[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
                         H.R. 3017, EMPLOYMENT 
                     NON-DISCRIMINATION ACT OF 2009 

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

           HEARING HELD IN WASHINGTON, DC, SEPTEMBER 23, 2009

                               __________

                           Serial No. 111-32

                               __________

      Printed for the use of the Committee on Education and Labor


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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       John Kline, Minnesota,
    Chairman                           Senior Republican Member
Donald M. Payne, New Jersey          Thomas E. Petri, Wisconsin
Robert E. Andrews, New Jersey        Howard P. ``Buck'' McKeon, 
Robert C. ``Bobby'' Scott, Virginia      California
Lynn C. Woolsey, California          Peter Hoekstra, Michigan
Ruben Hinojosa, Texas                Michael N. Castle, Delaware
Carolyn McCarthy, New York           Mark E. Souder, Indiana
John F. Tierney, Massachusetts       Vernon J. Ehlers, Michigan
Dennis J. Kucinich, Ohio             Judy Biggert, Illinois
David Wu, Oregon                     Todd Russell Platts, Pennsylvania
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Tom Price, Georgia
Timothy H. Bishop, New York          Rob Bishop, Utah
Joe Sestak, Pennsylvania             Brett Guthrie, Kentucky
David Loebsack, Iowa                 Bill Cassidy, Louisiana
Mazie Hirono, Hawaii                 Tom McClintock, California
Jason Altmire, Pennsylvania          Duncan Hunter, California
Phil Hare, Illinois                  David P. Roe, Tennessee
Yvette D. Clarke, New York           Glenn Thompson, Pennsylvania
Joe Courtney, Connecticut
Carol Shea-Porter, New Hampshire
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Paul Tonko, New York
Pedro R. Pierluisi, Puerto Rico
Gregorio Kilili Camacho Sablan,
    Northern Mariana Islands
Dina Titus, Nevada
Judy Chu, California

                     Mark Zuckerman, Staff Director
                 Barrett Karr, Minority Staff Director
















                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on September 23, 2009...............................     1

Statement of Members:
    Chu, Hon. Judy, a Representative in Congress from the State 
      of California, prepared statement of.......................    84
    Kline, Hon. John, Senior Republican Member, Committee on 
      Education and Labor........................................     4
        Prepared statement of....................................     5
        Additional submissions:
            Statement of the Educational & Legal Institute, 
              Traditional Values Coalition.......................    85
            Special Report of the Traditional Values Coalition, 
              Educational & Legal Institute......................    87
    Miller, Hon. George, Chairman, Committee on Education and 
      Labor......................................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Baldwin, Hon. Tammy, a Representative in Congress from the 
      State of Wisconsin.........................................     8
        Prepared statement of....................................    10
    Eskridge, William, Jr., John A. Garver professor of 
      jurisprudence, Yale Law School.............................    44
        Prepared statement of....................................    46
    Frank, Hon. Barney, a Representative in Congress from the 
      State of Massachusetts.....................................     6
    Glenn, Vandy Beth............................................    31
        Prepared statement of....................................    33
    Ishimaru, Stuart J., Acting Chairman, U.S. Equal Employment 
      Opportunity Commission.....................................    12
        Prepared statement of....................................    14
    Olson, Camille A., partner, Seyfarth Shaw LLP................    34
        Prepared statement of....................................    36
    Parshall, Craig L., senior vice president and general 
      counsel, National Religious Broadcasters...................    52
        Prepared statement of....................................    54
    Saperstein, Rabbi David, director, Religious Action Center of 
      Reform Judaism.............................................    57
        Prepared statement of....................................    59
    Sears, R. Bradley, executive director, the Williams Institute    47
        Prepared statement of....................................    49
        Additional submission: ``Documenting Discrimination on 
          the Basis of Sexual Orientation and Gender Identity in 
          State Employment''.....................................    51


                         H.R. 3017, EMPLOYMENT
                     NON-DISCRIMINATION ACT OF 2009

                              ----------                              


                     Wednesday, September 23, 2009

                     U.S. House of Representatives

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 10:03 a.m., in room 
2175, Rayburn House Office Building, Hon. George Miller 
[chairman of the committee] presiding.
    Present: Representatives Miller, Kildee, Payne, Andrews, 
Woolsey, Hinojosa, Tierney, Kucinich, Holt, Hirono, Hare, 
Clarke, Fudge, Polis, Tonko, Pierluisi, Titus, Chu, Kline, 
McKeon, Ehlers, Biggert, Platts, McMorris Rodgers, Guthrie, 
McClintock, and Hunter.
    Staff present: Aaron Albright, Press Secretary; Tylease 
Alli, Hearing Clerk; Tico Almeida, Labor Counsel (Immigration 
and International Trade); Jody Calemine, General Counsel; 
Alejandra Ceja, Senior Budget/Appropriations Analyst; Lynn 
Dondis, Labor Counsel, Subcommittee on Workforce Protections; 
Adrienne Dunbar, Education Policy Advisor; Carlos Fenwick, 
Policy Advisor, Subcommittee on Health, Employment, Labor and 
Pensions; David Hartzler, Systems Administrator; Broderick 
Johnson, Staff Assistant; Alex Nock, Deputy Staff Director; Joe 
Novotny, Chief Clerk; Rachel Racusen, Communications Director; 
Meredith Regine, Junior Legislative Associate, Labor; James 
Schroll, Junior Legislative Associate, Labor; and Mark 
Zuckerman, Staff Director; Andrew Blasko, Speech Writer and 
Communications Advisor; Kirk Boyle, General Counsel; Casey 
Buboltz, Coalitions and Member Services Coordinator; Cameron 
Coursen, Assistant Communications Director; Ed Gilroy, Director 
of Workforce Policy; Rob Gregg, Senior Legislative Assistant; 
Richard Hoar, Professional Staff Member; Barrett Karr, Staff 
Director; Alexa Marrero, Communications Director; Molly 
McLaughlin Salmi, Deputy Director of Workforce Policy; Ken 
Serafin, Professional Staff Member; Linda Stevens, Chief Clerk/
Assistant to the General Counsel; and Loren Sweatt, 
Professional Staff Member.
    Chairman Miller [presiding]. The quorum being present, the 
committee will come to order. The Education and Labor Committee 
meets today to examine historic legislation that will finally 
end legal discrimination on the basis of sexual orientation and 
gender identity.
    H.R. 3017, the Employment Non-Discrimination Act, will 
ensure that employment decisions are based on merit and 
performance and not prejudice. Twenty-nine states permit 
employers to make critical employment decisions based solely on 
an employee's sexual orientation.
    In 38 states, it is perfectly legal to discriminate based 
on gender identity. If you happen to live in one of these 
states, employers can legally fire, refuse to hire, demote or 
pass over you for a promotion on the basis of your sexual 
orientation or gender identity.
    Because of this, 172 million Americans are subject to legal 
employment discrimination including those who work for state 
governments. Fully qualified individuals are being denied 
employment or being fired from their jobs for completely non-
work related reasons.
    This is profoundly unfair and indeed un-American and it is 
bad for business. Tellingly, major businesses have adopted 
policies to insure that they are able to attract and retain the 
best, most qualified employees, regardless of their sexual 
orientation or gender identity. They have done so both because 
it is the right thing to do and because it helps their bottom 
line.
    Our entire work force and our nation's competitiveness will 
benefit from ensuring that every worker is judged on how they 
do their job and not who they are. If we do nothing, untold 
numbers of American workers will continue to work with the 
legitimate fear that they will be fired for nothing more than 
who they love or their gender identity.
    The Employment Non-Discrimination Act would protect all 
Americans from this type of injustice by extending employment 
discrimination protections for gay, lesbian, bi-sexual, 
transgender and heterosexual workers. It would prohibit 
businesses with 15 or more employees, employment agencies, 
government agencies and labor unions from using sexual 
orientation or gender identity as the basis for employment 
decisions.
    The Employment Non-Discrimination Act provides the same 
procedures for handling workers' grievances as Title VII 
employment discrimination claims. The bill will also exempt 
religious organizations from covering using the exact language 
found in Title VII of the Civil Rights Act and supported by 
more than 400 members in the last Congress.
    Today we will hear from three panels of witnesses on this 
legislation. I would like to recognize the strong leadership of 
our first panel, Representative Barney Frank and Tammy Baldwin. 
It is because of their tireless efforts that we are here today 
debating this important legislation.
    I am also pleased to welcome a representative of the Obama 
Administration to give their perspective on the Employment Non-
Discrimination Act. Our last panel, we will hear testimony from 
the Georgia state legislative employee who was fired after she 
informed her supervisor that she intended to undergo gender 
reassignment.
    In addition, two expert witnesses will present extensive 
records documenting the longstanding and widespread pattern of 
discriminatory actions by state and local governments against 
the lesbian, gay, bi-sexual and transgender employees.
    One will discuss the role prejudice played when he was 
denied a promotion in a state university. Another witness will 
talk about the balance that the Employment Non-Discrimination 
Act strikes between civil rights workers and the interests of 
religious organizations.
    For more than three decades, gay, lesbian, bi-sexual and 
transgender Americans have waged a courageous campaign for 
their workplace rights. I regret that it had to wait so long 
for us to respond. We took a big step forward in 2007 when the 
House held its first ever hearing, committee votes and House 
passed the Employment Non-Discrimination Act.
    Unfortunately, President Bush threatened to veto the 
Employment Non-Discrimination Act if it reached his desk at 
that time. But today we have a new opportunity. We have a new 
president who supports the civil rights of all Americans and 
has vowed to sign the legislation into law. I look forward to 
hearing from all of our witnesses today on this very important 
bill.
    And with that, I would like to recognize the senior 
Republican member of our committee, Mr. Kline, for his opening 
statement.
    [The statement of Mr. Miller follows:]

   Prepared Statement of Hon. George Miller, Chairman, Committee on 
                          Education and Labor

    The Education and Labor Committee meets today to examine historic 
legislation that will finally end legal discrimination on the basis of 
sexual orientation and gender identity.
    H.R. 3017, the Employment Non-Discrimination Act, will ensure that 
employment decisions are based on merit and performance and not 
prejudice.
    Twenty-nine states permit employers to make critical employment 
decisions based solely on an employee's sexual orientation. And in 38 
states, it is perfectly legal to discriminate based on gender identity.
    If you happen to live in one of these states, employers can legally 
fire, refuse to hire, demote, or pass you over for promotion on the 
basis of your sexual orientation or gender identity. Because of this, 
172 million Americans are subject to legal employment discrimination, 
including those who work for state governments.
    Fully qualified individuals are being denied employment or are 
being fired from their jobs for completely non-work-related reasons. 
This is profoundly unfair and, indeed, un-American. And, it is bad for 
business.
    Tellingly, many major businesses have adopted policies to ensure 
they are able to attract and retain the best, most-qualified employees, 
regardless of their sexual orientation or gender identity. They have 
done so both because it is the right thing to do and because it helps 
their bottom line.
    Our entire workforce and our nation's competitiveness will benefit 
from ensuring that every worker is judged on how they do their job, not 
who they are. If we do nothing, untold numbers of American workers will 
continue to go to work with the legitimate fear that they could be 
fired for nothing more than who they love or their gender identity.
    The Employment Non-Discrimination Act would protect all Americans 
from this type of injustice by extending employment discrimination 
protections for gay, lesbian, bisexual, transgender and heterosexual 
workers.
    It would prohibit businesses with 15 or more employees, employment 
agencies, government agencies and labor unions from using sexual 
orientation or gender identity as the basis for employment decisions. 
The Employment Non-Discrimination Act provides the same procedures for 
handling workers' grievances as Title VII employment discrimination 
claims. The bill will also exempt religious organizations from 
coverage, using the exact language found in Title VII of the Civil 
Rights Act and supported by more than 400 members in the last Congress.
    Today we will hear from three panels of witnesses on this 
legislation.
    I would like to recognize the strong leadership of our first panel, 
Representatives Barney Frank and Tammy Baldwin. It is because of their 
tireless efforts that we are here today debating this important 
legislation. I am also pleased to welcome a representative from the 
Obama administration to give their perspective on the Employment Non-
Discrimination Act.
    In the last panel, we will hear testimony from a Georgia state 
legislative employee who was fired after she informed her supervisor 
that she intended to undergo gender reassignment.
    In addition, two expert witnesses will present an extensive record 
documenting the longstanding and widespread pattern of discriminatory 
actions by state and local governments against their lesbian, gay, 
bisexual and transgender employees.
    One will discuss the role prejudice played when he was denied a 
promotion at a state university. Another witness will talk about the 
balance that the Employment Non-Discrimination Act strikes between the 
civil rights of workers and the interests of religious organizations.
    For more than three decades, gay, lesbian, bisexual and transgender 
Americans have waged a courageous campaign for their workplace rights. 
I regret that they had to wait so long for us to respond.
    We took a big step forward in 2007 when the House held the first 
ever hearing, committee votes and House passage of the Employment Non-
Discrimination Act.
    Unfortunately, President Bush threatened to veto the Employment 
Non-Discrimination Act if it reached his desk at that time. But today 
we have a new opportunity.
    We have a new President who supports the civil rights of all 
Americans and has vowed to sign this legislation into law.
    I look forward to hearing from all our witnesses today on this very 
important bill.
                                 ______
                                 
    Mr. Kline. Thank you, Mr. Chairman, and good morning 
everybody. We are here today to examine the Employment Non-
Discrimination Act of 2009, a bill that would have major 
consequences for workplaces across the nation.
    As I understand it, this legislation is very similar to 
legislation of the same name introduced in 2007. This panel 
considered the legislation 2 years ago and eventually it was 
brought to a vote in the full U.S. House of Representatives 
before stalling in the Senate.
    Two years ago, my colleagues and I raised a number of 
substantive policy concerns about this legislation. Some 
changes were made before the bill went to the House floor. But 
unfortunately, 2 years later, many issues have not been 
resolved and our concerns have not been alleviated.
    H.R. 3017 represents a significant departure from 
longstanding civil rights law. It creates an entirely new 
protected class that is vaguely defined and often subjective. 
For instance, the legislation extends protections based on 
``perceived sexual orientation.''
    Attempting to legislate individual perceptions is truly 
uncharted territory and it does not take a legal scholar to 
recognize that such vaguely defined protections will lead to an 
explosion in litigation and inconsistent judicial decisions.
    Similarly, the protections based on gender identity have 
raised both philosophical and logistical questions from the 
outset. In fact, the bill ultimately brought to a vote did not 
include those protections precisely because their application 
would have been so problematic, yet 2 years later, the 
legislation before us again includes the gender identify 
protections.
    Although I am keeping my remarks brief to accommodate the 
schedules of this unusually large number of witnesses, there is 
one final concern I must raise before I yield back. I think we 
must carefully consider the consequences of H.R. 3017 for 
religious and family-based organizations that make hiring 
decisions consistent with their faith and mission.
    H.R. 3017 contains an exemption that attempts to create a 
linkage to the religious exemption found in Title VII of the 
Civil Rights Act of 1964. Unfortunately, we will hear testimony 
today that raises a great deal of uncertainty about how that 
exemption will be applied. Will it be interpreted as simply 
restating the hiring protections based on an applicant's 
religion?
    Consider a faith-based organization with expressed 
religious teachings related to sexual orientation. While 
longstanding civil rights law protects a faith-based 
organization's right to hire in a manner consistent with their 
faith traditions, we may hear concerns that H.R. 3017 could 
potentially exclude any faith traditions that deal with sexual 
orientation or gender identity.
    At a minimum, this is likely to contribute to an already 
confusing and contradictory patchwork of legal interpretations 
and spur significant new litigation as a direct result of the 
legal mine fields that would spring up under H.R. 3017.
    As I mentioned at the outset, this is far-reaching 
legislation that would have major consequences for workplaces 
across the nation. I hope today's hearing will not simply gloss 
over the legal and substantive concerns, but will instead 
thoroughly explore the ramifications of such an unprecedented 
expansion and revisions of our civil rights laws.
    Thank you, Mr. Chairman, I yield back.
    [The statement of Mr. Kline follows:]

   Prepared Statement of Hon. John Kline, Senior Republican Member, 
                    Committee on Education and Labor

    Good morning, Chairman Miller, and thank you. We're here today to 
examine the Employment Non-Discrimination Act of 2009, a bill that 
would have major consequences for workplaces across the nation.
    As I understand it, H.R. 3017 is largely identical to legislation 
of the same name introduced in 2007. This panel considered the 
legislation two years ago, and eventually it was brought to a vote in 
the full U.S. House of Representatives before stalling in the Senate.
    Two years ago, my colleagues and I raised a number of substantive 
policy concerns about this legislation. Some changes were made before 
the bill went to the House Floor, but unfortunately, two years later, 
many issues have still not been resolved and our concerns have not been 
alleviated.
    H.R. 3017 represents a significant departure from longstanding 
civil rights law. It creates an entirely new protected class that is 
vaguely defined and often subjective. For instance, the legislation 
extends protections based on--quote--``perceived'' sexual orientation.
    Attempting to legislate individual perceptions is truly uncharted 
territory, and it does not take a legal scholar to recognize that such 
vaguely defined protections will lead to an explosion in litigation and 
inconsistent judicial decisions.
    Similarly, the protections based on gender identity have raised 
both philosophical and logistical questions from the outset. In fact, 
the bill ultimately brought to a vote did not include those protections 
precisely because their application would have been so problematic. Yet 
two years later, the legislation before us again includes the gender 
identity protections.
    Although I am keeping my remarks brief to accommodate the schedules 
of this unusually large number of witnesses, there is one final concern 
I must raise before I yield back. I think we must carefully consider 
the consequences of H.R. 3017 for religious and family-based 
organizations that make hiring decisions consistent with their faith 
and mission.
    H.R. 3017 contains an exemption that attempts to create a linkage 
to the religious exemption found in Title VII of the Civil Rights Act 
of 1964. Unfortunately, we will hear testimony today that raises a 
great deal of uncertainty about how that exemption will be applied. 
Will it be interpreted as simply restating the hiring protections based 
on an applicant's religion?
    Consider a faith-based organization with express religious 
teachings related to sexual orientation. While longstanding civil 
rights law protects a faith-based organization's right to hire in a 
manner consistent with their faith traditions, we may hear concerns 
that H.R. 3017 could potentially exclude any faith traditions that deal 
with sexual orientation or gender identity.
    At a minimum, this is likely to contribute to an already confusing 
and contradictory patchwork of legal interpretations and spur 
significant new litigation as a direct result of the legal minefields 
that would spring up under H.R. 3017.
    As I mentioned at the outset, this is far-reaching legislation that 
would have major consequences for workplaces across the nation. I hope 
today's hearing will not simply gloss over the legal and substantive 
concerns, but will instead thoroughly explore the ramifications of such 
an unprecedented expansion and revision of our civil rights laws.
    Thank you Chairman Miller, I yield back.
                                 ______
                                 
    Chairman Miller. Thank you. Pursuant to committee rule 7C, 
all members may submit opening statements in writing, which 
will be made part of the permanent record. Our first panel 
today will be made up of two of our colleagues, the Honorable 
Barney Frank from the 4th District of Massachusetts. He is 
Chairman of the Financial Services Committee and a lead sponsor 
of ENDA in this Congress and the 110th Congress.
    Representative Frank has been an outspoken advocate of the 
rights of those in the LGBT community and a leader against all 
forms of discrimination in the workplace. I am proud to hold 
this hearing today and look forward to hearing from him in a 
moment.
    The Honorable Tammy Baldwin from the 2nd District of 
Wisconsin is also an original cosponsor of ENDA. Representative 
Baldwin has worked for many years as an attorney, local 
government official and is a member of Congress who brings 
attention to the discrimination that gay, lesbian, bisexual and 
transgender people face in the workplace.
    Representative Baldwin, thank you for your efforts and we 
look forward to hearing from you today.
    Barney, we will begin with you.

 STATEMENT OF HON. BARNEY FRANK, A REPRESENTATIVE IN CONGRESS 
                FROM THE STATE OF MASSACHUSETTS

    Mr. Frank. Thank you, Mr. Chairman and I--well, Frank, 
Secretary Geithner, is testifying before the Financial Services 
Committee just down the hall, so I will ask to leave from the 
committee after I have spoken.
    I want to express to you, Mr. Chairman, and to Mr. Andrews, 
the chairman of the subcommittee, my deep appreciation for the 
extraordinary efforts you have taken, thoughtful and sensible 
and sensitive on this issue over the years.
    I find it hard to argue for legislation that bans 
discrimination. I guess in this one my instincts are to be a 
counter puncher. It just seems to me so self-evident that an 
American who would like to work and support himself or herself 
ought to be allowed to do that judged solely on his or her work 
ethic and talents that I don't know what more to say.
    Sometimes we have been accused, those of us who are gay or 
lesbian, of having a radical agenda. As I look at radicalism 
through history, trying to get a job or join the military have 
not been the hallmarks of radicalism. That is what we are 
talking about today.
    Now this House, last session, under the leadership of you, 
Mr. Chairman and Mr. Chairman of the subcommittee, passed this 
bill by a large majority including a number of Republicans and 
I was very pleased to see that.
    There is an added element today, the transgender element, 
so I just want to address that. But I want to first respond to 
the comments of the Ranking Member and those were perfectly 
reasonable, obviously, and I have found this is often the case 
that people say, you know, when it comes to protecting a group 
against discrimination I harbor no ill will for them but I 
worry about disruptive effects.
    The one thing I would say is this. I was first elected to a 
legislature in 1972 in Massachusetts. In the ensuing years I 
have worked on legislation to protect people against religious 
discrimination, discrimination based on race, discrimination 
based on ethnicity, discrimination based on gender, 
discrimination based on just condition of disability and of 
age.
    I must say the time that I worked on all those I was not 
the beneficiary of any of them. I caught up on the age part. 
But in every single case--and I remember when we re-enacted the 
legislation with you playing a major role, Mr. Chairman, to say 
that you had a particular obligation not to discriminate if you 
took federal funds.
    And in every single case, when we have voted against 
discrimination the arguments have been similar. It is not that 
we dislike these people. In our case there is a few that don't 
say that. But in general the argument is from thoughtful 
people, it will be too disruptive.
    The point I want to make is this. They always, the 
opponents of discrimination legislation, predict disruption, 
and it never happens. The secret about any discrimination 
legislation is that it becomes very hard to enforce. They have 
historically been under-enforced rather than over-enforced.
    The gentleman sort of raises a reasonable question, has--
could this lead to litigation? But while most states in this 
country do not offer that protection to people like me and my 
colleague from Wisconsin and our colleague from Colorado, we 
are subject to being fired just because of our personal 
characteristics here.
    There is no history of litigation of the sort that is 
conjured up. There is no negative history. This isn't the first 
time this has happened. The gentlewoman from Wisconsin state 
did it first. My state did it second. These laws have been on 
the books for well over 20 years in places. There are many 
states that have them. There is no record of this being 
disruptive. This simply is a non-existent fear.
    And I have to say this, in a rare instance of the media not 
wanting to contradict politicians, they generally love to show 
that we haven't been telling the truth, I wish they would go 
back and look at any discrimination based on age and race and 
disability and gender and religion, et cetera, et cetera, and 
look at the predictions that were made of chaos and look at the 
total absence of chaos that ensued because that clearly is the 
case.
    Finally, I just want to address the issue of transgender. 
It was very controversial last time. I didn't think we had the 
votes. I hope we will now. I remember when I first introduced 
legislation to prevent discrimination in employment based on 
sexual orientation 37 years ago, many of my colleagues in the 
legislature were troubled by it and made uneasy by it.
    It was a new thing to them. Yes, I believe the issue of 
transgender is a new one to people. It takes time for people to 
get used to it, but there is no more reason to discriminate 
against someone because he or she is transgender than because 
he or she is gay or lesbian or in any other of the categories.
    We are not asking that anybody get a pass. There is no 
affirmative action in this bill. To the extent that the 
transgender issue raises a couple of special issues about 
changing clothes facilities, the bill addresses them. And I 
have to say, there are some people who have expressed some 
puzzlement about people who are transgender.
    I understand that this is a concept that for some people it 
is kind of, it is new. But I can guarantee them, as my 
colleagues in the legislature 37 years ago got to know gay 
people and talked to us, the fear that there was something just 
so troubling, that went away.
    The same happens. It has certainly been our experience. 
Yes, the transgendered community was a hidden community for 
years because of the degree of prejudice they faced. That 
barrier has dropped and they deserve a great deal of credit, 
the members of that community, for getting out there and 
introducing themselves and talking to people.
    Let me just say to my colleagues, there is nothing to be 
afraid of. These are our fellow human beings. They are not 
asking you for anything other, in this bill, for the right to 
earn a living. Can't you give them that? If you don't like 
them, if you don't want to be friends, I think you are missing 
on something, but that is your choice.
    But how can we, as people who make the laws in this 
wonderful country, under our great Constitution, say to one 
small group of our fellow citizens, you know there is something 
about you that some people don't like, so you are not eligible 
for work. You can be fired. You can't get a promotion. I cannot 
understand why anybody would want to say that to a group of our 
fellow citizens, and that is all that this bill does.
    Thank you, Mr. Chairman.
    Chairman Miller. Thank you, Barney. We know that you are 
chairing a hearing, and I don't think this committee has any 
objections to you leaving at this point if that is what you 
want to do.
    Mr. Frank. No, after.
    Chairman Miller. After Tammy.
    Mr. Frank. Very often there are objections to my not 
leaving.
    Chairman Miller. I know. Yes, right. [Laughter.]
    I didn't want to put that question in. [Laughter.]
    Tammy, welcome to the committee. We look forward to your 
testimony. Thank you for being here.

 STATEMENT OF HON. TAMMY BALDWIN, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF WISCONSIN

    Ms. Baldwin. Thank you, Chairman Miller. Thank you Ranking 
Member Kline and all members of the committee. I am delighted 
to join you in support, in strong support of the Employment 
Non-Discrimination Act.
    As my colleague, Barney Frank, just mentioned, my home 
state of Wisconsin enacted the first employment non-
discrimination act in the nation. The year was 1982, more than 
a quarter century ago. At that time, only 41 municipalities and 
eight counties in the entire United States offered any 
protections against discrimination based on sexual orientation.
    Wisconsin's efforts to pass the nation's first sexual 
orientation antidiscrimination statute was, at that time, 
supported by a broad bipartisan coalition including members of 
the clergy, various religious denominations, medical and 
professional groups.
    The measure was, in fact, signed into law by a Republican 
governor, Lee Sherman Dreyfus, who based his decision to 
support the measure on the success of municipal ordinances that 
provided similar protections.
    Since Wisconsin passed its statute in 1982, 20 additional 
states and the District of Columbia, covering roughly 44 
percent of the U.S. population have passed similar measures. 
Twelve states and Washington, D.C. also prohibit discrimination 
based on gender identity.
    In addition to state and local measures, hundreds of 
American companies have enacted policies protecting their LGBT 
employees. Currently, 85 percent of Fortune 500 companies 
extend protections based on sexual orientation and more than 
one third do so on the basis of gender identity also.
    There is a clear record demonstrating the need for these 
protections. Lesbian, gay, bi-sexual and transgender employees 
are harassed. They are fired or not hired or passed over for 
advancement without regards to the merit of their work.
    Studies of LGBT employees reveal significant levels of 
discrimination or harassment occurring in workplaces across the 
country. For example, according to a 2007 report that was 
published by the ACLU, nearly 30 percent of LGBT workers report 
that they have experienced discrimination or unfair treatment 
in the workplace, and one in four say they experience it on a 
weekly basis.
    Further, as you will hear later in the testimony from Mr. 
Sears, many state governments have engaged in a widespread 
pattern of unconstitutional employment discrimination against 
LGBT employees. Without ENDA, these Americans do not have basic 
protection against workplace discrimination.
    As my colleagues know, the Employment Non-Discrimination 
Act will provide basic protections against workplace 
discrimination on the basis of sexual orientation and sexual 
identity. ENDA does not create special rights.
    It simply affords to all Americans basic employment 
protections from discrimination based on irrational prejudice 
or bias. The importance of non-discrimination laws cannot be 
overstated. Substantively, they provide real remedies and a 
chance to seek justice.
    Symbolically, they say to Americans judge your fellow 
citizens by their integrity, their character and talents and 
not their sexual orientation or gender identity or race or 
religion for that matter. Symbolically, these laws also say 
that irrational bias has no place in our workplace.
    Mr. Chairman, Americans are ready for ENDA. According to a 
2008 Gallup poll, 89 percent of the country believes that gay 
and lesbian Americans should have equal rights in terms of job 
opportunities. In another poll, 71 percent of Americans agree 
that performance should be the standard of judging an employee, 
not whether they are transgender.
    Americans rightly believe that their hardworking friends 
and neighbors should not be denied job opportunities, fired or 
otherwise be discriminated against just because of their sexual 
orientation or gender identity. Yet, as The New York Times 
editorialized just 2 weeks ago, federal law has lagged behind 
the reality of American life.
    Mr. Chairman, it is time to bring our laws in line with the 
reality of American life. Over the past 2 years, we have held 
very constructive discussions on ENDA, not only within the LGBT 
community but here in Congress.
    Spurred by constituent meetings and conversations in their 
communities back home, my colleagues have deepened their 
understanding about why affording to all Americans basic 
employment protections from discrimination based on irrational 
prejudice is so meaningful.
    And here in Washington, we have discussed why transgender 
individuals, Americans who lead incredibly successful, stable 
lives, are dedicated parents, who contribute immeasurably to 
their communities and their country and why they, too, must be 
included in ENDA. And Chairman Andrews, your hearing on gender 
identity last June was a real testament to that effort.
    More than 40 years ago, we enacted the Civil Rights Act of 
1964 that banned discrimination on the basis of race, color, 
religion, sex or national origin. We knew then that an 
irrational hatred, bias and fear had no place in our workplace. 
And now it is time to declare, as a nation, that discrimination 
based on sexual orientation or gender identity is unlawful as 
well.
    Through your work and your efforts in this committee, I 
know you will help fulfill this promise. Again, I very much 
appreciate the chance to testify before your committee.
    [The statement of Ms. Baldwin follows:]

Prepared Statement of Hon. Tammy Baldwin, a Representative in Congress 
                      From the State of Wisconsin

    Thank you Chairman Miller and Ranking Member Kline and members of 
the Committee for allowing me the opportunity to testify today.
    I am a strong supporter of H.R. 3017, the Employment Non-
Discrimination Act of 2009.
    As many of my colleagues know, twenty-five years ago, my own state 
of Wisconsin was the first state in the nation to add sexual 
orientation to its anti-discrimination statutes. At the time--and this 
was in 1982--only 41 municipalities and 8 counties in the entire United 
States offered limited protections against discrimination based on 
sexual orientation.
    Wisconsin's efforts to pass the nation's first sexual orientation 
anti-discrimination statute were supported by a broad, bipartisan 
coalition, including members of the clergy, various religious 
denominations, medical, and professional groups. The measure was signed 
into law by a Republican Governor (Lee Sherman Dreyfus), who based his 
decision to support the measure on the success of municipal ordinances 
providing similar protections.
    Since Wisconsin passed its statute in 1982, twenty additional 
states and the District of Columbia (roughly 44% of the population) 
have passed similar protective measures. Twelve states and Washington 
D.C. also prohibit discrimination based on gender identity. In addition 
to state and local measures, hundreds of American companies have 
enacted policies protecting their LGBT employees. Currently, 85% of the 
Fortune 500 companies extend protections based on sexual orientation 
and more than one-third do so on the basis of gender identity.
    There is a clear record demonstrating the need for these 
protections: lesbian, gay, bisexual, and transgender employees are 
harassed, fired, not hired, and passed over for advancement without 
regard to their merit. Studies of LGBT employees reveal significant 
levels of discrimination or harassment occurring in workplaces across 
the country. For example, according to a 2007 report published by the 
ACLU, nearly 30% of LGBT workers reported that they have experienced 
discrimination or unfair treatment in the work place and one in four 
said they experience it on a weekly basis (Working in the Shadows: 
Ending Employment Discrimination for LGBT Americans). Further, as 
you'll hear later from Mr. Sears, many state governments have engaged 
in a widespread pattern of employment discrimination against LGBT 
employees. Without ENDA, these American do not have basic protections 
against workplace discrimination.
    Mr. Chairman, I would like to share with you Sheri Swokowski's 
story. Sheri is a retired Colonel, and former Director of Human 
Resources for the Wisconsin National Guard from DeForest, Wisconsin. In 
2006, she traveled out to Fort Belvoir, Virginia to teach at the U.S. 
Army Force Management School--given her background and experience in 
the Army Guard, Sheri was a lead instructor. In August 2007, she began 
her transition from male to female and informed her human resources 
department (she was employed by a large government contractor, not the 
school itself) of her intent to teach the fall courses as a woman for 
the first time. Soon after this conversation, Sheri was told her 
teaching services were no longer needed and that her transition was 
``her problem.'' To hear Sheri tell her story is heartbreaking. She 
knows she was qualified for the position, but she also recognizes that 
her former employer didn't see her as Sheri--they only saw her gender 
identity. The sad reality is that Sheri's life and her livelihood would 
be different today if ENDA were the law of the land.
    We now have the chance to do so by passing H.R. 3017. As my 
colleagues know, the Employment Nondiscrimination Act, or ENDA, will 
provide basic protections against workplace discrimination on the basis 
of sexual orientation or gender identity. ENDA does not create 
``special rights.'' It simply affords to all Americans basic employment 
protection from discrimination based on irrational prejudice.
    The importance of nondiscrimination laws cannot be overstated. 
Substantively, they provide real remedies and a chance to seek justice. 
Symbolically, they say to Americans, judge your fellow citizens by 
their integrity, character, and talents, not their sexual orientation, 
or gender identity, or their race or religion, for that matter. 
Symbolically, these laws also say that irrational hate or fear have no 
place in our work place.
    Mr. Chairman, Americans are ready for ENDA. According to a 2008 
Gallup Poll, 89% of the country believes that gay and lesbian Americans 
should have ``equal rights in terms of job opportunities.'' In another 
poll, 71% of Americans agree that performance should be the standard 
for judging an employee, not whether they are transgender. Americans 
rightly believe that their hard-working friends and neighbors should 
not be denied job opportunities, fired or otherwise be discriminated 
against just because of their sexual orientation or gender identity. 
Yet as the New York Times editorialized just two weeks ago, ``Federal 
law has lagged behind the reality of American life.'' (9/12/09)
    Mr. Chairman, it is time to bring our laws in line with the reality 
of American life. Over the past two years, we have held constructive 
discussions on ENDA not only within the LGBT community, but here in 
Congress. Spurred by constituent meetings and conversations in their 
communities back home, my colleagues have deepened their understanding 
about why affording to all Americans basic employment protection from 
discrimination based on irrational prejudice is so meaningful. And here 
in Washington, we have discussed why transgender individuals--Americans 
who lead incredibly successful, stable lives, are dedicated parents, 
contribute immeasurably to their communities and their country--and why 
they, too, must be included in ENDA. Chairman Andrews, your hearing on 
Gender Identity last June was a testament to that effort.
    I believe the conclusion of these discussions and debates is that 
Congress is ready to pass H.R. 3017. More than 40 years ago, we enacted 
the Civil Rights Act of 1964 that banned employment discrimination on 
the basis of race, color, religion, sex, or national origin. We knew 
then that irrational hate and fear have no place in our work place and 
now is the time to declare--as a nation--that discrimination on the 
basis of sexual orientation or gender identity is unlawful, as well. 
Through your work and your efforts in this Committee, I know we will 
help fulfill this promise.
    Once again, I sincerely appreciate the opportunity to testify today 
and look forward to the discussion.
    Thank you.
                                 ______
                                 
    Chairman Miller. Thank you very much. And again, we know 
your schedule. If there is any member that has a burning 
question that they would not be able to ask, Ms. Baldwin.
    Thank you, appreciate that.
    Our second panel will be a representative of the 
administration, Mr. Stuart Ishimaru, who is the Acting Chairman 
of the U.S. Equal Employment Opportunity Commission. Mr. 
Ishimaru has previously served as deputy assistant attorney 
general to the Civil Rights Division of the U.S. Department of 
Justice, where he supervised the division's attorneys in high 
profile litigation related to employment discrimination.
    He was also appointed by President Clinton to acting staff 
director to the U.S. Commission on Civil Rights and 
additionally served as a former professional staff member to 
both the House Judiciary and Armed Services Committee.
    Mr. Ishimaru received his BA from the University of 
California Berkley and his Juris Doctorate from the George 
Washington University.
    Welcome to the committee. We are going to give you 5 
minutes to summarize your testimony and then we will make 
questions available from the members of the committee.

