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Employment discrimination on the basis
of sexual orientation and gender identity

Basic info. on the 2009 ENDA bills

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About the 2009 version of ENDA:

bullet Its stated purposes are:
  1. To address the history and widespread pattern of
    discrimination on the basis of sexual orientation or gender
    identity by private sector employers and local, State, and
    Federal Government employers;
  2. To provide a comprehensive Federal prohibition of
    employment discrimination on the basis of sexual orientation or
    gender identity, including meaningful and effective remedies
    for any such discrimination; and
  3. To invoke congressional powers, including the powers to
    enforce the 14th amendment to the Constitution, and to regulate
    interstate commerce and provide for the general welfare
    pursuant to section 8 of article I of the Constitution, in
    order to prohibit employment discrimination on the basis of
    sexual orientation or gender identity. 1
bullet Whom would it protect? It is an inclusive bill:
bullet It would protect persons of all three sexual orientations (heterosexual, bisexual and homosexual), whether actual or perceived.
bullet It would also protect persons of all sexual identities: cis-gendered persons, transgender persons, and transsexuals, whether actual or perceived.
bullet What employers are covered?
bullet ENDA would apply to the same employers as are covered under Title VII of the Civil Rights Act of 1964, including:
bullet Private employers with 15 or more employees,
bullet Labor unions, and employment agencies,
bullet Federal, state and local governments.
bullet Also exempt from the legislation are the Armed Forces, religious institutions, and employers with fewer than 15 employees.

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bullet Quotas and health benefits:
bullet The ENDA bill would forbid the adoption of quotas on the basis of sexual orientation or gender equality.
bullet The employer is not required to provide health benefits to their unmarried employees.
bullet Facilities and dress codes:
bullet Employers would not be required to provide separate washroom for transgender employees who are in the process of transitioning.
bullet Employers may require employees to follow reasonable dress codes and reasonable grooming standards. However, when a transgender employee has already transitioned to their perceived gender or informs the employer that she/he is transitioning, the employer must allow the employee to comply with their dress code and grooming standards of the new gender. 1
bullet Collection of statistics:

The Equal Employment Opportunity Commission is prohibited from collecting statistics "... on actual or perceived sexual orientation or gender identity from employers, or compel the collection of such statistics by employers.
bullet Definitions within HR 3017:

Most of the terms in the bill are given the same definitions as found in section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e). The bill also contains two very important new definitions:
bullet (6) GENDER IDENTITY- The term ?gender identity? means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual?s designated sex at birth.
bullet (9) SEXUAL ORIENTATION- The term ?sexual orientation? means homosexuality, heterosexuality, or bisexuality.

Unfortunately, the bill does not define homosexuality, heterosexuality, or bisexuality. This is an important oversight because many religious and social conservatives define these sexual orientations in terms of behavior. To them, homosexuality involves being sexually active with a member of the same gender; it is what someone does. Essentially everyone else defines them in terms of feelings of sexual attraction. To them, homosexuality involves being exclusively attracted to members of the same sex; it is part of what a person is. Without a more precise definition of 'sexual orientation' some confusion is likely to arise.

Still, this group of definitions is a major advance over the recently proposed hate-crimes act which does not define sexual orientation at all. As a result, a few fundamentalist Christian groups have introduced a novel definition in which there are 30 or more orientations possible. This alternate definition makes dialogue, discussion and debate essentially impossible.

References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

  1. Text of "H.R. 3017: Employment Non-Discrimination Act of 2009," GovTrack at: It is also available at

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Copyright 2009 by Ontario Consultants on Religious Tolerance
First posted: 2009-AUG-07
Latest update: 2009-AUG-08
Author: B.A. Robinson

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