regarding the pervasive this discrimination? >> thank you so much for that question. the data that i was offering in terms of universal discrimination from our national transgender discrimination survey a survey that a survey that was limited to over 6500 transgender individuals surveyed across the nation and the cost to us territories. and so that was particular to transgender and gender nonconforming individuals. individuals. the 2nd.with respect to the filings that were referenced from the department of labor i think that it is critical that we continue to examine the levels of filings and examine what types of discrimination are happening the two aspects are

happening simultaneously in terms of the public becoming aware of their rights and their ability to file such claims and the ability for government agencies to be responsive, government agencies such as the department of labor to be responsive to the type of claims being filed. in addition, i think that a.the.that was made earlier with respect to the marketplace is another clear indicator that the trend is moving in the direction of affording protection and providing a safe workplace for lg bt employees. what we are looking for is a way to have the numbers go in an opposite direction in terms of the prevalence of discrimination by creating a workplace that is more around the use of elder -- the abuse of lg bt individuals. >> commissioner. >> a question to mr. kendall

it was reference that there are over 50 studies of discrimination that have been undertaken the conclusion of which studies from employment discrimination against lg bt people is significant and pervasive. in 2,007 a meta-analysis was done by the williams institute was to the same conclusion. it is my understanding that for more than 40 years your organization has made available to lg bt people a nationwide advice and counseling line. i am imagining that you have gathered statistics. could you discuss how the conclusions of the 50 studies and the williams institute meta-analysis

compares to the statistics that you have gathered over this time? could you also identified the kinds of discriminations that you are callers identify as pertinent to this particular inquiry that we are undertaking. >> thank you for that. will we see as very consistent with what the studies and reports see. and to your question and to the vice chair many of the calls that we get are from individuals in the 29 states where there are no protections. if they live in a state where there are protections it is an easy answer for them. we encourage them to file a complaint, refer them to attorneys that do lg bt employment discrimination cases.

our resources are really just about them up with the knowledge base and someone who can be their advocate. most of the cost that we get are in states where there is no protection, and it has only been recently in light of the eeoc ruling that we have seen an expansion of title vii perhaps being available as a vehicle. many times the most difficult answer we give to people when they call saying that they have suffered some adverse employment action is, i'm is i'm sorry, there is nothing that we can do. there is no protection in your state. it does not mean that it is not happening. the numbers are significant. the nature is the gamut. most of the calls that we get are probably all on two tracks. either an employee

is going along fine doing a good job, getting good performance reviews, doing reviews, doing well, being promoted, and then something happens where they are discovered to be lesbian, gay, bisexual, transgender someone sees transgender someone sees a facebook post, they do get married and a couple people in the office attend the wedding and then the rest of the office realizes, we did not know we had a gay or lesbian or bisexual person working for us. or in or in some other manner they come after someone. and then all of a sudden things just go straight downhill. either they downhill. either they are fired outright or the performance evaluations documenting two minutes late, documenting bringing in. all sorts of things start to happen and they lose their jobs. the 2nd the 2nd track is harassment on the job. the irony is many employees will go through either open harassment or death by

1 million cuts, negative, adverse child's actions thinking that they can't fire the individual simply based upon sexual orientation. many times the employee is tortured either harassed openly based upon sexual orientation or gender identity which can take the town of being anti- gay or sexual harassment and eventually they quit or are terminated. so we get about 7,000 calls per year 30% of which are employment related and the bold are in either of one of those two broad scenarios. >> commissioner. >> thank you very much, mr. chairman. i want to apologize for my absence today.

personally it is something that the commission pointed to come over ten years ago campaign funds. we talked about how we can try to bring the types to bear. it is taken a long road to get there. i want i want to thank my colleagues for that. to the town of something that thank you for being here. something you said. but going toward -- it

impacts commerce. i would like to hear from the advocates on the panel. why you believe this has an impact when it's been pushing forward changes in the law. >> anyone want to start? >> our economy is interconnected. we know longer live in a world in which goods and services are produced in one particular area, they stay in that area. mom-and-pop shops are virtually a thing of a thing of the past you are talking about production that is sold within a given area. instead, even small

businesses purchase their goods that they are then selling to their customers from all over the world, not just from within the united states. congress has had ample opportunity and has passed many laws that ensure nondiscrimination not only on the basis of race and sex but also on the basis of religion and disability. the supreme court has weighed in on these issues time and time again and never has the court reached the conclusion that congress does not have a right to pass laws prohibiting discrimination in employment as i mentioned in my testimony recently one of the most conservative members of our supreme court justice alito found that there was a compelling government interest in having nondiscrimination laws in place in the employment arena.

if he felt that that was not true or that congress did not have a right to pass these laws to begin with he had ample opportunity to do so and said -- instead will what we see is the court upholding these laws. >> anyone else? >> i we will just refer to my written testimony in the cases that i i fight. there has to be a substantial effect on interstate commerce in order for the congress to pass laws under these circumstances. and as i read i read the united states versus morrison and the united states versus lopez, i think that congress is going to have a hard time meeting those standards. the kind of chain of events that ms. miss world will pointed to is something that the supreme court explicitly warned about in his decision. decision.

