Transgender Witness Was Tipping Point for Gay-Rights Bill

Orrin Hatch at 2011 CPAC meeting.
National Journal
Fawn Johnson
Add to Briefcase
Fawn Johnson
Nov. 7, 2013, 9:23 a.m.

In Ju­ly of last year, sen­at­ors gathered in a wood-paneled hear­ing room and saw something they had likely nev­er seen be­fore: a black man at the wit­ness table who, 20 years pre­vi­ously, had been a wo­man. He test­i­fied about how, be­fore his sex-change sur­gery, he had been es­cor­ted by po­lice out of wo­men’s bath­rooms and stripped to “prove” he could be there. He talked of how he was fired from one of his first jobs (in fin­ance) six months after he an­nounced that he was trans­ition­ing from wo­man to man.

But the most im­port­ant part of Kay­lar Broadus’s ap­pear­ance be­fore the Sen­ate Health, Edu­ca­tion, Labor, and Pen­sions Com­mit­tee on that sum­mer morn­ing wasn’t any­thing he said. His mere pres­ence at the wit­ness table, at the in­vit­a­tion of com­mit­tee Chair­man Tom Har­kin, D-Iowa, was the sig­nal to the gay, les­bi­an, and trans­gender com­munity that they could go all out in pro­mot­ing the Em­ploy­ment Non-Dis­crim­in­a­tion Act, a bill that bars work­place dis­crim­in­a­tion against them. Vari­ous ver­sions of the le­gis­la­tion have been around since 1974.

The Sen­ate passed it 64-32 Thursday.

Con­gres­sion­al aides point to that Sen­ate hear­ing as a key mo­ment in turn­ing the tide in fa­vor of le­gis­la­tion that had seen zero ac­tion since the House passed a sim­il­ar bill in 2007. The Sen­ate hear­ing signaled to gay-rights act­iv­ists that this time around, they didn’t have to worry about re­volt with­in their ranks over trans­gender cov­er­age, al­ways a sticky point for squeam­ish law­makers.

“Trans­gender freaks people out,” ad­mit­ted one gay-rights ad­voc­ate. By con­trast, nine out of 10 people per­son­ally know someone who is gay.

The House bill was em­broiled in con­tro­versy from the get-go be­cause it de­lib­er­ately ex­cluded trans­gender people in or­der to win “yes” votes from mod­er­ate Demo­crats in dis­tricts that had backed Pres­id­ent Bush in the 2006 elec­tion. The ex­clu­sion angered gay-rights act­iv­ists to the point of re­volt. Their com­plaints led then-Rep. Barney Frank, D-Mass., who is gay, to hold an in­fam­ous press con­fer­ence in which he spent 45 minutes lec­tur­ing ad­voc­ates about the be­ne­fits of hav­ing House mem­bers vote on tough le­gis­la­tion that ac­tu­ally passes. “These guys need to get used to vot­ing on this,” he said.

Gay-rights ad­voc­ates nev­er for­got that mo­ment. After the 2007 bill died in the Sen­ate, they de­cided they wanted all or noth­ing on ENDA. Noth­ing was all what they got for five years, and the wounds were still smart­ing when Har­kin con­vened the 2012 hear­ing.

Broadus’s testi­mony ef­fect­ively healed them — and act­iv­ists got to work, spend­ing much of the next year and a half in the field. They tar­geted grass­roots mes­sages to sen­at­ors in red and purple states that their in­tern­al polling showed as the most gay-friendly: New Hamp­shire, West Vir­gin­ia, Ohio, Ari­zona, Arkan­sas, Nevada, and Pennsylvania.

The Hu­man Rights Cam­paign spent $2 mil­lion in these states, gen­er­at­ing more than 162,000 emails, 80,000 post­cards, 15,000 calls, and 1,000 let­ters.

The ad­voc­ates made sure that the sen­at­ors on their “get­table” list knew that they would not be pen­al­ized from the right for their sup­port. The Hu­man Rights Cam­paign cir­cu­lated an ex­tens­ive re­port show­ing that not one Re­pub­lic­an state le­gis­lat­or had ever lost reelec­tion be­cause he or she voted for a state nondis­crim­in­a­tion law.

The tac­tic worked. Sen. Lisa Murkowski, R-Alaska, cited the gay out­reach as main reas­on she de­cided to sup­port the bill when Har­kin’s com­mit­tee passed it in Ju­ly. Sen. Or­rin Hatch, R-Utah, also voted for it.

Con­gres­sion­al aides say Hatch was one of the most in­flu­en­tial mem­bers in the GOP caucus on the bill. He waited un­til the day be­fore the com­mit­tee’s vote to let Har­kin know of his sup­port. He wanted to be sure it struck the ap­pro­pri­ate bal­ance between nondis­crim­in­a­tion for the LGBT com­munity and pro­tec­tion for re­li­gious groups, ac­cord­ing to his aides. To get there, Hatch’s staffers did lengthy leg­al re­view of every em­ploy­ment nondis­crim­in­a­tion bill that had ever been in­tro­duced. The ex­er­cise was par­tic­u­larly im­port­ant be­cause Hatch, one of the Sen­ate’s longest-serving mem­bers, had voted against ENDA in 1996. He wanted to be sure he could ex­plain why he switched.

As it turned out, Hatch’s ex­plan­a­tion gave sev­er­al re­li­gious sen­at­ors, in­clud­ing Sen. Dean Heller, R-Nev., a reas­on to vote for the bill. Hatch said that the Sen­ate’s ver­sion of ENDA went fur­ther in terms of re­li­gious ex­emp­tions than a Salt Lake City LGBT nondis­crim­in­a­tion or­din­ance that had been en­dorsed by the Mor­mon Church. Both Hatch and Heller are Mor­mon. Hatch also made it clear to a host of oth­er re­li­gious groups that the bill would do noth­ing to im­pede their activ­it­ies. Be­cause Hatch was the spon­sor of the Re­li­gious Free­dom Res­tor­a­tion Act in 1993, his word car­ried some weight.

But it wasn’t Hatch — or even Heller, who this week gave sup­port­ers a sol­id 60 votes — that aides iden­ti­fied as the mo­ment when they knew the bill would pass in the Sen­ate. It was the deaf­en­ing si­lence from Sen­ate op­pon­ents in the com­mit­tee markup, which was highly un­usu­al for a meaty, con­tro­ver­sial bill. Sev­er­al Re­pub­lic­ans had pre­pared amend­ments to it when the pan­el con­vened, but without ex­plan­a­tion they de­clined to of­fer them. The bill passed quickly with nary a peep.

“You al­ways worry about amend­ments, as you know. But it was pleas­antly sur­pris­ing to me that we brought it up and it passed in five minutes. No amend­ments. Noth­ing,” Har­kin told Na­tion­al Journ­al Daily.

The ra­dio si­lence from op­pon­ents con­tin­ued on the floor; de­bate seemed point­less when the House won’t take up the bill.

Ad­voc­ates have a dif­fer­ent take on the no­tice­able lack of pub­lic protest. They say it’s easi­er to vote against nondis­crim­in­a­tion when you don’t have to ex­plain it, es­pe­cially if that ex­plan­a­tion will be forever pre­served in the Con­gres­sion­al Re­cord.

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