 STATEMENT OF STUART J. ISHIMARU, ACTING CHAIRMAN, U.S. EQUAL 
               EMPLOYMENT OPPORTUNITY COMMISSION

    Mr. Ishimaru. Thank you, Mr. Chairman. I have a written 
statement that I ask be made a part of the record.
    Chairman Miller. It will, without objection, be so ordered.
    Mr. Ishimaru. Thank you, Mr. Chairman, and thank you to the 
committee for having us here today for this important hearing. 
It is a privilege to be here to represent the Obama 
Administration and the EEOC in this first hearing of this 
Congress to consider the Employment Non-Discrimination Act, a 
bill that to voice the administration's strong support for 
legislation that prohibits discrimination on the basis of 
sexual orientation and gender identity.
    Our nation prides itself on embracing the principle that 
persons should be judged based on merit and ability, not race, 
religion, class, culture or other extraneous factors. Our civil 
rights laws reflect and uphold this principle.
    All Americans have the right to find jobs, keep jobs, earn 
promotions, pay raises and other benefits of employment based 
on their qualifications and hard work, not on characteristics 
such as sexual orientation or gender identity, which have no 
bearing on workplace performance.
    Unfortunately, this right remains elusive or almost 
nonexistent for many Americans because of lack of federal 
legislation explicitly prohibiting sexual orientation and 
gender identity discrimination in employment. Study-after-study 
has shown that employment discrimination against LGBT 
individuals remains a significant problem.
    Only 21 states and D.C. prohibit employment discrimination 
on the basis of sexual orientation and even a smaller number, 
12 plus D.C. also prohibit employment discrimination on the 
basis of gender identify. States therefore leave large numbers 
of LGBT individuals without recourse for workplace 
discrimination on the basis of sexual orientation and gender 
identity.
    When our EEOC investigators hear complaints about sexual 
orientation discrimination and gender identity discrimination 
from members of the public to whom we serve, hoping to find 
justice, we usually have to say we can't help you, that the 
laws don't apply.
    This discrimination can take many forms. It can be overt 
instances of anti-gay epithets that harass and belittle 
employees, and it may be the explicit denial of workplace 
opportunities on these bases.
    We see this time-and-time again and we have to turn people 
away, generally, because the federal law does not apply. 
Because the current patchwork of state laws leaves big gaps in 
coverage, federal government action is necessary to provide 
protection against employment discrimination on the basis of 
sexual orientation and gender identity.
    Protecting valued members of our workforce from 
discrimination should not be left solely to the states. 
Discrimination in the state of Washington is just as wrong as 
discrimination in Florida. It is a critical statement of 
national policy that the federal government will not tolerate 
discriminating that is based on invidious bias against 
individuals because of their sexual orientation and gender 
identity.
    Our federal workforce, too, also lacks statutory 
protections from sexual orientation and gender identity 
discrimination. The Civil Service Reform Act, which prohibits 
discrimination on the basis of conduct not affecting job 
performance, has been interpreted by the Office of Personnel 
Management to prohibit discrimination on the basis of sexual 
orientation.
    In addition, Executive Order 13087 prohibits employment 
discrimination on the basis of sexual orientation in much of 
the executive branch. But the remedies available under these 
provisions are far more limited than those available to federal 
employees who experience other forms of discrimination such as 
race, sex or disability discrimination.
    I hear from employers all the time and they tell me that 
they want good employees working for them. They are always 
searching for good people and they tell me that they want basic 
fairness in the workplace. But they also say this is a smart 
business decision not to discriminate and they want to obtain 
and attract talent to work for them.
    They want to do this for a couple of reasons. They want to 
do it because it complies with the law, but it also lets them 
go to the largest talent pool available out there to not to 
exclude anyone on the basis of extraneous factors and certainly 
large businesses, many large businesses get this.
    If you look at figures, 87 percent of the Fortune 500 
companies have implemented non-discrimination policies that 
include sexual orientation and 41 percent had policies that 
include gender identity.
    And although an increasing number of businesses have 
started addressing workplace fairness for LGBT employees, a 
large number of individuals still face discrimination on the 
basis of sexual orientation in the workplace.
    And I have found--if I can sum up, Mr. Chairman--I have 
been a civil rights lawyer for 25 years, now, and I have found 
in the other areas that Congress has covered by the civil 
rights laws that they are--that prejudice often is overcome by 
exposure to other people.
    And in the workplace I have found, during my time at the 
EEOC, people are working with people of different races, people 
of different genders, people of different religions. And they 
find that they have common interests, common hopes, common 
dreams and aspirations.
    And from that, they learn that people aren't that different 
from themselves. And I am hopeful that enactment of legislation 
that will prohibit discrimination on the basis of sexual 
orientation and gender identity will do the same type of thing 
here.
    So I thank you for holding the hearing today to address 
this important step of protecting employees from arbitrary 
discrimination and those of employers to operate their 
businesses. Again, I thank you for the opportunity to testify 
and look forward to the questions from the members of the 
committee.
    [The statement of Mr. Ishimaru follows:]

       Prepared Statement of Stuart J. Ishimaru, Acting Chairman,
              U.S. Equal Employment Opportunity Commission

    Mr. Chairman and members of the House Education and Labor 
Committee, thank you for the opportunity to appear before you at this 
important hearing. It is a privilege to represent the Obama 
Administration and the EEOC at the first hearing this Congress to 
consider ENDA, to voice the Administration's strong support for 
legislation that prohibits discrimination on the basis of sexual 
orientation and gender identity. This legislation will provide sorely 
needed and long overdue federal protection for lesbian, gay, bisexual, 
and transgender (LGBT) individuals, who unfortunately still face 
widespread employment discrimination.
    Our Nation prides itself on embracing the principle that persons 
should be judged based on merit and ability, not on race, religion, 
class, culture or other extraneous factors. Our civil rights laws 
reflect and uphold this principle. All Americans have the right to find 
jobs, keep jobs, and earn promotions, pay raises and other benefits of 
employment based on their qualifications and hard work, not on 
characteristics such as sexual orientation or gender identity, which 
have no bearing on workplace performance.
    Unfortunately, this right remains elusive, or even non-existent for 
many Americans, because of the lack of federal legislation explicitly 
prohibiting sexual orientation and gender identity discrimination in 
employment. Studies have shown that employment discrimination against 
LGBT individuals remains a significant problem. Job applicants and 
employees who are talented, fully qualified, and hardworking are denied 
jobs, fired, or otherwise discriminated against in the workplace simply 
because they happen to be lesbian, gay, bisexual, or transgender.
    Only 21 states and D.C. prohibit employment discrimination on the 
basis of sexual orientation and an even smaller number--12 states plus 
D.C.--also prohibit employment discrimination on the basis of gender 
identity. State laws therefore leave large numbers of LGBT individuals 
without recourse for workplace discrimination on the basis of the 
sexual orientation or gender identity.
    While our investigators often hear complaints of sexual orientation 
and gender identity discrimination from members of the public who come 
to us hoping to find justice, we are currently without jurisdiction to 
help them in most cases. This discrimination can take many forms, 
ranging from overt instances of the use of anti-gay epithets to harass 
or belittle employees, to the explicit denial of employment, promotion, 
or career enhancing assignments because of the employee's sexual 
orientation or gender identity. Unfortunately, although we hear 
regularly from working Americans who complain that they have been 
discriminated against because of their sexual orientation or gender 
identity, we have to tell them that our federal laws provide them no 
explicit protection.
    Because the current patchwork of state laws leaves big gaps in 
coverage, federal government action is necessary to provide protection 
against employment discrimination on the basis of sexual orientation 
and gender identity. Protecting valued members of our workforce from 
discrimination should not be left solely to the states--discrimination 
in Washington State is just as wrong as discrimination in Florida. It 
is a critical statement of national policy that the federal government 
will not tolerate discrimination that is based on invidious bias 
against individuals because of their sexual orientation and gender 
identity.
    Yet, no federal statute yet provides the comprehensive and 
unambiguous protection that is needed to combat employment 
discrimination on the basis of sexual orientation and gender identity. 
As you know, under current law, no federal employment civil rights 
statute explicitly includes ``sexual orientation'' or ``gender 
identity'' among its protected categories. Although some courts have 
held that Title VII's prohibition against sex discrimination can 
protect LGBT persons from certain types of discrimination under certain 
circumstances, the extent of such protection is often quite limited and 
varies significantly from court to court.
    Moreover, our federal workforce also lacks strong statutory 
protection from sexual orientation and gender identity discrimination. 
The Civil Service Reform Act, which prohibits discrimination on the 
basis of conduct not affecting job performance, has been interpreted by 
the Office of Personnel Management to prohibit discrimination on the 
basis of sexual orientation. In addition, Executive Order 13087 
prohibits employment discrimination on the basis of sexual orientation 
in much of the Executive Branch. But the administrative remedies 
available under these provisions are far more limited than those 
available to federal employees who experience other forms of 
discrimination, such as race, sex, or disability discrimination.
    For these reasons, enactment of legislation is needed to clearly 
prohibit employment discrimination on the basis of sexual orientation 
and gender identity and to give victims of such discrimination adequate 
remedies.
    Preventing employment discrimination on the basis of sexual 
orientation and gender identity is a matter of basic fairness in the 
workplace. But it also is a smart business decision for those employers 
who seek to attract and retain talented, dedicated, and hardworking 
employees. By allowing employment discrimination on the basis of sexual 
orientation or gender identity, our society cheats itself out of the 
contributions of very able and talented individuals throughout the 
nation. As the international marketplace becomes increasingly 
competitive, and as we work to revitalize and strengthen our economy, 
America does not have the luxury of wasting talent or allowing 
workplace hostility to overtake productivity and teamwork.
    Many of the nation's top businesses recognize that discrimination 
is bad for business. Hundreds of companies now bar employment 
discrimination on the basis of sexual orientation and/or gender 
identity. According to the Human Rights Campaign's recently published 
Corporate Equality Index 2010, as of September 2009, 434 (87%) of the 
Fortune 500 companies had implemented non-discrimination policies that 
include sexual orientation, and 207 (41%) had policies that include 
gender identity. Although an increasing number of businesses in the 
United States have started addressing workplace fairness for LGBT 
employees, a large number of individuals still face discrimination on 
the basis of sexual orientation or gender identity and desperately need 
the nationwide protections and remedies that ENDA would provide.
    I've explained why legislation like ENDA is needed and why it makes 
good business sense. Now let me briefly summarize some misconceptions 
about the scope and impact of the legislation you are considering.
    Broadly stated, ENDA would prohibit intentional employment 
discrimination on the basis of actual or perceived sexual orientation 
or gender identity, by employers, employment agencies, and labor 
organizations. Its coverage of intentional discrimination parallels 
that available for individuals under Title VII, and the principles that 
would underlie this coverage have been well-established for decades.
    Also important is what the proposed legislation does not do. ENDA 
explicitly precludes disparate-impact claims, does not permit quotas or 
other forms of preferential treatment, and does not allow the EEOC to 
collect statistics on sexual orientation and gender identity from 
covered entities or to require those entities to collect such 
statistics themselves. Moreover, ENDA does not apply to small business 
with fewer than 15 employees, tax-exempt private membership clubs, or 
religious organizations. Indeed, ENDA contains a broad exemption for 
religious organizations, and does not apply to any corporation, 
association, educational institution, or society that is exempt from 
the religious discrimination provisions of Title VII. Moreover, nothing 
in ENDA infringes on individuals' ability to practice their religion, 
to hold and adhere to their religious beliefs, and to exercise their 
First Amendment rights of free speech on these or other issues. In 
addition, ENDA would not apply to the relationship between the federal 
government and members of the armed forces, and would not affect 
federal, state, or local rules providing veterans' preferences in 
employment decisions.
    While ENDA would be a vital tool to ensure equal rights and 
opportunities in the workplace for LGBT Americans, there is nothing to 
suggest that it will burden employers, cause a flood of cases that 
would threaten to overwhelm the EEOC or the Department of Justice, or 
clog the federal courts. On the contrary, the experience of states with 
sexual orientation and gender identity discrimination statutes suggests 
that complaints under these statutes make up a relatively small portion 
of total employment discrimination complaints. We expect that the same 
would hold true at the federal level.
    As I noted at the outset of my testimony, this hearing is the first 
in this Congress to consider ENDA. But ENDA is not a new bill. The 
first sexual orientation non-discrimination bill was introduced in the 
U.S. House of Representatives in the early 1970s. Unfortunately, the 
need for this legislation remains as strong today as it was then.
    By holding this hearing today, this Committee has taken an 
important step to address the need of employees to be protected from 
arbitrary discrimination and those of employers to operate their 
businesses.
    Thank you once again for the opportunity to testify. I welcome your 
questions.
                                 ______
                                 
    Chairman Miller. Thank you very much. The suggestion has 
been raised that somehow this is very different than other 
discrimination legislation and there would be an eruption of 
cases and lawsuits, administration determination, what have 
you.
    What is your sense of your capacity when you look at this 
law, and you look at the history of dealing with discrimination 
cases to manage this, to be able to write the regulations in a 
manner in which employers would be able to deal with it?
    Mr. Ishimaru. Surely. This legislation is based on Title 
VII of the 1964 Civil Rights Act, which we enforce. We believe 
that we are capable and able to write regulations and to 
provide guidance and to do the enforcement necessary for this.
    We are in the process right now of writing regulations both 
for the Genetic Information Non-Discrimination Act and the 
Americans With Disabilities Amendments Act. So we are used to 
doing this. We are used to providing that sort of detail. We 
have people who are knowledgeable and ready to do the work.
    It has also been our experience that when new laws are 
enacted, there are cases filed, but the numbers quite often 
start off slowly as people start to understand what their 
rights are and as we educate employers are of what their 
responsibilities are.
    You know, we believe that there will be some new cases. But 
given the experience in the states, and a number of states have 
these protections, we don't believe that the numbers will be 
extraordinary. We think it will be a manageable number and a 
number we can handle.
    Chairman Miller. Thank you. Again, some questions been 
raised in the testimony about the use of the word perceived 
here, and whether or not that raises new issues or not within 
the enforcement of civil rights.
    Mr. Ishimaru. I don't think so, Mr. Chairman. You know, I 
was thinking back to the days after 9/11, and when people were 
perceived to be Muslim or Arab. And quite often, people who had 
dark skin, who looked different, were perceived to be of 
certain groups.
    And we found at the EEOC that these people may be South 
Asian. They may be from the Middle East but not of Muslim or 
Arab descent. But they looked like it and they were perceived 
to be of it and they were excluded from employment 
opportunities because of that.
    And we found that to be a violation of the law in many 
instances and the courts have agreed with us. In the ADA, it 
was written into the law, protections for people who are 
regarded as disabled.
    You know, we also believe that if someone believes that 
someone is of a certain group and they are taking actions 
against that person erroneously, it still should be illegal. 
And that is something that we have dealt with time and time 
again.
    Chairman Miller. Thank you.
    Mr. Kline?
    Mr. Kline. Thank you, Mr. Chairman. Thank you for being 
with us today, Mr. Chairman.
    A couple of points, I am going to kind of get back to 
this--a little bit of this notion that the chairman--Chairman 
Miller--was talking about when he was talking about perceived, 
but first just a sort of comment.
    I found it interesting that when you were talking about 
Fortune 500 companies and essentially businesses making sound 
business decisions because they wanted to expand their 
workforce, have a bigger pool to choose from, that they were 
doing it.
    Some--I think you said 87 percent--had policies that said 
they would not discriminate; they would hire regardless of 
sexual orientation. A much smaller number, because of gender 
identity, because frankly that is a little bit more complicated 
issue and they may have some difficulty with that.
    But my point is is that this is a business decision. If 
they really want to expand the workforce, if they want to take 
advantage of very capable, qualified persons regardless of 
sexual orientation, they can do that now.
    And they can do it without this legislation, which would 
subject them perhaps to litigation if they didn't follow ``the 
letter of the law.'' So right now, they have a freedom to do 
that anyway, and most of them are choosing to do so.
    Let us go back to this question of unambiguous. I think you 
stated in your testimony that this legislation provides 
comprehensive and unambiguous protection. Chairman Miller 
raised the question of perceived. I still think that is in fact 
problematic, but there are other issues.
    For instance, the bill affords protections to individuals 
that have ``undergone'' or who are ``undergoing'' gender 
transition. And yet the bill provides no definition for that 
term or phrase. That doesn't strike me as unambiguous. It looks 
to me like that in fact might be a little bit confusing. Can 
you comment on that concern?
    Mr. Ishimaru. Mr. Kline, I am not sure if I said 
unambiguous because having worked on for the Congress, I know 
there is always ambiguity when you craft legislation and--but 
think that going to the question of whether gender identity is 
defined enough. You know, I think there is a sound definition 
in the bill, and I think questions of how to further define it, 
if there are ambiguities, is best addressed through a 
regulatory process.
    We did that with the disability law. We provided more 
guidance to people through regulations. And that, we find, 
works out well.
    Mr. Kline. Okay. Not to get in a, you know, a quarrel here, 
but I am just reading your testimony----
    Mr. Ishimaru. Okay.
    Mr. Kline [continuing]. And in fact it says, ``provides a 
comprehensive and unambiguous protection that is needed.'' So--
--
    Mr. Ishimaru. My apologies.
    Mr. Kline. No, no. That is quite all right. But that is 
important, I think, when we are looking at putting things in 
statute and passing legislation here that we be as clear as 
possible.
    I understand there is a regulation writing process that 
follows, but the more clarity we have here, I think the better 
as we go forward. And if we have things that are ambiguous, we 
ought to be making every effort in the Congress to clear up 
that ambiguity.
    Thank you. And Mr. Chairman, I yield back.
    Mr. Kildee. Of the 21 states and D.C. that prohibit 
discrimination on the basis of sexual orientation and the 12 
states that prohibit discrimination on the basis of gender 
identity, I ask this just to make a point.
    Has the economy of those states suffered? Have people fled 
those states because they have those laws? Has unemployment 
increased? Have there been negative things that make those 
states kind of second-rate because they have done that, passed 
legislation recognizing the rights of people? Have there been 
negative consequences because of the pursuit of justice?
    Mr. Ishimaru. Not that I am aware of, Mr. Kildee.
    Mr. Kildee. Nor am I aware of. I travel around this 
country. Wisconsin has a very enlightened law. Michigan has not 
yet caught up yet. Wisconsin, by the way, is doing economically 
better than Michigan right now.
    I just can't see why people think that this is going to be 
a negative thing. I mean, the economy is doing well. There is 
no difference in the environment. People aren't fleeing the 
state. Yet people have this irrational fear that this is going 
to make their state somewhat less than other states. I just 
could not understand that. Thank you very much.
    Mr. Ishimaru. Thank you.
    Chairman Miller. Mrs. Biggert?
    Mrs. Biggert. Thank you, Mr. Chairman. Mr. Chairman, I 
think in your testimony, you talk about how many--that the 
states having the sexual orientation and gender and identity. 
And then there is the Fortune 500, 80 percent----
    Mr. Ishimaru. Right.
    Mrs. Biggert [continuing]. Of those companies have some 
sort of this. Do you know how many cases that they have had to 
solve in these companies? I mean, does this come up a lot?
    Mr. Ishimaru. I don't know how many. We don't track that 
because we don't have jurisdiction over that. We have 
concurrent jurisdiction on a number of other areas, but because 
we don't have jurisdiction the EEOC doesn't have jurisdiction.
    Mrs. Biggert. Yes. I realized, I just wondered if there had 
been a study or a report that had been done on that.
    Mr. Ishimaru. But what--I think from a quick scrub of 
talking to people that the numbers, though, are not 
overwhelming. There are certainly cases where it comes up, but 
the numbers, you know, to go to the earlier question whether 
this will overwhelm the system, we have not found the numbers 
to be overwhelming.
    Mrs. Biggert. Okay. And do you--well you probably don't 
know this either, but I think this is something that I am 
wondering about because talking about whether the states or 
whether the federal government, there would have to be a lot of 
changes in, you know, accommodations or--in the workplace. Do 
these states--have these corporations done anything or the 
states had to make a lot of accommodation changes?
    Mr. Ishimaru. I am not aware of major accommodations or 
costly accommodations that have had to have been made. It is my 
understanding that companies are pretty good at figuring out 
how to provide accommodations to people as we found in other 
contexts as well.
    Mrs. Biggert. All right. And then I believe that this bill 
has something about attorney fees? Is this in--more than what 
is in the Title VII of Civil Rights?
    Mr. Ishimaru. It is my understanding that this tracks Title 
VII provisions on attorney's fees.
    Mrs. Biggert. So there would be no more. Could there be 
duplication, could a plaintiff actually take a cause to both 
the civil rights and EEOC?
    Mr. Ishimaru. To the state civil rights agency, or?
    Mrs. Biggert. Yes.
    Mr. Ishimaru. The way it has worked is that someone could 
file with both the state agency or the local agency and with 
the EEOC. One agency or the other would handle it. We call it 
dual filing. So there is not duplication, no, we have too much 
work to duplicate our efforts.
    Mrs. Biggert. Is that included in this legislation? Is that 
clear?
    Mr. Ishimaru. It is not included in the legislation, but it 
is also not included in Title VII. We do this as a matter of 
practice, and we have dual filing relationships with state and 
local agencies around the country.
    Mrs. Biggert. Okay. Thank you.
    I yield back.
    Chairman Miller. Thank you.
    Mr. Payne?
    Mr. Payne. Thank you very much. I really appreciate your 
testimony. You know, we in New Jersey are pretty proud of the 
fact that we have one of the strongest laws against 
discrimination. Our laws protect against discrimination based 
on marital status, domestic partnership status, effectual or 
sexual orientation, gender identity or expression, mental or 
physical disability including AIDS and HIV-related illnesses.
    And so we have really had a very strong program in our 
state. However in spite of this, we still have incidents 
continually that come up. And one of the areas that we find the 
most discrimination, it seems--and I wonder if this is 
nationwide--is in law enforcement.
    We find that law enforcement personnel who finally, in many 
instances male policemen who--the airport myth that they are 
transgender or--we find there is a tremendous amount of 
discrimination against them.
    I mean even in instances--cases where backups refused to 
support a law enforcement, putting his life in jeopardy, a case 
where they were going to have a raid and the actual law 
enforcement people in this area of New Jersey beat their 
colleague then went to do the job that they were assigned to 
do.
    I mean just planned, outright discriminatory, and so, you 
know, we love our law enforcement people. They are there and 
they protect us and I suppose, you know, most of the time, I 
guess, according to who you are, maybe.
    What do you find around the country? Do we find that this 
is--I mean, even though our state troopers in New Jersey at one 
time allegedly the best in the country, we find a tremendous 
amount of this race--this sexual discrimination? But we also 
did in New Jersey of course have strong racial discriminations 
by our state police people.
    A matter of fact just a month ago were released from a 
decree from the federal government that has been in for 30 
years for New Jersey because we are, you know, known for 
profiling and for--at that time, African Americans but now 
people of Middle East descent--from the Middle East.
    So what is your take on law enforcement in general around 
the country?
    Mr. Ishimaru. We found generally that law enforcement has 
its issues. And whether it is on race and gender or disability 
and we would also assume on sexual orientation and gender 
identity as well.
    It is hard to know the exact parameters of the problems for 
sexual orientation and gender identity. A number of states 
provide protections and have dealt with it, but others have 
not. I would anticipate that it would be in the same rough 
neighborhood as in the private sector.
    Mr. Payne. Yes. Have your agencies thought in terms of 
perhaps having some kind of proactive training or directives or 
suggestions to law--in New Jersey, it seems that that area has 
exceeded the rest. That is the only reason I bring it up. And I 
would imagine it is the same other places. Have you thought in 
terms of a sort of proactive program that you may have as a 
suggested plan for nationwide?
    Mr. Ishimaru. Certainly when we have had new laws to 
enforce, we have created proactive programs to educate 
employers on what their responsibilities are. And that, we 
found, pays dividends in the long run. And we would--you know, 
I would guess we would do the same thing here because it--that 
would proactively prevent problems from happening.
    Mr. Payne. Thank you, Mr. Chairman.
    Mr. Ishimaru. Thank you.
    Chairman Miller. Mr. Andrews.
    Mr. Andrews. Thank you, Mr. Chairman. Thank you, Mr. 
Chairman for your leadership and your work on this issue. I 
wanted to address two issues.
    The first is disparate impact claims. One of our later 
expert witnesses this morning will testify that she concludes 
there is ambiguity as to whether or not this bill permits 
disparate impact claims by the protected classes. In your 
opinion, does it permit those claims?
    Mr. Ishimaru. This is clearly a case where it is 
unambiguous. I think by the terms of the legislation it 
excludes disparate impact claims.
    Mr. Andrews. And if you were, you know, sitting as chair of 
the EEOC and were brought a disparate impact claim, what is 
your interpretation that this statute directs you to do with 
that claim?
    Mr. Ishimaru. As far as the ability of the agency to bring 
a disparate impact suit?
    Mr. Andrews. Right.
    Mr. Ishimaru. I would say I worked in the Congress for 10 
years, and I know how to read a statute and it says you can't 
do it. So I wouldn't, and I would instruct our people not to do 
it. I think----
    Mr. Andrews. You would tell your people to read the bill, 
huh?
    Mr. Ishimaru. Read the bill.
    Mr. Andrews. Okay.
    Mr. Ishimaru. And there is no wiggle room on this. I think 
I am----
    Mr. Andrews. By the way--and you can supplement the record 
for this later if you want. Can you think of a factual example 
of a disparate impact claim in this category of protected 
classes? I can't.
    Mr. Ishimaru. You know, it is complicated by the notions of 
privacy, that----
    Mr. Andrews. Right.
    Mr. Ishimaru [continuing]. That frankly, you know, we would 
not want to ask questions about one's sexual orientation on a 
large scale. And there is language in the bill that would 
prohibit us from collecting statistics.
    Mr. Andrews. Yes. I guess what I am wondering is what 
question that has privacy implications could be asked of people 
under existing law that could trigger that? Honestly, I can't 
think of an example of where you could bring a disparate impact 
claim with this. But I just wanted to get you on the record 
saying that your interpretation of this bill is that it 
absolutely prohibits disparate impact claims.
    Mr. Ishimaru. I think it is very clear on its terms that 
you cannot bring a disparate impact claim.
    Mr. Andrews. Let us talk about the religious exemption. 
Another witness this morning will testify later that the 
religions exemption may be a ``mirage,'' quote/unquote, because 
of the complicated nature--because if--I am paraphrasing the 
gentleman's testimony. I am sure he will speak to it directly, 
but this bill imports the Title VII standard for the religious 
exemption.
    And if I read the gentleman's testimony correctly, he says 
that because that religious exemption is so convoluted and 
there are contradictory court decisions about it, therefore 
there is the possibility of very narrow interpretations here of 
this religious exemption.
    Do you--first of all, do you see any difference whatsoever 
between the religious exemption in this bill and that existing 
in Title VII?
    Mr. Ishimaru. I think it parallels the Title VII view of 
coverage. What this bill does, clearly, is it says if you are 
exempt under the Title VII definition and the definition of 
this bill, you aren't covered by the bill at all.
    Mr. Andrews. So a church or a synagogue that presently has 
the authority to deny employment to someone on the basis of 
religion or whatever would still be able to do so here on the 
basis of sexual orientation or transgender status?
    Mr. Ishimaru. That is right. But Title VII, the 
``whatever'' is----
    Mr. Andrews. Yes.
    Mr. Ishimaru [continuing]. Limited to just religion, so but 
here it is no coverage at all. That is my read of the bill.
    Mr. Andrews. So this is--you are--I think you are reading 
the bill is, correct me if I am wrong, is there is a broader 
religious exemption under this bill than exists under Title 
VII?
    Mr. Ishimaru. It would certainly cover the same group of 
people. I think that there--I don't see ambiguity there.
    Mr. Andrews. But a related question, because the premise of 
the gentleman's testimony is that there is such confusion about 
the Title VII religious exemption, has any group approached the 
EEOC about promoting legislation that would rewrite the scope 
of that religious exemption, in your experience?
    Mr. Ishimaru. Not that I am aware of. I know that last 
year, the EEOC on a bipartisan and unanimous basis, issued 
guidance on religious discrimination that was well-received by 
both the various religious communities out there----
    Mr. Andrews. During the 8 years of the Bush administration 
and its various--the Ashcroft attorney generalship--was there 
any attempt to broaden the religions exemption under Title VII?
    Mr. Ishimaru. Not that I know of.
    Mr. Andrews. Yes.
    I would yield back. Thank you.
    Mr. Kucinich. Thank you very much, Mr. Chairman, and thank 
you for holding this hearing. I have long been a supporter of 
the Employment Non-Discrimination Act. When I first came to 
Congress, I worked with the Human Rights Campaign to help 
gather support on Capitol Hill and I am glad to see the kind of 
attendance that we have had at this hearing today with so many 
members actively engaged in this discussion.
    I would like to ask the witness a couple questions. Would 
you say that for all reported discrimination that the EEOC 
looks into, that the reported discrimination is just a small 
reflection of more widespread discrimination that doesn't go 
reported?
    Mr. Ishimaru. Absolutely. I think it is a small fraction. I 
think it is very hard to file a complaint. It takes a lot of 
courage, no matter what your basis is, to come and complain to 
a federal agency that you have----
    Mr. Kucinich. Let us talk about racial discrimination. If 
there is racial discrimination, that goes on yet it is not--a 
lot of it is not reported, right?
    Mr. Ishimaru. Right.
    Mr. Kucinich. And workplace sexual discrimination.
    Mr. Ishimaru. It varies between where you are on the pay 
scale I think. It depends on what happened to you. It depends 
on what community you come from, whether it is valued to go 
complain or not complain. But I think it is a fraction of the 
actual activity that goes on. That has been our experience.
    Mr. Kucinich. So the underlying assumption here is that 
people are, in fact, discriminated against on the basis of 
their sexual orientation and gender identity and so that is why 
we need a law, right?
    Mr. Ishimaru. Yes. Yes.
    Mr. Kucinich. But isn't it true that--wouldn't it be true 
that once a law does pass, that you are basically telling 
society it is not okay to discriminate and then the kind of 
more subtle, unofficial forms of discrimination are likely to 
be addressed in maybe informal, social context. But it says--it 
is the law sending a signal to society that this kind of 
discrimination just is not okay.
    Mr. Ishimaru. Certainly, having a statutory framework that 
makes certain behaviors illegal makes a huge difference. And if 
you look at the history of Title VII over the last 45 years 
where--at first Congress passes a law that says discrimination 
is illegal. Nothing changes at first.
    But if you look at the passage of time and if you look at 
how things have changed, certainly big companies get it. Most 
companies get it and they want to comply with the law. So they 
have changed their behaviors and set up systems to be, one, 
right with the law. And as many businesses have found, it makes 
good business sense.
    Mr. Kucinich. Are small businesses with 15 or less 
employees, are they exempt from civil rights laws relating to 
racial discrimination?
    Mr. Ishimaru. In this bill----
    Mr. Kucinich. No, no, I am----
    Mr. Ishimaru. Right.
    Mr. Kucinich. My question relates to civil rights statutes 
saying that you can't discriminate on the base of race.
    Mr. Ishimaru. Yes. Yes.
    Mr. Kucinich. Are employers with less than 15 employees, 
are they exempt from that?
    Mr. Ishimaru. They are exempt.
    Mr. Kucinich. But are there other--there are other legal 
recourse that somebody could take up, is that correct?
    Mr. Ishimaru. For a smaller----
    Mr. Kucinich. Yes.
    Mr. Ishimaru [continuing]. Employer? There may be recourse 
under state or local law. And certainly in working with state 
and local agencies who have that enforcement responsibility, 
they can bring cases like that.
    Mr. Kucinich. I just wonder, Mr. Chairman and members of 
the committee, since we acknowledge that more and more of 
America's commerce is conducted by small businesses--as a 
matter of fact, we have got such a transformation in our 
manufacturing base that small businesses increasingly are a 
large part of our economy. They drive the jobs.
    I just wonder if it isn't time for this committee to start 
looking at whether or not 15--a shop that has 15 employees or 
less shouldn't have to abide by these non-discrimination laws. 
You know, maybe five would be a more reasonable number.
    But since there is so many businesses that could go into 
that sweep, you just start to wonder how many--from a practical 
standpoint, how many businesses are likely to be covered by 
this new law that aren't already covered by agreements that 
some corporations have with their employees.
    I raise that issue because I think that one of the 
deficiencies in civil rights law is when you have an exemption 
for a class of businesses. In a way that kind of waters down 
the intent of the law which is to take a broad-based approach 
towards assuring people's civil liberties. Would you like to 
comment on that, sir?
    Mr. Ishimaru. Well I don't know the extent of how 
businesses are set up and the scope that that would cover. That 
would be something we--we would want to study some more. I 
know, though, that we were trying as a general matter to try to 
get widespread compliance with the civil rights laws we 
enforce, and I think having an atmosphere where businesses 
generally want to follow civil rights laws is a good thing and 
has served our country well.
    Mr. Kucinich. I thank the gentlemen.
    And Mr. Chairman, thank you, and I want to thank the 
witnesses as well as all those who are here on behalf of a 
lifetime of courage, fighting discrimination. Thank you.
    Chairman Miller. Thank you.
    Mr. Platts?
    Mr. Platts. Thank you, Mr. Chairman. First I just want to 
thank you for holding this hearing on a very important issue 
where we are focused on trying to make sure every American is 
treated fairly and not wrongly discriminated against. I thank 
the witness and I know my colleague from Illinois, Mrs. 
Biggert, has a follow up on her previous dialogue, so I will 
yield the balance of my time to her.
    Chairman Miller. Mrs. Biggert?
    Mrs. Biggert. Thank you, Mr. Chairman. I thank the 
gentleman for yielding. I just wanted to come back to an issue 
that we were discussing. And I know that there is testimony Ms. 
Olson has that will be coming up on the next panel, so I wanted 
to clarify--and I don't really want to be argumentative because 
I am a co-sponsor of this bill.
    So I think that we just have to get it right, and I think 
that there are some issues as far as what is in here.
    And I think what Ms. Olson has said that Section 8--or 
Section 12--expands the remedies that would otherwise be 
available under Title VII by permitting a prevailing party and 
an administrative proceeding to recover reasonable attorney 
fees, including expert fees, as part of the cost.
    And then she thinks it is unclear who is the prevailing 
party under ENDA, and employees who receive a finding of 
substantial evidence from the EEOC or other administrative 
agencies as described in Section 10, they would arguably be 
entitled to attorney fees. So this is an expansion of the 
remedies under Title VII.
    Could you respond? I think you said that there was no 
difference and I think that----
    Mr. Ishimaru. Well, it is my understanding after talking to 
staff, that the scope of the remedies in this legislation 
parallels what we can do now under Title VII for federal 
employees. And it is my understanding that the question of who 
is a prevailing party would be the same. So I don't see an 
expansion here. And if there is ambiguity, it may be worth 
clarifying.
    Mrs. Biggert. Okay. And I think that that probably is a 
good idea. There is also--because other employment 
discrimination statutes such as ADA adopts a Title VII remedy, 
so I think that, you know, we want to have this, you know, 
equal to the others.
    And then the other issue is that--and a departure contained 
an ENDA compared to Title VII relates to who is granted the 
authority and discretion to grant such rewards, and under ENDA, 
the courts' administrative agencies such as the EEOC are 
granted authority to award the attorney fees. In a contrast, 
Title VII appropriately limits them to grant those fees.
    And so I guess that is the issue, but again, of the 
prevailing party. And then for I think that, you know, the 
committee needs to take a look at that, and some of the other 
things that we will get to in her testimony. But thanks for 
that clarification.
    I yield back.
    Chairman Miller. Thank you.
    Mr. Hare?
    Mr. Hare. Thank you, Mr. Chairman, and--thank you, Mr. 
Chairman, for being here today, and I appreciate the 
administration's support of the bill. It is long, long overdue 
from my perspective.
    I am not asking you to be Kreskin here, but if you could--
you know, and I am not an attorney, and I don't know if that is 
good or bad today, but yes--but I believe this is a wonderful 
bill. I believe it puts an end once and for all to 
discriminating against a certain group of people.
    I remember going home to my district when we didn't do 
this--when we couldn't get this before, and I remember how 
incredibly disappointed I was in thinking that, you know, here 
is a group of wonderful people that we are somehow carving out 
and we are not taking care of and giving them at least an 
opportunity to be able to be treated like everybody else, which 
is all they are asking for.
    In your opinion, if this bill were signed into law today, 
which I wish it would be, would you see--do you see a mass of 
lawsuits being filed in your department, because again, I think 
a lot of this has been every time we have tried to do something 
or--and recent history tells us, you know, whether it is the 
Civil Rights Act or whatever, there was a lot of, ``Well, we 
got to make sure,'' and, you know, I believe this bill was very 
well written.
    I think--and I agree with my colleague, Mrs. Biggert, that 
a few things need to be maybe clarified in it, but on balance, 
I think this bill is very solid. I think it says what it should 
say.
    And I was wondering from your perspective, A, if you would 
agree with that, and B, is there something in here that isn't 
strong enough do you think, and I assume that we are going down 
the right path here because I certainly support this, but do 
you see this rash of things happening that are going to cause 
your agency to be overwhelmed?
    Mr. Ishimaru. I certainly don't see a rash. I think it goes 
to a number of issues. I think one, there is a record when 
states have enacted laws like there is a record of what has 
happened, and there has not been a rash of lawsuits being 
filed.
    The second is the whole question of, people don't always 
file complaints, even if something bad happens to them, and we 
find that across the board in the work we do. These are--you 
know, these are difficult issues, and people have to weigh 
whether coming forward is worth it. And you know, some people 
will and some people won't, and my guess is that you will not 
see a rash.
    Mr. Hare. And you think the bill goes far enough? You are 
comfortable with the bill after taking a look at it?
    Mr. Ishimaru. I think the bill certainly is a solid 
foundation.
    Mr. Hare. Well, again, I just want to thank you and the 
administration for what you have done, because at the end of 
the day, the last I heard that--and what I have been reading is 
that we are all supposed to be created equal, and it doesn't 
exclude anybody. The last time I read it I didn't see any 
ambiguity in that, and so I think what we need to do is move 
down the road.
    And my hope is that we can get this bill signed, and I 
appreciate that--you know, you are taking the time to come and 
applaud our chairman for bringing this hearing back up again 
because this is something I think is incredibly important to 
all Americans, not just to a group of individuals that we are 
trying to help here. But to leave anybody behind does not 
reflect what I believe where we are as a nation. So I just want 
to thank you.
    Thank you, Mr. Chairman.
    Chairman Miller. Thank you.
    Ms. Clarke?
    Ms. Clarke. Thank you very much, Mr. Chairman. Many of my 
questions have really been asked and answered, but I would like 
to associate myself with the comments and the sentiments 
expressed by my colleagues, Chairman Frank, and Congresswoman 
Baldwin. You know, I am relatively a new member here. I have 
been here for 2 years and 8\1/2\ months, and I consider myself 
a 21st century member.
    And the thought of leaving fellow human beings unprotected 
from discrimination based on sexual orientation and gender 
identity seems inhumane. I have just come to that conclusion. I 
have had that conclusion for quite some time, and certainly was 
disappointed when we left transgenders out of the legislation 
when we passed it the first time.
    But I just kind of--it is like being in a time warp 
sometimes, sitting here knowing that a lot of these struggles 
and fights about our humanity and who we are as a people and 
how we become productive as a civil society, that we still 
grapple with those issues today.
    This bill is clearly well thought out, and you have 
answered many of the concerns of my colleagues. I would just 
like to encourage my colleagues to take heart. We are in a 
period of enlightenment. Just by the mere fact that you are 
sitting here today, I think demonstrates that we are moving 
forward and we have moved forward in so many regards to our 
collective humanity.
    And I want to say, for those who would try to find some 
reason to maintain the status quo, it is okay to let it go now. 
We can make this happen.
    Thank you very much, Mr. Chairman.
    Chairman Miller. Thank you.
    Mr. Polis?
    Mr. Polis. Thank you, Mr. Chairman. As a brief statement, 
Colorado is one of 19 states that includes sexual orientation 
as a condition to ban discrimination. We also include gender 
identity and expression, as do 13 other states. And a lot of 
the--you know, the concerns have been raised by people about 
that have not come to pass in either Colorado or the other 
states that have protections based on gender identity.
    This has not been a problem. There has not been issue and 
all the potential issues that people bring up have been dealt 
with and not materialized. There has been no substantial issue 
with frivolous lawsuits, with defining what constitutes gender 
identity.
    You don't find people that are claiming to be transgendered 
when they are not. You don't find issues with bathrooms. You 
don't find issues with any of the issues that--that have been 
raised. And that has been our experience. It has been a very 
positive one in Colorado, a very mainstream state, as well as 
the other states that have implemented this.
    This is an issue. It is a moral issue for our country to 
ensure that every American has the opportunity to succeed, 
regardless of their race, their gender, their sexual 
orientation, their gender identity, their religion. They have 
the opportunity to succeed in this country, to succeed based on 
their merits.
    It is also an efficiency issue. Our country as a whole, our 
economy, suffers from discrimination. Discrimination, quite 
simply put, is inefficient. It means that somebody who is 
second-best or third-best fills a position rather than the best 
candidate, because the employer discriminates based on criteria 
that do not affect that person's job in the workplace.
    Our committee has a tremendous opportunity to promote to 
the American people and our colleagues that discrimination is 
simply a by-product of old and dying norms, and it isn't good 
for our society, our economy, or our nation.
    I hope that the tremendous example of our previous 
panelists, Representative Frank, Representative Baldwin, help 
underscore the irrationality of discrimination towards LGBT 
individuals in the workplace. I yield back.
    Chairman Miller. Thank you.
    Ms. Fudge?
    Ms. Fudge. Thank you, Mr. Chairman. First, let me thank 
you, Mr. Chairman, for having this hearing today. I want to 
thank the panelists and those who will testify.
    I want to first say that it is timely that we deal with 
this in this Congress, and I am certainly hopeful that it will 
pass. I am very supportive of this legislation, and coming from 
Ohio, where we have had lots of issues, but we are moving in a 
direction that I think is very positive, in the same direction 
that this Congress is now.
    I just want to implore my colleagues to do the right thing. 
Don't even think about all of the other issues that are raised. 
Do what they know is right. And I think if everybody asks 
themselves, ``What is the proper thing to do?'' they will make 
the right decision and do the right thing and pass this 
legislation. Thank you so much.
    Chairman Miller. Thank you.
    Ms. Chu?
    Ms. Chu. Well, I am proud to be an elected member from 
California, which is one of the 12 states in the nation that 
has passed laws that protect both gay and lesbian and 
transgender workers from employment discrimination, and I am 
very supportive of this legislation as well.
    I would like to ask Mr. Ishimaru, what has been the effect 
of California's passage of this law? Has there been a rash of 
lawsuits or a requirement for separate facilities for 
transgender folks?
    Mr. Ishimaru. Not that I am aware of. It seems that the 
California enforcement agency is able to handle the number of 
cases that come forward. Again, it informs our estimation of 
what might happen if a federal law is passed, but the 
California experience certainly appears to be workable on many 
levels.
    Ms. Chu. Has there been a positive effect of the passage of 
the law?
    Mr. Ishimaru. Well, I think the positive effect in 
California is that people are covered. California has broad 
civil rights coverage. It covers a number of other areas that 
the federal laws across the board don't cover, and that is 
something that the California legislature has done over many 
years. And you know, from my personal point of view, I think 
that is helpful.
    Ms. Chu. Thank you.
    Chairman Miller. Ms. Woolsey?
    Ms. Woolsey. Thank you, Mr. Chairman, and thank you, 
Chairman Ishimaru, because your testimony on behalf of this 
administration is an uplift to most of us. I am proud, and I am 
really relieved to have a president who embraces national 
legislation that protects not only gays and lesbians, but also 
transgender workers.
    As you stated, preventing discriminations on the basis of 
sexual orientation and sexual identity is a matter of basic 
fairness and it makes good business sense. I, too, have a 
district in California where workers are protected, and many 
companies and institutions of higher learning and local 
governments have policies that specifically prohibit 
discrimination against their gay, lesbian and transgender 
workers.
    In my own district, which is the Sixth Congressional 
District just north of the Golden Gate Bridge from San 
Francisco, we have many companies that have policies that make 
it possible for all workers to have an easier time.
    In fact, in the early 1980s I was the human resources 
manager of a startup company that--I was employee number six, 
and 10 years later we had over 800 employees. And of course as 
a human resources person I developed the personnel policy 
manual and our policies, and in--actually it was the late 
1970s--we included sexual orientation in our EEO statement.
    We didn't go so far as to have transgender. I mean, that 
was 29 years ago. I am not sure we even understood that part of 
the need, but had we, we would have. So it is good that you are 
here. It is good that we are going to finally go forward and 
make this real.
    I think I am sort of the cleanup batter here, so I am going 
to ask you if you would repeat one more time why, in your 
opinion, are the protections afforded under Title VII and the 
Civil Rights Act insufficient to protect gays, lesbians and 
transgender workers? I think that is the only argument people 
are going to throw at us, that they daresay it is--so would you 
tell us one more time why we need more?
    Mr. Ishimaru. Well, certainly Title VII by its terms does 
not include sexual orientation or gender identity. There are a 
very limited number of situations where we can get at certain 
issues on the basis of gender. Stereotyping is one of those. 
Certain sexual harassment issues is another, where there is 
same-sex harassment.
    But it is very limited, and the courts have been very clear 
that sexual-orientation discrimination and gender identity 
discrimination as a general matter aren't covered by Title VII. 
And if Congress wishes us to have enforcement power over that, 
it needs to pass a new law thus stating the need for 
legislation.
    Ms. Woolsey. Thank you very much.
    Chairman Miller. Ms. Hirono?
    Ms. Hirono. Thank you, Mr. Ishimaru. My sense is that in 
these kinds of discrimination complaints and cases, it is not 
the easiest thing for the plaintiffs to prevail, and so what 
does--the language of this bill is clear, but on the other 
hand, can the employer meet its burden by saying, ``I did not 
take the action based on this discriminatory action, but for 
some other purposes,'' and meet their burden?
    Mr. Ishimaru. Well, certainly the framework of this 
legislation follows Title VII, and under Title VII the employee 
has the burden of proof, the initial burden of proof. And if 
they are able to meet that it is just to the employer, the same 
standards would apply here.
    We would anticipate not a different standard, but the same 
standard that employees and employers have used now for 45 
years, so we think a workable standard. We think it is a fair 
standard. We think over time both the courts, and the Congress 
when it has considered amendments to Title VII, has found a 
balance to be workable.
    Ms. Hirono. Yes, and when the burden shifts back to the 
plaintiffs or the complainant, that is a pretty high burden to 
show, right, for them, that it really was based on the 
discriminatory provision and not some other legitimate reason.
    Mr. Ishimaru. It is certainly a high burden. It is not an 
insurmountable burden, but it is a high burden. And sometimes 
people make it, sometimes they don't.
    Ms. Hirono. So the concern that this could lead to a 
plethora of all kinds of actions, I think is really, you know 
we need to understand how things actually operate in court or 
in the hearing process to come to the conclusion that that in 
fact would not be the case.
    Mr. Ishimaru. Certainly our experience in other areas 
covered by Title VII shows that it is difficult to win.
    Ms. Hirono. Thank you.
    Yield back.
    Chairman Miller. Ms. Titus?
    Ms. Titus. Thank you, Mr. Chairman. I am pleased to say 
that Nevada is one of the 21 states that has a non-
discrimination statute with regards to employment. I am happy 
to have been a co-sponsor of that. It doesn't include gender 
identity however, so we have a ways to go.
    As I look at the statistics for Nevada, I see that some of 
the private sector is doing better than the public sector. 
Raytheon is in support of this, Harrah's is in support of it, 
but local governments and the universities don't have policies 
in place, and the state has a number of cases--just last year a 
teacher was fired. Could you comment on how the state could do 
a better job, or kind of how you see Nevada, maybe if you are 
familiar with our situation?
    Mr. Ishimaru. I am not familiar with the exact situation in 
Nevada, but certainly, you know, there have been some states 
who have provided this type of protection. It varies from state 
to state to how well the protections work, and in the private 
sector, again, it is a mixed bag of how it is working.
    Many companies have taken steps to provide anti-
discrimination protections for people, both on the basis of 
sexual orientation and gender identity, but it is something 
that cries out, I think, for a federal response across the 
board so you don't have a patchwork around the country.
    Chairman Miller. Thank you. Thank you very much for your 
time and your testimony and your expertise, and we look forward 
to working with you as we advance this legislation. Thank you.
    With that, I would like to call our third panel, and if 
they would come forward, please, and we will put the nameplates 
at the table.
    Our first witness will be, of this panel, will be Vandy 
Beth Glenn, who worked as an editor of the Office of 
Legislative Counsel, the Georgia General Assembly, a job which 
required her to edit bills and resolutions during the annual 
legislative session. She received her B.A. from the University 
of Georgia.
    Camille Olson is a partner of labor, an employment attorney 
at Seyfarth Shaw in Chicago, Illinois. Her 20 years of 
practice, Ms. Olson has represented companies nationwide in all 
areas of labor and employment law, including employment 
discrimination. Ms. Olson received her B.A. and J.D. degree 
from the University of Michigan.
    William Eskridge, Jr. is a law professor at Yale Law 
School. He has written a leading casebook on statutory 
interpretation as well as an authoritative treatise on sexual 
orientation in the law. In 2003 he offered a legal brief for 
the conservative Cato Institute in the landmark gay--gay rights 
case of Lawrence v. Texas, and Justice Kennedy cited Professor 
Eskridge's historical research in the court's majority opinion, 
striking down Texas' discriminatory, anti-gay laws.
    Professor Eskridge received his B.A. from Davidson College 
and M.A. from Harvard University and a J.D. from Yale Law 
School.
    Bradley Sears, the Executive Director of the Williams 
Institute on sexual orientation law and public policy at the 
UCLA School of Law, a think-tank dedicated to promoting legal 
scholarship, public policy analysis, and education programs on 
sexual orientation law.
    After law school, Professor Sears received funding to 
create the HIV legal checkup project, a legal services program 
dedicated to empowering people living with HIV to address and 
prevent legal problems. The following year he served as 
discrimination and confidentiality attorney for HIV Legal 
Service Alliance of Los Angeles.
    Craig Parshall is the Senior Vice President of the General 
Counsel of the National Religious Broadcasters. He represents 
an association of legislative, regulatory and constitutional, 
excuse me, he represents the association in legislative, 
regulatory and constitutional issues that implicate religious 
liberty, free speech and freedom of the press in the Christian 
broadcasters and communicators.
    Prior to working at the National Religious Broadcasters, 
Mr. Parshall practiced law in the areas of constitutional 
rights and civil liberties, with a particular focus on freedom 
of religion and employment law. He received his B.S. degree 
from Carroll College and a J.D. from Marquette University.
    Rabbi David Saperstein is the Director and Counsel of the 
Religious Action Center of Reform Judaism. Prior to his 
position, Rabbi Saperstein headed several national religious 
coalitions and was elected the first chair of the U.S. 
Commission on International Religious Freedoms in 1999.
    Most recently he was appointed by President Barack Obama as 
a member of the first White House Council on faith-based and 
neighborhood partnerships. Rabbi Saperstein received his B.S. 
from Cornell University and J.D. from American University and 
his MHL Rabbinic organization--Ordination, excuse me--from 
Hebrew Union College.
    Welcome. After those introductions, I am going to take a 
break here--no, thank you. As you can see, Ms. Glenn, we are 
going to begin with you. When you start, a green light will go 
on. You will have 5 minutes to summarize your testimony.
    Continue in the way that you are most comfortable doing 
that. When the orange light goes on, you have 1 minute to sort 
of sum up. And the red light, we ask you to wrap up.
    As you can see, members have a number of questions to be 
asked. So welcome to the committee. Thank you for joining us, 
and we look forward to your testimony.