i would add also that with respect to the other enumerated powers that congress sites the fifth amendment or section five of the 14th amendment i think that kindle versus florida board of regents is a substantial hurdle for the united states congress to clear. >> a comment as a nonlawyer on a panel of our guest lawyers and smart people. this would go back to tell them who was involved in 1996 1996 during the senate debate around the employment nondiscrimination act. the debate around the end of the last time it was brought to the senate and other debates. i think it is interesting to note that democrats and republicans in particular

did not bring up the issues that he is mentioning in terms of the constitutionality of the employment nondiscrimination act. there might have been disagreements about the law and sexual orientation and gender identity and whether that was something that should be protected, but when you look at the record in the debates something i am sadly all too familiar with, it was not part of the discussion in terms of the constitutionality of employment protections and civil rights laws. >> let me say that i do not doubt that. i think that unfortunately congress -- and this is true on both sides of the aisle, frequently congress think it can do whatever it wants. i think that that you actually need enumerated powers before you can act is something that has only recently taken hold unfortunately.

i remember i remember just about the time that you were talking about. he said well, you know i think that we would have to be absolutely convinced that no court would uphold this before we would hesitate to pass a statute like this. i thought that that was an appalling mindset for someone to have. i think that this is a congressional a congressional staffer. i think that the mindset should be that unless the congressman believes himself that there will be a

substantial effect he or she should not vote for the statute. it is not up to -- i don't think it is the mindset that it is up to the court to keep us honest and that therefore we're not going to worry if we have an enumerated power. why widespread is not the right attitude and is the kind of attitude that i would warn against in this context. >> i would just say that i disagree. widely viewed and recognized as widely viewed by congress permanent. think today the fascination

small population. every state part of the lifeblood. ends to say to that intersection of the population that we welcome participants kind of the way , who we are or who we are with can impact your economic earnings. it is clearly within the purview of congress.

i don't believe, as you do i think you need clearance. and the history you can bring nowhere near an insurmountable hurdle. it's more to the.the way that people think. ambivalent toward the individual.

>> next we have commissioner kershner. >> thank you. i think the panelists. we know that we slide from a balance a balance of panels and have been doing it for at least a dozen years now. she ran that we have a balance in terms of those who support a broad or thorough statute and those who may be skeptical about the use of congressional power on a nationwide basis. i think that their gates whatever reporter briefing you may have which is unfortunate and affects the legitimacy of that. my question would be from a

a practical perspective, when we have employers dealing with new statutes there is always going to be some type of dislocation. sometimes it is very much merited. it may be in this particular circumstance. given that with versions over the course of time to questions, to what extent do you see whatever iteration we are right now having an impact on the nature of at will employment and 2nd how would this differ if at all from protections against race discrimination. >> one of the points that i make in my written testimony is i am afraid that we are moving away from the general

presumption that we ought to have people should be able to use their private property the way that they want to use the private property and that employers should be able to make personnel decisions without interference from the government. this is something that goes along with that will employment. and there should be a presumption against the government at any level stepping in and saying that well, we no better you whom you should hire and him you should demote. and there should be, and especially a strong

presumption against the federal government passing a a law that the 2nd guesses employers in this regard. and one reason for that i think you alluded to in your question is that the laws become reality in this area through litigation. those are very expensive and distorted media. you don't just pass law and magically have the principle that you think is inviting has to become reality through a lot of bureaucrats making a lot of decisions and but a lot of people around and through a lot of

lawyers and the lot of lawsuits and a lot of judges pausing a lot of people around. and this is a very unsatisfactory way to do business in an economy that is supposed to be based upon freedom and free markets. you know i don't doubt that the majority of americans might claim them to be unfair. unfair or unwise. that law will have costs that are far higher than any benefits that it would have

which is the same situation here in this specific instance. i think that the problems that you will inevitably raise by passing a law that says that you can discriminate on the basis of gender identity and gender identity means the gender related identity appearance, or appearance, or mannerisms were other gender related characteristics of individual with or without regard to the individuals designated six of birth. well, you know you just know that lawyers and bureaucrats are going to have a great time interpreting language like that. here is another part. >> as is a lawyer and a former bureaucrat. >> i do, absolutely. the fair housing act. you all know about the fair housing act.

