Senate bill protects ‘gender transitioning’ in the workplace

The Senate will hold a procedural vote Monday on the Employment Non-Discrimination Act (ENDA), a gay and bisexual rights bill that also aims to protect people from workplace discrimination when transitioning from one gender to another.

The bill from Sen. Jeff Merkley (D-Ore.) would make it illegal for companies, associations and government employers at all levels to use sexual orientation and gender identity as a basis for hiring and firing decisions, or to use these factors to discriminate against employees or applicants.

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But the bill goes further than that by including language meant to protect people from discrimination when in "gender transition." The bill gets at the idea of gender transition in Section 8, which deals with workplace dress and grooming standards.

That section says employers are allowed to enforce "reasonable dress or grooming standards." But that right is conditional — employees who have gone through gender transition, and employees who notify employers that they are "undergoing gender transition," must be allowed to dress in the manner of the gender "to which the employee has transitioned or is transitioning."

The bill itself, S. 815, does not define "gender transition." A report on the bill from the Senate Health, Education, Labor and Pensions (HELP) Committee says senators decided not to define the term.

The report does allow that gender transition is the process of a person "publicly changing his or her gender presentation to be consistent with his or her gender identity." It says that process usually involves name changes and changes to appearance, voice and mannerisms, and could also involve medical procedures.

But the report adds that every gender transition is unique, and that states with relevant laws also don't try to define it. "Therefore, it is the committee's intent that nothing in this Act be read as establishing what an individual's gender transition must entail," the report says.

Under the bill, protections for gay, bisexuals and people in gender transition would be enforced by the Equal Employment Opportunity Commission. The Commission would be given the power to enforce these new rules just as it can enforce the Civil Rights Act of 1964, or the Government Employee Rights Act.

The bill also repeals a state's sovereign immunity from lawsuits citing employment discrimination, if that state receives federal money.

Merkley's bill does include some express limitations. For example, it says that nothing in the bill should be seen as a requirement to give preferential treatment to gay or bisexual people, or to create employment quotas.

It exempts religious organizations. Section 6 of the bill says it does not apply to "a corporation, association, educational institution or institution of learning, or society" that is already exempt from religious discrimination language in the Civil Rights Act of 1964.

However, Democratic supporters of the bill made it clear in report language accompanying the legislation that ENDA would apply to groups that are "not primarily religious in purpose and character."

Additionally, the bill exempts the military. Section 7 says employment relationships covered by the bill "does not apply to the relationship between the United States and members of the Armed Forces."

On Monday, the Senate is expected to vote on a motion to end debate on a motion to proceed to the bill. Republicans have yet to speak at length on the bill on the Senate floor, but several raised several objections in the Committee report.

Sen. Lamar Alexander (R-Tenn.), the ranking member of the HELP Committee, and others Republicans complained in the report that there were no hearings on the bill, and said they are worried about the bill's applicability in schools.

GOP senators also said the bill's language is "too vague for employers to understand" what response is required under the law, and generally that the bill could create problems in workplace for some companies.

"S. 815 would force employers to ignore and silence the concerns of fellow employees, customers, and other users of their facilities," they wrote. "The repercussions of disregarding such concerns could be devastating to an employer."

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