Senate Dems Take Time to Consider 'Gender Identity' in the Workplace

Susan Jones | June 13, 2012 | 11:38am EDT
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( - Democrats on the Senate Health, Education, Labor, and Pensions Committee took time on Tuesday to hear from advocates of "workplace fairness" legislation, the Employment Non-Discrimination Act (ENDA).

The bill, which has no chance of passing in the current Congress, would outlaw job discrimination based on sexual orientation or gender identity. Earlier versions of ENDA did not protect transgenders, but the current version -- Senate Bill 811 -- does.

Only one witness spoke against the bill, arguing that ENDA would "impose a substantial, unconstitutional burden on religious organizations."

"Decent, hard-working Americans are being hurt by discrimination every day," said Sen. Tom Harkin (D-Iowa) in his opening statement to the committee, which he chairs. Harkin said it's time to make it clear that "lesbian, gay, bisexual and transgender Americans are first-class citizens. They are full and welcome members of our American family, and they deserve the same civil rights protections as all other Americans."

Harkin also acknowledged religious objections to the Democrats' bill: "We are hearing claims today that ENDA will lead to a flood of lawsuits or be an undue burden on religious organizations or businesses. I think these claims are baseless," he said.

Even before the hearing began, the conservative Liberty Counsel blasted the "dysfunctional Senate" for taking time to publicize what it called a "radical agenda."

"Intended to give special protections to homosexuals and cross-dressers, the bill would restrict small businesses and muzzle those with a biblical worldview," the group said.

According to the Liberty Counsel, if a supervisor told a male employee he could not use the women's restroom, the employer would be in violation of ENDA. "The implications of ENDA are outrageous and shocking, said Mat Staver, founder and chairman of Liberty Counsel. "With the many pressing issues facing our country, it is astounding that Senator Harry Reid and the Democrat-controlled Senate would waste their time pressing a radical and destructive ideology."

Tuesday's hearing included no Republicans and the witnesses were not sworn in.

From skirt to men's suit

Kylar Broadus, a female-to-male transsexual, told committee Democrats that even before his sex-change surgery, "I was mostly viewed as male."

"Prior to my physical transition, I began working at a major financial institution," Broadus said in written testimony. "I wore the traditional female attire at the time, which was a skirt and pantyhose. It was required and expected in the late 1980s and early 1990s. As I began to find myself, my attire gradually shifted from feminine to more masculine styles.

"Then I actually moved to a division of the company where the dress code was less stringent and began to wear men's suits and ties most of the time. My hair got shorter and more masculine. My demeanor had always been masculine. Many clients already confused me for male even though my name was female. My coworkers didn't seem to mind. It was management that seemed to have issues with it. I was called in to discuss my hair cut, and I was told that I was not allowed to go by my initials, 'K.B.,' which many males did but females didn't.

"After I announced my gender transition, it only took six months before I was 'constructively discharged' from my employer. While my supervisors could tolerate a somewhat masculine-appearing black woman, they were not prepared to deal with my transition to being a black man.  I was

According to Broadus, he was "harassed until I was forced to leave." Now, 15 years later, Broadus told the senators he still hasn't recovered financially.

"Emotionally, I still suffer from Post-Traumatic Stress Syndrome from the discrimination I experienced." He urged Congress to pass ENDA "so that transgender people like me are able to live our lives and provide for our families without fear of discrimination."

Religious liberty

Craig L. Parshall, senior vice president and general counsel for the National Religious Broadcasters Association, was the only witness to warn that ENDA would gut religious liberty. The NRB represents the free speech interests of Christian broadcasters and organizations.

"Requiring discrimination laws to adequately protect and accommodate the religious liberties of faith groups is not a mere legislative prerogative: it is a constitutional mandate," Parshall said in his written testimony.

"It is my opinion that ENDA, as it stands now in the form of S. 811, would impose a substantial unconstitutional burden on religious organizations. Furthermore, it would interfere with their ability to effectively pursue their missions."

While ENDA includes an exemption for religious organizations, Parshall described it as insufficient, saying it would provide little actual protection for religious groups facing sexual orientation or gender identity-based claims.

Parshall noted that his organization, the National Religious Broadcasters Association, includes groups such as Christian radio stations that are commercial entities. They would likely be shut out of the ENDA's exemption, he noted.

"We can add to that list other for-profit groups whose mission is distinctly Christian in nature but who will be denied exemption: Christian publishers, religious media consulting groups and agencies, food vendors who work exclusively with Christian schools, Christian-oriented bookstores, adoption agencies, counseling centers, and drug rehab facilities."

At the conclusion of his written testimony, Parshall said ENDA represents an assault on historical notions of religious freedom:

"S. 811 is the result of a public debate over legal protections for sexual orientation and gender identity. But when we consider the sweep of American history, that debate is of very recent vintage. Compare, by contrast, the long-standing recognition in our nation that religious liberty is a foundational right and that government should have few occasions to invade it. In fact, that concept of religious freedom pre-dates the Constitution.

Parshall urged the committee "not to jettison the rights of people of faith, turn them into lesser privileges, or reduce them to a mere miniature of the concept that our Founder’s advanced. If that happens here, it would mean that we have set ourselves on a very dangerous path, a radical departure from those basic liberties for which our Founders risked their lives, their fortunes and their sacred honor."

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