                 STATEMENT OF VANDY BETH GLENN

    Ms. Glenn. Thank you.
    Chairman Miller. We need your microphone on. Thank you.
    Ms. Glenn. Thank you for the opportunity to testify today. 
In fall of 2005 I landed my dream job. After serving as a naval 
officer for 4 years, I held several jobs that didn't appeal to 
me very much. Then a friend told me that the Georgia General 
Assembly had an opening for an editor in the Office of 
Legislative Counsel, editing bills and resolutions for the 
annual legislative sessions.
    The job was a perfect fit for me. I have a journalism 
degree from the University of Georgia and a background in 
writing and editing and the new position allowed me to do what 
I love, working with words. Also, I am a Georgia native, and I 
jumped at the chance to work under the gold dome, playing a 
part in the legislative mechanism in my home state.
    I loved the intensity of working 12-and 14-hour days with 
the other editors during the sessions, preparing bills for 
passage. When the General Assembly hired me, I was still living 
as a man. Since I was a kid growing up in Atlanta, I had known 
two things for sure. One was that I had an overwhelming 
awareness that I was a girl, and the other was that I had to 
keep that a secret.
    And so I kept my true gender identity to myself, confiding 
only in a handful of people over the course of decades and 
doing my best to build a life as a man. But I couldn't ignore 
the truth forever, and my awareness that I am a woman never 
wavered. As I got older I finally began to imagine a life where 
I could at last be myself.
    I was lucky. When I told my friends and family that I am 
transgender, all of them accepted me, and I found a supportive 
community in Atlanta. I even told my direct supervisor at the 
General Assembly that I was beginning in the process of gender 
transition, and she, too, was supportive and sympathetic.
    In the fall of 2007, after I had worked at the Office of 
Legislative Counsel for 2 years, my name change was nearly 
finalized, and I was ready to come to work as Vandy Beth Glenn. 
I told my supervisor that the time had arrived. She in turn 
told her boss, Sewell Brumby, Legislative Counsel and the head 
of my office.
    On the morning of October 16, 2007, Mr. Brumby summoned me 
to his office. He asked me if what he heard was true. Did I 
really intend to come to work as a woman? I told him yes, it 
was true.
    Then Mr. Brumby told me that people would think I was 
immoral. He told me I would make other people uncomfortable 
just by being myself. He told me that my transition was 
unacceptable, and over and over he told me it was 
inappropriate. Then he fired me. I was escorted back to my 
desk, told to clean it out and marched out of the building.
    My editorial skills had not changed. My work ethic had not 
changed. I was still ready and willing to burn the midnight oil 
with my colleagues, making sure every bill was letter-perfect. 
My commitment to the General Assembly, to its leaders and to 
Mr. Brumby had not faltered. The only thing that had changed 
was my gender, and because of that the legislature I had worked 
so hard for no longer had any use for my skills. I was 
devastated.
    After I was fired, I enlisted the assistance of Lambda 
Legal, and in July 2008 they filed suit in federal court on my 
behalf. I am not seeking any money in my lawsuit. I am asking 
for just one thing--to be given my job back. I love that job. I 
can do it well, and I never want another transgender person to 
experience the discrimination I have endured.
    In its legal papers, Georgia's attorneys claim that other 
people's potential prejudices against me were a good enough 
reason to fire me, but several of my co-workers already knew 
that I am transgender and they accepted me. And when the 
state's attorneys asked the judge to dismiss my case, he 
refused, writing that ``the anticipated reactions of others are 
not a sufficient basis for discrimination.''
    I am hopeful that the case will ultimately resolve in my 
favor, but because some judges wrongly exclude transgender 
employees from existing non-discrimination laws, people like me 
have to fight each case from scratch in most parts of the 
country, working to persuade each court to rule in our favor.
    No one should ever get fired for the reason I was fired, 
and no one should have to wonder if the law protects them. 
Transgender workers like me need a federal law that clearly and 
unmistakably bans gender identity discrimination.
    I hope soon that I will be back at my old desk working on 
bills, but no piece of legislation I ever worked on means as 
much to me as the one before you today. We need the Employment 
Non-Discrimination Act.
    [The statement of Ms. Glenn follows:]

                 Prepared Statement of Vandy Beth Glenn

    Thank you for the opportunity to appear here and testify today.
    In the fall of 2005, I landed my dream job. After serving in the US 
Navy for four years, achieving the rank of lieutenant, I held several 
jobs that didn't appeal to me very much. Then a friend of mine told me 
that the Georgia General Assembly had an opening for an editor in the 
Office of Legislative Counsel, editing bills and resolutions during the 
annual legislative session.
    The job was a perfect fit for me: I have a journalism degree from 
the University of Georgia and a background in writing and editing, and 
the new position allowed me to do what I love--working with words. 
Also, I've lived in Georgia for most of my life, and I jumped at the 
chance to work under the ``Gold Dome,'' playing a part in the 
legislative mechanism of my home state. I loved the intensity of 
working 12 or 14-hour days with the other editors during the session, 
preparing bills for passage.
    When the General Assembly hired me, I was still living as a man. 
Since I was a kid growing up in Atlanta, I had known two things for 
sure: one was that I had an overwhelming awareness that I was a girl, 
and the other was that I had to keep that a secret. And so I kept my 
true gender identity to myself, confiding only in a handful of people 
over the course of decades, and doing my best to build a life as a man.
    But I couldn't ignore the truth forever, and my awareness that I am 
a woman never wavered. As I got older, I finally began to imagine a 
life where I could at last be myself. I was lucky: when I told my 
friends and family that I'm transgender, every single one of them 
accepted me, and I found a supportive community in Atlanta. I even told 
my direct supervisor at the General Assembly that I was beginning the 
process of gender transition, and she too was supportive and 
sympathetic.
    In the fall of 2007, after I had worked in the Office of 
Legislative Counsel for two years, my name change was nearly finalized 
and I was ready to come to work as Vandy Beth Glenn. I told my 
supervisor that the time had arrived. She, in turn, told her boss--
Sewell Brumby, legislative counsel and the head of my office. On the 
morning of October 16, 2007, Mr. Brumby summoned me to his office. He 
asked me if what he had heard was true--did I really intend to come to 
work as a woman? I told him yes, it was true. Then Mr. Brumby told me 
that people would think I was immoral. He told me I'd make other people 
uncomfortable, just by being myself. He told me that my transition was 
unacceptable. And, over and over, he told me it was inappropriate. Then 
he fired me. I was escorted back to my desk, told to clean it out, and 
marched out of the building.
    My editorial skills had not changed. My work ethic had not 
changed--I was still ready and willing to burn the midnight oil with my 
colleagues, making sure that every bill was letter-perfect. My 
commitment to the General Assembly, to its leaders, and to Mr. Brumby 
had not faltered. The only thing that changed was my gender--and 
because of that, the legislature I'd worked so hard for no longer had 
any use for my skills. I was devastated.
    After I was fired, I enlisted the assistance of Lambda Legal and, 
in July 2008, they filed suit in Federal Court on my behalf. I'm not 
seeking any money in my lawsuit. I'm asking for just one thing: to be 
given my job back. I love that job. I can do it well. And I never want 
another transgender person to experience the discrimination I've 
endured.
    In its legal papers, Georgia's attorneys claim that other people's 
potential prejudices against me were a good enough reason to fire me. 
But several of my coworkers already knew that I'm transgender, and they 
accepted me. And when the state's attorneys asked the judge to dismiss 
my case, he refused, writing that ``the anticipated reactions of others 
are not a sufficient basis for discrimination.''
    I'm hopeful that the case will ultimately resolve in my favor. But 
because some judges wrongly exclude transgender employees from existing 
nondiscrimination laws, people like me have to fight each case from 
scratch in most parts of the country, working to persuade each court to 
rule in our favor. No one should ever get fired for the reason I was 
fired, and no one should have to wonder if the law protects them. 
Transgender workers like me need a federal law that clearly and 
unmistakably bans gender identity discrimination.
    I was proud to serve my home state of Georgia with a red pen in my 
hand. I hope that soon I'll be back at my old desk, making sure the i's 
are dotted and the t's are crossed on every bill. But no piece of 
legislation I ever worked on means as much to me as the one before you 
today. We need the Employment Non-Discrimination Act.
                                 ______
                                 
    Chairman Miller. Thank you.
    Ms. Olson, you are recognized for 5 minutes.

   STATEMENT OF CAMILLE A. OLSON, PARTNER, LABOR EMPLOYMENT 
                  ATTORNEY, SEYFARTH SHAW LLP

    Ms. Olson. Thank you. Good morning. Thank you, Chairman 
Miller----
    Chairman Miller. I think your microphone is, I don't think 
on.
    Ms. Olson. Thank you again. Good morning. Thank you, 
Chairman Miller, ranking member Kline, and members of the 
committee. My name is Camille Olson, and I am a partner with 
Seyfarth Shaw, a national law firm.
    I am chairperson of its national complex discrimination 
litigation practice group, and I also regularly teach equal 
employment opportunity law in my hometown of Chicago, Illinois 
at Loyola University School of Law.
    I practice and focus on representing employers to ensure 
that their policies and practices comply with equal employment 
opportunity and non-harassment policies in their workplaces, as 
well as laws.
    I strongly support equal opportunities in employment, and 
in particular, ensuring that employment decisions are based 
upon an individual's qualification for a job and other 
nondiscriminatory reasons. I believe that fair and consistent 
application of workplace policies and practices is also 
instrumental to an employer's success as an employer of choice 
in the community.
    My testimony that I bring to you today is a summary of my 
legal analysis of certain provisions of H.R. 3017. It is 
brought to you to highlight some practical uncertainties that I 
see with its current language.
    My testimony is provided in the hopes that it will result 
in some clarifications of certain provisions of ENDA for the 
benefit of employees as well as employers, by minimizing 
confusion and by minimizing litigation over the meaning of 
certain of its provisions, and also by enabling employers to 
conform with congressional intent as expressed through ENDA's 
plain language.
    The changes in the current version of ENDA, which is before 
us today, demonstrate significant examination and debate that 
has taken place over a number of years concerning the extension 
of protections in employment to individuals on the basis of 
their sexual orientation and their gender identity.
    Indeed, my written testimony goes through and catalogues a 
number of those changes which help provide significant, very 
helpful clarifications so that employers and employees 
understand their obligations under the act.
    My written testimony, as I mentioned, also highlights six 
different areas where I believe there is some uncertainty in 
the current language which could benefit from further 
clarification. That testimony is divided into two different 
sections.
    First, three areas of clarification with respect to general 
issues under ENDA, and then three areas of clarification with 
respect to issues that result primarily with respect to issues 
of gender identity; let me just summarize very briefly what 
those six areas are.
    In terms of the general areas, and some of these have been 
discussed earlier today when you heard my name, ENDA should be 
clarified to eliminate the possibility of a double recovery for 
claims under Title VII and ENDA based on a common set of facts.
    This is because, as set forth in detail in my testimony, 
some courts have recognized that conduct based on sex-
stereotyping may be actionable under Title VII, issues that 
would also be actionable under ENDA.
    Even the complicated issues inherent in certain gender 
discrimination issues ENDA has been drafted as a standalone 
bill as opposed to an amendment to Title VII, to address 
specific issues specific to gender identity claims. Therefore, 
I believe it is most appropriate to deal with those there.
    The second general issue of clarification is an issue that 
was raised as well earlier, which is the issue of disparate 
impact claims. As I mention in my testimony on page 11, the 
issue I am raising is not whether in fact disparate impact 
claims are actionable under ENDA; it is clear that disparate 
treatment claims are actionable.
    ENDA makes clear that disparate impact claims are not 
actionable under ENDA. The point that I make in my testimony 
and that I would ask that you to address in connection with 
clarification of the bill, is to provide a statutory definition 
or a reference for the term disparate impact to relate back to 
Title VII, which is the most well-known definition of disparate 
impact, the one that is quoted with respect to all of the 
discrimination laws.
    Let me just mention that the other issues that I would like 
to note is the issue of attorney's fees. I think it has been 
described by Congresswoman Biggert today, and given my little 
bit of time here, I will just note that I described it quite 
distinctly in terms of my written testimony.
    On the specific provisions requiring clarification, I would 
like to mention two in particular. ENDA has two provisions, 
Sections 8(a)(3) and 8(a)(5) that require employers to modify 
their existing employment practices under certain 
circumstances.
    These two provisions relate to a shared facility where 
being seen unclothed is unavoidable and number two, with 
respect to company policies regarding grooming and dress issues 
in the workplace.
    There are a couple of issues that need to be defined. The 
issue of what is notice, the issue of what does it mean to have 
undergone or to be undergoing gender transition. That is the 
phrase that is undefined by ENDA and in connection with the 
various case law, as well as the literature, is defined as a 
process that may include a variety of steps.
    It is critical that employees and employers understand what 
in fact are the notice requirements and what in fact does that 
mean?
    And then two issues which really do raise cost issues and 
issues regarding immediate answers that have to--I really 
believe we can't leave it to the EEOC to describe what 
congressional intent is.
    It is the issue of certain shared facilities and whether 
those include restrooms where being enclosed is something that 
is unavoidable. And the second issue is ENDA specifically 
states that an employer is not required to construct new 
facilities, and the question is, is an employer required to 
modify facilities to comply with ENDA?
    Thank you very much.
    [The statement of Ms. Olson follows:]

            Prepared Statement of Camille A. Olson, Partner,
                           Seyfarth Shaw LLP

    Good morning, Chairman Miller, Ranking Member Kline, and Members of 
the Committee. My name is Camille A. Olson, and I am pleased to present 
this testimony addressing H.R. 3017, the Employment Non-Discrimination 
Act of 2009 (``H.R. 3017'' or ``ENDA''). I am a Partner with the law 
firm of Seyfarth Shaw LLP. Seyfarth Shaw is a national firm with ten 
offices nationwide, and one of the largest labor and employment 
practices in the United States. Nationwide, over 350 Seyfarth Shaw 
attorneys provide advice, counsel, and litigation defense 
representation in connection with equal employment opportunities, as 
well as other labor and employment matters affecting employees in their 
workplaces.\1\
I. Introduction
    I am the Chairperson of Seyfarth Shaw's Labor and Employment 
Department's Complex Discrimination Litigation Practice Group. I have 
practiced in the areas of employment discrimination counseling and 
litigation defense for over twenty years in Chicago, Illinois. I am a 
member of both the California and Illinois bars. Members of our firm, 
along with our training subsidiary, Seyfarth Shaw at Work, have written 
a number of treatises on employment laws; advised thousands of 
employers on compliance issues; and trained tens of thousands of 
managers and employees with respect to compliance with their employer's 
policies relating to equal employment opportunities and non-harassment 
in the workplace, as well as the requirements of state and federal 
employment laws. We have also actively conducted workplace audits and 
developed best practices for implementation of new policies addressing 
employer obligations on a company-wide, state-wide, and/or nationwide 
basis (depending on the particular employment practice at issue).
    My personal legal practice specializes in equal employment 
opportunity compliance--counseling employers as to their legal 
obligations under federal and state law, developing best practices in 
the workplace, training managers and supervisors on the legal 
obligations they have in the workplace, and litigating employment 
discrimination cases. I also teach equal employment opportunity law at 
Loyola University School of Law in Chicago, Illinois. I am a frequent 
lecturer and have published numerous articles and chapters on various 
employment and discrimination issues. For example, in 2009 I co-edited 
a book now in its Sixth Edition entitled Guide to Employment Law 
Compliance for Thompson Publishing Group; and, in late 2008 and 2009, 
I, along with other Seyfarth Shaw partners, have conducted numerous 
webinars, teleconferences, and full-day seminars across the country for 
employers and the Society for Human Resource Management on an 
employer's new obligations under the recently passed amendments to the 
Americans with Disabilities Act, 42 U.S.C. Sec. Sec.  12101--12213 
(1994) (``ADA'').\2\ I am also a member of the United States Chamber of 
Commerce's Policy Subcommittee on Equal Employment Opportunity, and I 
am a member of the Board of Directors of a number of business and 
charitable institutions.
II. Summary of Testimony
    Today, I have been invited to discuss with you the impact of the 
Employment Non-Discrimination Act of 2009 in the employment context, 
separate and apart from my relationship with the above-noted 
institutions, clients, and associations. I strongly support equal 
opportunities in employment, and, in particular, ensuring that 
employment decisions are based upon an individual's qualifications for 
a job (including education, experience, and other relevant 
competencies), as well as other legitimate non-discriminatory factors. 
Similarly, I believe that fair and consistent application of workplace 
practices and policies is instrumental to an employer's success as an 
employer of choice in the community.\3\
    My purpose in providing this testimony is not to comment positively 
or negatively on whether this Committee or Congress should enact H.R. 
3017 into law as sound public policy. Rather, my testimony is provided 
as a summary distillation of my legal analysis of certain provisions of 
H.R. 3017,\4\ especially in the context of other federal non-
discrimination in employment legislation, such as Title VII of the 
Civil Rights Act of 1964, as amended, 42 U.S.C. Sec.  2000e et seq. It 
is also provided to highlight certain practical uncertainties sure to 
be faced by employers attempting to comply with its provisions, and by 
employees attempting to understand their rights and obligations under 
ENDA compounded by certain ambiguities in the current language. As 
such, this testimony is provided in the hopes that this information 
will result in clarification of certain H.R. 3017 provisions, as well 
as clarifications for the benefit of employees and employers alike. If 
H.R. 3017 passes; such clarifications would minimize confusion and 
litigation over the meaning of certain provisions, and enable employers 
to conform with congressional intent as expressed through H.R. 3017's 
plain language. This would also better track the protections afforded 
to other protected groups under Title VII, as amended, and related 
federal employment discrimination statutes.
    As drafted, H.R. 3017 clearly provides the following:
     H.R. 3017 prohibits employers from discriminating against 
an individual based on that person's actual or perceived sexual 
orientation or gender identity with respect to employment decisions and 
other terms, conditions, and privileges of employment.\5\
     H.R. 3017 prohibits employers from discriminating against 
employees or applicants by limiting, segregating, or classifying them 
on the basis of their actual or perceived sexual orientation or gender 
identity in a way that adversely affects them.\6\
     H.R. 3017 prohibits employers from discriminating against 
an individual based on the perceived or actual sexual orientation or 
gender identity of a person with whom that person associates.\7\
     H.R. 3017 prohibits employers from retaliating against an 
individual based on the individual's opposition to an unlawful 
employment practice, or for participating in a charge, investigation, 
or hearing.\8\
     H.R. 3017 does not prohibit an employer from enforcing 
rules and policies that do not intentionally circumvent its 
purposes.\9\
     H.R. 3017 does not require an employer to treat an 
unmarried couple in the same manner as a married couple for employee 
benefits purposes.\10\ The term ``married'' as used in H.R. 3017 is 
defined in the Defense of Marriage Act, 1 U.S.C. Sec.  7 et seq.
     H.R. 3017 requires that an employee notify the employer if 
the employee is undergoing gender transition and requests the use of 
shower or dressing areas that do not conflict with the gender to which 
the employee is transitioning or has transitioned. An employer may 
satisfy the employee's request in one of two ways, through either 
providing access to the general shower or dressing areas of the gender 
the employee is transitioning to or has transitioned to; or by 
providing reasonable access to adequate facilities that are not 
inconsistent with that gender.\11\
     H.R. 3017 does not require employers to build new or 
additional facilities.\12\
     H.R. 3017 does not require or permit employers to grant 
preferential treatment to an individual because of the individual's 
actual or perceived sexual orientation or gender identity.\13\
     H.R. 3017 does not require or permit an employer to adopt 
or implement a quota on the basis of actual or perceived sexual 
orientation or gender identity.\14\
     H.R. 3017 allows employers to continue to require an 
employee to adhere to reasonable dress and grooming standards compliant 
with other applicable laws consistent with the employee's sex at birth, 
so long as an employee who has notified their employer that they have 
undergone or are undergoing gender transition is allowed the 
opportunity to follow the same dress or grooming standards for the 
gender to which the employee has transitioned or is transitioning.\15\
     H.R. 3017 requires employers to post notices that describe 
its provisions.\16\
     H.R. 3017 would be effective six months following the date 
of its enactment, and it does not apply to conduct occurring prior to 
its effective date.\17\
    However, as drafted, H.R. 3017 creates the following ambiguity and 
uncertainty:
     Whether Title VII and ENDA will provide duplicate causes 
of action for sex stereotyping;
     Whether disparate impact claims are available under ENDA;
     Whether ENDA was intended to provide more robust remedies 
for attorney's fees than those available under Title VII;
     Determining what triggers an employer's affirmative 
obligations with regard to shared facilities and application of its 
dressing and grooming standards;
     Whether ``certain shared facilities'' include restrooms; 
and
     Whether employers are required to modify existing 
facilities.
III. The Employee Non-Discrimination Act of 2009
            A. Existing Protections Against Sex Discrimination in 
                    Employment
    Existing federal employment laws prohibit discrimination on the 
basis of an individual's sex. Under federal law it is unlawful to:
     Discriminate against a person because she is a female;\18\
     Discriminate against a person because he is a male;
     Discriminate against a person because she is pregnant;\19\
     Discriminate against a person by sexually harassing a 
member of the opposite sex based on his or her sex;\20\
     Discriminate against a person by sexually harassing a 
member of the same sex based on his or her sex;\21\ and
     Discriminate against a person due to gender stereotyping 
because of his or her sex.\22\
    No federal law, however, prohibits employers from discriminating 
against employees based on their sexual orientation or gender 
identity.\23\ Courts have recognized the difficulty that they often 
face in determining under Title VII whether certain conduct is 
``because of the individual's sex'' as opposed to their sexual 
orientation or gender identity. For example, the Seventh Circuit Court 
of Appeals has described the various factual settings raised by these 
cases as obligating them to ``navigate the tricky legal waters of male-
on-male sex harassment.''  \24\ As a result, some courts have reached 
inconsistent results as to whether similar factual situations are 
covered by Title VII's prohibition against sex discrimination where 
there is evidence that the discrimination was ``because of * * * sex.'' 
For instance, some courts have found that males who behave femininely 
or who dress in women's clothing are not protected by Title VII, while 
others conclude that they are protected by Title VII.\25\
    A number of jurisdictions have enacted legislation prohibiting 
discrimination based on sexual orientation and/or gender identity. To 
date, twelve states and the District of Columbia prohibit 
discrimination based on gender identity and sexual orientation.\26\ 
Twenty states and the District of Columbia prohibit discrimination 
based on sexual orientation.\27\ The legal obligations imposed by such 
state laws differ from state to state.
            B. Summary of Federal Legislative Efforts to Enact ENDA
    Legislation to prohibit employment discrimination on the basis of 
sexual orientation was first introduced in 1994 before the 103rd 
Congress.\28\ Since then, legislation has been introduced in almost 
every session of Congress to address this topic. In 2007, protections 
on the basis of gender identity were included for the first time.\29\ 
Although hearings were held, the legislation proposed in 2007 did not 
garner enough support for passage by the House. Later that year, 
legislation that included only a prohibition against discrimination on 
the basis of sexual orientation was introduced and passed by the United 
States House of Representatives.\30\
    Many of H.R. 3017's provisions track the language of Title VII, the 
principal equal employment opportunity statute that employers have used 
as their guidepost in developing appropriate policies and practices 
regarding non-discrimination in employment. For example, H.R. 3017 
references existing provisions of Title VII to define certain terms, 
such as employee, employer, and employment agencies; and to reference 
specific enforcement powers, procedures, and remedies.\31\
    The language contained in H.R. 3017 demonstrates the significant 
examination and debate that has taken place over the years concerning 
the extension of protections in employment to individuals on the basis 
of sexual orientation and/or gender identity. Indeed, certain changes 
from the current version as compared to earlier bills reflect an 
understanding of the need to provide clarity in the workplace to ensure 
compliance with the legislation, by carefully describing the 
obligations of employers and employees. Some examples of those earlier 
clarifications that are currently part of H.R. 3017 are set forth 
below:
     ENDA--2007, Section 8(b) specifically allowed states to 
pass a law or establish a requirement impacting employee benefit 
provisions notwithstanding the federal scheme preempting such state 
laws. H.R. 3017 eliminates this language and affirmatively clarifies 
that: ``Nothing in this Act shall be construed to require a covered 
entity to treat an unmarried couple in the same manner as the covered 
entity treats a married couple for purposes of employee benefits.'' 
\32\ Accordingly, ENDA of 2009 preserves the Employee Retirement Income 
Security Act (``ERISA'') preemption of the field of regulation of 
employee benefit plans--an issue that was a source of significant 
concern in 2007.\33\
     ENDA--2007, Section 5 prohibited retaliation against an 
individual for opposing any practice made unlawful by the Act, or 
against an individual who made a charge or who provided testimony under 
the Act.\34\ Given that the concept of retaliation is a well understood 
principle in employment law, legal practitioners suggested that 
language track the language already available under existing laws, to 
minimize confusion and litigation. ENDA--2009 includes revised 
retaliation language that parallels the well established language 
prohibiting retaliation contained in Title VII.\35\
     ENDA--2007, Section 8(a)(1) provided:

          IN GENERAL--Nothing in this Act shall be construed to 
        prohibit a covered entity from enforcing rules and policies 
        that do not circumvent the purposes of this Act, if the rules 
        or policies are designed for, and uniformly applied to, all 
        individuals regardless of actual or perceived sexual 
        orientation or gender identity.\36\

    Practitioners urged drafters to insert the word ``intentionally'' 
before the phrase, ``circumvent the purposes of this Act'' to ensure 
that Section 8(a)(1) would not be used to unintentionally incorporate 
concepts of disparate impact claims into ENDA. H.R. 3017 has been 
revised to include the word ``intentionally.''
     ENDA--2007, Section 17 provided that ENDA would take 
effect sixty days after the date of enactment. H.R. 3017 provides for 
its effective date to be six months after the date of enactment. This 
six-month lead time will be particularly helpful to employers to allow 
sufficient time to make necessary revisions to their policies, 
practices, and procedures. This will also provide adequate time for 
employers to train managers, human resource professionals, and 
employees to ensure compliance with a new federal law.
            C. H.R. 3017 Requires Clarification
    As described in Section III.B. above, H.R. 3017 has clarified 
certain provisions to provide certainty regarding many of the new 
obligations ENDA would impose upon employers. Notwithstanding these 
clarifications, certain ambiguities remain that warrant further 
discussion and analysis. These ambiguities are described below in two 
sections. Section 1 addresses general ENDA points requiring 
clarification. Section 2 addresses specific points with regard to the 
application of specific provisions of ENDA regarding an employer's 
facilities and policies to an employee's gender identity protections, 
and specifically to individuals who have undergone or are undergoing 
gender transition.
               1. general points requiring clarification
    a. Whether Title VII and ENDA Will Provide Duplicate Causes of 
Action for Sex Stereotyping
    ENDA is the only federal legislation, that, if enacted, would 
expressly prohibit discrimination or retaliation on the basis of sexual 
orientation\37\ and gender identity.\38\ While courts have made clear 
that no federal cause of action exists for discrimination on the basis 
of an individual's sexual orientation or gender identity, as noted on 
pages 6-7, supra, some federal courts have inconsistently extended 
Title VII protections to factual situations brought on the basis of 
sex-stereotyping that more accurately involve claims of sexual 
orientation and/or an individual's gender identity.
    If enacted in its current form, these same factual scenarios would 
clearly be actionable under ENDA given its broad definition of gender 
identity. What is sex-stereotyping if it is not discrimination based 
upon an individual's ``appearance, or mannerisms or other gender-
related characteristics * * * with or without regard to the 
individual's designated sex at birth''? \39\ These concepts are 
overlapping, thus, certain factual situations that some courts have 
found actionable under Title VII would most assuredly be actionable 
under ENDA.
    Moreover, with regard to the relationship between ENDA and other 
laws, Section 15 of ENDA specifically provides as follows:
    This Act shall not invalidate or limit the rights, remedies, or 
procedures available to an individual claiming discrimination 
prohibited under any other Federal law or regulation or any law or 
regulation of a State or political subdivision of a state.
    Given this language, it is clear that ENDA, as currently drafted, 
serves only to add protections on the basis of sexual orientation and 
gender identity and that it does not replace any claims that would 
otherwise be actionable under Title VII.
    Yet, such a reading of the two statutes would lead to the 
unintended consequence of a potential dual recovery by a successful 
plaintiff filing claims under both Title VII and H.R. 3017 for the same 
alleged wrongful conduct. As such, it is critical that ENDA include 
language which makes clear that it is the exclusive federal remedy for 
any alleged conduct on the basis of sexual orientation or gender 
identity as those terms have been defined. Accordingly, I urge this 
Committee to carefully consider the interplay between ENDA and Title 
VII to ensure that there is not an unintended duplication of remedies 
and that congressional intent be made abundantly clear in this regard.
    b. Disparate Impact Claims Are Not Available Under H.R. 3017
    Disparate treatment claims are actionable under H.R. 3017.\40\ H.R. 
3017 prohibits intentional discrimination only.\41\
    In contrast, disparate impact claims are not available under H.R. 
3017.\42\ In other words, H.R. 3017 does not provide individuals with a 
remedy for alleged discrimination that is based on a rule or policy 
that does not intentionally circumvent ENDA, so long as the rules and 
policies are applied equally to all individuals regardless of their 
sexual orientation or gender identity.
    The most familiar statutory definition of a disparate impact claim 
is in Title VII.\43\ Thus, to ensure that disparate impact claims are 
appropriately defined, and properly excluded from ENDA, a reference to 
Title VII's statutory definition of a disparate impact claim should be 
included in ENDA. The current language leaves some ambiguity. For 
example, Section 4(g) of ENDA provides as follows:

          Disparate Impact--Only disparate treatment claims may be 
        brought under this Act.