it was just what i described, mr. chairman. it was it was a bunch of us bureaucrats sitting around writing regulations. i don't remember if it was the fair housing act or the housing part of the americans with disabilities act, but we were there deciding what the rules should be for employers when it came to ramps and doorknobs and sunken living rooms and all kind of stuff like that command it was appalling. none of us knows about the business of how to build an apartment complex. why will be sitting around making up all of these rules? it was just very scary. >> in your testimony that

you did not have to have familiarity? >> i did not think that you had to be -- to put it for way, i don't think that you have to be a black person in order to be able to sell pepsi to a black person. this notion that only members of a particular group can effectively market to members of that group is something i have a problem with. >> and nondisabled person trying to figure out how a disabled person would interact with their surroundings. >> it wasn't that we were not disabled. that is also a fair. the problem is we did not know anything about building. that is the.i am making here. and the., likewise we are not people. we're not in the caregiving business. the hypothetical i gave about a caregiver and whether people might have preferences about who is going to bathe them you

know, i think that those kinds of decisions should be made by people who are in the caregiving business, not by a bunch of bureaucrats. here is another part of the agenda. you tell me whether this belongs in us code. nothing shall prohibit an employer from requiring an employee during the employees hours of work to adhere to reasonable dress or grooming standards are for harry by other provisions of federal, state or local law provided that the employer permits any employee who has undergone gender transition prior to the time of employment and any employee who has notified the employer that the employee has undergone or is undergoing gender transition after the time of employment to adhere to the same dresser grooming standards is applied to the gender for whom the employee has transition or is transitioning.

i don't think that is the kind of micromanagement that congress should be putting into the us code. to govern the grooming standards and dress standards that hundreds and thousands of employers and hundreds of thousands of different workplaces have to implement every day. that is a decision that ought to be left to individual employers and businesses. >> like you said earlier, people should be allowed to figure out what they do with their own private property. let's let the market decide. if we adhere to that they there was still the people today consider property.

the situation that was presented and is presented by race discrimination is this country is special and different. and i think that makes all the sense in the world to draw a distinction between what was going on in this country with respect to racial discrimination and

things like sexual orientation and gender identity. it was widespread, blatant, and often governmentally. >> presented an extraordinary situation justifying departure from the usual free-market productions. widespread blatant, and often governmentally codified mandate. it was a historic problem: national in scope. discrimination against homosexuals is not in this league.

>> partial reading agenda and the dress code and things like that. >> i just have one quick response. we don't have that in our history. using something like the definition. is not that huge flood of litigation we set of town.

the statute this is we want to live in a country where people they impact only the employer foolish enough to require all their employees to real chartreuse uniforms. that is a bad employment decision. it is radically different from we are talking about bad employment decisions that have negative, lifelong

consequences for the individual that they are choosing to fire cannot refuse to hire or fail to promote. there should be in our law, a do no harm principle. that is what nondiscrimination laws and employment attempts to do, create a level playing field that ensures employment decisions are made on the basis of an employee's merit talent, skills, and background rather than who they are. >> the other. >> the other thing i would add command this is a different context, but companies implementing their own nondiscrimination policies as related to sexual orientation and gender identity and am often frustrated that when people disagree with me because it happens all the time. that is okay. but but it is when they are these periods arguments about why someone would

disagree with me that is where i find unnerving. to go back to the legislative language just the business practices that large, medium and small businesses today have adopted for good business reasons because it makes sound sense to have a nondiscrimination policy based upon nondiscrimination based upon sexual orientation and gender identity father's business policy mirror the language that mr. craig reference in terms of the employment nondiscrimination act, what a business used to describe it to define gender identity in that case. what we see is not businesses falling all over themselves and not being able to figure out what the policy means but rather providing a level playing field for all employees that

gay, gay, lesbian, bisexual, and transgender, it does not just benefit them that the entire culture of the large medium, and small business because it says to any employee that you are here to work and we are going to judge you on your skills command that's it. nothing irrelevant but your job performance. and so i think again the employment practices and the employment policies, nondiscrimination, and they are by private companies that they have to shut their own -- to set their own playing field for their own companies, often there is a language and what we don't see from major fortune 100 companies to small businesses around the country, we don't see the kind of interpretations that mr. craig says will help them. >> is that like a meritocracy? >> something like that. >> the problem is that it's true you have undercut

the argument for the necessity to pass the bill in the 1st place. and you know, the rational thing for companies to do to do, to do the kinds of things that this bill requires. you don't need to pass the bill. not passing not passing it will not have a substantial effect on interstate commerce. discrimination is not going to be having a substantial effect on interstate commerce is companies will be taking steps to get rid of it anyway. i think they will be situations where taking sexual orientation into account will make sense. something that involves the most companies do. one-size-fits-all legislation. maybe people who make airplanes have no reason to consider, you know, sexual orientation the people of the caregiving

business might want to consider sexual orientation. it just orientation. it just depends. there are thousands of businesses out there that are all different. i don't think that we should be passing a federal one-size-fits-all bill in the situation. >> similar arguments to that president obama decided that he would consider lifting the ban in the military. this should not be a one-size-fits-all. this is not what we should have. people on submarines and sexual orientation will absolutely undermine around and unit cohesion and we have not seen that come to pass. >> am going to move on now.

