07/09/2014 01:44 pm ET Updated Sep 08, 2014

ENDA Was Awful Before Hobby Lobby

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This week, a number of prominent LGBT organizations withdrew their support for the Employment Non-Discrimination Act (ENDA) -- which would, theoretically, for the first time, prohibit employment discrimination against LGBT people nationwide -- expressing concerns over the unprecedentedly broad special exemption provided for religious organizations. For the most part, this has been framed as a reaction to the Hobby Lobby decision, in which the Supreme Court found that the part of the Affordable Care Act which required employers to provide health insurance which covers contraception constituted a violation of religious liberty under a previous law passed by Congress.

The thing is, ENDA was awful long before the Supreme Court's decision in the Hobby Lobby case. First, as mentioned, the special exemption provided for religious organizations is nearly unprecedented in scope. This is not new -- Hobby Lobby threatens only to broaden that scope further. Second, ENDA prohibits both public and private employers from making use of most affirmative action programs -- but only when applied to LGBT people. And, finally, ENDA may roll back significant progress made in protecting transgender Americans from employment discrimination.

Each of these aspects of ENDA undermine its potential for effectively combating employment discrimination against LGBT people -- and none of these characteristics is present in any other significant piece of civil rights legislation.

If passed, ENDA would establish a "separate, but unequal" law of employment discrimination for LGBT people. As it stands today, ENDA is to employment nondiscrimination what civil unions are to marriage -- a token, but ultimately simply another reminder that LGBT persons are regarded as less-than, and that discrimination against us is regarded as more legitimate than it is against nearly any other group in the United States today.

A Special Exemption for the Religious?

Understanding this point requires some brief background. In 1964, Congress passed one of many civil rights acts. This one included what is called "Title VII," which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Although many religious conservatives demanded "religious exemptions" be made across the board, Congress allowed for only a narrow exemption -- allowing religious non-profits to discriminate only on the basis of religion. Thus, while qualifying organizations may insist that their employees be members of their own faith, they may not refuse to hire a qualified individual because they are, for example, a woman.

In addition to this statutory exemption, American courts have created a "ministerial exception." This rule is based upon the First Amendment's free exercise clause, and prevents the application of civil rights laws to employees whose positions are of religious importance. So, for example, while Title VII prevents a Catholic church from refusing to hire a female janitor, it does not prevent that church from refusing to hire a female priest, or, possibly, even a female Sunday school teacher. (In the Supreme Court's decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Court found a schoolteacher at a religious institution to be a "minister" for the purposes of the ministerial exception.)

ENDA upsets this traditional understanding of the intersection of civil rights laws and religious liberty. The current exemption simply takes the exemption provided for religious discrimination in Title VII and applies it to LGBT people -- allowing any religious organization to discriminate on the basis of sexual orientation and gender identity. This rests upon the fallacy that, for the purposes of employment, sexual orientation and gender identity are more akin to religious belief than to any other protected class in Title VII. Of course, this is not so. Sexual orientation and gender identity are, unlike religious affiliation, immutable. Also, it nearly goes without saying that religious belief is far more pertinent to a religious organization's mission than sexual orientation or gender identity.

Furthermore, in light of the reality of the ministerial exception, it is hard to take the so-called "religious liberty" complaints of conservatives seriously. Because of the relative breadth of the ministerial exception, even if ENDA contained no special exception whatsoever for religious groups, religious organizations would still be able to discriminate on the basis of sexual orientation and gender identity when it comes to positions of religious importance.

Although the Supreme Court's decision in Hobby Lobby now raises the possibility that purportedly religious for-profit organizations would fall within this already-broad exception, the problem was never Hobby Lobby -- the problem was the breadth of the exception in the first place.

Considering that many conservatives, including many religious conservatives, have long accused basic civil rights measures to protect LGBT people as being "special rights," it is with great irony that they now demand an unprecedented exemption from a generally-applicable law.

