'Asterisk Equality'? Three Kinds of LGBT Discrimination That ENDA Won’t End

Advocates see the bill's passage in the Senate as the first step toward a landmark civil rights law—but the exemptions it offers are troubling.

(Photo: Brasil2/Getty Images; design: Lauren Wade)

Nov 8, 2013· 3 MIN READ
Liana Aghajanian is TakePart's weekend editor. Her work has appeared in ForeignPolicy.com, BBC.com, Los Angeles Times, and TheAtlantic.com.

It took nearly two decades to get here, but a bill that would prohibit workplace discrimination based on sexual orientation and gender has finally passed the Senate—a move many advocates are hailing as a civil rights victory.

The landmark decision on the Employment Non-Discrimination Act of 2013, or ENDA, which passed 64 to 32, could end hurdles faced by lesbian, gay, bisexual, and transgender individuals in hiring and employment, affecting approximately 9 million adults in the U.S. who identify as LGBT, according to The Williams Institute on Sexual Orientation Law and Public Policy.

The UCLA gender identity law think tank cites some 15 to 43 percent of LGBT people as having experienced forms of discrimination and harassment in the workplace, including being fired because of their sexual orientation, receiving unwarranted negative performance evaluations, and being passed over for promotions.

ENDA advocates are banking on the bill to change that.

In a statement released by the White House, President Obama praised the bill, saying that the day it passes its next significant challenge—getting through the House—“our nation will take another historic step toward fulfilling the founding ideals that define us as Americans.”

ENDA’s passage through the Senate—where it failed in every Congress since 1994—with bipartisan support, including votes from several key Republicans, is overwhelmingly significant. But you might want to hold on to your party hats—the bill isn't as inclusive as it seems. ENDA carries with it several exemptions that still negatively affect the LGBT community. The loopholes amount to what GetEQUAL codirector Heather Cronk declared “Asterisk Equality” in a Huffington Post op-ed last month.

Here are areas in which ENDA is far from being all-inclusive:

1. Military Institutions

ENDA explicitly exempts military institutions from having to provide protection, effectively not applying the term “employment,” as outlined in the bill, to veterans or any member of the armed forces.

The exemption comes at a time when nine states have denied military IDs and federal benefits for spouses of employees at National Guard bases, citing the state's ban on same-sex marriage. It's a move that Defense Secretary Chuck Hagel, in light of the end of DOMA, has blasted as a violation of federal law.

The transgender population also faces persistent discrimination, despite the repeal of “don't ask, don't tell.” A National Transgender Discrimination Survey from the National Gay and Lesbian Taskforce revealed that a full 20 percent of transgender people serve in the military—10 percent more than the general population. But unlike gay and lesbian service members, they are still prohibited from serving openly because of “discriminatory medical regulations.”

2. Religious Institutions

Perhaps the issue that has frustrated advocates most is that ENDA also does not apply to religious corporations, associations, or educational institutions. With broadly defined terms, this exemption may impact a wide range of employees at places such as hospitals or universities.

The American Civil Liberties Union, Transgender Law Center, National Center for Lesbian Rights, and Lambda Legal released a statement earlier this year criticizing the exemption.

"It could provide religiously affiliated organizations—far beyond houses of worship—with a blank check to engage in employment discrimination against LGBT people," the groups said.

Hayley Gorenberg, deputy legal director of Lambda Legal, says the civil rights organization is extremely concerned about the pass given to religious institutions, especially because it goes beyond exemptions that exist in other laws.

"It also incorporates an assumption that religious groups are somehow inherently anti-equality for people based on sexual orientation and gender identity,” she adds. “We know that that's not the case from many religious leaders from all sorts of backgrounds."

That discrimination, regardless of the bill, is already happening.

Late last month, an Arkansas teacher said she was fired from the private Catholic high school where she worked for a decade after marrying her partner. In Southern California, a gay English teacher was fired from a Catholic school after a photo of his wedding to his partner appeared in a local newspaper.

Still, GLAAD news director Ross Murray, who also leads the LGBT nonprofit's religion work, is optimistic about independent policy changes in the religious sector.

"I think there are still pockets of resistance, but increasingly there are going to be religious groups that are deciding for their own that they need to enact non-discrimination as well," he says.

3. Small Business

According to the 2011 "County Business Patterns" study, released in May of this year by the Census Bureau, more than 28 million Americans are employed by small businesses that have 15 employees or fewer. If the bill in its current form passes the House, it will effectively exclude this group from LGBT discrimination protection.

GLAAD’s Murray says the gap is troubling, adding that while the bill should go forward, it should account for people working for small businesses, ensuring that they are covered and protected.

He's also optimistic that, like religious groups, small business owners will enact non-discrimination policies similar to ENDA.

Though the legislation isn't perfect and leaves room for potential discriminatory practices, for many advocates it's a long overdue if somewhat small step in the right direction.

"Throughout our country's history we have continually identified ways in which we have marginalized and oppressed groups, and we have taken steps to fix or rectify that," Murray says. "Employment non-discrimination and allowing people to be judged by the quality of their work is one of those things that we can do to make ourselves a better nation.”