    Thus, while Section 4(g) is entitled ``Disparate Impact,'' the text 
of the provision does not explicitly prohibit disparate impact claims. 
Rather, the provision instead affirmatively states that only disparate 
treatment claims may be brought under ENDA. Accordingly, this Committee 
should also consider adding a provision that explicitly excludes 
disparate impact claims for sexual orientation and gender identity 
claims to ensure that congressional intent is clear as to the claims 
that are exempted from H.R. 3017.
    c. The Remedies Available Under H.R. 3017 Should Parallel Those 
Available Under Title VII
    H.R. 3017, Section 10(b)(1) specifically provides that the 
procedures and remedies applicable are those set forth in Title VII (42 
U.S.C. Sec.  2000e et seq.). Despite this provision, Section 12 of ENDA 
expands the remedies with respect to attorney's fees for claims arising 
under ENDA beyond those currently available under Title VII. 
Specifically, Section 12 provides as follows with regard to attorney's 
fees:
    Notwithstanding any other provision of this Act, in an action or 
administrative proceeding for a violation of this Act, an entity 
described in section 10(a) (other than paragraph (4) of such section), 
in the discretion of the entity, may allow the prevailing party, other 
than the Commission or the United States, a reasonable attorney's fee 
(including expert fees) as part of the costs. The Commission and the 
United States shall be liable for the costs to the same extent as a 
private person.\44\
    In contrast, Title VII provides as follows with regard to 
attorney's fees:
    In any action or proceeding under this subchapter the court, in its 
discretion, may allow the prevailing party, other than the Commission 
or the United States, a reasonable attorney's fee (including expert 
fees) as part of the costs, and the Commission and the United States 
shall be liable for costs the same as a private person.\45\
    Specifically, H.R. 3017, Section 12, expands the remedies that 
would otherwise be available under Title VII by permitting a prevailing 
party in an ``administrative proceeding'' to recover a ``reasonable 
attorney's fee (including expert fees) as part of the costs.'' Although 
it is unclear who is a ``prevailing party'' under ENDA, employees who 
receive a finding of substantial evidence from the Equal Employment 
Opportunity Commission (``EEOC'') or another administrative agency as 
described in Section 10(a) may arguably be entitled to attorney's fees. 
This is a significant expansion of the remedies available under Title 
VII.
    This inconsistency between ENDA and Title VII would mean that a 
plaintiff who alleges discrimination on the basis of sexual orientation 
or gender identity would be entitled to greater remedies than a 
plaintiff who alleges discrimination on the basis of race, color, 
religion, sex, or national origin. Moreover, other employment 
discrimination statutes, such as the ADA, adopts Title VII's remedies. 
ENDA, in contrast, as discussed, would add new remedies.
    Moreover, the very nature of the investigative proceeding at the 
administrative agency phase demonstrates why an award of attorney's 
fees would not be appropriate. First, EEOC decisions are not considered 
``final orders'' subject to appeal, thus an employer would be deprived 
of its due process rights to contest any such award. In fact, the EEOC 
is not required to provide documented reasons for its decisions. 
Accordingly, an employer may not be provided a written basis for the 
EEOC's decision. Moreover, information submitted at the EEOC phase is 
produced to assist the EEOC in its investigation, and is not subject to 
the Federal Rules of Evidence.
    The second significant departure contained in ENDA as compared to 
Title VII relates to who is granted the authority and discretion to 
grant such awards. As noted above, under ENDA, courts and 
administrative agencies, such as the EEOC, are granted the authority to 
award attorney's fees. In contrast, Title VII appropriately limits the 
authority to grant such remedies to the courts. Courts, and not 
administrative agencies, are best positioned to decide who is a 
``prevailing party'' under the law. Such decisions should be made only 
after careful consideration and review of the admissible evidence as 
presented by both the plaintiff and the employer.
    For these reasons, this Committee should undertake a careful 
examination of Section 12 of ENDA to ensure that the remedies available 
to a plaintiff under ENDA are consistent with provisions under Title 
VII, consistent with H.R. 3017's expressed congressional intent.
    2. specific provisions requiring clarification regarding gender 
                                identity
    Among other protections, H.R. 3017 makes it a violation of federal 
law for an employer to ``discriminate against any individual with 
respect to the compensation, terms, conditions, or privileges of 
employment of the individual, because of such individual's actual or 
perceived sexual orientation or gender identity.'' \46\ With respect to 
transgendered individuals, H.R. 3017 further provides as follows:

          [Section 8(a)(3)] CERTAIN SHARED FACILITIES--Nothing in this 
        Act shall be construed to establish an unlawful employment 
        practice based on actual or perceived gender identity due to 
        the denial of access to shared shower or dressing facilities in 
        which being seen unclothed is unavoidable, provided that the 
        employer provides reasonable access to adequate facilities that 
        are not inconsistent with the employee's gender identity as 
        established with the employer at the time of employment or upon 
        notification to the employer that the employee has undergone or 
        is undergoing gender transition, whichever is later.\47\
          [Section 8(a)(5)] DRESS AND GROOMING STANDARDS--Nothing in 
        this Act shall prohibit an employer from requiring an employee, 
        during the employee's hours at work, to adhere to reasonable 
        dress or grooming standards not prohibited by other provisions 
        of Federal, State, or local law, provided that the employer 
        permits any employee who has undergone gender transition prior 
        to the time of employment, and any employee who has notified 
        the employer that the employee has undergone or is undergoing 
        gender transition after the time of employment, to adhere to 
        the same dress or grooming standards for the gender to which 
        the employee has transitioned or is transitioning.\48\

    Thus, in addition to prohibiting discrimination in employment on 
the basis of gender identity, ENDA places affirmative obligations on 
employers. Specifically, employers are required to adjust their 
policies, practices, or procedures with regard to ``certain shared 
facilities'' and ``dress and grooming standards'' for a subset of 
individuals who have either ``undergone'' or who are ``undergoing'' 
transition to a gender other than their gender at birth.'' \49\ These 
affirmative obligations present unique issues in the workplace that 
merit further consideration and reflection.
    a. What Triggers an Employer's Affirmative Obligation?
    The first issue that requires additional consideration relates to 
the use of the phrases, ``upon notification'' and ``notified the 
employer.'' As an initial matter, it is unclear whether these similar, 
though different, phrases mean the same thing. For the sake of clarity, 
one phrase should be selected and used consistently throughout to avoid 
confusion.
    Second, the terms ``notification'' and ``notified'' are vague terms 
that should be modified to clarify what the employee is required to do 
before an employer's obligations are triggered. For instance, does the 
employee have to notify the employer in writing or does a verbal 
conversation satisfy the employee's obligation to notify? Is the 
employee's own statement sufficient or is it permissible for an 
employer to request confirmation from a third-party professional before 
it is required to amend its policies, procedures, or practices for the 
requesting individual? Are the employer's obligations to modify its 
existing policies triggered immediately upon notification? And if not, 
how soon is the employer required to act? Should the employee be 
required to provide sufficient lead time to allow the employer the 
opportunity to make adjustments as appropriate? And if so, how much 
time is necessary? These questions are not currently addressed in H.R. 
3017.
    b. Who Is Covered by Sections 8(a)(3) and 8(a)(5)?
    Sections 8(a)(3) and 8(a)(5) are applicable to only a subset of 
employees that are otherwise covered under ENDA. Specifically, these 
sections are applicable to those individuals that have ``undergone'' or 
who are ``undergoing gender transition.'' Absent from ENDA, however, is 
a definition of the phrases ``undergone,'' ``undergoing,'' or ``gender 
transition.'' These undefined phrases are particularly problematic 
given that ``gender transition'' is a broad term used to describe a 
combination of social, medical, and legal steps that an individual may 
choose to undergo in their decision to align their bodies with their 
core gender identity.\50\
    For instance, social steps in the process might include asking to 
be referred to by a different name or different pronouns (i.e., ``she'' 
instead of ``he'' or vice versa).\51\ Such steps may also involve an 
employee using clothing or accessories traditionally worn by 
individuals of the sex the employee wishes to be perceived as, or 
taking on mannerisms associated with a particular gender.\52\
    Certain employees may also choose to take medical steps to further 
modify their appearance. Such medical interventions may include 
hormonal therapies and/or surgery to further modify their physical 
appearance or attributes.\53\ Finally, transitioning individuals may 
utilize courts or other agencies to achieve legal recognition of their 
new name and/or gender.\54\ Thus, the term ``gender transition'' 
implicates a wide range of steps that employees may be said to have 
``undergone'' or be ``undergoing.''
    As previously stated, one of the social steps in the gender 
transition process may include the use of clothing, make-up, or 
accessories commonly associated with an individual's true identity 
rather than with his or her gender at birth. As currently written, 
``undergoing'' may be so broadly interpreted as to cover any employee 
who presents in a gender non-conforming manner on a single day.
    Such distinctions on issues that most employers may not fully 
comprehend may be cause for significant concern and confusion in the 
employer community. Thus, defining more specifically those individuals 
who can make requests under Sections 8(a)(3) and 8(a)(5) should be 
clearly defined in ENDA.
    c. Do ``Certain Shared Facilities'' Include Restrooms?
    Section 8(a)(3) implicates a common, yet controversial, issue 
related to transitioning employees. Specifically, which ``certain 
shared facilities'' should transitioning employees use, and when is it 
appropriate for these employees to begin using shared facilities 
designated for members of the ``opposite sex.'' Though entitled 
``Certain Shared Facilities,'' Section 8(a)(3) provides only limited 
guidance on this issue. As written, it applies only to ``shared shower 
or dressing facilities in which being seen unclothed is unavoidable.'' 
\55\ In such shared facilities, an employer who has been notified that 
an employee has or is undergoing gender transition has the following 
two options: (1) to allow the transitioning employee access to the 
shared facilities designated for the gender to which the individual is 
transitioning; or (2) to provide the transitioning employee with 
``reasonable access to adequate facilities'' that are not inconsistent 
with the gender to which they are transitioning.
    Glaringly absent from ENDA, however, is guidance for employers with 
respect to bathrooms or restrooms. Indeed, far more prevalent in the 
workplace than ``shared shower or dressing facilities in which being 
seen unclothed is unavoidable'' are restrooms. The same privacy issues 
that give rise to the use of ``shared showers or dressing facilities'' 
are applicable to some bathrooms where being seen unclothed is also 
unavoidable. Employers should be provided the same flexibility that 
H.R. 3016 provides employers with respect to shared shower or dressing 
facilities by expressly permitting employers to decide which restrooms 
transitioning employees will have access to so long as they are 
permitted ``reasonable access to adequate'' restrooms.
    Moreover, because the definition of ``gender identity'' in H.R. 
3017 is broader than the subgroup of individuals who have or who are 
undergoing gender transition, it should also be clarified to expressly 
state whether an employer has any obligation to allow anyone other than 
transgendered employees access to shared facilities that are designated 
for use by only members of one particular sex. Given that restroom 
accommodations may be perhaps one of the most controversial issues 
employers will be required to face if ENDA is enacted in its current 
form, congressional guidance on this point may be helpful to employers 
who will be required to implement policies, practices, and procedures 
consistent with ENDA.
    d. Are Employers Required to Modify Existing Facilities Under ENDA?
    Section 8(a)(4) of ENDA provides as follows:

          ADDITIONAL FACILITIES NOT REQUIRED--Nothing in this Act shall 
        be construed to require the construction of new or additional 
        facilities.\56\

    Given the language in the text, it is clear that ENDA does not 
require an employer to construct new or additional facilities. Left 
unanswered, however, is whether employers are nonetheless required to 
modify existing facilities. Clarification concerning this issue is 
critical so as to have certainty with respect to the scope of an 
employer's obligations under ENDA.\57\
IV. Conclusion
    In conclusion, I believe that the issues raised herein should be 
considered and addressed as the Committee considers the Employment Non-
Discrimination Act of 2009. Chairman Miller, Ranking Member Kline, and 
Members of the Committee, I thank you for the opportunity to share my 
thoughts with you today. Please do not hesitate to contact me if I can 
be of further assistance in suggesting ways in which to improve ENDA's 
language to ensure that it meets congressional objectives.
                                endnotes
    \1\ I would like to acknowledge Seyfarth Shaw attorneys Annette 
Tyman and Sam Schwartz-Fenwick for their invaluable assistance in the 
preparation of this testimony.
    \2\ The amendments to the ADA are contained in the Americans with 
Disabilities Act Amendments Act, 42 U.S.C. Sec.  12101, et seq. and 29 
U.S.C. Sec.  705 (2008) that became effective January 1, 2009.
    \3\ Seyfarth Shaw is a nationwide employer of over 1650 persons 
providing services through employees primarily engaged to work in seven 
states from coast to coast. Seyfarth Shaw's non-discrimination policy, 
applicable to all employees, states as follows: ``Seyfarth Shaw is 
committed to the principles of equal employment opportunity. Firm 
practices and employment decisions, including those regarding 
recruitment, hiring, assignment, promotion and compensation, shall not 
be based on any person's sex, race, color, religion, ancestry or 
national origin, age, disability, marital status, sexual orientation, 
gender identity or expression, veteran status, citizenship status, or 
other protected group status as defined by law. Sexual harassment or 
harassment based on other protected group status as defined by law is 
also prohibited.''
    \4\ My testimony addresses issues under H.R. 3017 generally, as 
they apply to private sector employers. It does not specifically 
address H.R. 3017's provisions relating to religious organizations 
(Section 6), to the armed forces (Section 7), or to local, state, or 
federal governments (Section 3(a)(4)((b-d)).
    \5\ H.R. 3017, Section 4 (a)(1).
    \6\ H.R. 3017, Section 4(a)(2).
    \7\ H.R. 3017, Section 4(e).
    \8\ H.R. 3017, Section 5.
    \9\ H.R. 3017, Section 8(a)(1).
    \10\ H.R. 3017 Section 8(b).
    \11\ H.R. 3017, Section 8(a)(3).
    \12\ H.R. 3017, Section 8(a)(4).
    \13\ H.R. 3017, Section 4(f)(1).
    \14\ H.R. 3017, Section 4(f)(2).
    \15\ H.R. 3017, Section 8(a)(5).
    \16\ H.R. 3017, Section 13.
    \17\ H.R. 3017, Section 17.
    \18\ See Title VII of the Civil Rights Acts of 1964, 42 U.S.C. 
Sec.  2000e et seq. (``Title VII''); see also The Equal Pay Act of 
1963, 29 U.S.C. Sec.  206(d) et seq.
    \19\ See Pregnancy Discrimination Act of 1978, amending Title VII 
Sec.  2000e(k).
    \20\ See Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986).
    \21\ Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 
(1998) (male employee alleging he was sexually harassed by his male 
supervisor and two male co-workers, none of whom were alleged to be 
gay, alleges same-sex sexual harassment which is a violation of Title 
VII).
    \22\ Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (female 
employee alleging she was denied a promotion as a result of being 
described as being ``macho,'' ``overcompensating for being a woman,'' 
and being given advice to ``take a course at charm school,'' and ``walk 
more femininely, talk more femininely, dress more femininely, wear 
make-up, have her hair styled, and wear jewelry'' in order to improve 
her chances for promotion stated a cause of action under Title VII for 
sex discrimination because she did not conform to the stereotypes 
associated with being a woman).
    \23\ See, e.g., Hamner v. St. Vincent Hosp. & Health Care Ctr., 
Inc., 224 F.3d 704 (7th Cir. 2000) (the protections of Title VII do not 
permit claims based on an individual's sexual orientation); Etsitty v. 
Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) (employer did not 
violate Title VII when it terminated a transgendered employee finding 
that discrimination against a transsexual is not ``discrimination 
because of sex'').
    \24\ See, e.g., Hamm v. Weyauwega Milk Prods., Inc. 332 F.3d 1058, 
1061 (7th Cir. 2003) (sexual orientation not covered by Title VII).
    \25\ Compare Etsitty, 502 F.3d 1215 (10th Cir. 2007) (employer did 
not violate Title VII when it terminated a transgendered employee 
finding that discrimination against a transsexual is not 
``discrimination because of sex'') and Smith v. City of Salem, 378 F.3d 
566 (6th Cir. 2004) (concluding a transgender plaintiff could bring a 
claim of sex discrimination claim under Title VII) and Schroer v. 
Billington, 577 F. Supp. 2d 293 (D.C. Cir. 2008) (employer violated 
Title VII when it rescinded an employment offer upon learning the 
employee was transgendered); see also Hamm, 332 F.3d at 1066 (Judge 
Posner's concurring opinion describing case law in this area as having 
``gone off the tracks'' under Title VII) and Nichols v. Azteca Rest. 
Enters., Inc. and The Legacy of Price Waterhouse v. Hopkins: Does Title 
VII Prohibit ``Effeminacy'' Discrimination?, 54 Ala. L. Rev. 193, Fall 
2002, and Sex Stereotyping Per Se: Transgender Employees and Title VII, 
95 Cal. L. Rev. 561, Apr. 2007.
    \26\ These jurisdictions include California, Colorado, Hawaii, 
Illinois, Iowa, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode 
Island, Vermont, and Washington, as well as the District of Columbia.
    \27\ These jurisdictions include those set forth directly above, as 
well as Connecticut, Hawaii Maryland, Massachusetts, Nevada, New 
Hampshire, New York, and Wisconsin.
    \28\ Human Rights Campaign, Timeline: The Employment Non-
Discrimination Act, http://www.hrc.org/issues/workplace/5636.htm (last 
visited Sept. 20, 2009).
    \29\ H.R. 2015.
    \30\ H.R. 3685.
    \31\ See, e.g., H.R. 3017, Section 3 (Definitions--partial); 
Section 4 (Employment Discrimination Prohibited--partial); Section 5 
(Retaliation Prohibited); Section 10 (Enforcement--partial); and 
Section 13 (Posting Notices).
    \32\ H.R. 3017, Section 8(b).
    \33\ Compare H.R. 2015, Section 8(b) with H.R. 3017, Section 8(b).
    \34\ H.R. 2015.
    \35\ Compare H.R. 2015, Section (b) with H.R. 3017, Section 5.
    \36\ Compare H.R. 2015, Section 5 with H.R. 3017, Section 5.
    \37\ Sexual orientation is defined as ``homosexuality, 
heterosexuality, or bisexuality.'' H.R. 30l7, Section 3(9).
    \38\ Gender identity is defined as ``the gender-related identity, 
appearance, or mannerisms or other gender-related characteristics of an 
individual, with or without regard to the individual's designated sex 
at birth.'' H.R. 3017, Section 3(6).
    \39\ H.R. 3017, Section 3(6); see also Price Waterhouse, 490 U.S. 
228.
    \40\ H.R. 3017, Section 4(g).
    \41\ H.R. 3017, Section 8(a)(1).
    \42\ Id.
    \43\ 42 U.S.C. Sec.  2000e-2(k).
    \44\ H.R. 3017, Section 12. Attorney's Fees (emphasis added).
    \45\ Title VII Sec.  2000e-5(k). Attorney's Fees; Liability of 
Commission and United States for Costs (emphasis added).
    \46\ H.R. 3017, Section 4(a)(1).
    \47\ H.R. 3017, Section 8(a)(3) (emphasis added).
    \48\ H.R. 3017, Section 8(a)(5) (emphasis added).
    \49\ Id. at Section 8(a)(3) and 8(a)(5).
    \50\ Transgender Visibility Guide: A Note on Transitioning, 
available at http://www.hrc.org/issues/transgender/13105.htm. (last 
viewed Sept. 21, 2009); see also The Transsexual Person in Your Life, 
Responses To Some Frequently Asked Questions/Frequently Held Concerns, 
available at http://www.tsfaq.info/. (last viewed Sept. 21, 2009).
    \51\ Id.
    \52\ Id.
    \53\ Id.
    \54\ Id.
    \55\ H.R. 3017, Section 8(a)(3).
    \56\ H.R. 3917, Section 8(a)(4).
    \57\ If ENDA were clarified to require an employer to undertake 
such affirmative obligations with respect to modification of existing 
facilities, it is critical to also provide guidance on when those 
obligations are triggered and when they must be completed.
                                 ______
                                 
    Chairman Miller. Thank you. Mr. Eskridge?

STATEMENT OF WILLIAM ESKRIDGE, JR., JOHN A. GARVER PROFESSOR OF 
                 JURISPRUDENCE, YALE LAW SCHOOL

    Mr. Eskridge. Thank you, Mr. Chairman. I appreciate your 
invitation for me to appear at these historic hearings. ENDA, 
as you know, would provide remedies for sexual orientation and 
gender identity discrimination in the workplace by state, 
federal and private employers.
    To justify the inclusion of state employees, the Supreme 
Court tells us that Congress must point to examples of state 
discrimination violating or implicating constitutional rights. 
State governments have a long history of discrimination against 
lesbian, gay, bisexual and transgendered or LGBT employees 
because of prejudice and erroneous stereotypes.
    State exclusionary policies took place in the first half of 
the 20th century. Legislatures and officials declared sexual 
and gender minorities unfit for public service because of 
state-endorsed beliefs that they were first, ``degenerate 
persons,''--I am quoting--``who engaged in immoral and illegal 
activities.''
    Second, they were characterized as treacherous and 
predatory, particularly against children. And third, they were 
characterized as disruptive influences who would undermine 
public projects. State discriminatory policies drove most LGBT 
employees into the closet, where they kept their identity a 
secret.
    Between 1945 and 1969, state and federal governments 
conducted campaigns to open the closet door and purge these 
workers from government service. A written statement, which I 
would like to be introduced into the record, provides an 
account of the purges at the federal civil service level and in 
the civil service and public schools of California and Florida.
    Usually without due process, employees were dismissed 
because of their sexual orientation or gender identity. For 
example, Thomas Surock of California lost his state teaching 
certificate and his livelihood based upon an alleged 1962 
admission that he had homosexual tendencies. The state 
authorities took that as per se evidence of immorality and 
predatory proclivities.
    By 1969, these policies were being challenged. Medical 
experts rejected the common stereotypes about homosexuals as 
scientifically baseless, and argued instead that the harmful 
pathology was actually homophobia.
    At the same time, thousands of gay people came out of their 
closets and persuaded colleagues and Americans that their 
private consensual conduct did not merit public censure, that 
LGBT people are trustworthy workers and their presence is not 
disruptive.
    Accepting these arguments, the majority of states now 
provide that state employees should not be subject to 
discrimination because of sexual orientation. And an increasing 
number have reached the same conclusion with regard to gender 
identity.
    But there remains a significant amount of government 
discrimination, in part because many Americans continue to 
believe that such employees are immoral, predatory and 
disruptive. For example, Colorado voters in 1992 overrode state 
and municipal directives prohibiting discrimination in state 
and municipal workplaces.
    The arguments made against job rights for gay people 
included the following, and I am quoting from the official 
ballot materials, ``The homosexual life style is sex-addicted 
and tragic. Homosexuals are diseased and short-lived, and they 
want to recruit children and destroy the family.''
    Even when they are not so explicitly set forth as in the 
Colorado campaign, these anti-gay tropes of immorality, 
predation and disruption still motivate state officials to 
discriminate against sexual and gender minorities.
    Consider my own case. I was denied tenure at the University 
of Virginia's School of Law in 1985 based, in part, upon my 
sexual orientation. Although I was one of the law school's top 
teachers, had written several articles, delivered Congressional 
testimony, and written a path-finding legislation casebook, my 
petition for tenure was rejected based upon the recommendation 
of the appointments committee.
    That recommendation was probably tainted. For one thing, 
the committee chair kept me in the dark about my rights to 
respond to criticisms, and then viciously attacked me when 
senior faculty confronted him about his own neglect.
    Near the end of the process, the chair barged into my 
office and subjected me to a violent tirade that included 
charges of back-stabbing that he said he should have expected 
of a, quote/unquote, ``faggot.''
    Apparently the chair thought that I had complained about 
his neglect, when in fact I remained clueless even as he spat 
on me and called me dirty names. During this tirade, the chair 
never shared with me his committee's criticisms or notice of my 
rights to respond.
    These procedural infractions made a difference in my case, 
because the committee's report to the faculty was, in fact, 
filled with factual misstatements and fabrications. Given the 
name-calling by the chair, the committee's violation of the law 
school's official procedures and the libelous nature of the 
report, I believed that my being gay, even though closeted, 
played an important role in the tenure denial.
    Being gay created the hysterical atmosphere, where I was 
accused of being a troublemaker, for mistakes that the 
committee made. My tenure experience suggests state employers 
still discriminate against sexual and gender minorities for the 
same kinds of reasons that were trumpeted as government 
orthodoxy for most of the 20th century.
    Another lesson of my experience is that discrimination does 
no one any good. Although I was able to relocate at Georgetown 
and then Yale, I was sorry to leave Virginia, where both of my 
grandfathers received their law degrees.
    Conversely, Virginia did itself no good by its treatment of 
me. I think they lost a really good civil procedure and 
legislation teacher, someone who could have and would have, 
provided mentorship to feminist as well as gay students.
    And a scholar, for the record, who has been more cited in 
American law reviews than anyone who, in the history of the 
University of Virginia's Law School, has ever actually gotten 
tenure. The whole process was a waste.
    With ENDA, Congress has an opportunity to take a leadership 
position to prevent some of the waste of human talent that 
occurs when state officials harass or exclude qualified LGBT 
workers who are usually eager, as I was, to contribute to 
public projects.
    Thank you, sir.
    [The statement of Mr. Eskridge may be accessed at the 
following Internet address:]

         http://edlabor.house.gov/documents/111/pdf/testimony/
              20090923WilliamEskridgeWRITTENTestimony.pdf

                                 ______
                                 
    Chairman Miller. Mr. Sears?

STATEMENT OF R. BRADLEY SEARS, EXECUTIVE DIRECTOR, THE WILLIAMS 
  INSTITUTE ON SEXUAL ORIENTATION LAW AND PUBLIC POLICY, UCLA 
                         SCHOOL OF LAW

    Mr. Sears. Good morning, Chairman Miller, and members of 
the committee----
    Chairman Miller. Microphone, please.
    Mr. Sears. Good morning, Chairman Miller, members of the 
committee. Thank you for allowing me to be here. I am Executive 
Director of the Williams Institute, which is a research center 
at UCLA School of Law.
    And today I am here to direct the question of whether there 
has been a widespread pattern of unconstitutional 
discrimination by state government against LGBT employees. This 
finding will help support Congress with its authority to 
provide a private right of action to state employees who suffer 
discrimination.
    My testimony is based on a study that we have conducted for 
the past 12 months. My co-investigators of the study--the 
principal co-investigators--are Nan Hunter, who is Professor of 
Law at Georgetown University Law Center, and Law Fellow Christy 
Mallory. We have also been assisted by 10 law firms and a 
number of scholars.
    Although the report is lengthy, I am going to focus on four 
types of evidence we considered. The first are surveys of LGBT 
employees themselves. The institute has done reviews in the 
past of private and public employees who have been surveyed. 
This time we identified 80 surveys which either completely 
dealt with state and other government employees, or there were 
substantial parts who were government employees, and we could 
identify that part.
    All of these show that when asked, LGBT employees of state 
and local governments report high rates of discrimination in 
hiring and firing and promotion and harassment.
    For example, one of the largest of the studies, completely 
of state employees, was conducted during this past year. It 
surveyed 1,900 employees of state universities and college. 
Thirteen percent reported they had experienced discrimination 
or harassment in the last year alone.
    Second, we collected complaints, administrative complaints, 
from state and local agencies with ordinances or laws that 
currently prohibit sexual orientation and gender identity 
discrimination.
    Although we contacted over 200 agencies, not all of them 
responded. Those that did provided us with 430 complaints. To 
the extent we could tell which were state and which were local 
employees, 265 out of those complaints came from state 
employees.
    Third, we reviewed studies on the difference in wages 
between LGBT employees in state government and their 
heterosexual counterparts. Prior studies in the private sector 
have shown that gay men earn about 8 percent to 23 percent less 
than their heterosexual counterparts. These studies confirm the 
same, that gay men, lesbians and bisexuals earn 8 percent to 29 
percent less in the public sector.
    Fourth, we compiled a set of documented examples of 
discrimination based on sexual orientation and gender identity. 
We collected examples from court cases, from the administrative 
complaints, academic journals, books, newspapers and community-
based organizations. In total, we compiled a set of 300 
specific examples which we believe both document and illustrate 
the type of discrimination that state employees face.
    The record demonstrates that discrimination is widespread 
in terms of quantity, geography and occupation. Geographically, 
every state is represented except North Dakota, which has a 
smaller population. The LGBT employees discriminated against 
were for every branch of government.
    The examples include public employees who help people find 
jobs, in housing, in health care, teachers and professors, 
state troopers and prison guards, judges, bus drivers and tax 
collectors, and even some who work for the DMV.
    In many of these cases, courts have found violations of 
protections of equal rights and free expression and privacy. 
What is missing in all these cases, is any rational reason for 
the adverse employment actions. In none of these cases do the 
employers assert that someone's sexual orientation and gender 
identity impacted their workplace performance.
    The irrationality of the discrimination is vividly 
indicated by the harassment that many of these workers have 
been subjected to. With my apologies to the very limited sense 
of what they are called in the workplace, an officer at a state 
correctional facility in New York, ``pervert'' and ``homo,'' a 
lab technician at a state hospital in Washington, ``dyke,'' an 
employee in New Mexico's juvenile justice system, ``a queer.'' 
The language in the report gets worse from there.
    What is also striking about these examples is the level of 
physical violence that accompanies that verbal harassment. A 
gay employee of the Connecticut State Maintenance Department 
was tied up by his hands and feet. A firefighter in California 
had urine put in her mouthwash, and a transgender correction 
officer in New Hampshire was slammed against a concrete wall. 
When employees complain about this kind of harassment, they 
were often told it was their own making, and no action is 
taken.
    The 308 examples in no way should be taken as a complete 
record of the discrimination against LGBT employees by state 
and local government. First, as I said, a number of the 
administrative agencies, most in fact, did not provide us with 
redacted copies of their complaints.
    Second, many cases settle out of court. Many of the strong 
cases settle before there is any record. Third, LGBT employees 
are often reluctant to pursue their claims because they don't 
want to out themselves further in their community and face 
further discrimination. A report this year by the Transgender 
Law Center found that 15 percent of those who had experienced 
discrimination, only the first 15 percent, went on to file a 
complaint.
    For all these reasons, plus the rest of the research that 
is in our report, we conclude there has been a widespread and 
persistent pattern of unconstitutional discrimination against 
LGBT state and government employees.
    Thank you.
    [The statement of Mr. Sears follows:]

      Prepared Statement of R. Bradley Sears, Executive Director,
                         the Williams Institute