Ending LGBT Affirmative Action Before it Begins

Although the Supreme Court has grown less and less tolerant of the use of affirmative action by government entities, including universities, affirmative action and diversity programs are common in the private sector. Today, many companies and schools have "diversity programs" or something similar which they use to ensure that their workplaces are not homogenous. Typically, these programs are designed to increase the numbers of people of color, women, and LGBT people in their workforce or student body. Nor is affirmative action for LGBT people as alien as some would have us believe: The idea of affirmative action for LGBT college applicants has been around for nearly a decade. These programs have the dual benefit of working, if slightly, to compensate for the reality of dealing with discrimination and ensuring a variety of perspectives.

ENDA, however, would likely prevent both governmental and private entities from continuing to include LGBT individuals in these employment programs. Section 4(f) of the bill provides, in part:

Nothing in this Act shall be construed or interpreted to. . .permit any covered entity to grant preferential treatment to any individual or to any group because of the actual or perceived sexual orientation or gender identity of such individual or group... or... the adoption or implementation by a covered entity of a quota on the basis of actual or perceived sexual orientation or gender identity.

In other words: Even as it singles out LGBT Americans for worse treatment under federal antidiscrimination law, ENDA insists that we pretend there exists an even playing field for LGBT Americans in the world of employment.

Rolling Back Protection for Trans* People

Unfortunately, this point also requires some explanation. As mentioned, Title VII prohibits employment discrimination on the basis of sex. In a series of decisions, the Supreme Court held that sex discrimination includes discrimination on the basis of gender stereotypes. For example, in Price Waterhouse v. Hopkins, the Court held that refusing to promote a woman because she was too masculine was a violation of Title VII's prohibition on sex discrimination. Thus, employers are prohibited not only from discriminating against someone because they are a woman, but also because they are a woman who does not act like the employer believes a woman is "supposed to."

In recent years, transgender people have begun to make progress toward inclusion under the protections of Title VII by arguing that discrimination on the basis of gender identity is simply discrimination on the basis of sex.

For example, in one case the Library of Congress extended an employment offer to a person they considered the most qualified -- only to rescind that offer when they discovered their prospective employee was transgender. A federal court found that discriminating against someone for being transgender was both sex discrimination and discrimination on the basis of gender stereotypes -- and therefore prohibited under Title VII. The court explained:

The evidence establishes that the Library was enthusiasti c about hiring David Schroer--until she disclosed her transsexuality . The Library revoked the offer when it learned that a man na med David intended to become, legally, culturally, and physically, a woman named Diane. This was discrimination 'because of... sex.'

...Imagine that an employee is fired because she converts from Christianity to Judaism. Imagine too that her employer te stifies that he harbors no bias toward either Christians or Jews but only 'converts.' That would be a clear case of discriminati on 'because of religion.' No court would take seriously the notion that 'converts' are not covered by the statute.

This court is not alone. Multiple federal appeals courts have also found discrimination on the basis of gender identity to be sex discrimination -- and the Equal Employment Opportunity Commission, a federal agency charged with the enforcement of Title VII, agrees with them. The idea that gender identity discrimination is sex discrimination has spread beyond Title VII -- the Department of Education, for example, recently announced that it would consider gender identity discrimination to be a violation of another federal law Title IX, which provides, in part:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

Unfortunately, the current version of ENDA poses a substantial risk to all of this progress. Because ENDA explicitly includes "gender identity" as a protected characteristic while Title VII does not, it is likely that, if ENDA is passed, the protection of transgender people from employment discrimination will "shift" from Title VII to ENDA.

This would not be problematic if ENDA were substantially the same as Title VII or other civil rights legislation. But it is not: It would protect fewer trans* people, and provide them arguably weaker protections than Title VII currently does.

The End of ENDA

I am glad to see support for this deeply flawed piece of legislation dissipating, but let us be clear: ENDA is not suddenly unworkable because of the Hobby Lobby decision. These deep flaws I've enumerated have been sold to us as "necessary" for its passage, but it has been two decades since ENDA's first introduction and federal civil rights protections for LGBT Americans remain out of grasp. Moreover, even supposing that ENDA were to pass in its current state, I find it difficult to imagine at what point this intransigent Congress would take the steps necessary to undo what ENDA would achieve: Enshrining into federal law anti-LGBT bias as an officially more-acceptable form of bigotry.