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.

What We're Following See More »
THANKS TO MILITARY ROLE
McMaster Requires Congressional Approval
18 hours ago
THE DETAILS

Congress will need to vote on Donald Trump's pick of Lt. General H.R. McMaster to be his next national security adviser, but not for the reason you think. The position of NSA doesn't require Senate approval, but since McMaster currently holds a three-star military position, Congress will need to vote to allow him to keep his position instead of forcing him to drop one star and become a Major General, which could potentially affect his pension.

Source:
SENT LETTERS TO A DOZEN ORGANIZATIONS
Senate Intel Looks to Preserve Records of Russian Interference
23 hours ago
THE LATEST

"The Senate Intelligence Committee is seeking to ensure that records related to Russia’s alleged intervention in the 2016 U.S. elections are preserved as it begins investigating that country’s ties to the Trump team. The panel sent more than a dozen letters to 'organizations, agencies and officials' on Friday, asking them to preserve materials related to the congressional investigation, according to a Senate aide, who was not authorized to comment publicly. The Senate Intelligence Committee is spearheading the most comprehensive probe on Capitol Hill of Russia’s alleged activities in the elections."

Source:
WON’T INTERFERE IN STRUCTURING NSC OFFICE
White House to Give McMaster Carte Blanche
1 days ago
THE LATEST
NAIVE, RISK TAKER
Russia Compiling Dossier on Trump’s Mind
1 days ago
WHY WE CARE

Retired Russian diplomats and members of Vladimir Putin's staff are compiling a dossier "on Donald Trump's psychological makeup" for the Russian leader. "Among its preliminary conclusions is that the new American leader is a risk-taker who can be naïve, according to a senior Kremlin adviser."

Source:
PLANS TO CURB ITS POWER
Pruitt Confirmed As EPA Head
5 days ago
BREAKING
×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login