Last week, the House Health, Employment, Labor & Pensions (HELP) Subcommittee held hearings entitled, "An Examination of Discrimination Against Transgender Americans in the Workplace."  Back in November of 2007, by a vote of 235-184, the House passed H.R. 3685, the Employment Discrimination Act of 2007 (ENDA).  The ENDA would prohibit employment discrimination on the basis of actual or perceived sexual orientation.

An earlier version of the bill, H.R. 2015, would have also prohibited discrimination on the basis of "gender identity."  Fearful that this expanded ENDA would not have passed, sponsor Rep. Barney Frank (D-MA) introduced H.R. 3685.  Rep. Tammy Baldwin (D-WI) introduced an amendment prior to the floor vote, seeking to re-insert the transgender protections, but withdrew it in the 11th hour.  Thus, with the more limited bill potentially heading toward the Senate in the future, these hearings discussed whether there is a pressing need for federal legislation to address "gender identity" discrimination as well.

The Baldwin amendment -- and the original text of H.R. 2015 -- define "gender identity" as:

...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.

The Subcommittee heard testimony from four transgendered individuals and the chairman of Dow Chemical's internal LGBT advocacy network in favor of the legislation; and, two attorneys opposed for differing reasons.  All testimony, as well as the introductory statements of the Subcommittee Chairman and Rep. Baldwin are available at the HELP website here.

Although Sen. Edward Kennedy (D-MA) has expressed support for the version of ENDA that has passed the House, it is unclear whether the Senate intends to consider either version of the bill prior to the 2008 elections.  Kennedy's health, politics, a shrinking legislative calendar, and a veto threat all mitigate the chances. 

Still, employers must track this issue closely.  In addition to representing a further erosion of the "employment at will" doctrine, expansion of the ENDA to protect broadly defined "gender identity" rights will create significant challenges.  For example, what is a "gender-related mannerism"?  How does one even consider defining such a term without perpetrating the very stereotypes these laws are intended to combat?  If this law is passed, employers will need significant additional guidance in designing and enforcing workplace policies.