Mara Keisling

Some LGBT activists say the votes are there to pass the Employment Non-Discrimination Act (ENDA) and they are just waiting for the Democratic leadership to call the bill to the floor. But the leadership has grown quiet—no more regular expressions of optimism and predictions for when Congress will take up the bill, and the waiting game is wearing on nerves.

“The community and the movement have done everything we’ve been asked to do,” said Mara Keisling, executive director of the National Center for Transgender Equality, this week. NCTE is one of the key groups lobbying for the bill this session, taking the lead on the additional language that seeks to prohibit discrimination based on gender identity, as well as sexual orientation.

“We’ve worked and worked and gotten sufficient votes to make sure gender identity stays in the bill,” said Keisling, “but the bill is not being prioritized.”

Rea Carey, executive director of the National Gay and Lesbian Task Force, said, “We have heard that the official whip is completed and that there are enough votes to pass ENDA in committee and in the House, which tells us that our vigorous lobbying and grassroots engagement efforts are being effective.”

“Leadership needs to do the right thing, right now,” said Carey, “and schedule a markup and pass an inclusive ENDA.”

One of those leaders is Rep. Barney Frank (D-Mass.), the most veteran of Congress’ three openly gay representatives, chairman of the House’s influential Finance Committee, and sponsor of the bill. Through a spokesman, Frank had no new information this week about when a vote will happen but that the vote count is not a certain and unchanging thing.

“The whip count is ongoing. It’s not done,” said Frank spokesman Harry Gural on Friday. “There’s not a scoreboard up there and once you hit that number, you’re done. It’s got to be ongoing.”

“What we need is for everyone to be calling their rep—even if it’s a rep who has said he would vote for the bill,” said Gural. “Phone calls are effective and we need to make these phones ring off the hook.”

Frank introduced the bill, H.R. 3017, in June of last year and the House Committee on Education and Labor held a hearing on it last September. But a long-sought hate crimes bill got the nod last year; Democratic leadership attached it to the annual bill authorize spending by the Department of Defense. And an enormously contentious and time-consuming debate over health care reform kept most everything else off the table until March of this year.

After the health reform legislation passed and was signed into law in late March, Frank said the way was now cleared for the House to take up ENDA. He predicted then that a vote would likely come as soon as Congress returned from a spring recess—in early April. It is now mid-May. On May 10, Roll Call newspaper, specializing in coverage of Congressional legislation, reported that “senior Democratic aides and lawmakers” believe ENDA could be on the House floor this month.

One such aide told this reporter that Democratic leaders would likely be discussing timing next week and there should be “more clarity” on timing “by the end of this month.”

Meanwhile, the remaining days in which the House can vote on anything are ticking away—House Majority Leader Steny Hoyer’s legislative calendar shows a total of 48 full days for voting and 14 part days before adjournment and mid-term elections.

Roll Call ran two articles in late April suggesting support for ENDA has been suffering because some supporters of the legislation in 2007 are suddenly getting cold feet over the inclusion of gender identity protection in the bill this year. But Frank told Roll Call this week the provision will stay in the bill and that he’s still optimistic for passage.

Some LGBT activists expressed upset over Frank’s comments to Roll Call that the bill, in addressing the gender identity issue, does give employers the right to expect that employees have a “consistent gender presentation” before they can sue claiming gender identity discrimination.

“They can’t sit there with a full beard and a dress,” Frank told Roll Call. But NCTE said Frank’s comment was simply reiterating the current state of the law.

“Barney was not really saying anything new,” said NCTE legal counsel Harper Jean Tobin. “It was troubling to a lot of transpeople, but people forget that ENDA puts rules on employers, not employees. And most employers don’t have gender-based dress codes.”

So, if the votes are there and a vote has been promised, why hasn’t a vote happened yet?

People on the Hill who are close to the action offer several explanations, though none would do so with their name attached. One said Democratic leaders worry about a repeat of last week’s debacle on a bill to encourage homeowners to adopt energy-saving measures. The bill passed the House 246 to 161 but not before Republicans attached provisions that could prevent it from being successful. One amendment requires that it cannot go into effect unless supporters can prove that it will not add to the deficit. Another amendment requires that contractors participating in the program ensure that they do not have any sexual predators among their employees.

Conservative Republicans are almost certain to try similar amendments on ENDA, as well as an effort to recommit the bill to committee, as a way of thwarting it.

But Keisling said these types of efforts are simply part of the game in Congress and that she’s “extremely confident” the support is there to pass ENDA.

“It’s just a question of getting prioritization” from Democratic leaders, said Keisling. “I know they’re busy—I get it. But apparently we’re not being prioritized. . . . The clock is running out.”