>> thank you, mr. chairman. >> thank you, mr. chairman. >> the notion of whether or not it can be interpreted unpredictable, ways, some appropriations have adopted language, they get to interpret their own policies and won't have that luxury if there is an enactment. there it i would disagree with that. you need title seven. there are a lot of ways in which it has been interpreted. such as the difficulty now that employers have an taking in taking into consideration tony convictions by job applicants. because of the way gender identity is defined having discrimination on the basis

of gender related characteristics give me some help on what that might mean? we had a plaintiff who argue that she had not been promoted because she was pushy. so this is assertiveness versus non- assertiveness. long hair versus short, what is a gender related characteristic? >> well, if gender related ms. gender correlated which i i think is certainly one way that you could interpret this then i agree that this is opening a real pandora's box.

you can probably find social sciences or statisticians that could find all kinds of characteristics that have some kind of correlation with gender promote sex. can discriminate on the basis then you made it hard for instance, just to give you an example criminal behavior. >> your microphone went off again. i think everyone would agree that men are more likely to commit crimes and women. so his criminal behavior gender related characteristic?

so does this now mean that employers cannot discriminate on? it is disparate treatment now to discriminate against somebody on the basis that they have murdered the last employer. sounds like a good interpretation of the definition of gender identification to me. >> tell us. >> that is a little bit ridiculous. what it means in terms of how we have seen interpreted. characteristics involved in the price waterhouse case is not sufficiently feminine, a man that is --

>> that's two sides of the same coin. that is part of a gender related characteristic, men tend to be more assertive in certain situations. women are sometimes less assertive. >> people don't always conform to gender. >> i feel like that is what this is trying to get to. i feel like the language gender related characteristics about ends counting that. if if someone conforms or does not conform to gender stereotypes. >> gender stereotypes this is not title seven. if assertiveness is considered to be a more a more masculine characteristic and calmness,

less assertiveness, m- considered to be a more a more masculine characteristic and calmness, less assertiveness, more feminine command looks to me that under this it does not matter which person is the problem. a male job applicant could say, i was rejected because i conform to gender stereotypes and especially am assertive, hyper masculine. yet there were lots of jobs were being hyper assertive would be a very bad thing. >> i understand the hypothetical. >> you do have case interpretations of state law language that is similar to this that can be used to rebut a nonsense claim, for example.

it is not as if this is a 1st incursion into understanding how we protect transgender or gender nonconforming employees. we have a body of law and we do have several years at least of experience. >> title vii has been worked out perfectly. it's very controversial. sometimes 50 years after passage. nobody would have thought that in 1964. is not the way statues work. addressing the real problem now that we're trying to ameliorate.

we want good language will be abused in the future. only cover the things that we wanted to cover. want to cover. do we have that now? i would say no. they language that is extremely vague, we don't know what gender related characteristics mean. so we need to develop that? >> over 20 years of experience. minnesota adopted a nondiscrimination nondiscrimination law that include sexual orientation and gender identity. the reason that you are seeing sexual orientation and gender identity being incorporated into an interpretation of title vii is because the similarity between sex discrimination and gender identity discrimination is historically bound up with one another. discrimination on the basis of gender identity.

>> twenty years in a small state like minnesota is nothing. very small. there will be a lot of cases. we want to get this right the 1st time. >> we have been looking at legislation for more than 20 years to address discrimination in congress. there has congress. there has been ongoing conversations. this is not a new topic or idea. we have changed language over time, hash things out based on best practices that we have seen in states, municipalities. laws are not static. they do not exist forever. title vii has not been amended but congress has gone in and changed other statutes to deal with changes of interpretation that supreme court decisions address additional statutes, rectify those situations. it is not a static and permanent forever. >> as a former bureaucrat

come i we will.out when i was in the civil rights division it was rare that we looked at how analogous state statutes had been interpreted in state courts. here is how the statute that was kind of worried the same way was interpreted by state courts in minnesota. way too optimistic about how this process works. >> i think what you are faced with is, do you respond to what you know what the response to what you fear? and there is a body of law experience with cases that

have been brought under the law and there is a problem that needs to be addressed. i'm personally welling doing my own organization's position to have another go at language that could be more clear. >> am going to move on. first time at the end of come back. >> opus. it seems to me that your agreement with commissioner harriet regarding language means if trying to craft a bill under a bill under which there will be no

litigation or definitions when in fact our entire judicial system and looks a statutes and defines them everyday. statutes could have been around 150100 years, not just discriminatory statutes, labor law for bridges verbiage. i understood when you were talking about the dress and all that. that is what we do have courts were. we obviously don't trust courts. we think there liberal. my.being, don't being, don't you think that is what

lawyers and courts are for? the legislative process can be perfect. they talk about stuffing a sausage. i just ask you to define why you think that we should not litigate these things and define them over time. >> i don't want to fix statute. but i want to pass the statute all. >> that i understand. >> i don't think that the reason we have courts and lawyers is to figure out how companies ought to with employees of this or that. i think there are some extraordinary situations where we have to have laws

