Scott Brown

Scott Brown’s special election victory this month, taking the late Ted Kennedy’s Senate seat, could have the power to derail passage of pro-gay civil rights legislation this year. The GOP Massachusetts state lawmaker’s come-from-behind win January 19 eliminates the Democrats’ supermajority of 60 votes in the Senate—a margin necessary to stop a filibuster-prone Republican minority from stalling any liberal-leaning legislation for the remainder of the Congressional session.

But key gay civil rights supporters in Congress are not conceding any fight.

“I am continuing to push for full LGBT civil rights,” said Rep. Tammy Baldwin (D-Wisc.), one of three openly gay members of Congress. “It’s up to every single one of us to fight for those rights and not allow one election to dampen our efforts or destroy our morale.”

Bay State lawmaker, U.S. Rep. Barney Frank, the most veteran of the three –which includes newcomer Rep. Jared Polis (D-Colo.)—is also optimistic. He says the House will soon act on the Employment Non-Discrimination Act (ENDA) and will still repeal the military’s “don’t ask, don’t tell” policy ban on out service members.

“The key issue, with both ENDA and ‘don’t ask, don’t tell,’” said Frank, “is that we get to 60.”

Frank said he’s been working with the House committee on transgender inclusion [on ENDA] and that there’s been “real progress” in the House.

“I had a meeting last week with the transgender community and with the staff of the committee of the House, and … we have agreements on what can be done. It’s not going to be 100 percent, it’s going to be a very, very substantial amount, and it’s based on the fact that we had a vote on ENDA two years ago, over the objections of many in the community.”

Two years ago, the House passed a version of ENDA that did not include coverage for gender identity. The vote was 235 to 184. But the vast majority of LGBT groups were furious about the omission of gender identity coverage and the bill was not pursued in the Senate.

This year, said Frank, “There’s support.”

Both the House and Senate versions of ENDA this year include gender identity. Both have had hearings in committee and are awaiting votes.

Human Rights Campaign Deputy Legislative Director David Stacy says he is hoping for the best but acknowledged that Brown, the new Massachusetts senator, hasn’t yet indicated where he stands on ENDA.

“We are hopeful he would be supportive of it, given that Massachusetts has a non-discrimination law that covers sexual orientation,” Stacy said. But he said Brown is “certainly” against marriage equality and has a hostile record on gay-related issues in his home state.

“On ‘don’t ask, don’t tell,’” said Frank, “we have an Iraq war veteran doing a very good job lining up the votes.” He’s referring to Rep. Patrick Murphy (D-Pa.), the chief sponsor of that bill.

Both Frank and Stacy say Rep. Murphy is working “very hard” to explain the Military Readiness Enhancement Act to other House members and solicit additional co-sponsors. Murphy’s bill would overturn the 17-year-old “don’t ask don’t tell” policy for gay and lesbian service members and allow them to serve openly. HRC is also working with members of key Congressional committees to build support, and with allies in Congress to do “one-on-one” lobbying of other members, Stacy said.

Although there is still no Senate bill yet, Stacy says a repeal of “don’t ask, don’t tell” could come through a Department of Defense authorization bill, not from freestanding legislation. Congress approves such defense measures annually; they contain numerous policies for defense programs.

Frank, citing the “tricky” nature of immigration, said he thinks the chances for movement on legislation supporting non-U.S. partners of gay and lesbian Americans are “very unlikely, very difficult.” But he is hopeful a bill can be passed that recognizes domestic partnerships for federal employees. Baldwin is leading that effort, he said.

HRC’s Stacy said his organization is still “hoping at some point to repeal the Defense of Marriage Act,” too, though he acknowledged Brown will not likely be in favor of that, making Senate passage unlikely. He said HRC does hope, however, to “have a conversation with him on that.”

Stacy says these and other measures, including health care benefits for the domestic partners of federal employees, and Senate confirmation of presidential appointees, will keep lawmakers busy. Early indications are that Brown’s election, however, will make it virtually impossible to advance President Obama’s ambitious health reform legislation in any form that might include some pro-gay provisions that were part of the House version of the bill.

“I think it’s going to be a very active year for us,” said Stacy. “There’s a great opportunity for LGBT legislation. But it’s not going to be easy. It’s really important that people not be discouraged.”

“Elections have consequences,” said Baldwin, “and Scott Brown’s victory in Massachusetts should be a rallying cry that unites us and spurs us forward.”