THE BLOG
07/29/2015 12:58 pm ET Updated Jul 29, 2016

The Equality Act, Part Two -- What Now?

The Equality Act was introduced -- what now?

My conclusions:

We give the Leadership Conference time to thoroughly vet the bill. We -- including Caitlyn Jenner, a self-avowed Republican and Christian, who has offered her assistance -- organize to lobby the Republicans whose votes are essential for passage of the bill. We have all the national organizations encourage gay and trans persons who suffer employment discrimination to get a lawyer and file a claim with the EEOC.

It is not acceptable to leave anyone behind in ignorance of her rights.

My reasoning:

As I wrote in my previous column:

Last Thursday Senate and House Democrats, 205 in all, introduced the Equality Act (S.1858/H.R.3185). Decades in the making, and not introduced since 1974 when Bella Abzug and Ed Koch were its Congressional sponsors, it's the first comprehensive AND inclusive piece of federal legislation to cover the entire LGBT community in all the traditional realms of civil rights. Its purpose is to amend the 1964 Civil Rights Act (CRA) to include gender identity and sexual orientation.

The bill deftly acknowledges coverage of LGBT persons under Title VII thanks to the EEOC and federal court opinions, but states that this bill would clarify those protections. Rightly so, or, as EEO Commissioner Chai Feldblum recently said, it would provide "absolute certainty" of protection to employers and employed alike. Columnist Karen Ocamb says it should be a test question for all candidates in 2016. Democratic contenders Hillary Clinton and Martin O'Malley have already signed on. The community, at least that part represented by the Human Rights Campaign (HRC), the Center for American Progress (CAP), and the National Center for Transgender Equality (NCTE), has planted the flag in the sand and states this is the bill "we want and need." Aside for GetEqual, which is concerned about the lack of provisions regarding police brutality, detention and immigration reform, which can't be included because they weren't in any of the earlier laws, there remain the questions of timing, African-American support, and the gorilla in the room, the Republican Party.

Personally, I like this bill and this approach. I'm on board, as are two of my organizations, Freedom to Work and Gender Rights Maryland. But I do so with one major caveat, and two serious concerns. The caveat is that my support, and that of others, is dependent on the LCCHR completing its vetting and supporting the legislation. "Do no harm" is well and good -- I practiced medicine based on that credo throughout my career -- but I prefer "trust but verify." I understand the timing was political, just a week before summer recess while the Hill is completely focused on the Joint Plan of Action (JPOA), the P5+1 Iranian Nuclear Agreement, because of the recently introduced Republican "First Amendment Defense Act (H.R. 2802)." When the LCCHR assures us they have no problem with the safety of the Civil Rights Act being opened to amendment, I will be fully engaged. The CRA is too important to the other minority communities to be unnecessarily put at risk, and we already have CRA-based LGBT employment protections with the law as it is.

My first concern is the lack of input from the Republican side, particularly the Log Cabin Republicans. I understand that the LGBT coalition has always been almost 100% Democratic, but if the community is sincere about efforts to pass this bill in the next 5-7 years, it cannot exclude Republican LGBT advocates or those willing to work with them. We need to put personal feelings aside, and just as legislators need to reach across the aisle to get the job done, so do LGBT activists. If this bill is just a placeholder, then it doesn't matter, but I would remind the community that the last time ENDA was seriously on the table, in 2009 as the #2 priority of the community for the Obama administration and with a Democratic Congressional supermajority, it was removed from consideration in favor of repeal of Don't Ask, Don't Tell and marriage equality. While that's obviously not going to happen again, who knows how redistricting will turn out in 2022 and who will even be voting then?

My second concern is not new. It is that our movement, and our legislative champions who take their cues from us, continue to misspeak when it comes to current protections. I will ask the question again:

What does a gay or trans person, today, do when subject to employment discrimination? Nothing -- while waiting for this bill to become law, a bill that may be doomed to wallow for a decade before it's seriously considered?

Or, find a good lawyer, contact her local EEOC office and file a claim?

The answer, as my colleague and extraordinary lawyer, Jillian Weiss, points out, is self-evident, yet Congressman Cicilline was quoted as saying:

It's still legal in most states to fire someone because they're gay.

And HRC blogged about Carter Brown, a young man from Texas who was fired for being trans. I don't know Mr. Brown, who seems to have landed on his feet. If he was fired after April 20, 2012, someone - HRC maybe? - should have told him he was protected under federal law. Protected even in Texas, and the thirty other states that don't have state gender identity-inclusive employment antidiscrimination protections.

As a physician, I learned that every life in my hands is precious. Jewish tradition teaches that one who saves a single individual has, metaphorically, saved the entire world. In spite of the remarkable accomplishment that will be the Equality Act when, one day, it passes and is signed into law, if one person suffers harm because of ignorance of the law as it is today because we were silent, then we shall have failed.

So what do we do? We give the Leadership Conference time to thoroughly vet the bill. We -- including Caitlyn Jenner who has offered her assistance -- organize to lobby the Republicans whose votes are essential for passage of the bill. We have all the national organizations encourage gay and trans persons who suffer employment discrimination to get a lawyer and file a claim with the EEOC.

It is not acceptable to leave anyone behind in ignorance of her rights.