to tell employers things that they can and can't do. i think we had to have a federal statute that tells employees they could not discriminate on the basis of race. but those instances are rare the question is whether this legislation is going to -- whether the problem being addressed here have a substantial effect on our state commerce. it's not just discrimination against -- sexual orientation is described as being homosexual, bisexual

or heterosexual. anyone can sue under the statute. you think the reason that you are not hard is because you were straight i don't think you can put it in terms of the number of employees being protected from discrimination. potentially all our to be the question is whether the underlying problem is one that has a substantial effect on interstate commerce and and whether there is the circumstances are such that the only way to address this problem is through federal to federal legislation command i think the answer to both those questions is no. >> well, clearly when corporate america institute's guidelines and rules and regulations that is not really enforceable by

the employee in most cases. >> why does that matter? if the problem is discrimination against gays if that is what is being asserted as the problem that is substantially affecting interstate commerce if the problem is being alleviated by companies and acting unilateral policies what difference does it make whether there is a private right of action or not? >> it is not enforceable by the employee. >> you now aligned ignore the law, to lift within there is a remedy. we talk about remedies, not just rules. >> there is footage in both instances. just because you have the statute doesn't mean you magically are not going to have discrimination.

here's our policy. similar things are done in this area already. >> great. thank you. if you are sexually harassed by your immediate supervisor and you can most companies now have mechanisms were you can complain about that to some person other than your immediate supervisor.

sexual orientation discrimination the same way. >> many of those cases still in the from the courts. >> commissioner. >> others who care to comment. it has been asserted by some who oppose uniform federal standards. the adoption of same will lead to sexual harassment in the workplace. regress sexual harassment in the workplace is it your interpretation of this

proposed federal standard that this would be the case? and if you would comment as well on the issue of whether or not the existence over uniform federal standard would prevent persons with a particular religious.of view from expressing that.of view in the workplace because such a thing would then become defined ipso facto was creating a hostile work environment as some of us of argued. >> so there is absolutely no evidence despite the fact that we had 21 states and the district of columbia

sexual harassment is a a real and pervasive problem something the disproportionally affects women. i didn't come with the statistics. the college who is gay lesbian, bisexual. something that covers lg bt and straight people as well. a remedy not only through their employer also in the courts. >> in a sexual harassment that is not otherwise being addressed through existing

law. >> that's correct. the united states supreme court has addressed the issue of sexual harassment between people of the same sex. those are remedies that exist currently for individuals, and this will not change. >> the same sex. it has no impact. >> that's correct. with regard to sexual harassment. the basis of sexual orientation, engaging in the behavior based on the sex of the individual sexual terms and sexual nature as opposed to an employee who is harassing another employee who is gay and using derogatory term for someone who is gay in an attempt to

drive them out of the workplace. >> and it would be the use of derogatory terms that would be addressed if we were to adopt the standards. >> that's right. uniform federal standard would erase or at least get people remedy to address harassment that is based on the sexual orientation of the individual rather than harassment that is just sexual in nature and happens to occur between two people who are of the same sex. >> calling someone a dike or a fact in the workplace. >> that is what this law would allow people to have a remedy for. >> you talk about than the relationship if any between that and the assertion that persons of a particular deeply held religious belief would be having they're

first amendment circumscribed the adoption of a uniform federal standard. have the ability to make assertions about the religious belief. i we will say there is a huge difference between asserting within the workplace and employees opposition to marriage. we can make distinctions between what is assertion of a person's religious beliefs and what is harassing behavior. certainly if an individual post passage of a national federal standard for

nondiscrimination in the workplace were to target and lg bt individual to enter there work face on a daily basis or routine basis and say to them, i think your going to burn in hell because you are gay that would create liability for the employer and employee would have the ability to sue. an individual assertion of their religious beliefs and where that steps into harassment and the use of another employee. we see this in the context of sex as well. we have many individuals throughout the united states have sincerely held religious beliefs beverage -- are no boy in the workforce.

only certain types of activities are appropriate for women, they deserve higher pay because there head of household. we allow for religious individuals to express those views in limited ways in the workplace, but when they are targeting an individual or they are acting in such a way that is actually providing women with lower salaries that result in harm to the individual that is where we draw distinction. >> i just note that on pages seven and eight of my testimony i talk about the ways that it would complicate the sexual harassment issues. and the two appendices i have are of pieces by hans spader, the competitive enterprise institute and the professor eugene on some of the first amendment issues. >> issues. >> i no that you do, and i thoroughly reject.

thank you very much. >> everyone everyone else knows that, too. >> i joined the commissioner. >> why are you having a briefing? >> because there are some actual serious issues about how you best implement this. as you and i have debated many of these issues we know that there are a lot of gray areas. even if you disagree on something, hopefully we can find common ground on others to improve. ..

>> >> i don't want to leave the general public with the view that somehow bureaucrats put together laws that are not based on any type of reality that is far from the case. on two in regulation is a long and painful process so that is the over simplification and i don't subscribe to how the government actually tries to play a helpful role of the issues that our important to the day-to-day livelihood and nothing is more important than that context.

