The Conversation

Murky ENDA Provision Protects Those 'In Transition' Dressing Like Opposite Sex

Outside of important concerns involving frivolous lawsuits and religious liberty, Pete Kasperowicz writes in The Hill that the Employment Non-Discrimination Act (ENDA) protects the way an employee dresses during "gender transition." The problem for employers, though, is that the provision doesn't define what gender transition is:

[ENDA] goes further than that by including language meant to protect people from discrimination when in "gender transition." The bill gets at the idea of gender transition in Section 8, which deals with workplace dress and grooming standards.

That section says employers are allowed to enforce "reasonable dress or grooming standards." But that right is conditional — employees who have gone through gender transition, and employees who notify employers that they are "undergoing gender transition," must be allowed to dress in the manner of the gender "to which the employee has transitioned or is transitioning."

And here is the section that will send many a trial lawyer to Hawaii:

The report does allow that gender transition is the process of a person "publicly changing his or her gender presentation to be consistent with his or her gender identity." It says that process usually involves name changes and changes to appearance, voice and mannerisms, and could also involve medical procedures.

But the report adds that every gender transition is unique, and that states with relevant laws also don't try to define it. "Therefore, it is the committee's intent that nothing in this Act be read as establishing what an individual's gender transition must entail," the report says.

Ten Senate Republicans just joined with Democrats to pass ENDA. From the media and the left, the emotional blackmail has been relentless all week. But how is it a good idea to leave open-ended something as important as how your employee will present him or herself to your customers?

In the present-day media climate, emotions and intentions always top common sense and a sense of compassion towards those drowning in an economy barely able to create enough jobs to keep up with population growth.


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