory would be significant, not only in that it ensures the legally guaranteed right to employment without being fired arbitrarily for the country’s more than 8 million LBGT employees, but in that it may mark some common ground in which Democrats and Republicans can come together to improve the lives of their LGBT constituents. Regardless of their personal feelings on homosexuality or marriage equality, many legislators, both liberal and conservative, can acknowledge the right of LGBT people to keep their jobs without needing to worry about workplace abuse or arbitrary termination.

And that acknowledgement is progress itself. Focusing on those day to day realities of life as an LGBT person instead of religious or moral arguments may be a way to avoid the stumbling blocks that tend to trip up conservative lawmakers. That small crack in the door towards compromise may allow both sides of the aisle to finally come together and do what they can to ensure fair treatment for their LGBT constituents and pass legislation that is no less significant to their welfare than marriage equality.

So while many hurdles remain before ENDA becomes law, most notably the Republican-controlled House of Representatives, Wednesday’s small victory was an important milestone, and one that should perhaps give some hope about the short-term political path forward for the LGBT movement.