>> i am curious your argument seems to apply to religious discrimination and so is it the view that titles of his shed night tried to stop discrimination based on religion? >> no. i am not sure how that follows. >> you argue that the lgbt status is not amenable than i don't necessarily agree with. >> i did that say that. >> with your comparison to status and raise you draw a distinction about how race is very different but title seven covers more than race all i try to understand the boundaries of the argument is to try to make the point. >> you're not accurately

characterizing what i said the center for equal opportunity does not object to the fact that title seven makes it illegal to discriminate on the basis of religion. and an lcd - - i don't see the consistency between thinking that type of prohibition is acceptable to say that we should not add additional prohibition against discrimination based on sexual orientation and gender identity. the reason i give to oppose

would not apply based on a religion. >> i've got to be clear i think it is appropriate to cover religion and the reason i ask is because to put either mistrusted the free market to do the right thing to make a statement it is very clear why title seven is important. because of a long history we have had with discrimination but you make the argument is not a characteristic so i just tried to interpret why race is different from the

lgbt status and the basis which is the same reason in terms whether government should be involved. so i want to rescue say you have raised the issue of occupational qualification. >> not in those terms. >> you didn't? you did it your testimony. no? >> i agree with the point that discussing the fact there is no bfoq.

>> maybe it was in the attachments so do you feel there should be bfoq? >> i of not particularly interested to find tune enda if think it is bad from beginning to end in congress does not have authority to pass it but i would like bfoq to be in at yes. >> what would that look like to you? >> it will be parallel to the language of title seven which follows the prohibition of discrimination that this is

703e there is an exception that it is a bona fides qualification reasonable and necessary to the operational know-how to that particular business or enterprise. >> what type of religious accommodation if edney would do you think would be appropriate? >> it is not limited to a religious context. there are other instances if there is the bfoq for discrimination on the basis of sexual orientation and i described added my oral testimony. if you have a caregiver and

the customer said i am not comfortable this is an intimate situation. i'd want them to be somebody where sex is an issue or with sexual attraction by the individual. i am a straight male therefore i don't want women and know what women to bait me because of privacy reasons and i don't want a gay man to beattie either.

there is nothing religious about that. >> i have been ag mother if we dealt with all the people she does not want touchier her she would get no of. >> there should be a lot of requires your brother. >> so it is very intimate that i don't want a white person touching we'd do you feel that is okay? >> that is a good question. dear is no bfoq for race. the reason is at the time the statute was written that it would swallow the rule and at the time that was a reasonable call but there is a cost to that.

>> let me ask the other panelists to insert do they see if there is any room for the bfoq? and what is appropriate. >> the only bfoq we think would be inappropriate is where gender identity was treated consistent with the person's actual gender identity. if you have bfoq for prison guards and require to staff the male prison then you would need to hire a transgendered man or permit was to be a real prison guard.

>> would you read by air transgendered man? >> individual that was inside a female at birth then transition to mail at some point later. >> could you clarify for the record? >> they transition in multiple ways but frequently people who are transgendered take hormones consistent with the sec's that they have transition to a round somehow surgery of their bodies for the new presentation. >> some concentred to reach transgendered doesn't have surgery so they still have the biological equipment at birth? >> sorry my a microphone goes on sporadically. so babied and transgendered man has female organs but is taken hormones?

>> they may have had some surgery's to have their bodies change so all genitalia appears mail. so it varies from individual to individual and with best practices it is best to determine what level of surgery is right. >> would you include someone who didn't have for rural treatments are seven that could identify with the sex they were not born with? >> last year not to rescue any more questions we're already over time. >> is one to make sure i understand what the terms mean. >> going back to a strategy we would support a a very

limited bfoq simic answer my question. >> i believe that i have. state though some of pad nor surgical treatment or hormonal treatment but that they have expressed their gender identity as different there but there were bored with? >> to be gender nonconforming. >> but for the purpose of though lot? the americans are a can i get my question dash and? >> let's just finish this very well wrap it up. >> we would support a livid said ted bfoq but that somebody would be rejected based on sexual orientation or gender identity from gauging and employment context in that very narrow

instance there are very few legitimate bfoq. >> web religious accommodation? is 30 exemption or accommodation with religious a few? >> with that title vii standard allows religious employers to provide preference to individuals of their own religion and we have very robust case law against the of ministerial organizations as well. >> the only thing i would

add is working with young children was a quite sure if that comment meant to suggest. >> i did not say that. i set adolescence. >> if that was to suggest in some sexual orientation had to do with one's ability to work with adolescence. >> i think the medical profession those working with children from the pediatrician they put those doubts to rest. >> all i was saying is straight manner were likely to be attracted to adolescent females then it kerry would be were likely

to be attracted to an adolescent males. >> i think that point was refuted but thank you for a very robust panel we have learned a lot about preferences from individual care. we will take a break for lunch if we will return at 1:00 p.m. with panel members three. thank you. [inaudible conversations]

c-span2. >> "washington journal" continues. host: how guest is kimberly leonard to talk with us about the health care law >> our guest is from u.s. news and will report to talk about the health care law and will make and cost projections.