    Good morning, Chairman Miller and members of the committee. I am 
the Executive Director of the Williams Institute, a national research 
center on sexual orientation and gender identity law and public policy 
at UCLA School of Law.
    Today I am here to speak to you about H.R. 3017, the Employment 
Non-Discrimination Act of 2009, which will prohibit employment 
discrimination on the basis of sexual orientation and gender identity. 
Specifically, I am here to address the question of whether there is a 
widespread pattern of unconstitutional employment discrimination on the 
basis of sexual orientation and gender identity by state governments. 
This finding will support Congress in exercising its powers under 
section 5 of the 14th amendment to provide a private right of action 
for damages to state government employees who have suffered 
discrimination.
    My testimony is based on a study conducted over the last twelve 
months by the Williams Institute. My principal co-investigators have 
been Georgetown Law Center Professor Nan Hunter and Williams Institute 
Law Fellow Christy Mallory. We have been assisted by eight law firms 
and a number of scholars from different disciplines in creating a 
report documenting discrimination for each of the fifty states and a 
series of papers summarizing our findings. The full text of the 
completed study will be posted on the Williams Institute web site 
http://www.law.ucla.edu/williamsinstitute/home.html.
    Based on this research, we conclude that there has been a 
widespread and persistent pattern of unconstitutional discrimination by 
state governments. Although additional types of evidence support our 
findings and are discussed in the report, I am going to focus on four 
key sources today.
    First, we reviewed surveys of LGBT people about their experiences 
of discrimination. We identified over eighty surveys in which either 
all or some of the respondents were public sector employees. All of 
these surveys found that significant percentages of LGBT public 
employees reported being fired, denied jobs, denied promotions, or 
harassed in the workplace. For example, one in five LGB public sector 
employees in the 2008 General Social Survey reported being 
discriminated against on the basis of their sexual orientation, and a 
survey this year of over 640 transgender employees (in both public and 
private sectors) found that 70% reported experiencing workplace 
discrimination on the basis of gender identity. Another 2009 survey of 
more than 1,900 LGBT employees of state university systems nationwide 
found that more than 13% had experienced discriminatory treatment or 
harassment during the past year alone.
    When we compare this set of studies to prior reviews that the 
Williams Institute has conducted of employment discrimination surveys, 
we find no difference between the patterns of employment discrimination 
against LGBT people in the public sector and in the private sector, and 
no difference in the patterns of such discrimination against LGBT 
workers in state versus local government agencies.
    Second, we collected data about complaints from state and local 
administrative agencies charged with enforcing prohibitions against 
sexual orientation and gender identity discrimination. Although we 
requested data from twenty state and 203 local agencies, many did not 
respond, even after repeated requests. The agencies that did respond 
provided us with 430 administrative complaints of sexual orientation 
and gender identity discrimination by state and local employers between 
1999 and 2007. Although not all states could provide us with data 
distinguishing between state and local government defendants, at least 
265 of these were filed by employees of state government agencies.
    Additional evidence suggests that many of these complaints of 
discrimination are well-founded. Five states provided us information 
about the dispositions of the claims made by state employees. For four 
of these states, the combined rate of positive administrative outcomes 
for the complaints, such as findings of probable cause of 
discrimination or settlements, averaged 30%. For the fifth state, 
California, 61% of complainants sought an immediate right to sue 
letter, which often indicates they have already found counsel to take 
their cases to court. A review of the dispositions of complaints made 
to local enforcement agencies found a similar rate of favorable 
outcomes.
    Third, we reviewed studies surveying the differences in wages 
between LGB employees and their heterosexual counterparts. If, after 
controlling for factors significant for determining wages such as 
education, a wage gap exists between people who have different personal 
characteristics, such as sexual orientation, economists typically 
conclude that the most likely reason for the wage gap is 
discrimination. More than twelve studies have shown a significant wage 
gap, ranging from 10% to 32%, for gay men when compared to heterosexual 
men. Two recent studies have found similar wage gaps when looking just 
at public employees. Together, the studies find that gay men, lesbians, 
and bisexuals who are government employees earn 8% to 29% less than 
their heterosexual counterparts. Men in same-sex couples who are state 
employees earn 8% to 10% less than their married heterosexual 
counterparts. These studies, too, suggest that sexual orientation 
discrimination in state government is similar to that in the private 
sector and other public employment.
    Fourth, we compiled a set of documented examples of discrimination 
based on sexual orientation and gender identity that further supports a 
finding of a widespread and continuing pattern of unconstitutional 
discrimination by state and local governments. We collected examples 
from court opinions, administrative complaints, academic journals, 
books, newspapers, and community-based organizations. We placed time 
limits on the study in order to test whether such discrimination is 
persistent. In total, we have compiled more than 380 specific examples 
of workplace discrimination, almost all occurring within the last 20 
years.
    This record demonstrates that discrimination is widespread in terms 
of quantity, geography, and occupations. The quantity compares 
favorably to that of past records of public employment discrimination 
supporting civil rights legislation. Geographically, the examples reach 
into every state except North Dakota, which has a smaller population. 
The LGBT employees discriminated against work for every branch of state 
government: legislatures, judiciaries, and the executive branch. The 
examples include public employees who help people find jobs, housing, 
and health care; teachers and professors; state troopers and prison 
guards; judges, bus drivers and tax collectors; and those who work for 
museums and for the DMV.
    In many of these cases, courts have found violations of rights to 
equal protection, free expression, and privacy, as well as the 
impermissible use of sex stereotypes. There are also cases where 
plaintiffs lose, because judges rule that, in the absence a law like 
ENDA, state and federal law do not provide a remedy.
    What is missing in all of these cases is any rational reason for 
the adverse employment action, whether or not the law provides a 
remedy. In none of these cases do employers assert that sexual 
orientation or gender identity impacts an employee's performance in the 
workplace. To the contrary, among the examples of public servants who 
have been discriminated against are a gay faculty member at Louisiana 
State University who had received a Distinguished Service Award; a 
transgender sheriff in Oregon who had received a commendation for 
delivering a baby on the side of a highway, and a lesbian social worker 
in Mississippi who was told she was one of the best employees at her 
center helping mentally disabled children.
    The irrationality of the discrimination is also vividly indicated 
by the harassment that many of these workers have been subjected to. 
With my apologies, here is a very limited sense of what they are called 
in the workplace: an officer at a state correctional facility in New 
York, ``pervert'' and ``homo;'' a lab technician at a state hospital in 
Washington, a ``dyke;'' an employee of New Mexico's Juvenile Justice 
System, a ``queer.'' The language that you can read in the report gets 
worse from there. What is also striking about these examples of 
workplace harassment is the degree to which the words are accompanied 
with physical violence. A gay employee of the Connecticut State 
Maintenance Department was tied up by his hands and feet; a firefighter 
in California had urine put in her mouthwash; a transgender corrections 
officer in New Hampshire was slammed into a concrete wall; and a 
transgender librarian at a college in Oklahoma had a flyer circulated 
about her that said God wanted her to die. When employees complain 
about this kind of harassment, they are often told that it is of their 
own making, and no action is taken.
    These 380-plus documented examples should in no way be taken as a 
complete record of discrimination against LGBT people by state and 
local governments. Based on our research, and on other scholarship, we 
have concluded that these examples represent just a fraction of the 
actual discrimination. First, our record does not even completely 
capture all of the documented instances. For example, of the twenty 
state enforcement agencies we contacted, only six made available 
redacted complaints for us to review. Second, several academic studies 
have shown that state and local administrative agencies often lack the 
resources, knowledge and willingness to consider sexual orientation and 
gender identity discrimination complaints. Similarly, legal scholars 
have noted that courts and judges have often been unreceptive to LGBT 
plaintiffs and reluctant to write published opinions about them, 
reducing the number of court opinions and administrative complaints 
that we would expect to find. Third, many cases settle before an 
administrative complaint or court case is filed. Unless the parties 
want the settlement to be public, and the settlement is for a large 
amount, it is likely to go unreported in the media or academic 
journals. Fourth, LGBT employees are often reluctant to pursue claims 
for fear of retaliation or of outing themselves further in their 
workplace. For example, in a study published this month by the 
Transgender Law Center, only 15% of those who reported that they had 
experienced some form of discrimination had filed a complaint. Finally, 
and perhaps most important, numerous studies have documented that as 
many one-third of LGBT people are not out in the workplace. They try to 
avoid discrimination by hiding who they are.
    In our study, we also considered other forms of evidence of 
employment discrimination besides these, including similar findings 
reached by courts and legal scholars; findings of such discrimination 
by government officials and commissions; the long history of state 
laws, polices, and practices explicitly discriminating against LGBT 
employees, and more recent statements showing animus against LGBT 
people by state and local government officials.
    Based on this research as well as the research I have just 
discussed, we conclude that:
    1. there is a widespread and persistent pattern of unconstitutional 
discrimination against LGBT state government employees, as well as 
against local government employees;
    2. there is no meaningful difference in the pattern and scope of 
employment discrimination against LGBT people by state governments 
compared to what is found in the private sector or in federal or local 
government; and
    3. that the list of documented examples that we have compiled far 
under-represents the actual prevalence of employment discrimination 
against LGBT people by state and local governments.
    Thank you.
                                 ______
                                 

   Documenting Discrimination on the Basis of Sexual Orientation and 
                  Gender Identity in State Employment

Testimony of Brad Sears on ENDA Before the House Committee on Education 
                          and Labor, 9/23/2009

                           executive summary
    1. Estimates of LGBT Workforce
    2. Sovereign Immunity and Section 5 of the 14th Amendment
    3. Constitutional Rights Violated by Employment Discrimination 
based on Sexual Orientation or Gender Identity
    4. Relationship of Sexual Orientation and Gender Identity to 
Performance in the Workplace
    5. The Legacy of State Laws, Policies, and Practices, 1945-Present
    6. Findings of Discrimination by Courts and Legal Scholars
    7. Findings of Discrimination by State and Local Governments and 
Officials
    8. Congressional Record of Employment Discrimination on the Basis 
of Sexual Orientation or Gender Identity by Public Employers, 1994-2007
    9. Surveys of LGBT Public Employees and Their Co-Workers
    10. Analysis of Wage Gap between LGB Public Employees and Their Co-
Workers
    11. Administrative Complaints on the Basis of Sexual Orientation 
and Gender Identity
    12. Specific Examples of Employment Discrimination by State and 
Local Governments
    13. Voter Initiatives to Repeal or Prevent Laws Prohibiting 
Employment Discrimination on the Basis of Sexual Orientation or Gender 
Identity, 1974-Present
    14. Other Indicia of Animus against LGBT People by State and Local 
Government Officials, 1980-Present
    15. Analysis of State Laws and Executive Orders Prohibiting 
Employment Discrimination on the Basis of Sexual Orientation and Gender 
Identity

                                                   APPENDICES
                                               [50 State Reports]
----------------------------------------------------------------------------------------------------------------
                                                      State
----------------------------------------------------------------------------------------------------------------
           Alabama                 Hawaii          Massachusetts             New Mexico           South Dakota
            Alaska                  Idaho               Michigan               New York              Tennessee
           Arizona               Illinois              Minnesota                 North Carolina          Texas
          Arkansas                Indiana            Mississippi           North Dakota                   Utah
                  California         Iowa               Missouri                   Ohio                Vermont
                  Colorado         Kansas                Montana               Oklahoma               Virginia
                  Connecticut    Kentucky               Nebraska                 Oregon             Washington
          Delaware              Louisiana                 Nevada           Pennsylvania          West Virginia
           Florida                  Maine          New Hampshire           Rhode Island              Wisconsin
           Georgia               Maryland             New Jersey                 South Carolina        Wyoming
----------------------------------------------------------------------------------------------------------------

                          note from committee
    Because of the size of this document, including its appendices of 
reports on each of the 50 states, ``Documenting Discrimination on the 
Basis of Sexual Orientation and Gender Identity in State Employment'' 
is not reprinted here in its entirety. However, this document is part 
of this hearing's record, is hereby incorporated in its entirety by 
reference, and is kept on file with the Committee on Education and 
Labor, where it shall be made available for public inspection upon 
request.
                                 ______
                                 
    Chairman Miller. Thank you.
    Mr. Parshall?

STATEMENT OF CRAIG PARSHALL, SENIOR VICE PRESIDENT AND GENERAL 
            COUNSEL, NATIONAL RELIGIOUS BROADCASTERS

    Mr. Parshall. Thank you, Chairman Miller, ranking member 
Kline and members of the committee. I am Craig Parshall, Senior 
Vice President and General Counsel of National Religious 
Broadcasters.
    We oppose H.R. 3017, ENDA. It is my considered opinion that 
ENDA, if passed into law, would impose a substantial and 
crippling burden on religious organizations. Now, while we are 
a non-profit association representing a wide number of 
Christian radio, Christian television and Christian Internet 
broadcasters, we also represent a wide variety of Christian 
ministries that are not directly involved in broadcasting, and 
my written testimony, which I ask to be received into the 
record here, outlines the breadth of those organizations.
    That, I think, gives us a very unique view of the collision 
between ENDA and the religious liberties of Christian 
ministries. Now, looking at Section 6, which purports to 
provide an exemption for religious groups, it is my opinion 
that unfortunately, the so-called protection may be more of a 
mirage than a reality.
    What it does is Section 6 simply shifts the inquiry back to 
what they call the ``religious discrimination'' provisions of 
Title VII. So to the extent supposedly that an organization 
would be exempted under Title VII, it would supposedly be 
exempted under Section 6.
    However, Title VII does not exempt religious groups from 
gender discrimination suits, or for any other category of 
alleged discrimination other than those categories that are 
narrowly and strictly defined as based on ``religion.''
    Now courts that would apply Section 6 of ENDA if it is 
passed into law will be tempted, I believe, to conclude that 
sexual orientation or gender identity are categories similar to 
gender or sex under Title VII, and therefore religious groups, 
regardless of the language of Section 6, will not get a pass 
under Section 6 of ENDA.
    But even aside from this threshold problem, I see 
additional problems. And that is, by bootstrapping Title VII's 
religious exemption language into ENDA, Section 6 subjects 
religious organizations to a crazy quilt of inconsistent court 
decisions that have been laid down over the years regarding 
religious exemption under Title VII.
    The case law is such that it renders insufficient religious 
freedom to faith groups in past cases, and has sent really a 
chilling pall over their activities, not to mention their 
budgets. I will just mention two cases, non-school cases.
    One was the Townley case in the Ninth Circuit, where a 
small, closely held manufacturing shop, owned by a Christian 
owner--he had a Christian world view that he wanted to permeate 
the workplace, so he encouraged Bible study and other 
activities. He was sued, and he lost because he was held not to 
qualify as a ``religious corporation.''
    Then we have a Methodist orphans' home that was dedicated 
to instilling in orphan children Christian beliefs. That, in a 
Virginia case, was held not to be qualified as a religious 
corporation.
    Next, we look at the legal tests that the courts have 
employed, and unfortunately they are complex and discordant. 
The Ninth Circuit has employed a complicated six-factor test. 
The Third Circuit has employed an even more complex nine-factor 
test. The Ninth Circuit has construed the religious exemption 
narrowly under Title VII, Third Circuit has not.
    I think that the religious exemption in Section 6 of ENDA 
would be given a very narrow, cramped interpretation by the 
courts. In addition, I believe that for-profit faith-based 
groups, and by the way, we have about 200 radio stations that 
are Christian, thoroughly Christian, in nature in our 
association, but are not non-profit. These, I believe, will be 
denied any exemption at all because the language in Title VII 
has been imported directly into Section 6 of ENDA.
    The resulting court interpretations involving schools, 
religious schools, have been just as dismal in their result as 
the cases that I have mentioned. I think under ENDA schools 
would meet the same fate, unfortunately.
    Christian ministries who are members, as an example, object 
to the sexual preferences that they believe are in clear 
violation of the Bible, are standing on a long and well-worn 
road. The doctrines are prescribed, they believe, in both the 
Old and New Testament. They have endured for several thousand 
years.
    Now the rights to preach and practice that belief spring 
from a bill of rights that is 220 years old, and that is based 
in part on English Common Law that goes back hundreds of years 
before that. We urge this committee not to jettison the 
paramount rights of people of faith for a newly invented 
privilege that has been debated for the last few decades.
    If that does happen here, I firmly believe it means we have 
set ourselves on a very dangerous path, a radical departure 
from the basic religious liberties for which our founders 
risked their lives, their fortunes and their sacred honor.
    Thank you.
    [The statement of Mr. Parshall follows:]

  Prepared Statement of Craig L. Parshall, Senior Vice-President and 
            General Counsel, National Religious Broadcasters

    I am Craig Parshall, Senior Vice-President and General Counsel for 
National Religious Broadcasters. I am appearing today to voice the 
opposition of my organization, NRB, to H.R. 3017, the Employment Non-
Discrimination Act of 2009. It is my considered opinion that H.R. 3017, 
if passed into law, would impose a substantial and crippling burden on 
religious organizations, both those who are non-profit groups, as well 
as faith-based institutions and enterprises which operate commercially.
    NRB is the pre-eminent association representing the interests of 
Christian television, radio and Internet broadcasters who proclaim a 
Gospel-orientated message. Our organization also includes in its 
membership Christian groups not directly engaged in broadcasting 
activities but which are involved in activities which provide support 
services specifically to religious broadcasters such as public 
relations agencies and law firms with an emphasis on media law. Our 
membership also includes communications-related organizations, such as 
Christian publishing companies, churches with a media outreach, 
Christian programmers, preaching and teaching ministries and faith-
based charity organizations. NRB also has among its membership well 
over a dozen Christian colleges and Bible schools. Thus, the wide 
variety of Christian organizations comprising our membership provides 
National Religious Broadcasters with a unique view of the potential 
collision between H.R. 3017 and the religious liberties or faith-based 
organizations.
H.R. 3017's Religious Exemption Provision may well be a Mirage
    H.R. 3017 prohibits employment discrimination regarding the 
``actual or perceived sexual orientation or gender identity'' of any 
person. Sec. 6 purports to provide an exemption for ``a corporation, 
association, educational institution, or society that is exempt from 
the religious discrimination provisions of title VII of the Civil 
Rights Act * * *'' (hereinafter Title VII). Thus, Sec. 6 shifts the 
inquiry back to the ``religious discrimination provisions'' of Title 
VII. However, H.R. 3017 does not define what it means by the phrase 
``religious discrimination provisions'' of Title VII. One likely 
interpretation, though by no means exclusive, is that the phrase would 
be construed to mean ``discrimination on the basis of religion.'' See: 
E.E.O.C. v. Mississippi College, 626 F.2d 477, 484 (5th Cir. 1980). The 
current state of the law is that organizations can be exempted from the 
operation of Title VII only regarding adverse employment decisions 
which are made ``on the basis of [the] religion'' of the plaintiff; 
however, generally speaking, Title VII grants no exemption for 
religious organizations whose actions are held to implicate 
discrimination on the basis of the ``race, color, sex or national 
origin'' of the plaintiff, regardless of the alleged religious 
motivations of the religious organization. Id.
    This distinction is critical: for it is more than feasible that 
future courts could construe the adverse decisions of faith-based 
groups regarding non-hiring of homosexuals, as an example, as being 
more akin to discrimination based on ``race * * * [or] sex'' than 
discrimination ``on the basis of religion.'' An even stronger argument 
might be made that ``gender identity'' discrimination by a religious 
organization is tantamount to discrimination based on ``sex'' (a gender 
issue) and therefore, because the religious group does would not 
qualify for exemption under Title VII for sex discrimination, neither 
will it receive exemption for ``gender identity'' discrimination under 
H.R. 3017. The end result would be that the supposed protections of the 
Sec. 6 religious ``exemption'' in H.R. 3017 would prove to be, in the 
end, only a mirage.
    But even aside from the intractable problems of whether the 
wholesale adoption of Title VII religious exemptions into a ``sexual 
preference'' and ``gender identity'' discrimination law actually 
provides any protection whatsoever from a religious liberty standpoint, 
other insurmountable difficulties reside in H.R. 3017.
Sec. 6 Simply Compounds a Crazy Quilt of Inconsistent Court Decisions
    By bootstrapping Title VII's religious exemption language into Sec. 
6, H.R. 3017 subjects religious organizations to a crazy-quilt of 
inconsistent decisions that have been rendered by the courts in 
construing the exemption language of Title VII. This approach will 
stultify and confuse religious groups and lead to endless, expensive, 
and harassing litigation.
    Title VII (42 U.S.C. Sec. Sec.  2000e et seq.) provides in part:

          This title * * * shall not apply to * * * a religious 
        corporation, association, educational institution, or society 
        with respect to the employment of individuals of a particular 
        religion to perform work connected with the carrying on by such 
        corporation, association, educational institution, or society 
        of its activities.

    Unfortunately, Congress ``did not define what constitutes a 
religious organization--'a religious corporation, association, 
educational institution, or society' '' under Title VII. Spencer v. 
World Vision, Inc. 570 F. Supp. 2d 1279, 1283 (W.D. Wash. 2008). As a 
result, ``courts conduct a factual inquiry and weigh `[a]ll significant 
religious and secular characteristics * * * ' '' Id. (citations 
omitted).
    What has resulted is a sad pattern of inconsistent and complex 
decisions which render very scant religious freedom to faith groups but 
which have sent a chilling pall over their activities not to mention 
their budgets: Leboon v. Lancaster Jewish Community Center Association, 
503 F. 3d 217 (3rd Cir. 2007) (Jewish Community Center qualified as a 
religious organization so that its firing of a Christian was non-
actionable under Title VII); but compare: EEOC v. Townley Eng'g & Mfg. 
Co., 859 F. 2d 610 (9th Cir. 1988) (no exemption for small, closely 
held manufacturing shop whose owner had a clearly Christian world view 
and wanted it to permeate the work place). A Christian humanitarian 
organization dedicated to ministering to the needs of poverty-stricken 
children and families around the world was entitled to take adverse 
employment actions against an employee because of that's person's 
religion because it qualified for exemption under Title VII (Spencer v. 
World Vision, Inc., supra); but a Methodist orphan's home dedicated to 
instilling in orphaned children Christian beliefs was held not to be 
qualified as a ``religious corporation * * *'' etc. where it had a 
temporary period of increased secular leadership followed by return to 
its original spiritual mission, Fike v. United Methodist Children's 
Home of Virginia, Inc. 547 F. Supp. 286 (E.D. Va. 1982). Further 
compare: Feldstein v. Christian Science Monitor, 555 F. Supp. 974 (D. 
Mass. 1983) (newspaper covering secular news but with close 
relationship with the Christian Science Church allowed to discriminate 
on basis of religion).
    The legal tests employed by the courts in deciding religious 
exemptions under Title VII are complex and discordant. The 9th Circuit 
has employed a complicated six-factor test. Spencer, supra at 570 F. 
Supp. 2d 1284. Whereas the 6th Circuit has applied an even more complex 
nine-factor test. Id. at 1285-86. In addition, the 9th Circuit has 
construed the religious exemption narrowly, whereas the 3rd Circuit has 
not. Id.
    The chances that the religious exemption in Sec. 6 of H.R. 3017 
would be given a very narrow, cramped interpretation are substantial. 
See: Bob Jones University v. U.S., 461 U.S. 574 (1983) (private 
religious college loses its tax exempt status as a non-profit religious 
corporation because, while it admitted students from all races, it 
restricted inter-racial dating on religious grounds). In Bob Jones 
University the Supreme Court could only muster a meager reference to 
the thoroughly religious school's Free Exercise rights, holding that 
the compelling interest of the government in stamping out 
discrimination outweighed ``whatever burden'' was caused to the 
organization's freedom of religion. Id. at 604. To the extent that 
``sexual preference'' or ``gender identity'' discrimination are likened 
by the courts to racial discrimination, religious organization will 
find little comfort under Sec. 6 of H.R. 3017. See also Swanner v. 
Anchorage Equal Rights Commission,------U.S.------, 115 S.Ct. 460 
(1994)(Thomas, J., dissenting) where the Supreme Court declined the 
chance to grant certiorari and to vindicate the rights of a landlord 
successfully sued for state housing discrimination where he refused on 
religious grounds to rent to unmarried couples.
    Title VII grants a separate exemption specifically for religious 
schools. 42 U.S.C. Sec. Sec.  2000e-2 (e)(2) provides exemption for 
such religious institutions provided that they are at least ``in 
substantial part owned, supported, controlled, or managed by a 
particular religion or by a particular religious corporation, 
association, or society * * *'' or where the curriculum ``is directed 
toward the propagation of a religion.''
    But here again the resulting court interpretations there have been 
just as dismal: EEOC v. Kamehameha School/Bishop Estate, 990 F.2d 458 
(9th Cir. 1993), cert. denied, 114 S. Ct. 439 (1993) ( private 
Protestant religious school was denied Title VII religious exemption 
even though it had numerous religious characteristics and activities); 
Pime v. Loyola University of Chicago, 585 F. Supp. 435 (N.D. Ill. 
1984)(Catholic college held not to be entitled to religious exemption 
relating to its preference for Jesuit professors over a Jewish 
professor), reversed on other grounds at 803 F.2d 351 (7th Cir. 
1986)(where Judge Posner noted in his concurrence that, regarding the 
religious exemption issue, ``the statute itself does not answer it,'' 
and ``the legislative history * * * is inconclusive,'' Id. at 357). 
Contrast with: Hall v. Baptist Memorial Care Corp., 215 F. 3d 618 (6th 
Cir. 2000) (Baptist entity training students for health care had 
sufficiently religious overtones to qualify for exemption regarding its 
firing of a lesbian staffer who was a minister at a pro-homosexual 
church).
    On added concern is that H.R. 3017 has adopted wholesale the Title 
VII exemption language for religious schools which applies where the 
school's curriculum is determined to have been ``directed toward the 
propagation of a religion.'' However, this is an intensely intrusive 
and unconstitutional inquiry for any secular court to undertake. A 
school seeking this exemption paradoxically would have to forfeit it 
private religious autonomy, in effect, in order to try to save it. When 
the government exercises an ``official and continuing surveillance'' 
over the internal operations of a religious institution, religious 
freedom under the First Amendment is jeopardized. Walz v. Tax 
Commission of the City of New York, 397 U.S. 664, 675 (1970). A secular 
court may not review a religious body's decisions on points of faith, 
discipline, or doctrine, Watson v. Jones, 80 U.S. 679 (1872), nor may 
it govern the affairs of religious organizations. Serbian E. Orthodox 
Diocese v. Milivojevich, 426 U.S. 696 (1976).
    Broad and adequate exemptions for religious organizations are 
constitutionally imperative. Corporation of the Presiding Bishop v. 
Amos, 483 U.S. 327 (1987) (Title VII religious exemptions are not 
violative of the Establishment Clause). Moreover, where a law is passed 
in the area of employment discrimination, and it fails, as H.R. 3017 
does here, to adequately exempt religious institutions from its grasp 
regarding faith-based employment decisions it violates the Free 
Exercise Clause of the First Amendment. Montrose Christian School Corp. 
v. Carver, Montrose Christian School Corp. v. Walsh, 770 A.2d 111 (Md. 
Ct. App. 2001).
    N.R.B.'s membership includes some 200 Christian radio stations that 
are commercial in their organizational structure. Considering the 
chilly reception such commercial religious entities receive by the 
courts when they are other than non-profit corporations, they can 
expect to be shut out of any exemption under H.R. 3017 in litigation. 
We can add to that list, other of our for-profit members whose mission 
is Christian in nature but who will be denied exemption: Christian 
publishers, religious media consulting groups and agencies. Also, food 
vendors who work exclusively with Christian schools may be denied 
exemption; Christian bookstores, adoption agencies, counseling centers 
and Christian drug rehab facilities will also suffer the same fate.
Confusion Regarding the F.C.C.'s EEO Jurisdiction
    Currently, the Federal Communications Commission has promulgated 
EEO rules regarding broadcast licensees. An exemption is provided for a 
``religious broadcaster'' regarding all employment decisions impacting 
religious belief, but they still must abide by a non-discrimination 
standard respecting ``race * * * or gender.'' Review of the 
Commission's Broadcast and Cable Equal Employment Opportunity Rules and 
Policies, 17 FCC Rcd. 24018 (2002) (``EEO Order''), para.para. 50, 128.
    Would H.R. 3017 supersede the regulations of the F.C.C regarding 
the employment activities of broadcasters? We simply do not know. The 
only help we have in answering that comes from a sparse comment in The 
King's Garden, Inc. v. F.C.C., 498 F. 2d 51, 53 (D.C. Cir. 1974)(F.C.C. 
is justified in pursuing its own EEO regulations against religious 
broadcasters where ``Congress has given absolutely no indication that 
it wished to impose the [Title VII] exemption upon the F.C.C.''). 
Nothing in the language of H.R. 3017 gives us any Congressional intent 
to regulate broadcasters. On the other hand, would this new legislation 
be held to regulate those broadcasters that do not qualify for the 
F.C.C.'s definition of a religious broadcaster? The F.C.C. has 
generated a ``totality of the circumstances'' test for what is, or is 
not, a ``religious broadcaster'' that is different than the Title VII 
language. H.R. 3017 exponentially increases the uncertainty regarding 
which law applies. Furthermore, would ``gender identity'' protections 
under H.R. 3017 be viewed as the same, or different from the 
requirement imposed by the F.C.C. that even religious broadcasters not 
discriminate on the basis of ``gender?'' Again, such uncertainties only 
ratchet-up the probability that the religious liberties of Christian 
broadcasters and communicators will be chilled as they try to speculate 
what the law actually provides and what their rights really are.
Conclusion
    It is clear that some proponents of this form of legislation view 
Christian objectors to the creation of new ``sexual orientation'' and 
``gender identity'' rights to be hypocritical and mean-spirited. In the 
110th Congress, one witness, a Congressional Representative, noted that 
he had often listened to religious radio on that subject (styled ``an 
act of self-torture'') and was forced to indict Christian dissenters 
this way: ``How can an American who claims to embrace God and uses that 
theology to then discriminate against another individual.'' Hearing 
Before the Subcommittee on Health, Employment, Labor and Pensions, 
Committee on Education and Labor, House of Representatives, September 
5, 2007, Statement of Hon. Emanuel Cleaver, page 15-16.
    The answer to that question lies at the very core of the concept of 
religious liberty. Neither the Congress nor the courts have 
jurisdiction over the religious beliefs of people of faith. Holding the 
faithful in contempt because they advance unpopular religious doctrines 
itself evidences a form of cultural discrimination. Christian 
ministries that object to those sexual preferences which are in clear 
violation of the standards of the Bible are standing on a long and 
well-worn road. Those doctrines are proscribed in both the Old and New 
Testaments and have endured for several thousand years. The rights to 
preach and practice those beliefs spring from a Bill of Rights that is 
two hundred and twenty years old, and in turn which reach back to 
hundreds of years of English common law. Against all of that comes H.R. 
3017 and similar measures, which can claim to have newly-minted a set 
of sexual orientation and gender-identity privileges which, at most, 
are just a few decades old in their very recent cultural currency.
    We urge this Committee not to jettison the paramount rights of 
people of faith. If that happens here, it means 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.
    Thank you.
                                 ______
                                 
    Chairman Miller. Mr. Saperstein?

  STATEMENT OF RABBI DAVID SAPERSTEIN, DIRECTOR AND COUNSEL, 
           RELIGIOUS ACTION CENTER OF REFORM JUDAISM

    Rabbi Saperstein. Mr. Chairman, minority leader, I thank 
you for having me here. Members of the committee, my name is 
Rabbi David Saperstein, I represent the National Reform Jewish 
Movement, which is the largest segment of American Jewry and I 
have also, for 30 years, been on the faculty of Georgetown Law 
School, where I teach church state law and Jewish law.
    I join with some 25 national denominations of faith groups 
in supporting ENDA in a much larger cohort of national 
denominations of faith groups in favor of the use of the Title 
VII exemption in this context.
    Our belief in ENDA's importance stems from a court teaching 
shared by an array of faith traditions, Jewish and non-Jewish 
alike. In the words of Genesis, ``God created humans in God's 
own image. In the image of God, God created them male and 
female, God created them.''
    We impose discrimination on all individuals, including 
gays, lesbian, bisexual, transgender, men and women, for the 
stamp of the divine is imprinted on the soul of each and every 
one of us. And we Jews have historical sensitivities raised by 
the effort to ban job discrimination, for we have been among 
the quintessential victims of group hatred, persecution and 
discrimination in Western civilization.
    We know all too well the impact of discrimination and 
second class citizenship, of what it is like to be denied 
opportunities others have for jobs or other benefits because of 
who we are. So we feel a keen empathy for those who can still 
be victimized because of who they are, deprived of 
opportunities, jobs or advancement because of their identity.
    But we also believe that this legislation would be a wise 
and measured civil rights bill that addresses the scourge of 
employment discrimination and upholds the values in which our 
nation was founded, equality and justice chief among them.
    Indeed, the struggle for equality is a defining narrative 
of America. It is this vision, too, that compels us to support 
ENDA. ENDA is justice too long denied. It must be enacted, and 
it must be enacted now.
    And it is clear that within our nation's diverse faith 
traditions, however, there are differing views about 
homosexuality. Every faith is entitled to its interpretation of 
its holy text. Every individual entitled to believe in a way of 
his or her own choosing.
    At the same time, the government is and should be free to 
enact legislation that protects values that differ from some of 
these beliefs. When that occurs, however, the government should 
also strive to protect the freedom of religious organizations 
with differing beliefs to practice their faith as they see fit.
    That is why Section 6 of ENDA, the exemption for religious 
organizations, is an essential part of this legislation. A bill 
that did not permit houses of worship, seminaries, religious 
schools, other religious organizations to be guided by the 
tenets and teachings that embody the essence of their faith, 
would break with our country's longstanding tradition of 
religious freedom and pluralism and tolerance and provoke wide-
spread opposition.
    ENDA simply ensures that workers will be judged and 
rewarded based on their qualifications and performances rather 
than on irrelevant and prejudicial factors. At the same time, 
it protects the right of religious organizations to make their 
own employment decisions in this sensitive area.
    The crafting the religious exemption, to mirror that found 
in Title VII, has three key advantages. First, consistency and 
reliability. Since 1964 there has been a religious exemption in 
Title VII, since 1972 it contained the current language of the 
exemption.
    In the use of Title VII scope of a covered religious 
organization, so that if a religious organization is exempt 
from Title VII, the religious discrimination prohibitions, it 
will be exempt from ENDA's prohibitions.
    Since ENDA creates no new test for determining which 
religious institutions are exempt from its provisions, instead 
it adopts the long-standing exemptions of Title VII, it will 
greatly reduce litigation, and reduce confusion amongst 
employers, employees, policymakers and judges.
    Secondly, it enjoys broad-based support in religious 
communities, not only those who support ENDA in general, but 
even many who do not support and believe if you are going to 
pass this bill, this is the way to go.
    In 2007, the last time you voted on this, the conference--
U.S. Conference of Catholic Bishops, the general conference of 
Seventh-Day Adventists, the Union of Orthodox Jewish 
Congregations, issued a statement supporting this exemption.
    Although they did not take a position on ENDA, in their 
endorsement of the very language that you have before you, they 
wrote they believe ``this language provides an indispensable 
protection of the free exercised rights of religious 
organizations and strongly support its inclusion in ENDA.'' I 
hope you will, too.
    Leading evangelical figures, David Gushee, Ron Sider, Joel 
Hunter have come out in favor of the use of this. In the 2005 
Bush administration hiring guide, they talk at length of the 
effectiveness of this Title VII provision in protecting the 
rights of religious organizations.
    Over and over again those who have had to live with it and 
work with it have said this is the way it goes. I hope it 
passes unanimously.
    Let me point out that those Title VII exemptions that are 
available to religious broadcasters as well. And in 1998, the 
FCC moved from a very limited coverage for those who 
broadcasted religious messages per se to any religious 
broadcaster having employees who followed their mission and 
their beliefs. They were able to come under the same kind of 
regime as Title VII and they have the same kind of protections.
    Even on the question of who is a religious organization, 
you have a great deal of commonality and agreement. So we know 
that a lot of the stories of what might be the abuses simply 
aren't so.
    This coverage is needed. It is universally supported. Four 
hundred and two members including the minority and majority 
leader of this committee, supported this. The minority and 
majority leader of the House supported this the last time it 
was voted on. Vote for it again. It is the right way to go to 
end discrimination and protect religious freedom.
    [The statement of Rabbi Saperstein follows:]

   Prepared Statement of Rabbi David Saperstein, Director, Religious 
                    Action Center of Reform Judaism

