Wiliams Institute Study Supports Inclusive ENDA

"When heterosexism strikes, strike back"

23 September 2009

The U.S. House of Representatives held hearings today on H.R. 3017, the Employment Non-Discrimination Act of 2009 (ENDA), which would prohibit employment discrimination on the basis of sexual orientation and/or gender identity.  Brad Sears, Executive Director of the Williams Institute, a national research center on sexual orientation and gender identity law and public policy at UCLA School of Law, testified in support of the bill.

Sears summarized the findings of a twelve-month research study conducted by the Williams Institute, which found widespread and enduring discrimination on the basis of sexual orientation and on the basis of gender identity by state and local government as well as in the private sector.  These findings support the conclusion that Congress has the power to enact ENDA under Section 5 of the 14th Amendment, which grants Congress the authority (among other things) to enforce the guarantees of that Amendment's Equal Protection Clause.

Congress would assuredly have the constitutional authority to adopt ENDA under its power to regulate interstate commerce.  Congress's Section 5 power is important, however, because it (and not the commerce power) would allow Congress to authorize private individuals who have been discriminated against by state governments to sue those governments for money damages to compensate them.  Without that authority, states would be able to assert "sovereign immunity" as a shield against monetary awards under current constitutional law.

If you have not already done so, please let your Representative know that you want her or him to stand up for fundamental fairness and support the right of Americans of every sexual orientation and gender identity to work free of invidious discrimination.  You can reach your Representative by dialing 202-224-3121 and giving the operator your zip code; ask her or him to support and to sponsor ENDA, H.R. 3017.


Disclosure:  I am a Visiting Scholar at the Williams Institute this semester, as I was in Spring 2003, and I remain a member of the Institute's Faculty Advisory Committee; however, I was not involved in the preparation of this testimony or report.

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Categories: equal protection employment discrimination sexual orientation gender identity Fourteenth Amendment Section 5 sovereign immunity Williams Institute