thank you for joining us first time on the show. we're glad you could make it. what do we know belled the recent enrollment and where are we? >> guest: there is another in open enrollment that just are did yesterday. 11.7 million americans have been ruled that because a lot of them may not know about the penalty they have over the tax period to sign up for insurance and not get a penalty next year. >> host: cbo is projecting a decrease in spending. >> but it is still very expensive and will cost the country 1.2 trillion dollars over the next 10 years but projections for the program keep getting low worker in january it was 11% higher than henhawk last week. >> one of the things has to do with lower in roman numbers in the stages than

previously were thought. the cbo of rich and the projected 30 million will lead it will but now it is 11.7. vhs sees that as a huge success because they projected the numbers to be 9.9 billion. >> health care reporter taking your calls and a few minutes. our guest is currently a health care reporter where were you writing prior? >> for the center of public integrity. >> tell us what the cbo had to say about spending projections in the future.

>> one of those important factors is that subsidies are less expensive than projected. it was projected to be close 5,200 per person per year but now it is closer at 3,900. spending 20 percent less per person on health insurance subsidies for obamacare spending to fall to the headline says the controversial health care law will cost 1.2 billion over the next decade. falloff to do they do this analysis? >> several times a year but typically after the president's budget they will reevaluate where the budget stands. >> they may point to the projection to cover a few

important caveat to you think that trend would continue? >> it is hard to make these projections is the fact we have fewer people enrolled is positive or negative. because more people get jobs to provide health insurance are simply they choose to go without insurance. made one of the major roles is to have as many people enrolled as possible. >> host: if you were people are insured homage to sarah reduce the subsidies? >> about 20%. >> host: we will go to the first call from maine democratic color. >> caller: could morning

to both of you. my daughter is 27 and a full-time student and plastered to $9,000 she called the republican senators to ask why she could not get into the affordable care act network they basically told her to project upward and she said i probably will not make any more money it will probably be less but there is nothing for heard no medicaid expansion or insurance and they tell her to project up nomy she cannot make any more betty are there any other instances of that? i was perplexed as she is a very honest person and would

never pretend she would make more to get into the network >> guest: this is something i have heard about i started to work on a piece to go more deeply but if you do have an income about $9,000 that would qualify for a medicated through the state's. >> host: were you trying to find out? >> guest: how often this is happening for those states that have not expanded medicaid. >> caller: 84 taking my calls. i love reading "u.s. news and world report". i don't really have a question that our children

were put on after hca went through in college with the affordable care act it saved a lot of money and help with college tuition because we saved money and one of the children and one has been commissioned since birth now he could get on in the plan through our state with hca and he repeats paul dash appreciates it before which she could not have gotten insurance because of the pre-existing condition. they give to president obama every day we wake up and everything kim. thank you very much. >> guest: it is true of

many more have been recovered through word not have been covered before and we hear stories like this and people are concerned about the supreme court decision that could do away with subsidies to help people pay for insurance is a message i hear a lot. >> host: what might the impact be depending with the court says taken a steeper into that case. >> essentially whether the federal government can legally distribute subsidies through health care instead of the insurance marketplace only 13 states in the district of columbia have created their marketplace of the majority of people who signed up have done so through healthcare.gov.

if ruled illegal the numbers vary but vhs estimates about 7 million people could lose health insurance. >> caller: is of the cost of health care services in the united states the most expensive in the world? i think i have heard we spend twice as much as a percentage of the gdp on health care than any other country we have private insurance, medicare, medicaid so if you compare all the cost we pay more for surgical procedure, drugs twice as much as canada. >> host: hold on for a second is that true? >> guest: yes.

with other developed nation we spend more on health care and we still are than most countries in the cost is rising. it is settled law were rate for recent years but it is still rising. >> host: what is your concern? >> caller: what i wanted to say is obamacare is the old republican idea of competitive health care exchanges with private insurance to require people with individual mandate does that come at of the heritage addition and the health care proposal from 1992? but a lot of people like me thought we would want a single payer system so

obamacare is the in between compromise part of the republican idea? that was romney kerry massachusetts. >> guest: it is true that a lot of what you're saying is true but don't forget the portable care act was passed without a single republican vote sodas is seen as a compromise. >> host: how about paul ryan's cuts to medicare and medicaid? >> medicaid obviously is supposed to be expanded and already those are concerned how they would pay for the program in the future. if they could keep up with spending we have to see any

cuts would make it difficult >> host: where is medicare spending at this point? >> even though we have the baby boom generation they are young girl in healthier than previous groups some reaction raise spending less than we have been a long time. and is rising at a lower rate than it has in the past so even though it happens now because medicare takes up 20% of health care spending the rates of medicare would go back up. >> caller: thank you for taking my call.

