Rep. John Conyers (D-Mich.), chair of the House Judiciary Committee, introduced a federal hate crimes bill with Rep. Mark Kirk (R-Ill.) and 137 co-sponsors last week. Photo by Lauren Victoria Burke/AP)
Five bills, denoted below with an asterisk, have been re-introduced so far this year and others — including the Employment Non-Discrimination Act — are expected to be re-introduced in the coming weeks and months.
Employment Non-Discrimination Act: Calls for banning private sector employment discrimination based on sexual orientation and gender identity.
*Local Law Enforcement Hate Crimes Prevention Act: of 2007: Calls for giving the federal government authority to prosecute hate crimes based on a victim’s sexual orientation, gender identity, gender or disability. [Introduced in House March 20]
*Military Readiness Enhancement Act: Calls for repealing the U.S. military’s “Don’t Ask, Don’t Tell” policy so that gay male, lesbian and bisexual troops would be allowed to serve openly. [Introduced in House Feb. 28]
Uniting American Families Act: Calls for amending the U.S. Immigration & Nationality Act to allow foreign nationals who are same-sex domestic partners of U.S. citizens to apply for the same immigration rights offered to foreign nationals who legally marry U.S. citizens. Similar to the existing law’s application to heterosexuals, the bill calls for prosecution of same-sex couples who fraudulently form a partnership to enable a foreigner to obtain immigration rights.
*Domestic Partner Health Benefits Equity Act: Calls for amending the Internal Revenue Code to end taxation of health insurance benefits for domestic partners. Under the current IRS Code, legally married employees do not pay taxes on their employers’ contribution to their health insurance benefits that cover their spouses and dependent children. But gay and lesbian employees must pay taxes on similar benefits as if they were ordinary income. [Scheduled for introduction in House March 29]
Domestic Partners Benefits & Obligations Act: Calls for providing health insurance and other benefits to same-sex and opposite-sex domestic partners of federal government employees. Under current law, these benefits are only available to legally married spouses of federal employees. The bill sets various requirements to define a domestic partnership, including an affidavit that the partners live together, are not relatives, are over 18 and are not married.
Clarification of Federal Employment Protections Act: Declares that, “federal employees are protected from discrimination on the basis of sexual orientation” and “[repudiates] any assertion to the contrary.” Gay-supportive members of the House of Representatives introduced the bill to overrule a controversial decision by U.S. Special Counsel Scott Bloch not to enforce a longstanding federal employment policy banning sexual orientation discrimination against federal workers.
Family Medical Leave Inclusion Act: Calls for amending the Family & Medical Leave Act of 1993 to allow government and private sector employees to take leave to care for a domestic partner who has a serious health condition. The bill also would allow medical leave for the care of a same-sex married partner or the parent-in-law, adult child, sibling or grandparent of a same-sex partner who has a serious health condition.
*Responsible Education About Life Act: Calls for creating a $206 million federal grant program to award funds to states for comprehensive sexuality education that is not linked to advocacy of abstinence-only-until-marriage. Supporters say the bill is needed because existing sexuality education programs funded by the federal government are linked to abstinence-only policies. [Introduced in House and Senate on March 22]
*Early Treatment for HIV Act: Calls for allowing low-income, childless adults with HIV to become eligible for Medicaid coverage before they develop full-blown AIDS. Under current law, people who meet the income requirements for Medicaid are ineligible for the federal health program if they have HIV but are not “disabled” by having AIDS. [Introduced in Senate March 13]
Any thoughts that a transgender protection clause in the federal hate crimes bill would slip through Congress without controversy were put to rest last week as social conservative groups blasted the legislation as a pro-homosexual measure that would promote “cross-dressing” and “transsexualism.”
Representatives of a bipartisan coalition of advocacy groups supporting
the bill, including the International Association of Chiefs of Police, brushed off the attacks, saying the Local Law Enforcement Hate Crimes Prevention Act of 2007 enjoys widespread support.
“The right wing has been spreading lies and myths about hate crimes legislation for 20 years,” said Matt Foreman, executive director of the National Gay & Lesbian Task Force. “The fact is that most lawmakers see through this nonsense.”
Rep. John Conyers (D-Mich.), chair of the House Judiciary Committee, and Rep. Mark Kirk (R-Ill.) introduced the bill along with 137 co-sponsors on March 20. All but eight are Democrats.
The bill, H.R. 1592, authorizes the federal government under certain circumstances, to prosecute hate crimes based on a person’s sexual orientation, gender identity, gender and disability. The bill would expand an existing federal criminal law that provides for similar federal prosecution of hates crimes based on a victim’s race, religion and ethnicity.
The legislation would limit federal involvement to hate crimes consisting of acts of violence against persons and for cases where local or state prosecutors seek out federal assistance or are unable or unwilling to prosecute such cases themselves.
In one of its most controversial provisions, the bill gives federal prosecutors authority to intervene in cases where a jury verdict or a sentence by a judge “left demonstratively unvindicated the federal interest in eradicating bias-motivated violence.”
Gay rights leaders have said this provision was needed for potential, although rare, cases where a local judge or jury might issue an unusually lenient sentence or verdict in a case where the evidence in a hate crime appears overwhelming against the person charged.
The legislation also authorizes the U.S. Attorney General to provide financial assistance to state and local law enforcement agencies that encounter unusually high expenses associated with investigating and prosecuting hate crimes.
“Far left Judiciary Committee Chairman John Conyers has once again introduced his so-called ‘hate crimes’ bill to provide special federal protection for homosexuality, cross-dressing and transsexualism,” the anti-gay Traditional Values Coalition said in a March 22 statement.
