US Senate passes ENDA

November 08, 2013

In a 64-32 vote, the United States Senate passed the Employment Non-Discrimination Act of 2013 (ENDA), which would ban workplace discrimination against homosexuals and transgendered persons.

In a joint letter, three committee chairmen of the United States Conference of Catholic Bishops had urged senators to oppose the measure. They explained:

ENDA does not include an exemption for a “bona fide occupational qualification” (BFOQ), for those cases where it is neither unjust nor inappropriate to consider an applicant’s sexual inclinations. This omission also elevates “sexual orientation” discrimination within Title VII to the same and, until now unique, level as race discrimination (which allows no BFOQ), and above religion, sex, and national origin discrimination (which do).

ENDA’s vague definition of “sexual orientation” would encompass sexual conduct outside of marriage, thus legally affirming and specially protecting that conduct.

Based on experience in state courts, it is likely that ENDA would be invoked by federal courts to support the claim that, as a matter of federal constitutional right, marriage must be redefined to include two persons of the same sex.

ENDA’s definition of “gender identity” lends force of law to a tendency to view “gender” as nothing more than a social construct or psychosocial reality, which a person may choose at variance from his or her biological sex. This provision also fails to account for the privacy interests of others, particularly in workplace contexts where they may reasonably expect only members of the same sex to be present.

ENDA could be used to punish as discrimination what many religions – including the Catholic religion – teach, particularly moral teaching about same-sex sexual conduct. Moreover, the bill’s religious freedom protection, which is derived from Title VII, covers only a subset of religious employers, and as a result of recent litigation, is uncertain in scope. Recent experience also shows that even exempted employers may face government retaliation for relying on such exemptions.

 

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Further information:

• Senate votes to ban discrimination against gay and transgender workers (Washington Post)
• Roll call vote on ENDA (US Senate)
• USCCB urges Senate to oppose ENDA, says bill threatens religious liberty (CWN, 11/5)