```

[House Report 110-422]
[From the U.S. Government Publishing Office]

110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-422

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

 
    PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 3685) TO PROHIBIT 
      EMPLOYMENT DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION

                                _______
                                

  November 5, 2007.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

    Ms. Castor, from the Committee on Rules, submitted the following

                              R E P O R T

                       [To accompany H. Res. 793]

    The Committee on Rules, having had under consideration 
House Resolution 793, by a record vote of 9-3, report the same 
to the House with the recommendation that the resolution be 
adopted.

                SUMMARY OF PROVISIONS OF THE RESOLUTION

    The resolution provides for consideration of H.R. 3685, the 
Employment Non-Discrimination Act of 2007, under a structured 
rule. The rule provides one hour of general debate equally 
divided and controlled by the chairman and ranking minority 
member of the Committee on Education and Labor. The rule waives 
all points of order against consideration of the bill except 
clauses 9 and 10 of rule XXI. The rule provides that the bill 
shall be considered as read. All points of order against 
provisions of the bill are waived. This waiver does not affect 
the point of order available under clause 9 of rule XXI 
(regarding earmark disclosure).
    The rule makes in order only those amendments printed in 
this report. The amendments made in order may be offered only 
in the order printed in this report, may be offered only by a 
Member designated in this report, shall be considered as read, 
shall be debatable for the time specified in this report 
equally divided and controlled by the proponent and an 
opponent, shall not be subject to amendment, and shall not be 
subject to a demand for a division of the question in the House 
or in the Committee of the Whole. All points of order against 
the amendments except for clauses 9 and 10 of rule XXI are 
waived. The rule provides one motion to recommit with or 
without instructions. Finally the rule provides that, 
notwithstanding the operation of the previous question, the 
Chair may postpone further consideration of the bill to a time 
designated by the Speaker.

                         EXPLANATION OF WAIVERS

    Although the rule waives all points of order against 
consideration of the bill (except for clauses 9 and 10 of rule 
XXI) and waives all points of order against the provisions of 
the bill, the Committee is not aware of any points of order. 
The waivers of all points of order are prophylactic in nature.

                            COMMITTEE VOTES

    The results of each record vote on an amendment or motion 
to report, together with the names of those voting for and 
against, are printed below:

Rules Committee record vote No. 378

    Date: November 5, 2007.
    Measure: H.R. 3685.
    Motion by: Mr. Dreier.
    Summary of motion: To grant an open rule.
    Results: Defeated 3-9.
    Vote by Members: McGovern--Nay; Hastings (FL)--Nay; 
Matsui--Nay; Cardoza--Nay; Welch--Nay; Castor--Nay; Arcuri--
Nay; Sutton--Nay; Dreier--Yea; Diaz-Balart--Yea; Hastings 
(WA)--Yea; Slaughter--Nay.

Rules Committee record vote No. 379

    Date: November 5, 2007.
    Measure: H.R. 3685.
    Motion by: Mr. Diaz-Balart.
    Summary of motion: To make in order and provide appropriate 
waivers for an amendment by Rep. Souder (IN), #4, which would 
strike ``perceived'' from each place it occurs in the bill.
    Results: Defeated 3-9.
    Vote by Members: McGovern--Nay; Hastings (FL)--Nay; 
Matsui--Nay; Cardoza--Nay; Welch--Nay; Castor--Nay; Arcuri--
Nay; Sutton--Nay; Dreier--Yea; Diaz-Balart--Yea; Hastings 
(WA)--Yea; Slaughter--Nay.

Rules Committee record vote No. 380

    Date: November 5, 2007.
    Measure: H.R. 3685.
    Motion by: Mr. Hastings (WA).
    Summary of motion: To make in order and provide appropriate 
waivers for an amendment by Rep. Souder (IN), #6, which would 
prohibit employers from discriminating against an employee 
because the employee refused to consent to an employer's anti-
discrimination or anti-harassment policy, or refused to 
participate in a diversity training program, because of their 
religious beliefs regarding sexual orientation.