“The ultimate goal of Conyers’ bill is to silence all opposition to the homosexual/transgender political agenda,” said Traditional Values Coalition director Andrea Lafferty in the statement. “So-called ‘hate speech’ will be suppressed because it supposedly incites individuals to violence against homosexuals/transgenders,” Lafferty said.
A statement released by Conyers’ office says the bill “applies only to bias-motivated violent crimes and does not impinge public speech or writing in any way.”
Pointing to the text of the bill, the statement notes that the bill “includes an explicit First Amendment free speech protection” for persons accused of hate crimes under the bill that is modeled after a similar provision in the Washington State hate crimes law.
Sen. Edward Kennedy (D-Mass.) and a group of Senate co-sponsors were expected to introduce an identical version of the hate crimes bill in the Senate next month, according to Christopher Anders, a gay rights attorney with the American Civil Liberties Union’s national legislative office in Washington, D.C.
“This bill applies to crimes of violence that involve bodily injury,” Anders said. “This is not about thought police or political correctness. This is about stopping violence.”
The House passed a nearly identical version of the hate crimes measure, which included a gender identity clause covering transgender persons, in 2005. The Senate passed a slightly different version without the transgender provision several years earlier.
Backers of the bill say they believe there are more than enough votes in the House to pass the bill this year and that more than 50 members of the 100-member Senate are poised to vote for the bill.
But Capitol Hill observers are uncertain whether supporters can line up 60 votes to overcome a possible Senate filibuster if opponents choose to take that route to block the bill. The White House, meanwhile, has declined to say whether President Bush would sign or veto the bill if it clears the House and Senate.
A two-thirds majority vote in both the House and Senate would be needed to overturn a presidential veto.
The hate crimes bill became the fifth gay- or AIDS-related bill to be introduced in Congress so far this year out of a list of at least 10 pieces of legislation that gay rights and AIDS advocacy groups have promoted for the past several years. All 10 had been introduced in past years but died in committee under the previous, Republican-controlled Congress that ended last December.
A number of leading gay advocacy groups, including the Task Force and the Human Rights Campaign, have said they were hopeful that some of the bills would pass this year or next year under the new, Democratic-controlled Congress.
The Employment Non-Discrimination Act, or ENDA, is not among the five gay-related measures introduced so far this year, but gay advocacy groups say they expect gay-supportive members of Congress to introduce that bill in both bodies shortly after the congressional recess for the Easter and Passover holidays.
Pryce, Shays seek
ENDA sponsors
Reps. Deborah Pryce (R-Ohio) and Christopher Shays (R-Conn.), considered influential GOP moderates, joined gay Reps. Barney Frank (D-Mass.) and Tammy Baldwin (D-Wisc.) this week in issuing a “Dear colleague” letter inviting all House members to sign on as co-sponsors to ENDA.
“This legislation extends federal employment discrimination protections that are currently provided based on race, religion, gender, national origin, age and disability, to sexual orientation and gender identity,” the four House members said in their letter.
“In 33 states, it is legal to fire someone otherwise qualified, simply because of his or her sexual orientation; the same is true in 42 states based on gender identity. ENDA is a common-sense remedy for this unfair situation,” the letter says.
In the past, opposition to federal hate crimes legislation has come from the right and left, with some civil liberties activists, including gay rights and anti-death penalty advocate Bill Dobbs, calling such legislation an infringement of free speech. Dobbs, an attorney, has joined conservative gay writer and blogger Andrew Sullivan in calling hate crimes legislation a threat to gays because it sets a precedent for prosecuting people for their beliefs, even if those beliefs are homophobic.
Most gay rights advocates dispute this rationale, saying hate crimes have been used against gays and transgender persons, almost as a form of terrorism, by targeting them for murder or serious injury based on their sexual orientation or gender identity.
Opposition from social conservatives, including fundamentalist Christian groups, is expected to have greater impact on Congress. Capitol Hill observers say groups like the Colorado-based Focus on the Family, Family Research Foundation and the Traditional Values Coalition have generated millions of letters, e-mails and phone calls to congressional offices. All three groups have begun a concerted campaign to kill the bill but their ability to block it remains unclear.
“Sadly, this new Congress will probably vote in both the House and the Senate to pass this anti-Christian hate crimes bill,” said Lafferty of the Traditional Values Coalition in a March 21 statement. “[O]nly one person can stop it — President George W. Bush and his veto pen,” she said.
Old concerns resurface
Lafferty and leaders of other conservative groups have seized on provisions in the bill that Sen. Orrin Hatch (R-Utah), former chair of the Senate Judiciary Committee, raised in past years. Hatch has called the bill a federal “power grab” for prosecutorial powers that are reserved for the states under the U.S. Constitution. He has said some of the bill’s provisions could be unconstitutional, including a provision that links federal hate crimes prosecution in cases involving sexual orientation, gender and disability to interstate commerce.
Supporters say linking hate crimes prosecution to interstate commerce is needed to provide constitutional grounds for federal intervention in certain law enforcement functions that the constitution ordinarily reserves for the states. Backers of the bill note that an interstate commerce connection often has been used for the same legal underpinning of a number of federal civil rights laws used to ban discrimination by race, religion, and ethnicity.
Hatch and other critics have pointed to supporters who acknowledge that a gay bashing with a baseball bat might not be prosecutable by the federal government if the bat was manufactured in the state where the crime took place because the legislation would require the bat to be transported across state lines in interstate commerce.
Anders, the ACLU attorney, said drafters of the bill believe a connection to interstate commerce could be found in most, but not all, potential hate crimes cases.
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