Surprise Progress on Capitol Hill

GOP-controlled House approves hate crimes protections for gays and, for first time, transgenders

In a surprising development last week, a federal hate crimes bill that includes gay, lesbian, and transgender protections passed the Republican-controlled House of Representatives. This is the first time such a bill has passed the U.S. House, and the first time either chamber of Congress has approved a measure that offers protections based on gender identity and expression.

For transgender activists, the victory was stunning in its speed and coverage.

“This is a really amazing victory,” said Mara Keisling, executive director of the National Center for Transgender Equality. “It totally debunks all of the fears that transgender language hurts passage of a gay bill. That argument is just wrong,”

Republican House leaders have never before even allowed a gay hate crimes bill to come to the floor for a vote.

Consideration of the measure may have been something of an oversight when it took place September 14, during House action on the Child Protection Act. House Republicans declared the bill subject to an “open rule,” meaning any amendment germane to the law under consideration could be added as an amendment. Because the Child Protection Act alters the U.S. criminal code, Democrats took the opportunity to offer the hate crimes bill as an amendment.

In the past, Republicans have typically conducted such deliberations under a “closed rule” to prevent just this kind of thing from happening. Legislation is almost never considered under an open rule.

“The credit must go to John Conyers and his staff who had the wherewithal to see this opportunity,” Barney Frank, the gay Massachusetts Democrat, said in an interview, referring to a Michigan Democratic member of the House.

Frank said Conyers’ success presages a crack in the conservatives’ domination of the national political agenda.

“It’s a sign things are breaking up around the Republicans,” Frank argued. “They’re so worried about the hot Iraq and the next election that they’ve lost control. The conservatives are concentrating so much fire on gay marriage that they miss other issues where we can make progress.”

The vote came down mostly along party lines, although 30 Republicans also voted for the measure.

Matt Foreman, executive director of the National Gay and Lesbian Task Force, said the vote signaled a rare opportunity for gay legislation to advance.

“This proves that trans-inclusive language is not the kiss of death for legislation, but it is a chance to press forward with broad anti-discrimination laws,” Foreman said in an interview. “It’s now obvious the majority of the House is not nearly as conservative as the leadership.”

The Human Rights Campaign, another national LGBT advocacy group, also hailed the vote as indicative of the times as well.

“Republicans in Congress are waking up to the problems LGBT people face in their daily lives,” said Christopher Labonte, HRC’s political director.

“All members had an opportunity to vote on the amendment before they approved the larger measure,” Labonte said. “Thirty Republicans did so. They didn’t have to vote yes so just they could claim they favored the Child Protection Act.”

Several hurdles remain before the bill becomes law.

“It wouldn’t be terribly surprising to see it taken out in conference committee,” Jerrold Nadler, a Manhattan Democrat, said of the process by which the House and Senate resolve differences in legislation passed by both. “In the past the Republicans have freely used the conference committee to rewrite legislation and ignore things they don’t like.”

Last year, after the Senate passed a gay-inclusive hate crimes measure as part of the Defense Department funding bill, a majority of House members declared in a non-binding resolution that the language be retained during a conference to reconcile the differences between the House and Senate versions. The resolution was ignored, and Republican Congressional negotiators removed the language, preventing it from becoming law.

Even if the amendment makes it out of committee, Republican President George W. Bush must still sign it. He has given no indication of his plans.

The Child Protection Act, to which the hate crimes measure was attached, has been called unconstitutional by some critics. The law eliminates federal review for anyone convicted of killing a person younger than18. Usually, once a defendant has exhausted appeals at the state level, they can continue through the federal courts up to the U.S. Supreme Court. The Child Protection Act would give state governors the final say on such cases.

Both Nadler and Frank said they harbored serious concerns about the Child Protection Act, but that the opportunity to vote on a gay hate crimes bill was just too good an opportunity to pass up.

The act also mandates a publicly available sex offender database, and that has created some confusion for gay advocates. Only individuals convicted of a crime punishable by more than a year in prison were intended to be listed on this registry, though initial reports suggested that the names of those arrested for lewdness, such as having sex in a public park, would also appear even though penalties in such cases are generally less than a year. Lewdness arrests are now not to be included. Statistics show that the vast majority of those arrested for public lewdness are gay men engaged in sex outside of public view in known cruising areas.

Last week also marked movement on another gay protections bill. H.R. 3128, the Clarification of the Federal Employment Protections Act, intended to specifically ban discrimination based on sexual orientation in the federal workforce, was unanimously approved by the U.S. House Government Reform Committee. It is now eligible for a full floor vote.

Sponsored by Henry Waxman, a California Democrat, 3228 is in direct response to the recent actions of Scott Bloch, the Bush-appointed director of the Office of Special Counsel. The OSC is charged with prosecuting employment discrimination in the federal workforce. Serious concerns regarding Bloch’s willingness to protect gay and lesbian employees prompted Waxman to introduce his legislation.

“It is intended to dispel any public confusion that federal employees are not protected from discrimination on the basis of sexual orientation,” Waxman said in a statement.

Bloch has said he did not have the authority to prosecute job discrimination based on sexual orientation because no particular statute gave him that authority. Bloch announced this decision soon after he assumed his post, even though previous case law has been interpreted by both Democratic and Republican administrations as preventing sexual orientation discrimination in employment. Bloch recently told a Senate committee, “The courts have specifically rejected sexual orientation as a status protection under our statutes.”

Bush issued an order last year instructing all federal agencies to enforce non-discrimination policies with regard to sexual orientation.

In other related news, New York’s Nadler introduced a federal “anti-bullying” act at a press conference in Manhattan last week. His measure is supported by the Gay, Lesbian and Straight Educational Alliance (GLSEN), and Parents and Friends of Lesbians and Gays (PFLAG).

“Bullying is a major problem for kids perceived as minorities, not just gay and lesbian kids,” Nadler said in an interview. “And too often this is seen as a normal rite of passage, rather than the serious problem it is.”

Nadler went on to say that research has shown not only do bullied children suffer more from depression, suicide, and drug abuse, but also that those who bully are more likely to be arrested for a crime later in life.

“We must help to prevent bullying not only to protect those who are bullied, but also to help those children who feel they need to bully others,” Nadler said.

The bill would provide federal funds to help states institute anti-harassment programs in schools and require the Department of Education to collect and report statistics regarding bullying.

When Nadler’s legislation might come up for a vote is unknown.

“That’s the power of the majority,” the Democrat said. “The majority controls what gets considered. So many good bills are not defeated because of a vote, but because they never get a hearing.”

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