    Thank you for inviting me to be here this morning. My name is Rabbi 
David Saperstein and I represent the national Reform Jewish Movement, 
the largest segment of American Jewry. I am also an attorney who 
teaches Jewish law and Church-State law at the Georgetown University 
Law Center and have addressed free exercise, establishment clause and 
civil rights legal issues in a number of books and articles.\1\
---------------------------------------------------------------------------
    \1\ See e.g. HLR pp 1389-1394
---------------------------------------------------------------------------
    On behalf of the 900 congregations of the Union for Reform Judaism 
(with 1.5 million members across North America), and the Central 
Conference of American Rabbis, with a membership of 1,800 rabbis, I 
appreciate the opportunity to express our strong support for the 
Employment Non-Discrimination Act.
    Our belief in ENDA's importance stems from a core teaching shared 
by an array of faith traditions, Jewish and non-Jewish alike. In the 
words of Genesis, (1:27), ``And God created humans in God's own image, 
in the image of God, God created them; male and female God created 
them.'' We oppose discrimination against all individuals, including 
gay, lesbian, bisexual, and transgender men and women, for the stamp of 
the divine is imprinted on the souls of each and every one of us.
    We Jews have historical sensitivities raised by the effort to ban 
job discrimination for we have been among the quintessential victims of 
group hatred, persecution, and discrimination in western civilization. 
We know all too well the impact of discrimination and second class 
citizenship, of what it is like to be denied opportunities for jobs or 
other benefits because of who we are. Even after the Enlightenment 
began and the promise of equality existed without laws to enforce it, 
we often were forced to hide our identity, keeping our Judaism in our 
private lives while remaining ambiguous about who we were in our public 
lives if we wished to find employment or advancement in the 
educational, social, political, or business arenas of our societies. So 
we feel a keen empathy for those who can still be victimized because of 
who they are, deprived of opportunities, jobs, or advancement because 
of their identity.
    Of course, support for ENDA rooted in biblical text alone is 
insufficient justification for public policy that applies to Americans 
of all faiths and no faith. We also believe this legislation to be a 
wise and measured civil rights bill that addresses the scourge of 
employment discrimination and upholds the values on which our nation 
was founded, equality and justice chief among them. Indeed, the 
struggle for equality is a defining narrative of our nation. From the 
abolition movement, to the suffrage movement to the civil rights 
movement to the gay rights movement, women and minorities in this 
nation have worked tirelessly to achieve equal rights as guaranteed 
them in the founding visions of the United States. It is this vision 
too that compels us to support ENDA.
    It is clear that within our nation's diversity of faith traditions, 
there are, however, differing views about homosexuality. Every faith is 
entitled to its own interpretation of its holy texts, and every 
individual is entitled to believe in a way of his or her own choosing, 
as long as those beliefs do not cross the line into actions that 
violate the fundamental values and the laws that govern our country.
    That is why Section 6 of ENDA, the exemption for religious 
organizations, is an essential part of this legislation. A bill that 
did not permit houses of worship, seminaries, religious schools and 
other religious organizations to be guided by the tenets and teachings 
that embody the core essence of their faith would face widespread 
opposition. This legislation is not an endorsement of any particular 
religious viewpoint and it does not interfere with religious beliefs 
about gay, lesbian, bisexual and transgender people. ENDA simply 
ensures that workers are judged and rewarded based on their 
qualifications and performance, rather than on prejudice.
Advantages of Using the Title VII Religious Exemption
    This legislation creates a religious exemption that mirrors that 
found in Title VII of the 1964 Civil Rights Act. This approach holds 
three key advantages in contrast to those who have argued the religious 
exemption should be narrower, wider or different than Title VII's.
            1. Consistency and Reliability
    Since 1964 there has been a religious exemption in Title VII. Since 
1972, it has contained the current language of the exemption. This is 
relatively well-settled law. The answers to many questions that would 
need to be litigated should a new definition be used are long resolved 
if the Title VII exemption is used. ENDA uses Title VII's definition of 
a religious organization, so that if an organization is exempt from 
Title VII's religious discrimination prohibitions, it will be exempt 
from ENDA's prohibitions. Claims by some that this exemption goes 
beyond Title VII are simply erroneous. Since ENDA creates no new tests 
for religious institutions to follow and instead abides by longstanding 
provisions of Title VII, it will greatly reduce confusion among 
employers, employees, policy makers, and judges.
            2. Broad Based Support in Religious Communities
    The decision to use the Title VII religious exemption in ENDA is 
also supported by a wide range of religious groups. The U.S. Conference 
of Catholic Bishops, the General Conference of Seventh Day Adventists, 
and the Union of Orthodox Jewish Congregations issued a joint statement 
supporting the exemption the last time this exemption was voted on in 
2007, although they did not take a position on ENDA itself. Yet in 
their endorsement of Section 6, they wrote that they ``believe this 
language provides an indispensable protection of the free exercise 
rights of religious organizations and strongly support its inclusion in 
ENDA.'' \2\ Similarly, a wide range of national denominations and faith 
groups support ENDA itself--including this exemption. The endorsement 
of so many of our nation's major religious bodies across religious and 
ideological lines, all in agreement that ENDA's religious exemption 
protects religious institutions, should weigh heavily with this 
committee. Amendments that would change this structure would likely 
break apart that broad-based consensus and should be rejected. 
Amendments, including carve outs or other forms of broadening the 
exemption, could likely break apart the consensus and should be 
rejected. Further, it might well lead to conflicting interpretations of 
the Title VII exemption itself.
---------------------------------------------------------------------------
    \2\ Joint letter to Hon. George Miller (chairman), Howard ``Buck'' 
McKeon (ranking member), House Committee on Education and Labor, U.S. 
House of Representatives, October 18, 2007
---------------------------------------------------------------------------
            3. Broad Based Political Support
    This carefully crafted compromise enjoys widespread support from 
the civil rights community, the legal community and from Congress. This 
exact language has been considered by this body before. In 2007, 402 
members of this House--Republican and Democrat alike--voted for the 
religious exemption language that Chairman Miller proposed in an 
amendment to ENDA on the floor of the House. The current version of 
ENDA, H.R. 3017, contains the religious exemption that passed on the 
floor two years ago with the support of Minority Leader Boehner and 
other leadership of the Republican Party including Reps. Cantor, Blunt, 
Pence and the Ranking Member on this Committee, John Kline, among 
members of the leadership on both sides of the aisle.
Claims of Hostile Work Environment
    There are still some who argue that this exemption is not enough. 
Most commonly, the reason given is that reasonable expressions of faith 
in the workplace will result in an onslaught of lawsuits from gay and 
lesbian employees who will claim that since the Bible condemns sexual 
relations between males, other employees who display Bibles or 
religious verses in their own work area are engaged in creating a 
``hostile workplace.''
    The argument is deeply troubling on several grounds. First, as a 
rabbi, I can affirm that faith is not the express domain of straight 
Americans. There exists in the gay and lesbian community people of 
devout belief, who attend church or synagogue or mosque each week, and 
who rely on their faith for purpose and meaning in their lives. To 
suggest that such individuals will be offended by appropriate workplace 
expressions of faith among employees is absurd.
    Second, as an attorney, I note that the Supreme Court has made 
clear that the threshold of what constitutes a hostile workplace is 
high--that it requires the plaintiff to prove that the workplace was 
``permeated with discriminatory intimidation, ridicule, and insult that 
is sufficiently severe or pervasive to alter the conditions of the 
victim's employment and create an abusive working environment''.\3\ 
Again, because this exemption's language mirrors that in existing law, 
reasonable expressions of faith will not meet the Court's established 
standard. In the nearly quarter century of state ENDAs, I know of not a 
single case in which a hostile work environment claim was upheld for 
the display of a Bible or religious symbol--and certainly none that 
were upheld on appeal.
---------------------------------------------------------------------------
    \3\ Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
---------------------------------------------------------------------------
    We are long past the point when our laws should permit 
discrimination against any individual because of their sexual 
orientation. Just as we do not tolerate behavior that discriminates 
based on race, gender, national origin or religion, so should we be 
clear about discrimination based on the characteristic of being gay or 
lesbian. For many of America's faith traditions, this is a religious 
value. It is a moral value. And for all of us, it is of great social 
and economic value, as evidenced by the nearly 90% of Fortune 500 
companies that already have policies consistent with ENDA. They have 
concluded that we cannot send the message that gays, lesbians, 
bisexuals, and transgender individuals are second-class citizens, 
undeserving of legal protections, benefits and equal rights. It is time 
for our laws to reflect these values and allow members of the gay, 
lesbian, bisexual, and transgender community to live their professional 
lives without fear of discrimination or the pressure to hide their true 
identity.
    Thank you.
                                 ______
                                 
    Chairman Miller. Thank you. Just before I begin my 
questions, let me make two points. One, that each of you have 
asked that your written statement be submitted as part of the 
record. It will be made part of the record from the testimony 
that we have received from you.
    Secondly, the--our second panel went on longer, and I want 
to just admonish members of the committee to be courteous to 
other members of the committee because we are going to have to 
be out of here very close to 12:30.
    And now, let me begin just quickly. We spent a lot of 
early--in the earlier panel we spent a lot of time talking 
about big employers, small employers and the private sector. 
But when we listen to Ms. Glenn's testimony and Mr. Sears, the 
findings of your surveys and studies, and even Mr. Eskridge's 
testimony. I shouldn't be, but I guess I am quite stunned at 
how irrational the dismissals can be, and how final they in 
fact can be.
    And the ability of, time and again, of sort of a mid-level 
person being able to dismiss an individual based upon his or 
her own assumptions without providing any evidence that your 
co-workers would think you were immoral or whatever it is.
    And then, bringing that back to public institutions, to 
states and state governments, local governments and branches of 
those entities, I think is really quite stark. In this day and 
age, you just--I think that most people assume that there is a 
set of protections out there so you don't have this incredibly 
arbitrary set of circumstances taking place that, in many 
instances, has nothing to do with the caliber of your work. 
Care to comment--I don't want to belabor the point, but----
    Mr. Sears. In doing this research, I was struck by the same 
thing. My experiences as a HIV-AIDS lawyer in the 1990s, where 
discrimination was also extremely blatant--people just said, 
``You are fired because you are HIV positive.''
    I was surprised to see how frequent that is also with 
sexual orientation and gender identity. And one of the members 
mentioned earlier this pattern in police officers which I would 
extend to public safety officers, firefighters, people who work 
in corrections. There is definitely a pattern of harassment, of 
violence, which then also goes unaddressed by supervisors.
    Chairman Miller. Thank you.
    Ms. Glenn, in your case there was no question in this 
individual's mind that he was clearly within their rights just 
to fire you on the spot.
    Ms. Glenn. That is correct.
    Chairman Miller. With no question of your ability and no--
even to try to put together a case against the quality of your 
work.
    Ms. Glenn. No, sir. He made it quite clear I was being 
fired because I am transgendered and I was following the 
prescribed course of action.
    Chairman Miller. And at that time you were working for the 
Georgia State Legislature.
    Ms. Glenn. Yes, sir.
    Chairman Miller. We need this law.
    Ms. Olson, I--again, we are running out of time here, but 
on page 12 of your testimony, you raised the questions about 
the prevailing party. And I just wish, if you might consider 
submitting language that you think is necessary there, that 
would be helpful.
    Okay, then we will get back to you, because I am missing 
the point here. So maybe I am just thick, but--hold down the 
applause.
    Ms. Olson. You mean you want me to do it right now?
    Chairman Miller. No. When you--if you would submit it in 
writing, language, I would appreciate that.
    Mr. Kline?
    Mr. Kline. Thank you, Mr. Chairman, and thanks to all 
members of the panel today, excellent witnesses.
    Ms. Olson, let me start with you if I might and go to the 
issue of attorney's fees, where this has arisen. That it looks 
like in H.R. 3017 we are going to award attorney fees on the 
basis of administrative decisions.
    It seems to me this might simply increase the weight 
according to administrative decisions, might put you if you 
were representing a client at a disadvantage when weighing the 
risks of proceeding with the defense and you might be more 
inclined to recommend a settlement to your employer-client. Can 
you address this issue of how attorney fees are addressed in 
3017 for us please?
    Ms. Olson. Yes, thank you very much. ENDA specifically 
states that it does not intend to provide different remedies 
for attorney's fees and those that are available under Title 
VII, but yet it has a provision that in fact does that.
    So that ENDA states that the procedures and remedies should 
be applicable, those that we see in Title VII but it says that 
there will be an availability of attorney's fees with respect 
to somebody who is a prevailing party in administrative 
proceeding.
    And that in connection with that administrative proceeding, 
the administrative officer, for example, the EEOC with respect 
to private employers, will have the authority to actually grant 
those attorney's fees.
    An administrative proceeding before the EEOC is supposed to 
be an investigative and conciliatory proceeding. It is a 
proceeding where the rules of evidence don't apply and where 
employers and employees share information with the intent to 
hopefully be able to resolve issues without litigation.
    With respect to Title VII, with respect to the American 
with Disabilities Act and with respect to all other federal 
employment discrimination legislation, there is no right for 
the EEOC to actually make an award of attorney's fees in 
connection with any of its administrative proceedings.
    And in fact the note is that substantial evidence if issued 
by the EEOC is not reviewable by a court and is not required to 
be based on any written, reasoned decisions. Therefore, the due 
process rights of a prevailing party, if one would be defined 
as such in that kind of proceeding, would not be present.
    So I think it would be inappropriate--I am not sure that is 
really what was intended. This may be a provision in ENDA that 
just needs some more work.
    Mr. Kline. Yes, okay, thank you very much. That is 
following up on the Chairman Miller's question and so some 
suggestions from you might be very useful for the committee. I 
just wanted to sort of get that out there that this is 
something different that is being brought forward here.
    Mr. Parshall, you and the Rabbi have some differences here 
on whether you think that there are adequate protections for 
religious institutions, for those practicing their religious 
faith, for those involved in religious broadcasting in schools 
and others.
    In your testimony, you referenced the Montrose Christian 
School Corporation case, which involved the faith-based 
employment decisions of religious institution in violation of 
the Free Exercise Clause of the First Amendment.
    Can you take the remaining time that I have here--what you 
need before the light turns red to elaborate on that case and 
the need for broad and adequate exemptions?
    Mr. Parshall. Thank you, Mr. Ranking Member. The Montrose 
case was a case that I tried both from trial level up to the 
Court of Special Appeals in Maryland all the way to the high 
court, which in Maryland was called the Court of Appeals, their 
version of the state supreme court.
    And it shows how things can go awry regardless of the best 
intentions of drafters of legislation. There was a county 
ordinance in Montgomery County that paralleled much of Title 
VII, not all of it, but much of it, but didn't make adequate 
provision for religious organizations.
    And so the ACLU represented a handful of individuals who 
were unable to continue their employment because they didn't 
share the same doctrinal beliefs of a private Christian school, 
a school that didn't take any taxpayer money. It was fully 
funded by private donations and by tuition by parents who 
wanted their children to get a Christian education.
    There was suit at the trial level, and I tried to make a 
First Amendment argument to two different judges in two 
different trials for two different plaintiffs. We lost both 
cases. Now, again, it seems self evident to us that the rights 
of religious organizations should give them autonomy to make 
religious, ecclesiastical decisions about what the doctrine of 
beliefs of their staff were.
    But the arguments were well they didn't teach Bible classes 
and we had to prove that it was a bona fide occupational 
qualification and we weren't able to meet that test.
    So the result was that we had two trial verdicts, two 
juries, whose instructions were not permitted to go into First 
Amendment considerations, and we were penalized hundreds of 
thousands of dollars in damages for each of these plaintiffs 
against this Christian school.
    It would have folded up. It would have been bankrupted had 
we not pursued, at great cost to them and inconvenience over 
the course of years, first the Special Court of Appeals and 
then finally we got a unanimous verdict from the Court of 
Appeals in Maryland stating that they had not made adequate 
provision for exempting a religious organization.
    All, again, despite the conventional wisdom that would have 
said we--it never should have gotten that far.
    Mr. Kline. Thank you very much. I yield back.
    Chairman Miller. Mr. Kildee?
    Mr. Kildee. Dr. Eskridge, do you think that sexual 
orientation is or ought to be a suspect classification under 
the Supreme Court precedents discussing levels of equal 
protection scrutiny? And how about gender identity, is it a 
suspect classification?
    Mr. Eskridge. Mr. Kildee, thank you for the question. I 
want to combine that with the chairman's points. The Supreme 
Court has never ruled one way or the other on whether sexual 
orientation is a suspect classification the way race is or even 
a suspect classification the way sex is under the Equal 
Protection Clause of the U.S. Constitution.
    This committee, of course, can consider that issue. My own 
opinion as a scholar is that based upon the Supreme Court's 
announced test for whether a classification is a suspect one, 
sexual orientation would qualify.
    The main Supreme Court test, which is examined in some 
detail in my written testimony, is whether or not there has 
been a pattern of irrational discrimination against a group 
based upon that classification and that it does not ordinarily 
serve public purposes.
    And I think that links back into the Chairman's question 
because Mr. Chairman, I think one reason why we still see such 
pervasive discrimination today, part of it is emotional and 
part of it is cognitive and part of it is moral.
    Emotionally, a lot of the discrimination occurs because 
people have gut feelings that are emotionally addressed to 
lesbian, gay, bisexual and transgendered Americans. Secondly, 
cognitively, the states taught us in most of the 20th century 
that these Americans were disloyal and not to be trusted and 
were disruptive, and so many people internalized that.
    As the testimony today has shown, that is irrational. It 
does not serve public goals and as Representatives Frank and 
Baldwin suggested, it actually undermines public goals. So I 
would suggest that at some point in the future, the Supreme 
Court ought and actually will hold that it is a suspect 
classification.
    Gender identity might be a suspect classification now 
although the Supreme Court has never held such. Consider this 
thought experiment, under Title VII, discrimination based upon 
religion is only disallowed, yes.
    The Supreme Court would say the same under the Equal 
Protection Clause but they don't have to because of the Free 
Exercise Clause. Now if you discriminated in employment against 
someone because she is a Jew, religiously, that would obviously 
be a violation of the Equal Protection Clause and it would be a 
violation of Title VII.
    But what if you discriminated against someone who was a Jew 
who had converted to Christianity? Would that not also be 
discrimination based upon religion? So the argument would be--
the Supreme Court I think will address this at some distant 
point in the future, that discrimination based upon gender 
identity is a form of sex discrimination or at least related to 
it such as would make it fall under the quasi-suspect 
classification jurisprudence of the Supreme Court.
    Mr. Kildee. Isn't that true also historically that once the 
Supreme Court makes a correct decision in matters of human 
dignity, that helps educate the citizenry, does it not? I mean, 
the citizenry very often catches up with the Supreme Court 
after they uphold people's rights.
    Mr. Eskridge. Representative Kildee, I agree with that and 
I would go one step further. I believe it is even more 
important in terms of signaling to the people and educating the 
people for Congress to take that step. I think you all are the 
heroes.
    I think you all are the big players and you all are the big 
players enormously and that is what we teach at the Yale Law 
School, that we should not chastise the courts. The courts have 
very limited power. You all have the power and you all also 
have the wisdom to be moral as well as legislative leaders in 
America.
    Mr. Kildee. And I would want to do that and hope that the 
Supreme Court agrees with us. Thank you very much.
    Mr. Eskridge. They should, your Honor.
    Chairman Miller. Mrs. Biggert?
    Mrs. Biggert. Thank you, Mr. Chairman, and I would like to 
thank all the witnesses for their testimony today.
    And I have a question for Ms. Olson. Thank you for being 
here and your legal expertise, I think, is very helpful on this 
issue.
    The ADA, Americans with Disabilities Act, protects not only 
qualified individuals with disabilities but also those who are 
``regarded as'' having a disability. And H.R. 3017 in contrast 
would provide protection based on an employee's sexual 
orientation and/or gender identity, whether actual or 
perceived.
    Can you tell us your view, is there a difference between 
the ``regarded as'' test under ADA and the perceived tests 
under--as set forth in this bill? And is one preferable to the 
other?
    Ms. Olson. Thank you very much, Representative Biggert. 
With respect to the question as to whether there is a 
difference, I think that if you look at the ``regarded as'' 
definition under the ADA, employers have seen that as of 
January 1st of this year, that that definition in itself 
changed as a result of the Americans with Disabilities Act 
Amendments Act.
    So I think there is some flux and some change with respect 
to the particular definition of ``regarded as.'' And I believe 
that each of these definitions are going to be, by their 
nature, defined a little bit differently depending on the 
actual protected status that it really relates to.
    With respect to the issue as is one term better than the 
other regarded as versus perceived, my understanding is with 
respect to the use of the word perceived in ENDA, that it was 
used because it traps more often--actually the state 
legislation on this issue, which is more often than not uses 
the language perceived as opposed to regarded as.
    I don't see a significant difference between those two in 
the abstract in terms of their application of a particular 
issue.
    Mrs. Biggert. Thank you. Then do you provide us with any 
insight on why ENDA is written as a standalone bill? I mean, we 
have been talking about, you know, it was Title VII law. Should 
it be incorporated into that? And if we wanted--we seem to want 
consistency. Would it make sense to incorporate those 
provisions into Title VII?
    Ms. Olson. You know, it is a very interesting question 
because I think in many, many ways, employers, employees have 
been, I think--folks that have a taken a look at this and 
worked on it, have wanted to borrow heavily from Title VII so 
that there is an established language that employers and 
employees are used to and are able to apply to this particular 
issue in the workplace.
    And I believe that is why you see so much back and forth in 
referencing to Title VII. And I think that is appropriate 
because I think the less uncertainty there is regarding 
language, the more employers are going to be able to understand 
their rights and obligations and apply them in the workplace 
and I think that is what everybody wants.
    With respect to why separate, the Americans with 
Disabilities Act is separate as well. And you might look at it 
and you might think about the fact that when you look at Title 
VII, Title VII is a non-discrimination statute where reverse 
discrimination also for example is actionable.
    If you look at ENDA, there are many things in ENDA that are 
different than Title VII. For example, we talked a little bit 
earlier about the issue of disparate impact and that fact that 
those claims would not be actionable under ENDA. And so that 
would be one difference.
    Also, it is inappropriate to collect information regarding 
human sexual orientation and gender identity under ENDA while 
it isn't with respect to Title VII, so that is another 
difference. There is also a difference with respect to ENDA not 
requiring or permitting preferential treatment.
    Also, if you look at the unique issues that come up, and I 
think the two that are addressed in ENDA with respect to gender 
identity, the issue of shared facilities and neutral policies 
of grooming and dress policies, are two that will raise a 
number of issues. And those are--I mean, if you think of me as 
a practitioner, most of my time on these issues is spent trying 
to answer employer's questions regarding what is the 
appropriate way to treat requests with respect to modifications 
of those policies because of a transgendered employee or 
someone who is going through a transition.
    And having specific guidance and statutory guidance that is 
then interpreted by the EEOC but it is not set by the EEOC. The 
question as to whether employers are obligated to modify, 
modifications can cost money.
    Bathroom facilities for example or any facility, it is 
something that Congress should direct up front, I believe, 
employers as to what the answer is so there is no ambiguity, so 
that the answers can quickly be made, and that employers and 
employees can comply appropriately with it.
    So in terms of the overall answer, I think it is 
appropriate for it to be separate although I believe it is 
appropriate that to the extent we are borrowing from Title VII, 
whether it is the remedy section or whether it is a section of 
the definition of disparate impact, that we are very clear so 
that we absolutely know what each other is talking about.
    Mrs. Biggert. Thank you very much.
    Chairman Miller. Thank you.
    Mr. Payne?
    Mr. Payne. Thank you very much. Professor Eskridge, when 
you were going through the trauma at the University of 
Virginia, were there any groups that came to your defense or 
any what about your colleagues or faculty persons or your group 
maybe that represents employees. What happened there? What 
occurred, any support by and large?
    Mr. Eskridge. Well in my particular case, the answer to 
that is zero. A number--probably hundreds of students were very 
upset that I was being treated this way, although I don't think 
they were outraged by sexual orientation discrimination because 
I was an excellent teacher of both procedure and legislation 
and actually international business transactions.
    So that upset the students. A number of faculty members 
were very upset that the committee had blatantly disregarded 
the law school's established procedures. The University of 
Virginia probably prides itself on being procedurally correct 
in most cases. They take procedure very seriously and they 
didn't follow it.
    And then there were a very few faculty members who were 
able to perceive exactly what was going and gave me a lot of 
support emotionally. And they were the ones who said you need 
to leave as quickly as possible because I actually literally 
did feel physically unsafe at the University of Virginia.
    Today, the problem is not as severe as what I faced, at 
least at the University of Virginia. It is in other locales, 
where you basically have no support groups. There is no one, 
either the state legislature or the national legislature 
signaling to these institutions that this is no longer 
acceptable conduct.
    And I think that is very important. Most states do not 
protect gender identity. Many states do not protect sexual 
orientation against public discrimination. And it is very 
important for Congress to fill those gaps but also to provide a 
national signal, even in these other jurisdictions, where there 
is some protection as a matter of law.
    Mr. Payne. It seems like, you know, the university, that is 
supposed to be the most liberal kind of environment where First 
Amendment rights are, you know, people should be able to speak 
out some. So I am a little shocked that this occurred. But why 
didn't you sue the University of Virginia back in 1986 when 
this was occurring?
    Mr. Eskridge. Well, Representative Payne, I agree with you. 
I actually think universities are much better workplaces even 
in the 1980s and today. That this could happen to someone who 
is very literate, educated, articulate and overqualified as I 
was indicates that this really could happen to anybody.
    Did I consider suing? I certainly did. I believed at the 
very least I had a state libel suit against the law school for 
promulgating factual misstatements. So a libel suit, you would 
want to show that there is a reckless disregard for facts, and 
I believe I had them cold on that.
    But I certainly didn't consider suing based upon the 
Constitution in 1985 because I didn't think that I would win. 
This was right on the verge of Bowers v. Hardwick, which soon 
enough confirmed my intuitions.
    There was no state statute. There was no Virginia order 
saying that public discrimination was illegal. And there still 
might not be. In 2002, Governor Warner issued an executive 
order saying that there should not be in public institutions 
sexual orientation discrimination.
    But that order has been possibly nullified by the attorney 
general and by a recent court decision involving a case of 
sexual orientation discrimination where the court said no, this 
executive order is null and void and in any event provides no 
remedies.
    So this is a situation--not only were there no legal 
remedies but not even talking point remedies. What I would have 
wanted would have not been a lawsuit but would have been a 
civil conversation, maybe under auspices of the EEOC.
    Conciliation is what I would have wanted, where we could 
have confronted this issue head on and worked out some 
situation where an apology was issued. I could have moved on or 
even optimally, I could have even stayed at the University of 
Virginia but I think that was not possible after the outburst 
that I described.
    Mr. Payne. Well, I certainly think the University of 
Virginia certainly the loser in that and just listening to you, 
I think that it would be a privilege to have had you as a 
professor of law at any university, so I think that they have 
suffered and Yale, where you are now is certainly benefiting.
    I yield back, thank you.
    Mr. Eskridge. Thank you.
    Mr. Andrews [presiding]. I thank my friend for yielding. 
The Chair recognizes himself. One of the things that I know we 
want to do into this bill is to be sure that any person is 
protected, irrespective of whom his or her employer is.
    And you know, it is important to know for the record that 
both Ms. Glenn and Professor Eskridge at the time of their 
discriminatory experiences were public employees. It is very 
important we think that we lay the predicate for the exercise 
of our constitutional authority to cover those public 
employees.
    And Professor Sears, I would like to ask you some 
questions. First of all, your institution has conducted an 
extensive study of the question of discrimination against 
public employees over the last number of years, is that 
correct?
    Mr. Sears. Correct.
    Mr. Andrews. And you will be entering that into the record 
of this hearing?
    Mr. Sears. Yes.
    Mr. Andrews. Is it your conclusion based upon that 
extensive research that the research shows that there is a 
widespread pattern of unconstitutional employment 
discrimination on the basis of sexual orientation and gender 
identity by state governments and their local jurisdictions?
    Mr. Sears. Yes, it is, sir.
    Mr. Andrews. I want to walk you through some of the basis 
of that conclusion if we could. My understanding is that you 
did first of all some analysis of findings by various state 
legislatures, state commissions, other bodies of state 
governments, and it is my understanding that there were 29 
examples of such findings in 17 states, is that correct?
    Mr. Sears. Yes it is.
    Mr. Andrews. With respect to presentations to Congress, it 
is my understanding that although the research I don't think is 
comprehensive, there are at least 67 examples put before 
congressional committees and other subdivisions of this 
institution, is that correct?
    Mr. Sears. That is correct.
    Mr. Andrews. I want to ask if you could characterize your 
findings on the issue of survey data. If I understand this 
correctly, you found over 80 surveys that were done where 
questions relevant to this discussion were uncovered. Can you 
characterize those surveys for us?
    Mr. Sears. Yes. I think all of the surveys showed a 
substantial amount of discrimination in the public sector. The 
surveys we focused on for this review were 80 surveys either 
were totally of public employees or there was a substantial 
part.
    I mentioned in one of my testimony, another survey, which 
is a nationally random sample is the Journal of Social Survey, 
the Williams Institute actually entered actually entered a 
question on sexual orientation in the 2008 survey and a module 
about discrimination.
    And it showed about 20 percent of government employees who 
identified as LGB, there was not a gender identity question, 
had experienced discrimination. ``Police Quarterly'' last year 
in 2008 published a survey of both state and local law 
enforcement that showed similar rates of discrimination.
    Mr. Andrews. But let me ask you about two of those surveys 
that you made reference to. My understanding is there was a 
2009 survey where the sample was more than 1,900 LGBT, 
employees of state university systems. And could you tell us 
what that survey found, and that was a sample of 1,900, all of 
whom were public employees, correct?
    Mr. Sears. Correct.
    Mr. Andrews. What did that survey find?
    Mr. Sears. Well, first of all, let me thank Professor Sue 
Rankin from Pennsylvania who has done an incredible amount of 
work this year to get this research conducted in this last 12 
months. She actually had two different studies, this one 
actually dealt with a survey in 2009 of state university and 
college employees, faculty, staff, administrators, asking if 
they have been discriminated or harassed in the workplace and 
then on what basis.
    Of the LGBT employees, 19 percent they have said they have 
been discriminated or harassed and then 70 percent of those 
said it was on the basis of sexual orientation or gender 
identity. One study I haven't mentioned is a kind of meta-
analysis that she has done, also completed just this year.
    Over the last decade, she has completed these campus 
climate surveys in a number of state institutions. From 2006 to 
2009, she completed 41, all of public institutions and those, 
too, show a high rate of discrimination.
    Mr. Andrews. Let me also just close in the time I have left 
with this question, a devil's advocate question. The precise 
number of claims that you have uncovered is relatively low. Do 
you think it is true or false that a substantial number of 
claims that could be brought have not been brought for a 
variety of reasons over the years and if so, what are those 
reasons?
    Mr. Sears. I think this probably is just the tip of the 
iceberg of what is out there. One major gap here is we 
contacted the 20 states who currently prohibit sexual 
orientation discrimination and asked them for redacted copies 
of their complaint and only six complied with that.
    So there is a large body of information, that is why you 
see such terrific records for New Mexico and Wisconsin because 
they have great enforcement agencies.
    And I think the other most important factor is that LGBT 
people are reluctant to pursue their claims in the face of 
administrative agencies that might not be receptive, courts 
that might not be receptive and they have to make the choice 
whether to out themselves further in their community to pursue 
the claim.
    Mr. Andrews. I thank you. I see my time has expired. Are 
there minority questioners at this time? The Chair would 
recognize--is it Ms. Woolsey?
    Ms. Woolsey for 5 minutes.
    Ms. Woolsey. Thank you, Mr. Chairman. I have chapter two of 
my Lynn Woolsey human resources story. I decided it was time to 
leave this wonderful company that I worked to help start after 
10 years. So in the 1980s, wanting to work with more than one 
employer and bring good personnel policies to them, I started 
my own human resources consulting firm working with mostly high 
tech companies.
    Among other areas of human resources, I often assisted with 
recruiting for hard to fill positions for my clients. Well, I 
had a material director position to fill and to help my client 
fill and I had the perfect fit, but oops, I sent him a 
transgender person and this was in the 1980s.
    I didn't go ahead and say, guess what, I am sending you a 
unique individual. That was not my place. I sent them the 
perfect fit. Well lucky for me my business was strong and I 
could survive the loss of that employer and that client and I 
did.
    So chapter three, I decided I needed to be on a bigger 
stage if I wanted to make real change because I wasn't going to 
do it employer by employer, person by person. So I ran for 
Congress, elected in 1993.
    I have been on this committee for the last 16 years. This 
is my ninth term. And I am ready as well as my constituents to 
stop talking about this and to pass ENDA. No more judging 
individuals on their sexuality, no more deciding how others 
should live and how they should love and basing employment 
decisions on that.
    It is time. It is time that we passed ENDA and it is time 
that we get this behind us. So let us go, gang. I yield back.
    Mr. Andrews. The gentlelady yields back.
    The Chair recognizes the gentleman from Texas, Mr. 
Hinojosa, for 5 minutes.
    Mr. Hinojosa. Thank you, Mr. Chairman.
    My first question is to Professor William Eskridge. In your 
testimony, you indicate that state and local governments have 
had a long history of discrimination against lesbian, gay, 
bisexual and transgendered employees. You cite examples in 
several states, including Texas. Can you elaborate on the case 
that you discussed in Texas--or that cover on Texas?
    Mr. Eskridge. A specific example from Texas?
    Mr. Hinojosa. Yes.
    Mr. Eskridge. There is not one discussed in my statement--
--
    Mr. Hinojosa. I didn't find it.
    Mr. Eskridge [continuing]. From Texas but there are a 
number of litigated examples from Texas. And I am sure Brad 
Sears has others. One example from Texas that I do know about 
involved in the 1980s I believe, a police officer, a very well 
qualified police officer. And it was one the major cities, 
either Dallas----
    Mr. Sears. Dallas.
    Mr. Eskridge [continuing]. Or Houston. And they had a 
policy of apparently per se exclusion of police officers who 
were openly or even closetly lesbian or gay, if they could 
identify it. She sued and at no point in the litigation am I 
aware, that the Dallas Police Department adduced any kind of 
state or employment reason not to hire her. Yet this exclusion 
was litigated to the hilt by that department. And she 
ultimately did prevail in the Texas court systems.
    Mr. Sears. Yes. If I could add to this, this policy in 
Dallas was actually litigated a couple of times and the only 
thing that they argued was--underpinning the policy of not 
having gay police officer was the state sodomy law that you 
would be in a conflict to both be enforcing a law and be in 
violation of it.
    States continued to have sodomy laws up until 2003, when 
they were struck down. A lot of the states have had their laws 
declared unconstitutional and have also kept them on the books 
even after some legislative consideration.
    And I think it is one of the links between local 
enforcement and state law is that the state laws on sodomy and 
criminalization of same sex behavior really underpin the 
discrimination that was happening at the local level.
    Mr. Eskridge. I also have this experience from Texas, and I 
would certainly defer to Texans such as yourself, 
Representative, and that is that my--one of my recent books is 
called ``Dishonorable Passion, Sodomy Law in America from 1861 
to 2003'' and I devote an entire chapter to the Lawrence case 
which, as you know, arose in Texas and resulted in the Supreme 
Court's invalidation of your homosexual sodomy law.
    In the process, I went to Texas for a number of interviews 
and spoke to people who worked for the state government, 
including lesbian and gay individuals who worked for the state 
government. Not a single one of them was out. They all felt 
that it was necessary for them to remain in the closet if they 
wanted to keep their jobs.
    And that is an element of this that we have not emphasized 
today, that the discrimination is not just based upon a 
classification that is fishy and suspect, it is. It is not just 
that people are denied their due process, they are.
    People are also denied fundamental free speech rights to 
identify themselves as they really are. And so apparently, even 
in the new millennium, at least based upon my experience in 
Texas, a lot, probably still most of the lesbian, gay, bisexual 
and transgender employees still feel that they cannot identify 
themselves in the public setting and not be disciplined by 
their employers.
    Mr. Hinojosa. Thank you, Professor. That leads me to the 
second question to Brad Sears. Some critics of the ENDA suggest 
that there will be a flood of litigation if this bill is 
adopted. Your findings indicate that significant amount of 
discrimination against the lesbian, gay, bisexual, transgender 
people is happening in the workplace.
    So my question would be, do you believe that employers 
could face considerably more lawsuits under ENDA than under 
comparable civil rights laws such as Title VII or the Americans 
with Disabilities Act, ADA?
    Mr. Sears. I do not believe that. There is a significant 
amount of discrimination against LGB people. That population is 
substantial but not a huge population.
    So we have actually looked at all the states that have 
prohibited sexual orientation and gender identity 
discrimination and compared the rates of filing of complaints 
with the state administrative agency based on sexual 
orientation, which we had the most data for, between that and 
gender identity, sex and race, and we find the rates on a 
population basis are very comparable.
    They all range between 5,000 and 10,000 people making 
complaints to 7,000 to 10,000 on those different bases because 
you have a smaller population of LGB people, it really doesn't 
add that much to the administrative enforcement burden on the--
--
    Mr. Andrews. The gentleman's time has expired.
    The Chair recognizes the gentleman from Pennsylvania, Mr. 
Platts, for 5 minutes.
    Mr. Platts. Thank you, Mr. Chairman. I will be very brief. 
Again, thank the committee for holding this important hearing. 
Apologize to our witnesses with trying to be in five places at 
once around here. I am only able to come back for a few 
minutes.
    But I just want to thank each of you, as a co-sponsor of 
the legislation, appreciate each of you being here and sharing 
your insights and especially thank you for your written 
testimony because of not being able to hear most of your 
testimony here today, that is very helpful to me. So just 
appreciate your efforts and being a part of this hearing.
    And Mr. Chairman, thank you and yield back.
    Mr. Andrews. Thank you, Mr. Platts, for your leadership and 
support on this issue. It is very much appreciated.
    The Chair recognizes the gentleman from Massachusetts, Mr. 
Tierney, for 5 minutes.
    Mr. Tierney. I thank the Chair.
    And Professor Sears, I understand that this committee is 
not the first committee in Congress to sort of document 
discrimination against the LGBT community by government 
employers.
    Your report says that, and I quote here, ``In total, of the 
67 specific examples of employment discrimination against LGBT 
people by public employers, have been presented to Congress in 
prior years, including discrimination involving 13 state 
employees, 14 teachers, 12 public safety officers, 2 other 
local employees and 26 federal employees.''
    Now, many of these prior hearings were actually conducted 
by Senator Edward M. Kennedy, Ted Kennedy from my home state of 
Massachusetts. He has been a great champion of this particular 
legislation that we are considering here today.
    And so I was wondering if you would please tell us more 
about Senator Kennedy's role in creating a sound congressional 
record of discrimination, the one that we are building on here 
today?
    Mr. Sears. Yes, thank you. I think Senator Kennedy took a 
very admirable and appreciated role in taking the lead on ENDA 
and also need to--made sure to include, in the hearings that he 
led, both discussions of discrimination against public 
employees and that they included a lot of personal stories of 
witnesses who are public employees.
    Three come to mind in which he was either called a witness 
or he shared their stories later. One was a postal worker who 
was a federal government employee in Detroit, Ernest Dillon who 
was discriminated on the basis of his sexual orientation in 
dealing with the mail. It was just completely irrational that 
it would have any basis with his job performance to deal with 
the mail, with his co-workers, with anything. And he was 
harassed and fired from that job.
    The second one--and there was a discussion about whether 
people who are perceived to be LGBT--was a story he told about 
a firefighter in Oregon who was not actually LGBT, but when 
there was an initiative in Oregon to prevent any sort of 
protections in employment for LGBT people, this firefighter 
went to a rally to show his support.
    That was seen on TV. It was seen by his co-workers and he 
experienced harassment, hate mail and some trumped-up charges 
to be removed, and that is another story that Senator Kennedy 
shared.
    And finally, there was a story about a really talented law 
student from Arizona who wanted to work for the attorney 
general's office there. He applied once, made it in like the 
top two for the cut, applied again, was on the phone with the 
guy who was going to hire him.
    The guy was like ``I am going to call your references now 
and that means we are ready to hire you.'' He disclosed that he 
was gay and he got a rejection letter 3 weeks earlier. So I 
think Senator Kennedy took a leadership role and made sure that 
the face and voices of public employees were heard in 
discussion of ENDA.
    Mr. Tierney. As he did in so many issues of this nature, so 
I thank you for putting that on the record, and I yield back, 
Mr. Chairman.
    Mr. Andrews. I thank my friend for yielding.
    And the Chair recognizes the gentleman from Ohio, Mr. 
Kucinich, for 5 minutes.
    Mr. Kucinich. Thank you very much, Mr. Chairman.
    I would like to start with Ms. Glenn. I want to go over 
your testimony here. In the encounter that you had with Sewell 
Brumby, the legislative counsel you disclosed to him that you 
were going to be expressing yourself as your true self, as a 
woman, and he did not accept that, right? He said it was 
unacceptable?
    Ms. Glenn. Yes, sir.
    Mr. Kucinich. And he further said it was inappropriate?
    Ms. Glenn. Yes, sir.
    Mr. Kucinich. Now, I want to go to Professor Eskridge 
because you raised the point that I thought it was important 
that we not jump over this too quickly.
    Ms. Glenn was fired--to reduce it to its fundamental 
aspect--she was fired because she was expressing herself. I 
want that to sink in here, self-expression.
    Now, freedom of speech is expression, correct? The 
expression of speech, they are controvertible, right? Why have 
you--are you familiar with any cases where someone has won a 
First Amendment case--saying that it is, in the case of Ms. 
Glenn, that she has a First Amendment right to self-expression? 
What about that?
    Mr. Eskridge. There are a number of cases where this is 
litigated. It is usually more successfully litigated in state 
courts than in federal courts. And there are some cases where 
the courts have recognized such claims.
    I am not sure I can remember them right off the top of my 
head, but there is a case in Massachusetts, to take the 
gentleman who just asked the question prior to you. I think it 
was the UNIX case?
    Mr. Kucinich. Mr. Tierney.
    Mr. Eskridge. There was a case in Massachusetts where a 
transgendered student I think in a high school wanted to 
express her gender identity and who she was. The school didn't 
allow it and, under the Massachusetts Constitution, the lower 
court did recognize that as a cognizable freedom of expression 
claim.
    Mr. Kucinich. Now, I want to go back to the federal aspect 
of this, but I am looking at the Georgia Constitution and its 
preamble talked about promoting the interests and happiness of 
the citizens. In paragraph one, ``Life, liberty and property, 
no person shall be deprived of life, liberty or property.'' 
Seems a job could be considered property.
    Paragraph three talks about freedom of conscience, 
paragraph five talks about freedom of speech, ``No law should 
be passed to curtail or restrain freedom of speech.''
    Now, it--you raise the question about the recourse that 
people would have under state law. I want to go back to our own 
U.S. Constitution here. Why wouldn't the First Amendment 
strictly prohibit anyone from discriminating against someone on 
the basis of freedom of expression?
    Mr. Eskridge. Representative Kucinich, you have asked a 
deep and important question and here is the answer to that. The 
literal answer to that is cultural. The judges read the First 
Amendment through cultural lenses, and a cultural lens that 
views a transsexual individual as disruptive, as untrustworthy, 
as rebellious, as uncooperative, is going to be reluctant to 
read the First Amendment to protect that individual.
    So that is why I say, that we teach at the Yale Law School 
that you all are the moral leaders in American government. It 
is not the U.S. Supreme Court. You all have to establish the 
moral leadership on these kinds of issues.
    Mr. Kucinich. But a strict interpretation of the First 
Amendment--you know, and I carry a Constitution with me. I am 
kind of a strict constructionist.
    A strict interpretation would say that Ms. Glenn would her 
rights would be protected because if Ms. Glenn's rights aren't 
protected then any citizen in our society could be 
discriminated against on a basis of their expression because 
each person has a different expression of self, expression of 
personality, expression of language patterns, unless what we 
are doing is creating a legal system where everybody has to be 
the same. Wow.
    So I think, when we are entertaining this issue of ENDA, 
Mr. Chairman, and, you know, I have notice the methodical way 
in which you got into some of the questions about the 
discriminatory data, the data that proves discrimination, when 
we are looking at ENDA, ENDA is really a lens into who we are 
as a nation.
    Do we believe enough in freedom that everyone can be free 
to be who he or she is? That is really the deep question that 
we are faced with here as a nation.
    I thank you.
    Mr. Andrews. I thank the Gentleman. Just ask the members 
that the Chairman of the full committee is planning on having a 
caucus of Democratic members as soon as this hearing is over, 
which he would hope would be rather quickly.
    So all the members will be recognized that wish to be 
recognized, but with that in mind--it is frankly dealing with 
the health care issue, so the members will have an opportunity 
to do that.
    Recognize my friend from New Jersey, Mr. Holt.
    Mr. Holt. I thank the Chairman and I thank the witnesses.
    As the chairman is well aware, in New Jersey, we have a 
fully inclusive employment non-discrimination law that protects 
against discrimination on the basis of gender identity as well 
as sexual orientation.
    And many companies, Johnson & Johnson, Merck, Prudential, 
prohibit employment discrimination and they find it is really 
to their benefit, it is a matter of corporative 
competitiveness, it is good for their companies as well as good 
for the economy, not to mention the right thing to do.
    Some people still haven't caught on to these benefits yet, 
and I hear from constituents who say that the proposed 
legislation here would grant special consideration on the basis 
of sexual orientation.
    Professor Eskridge, could you quickly address that? Does 
this grant special consideration?
    Mr. Eskridge. Representative Holt, the answer to that is 
no. For example, this bill would prevent a gay bookstore, for 
example, from discriminating against a possible employee 
because she or he is straight. What is good for the goose is 
good for the gander, and I assume that the supporters of the 
bill are fully comfortable with that.
    Now, here is what is going on, though, with the rhetoric of 
special rights. Whenever minority groups, particularly one that 
has been despised, is elevated to a position of equality, there 
is a tendency--and this is not a question of dishonesty or 
whatnot--it is just a tendency for the mainstream to see that 
they are getting special rights.
    We saw this at the U.S. Supreme Court level in Romer v. 
Evans which struck down the Colorado Amendment Two that had 
been adopted in 1992. The majority, by Justice Kennedy, said 
that what Amendment Two would take away from gay people in 
terms of non-discrimination rights is assumed by everybody else 
as just a matter of course.
    The defense, by Justice Scalia, argued that this was 
special legislation and special rights that gay people were 
seeking, and all Amendment Two was doing was to revoke those 
special rights.
    Mr. Holt. Thank you. Mr. Sears, just to underscore the 
point that we are not talking about a few or even many legal 
cases, we are talking about systemic problems here that is to 
be addressed, can you say anything about the effects on 
employment rates or unemployment rates and salaries for, let us 
say, transgendered individuals?
    Mr. Sears. Yes. Let me start by saying that our institute 
does a lot of analysis of data and there are so few government 
surveys and other large surveys that ask questions about 
transgender status that we are really hampered in our ability 
to do a lot of analysis.
    There have been two really tremendous surveys, the largest 
of their kind done this year, one by the Transgender Law Center 
in California, the other by the National Center for Transgender 
Equality and the task force here in D.C., which have large 
samples.
    They have samples that include public employees, and they 
show high rates of discrimination but what they also show are 
alarming rates, unbelievable rates of unemployment and poverty. 
And I think, if you look at those large surveys plus probably 
20 to 30 smaller community-based surveys that have been done, 
that has been consistent throughout the transgender community.
    That while a lot of LGB people get fired from positions, 
the problem with gender identity is getting through the door 
and, if you don't get through the door, you don't have an 
income; you don't have a job.
    Mr. Holt. If you could be sure to provide for us any 
references about those studies. And then really quickly, as you 
have looked at these things, have you found many examples of 
heterosexuals discriminated against because of perceptions of 
homosexuality?
    Mr. Sears. Yes, our examples do include heterosexuals. They 
come to the cases in three ways. The first would be on the 
basis of ``perceived to be gay.'' Under the case in the 
example, two guys in Illinois who worked for the Department of 
Health, they go on a fishing trip, one is married, one is gay.
    The married one comes back to the office and is pestered 
constantly about whether or not he is gay. There are horrific 
facts dealing with sexual harassment. It is taken before court 
and he loses because it is considered not actionable under 
Title VII.
    The second is association claims. There is a case I 
couldn't believe, in Tennessee, where a superintendent was 
asked to speak at a convention held by a church where 
predominately the members were gay, lesbian, bisexual and 
transgender.
    He didn't know that. He accepted the invitation. He then 
couldn't attend, but it was reported in the newspaper that he 
did speak there. There were many complaints made to his school 
board. He addressed that by writing two different articles for 
the paper correcting the inaccuracies.
    And he was terminated--or he was not hired again, 
nonetheless. And he won his case, in the Circuit Court, and his 
argument was ``I personally don't even endorse homosexuality, 
but I have a constitutional right to associate with whoever I 
want, including LGBT people.''
    The third type of case are retaliation cases and there was 
a witness at an ENDA hearing a few years ago who hired a 
lesbian at a radiology department in Washington. That lesbian 
became harassed. She made complaints, to protect her employee, 
to the hospital. The lesbian employee was terminated, as well 
as the supervisor and Nan Miguel spoke here a few years ago 
about her experience.
    So perception, association and retaliation claims are 
mainly how people come----
    Mr. Holt. Thank you.
    Mr. Andrews. Gentleman's time has expired.
    The Chair recognizes the Gentleman from Illinois, Mr. Hare.
    Mr. Hare. Thank you, Mr. Chairman.
    I will--just a question, Mr. Parshall and a comment. I am 
trying to understand why your organization has such a different 
interpretation than the U.S. Conference of Catholic Bishops, 
the Union of Orthodox Jewish Congregations and the General 
Conference of the Seventh Day Adventist Church regarding really 
this exemption.
    I mean, what is it that you see that these folks don't see?
    Mr. Parshall. I think we have taken a little bit more 
realistic and closer look at the history of difficulty that 
religious groups have had qualifying. I mentioned the Montrose 
Christian School case and the difficulty we had to try to 
articulate to the trial courts there what the nature of 
religious liberties are.
    I think also it is not self-evident. The problem with 
Section 6 is not self-evident. In fact, it took me several 
readings before I realized that the difficulty is that you have 
an apples and oranges paradigm.
    Title VII is really made up two parts in terms of its 
exemptions. You have to be a religious corporation, 
association, society, educational institution, so that defines 
you in terms of your organizational status.
    But then the second part is you have to make certain 
decisions or actions with respect to persons of a particular 
religion and that is kind of an action or a conduct prong of 
this. So that is the oranges.
    Now, the apples here are sexual orientation and gender. 
They do not fit when you use a religion paradigm to compare it 
to sexual orientation. So in other words what I am saying is 
the mechanism used doesn't fit.
    At first glance it would and you simply say, ``Well, if you 
are exempt under Title VII, you are exempt here.'' But the 
analysis is not that easy. For instance if, let us say, you had 
a Lutheran orphanage and you had a homosexual man who said he 
was a Lutheran and he is not hired. Was that discrimination 
based on religion or based on homosexuality?
    So in other words, the exemption will be very difficult to 
apply, and I fear and I predict, that the courts will, as the 
tendency has been in a number of cases recently that in a 
conflict between the general laws of discrimination dealing 
with sexual orientation and religious liberties will lose.
    Mr. Hare. Well, let me just say this, you use some--and I 
will finish on this--I am going to anger my chair--you use 
phrases like a mirage, quoting, ``get a pass'' and ``a crazy 
quilt,'' but one of the things that I think troubled me was 
when you said this was a violation of the Bible. Just from my 
perspective, and I don't want to get into biblical debate 
here----
    Mr. Parshall. Sure.
    Mr. Hare [continuing]. But I have to tell you--there was a 
great man 2,000 years ago in that Bible and the people that he 
was closest to were the people that were the biggest outcasts 
in society. And you know, we keep hearing about this.
    And I think it is the same person, I could be wrong, I 
don't read it every single day, but I don't think I am mistaken 
when he said, ``Whatsoever you do to the least of my people 
that you do to me.'' And I quoted this at the first ENDA 
hearing that we had.
    And I have to tell you the testimony that we have heard 
from Ms. Glenn and Professor Eskridge today, the treatment that 
they had is, to me, appalling.
    And I have to tell you, Ms. Glenn, I hope you take it to 
them on this lawsuit, I hope you get your job back, you deserve 
it. The way you were treated was absolutely horrendous. And I 
just wanted to ask you one thing. What did your co-workers say 
when they found out that you were being fired? Did you get any 
feedback from them?
    Ms. Glenn. I was rushed out the door before I had a chance 
to talk to any of them. I have remained friends with some of 
them since then and they are as supportive now as they were 
then.
    Mr. Hare. They rushed you out the door--were they afraid 
you were going to steal something on the way out, too or----
    Ms. Glenn. Apparently.
    Mr. Hare. Well, I will tell you one thing they can't steal, 
they can't steal your courage and they can't steal what is 
right and I appreciate everybody coming today.
    Thank you, Mr. Chairman. I yield back.
    Mr. Andrews. Thank you, Mr. Hare.
    The Chair recognizes Mr. Polis.
    Mr. Polis. Thank you, Mr. Chairman. I want to thank you as 
well as Chairman Miller for holding this important hearing 
today as well as your leadership on this bill as well as in 
past Congresses. This is an issue that is of great personal 
importance to me as well as philosophical importance to me and 
the residents of my congressional district.
    And I want to thank you and Chairman Miller on both of 
those levels, personal and philosophical, for your leadership.
    I am proud to sit here today representing a state that has 
in place employment protections for gays, lesbians, bisexual 
and transgender individuals, following a law that signed into 
law in 2007 by Governor Ritter.
    However, our state's history, unfortunately, includes a 
more offensive time of legalized discrimination and prejudice 
through the passage of Colorado's infamous Amendment Two. The 
fact that a discriminatory law can be passed at the state level 
specifically targeting local nondiscrimination ordinances and 
seeks to attack the professions, prosperity and personal lives 
of innocent individuals, speaks to the overwhelming need for 
federal legislation that guarantees all individuals access to 
equal employment rights under the law.
    My question for Professor Eskridge, I know that during 
Colorado's consideration of Amendment Two, the inflammatory and 
particularly prejudiced arguments that were used by proponents 
played a significant role in the outcome.
    I was hoping you could share with us examples of these 
inflammatory and prejudiced arguments that you researched from 
Colorado and from other states, where these arguments and 
inciting of irrational fears have had a significant influence.
    Mr. Eskridge. Representative Polis, I appreciate that 
question coming from a son of Colorado. In 1992, as you say, 
Amendment Two was a hotly contested amendment. My sources, by 
the way are not just Internet research but main sources are the 
official ballot materials that were prepared in support of 
Amendment Two that were promulgated to the voters.
    And a book written by Stephen Bransford who was a leading 
strategist, and his book speaks specifically to what the 
moderates were trying to do in those ballot materials, and 
Bransford brags that the extremist arguments were left out.
    Okay. Now, the materials by the way are reproduced as an 
appendix to William Eskridge and Nan Hunter's case book on 
sexuality, gender and the law. So they can be accessed 
literally.
    The kinds of arguments that were used were homosexuals, 
using their language, are diseased. The materials stated that 
the average gay man lives to the age of 42, only that because 
of disease, but that the average lesbian makes it to 45.
    Okay, well, I have already eclipsed that, maybe you have 
not. I have already beaten the record and I am very proud of 
that. That is obvious nonsense. The materials say that gay 
people are predatory. The materials say ``target your 
children,'' that homosexuals are after your children.
    They say that gay people are trying to destroy the family. 
They say that gay people are trying to destroy the church. They 
say that gay people are trying to seek special rights and don't 
deserve those rights because they are not similarly situated to 
other disadvantaged groups.
    The materials go on--and these are the moderate materials. 
Stephen Bransford says these were the moderate arguments, the 
responsible arguments that were accepted rather than the nutty 
or radical arguments.
    And the materials are saturated with open appeals to anti-
gay and anti-lesbian prejudice. They are saturated with open 
invocations of stereotypes that are deeply erroneous. These 
stereotypes have never had one ounce of factual support.
    And in my statement I cite you the empirical studies that 
demonstrate that in terms of abuse of children, this is not a 
lesbian problem. It is not an openly gay man problem. It is a 
man problem, et cetera.
    Mr. Polis. Thank you. You know, as a member of Congress who 
happens to be of the Jewish faith, I see a lot of similarities 
to caricatures of Jews through history as predatory against 
children, of setting the institution of church and the 
tradition of anti-Semitism that continues to leave its legacy 
to this day, a lot of similarities in terms of the stereotyping 
that has occurred here.
    A follow-up question for Professor Sears, I know that 
Colorado isn't the only state to pass this kind of measure and 
I wanted to ask if you could provide additional examples to 
those that Professor Eskridge cited?
    Mr. Sears. Yes. The Supreme Court, in the Romer decision 
which declared Amendment Two unconstitutional, Justice Kennedy 
wrote that this effort was just--a literal violation of equal 
protection. It was inexplicable to accept a law based on animus 
and hostility towards a community. But there have been 115 such 
efforts from 1974 to the present.
    After 1996, when Romer was decided, there have been several 
dozen efforts to either repeal laws that have been passed to 
protect LGBT people in the workplace or to block them just like 
Amendment Two from being asked.
    So these initiatives continue, and I think it is one thing 
that really marks discrimination against LG people is that 
there is an ongoing persistent effort to repeal those laws, to 
block them and even to enact into law, in doing so, 
discriminatory statements about LGBT people.
    Mr. Andrews. Gentleman's time has expired, thank you.
    The Chair recognizes Mr. Tonko.
    Mr. Tonko. Thank you, Chair. Let me thank the panel for 
participating here today. The information is helpful. I 
represent a congressional district in upstate New York and so, 
Professor Sears, I would like to ask of a report--I noted in 
your report that there was a situation in upstate New York, 
where a city employee, a gay employee was suspended for wearing 
a baseball cap with a rainbow flag.
    Mr. Sears. Yes.
    Mr. Tonko. And I understand from your report also, that the 
employer's rules did not prohibit the wearing of baseball caps. 
So could you further comment on that case for me, please?
    Mr. Sears. Yes. This was someone who worked for the highway 
system of New York and he was working in that city. He wore a 
baseball cap which actually had a ribbon on it. Half of the 
ribbon was red to show compassion towards people with HIV and 
the other half was a rainbow flag. He was told he couldn't wear 
it and discriminatory action pursued from that.
    He was represented and I think it was a case where the 
discrimination was so blatant that the city eventually 
apologized because there had been no policy against wearing 
hats, it was just his identification again with LGB people. His 
First Amendment rights to expression were so clearly violated 
that they apologized for doing that.
    Mr. Tonko. What do you interpret or what would that suggest 
about the intersection of First Amendment rights and 
discrimination against the LGBT community?
    Mr. Sears. I think in these cases--there are a number of 
First Amendment cases. They deal with an expression to a piece 
of clothing. Discrimination that is triggered by attending an 
event or a rally and someone in someone's community sees that 
and that is the basis, discrimination for saying that you are 
gay when asked by other people in your workplace.
    The case that I mentioned in Tennessee, there is a right to 
free association protected by the First Amendment. All of these 
are influence cases.
    I think what is very true about discrimination on the basis 
of sexual orientation and gender identity is that there are 
these equal protection issues that we see readily. There are 
also due process issues which we have discussed and First 
Amendment issues. It is really a cluster of constitutional 
rights that are implicated.
    Mr. Tonko. It is rather interesting that this was, again, 
was a municipal situation, a local city government----
    Mr. Sears. Right.
    Mr. Tonko [continuing]. Is in the midst of that case, so.
    Mr. Sears. Yes, yes. I mean the other case about New York 
which I was happy to come across was an opinion by Justice 
Sotomayor dealing with another cluster of cases I wasn't aware 
of until this study, which is--there is several cases dealing 
with inmates who have jobs in prisons and that is important as 
a way to rehabilitate and getting skills when they leave. And 
they are fired or harassed or inmates are told about their 
sexuality and gender identity and they are threatened in that 
way.
    And Justice Sotomayor had a case when she was a district 
judge where there was a motion to dismiss the case because the 
prison said the fact that somebody with sexual orientation 
implicated mess hall security.
    And she wrote, ``A person's sexual orientation standing 
alone is not reasonably, rationally or self-evidently implicate 
mess hall security.'' There was just no way to make the 
connection. I think that shows the irrationality of the 
discrimination.
    Mr. Tonko. Thank you so much.
    Mr. Andrews. The gentleman's time has expired.
    The Chair recognizes the senior Republican for any closing 
remarks he has today.
    Mr. Kline. Thank you, Mr. Chairman. I want to thank--I am 
sorry.
    Mr. Andrews. Oh, I am sorry.
    The gentlelady from California. I apologize. My eye didn't 
wander quite that far. Excuse me.
    Ms. Chu. Well, I want to thank the whole panel for being 
here and, in particular, I want to thank Professor Sears who 
comes from my own state of California and is bringing to us the 
work of the Williams Institute which has done such outstanding 
research on LGBT issues.
    And it has led to the passage of laws in California to 
prohibit discrimination against gay and lesbian transgendered 
individuals, which I was proud to vote on, when I was in the 
state assembly.
    I found your report on the consequence of employment 
discrimination on the wages of LGBT workers to be very 
disturbing and that is that LGB workers earn 8 to 29 percent 
less than their heterosexual counterparts.
    Do you have any data or anecdotal evidence with regard to 
the effect of employment discrimination on other factors such 
as employee morale, career longevity or career success?
    Mr. Sears. Yes. From other reports we have done, not this 
one, we have collected information about how discrimination on 
the basis of sexual orientation and identity impact kind of the 
bottom line of businesses.
    And some of those impacts is that it has shown that people 
who aren't out in the workplace have lower morale, lower 
productivity, they are not free to be who they are. The idea of 
networking is a threat instead of a way to get ahead and 
companies lose because of that.
    I think that is also true in the public sector. I mean, I 
think Representative Payne mentioned these cases, which there 
are several of around the country, where someone is on a police 
force or a firefighter and the people around them don't back 
them up.
    That is not only a loss of that person, that means that 
whatever emergency is being addressed is being filtered through 
this lens of discrimination which inhibits the most effective 
response.
    Ms. Chu. And you also state that LGBT employees are 
reluctant to pursue claims for fear of retaliation or outing 
themselves. Do you have any projection as to the proportion of 
the reported to unreported claims?
    Mr. Sears. Yes, there are several studies. I mentioned one 
of them earlier by the Transgender Law Center that showed of 
those people who had experienced discrimination about 15 
percent actually filed a complaint, so 85 percent did not.
    That is kind of in the high end of the scale of what we see 
in the studies, but we typically see some one-third to a high 
percentage like that not pursuing it because they don't want 
out themselves within the community.
    And in some cases because there is no law, this is not 
inked on the books, what are they going to pursue, and fear 
about receptivity of the complaint by the administration, 
agencies and courts.
    One thing California has done that the only other state has 
done is New Jersey, is a survey of the judiciary and how do 
LGBT people feel about the consequences, when they bring a 
claim in the California court system and the New Jersey system. 
Both found about 50 percent don't feel like their case is 
adequately heard based on their sexual orientation or gender 
identity.
    Ms. Chu. Thank you.
    I yield back my time.
    Mr. Andrews. Thank you. Again, I apologize.
    The Chair recognizes the senior Republican member.
    Mr. Kline. Thank you, Mr. Chairman. Again, I want to thank 
all the panelists for being here, for your testimony, for your 
frank answers to our questions.
    A couple of points, I have been making a point, since I 
have been on this committee that we are in the business of 
writing law here and making statute, and we need to be as clear 
as possible in--when we do that, to rid ourselves, to alleviate 
the problem of interpretation and the rule makers.
    And so I want to thank you, particularly Ms. Olson, for 
your comments on that and we are looking forward to you 
providing some more information to help clear up that and 
alleviate some of those problems.
    And then, in general--I noticed last time, in the 110th 
Congress and again it came up this time and will continue to 
come up, because this is not just an employment issue but it is 
also, clearly, a very emotional issue.
    And we have heard testimony from witnesses, both in the 
last Congress and this Congress and the statements from our 
colleague sometimes referring to their religion, their theology 
mandating that they either vote for or against this 
legislation, and we need to be mindful of that.
    We heard today, for example, Mr. Hare quoting the Bible. We 
have heard others certainly talking about the strict 
admonishments in the both the Old and the New Testaments, 
certainly Paul's letters against homosexual acts, so that is 
going to continue to be part of this debate, no doubt.
    And I hope that we are very clear, as we go forward, in 
protecting the religious freedoms that Mr. Parshall was talking 
about as we work on what is fundamentally employment law.
    And so I thank you, Mr. Chairman, for your time and I yield 
back.
    Mr. Andrews. I thank you. I thank each of the witnesses 
from each of the panels for their participation, their 
research, their preparation. It has been very valuable to the 
deliberations of the committee and we thank you.
    You know, some of the earliest settlers who came to North 
America from Europe and engaged with those who were already 
there in a rather ugly style very often, came here because they 
wanted to live in a place where no one could tell you how to 
worship or what your philosophy ought to be, and one of the 
core principles that have governed this country since then as 
we have clung very closely to that philosophy.
    I agree with my friend that this is not about someone's 
interpretation of their personal theology. It is about a very 
basic principle in American law, a very basic aspiration of 
American law, which is merit, which is that your ability to get 
a job, rise up the ladder, excel in our profession should be 
about your skills, your motivation and your work ethic.
    It should not be about your worship, the color of your 
skin, your gender, and we believe strongly it should never be 
about your sexual orientation or that you are a member of the 
transgender community.
    I think there is almost unanimity in this Congress for the 
proposition that who gets hired and promoted should be on basis 
of merit; probably is close to unanimity for that proposition.
    I know there would be some of us who would disagree as to 
whether this statute is necessary to achieve that objective. I 
think it emphatically is and I look forward to the debate 
within the committee and on the floor forthcoming so that we 
can each express our views and the House can work its will.
    Ladies and gentlemen, you have been very helpful in helping 
us reach those conclusions. We thank you very much. Without 
objection, members will have 14 days to submit additional 
materials or questions for the hearing record.
    Without objection, the hearing is adjourned.
    [The statement of Ms. Chu follows:]

