HRC Talking Points

Good afternoon,

The attached talking points address the question whether the current ENDA does harm to the transgender community, which we were requested to provide. We hope you find this document informative and useful.

Also, Janis and Steve have asked for you to feel more than welcome to pass along other requests for specific information around this issue as we strive to keep you informed.

At this time, I would also like to inform you that the HRC office will close tomorrow at noon and reopen after the holiday weekend on Monday, November 26.

Have a wonderful and safe Thanksgiving weekend!

Issue:
Some members have expressed concern that passing a non-inclusive ENDA will jeopardize federal precedent providing a degree of protection to transgender people under Title VII.

Short answer:
It is exceptionally unlikely that a court would construe passing a non-inclusive ENDA as a reason to undermine these protections.
Analysis:

* Courts have already explicitly determined that Title VII does not provide protections based upon gender identity

Unfortunately, federal case law almost uniformly rejects claims that existing civil rights laws such as Title VII
Certain courts have concluded that although Title VII was not intended to include transgender people as a protected class, a transgender person can nonetheless, under certain circumstances, be successful under Price Waterhouse v. Hopkins, a case that prohibits employers from discriminating based upon sex stereotypes. In Price Waterhouse, the Supreme Court concluded that the employer had discriminated based upon sex when it had failed to promote a woman because she did not dress femininely enough or wear makeup and was considered too aggressive for a woman.
Transgender individuals have had a degree of success under Price Waterhouse, but only when they can prove that the discrimination was because they failed to conform to a stereotype—NOT because they were transgender per se.
Title VII is not currently understood to be transgender-inclusive, but rather to protect certain transgender people when they can prove that they were subjected to unlawful sex stereotyping. The case law simply stands for the proposition that the mere fact of being transgender does not mean that a motion to dismiss will be granted. provide protections based upon sexual orientation or gender identity.  These clear pronouncements from the courts are one reason that ENDA is so necessary.

* Congress has made clear its intent not to undermine existing case law

The ENDA Committee Report makes clear that 3685 does not supersede Price Waterhouse with regard to sex stereotyping. Although courts may draw upon a variety of sources when determining congressional intent, a Committee Report would have far more weight than the decision to pass one bill rather than the other.  The relevant excerpt appears below:

Section 15: Preserves provisions in other Federal, state, or local laws that currently provide protection from discrimination. For example, Congress does not intend to overrule, displace, or in any other way affect any U.S. Supreme Court or other federal court opinion that has interpreted Title VII in such a way that protects individuals who are discriminated against because they do not conform to sex or gender stereotypes. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female plaintiff brought successful Title VII claim after she was denied partnership in an accounting firm because she did not conform to female sex stereotype); Nichols v. Azteca Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (male plaintiff brought successful Title VII claim after he was subjected to a hostile work environment because he failed to conform to a male stereotype).

* The existing protections come from Supreme Court case law, not from a statute

As set forth above, the favorable case law comes from a Supreme Court case. Price Waterhouse has already analyzed and applied Title VII to sex stereotyping cases involving transgender people. Unless a court was predisposed to dispense with any claim by transgender people, it would not look to the existence of a non-inclusive ENDA as a means of interpreting Congress’ intent in enacting Title VII. Rather, it would examine the relationship, if any, to the Price Waterhouse decision. The Committee Report makes clear that Price Waterhouse remains unaffected.

* Public debate on ENDA has already advanced the proposition that Title VII is inadequate

In the past several congresses, our civil rights coalition has promoted ENDA because it is clear that existing federal law does not protect GLBT people from employment discrimination. Finally in the 110 th Congress, an inclusive bill was introduced. HRC’s briefing materials on ENDA answer the question “why is ENDA necessary” as follows:
ENDA is necessary because GLBT people face serious discrimination in employment, including being fired from a job, being denied a promotion, and experiencing harassment on the job. There is no federal law prohibiting discrimination on the basis of sexual orientation or gender identity. As a result, it is currently legal to fire someone solely on the basis of their sexual orientation in 31 states, and in 39 states to do so based on gender identity.*
Similarly, all supporters of ENDA, including HRC, publicly (and accurately) stated that only an explicitly inclusive ENDA such as H.R. 2015 would provide equal protections for the transgender community. Thus there was never a realistic litigation position that a non-inclusive ENDA might be creatively utilized to cover transgender discrimination. Such a theory might have been harmed by rejection of an inclusive ENDA in favor of a non-inclusive one, but it was never considered a viable possibility—which is why advocates have always deemed an explicitly inclusive ENDA to be necessary.
Introducing and debating an inclusive ENDA came with its own risks, namely expressing Congress’ belief that existing law does not protect transgender people. It was a risk that we all agree had to be taken. But in fact, in the course of re-drafting ENDA to include gender identity, litigators and advocates all agreed that introducing an inclusive bill could realistically threaten the remaining chances that they had under Title VII.  Passing a non-inclusive bill, on the other hand, simply indicates that Congress sees sexual orientation and gender identity as two distinct issues.

