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ENDA Is Back



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One of Congress’s perennial bills, the Employment Non-Discrimination Act (ENDA), is back. As in years past, it would add “sexual orientation” to race, sex, age, etc. as a basis on which there will be a federal prohibition against employment discrimination, in both the public and private sectors.

ENDA has always been a bad idea, as I explained in an NRO piece some years ago. [Footnote: The one part of the piece that I'd have to rethink is whether the Supreme Court's overruling of Bowers v. Hardwick in Lawrence v. Texas may now give Congress the legal authority to pass this bill with regard to state governments; the bill remains unconstitutional, as well as unwise, with respect to the private sector.] With the new Congress, however, ENDA’s chances of passage are of course much better now.

What’s more, the bill has gotten worse. Now, not only “sexual orientation” but also “gender identity” is covered. The latter 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.” Imagine the fun that bureaucrats and plaintiffs’ lawyers will have with that! Also new is the “Construction” section that I set out below. Reading it, bear in mind that this is the part of the bill that is supposed to be reassuring, supposedly curbing in potential excesses.

(1) 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.

(2) SEXUAL HARASSMENT- Nothing in this Act shall be construed to limit a covered entity from taking adverse action against an individual because of a charge of sexual harassment against that individual, provided that rules and policies on sexual harassment, including when adverse action is taken, are designed for, and uniformly applied to, all individuals regardless of actual or perceived sexual orientation or gender identity.

(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 fully unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.

(4) 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.

(5) ACTIONS CONDITIONED ON MARRIAGE- Notwithstanding section 4(g), an unlawful employment practice under section 4 shall include an action described in that section that is conditioned, in a State in which a person cannot marry a person of the same sex, either on being married or being eligible to marry.

Somehow, I’m not reassured.

Here’s how I concluded my earlier NRO piece: “Doubtless there are some instances of antigay discrimination that many or even most Americans would lament and that might be prosecuted if but only if ENDA becomes law. But there will be relatively few such cases, and weighed against them must be the inevitable specious suits, the enforcement expenses, the dubious regulations – and the important costs of enacting yet another federal law of dubious constitutionality that violates free-market, freedom of association, and federalism principles. It’s not worth it.”



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