[Congressional Record Volume 153, Number 175 (Tuesday, November 13, 2007)]
[Extensions of Remarks]
[Page E2399]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 EDUCATION AND LABOR COMMITTEE STAFF DOES EXCELLENT JOB ON ENDA REPORT

                                 ______
                                 

                           HON. BARNEY FRANK

                            of massachusetts

                    in the house of representatives

                       Tuesday, November 13, 2007

  Mr. FRANK of Massachusetts. Madam Speaker, during the debate on the 
Employment Non-Discrimination Act, critics of the bill--both those who 
objected that it did too little and those who claimed that it did too 
much--made a number of arguments about the bill that were flatly wrong. 
Fortunately, under the leadership of the chairman of the committee, the 
gentleman from California Mr. Miller, and the Chairman of the 
subcommittee, the gentleman from New Jersey Mr. Andrews, the staff of 
that committee did a first-rate report rebutting those inaccurate 
criticisms. Often, reports of this sort, while reflecting a great deal 
of work, are ignored. In this case, Professor Dale Carpenter, a law 
professor who has been an excellent source of accurate information 
about the true meaning of the legislation, called attention to the 
committee staffs work in a recent internet posting.
  Madam Speaker, as Professor Carpenter points out, ``This sort of 
legislative history does not dispose of controversies over the meaning 
of ENDA. But it does offer a reasonable and persuasive interpretation 
of the bill that will likely play a role in future litigation. The 
committee legal counsel who worked on this report anticipated many of 
the objections to ENDA from President Bush's advisors and from 
transgender and gay activists . . . They did an extraordinary job 
walking the fine line between an interpretation of ENDA that is unduly 
crabbed and one that is objectionably expansive.''
  Madam Speaker, in the interest of disseminating in the widest 
possible way the accurate interpretation of ENDA that is reflected in 
this report, the importance of which is underlined by Professor 
Carpenter, I ask that the part of Professor Carpenter's posting dealing 
with the report be printed here.
  Excerpt from Professor Dale Carpenter's internet posting:

       Little noticed in the run-up to the House vote was the 
     Labor Committee report that accompanied the bill. The report 
     was prepared by attorneys who work for the committee. Much of 
     the report is devoted to recounting the history of the 
     numerous attempts over the past 33 years--beginning with the 
     first bill introduced by Bella Abzug in 1974--to get Congress 
     to deal with anti-gay employment discrimination. That history 
     tells a story of painfully slow political progress made in 
     each session of Congress, with more co-sponsors backing an 
     anti-discrimination bill in every session. Other parts of the 
     report document the prevalence of anti-gay job 
     discrimination, as well as the economic and psychological 
     impact of such discrimination.
       In the section-by-section analysis of the committee report, 
     I noticed a couple of passages relevant to the recent 
     controversy over adding ``gender identity'' to the bill. On 
     p. 31, the report notes that ENDA forbids discrimination 
     based on ``actual or perceived sexual orientation.'' Thus, 
     ``ENDA creates a cause of action for any individual--whether 
     actually homosexual or heterosexual--who is discriminated 
     against because that individual is `perceived' as homosexual 
     due to the fact that the individual does not conform to the 
     sex or gender stereotypes associated with the individual's 
     sex.'' Obviously, this interpretation of ENDA offers some 
     protection to those employees whose gender nonconformity 
     leads others to assume they're gay or lesbian and then suffer 
     discrimination on that basis. It doesn't protect transsexuals 
     or crossdressers as fully as adding ``gender identity'' to 
     the bill would have, but the bill moves in that direction.
       Additionally, on p. 33, the report puts to rest any fears 
     that stripping ``gender identity'' from the bill would lead 
     federal courts to conclude that Congress meant to impliedly 
     reverse Price Waterhouse v. Hopkins, a 1989 case in which the 
     Supreme Court held that sex stereotyping violates Title VII. 
     The report concludes that Section 15 of ENDA, entitled 
     ``Relationship to Other Laws'':

       Preserves provisions in other Federal, state, or local laws 
     that currently provide protection from discrimination. For 
     example, Congress does not intend to overrule, displace, or 
     in any other way affect any U.S. Supreme Court or other 
     federal court opinion that has interpreted Title VII in such 
     a way that protects individuals who are discriminated against 
     because they do not conform to sex or gender stereotypes. 
     See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) 
     (female plaintiff brought successful Title VII claim after 
     she was denied partnership in an accounting firm because she 
     did not conform to female sex stereotype); Nichols v. Azteca 
     Rest. Enters., 256 F.3d 864 (9th Cir. 2001) (male plaintiff 
     brought successful Title VII claim after he was subjected to 
     a hostile work environment because he failed to conform to a 
     male stereotype).''
       This sort of legislative history does not dispose of 
     controversies over the meaning of ENDA. But it does offer a 
     reasonable and persuasive interpretation of the bill that 
     will likely play a role in future litigation. The committee 
     legal counsel who worked on this report anticipated many of 
     the objections to ENDA from President Bush's advisors and 
     from transgender and gay activists disappointed that the bill 
     isn't more comprehensive. They did an extraordinary job 
     walking the fine line between an interpretation of ENDA that 
     is unduly crabbed and one that is objectionably expansive.
       ENDA is the product of decades of work by gay advocates 
     whose efforts once seemed quixotic. In 1974, Abzug's bill had 
     only four co-sponsors and was completely ignored by the House 
     Judiciary Committee. Yesterday 235 members of the House 
     backed the same basic idea.

                          ____________________