U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

52–242 PDF 2010

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 

( 

Available on the Internet: 

http://www.gpoaccess.gov/congress/house/education/index.html 
(II) 

COMMITTEE ON EDUCATION AND LABOR 

GEORGE MILLER, California, Chairman 

Dale E. Kildee, Michigan, Vice Chairman 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Mazie Hirono, Hawaii 

Jason Altmire, Pennsylvania 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

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 

John Kline, Minnesota, 

Senior Republican Member 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Peter Hoekstra, Michigan 

Michael N. Castle, Delaware 

Mark E. Souder, Indiana 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Joe Wilson, South Carolina 

Cathy McMorris Rodgers, Washington 

Tom Price, Georgia 

Rob Bishop, Utah 

Brett Guthrie, Kentucky 

Bill Cassidy, Louisiana 

Tom McClintock, California 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Mark Zuckerman, Staff Director 

Barrett Karr, Minority Staff Director 
(III) 

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 

(1) 

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. 
2 

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 
3 

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. 
4 

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 
5 

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. 
6 

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. 
7 

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. 
8 

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 NonDiscrimination Act. 
9 

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 
10 

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 
11 

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. 
12 

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 gen-
13 

der 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 
14 

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 antigay 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. 
15 

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 be-
16 

tween 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 nondiscrimination 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 
17 

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. 
18 

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, 
19 

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. 
20 

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 
21 

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? 
22 

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 
23 

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 
24 

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—— 
25 

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? 
26 

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 81⁄2 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. 
27 

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 thirdbest 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. 
28 

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. 
29 

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. 
30 

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 cosponsor 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, antigay laws. 

Professor Eskridge received his B.A. from Davidson College and 

M.A. from Harvard University and a J.D. from Yale Law School. 
31 

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 
32 

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.’’ 
33 

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. 
34 

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 pro-
35 

tections 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 
36 

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. §§ 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 
37 

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. § 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. § 

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: 
38 

• 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 affirm-
39 

atively 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 orientation37 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 sexstereotyping 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. 
40 

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. § 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. 
41 

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? 
42 

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: 
43 

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 SchwartzFenwick for their invaluable assistance in the preparation of this testimony. 2The amendments to the ADA are contained in the Americans with Disabilities Act Amendments Act, 42 U.S.C. § 12101, et seq. and 29 U.S.C. § 705 (2008) that became effective January 

1, 2009. 3Seyfarth 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.’’ 4My 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. 18See Title VII of the Civil Rights Acts of 1964, 42 U.S.C. § 2000e et seq. (‘‘Title VII’’); see 

also The Equal Pay Act of 1963, 29 U.S.C. § 206(d) et seq. 19See Pregnancy Discrimination Act of 1978, amending Title VII § 2000e(k). 20See Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). 21Oncale 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). 22Price 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). 23See, 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’’). 24See, 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 
44 

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. 26These 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. 27These 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. 31See, 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. 37Sexual orientation is defined as ‘‘homosexuality, heterosexuality, or bisexuality.’’ H.R. 30l7, 

Section 3(9). 38Gender 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. § 2000e-2(k). 44 H.R. 3017, Section 12. Attorney’s Fees (emphasis added). 45Title VII § 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). 50Transgender 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. 
45 

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 ten-
46 

ure 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? 
47 

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 coinvestigators—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 
48 

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:] 
49 

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 
50 

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 pub-
51 

lished 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 
52 

APPENDICES 

[50 State Reports] 

State 

Alabama 

Alaska 

Arizona 

Arkansas 

California 

Colorado 

Connecticut 

Delaware 

Florida 

Georgia 

Hawaii 

Idaho 

Illinois 

Indiana 

Iowa 

Kansas 

Kentucky 

Louisiana 

Maine 

Maryland 

Massachusetts 

Michigan 

Minnesota 

Mississippi 

Missouri 

Montana 

Nebraska 

Nevada 

New Hampshire 

New Jersey 

New Mexico 

New York 

North Carolina 

North Dakota 

Ohio 

Oklahoma 

Oregon 

Pennsylvania 

Rhode Island 

South Carolina 

South Dakota 

Tennessee 

Texas 

Utah 

Vermont 

Virginia 

Washington 

West Virginia 

Wisconsin 

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 socalled 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.’’ 
53 

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 nonprofit. 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 
54 

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. §§ 2000e et seq.) provides in part: 
55 

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 nonactionable 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. 

§§ 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 
56 

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’’), ¶¶ 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 ratchetup 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 
57 

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 
58 

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 SeventhDay 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. 
59 

1See e.g. HLR pp 1389-1394 

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

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 
60 

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 

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. 

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 
61 

3 Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) 

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. 

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 as-
62 

sumptions 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 
63 

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. 
64 

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. 
65 

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. 
66 

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 
67 

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 
68 

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 
69 

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 sex-
70 

ual 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. 
71 

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. 
72 

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 
73 

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- 
74 

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? 
75 

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. 
76 

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 nondiscrimination 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 
77 

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 interpre-
78 

tation 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. 
79 

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. 
80 

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. 
81 

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 
82 

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. 
83 

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. 
84 

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 
85 

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: socalled ‘‘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. 
86 

• 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 victimcentered 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 
87 

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.’’ 
88 

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 federallyprotected 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 socalled sex changes are normal and medically necessary. He became the psychiatristin-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? 
89 

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 makeup, 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 genderconfused 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. 
90 

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 crossdressing 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 in-
91 

cest, 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. 
92 

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. 
93 

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. 
94 

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) 
95 

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. 
96 

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 speciallyprotected 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 ori-
97 

entation’’ 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.] 

Æ