Prepared Statement of Hon. Judy Chu, a Representative in Congress From 
                        the State of California

    The United States of America made great strides in the last century 
to provide rights and protections to our most disadvantaged 
communities. Laws were made that made limited the workday and made it 
illegal for companies to profit off of child labor. Women were given 
the right to vote and their opportunities to thrive in our society 
continue to grow. The Civil Rights Act codified Martin Luther King 
Jr.'s dream by ensuring that all people of color could go about their 
lives free from persecution.
    But the fight is not over. The 21st Century will be known for 
ensuring that every individual no matter what they look like, how they 
dress or who they love is equally protected in every way. This bill, 
the Employment Non-Discrimination Act (ENDA), is a big step toward 
equality for all. Individuals around the country, and many in 
California, have been through the most difficult and emotional 
situations because they found themselves harassed at work, given poor 
performance reviews, even terminated because of who they were.
    There are countless acts of discrimination in the workplace, they 
happen every day to Americans of every type. But most of these 
individuals have a recourse, someone they can turn to to right these 
wrongs and set things right--the Federal Government. Members of the 
LGBT community are without a strong advocate, but they need and deserve 
protection just as much.
    When I was in the Assembly, I fought for this protection and the 
rights of this often neglected community. When asked by my constituents 
and my opponents why I support the LGBT community, I describe my 
experience as Chair of the State Assembly's Select Committee on Hate 
Crimes, where I held hearings on hate crimes in both the Asian-American 
and the LGBT community. Kenny Chiu was a 17 year old Taiwanese American 
who was stabbed to death 26 times in the driveway of his own home by 
his neo-nazi neighbor * * * just for being Asian-American. Matthew 
Shepherd was only 21 years old when he was dragged from a bar, beaten, 
tied to a split-rail fence like a scarecrow and left to die in the cold 
of the night--just for being gay. I cannot fight for the civil rights 
of one group without fighting for the civil rights of the other. Things 
will not change until people stand up and say strongly and 
unflinchingly that we will not tolerate making anybody in America a 
second class citizen.
    California was one of the first states in the nation to pass 
employment protections for both homosexuals and transgender workers. I 
am proud to have voted for in favor of both of these laws as an 
Assemblywoman and look forward to the day I can cast my vote on the 
House Floor to provide these same protections to everyone, when we can 
all stand side by side as truly equal Americans.
                                 ______
                                 
    [Additional submissions of Mr. Kline follow:]

        Prepared Statement of the Educational & Legal Institute,
                      Traditional Values Coalition

A Sexual Anarchist Testifies At ENDA Hearing
    October 9, 2009--Yale Law School Professor William N. Eskridge 
provided testimony at the ENDA (H.R. 3017) hearing on September 23 
before the House Committee on Education and Labor in the House of 
Representatives. Republicans had two panelists to testify against ENDA; 
Democrats had seven.
    Eskridge claims that the Employment Non-Discrimination Act (ENDA) 
must be passed in order to protect lesbian, gay, bisexual and 
transgender employees from workplace discrimination--especially in 
state the local governments. According to Eskridge, ``ENDA abrogates 
the states' Eleventh Amendment immunity, pursuant to Congress's 
authority to enforce the Fourteenth Amendment. The Supreme Court has 
said that Congress has Fourteenth Amendment authority to create a 
remedy for state violations of constitutional rights and to establish 
prophylactic rules to head off harder-to-discern constitutional 
violations. The 11th Amendment to the U.S. Constitution provides a 
certain degree of sovereign immunity for states. ENDA would undermine 
this amendment and give the federal government power to use the 14th 
Amendment against the states in employment matters.
    In plain English, Eskridge wants to use ENDA to violate the right 
of states and local governments to set their own employment policies.
    During a portion of his ENDA testimony, he referred to the effort 
of citizens in Colorado to keep LGBT individuals from receiving special 
rights in Colorado law. He noted that:
    The arguments in favor of the constitutional initiative included 
the following: so-called ``homosexuals'' are promiscuous (``[t]heir 
lifestyle is sex-addicted and tragic'') and consumed by venereal 
disease (according to the official Amendment 2 ballot materials, the 
average gay man dies at 42 years old, the lesbian at age 45); they are 
predatory, seeking to invade decent people's houses and schools, take 
away their jobs, recruit their children, and ``destroy the family;'' 
and Coloradans should undo ``special rights'' given by some communities 
to ``homosexuals and lesbians'' that disrupt traditional family values 
and good institutions such as churches. The sponsors of the initiative 
believed that these were ``moderate'' arguments--but in fact they are 
open appeals to anti-gay prejudice and invoke deeply erroneous 
stereotypes of LGBT people as diseased, predatory, and disruptive.
    Even when they are not so explicitly set forth as they were 
recently in the Colorado campaign, these anti-gay tropes--immorality, 
predation, and disruption--still motivate state officials to 
discriminate against sexual and gender minorities
    In his spoken testimony, he denied that any of these Amendment 2 
claims were true. However, he misstated the facts. Here are the facts--
from medical journals and other reputable resources.
     Average gay man dies at 42; lesbians die at 45.
     The gay lifestyle is sex-addicted and tragic.
     Gays are consumed by venereal diseases.
     Gays are predatory.
     Gays and public school children.
     Gays want to destroy the family.
     Gays want to disrupt good institutions such as the church.
    Professor Eskridge wrote an amicus brief for the Lawrence v. Texas 
case that became the philosophical justification for the Supreme Court 
to overturn all state laws against sodomy in 2003.
    Eskridge is author of Dishonorable Passions, a history of sodomy 
laws in the United States from 1861 to 2003. In 2003, the Supreme Court 
issued its Lawrence v. Texas decision. He is a long-time activist on 
behalf of LGBT individuals who engage in sexual behaviors that have 
resulted in the spread of venereal diseases and AIDS not only among 
gays, but bisexuals who have spread AIDS into the heterosexual 
community.
    Eskridge is not only an LGBT activist but an advocate for the 
abolition of the concept of marriage altogether. He has support 
Sweden's efforts to normalize homosexuality and polyamory--the sexual 
arrangement that includes any number of males or females in a sexual 
arrangement. Eskridge warns against ``fetishizing'' the institution of 
marriage as a one-man, one-woman union.
    Professor Eskridge is also author of Gaylaw: Challenging the 
Apartheid of the Closet. In it, he criticizes laws against 
prostitution, sado-masochism, pornography, and some forms of 
intergenerational sex (sex with minors).
    According to Eskridge, ``* * * most adolescents are ready for sex 
and have had sex by aged fifteen but are still not mature 
decisionmakers; intergenerational sex within a family can be extremely 
disruptive, but legal intervention may deepen rather than alleviate the 
disruption.'' (Gaylaw, page 267)
    Eskridge thinks that sex with pre-teens should be illegal, but he's 
not overly concerned about: An adolescent girl who has sex with a 
related male adult; a teenage girl who has sex with a male adult 
outside of the family; an adolescent boy who has sex with a related 
adult; or an adolescent boy who has sex with an adult outside of the 
family. (Page 267)
    Eskridge claims that criminalization of incest and 
intergenerational sex ``allows sex-negative groups to oppose spending 
state money on sex education and victim-centered therapies without 
admitting that they are beggaring a solution.'' (Page 270)
    In short, Eskridge is a sexual anarchist who favors adult-teen sex 
and the abolition of certain laws that regulating sexual activities 
between adults and teenagers.
    Eskridge compares religious liberty to sexual orientation and 
believes the Constitution protects a person's sexual orientation in the 
same way that it protects religious liberty. He claims that the Due 
Process and Equal Protection Clauses of the Constitution should be used 
to invalidate all laws that ``discriminate'' against sexual 
orientation.
    In Eskridge's 1997 essay in the Yale Law Journal, ``A Jurisprudence 
of `coming out,': religion, homosexuality, and collisions of liberty 
and equality in American public law,'' he once again compares religion 
to sexual orienatation. He writes:
    Although the law has most often been deployed as an instrument of 
suppression, there is now a public law concensus to preserve and 
protect the autonomy of religious and ethnic subcultures, as well as 
the ability of their members to self-identify without penalty. One 
thesis of this Essay is that this vaunted public law consensus should 
be extended to sexual orientation minorities as well.
    Eskridge that the ``religion clauses of the First Amendment as they 
have been developed in the last generation are a model for the state's 
treatment of sexuality.''
    He continues to place sexual orientation on the same level as 
religion and believes both are protected by the Constitution.
    But, what happens when religion clashes with the gay agenda? 
Eskridge believes the law should be changed to include ``gaylegal'' 
concepts of jurisprudence.
    He also believes that the government has a duty to reduce 
``historical discrimination'' that justifies burdens on the First 
Amendment.
    He cited the 1983 Bob Jones University case that gave the IRS the 
power to strip the university of its exemption as a charitable 
institution because it forbade interracial dating.
    This and other cases are used by Eskridge to argue that it's okay 
to violate religious freedom when discrimination is involved. He uses 
this argument to promote the idea that ``sexual orientation'' 
discrimination claims will trump religious freedom claims. When 
religious freedom clashes with the gay agenda, the gay agenda should 
win, according to Eskridge.
    Yet, Eskridge also says: ``That the state as employer ought not 
discriminate on the basis of sexual orientation in its own employment 
and contracting policies, perhaps as a matter of constitutional law, 
does not mean that the state also must require private institutions to 
follow the same non-discrimination policy. When the state seeks to 
censor my expression or discriminate against me, I am on strong 
constitutional ground in resisting; when the state seeks to impose my 
expression on your turf or to silence your opposition to open 
homosexuality, I am on much weaker constitutional ground. The continuum 
from nuclear family to the regulatory state parallels a continuum of 
defensible imposition of public equality goals, with the state being 
most defensible and the family being least.''
    ENDA, however, would impose these pro-LBGT anti-discrimination 
policies not only on privately-run businesses, but on Christian-run 
businesses as well.
    His gaylaw ideas would routinely trump religious freedom in favor 
of imposing the LGBT agenda on any business with more than 15 
employees.
    This is the philosophy of the Democrats' ``expert witness'' who 
testified on behalf of ENDA on September 23, 2009 in the House of 
Representatives.
                                 ______
                                 

Special Report of the Traditional Values Coalition, Educational & Legal 
                               Institute

H.R. 3017, the Employment Non-Discrimination Act (ENDA)
    ENDA will force employers with 15 or more employees to implement 
the homosexual/transgender radical agenda in businesses across the 
nation.