    Results: Defeated 3-9.
    Vote by Members: McGovern--Nay; Hastings (FL)--Nay; 
Matsui--Nay; Cardoza--Nay; Welch--Nay; Castor--Nay; Arcuri--
Nay; Sutton--Nay; Dreier--Yea; Diaz-Balart--Yea; Hastings 
(WA)--Yea; Slaughter--Nay.

Rules Committee record vote No. 381

    Date: November 5, 2007.
    Measure: H.R. 3685.
    Motion by: Mr. McGovern.
    Summary of motion: To report the rule.
    Results: Adopted 9-3.
    Vote by Members: McGovern--Yea; Hastings (FL)--Yea; 
Matsui--Yea; Cardoza--Yea; Welch--Yea; Castor--Yea; Arcuri--
Yea; Sutton--Yea; Dreier--Nay; Diaz-Balart--Nay; Hastings 
(WA)--Nay; Slaughter--Yea.

                  SUMMARY OF AMENDMENTS MADE IN ORDER

    1. Miller, George (CA)/Stupak (MI): The amendment (1) 
provides explicitly that any religious corporation, school, 
association or society that is exempt under either Section 
702(a) or 703(e)(2) of Title VII's religious exemptions is 
exempt under ENDA. It clarifies that the scope of Title VII's 
exemption is exactly the scope of ENDA's exemption (if a school 
is exempt from Title VII's religious discrimination 
prohibitions, it will also be exempt from ENDA); and (2) it 
clarifies that ENDA does not alter the Defense of Marriage Act 
(DOMA) in any way. It strikes language referencing ``a same-sex 
couple who are not married'' in the Employee Benefits section 
of ENDA. It also inserts language clarifying that the term 
``married'' has the meaning given such term in DOMA, directly 
incorporating DOMA's definition of marriage. (20 minutes)
    2. Souder (IN): The amendment would strike paragraph (3) of 
section 8(a), which prohibits employers from conditioning 
employment on a person being married or being eligible to be 
married. (10 minutes)
    3. Baldwin (WI): The amendment would expand ENDA's 
protections to persons discriminated against based on gender 
identity, 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. The amendment includes language 
concerning shared facilities, dress, and grooming standards, as 
well as a paragraph stating that the construction of additional 
facilities are not required. (10 minutes)

            TEXT OF AMENDMENTS MADE IN ORDER UNDER THE RULE

   1. An Amendment To Be Offered by Representative George Miller of 
         California, or His Designee, Debatable for 20 Minutes

  Strike paragraph (8) of section 3(a) (and redesignate 
paragraphs (9) and (10) of such section as paragraphs (8) and 
(9), respectively).
  Strike section 6 and insert the following:

SEC. 6. EXEMPTION FOR RELIGIOUS ORGANIZATIONS.

  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)).
  In section 8(b), strike ``, including a same-sex couple who 
are not married,''.
  At the end of section 8, insert the following:
  (c) Definition of Marriage.--As used in this Act, the term 
``married'' or ``marry'' refer to marriage as such term is 
defined in section 7 of title I, United States Code (referred 
to as the Defense of Marriage Act).
                              ----------                              

 2. An Amendment To Be Offered by Representative Souder of Indiana, or 
                 His Designee, Debatable for 10 Minutes

  Strike paragraph (3) of section 8(a).
                              ----------                              

 3. An Amendment To Be Offered by Representative Baldwin of Wisconsin, 
               or Her Designee, Debatable for 10 Minutes

  Throughout the Act, insert ``or gender identity'' after 
``sexual orientation'' each place it appears.
  In section 3(a), after paragraph (5) insert the following 
(and redesignate succeeding paragraphs accordingly):
          (6) Gender identity.--The term ``gender identity'' 
        means 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.
  In section 8(a), insert after paragraph (2) the following 
(and redesignate succeeding paragraph accordingly):
          (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.
          (4) Additional facilities not required.--Nothing in 
        this Act shall be construed to require the construction 
        of new or additional facilities.
          (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.

                                  

```