* Courts are unlikely to utilize legislative history to undermine Price Waterhouse protections for transgender people.

As set forth below, legislative history regarding the non-inclusive bill is highly unlikely to influence future interpretations of ENDA in a way that limits transgender protections.
The criticism being addressed here misperceives the way that courts utilize legislative history. First, when a court interprets the law, it looks immediately to the law’s plain language. The plain language of 3685 covers actual or perceived sexual orientation, defined as homosexuality, bisexuality, or heterosexuality. In the absence of ambiguity—and ENDA is not ambiguous—the Court’s inquiry is over.
Second, if an ambiguity were found, before conducting an archaeological expedition into amendments (such as the Baldwin Amendment) that were introduced and withdrawn without a vote, a court would look at the official statements of congressional intent. In this case, the Committee Report makes clear that 3685 does not supersede Price Waterhouse with regard to gender stereotyping.
Finally, ample case law exists to support the proposition that Congress’ failure to vote to expand a specific law does not prove Congressional intent to limit the law. For example, various industries have unsuccessfully asserted that they were not subject to the Americans with Disabilities Act because Congress had failed to enact bills specifically including them. The courts determined that there are numerous reasons why Congress would fail to act. Courts would be unlikely to draw the conclusion that because Congress enacted a non-inclusive ENDA, it actually intended to roll back protections under Title VII. A more likely and accurate conclusion was that Congress simply did not intend to expand protections at this time.
In legislative history, inaction is far less significant than action. In other words, courts accord less significance to failure to vote on an issue than affirmatively voting. Thus, the more harmful vote that could take place on ENDA would be a vote against explicit transgender protections. This would not only set a political benchmark that members of Congress will find difficult to overcome, but could even create avenues for miserly interpretations of sexual orientation non-discrimination laws.
Finally, it is worthwhile to note that the National Employment Lawyers Association has signed on to a coalition letter in support of a floor vote on 3685. This litigation group does not take the position that this vote would compromise their litigation positions once a fully-inclusive ENDA becomes law.

* Concerns about coverage for GLB people

Although this memorandum should not be construed to mean that HRC is not committed to pursuing a transgender non-discrimination law, it is worthwhile to address claims set forth by some advocates that a non-inclusive ENDA will not provide sufficient employment protections for GLB Americans. This claim is supported neither by case law nor facts on the ground. As the prominent professor Dale Carpenter has publicly explained, proponents of this view have been unable to produce a single case in support of it. Although reasonable minds can differ regarding the strategy surrounding our progress toward ENDA, it is clear that the legal argument is untenable.
Conclusion:

* Passage of a non-inclusive ENDA would not affect the limited protections that transgender people have won under Title VII.
* Supporters of ENDA know that the law is necessary precisely because protections under existing federal law are exceptionally limited.
* Carefully crafted legislative history shows that the non-inclusive bill is not intended to undermine the existing case law that provides some protection.
* Before leadership moved toward a non-inclusive bill, there was ample public discussion of the fact that federal law simply did not cover anti-transgender discrimination.
* An unsuccessful vote on an inclusive ENDA would also be more likely to do harm than passage of a non-inclusive ENDA without a vote on transgender protections.
* The protections won through litigation under Price Waterhouse are not affected by passing a non-inclusive ENDA because a court’s inquiry would no longer be into Congressional intention around Title VII—a matter that is long-since settled. It would still be into whether the facts of an individual case show that the employer subjected the transgender individual to unlawful sex stereotyping.

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