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Lambda's ENDA:

Today, on a 27-21 vote, the House Labor Committee approved the Employment Non-Discrimination Act (ENDA), H.R. 3685, which would ban discrimination in private employment based on "actual or perceived sexual orientation." Many gay-rights groups, including most notably the national gay legal organization Lambda Legal, oppose the bill because it does not include "gender identity," a phrase that would protect transsexuals and other gender nonconformists from discrimination.

In a recent blog post, I criticized the view taken by Lambda Legal that the "weak" ENDA just passed by the Labor Committee -- the version excluding "gender identity" -- would provide insufficient employment protection to gay people. That critique was shared by lawyers and commentators in the blogosphere (for especially well-reasoned critiques, see Chris Crain's analysis here and John Aravosis' analysis here). Rep. Barney Frank, who introduced H.R. 3685 after he and other House leaders determined on a vote count that a broader bill could not pass, criticized Lambda by name in a lengthy and passionate speech on the floor of the House. I also heard privately from attorneys and supporters associated with Lambda, including experienced gay-rights litigators, who opposed Lambda's legal critique of a limited ENDA on purported gay-rights grounds.

Lambda has now offered a detailed and substantive response to these critiques. Lambda's concerns have to be taken seriously, coming as they do from an organization with experienced lawyers and a rich history of doing important work for the legal rights of gay Americans. As I'll explain below, while Lambda has offered a clearer and more reasonable explanation of its views, its concerns remain exaggerated. The House should not reject H.R. 3685 out of misplaced concern for gay employees.

UPDATE: Jon Davidson, Lambda's Legal Director, replies to me in the comments here. Chris Crain comments and gets to the heart of the issue here.

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