    Fall 2009--Once again, homosexual legislator Barney Frank (D-MA) 
has introduced the ``inclusive'' H.R. 3017, the Employment Non-
Discrimination Act (ENDA) to create federally-protected minority status 
for homosexuals and transgenders in employment.
    Democrats held a three-hour hearing on ENDA on September 23.
    Republicans had two witnesses testifying about the problems with 
ENDA. They were an employment law attorney and religious liberties 
attorney.
    Democrats had the rest of the panelists: A male-to-female 
transgender person; the Chairman of the Equal Employment Opportunity 
Commission, a gay researcher, a gay law professor; a liberal Jewish 
leader; and gay activists (pretending to represent the people in their 
districts) Rep. Barney Frank (D-MA) and Rep. Tammy Baldwin (D-WI).
    The hearing was an orchestrated propaganda event promoting the gay 
lifestyle and Gender Identity Disorders.
Incrementalism As A Strategy
    The LGBT (lesbian, bisexual, gay, transgender) movement is using 
what is called ``incrementalism'' in order to gain its objectives. One 
advocate of this incrementalism is lesbian lawyer Chai Feldblum, who 
was the primary author of ENDA. She has been picked by President Obama 
to serve on the Equal Employment Opportunity Commission (EEOC), the 
federal agency that will enforce ENDA against American businessmen and 
Christian leaders. At this writing, she is not yet confirmed. Feldblum 
believes that the gay agenda should trump religious liberties.
    Feldblum has written that incrementalism is the best way to achieve 
LGBT objectives. They are willing to put meaningless religious 
exemptions into ENDA. They are doing this to neutralize the opposition. 
They will return later to remove whatever exemptions were in the bill. 
The tactic is used so that they can get the votes from uninformed 
legislators to pass ENDA. Then, they will demand more at a later time.
    Chai Feldblum has openly stated: ``* * * when push comes to shove, 
when religious liberty and sexual liberty conflict, I'm having a hard 
time coming up with any case in which religious liberty should win.'' 
(Maggie Gallagher, ``Banned in Boston: The coming conflict between 
same-sex marriage and religious liberty,'' 5/15/2008)
    Once Feldblum is on the EEOC, she can be expected to implement her 
ideas against religious liberty. She will enforce ENDA with a 
vengeance.
    ENDA is proposing newly invented rights for individuals who engage 
in a variety of bizarre sex acts. ENDA pits constitutional rights of 
religious freedom and free speech against individuals who cross-dress 
or engage in dangerous sexual activities.
    Openly gay John Berry runs Office of Personnel Management, which is 
the federal government's personnel agency. He recently gave a speech at 
a LGBT conference and said that ENDA is the most important piece of 
legislation the LGBT movement can get passed. He told his audience:
    The most important thing we can do right now is we got to * * * 
secure the passage of the Employment Non-Discrimination Act * * * I 
believe that if we all concentrate our efforts where it needs to be 
concentrated, which is on the House of Representatives and the United 
States Senate, we can get the job done.''
    If we can get ENDA enacted and signed into law, it is only a matter 
of time before all the rest happens. It is the keystone that holds up 
the whole bunch, and so we need to focus our energies and attention 
there.
    ENDA, (H.R. 3017) includes coverage of ``gender identity.'' The 
term ``gender identity'' is code for drag queens, transvestites, and 
transsexuals. The umbrella term ``transgender'' is used to describe 
these individuals. H.R. 3017 describes ``gender identity'' as ``the 
gender-related identity, appearance or mannerisms, or other gender-
related characteristics of an individual, with or without regard to the 
individual's designated sex at birth.''
    ENDA describes ``sexual orientation'' as homosexuality, bisexuality 
and heterosexuality, but also adds ``gender identity'' as a protected 
class. This is code for someone who thinks he's the opposite sex or 
likes to wear opposite sex clothing. It also includes she-males, 
individuals who undergo only half of a sex-change operation. They are 
male from the waist down and female from the waist up.
    By making ``gender identity'' a federally-protected class under the 
law, this normalizes what are mental illnesses, known as a Gender 
Identity Disorder and/or Transvestic Fetishism. It elevates what a 
person ``thinks'' he is over what he actually is.
    Congress should not be passing a law that affirms special minority 
protections for individuals who believe they are trapped in opposite 
sex bodies. This mental disorder is a treatable condition, not a fixed 
identity that must be accorded federally-protected class status.
    Congress is equating this mental disorder to being equal to 
African-American or Hispanic under the law. If ENDA passes, the Civil 
Rights Act of 1964 will be amended to include gays, lesbians, 
bisexuals, cross-dressers, and she-males under the law.
    During the hearing, no one discussed GID; they only discussed 
``gender identity'' as if this were a normal variation of sexuality. It 
isn't. It is a mental disorder, still listed in the American 
Psychiatric Association's Diagnostic and Statistical Manual of Mental 
Disorders (DSM-IV-TR).
    Dr. Paul McHugh has been a critic of the idea that GID is normal 
and that so-called sex changes are normal and medically necessary. He 
became the psychiatrist-in-chief at Johns Hopkins University in 1975 
and put an end to the practice of providing sex-change operations for 
patients. Writing in his essay, Surgical Sex for First Things in 2004, 
McHugh observed: ``We have wasted scientific and technical resources 
and damaged our professional credibility by collaborating with madness 
rather than trying to study, cure, and ultimately prevent it [GID].''
    Dr. McHugh believes that psychiatrists are collaborating with a 
mental illness by approving sex change operations on individuals. The 
problem is one of the mind, not the body. A person who has a gender 
identity disorder needs therapy, not surgery. Mutilating your body is 
the ultimate act of self-hatred.
    YouTube--ENDA Testimony from Rep. John Kline (R-MN)
    YouTube--ENDA Lawyer Camille Olson
    YouTube--William Eskridge on Gender Identity
    YouTube--Gay law professor testifying at ENDA hearing, September 
23, 2009
    YouTube--Craig Parshall Part 1--ENDA Hearing
    YouTube--ENDA Testimony--Olson & Parshall
    YouTube--ENDA--Rep. Dennis Kucinich
    YouTube--ENDA--Rep. Kucinich wants gay/transgender bill to cover 
companies with 5 or more employees
    YouTube--ENDA Hearing--Acting Chairman Of EEOC Speaks In Support of 
ENDA
    YouTube--ENDA Bradley Sears
Lawyer Notes Problems With `Gender Identity' In ENDA
    During the September 23rd hearing, one panelist was a lawyer who 
pointed out serious problems with ENDA as it relates to gender identity 
(Gender Identity Disorder).
    Camille A. Olson, with the firm of Seyfarth Shaw LLP, noted that, 
as written, ENDA fails to define if an employer is required to modify 
existing restrooms and shower facilities to deal with transgender 
employees (those who have ``undergone'' or are ``undergoing gender 
transition).
    Olson also points out that ENDA doesn't define what it means for a 
person to have ``undergone'' or who is ``undergoing'' gender 
transition. These terms can mean anything.
    Does a man who dresses like a woman but has not had a sex change 
meet the criteria for ``undergoing'' transition? If so, does he get to 
use the women's restrooms?
    A She-Male is a mentally disordered person who ``undergoes'' only 
half of a sex change operation. Typically this is a male who takes 
hormones to grow breasts but maintains his male sex organs. Gay/Tranny 
porn sites are filled with grotesque photos and videos of She-Males 
engaged in disgusting sexual antics.
    How is a business to handle a She-Male? What restrooms or shower 
facilities will they use?
News Stories Illustrate Problems With Protecting `Gender Identity'
    A so-called `transgender' teenager in Texas won the right to wear 
girl's clothing to school. Rodney Evans, who calls himself Rochelle, 
was a 15-year-old at Eastern Hills High School in Fort Worth, Texas. 
Evans fought for the right to wear make-up, fake breasts and women's 
jeans to school. In a Dallas News (May 19, 2007) interview, Evans told 
the reporter: ``There was never a day when I was Rochelle for the whole 
day. I love makeup. I started wearing makeup because it helped to 
complete me more. It made me feel more like a girl. With the help of 
makeup, you can create your own kind of life.''
    The article quotes Simon Aronoff, who served at the time as deputy 
director of the National Center for Transgender Equality in Washington, 
DC: ``Transgender teens are demanding acceptance in all facets of 
society including school.'' (Aronoff is a young woman who thinks she's 
a man. She came out to her parents as a lesbian as a teenager, but is 
now taking male hormones and sports a goatee.)
    How will businesses deal with Rodney Evans when he enters the work 
force? He claims that there was ``never a day when I was Rochelle for 
the whole day.'' If Evans can determine his ``gender identity'' from 
day to day, how will his behavior impact employment policies if ENDA 
passes?
    Will Evans be a woman on Mondays, Wednesdays and Fridays at work 
and a man on Tuesdays and Thursdays? What restrooms will Evans use if 
he doesn't undergo a sex change operation? What shower facilities? Will 
businesses have to provide separate facilities for him? If Evans 
applies to a school to become the women's gym coach, will the school 
have to hire him?
    A second story out of Duke University also illustrates the problems 
of providing federal protection for the ephemeral term ``gender 
identity.''
    In August, 2007, the Duke University Chronicle reported that a 
young gender-confused male student at Duke University (who thinks he's 
a woman) was given permission to use the women's restroom at a dorm on 
campus. The man has not yet had a so-called ``sex change'' operation. 
(Even if he did have the operation, he would still be genetically a 
male, not a female.)
    Lee Chauncey, a father of one of the female students said he was 
outraged by Duke's willingness to permit this man to use a woman's 
restroom. He contacted Duke University officials and the national media 
over this situation. (The gender-confused young man was eventually 
moved off campus.)
    Chauncey told a local ABC affiliate that he didn't think it was 
appropriate to have a man living like a woman and using women's 
``shower and bathroom facilities.''
    This incident at Duke University is a microcosm of the social chaos 
that will result if ENDA is passed. ENDA, by providing federally-
protected status for ``gender identity,'' will be creating not only a 
third sex, but will be normalizing a whole range of bizarre sexual 
orientations.
    A third story out of Seattle also shows the serious problems that 
will be created by ENDA. Transgender women invade men's restrooms at 
Seattle mall.
    On August 31, 2007 at a Seattle mall, two women who are taking male 
hormones were kicked out of a men's restroom. They were attending a 
Gender Odyssey Conference at the Washington State Convention and Trade 
Center and were staging a ``pee-in'' at the 4th floor bathrooms. This 
was clearly a set-up.
    Washington state passed a ``sexual orientation'' and ``gender 
identity'' protection law in 2006. These gender confused women filed a 
lawsuit against the mall to test the law.
    According to Sean (who only wanted her last name used), ``Peeing is 
basic. Anyone who feels a need to use a bathroom should be able to do 
so without something [sic] rapping on the stall while your pants are 
down around your ankle.'' Sean and her friend Simon want to use 
whatever restrooms they choose.
    If ENDA passes, businesses will be forced to permit 
``transitioning'' men and women to use opposite sex restrooms. Or, face 
EEOC lawsuits.
Attorney Fees Problem & Due Process Violated
    During the Q&A session, Republican Representative John Kline (MN) 
questioned Ms. Olson about the attorney fees and fines that can be 
levied by the Equal Employment Opportunity Commission (EEOC) under 
ENDA.
    Olson pointed out that ENDA says that it doesn't intend to deal 
with attorney fees in any way other than what is available under Title 
7 of the Civil Rights Act of 1964, however, it does just that.
    ENDA says that procedures and remedies will permit the EEOC to levy 
fines and grant attorney fees to the alleged victim of sexual 
orientation or gender identity discrimination. According to Olson, the 
EEOC is supposed to be an investigative body where the rules of 
evidence do not apply and where employees and employers share 
information with the hope to be able to resolve issues without 
litigation.
    Olson notes that all other employment anti-discrimination laws give 
the EEOC no power to grant attorney fees in connection with any of its 
administrative proceedings. Under ENDA, the decision of the EEOC is not 
reviewable by a court and does not have to be based on any written, 
reasoned decision. Due process is being violated by ENDA.
Rep. Biggert Interviews EEOC Chairman
    During the hearing Rep. Judy Biggert (IL) interviewed Stuart 
Ishimaru about attorney fees and fines. Biggert is a co-sponsor of 
ENDA. Ishimaru claims that ENDA permits the EEOC to do what they are 
already permitted to do under Title 7 for federal employees. He denies 
that ENDA has any of the concerns expressed by Camille Olson.
    Biggert admitted that ENDA grants power to the EEOC to grant 
attorney fees--a power not given under other anti-discrimination 
legislation.
ENDA Will Normalize `Transgender' Teachers & Students
    The passage of ENDA will help promote Gender Identity Disorders 
among teachers and students. Students will be forced to accept the idea 
of having ``transgender'' or cross-dressing teachers in their 
classrooms.
    Students at a high school in Batavia, New York faced this in 2006. 
The earth sciences teacher decided he was a woman and began wearing 
dresses to class. Students and parents who thought this was abnormal 
were vilified by school officials. Students were forbidden from opting 
out of his class. In addition, the students had to refer to him as 
``Mrs.''
    A similar outrage occurred in 2008 in Vacaville, California. In an 
elementary school, a music teacher decided she was really a man and 
began teaching children as a man at the start of the school year. 
Parental objections were rejected and students were forced to be taught 
by a gender confused woman pretending to be a man.
    In addition, sexual anarchist pediatricians are now claiming that 
children who are gender confused are really just being who they were 
meant to be. Pediatricians are suggesting that children who think they 
are the opposite sex should be given hormones to prevent puberty--so 
they can choose what sex they want to be!
    Children who cross-dress will be considered ``normal'' in schools 
and anyone objecting will be considered a bigot.
    ENDA will make it illegal for any parent to object to having their 
children taught by cross-dressers, transsexuals or she-males.
    Will these gender confused individuals be swimming coaches, 
football coaches--and freely access opposite sex restrooms and shower 
facilities?
    Transgender activists are actually pushing for a ``restroom 
revolution'' that will impact every school and business in America!
ENDA Includes Misleading Definition Of `Sexual Orientation'
    Under ENDA, ``sexual orientation'' is loosely defined as 
``homosexuality, bisexuality, or heterosexuality'' in Section 3: 
Definitions. This makes homosexual and bisexual behaviors on an equal 
par with heterosexuality, which has been the norm throughout human 
history. Behaviors like homosexuality, bisexuality, and cross-dressing 
are expressions of gender identity confusion and should not be equated 
with heterosexuality as being ``normal.''
    However, in Section 4, Employment Discrimination Prohibited, ENDA 
says that an employer cannot discriminate against an employee ``because 
of such individual's actual or perceived sexual orientation or gender 
identity.''
    The inclusion of ``perceived'' in the definition of sexual 
orientation in ENDA is a recipe for legal disaster for businesses. 
There is no condition of sexual abnormality that may not be perceived 
to fall within one of these categories, including all those excluded by 
the ADA [Americans with Disabilities Act]: transvestism, transexualism, 
pedophilia, exhibitionism, voyeurism, gender identity disorders, and 
sexual behavior disorders. Without containing an explicit exclusion, 
persons with these conditions will have a certain degree of protection 
under ENDA.
    In fact, the American Psychiatric Association's Diagnostic and 
Statistical Manual of Mental Disorders (DSM) lists at least 30+ sexual 
orientations, which includes incest, pedophilia, and coprophilia 
(sexual pleasure from feces). Individuals who engage in these 
activities can claim protection under ENDA under Section 4.
    ``Gender identity'' is described in Section 3 as ``the gender-
related identity, appearance, or mannerisms or other gender-related 
characteristics or an individual, with or without regard to the 
individual's designated sex at birth.'' This vaguely-worded definition 
can mean someone who:
     cross-dresses
     is undergoing a sex change operation
     thinks he or she is the opposite sex without a sex change 
operation
     lives as a she-male. These are sexually-confused 
individuals who undergo only a partial sex change operation. Usually 
males, they are female from the waist up and male from the waist down.
    If an employee who is ``undergoing'' or ``has undergone'' a so-
called sex change operation can wear a dress to work because this is 
his supposed ``gender identity,'' he can expect to be protected by 
ENDA. It will prove to be a nightmare for employers and normal 
employees who will be forced to remain silent as their cross-dressing 
co-workers press for the right to wear dresses to work. Employer or 
employees who believe that this person is mentally disordered will 
eventually be forced into reeducation classes to encourage them to 
affirm homosexuality, bisexuality and transsexualism.
ENDA and Restrooms/Shower Facilities
    Section 8 of ENDA lays out rules for how an employer must treat a 
person who has a different ``gender identity'' than his or her 
biological sex. The concept of ``gender identity'' is misleading. 
Transgender activists think that they're normal. What gay, lesbians, 
bisexuals, transgender activists and Congressional sponsors of this 
bill are not saying is that ``gender identity'' is actually a Gender 
Identity Disorder, which is still considered a mental condition by the 
American Psychiatric Association. Transgender activists who have helped 
craft this latest version of ENDA, assert that having a sex change 
operation is a perfectly legitimate way of dealing with individuals who 
are supposedly trapped in the wrong body.
    In veiled language, Section 8 (3) describes how employers will be 
permitted to establish policies on shower rooms and restrooms for 
``gender identity'' individuals. It states that employers must 
``provide reasonable access to adequate facilities that are not 
inconsistent with the employee's gender identity as established by the 
employer at the time of employment or upon notification to the employer 
that the employee has undergone or is undergoing gender transition, 
whichever is later.''
    A plain reading of this section means that an employer must make 
restroom and shower facilities available to a transgender individual 
that is consistent with what sex he thinks he is--even if he's not yet 
had a sex change operation. In short, if a man thinks he's a woman, he 
must be given access to women's restrooms and shower facilities--or the 
business may be forced to modify separate restrooms and shower 
facilities for a person who thinks he's the opposite sex or is going 
through a so-called sex change operation.
    As Camille Olson notes, ENDA is vague on whether or not it will 
force businesses to modify existing restrooms or shower facilities. 
Section 8 says: ``Nothing in this Act shall be construed to require the 
construction of new or additional facilities,'' but it says nothing 
about forcing businesses to modify existing facilities.
    Either way, ENDA will be a legal and construction nightmare for 
businesses that will be forced to provide ``adequate facilities'' to 
these seriously confused individuals.
    Section 8 (5) deals with ``Dress and Grooming Standards.'' The 
section states that the employer must permit ``any employee who has 
undergone gender transition prior to the time of employment, and any 
employee who has notified the employer that the employee has undergone 
or is undergoing gender transition after the time of employment,'' to 
``adhere to the same dress or grooming standards for the gender to 
which the employee has transitioned or is transitioning.''
    In plain English, this means that an employer must permit a so-
called transgender employee to wear clothing that reflects his chosen 
sex, not his biological sex. A man choosing to wear women's clothing is 
protected under ENDA.
    Since ``gender identity'' is a state of mind in ENDA, a person who 
thinks he's the opposite sex but doesn't want to have a sex change 
operation, would undoubtedly be protected by ENDA by claiming the 
``actual or perceived'' section of the bill. This would permit a man to 
use a woman's restroom or shower because he ``thinks'' he's a woman.
    Under ENDA, someone like Rodney Evans will be free to pick whatever 
restroom he wishes to use under the ``gender identity'' protection 
section.
    This is not a flight of fantasy. This is already happening on 
college campuses around the nation. The Duke University and Seattle 
mall cases are good examples.
    In October, 2002, for example, a student group calling itself, 
``The Restroom Revolution,'' at the University of Massachusetts, began 
demanding that the university establish unisex restrooms for so-called 
``transgendered'' students. This is what businesses will face if ENDA 
is passed.
    In June, 2001 a Latino AIDS Agency sued its former landlord for 
discrimination because the landlord was forcing a transgendered male to 
use the men's restroom instead of the women's restroom. The ACLU was 
defending the ``right'' of this man to use a woman's restroom because 
he thinks he's a woman. ENDA will result in endless litigation over 
restroom facilities.
    In 2005, a man who calls himself a ``male-bodied woman'' and uses 
the name Pauline Park, won a lawsuit against the city of New York over 
the use of restrooms. Park's lawsuit permits any individual to use 
whatever restroom he wishes, depending on his ``gender identity.''
Phony Religious Exemption in ENDA
    ENDA is legislation ostensibly designed to forbid 
``discrimination'' against a person's ``sexual orientation'' or 
``gender identity.'' The bill covers any employer who is engaged in 
interstate commerce or has 15 or more employees.
    During the September 23rd hearing, Rep. Dennis Kucinich (D-OH) 
proposed that the exemption for employers be reduced to companies 
having only 5 or more employees. He thinks the exemption for 15 is too 
large. No Democrat challenged him on his desire to have ENDA cover 
nearly every business, school, and Christian company in America.
    ENDA provides a supposed ``religious exemption'' for religious 
denominations or organizations operated by religious denominations--but 
not other non-profit Christian or other religious organizations. The 
bill says in Section 6, ``Exemption for Religious Organizations'' that 
``This Act shall not apply to a corporation, association, educational 
institution, or society that is exempt from the religious 
discrimination provisions of title VII of the Civil Rights Acts of 1964 
pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-
1(a); 2000e-2(e)(2)).''
    This is a phony religious exemption. It is legal gibberish designed 
to fool legislators into thinking Section 6 protects religious freedom.
    ENDA would impose a substantial and crippling burden on religious 
organizations, both those who are non-profit groups, as well as faith-
based institutions and enterprises which operate commercially.
    The religious exemption in ENDA gives a false sense of security. 
The courts will decide that discrimination against homosexuals and 
transgendered persons is equal to discrimination against a person 
because of his race. Once this happens, there will be no exemption in 
the law for religious groups.
    ENDA already refuses to protect religious entities not directly 
affiliated with a church or denomination such as counselors, Christian 
camps, day camps, publishers, TV and radio stations.
    ENDA will require businesses to eliminate viewpoints that are 
contrary to the promotion of the LGBT agenda. This will be done to 
eliminate a ``hostile work environment'' for the newly-protected 
classes of cross-dressers, transsexuals, she-males, lesbians, gays, and 
bisexuals.
    This will inevitably result in the suppression of free speech by 
Christians and religious practices such as discussing biblical morality 
with co-workers or discussing such topics as traditional marriage. The 
human resources department will function as the thought police to make 
sure LGBT employees aren't offended.
    ENDA will pit religious employees against activist homosexuals and 
transgenders in the workplace. The employer will be caught in the 
middle, trying to balance free speech, freedom of religion issues with 
the requirements of ENDA.
    The employer will have to choose between suppressing the ability of 
employees to express their religious viewpoints, for which they have 
relatively little protection in the workplace (religious speech is far 
less protected then religious observances), and risking costly claims 
from homosexuals under ENDA's broad language. Most likely, the employer 
will impose a rule on the workplace that, in effect, allows no 
criticism of homosexual or bisexual lifestyles, even among peers.
    ENDA forbids any employer from failing to hire or to fire any 
individual because of his ``actual or perceived sexual orientation or 
gender identity'' (Section 4). It will also forbid an employer from 
taking any action against an employee because of the sexual orientation 
of a person he may associate with outside of work. (Section 4[e].)
Advocates Of ENDA Claim Discrimination Impacts Incomes Of LGBT Persons
    Bradley Sears, Executive Director of the Williams Institute at 
UCLA, testified in favor of ENDA (H.R. 3017) at the ENDA hearing.
    The Williams Institute is described as a ``national research center 
on sexual orientation and gender identity law and policy.'' It is named 
after gay millionaire Charles R. Williams and LGBT agenda financier, 
who has given the institute more than $11 million since 2001.
    In reality, the Williams Institute is a propaganda arm of the 
lesbian, bisexual, gay, transgender (LGBT) movement designed to use 
research to push forward LGBT political and cultural objectives. It's 
goal is to legalize gay marriage nationwide, pass ENDA, force 
acceptance of the LGBT agenda in public schools, and overturn the ban 
on gays serving openly in the military and more.
    Its research is deliberately biased and designed to achieve these 
goals. It cannot be trusted to give legislators an accurate picture of 
the lifestyle or employment problems encountered by gays, lesbians, 
bisexuals, cross-dressers, drag queens or transsexuals.
    In 2008, the Williams Institute participated in a National Gay and 
Lesbian Task Force (NGLTF) conference. Leaders from the institute led 
workshops, which included ``Using Research to Pass LGBT Anti-
Discrimination Laws.''
    The NGLTF also sponsored a workshop titled ``Using the Thinking: 
How research has a role to play in the fight for LGBT equality.''
    Clearly, the Williams Institute exists to push the lesbian, gay, 
bisexual, and transgender agenda by using ``research'' as a weapon for 
cultural change.
Sears' Vacuous Testimony
    At no point during Sears' testimony, did he bother to define what 
``sexual orientation'' or ``gender identity'' actually mean. And, no 
legislator challenged him to define these terms.
    Lesbian Congresswoman Tammy Baldwin (D-WI) also avoided defining 
``sexual orientation'' when she was pushing for passage of so-called 
``hate crime'' legislation back in May 2009. Like Baldwin, Sears 
doesn't want to be pinned down by a clear definition of terms.
    By ignoring clear scientific definitions of these terms, 
legislators are simply permitting themselves to be used by LGBT 
activists to impose a radical sex agenda on all businesses, schools and 
non-profits with more than 15 employees.
    A gender identity is actually a Gender Identity Disorder (GID), a 
mental condition still listed in the American Psychiatric Association's 
Diagnostic and Statistical Manual Of Mental Disorders (DSM-IV-TR).
    There is Gender Dysphoria, where the person believes he is trapped 
in an opposite sex body; then there is Transvestic Fetishism, where the 
person dresses in opposite sex clothing, but doesn't necessarily want 
to undergo a so-called sex change.
    Will ENDA cover cross-dressers (heterosexuals who dress in opposite 
sex clothing); drag queens (gays); transsexuals (those who have 
undergone a sex change); and she-males (those who undergo a partial sex 
change but keep their male sex organs?
    The Williams Institute treats homosexual behaviors as safe and GID 
as merely self-expression instead of a mental condition. Homosexuals 
are, as a group, far more likely to suffer from serious diseases than 
their heterosexual counterparts. The evidence is overwhelming. And, 
individuals who think they are trapped in opposite sex bodies, are 
truly troubled and clearly mentally disordered. They need professional 
psychiatric help not surgery.
Sears' Plays With Statistics
    During his testimony, Bradley Sears made the following claims:
     A survey of more than 646 transgender employees found that 
70% faced workplace discrimination against their gender identity.
     13% of 1,900 LGBT employees at state universities had 
experienced discrimination or harassment during 2008.
     Eleven state government agencies provided 430 cases of 
administrative complaints of sexual orientation and gender identity 
discrimination between 1999 and 2007. Requests for data were made to 20 
state agencies and 203 local agencies. Most did not respond. Of the 430 
cases, approximately 265 were filed by employees of state and 
government agencies.
     Wage gaps between heterosexual men and gay men is between 
10% to 32%.
     Studies show that gay men, bisexuals and lesbians who are 
government employees earn 8% to 29% less than their heterosexual 
counterparts.
     Gay men who have partners and work for state governments 
earn 8% to 10% less than their heterosexual counterparts.
     The Williams Institute found more than 380 examples of 
workplace discrimination in state and local governments over the past 
20 years.
    From this brief summary, Sears claims there is widespread and 
systematic discrimination against LGBT individuals in state and local 
governments--and only ENDA can solve the problem.
    Out of 20 states, there were a mere 265 discrimination cases 
between 1999 and 2007. Were these name-calling? And, during a 20-year 
period, the institute found 380 examples of workplace discrimination in 
state and local governments. Bradley Sears claims that these statistics 
show ``that discrimination is widespread in terms of quantity, 
geography, and occupations.''
    Sears is wrong. These statistics show that discrimination against 
LGBT individuals is minor in state and local agencies and that there is 
no need for federal intervention in every business in America with more 
than 15 employees.
    In the Williams Institute report, it is claimed that a 2009 survey 
of 646 transgender employees, 11% of whom were public sector employees, 
70% of them ``had experienced workplace discrimination related to their 
gender identity.'' What does this mean? What kind of workplace 
discrimination? There were 71 public sector transgenders and 70% of 
these experienced workplace discrimination. So, 49 transgenders were 
victims of workplace discrimination in public sector jobs. If this is 
true, then why were they discriminated against and who were these 
people?
    Were they transsexuals, drag queens, she-males or cross-dressers? 
We don't know. Were they men using women's restrooms? Were they wearing 
women's underwear or engaging in obscene sex talk at work? Were they 
sexual predators? Were they called names? In short, these Williams 
Institute factoids are meaningless. They tell us nothing of value.
    In his written testimony, Sears hedged on the completeness of his 
research report, saying that ``we have concluded that these examples 
represent just a fraction of the actual discrimination.'' That's a 
convenient way of avoiding the fact that his research findings are 
minor and his conclusions are questionable. Any reputable researcher 
analyzing this information would conclude that his samplings are too 
small to reach any conclusion about ``widespread'' discrimination.
Poverty-Stricken Gays & Cross-Dressers?
    One of the main goals of the Williams Institute report is to 
portray LGBT individuals as being denied gainful employment or 
advancement in the work place--especially in state and local 
governments. The underlying assertion is that LGBT individuals are 
being treated like African-Americans in the South before the Civil 
Rights Movement. As such, they earn less than heterosexuals and are 
promoted less frequently.
    Chapter 11 of the Williams Institute report purports to analyze the 
``Wage Gap between LGB Public Employees and Their Co-Workers.''
    The Institute claims to have discovered a significant pay gap for 
gay men when compared to heterosexual men who have the ``same 
productive characteristics.'' According to the Institute, ``Depending 
on the study, gay and bisexual men earn 10% to 32% less than similarly 
qualified heterosexual men. Lesbians generally earn the same or more 
than heterosexual women, but lesbians earn less than either 
heterosexual or gay men.''
    Yet, these statistics don't seem to square with gay or gay-
supportive marketing studies that have shown how well educated and 
affluent LGBT people are:
     The National Gay & Lesbian Chamber of Commerce notes that 
LGBT individuals were likely to spend $800 more on business and leisure 
travel during the summer of 2009 than their heterosexual counterparts.
     The National Gay & Lesbian Chamber of Commerce claims 
there are 1.2 million LGBT business owners in the U.S.
     Market researchers state that the LGBT consumers have 
``deep pockets'' and their buying power ``is growing.''
         In 2006, lesbian and gay travelers took a projected 
        total of 53.2 million leisure trips, spending an estimated $40 
        billion. Another GLBT travel study says that the GLBT 
        population is 5% and its estimated travel market is $65 billion 
        annually.
         Gays & lesbians are spending between $40-$65 billion 
        year on travel. (harrisinteractive.com, 2007 & ASTAnetwork, 
        Summer 2007)
         Gay Wired Media claims that gay adults are 6-7% of the 
        population with total buying power of $723 billion.
     14% of gay and lesbian adults are planning overseas travel 
compared to only 7% of heterosexual adults (harrisinteractive.com, 
2007)
     Annual household income for gays and lesbians for 2007-
2008 is $80,000. (communitymarketinginc.com)
Gay Incomes Don't Justify ENDA
    Compare the household income of gays and lesbians of $80,000 a year 
to the median income of blacks, Asians and Hispanics. U.S. Census 
statistics for 2008 (published on September 11, 2009) show that the 
median income for blacks was $34,218; for Hispanics it was $37,913; for 
Asians it was $65,637. Median income for non-Hispanic white households 
was $55,530.
    The Williams Institute would have us believe that LGBT men and 
women are homeless, living in refrigerator boxes and eating out of 
dumpsters at the back of restaurants in our inner cities.
ENDA Will Encourage Lawsuits
    States, universities and local communities that have already passed 
``sexual orientation'' laws are already beginning to feel the severe 
economic impact of these laws.
     In July 2007, Fresno State University was fined $5.8 
million by a jury for its alleged discrimination against a lesbian 
volleyball coach, Lindy Vivas. She claimed she was the victim of sexual 
orientation discrimination because she was a feminist activist and 
lesbian.
     In April 2007, a homosexual couple filed a lawsuit against 
the Rochester Athletic Club for refusing to grant them a family 
membership. The couple claimed that the club was violating the state's 
Minnesota Human Rights Act and ``sexual orientation'' discrimination 
law.
     In July 2007, a jury in Los Angeles awarded a lesbian 
firefighter $6.2 million in a sexual orientation/harassment case. 
Lesbian Brenda Lee claimed she was harassed because she's a black 
lesbian.
     In April 2006, a homosexual group, Colorado Legal 
Initiatives Project filed a lawsuit on behalf of homosexual Richard 
James Miller against his company, AIMCO. The lawsuit claimed he was the 
victim of sexual orientation discrimination. Denver has a sexual 
orientation policy.
     The decision of the EEOC is not reviewable by a court and 
does not have to be based on any written, reasoned decision.
    These are just a few of the cases that have been fueled by ``sexual 
orientation'' ordinances passed by states and cities.
    Once ENDA is passed, it will unleash a veritable flood of such 
cases in businesses, colleges, non-profit organizations and churches. 
The cost of litigation will potentially destroy many businesses--
especially smaller businesses--without the resources to fight against 
well-funded homosexual legal groups.
    Here are important points to consider about ENDA's impact on 
businesses:
     The cost of defending--and winning one discrimination case 
can be enough to break a small company. Most small companies do not 
have insurance that covers discrimination claims.
     The Law of Unintended Consequences dictates that even laws 
intentionally limited in scope become expanded by the courts, with 
consequences never intended by Congress.
     ENDA is not a simple inclusion of sexual orientation into 
federal discrimination law.
     ENDA is broader than any federal discrimination law ever 
passed, both in its definition of discrimination and its protection of 
different categories of persons.
     Employers will have difficulty defending themselves 
against ENDA claims because the protected class is not based on a known 
characteristic, may be based on a behavior one can opt into and out of, 
and is subject to interpretation.
     Employers will be caught in the crossfire between 
homosexual activist staffers and employees with deeply held religious, 
moral, or traditional beliefs against homosexual behavior.
     Employers will have great difficulty in enforcing existing 
anti-harassment rules once homosexuality becomes a protected category.
     Employers will be unable to identify and prevent hostile 
work environments due to sexual orientation, without invading the 
privacy of employees.
Equal Employment Opportunity Commission Will Be Involved
    During the September 23rd hearing, Stuart Ishimaru testified in 
support of ENDA. Ishimaru is acting head of the Equal Employment 
Opportunity Commission (EEOC), a federal bureaucracy that enforces 
anti-discrimination workplace policies against employers.
    If confirmed, Ishimaru may soon be joined on the EEOC by lesbian 
activist lawyer and college professor Chai Feldblum, who wrote the ENDA 
legislation. Feldblum will ruthlessly enforce ENDA against businesses 
and religious entities if she is confirmed for this key post.
    Ishimaru began his written statement at the ENDA hearing this way:
    Mr. Chairman and members of the House Education and Labor 
Committee, thank you for the opportunity to appear before you at this 
important hearing. It is a privilege to represent the Obama 
Administration and the EEOC at the first hearing this Congress to 
consider ENDA, to voice the Administration's strong support for 
legislation that prohibits discrimination on the basis of sexual 
orientation and gender identity. This legislation will provide sorely 
needed and long overdue federal protection for lesbian, gay, bisexual, 
and transgender (LGBT) individuals, who unfortunately still face 
widespread employment discrimination.
    During the Q&A session of the hearing, Ishimaru made it clear that 
he looked forward to crafting government regulations that would enforce 
ENDA!
    In short, it would be the pro-gay, pro-transgender EEOC that would 
serve as the enforcer for any lawsuits arising from ENDA. The biased 
EEOC is set up to be judge, jury and enforcer.
ENDA Is Based on a Faulty Premise
    One underlying assumption of ENDA is that the `sexual orientation' 
considered in this bill is `fixed,' `normal,' and `healthy' in the 
context of American life and human action. It isn't. ENDA, however, 
attempts to impose a federal gag order on the crucial question about 
whether or not homosexual activity is voluntary and whether or not 
homosexuality has scandalous social consequences.
    ENDA is based upon the faulty premise that homosexuality is normal 
and that individuals are ``born gay.'' And, now they're saying that 
individuals are born bisexual or trapped in the body of the wrong sex. 
This ``born gay'' premise has recently been exposed to be a fraud by 
none other than homosexual researchers themselves who have admitted 
there is no scientific proof that a homosexual ``gene'' or ``brain'' 
exist.
    Psychologists with the National Association for Research and 
Therapy of Homosexuality (NARTH) have recently published ``The Innate-
Immutable Argument Finds No Basis in Science,'' which quotes homosexual 
researchers and philosophers on the ``born gay'' theory.
    In this article, NARTH quotes homosexual researcher Dean Hamer, 
``There is not a single master gene that makes people gay. * * * I 
don't think we will ever be able to predict who will be gay.'' 
Homosexual researcher Simon LeVay who studied hypothalmic differences 
between heterosexual and homosexual brains noted: ``I didn't show that 
gay men are born that way, the most common mistake people make in 
interpreting my work. Nor did I locate a gay center in the brain.''
    NARTH also quotes lesbian activist and philosopher Camile Paglia 
who had the most blunt words about homosexuality: ``Homosexuality is 
not `normal.' On the contrary, it is a challenge to the norm * * * 
Nature exists whether academics like it or not. And in nature, 
procreation is the single relentless rule. That is the norm. Our sexual 
bodies were designed for reproduction * * * No one is born gay. The 
idea is ridiculous. * * * homosexuality is an adaptation, not an inborn 
trait.''
    Homosexuality is a behavior and a lifestyle choice. It is not 
genetically-based nor is it a healthy way to live. AIDS and sexually-
transmitted diseases running rampant among this population are clear 
evidence that this lifestyle choice is not one to be protected nor 
encouraged by our culture. The federal government has no right to force 
America's businesses, public schools , and non-profits to support a 
poor, unsafe lifestyle choice.
    Individuals who consider themselves ``transgendered'' have a mental 
condition known as Gender Identity Disorder (GID), also called Gender 
Dysphoria. These individuals are in need of psychiatric, psychological 
or spiritual counseling so they will stop rejecting their birth sex. A 
mental condition cannot be effectively treated by surgery nor should it 
be.
    To put a ``gender identity'' protection into federal law is to 
affirm that these individuals are normal and must be protected and 
accommodated by businesses and non-profit organizations. A serious 
mental condition must not be accorded specially-protected minority 
status under the law--nor should American businesses be forced to bend 
to the wishes of individuals with a treatable mental condition.
    TVC's report, ``A Gender Identity Disorder Goes Mainstream'' 
describes the radical transgender agenda and its goal of overturning 
all concepts of male and female in our culture. Dr. Paul McHugh's 
essay, ``Surgical Sex'' describes the failure of surgery to deal with 
what is a mental problem.
Conclusion
    If ENDA is signed into law, the homosexual/transgender movement 
will have won a major victory. They will have accomplished a long-term 
goal of having ``sexual orientation'' and ``gender identity'' given 
federally-protected minority status under the law.
    Once this happens, efforts to oppose the LGBT will be considered a 
violation of federal law.
    More serious consequences will ensue. Christians and other 
religious faiths will be forced to violate their Constitutionally-
protected and firmly-held religious beliefs to bend to the will of 
homosexual and transgender activists. Freedom of religion will be 
suppressed by ruthless homosexual/transgender activists.
    Every public school in America will be a target if ENDA is passed. 
The LGBT agenda will be implemented as early as in Head Start, pre-
school and Kindergarten.
    Freedom of speech will be targeted as well. Once homosexuals and 
gender confused individuals have minority status under federal law, 
criticism of their behaviors will be considered discriminatory and will 
be punished. The efforts to pass ``hate crime'' legislation will 
increase. So-called ``Hate speech'' will be considered outside the 
protection of the First Amendment. Lesbian, bisexual, gay, transgenders 
are arguing that ``hate speech,'' (anything critical of LGBT) provokes 
``hate crimes'' and thus can be banned.
    What homosexuals are actually targeting is ``truth speech'' from 
those who understand the dangers of homosexual sex and the impact that 
this behavior will have on children and the future of families in 
America. Transgender activists are, likewise, smearing those who tell 
the truth about their mental condition as being ``transphobic.''
    Congress, in the words of Dr. Paul McHugh, is collaborating with 
madness by considering passage of ENDA.
    Neither homosexual behaviors nor the mental condition of gender 
confused individuals should have federally-protected minority status.
                          additional resources
If You Hate America You Have a Lawyer--Chai Feldblum
The Agenda: The Homosexual Plan To Change America by Rev. Louis P. 
        Sheldon
A Gender Identity Disorder Goes Mainstream
What Is A Sexual Orientation?
Summary Of ``Peeing In Peace''
Intersex Report
Homosexuality 101
TVC Legislative Analysis of HR 2232
TVC Special Report S. 1105
Surgical Sex by Dr. Paul McHugh
The Overhauling Of Straight America
                                 ______
                                 
    [Whereupon, at 1:12 p.m., the committee was adjourned.]

                                 
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