has the hca inoculated to the high deductible plans? . .t high-deductible plans. they sign up for premiums and think they can afford insurance for the first time, and then they pay way more than they thought because we are aware of the details of the plant -- because they were not aware of the details of the plans and how the deductibles play into all of that. in terms of whether the affordable care act has slowed the rate of spending growth, that is something that is being evaluated. it is unclear to what extent the four double care act plays a role in health spending rates at this point. host: what kind of changes or

tweaks might you expect in washington on the health care law this year, in the coming years? guest: the supreme court case is by and large going to be the most important decision that could happen to the affordable care act. republicans have tried to dismantle the law several times and president obama obviously would not sign any law that aims to do so. so the supreme court decision is going to be the major factor that is going to play into the health care law. as far as other parts that go into that, the medical device packs is something that could potentially be repealed. i think that in terms of other fronts, i do not see anything moving very quickly. host: let's hear from john, st. louis, missouri, a republican. caller: i would like to ask the

lady -- since they passed the health care law, there are still 30 million people who have not been covered. what the affordable care act was supposed to do, it did not do. i mean, i am sorry, but it just frustrates me to no end that the democrats push this through congress before the republicans had another senator in there to keep it from passing. pelosi said you have to pass it and then read it. to find out what is in it. mr. obama turned around -- and i do not know how many times he has changed the law which he does not have the right to do. congress passes laws. the president has to back the laws and not change them. i'm sorry. i will let you guys talk it over , and i will be listening to you. host: thinking about those 30

million uninsured. anything you want to add to what he said? guest: we have about 11.7 million who have signed up on the exchanges, and than 10 million have signed up on medicaid because it has expanded. the number of people who get insurance and whether they are satisfied with the insurance they are getting -- whether they are able to see the doctor and other health care providers that they want to see. because some of these plans are costing less because it is -- because the networks are so narrow. whether this results in better care i think is another thing to look closely at. host: let's talk about penalties for the uninsured. we have statistics we can put on the screen from 2014. the penalties back in 2014 -- $95, 1% of annual income, whichever is greater. currently this year, $325 or 2%.

2016, 600 $95,l bepang $95 or 1% of income as the pen. the reason the department of health and human services extended the deadline for people to sign up for insurance, they created a special enrollment period yesterday that goes a second chance to look at their tax returns and say i did not know about this penalty. now it is t late for next year when the penalty is even higher. they are giving people a second chance to sign up for insurance if that is what they choose to do. if you do not make that choice, you will pay the penalty although there are exemptions. host: we will continue to take calls, like this one from ray in california. caller: thank you.

you have great general a stick -- you have generalistic characteristics. are we dealing with the establishment of welfare states? [static] you know what i mean? they get health care, money -- so in respect to the wealth speed of the people -- what i am trying to say is -- [inaudible] i do not see that being associated with the workmen's comp.. that is one thing barack obama

may want to do with. normally the thing is, if somebody gets hurt, in other words, through cal osha, it is assuring. obama down here could push the issue -- well, you do not need workmen's comp. because if you get hurt we will cover you. you could have a major injury, and through omission or error that would be one thing. i think obama is cool. he is great but i stand with him. he is an excellent president. host: the connection was not the best, but is there anything you want to respond to their bank? -- want to respond to there? guest: like most americans, he agrees with portions of it, if

not the whole law. host: let's go to mike on the democrats line. caller: the original reason i was calling in, i am a florida resident. working in the u.s. territory of glom -- the u.s. territory of guam. the effect that obamacare has on the taxes of people in the territories that are not entitled to vote -- actually looking at my president, i will probably vote republican next term. the facts are here. hundreds of u.s. veterans, in puerto rico and the u.s. virgin islands and stuff -- the lack of attention to those areas, to sit

here and watch tv and feel like i am in a foreign country when i am in a united states territory is disgusting. another fact of obamacare -- and it is not one issue. everyone wants to talk about the mexican immigrant. i live here in california. it disgusts me to look and see how everyone wants to blame a mexican immigrant who comes here to work. or look at the somali immigrants who come in and want to create pride, and we want to give them benefits. or look at the folks in the territories who pay their taxes. what do they get for that? host: thank you for calling from

the territory of guam. guest: the affordable care act is not explicitly address care for veterans. but for people in the country illegally, there are ways they can access care, but they are not eligible to sign up through the insurance exchanges. in fact, thousands of people who had signed up but could not show proof of documentation or had some issues with mismatching data, things like that, ended up not receiving subsidies for health insurance. host: here is a headline from "the new york times." you can see a graph here with some of the numbers. last year, 5.4 million in the federal run, 2.6 million in the state run. this year, 2.8 federal -- 2.8

million federal. guest: in any of the states that establish their own exchanges the people who live in them would not be affected by a supreme court decision. the fact that all of the exchanges are up and working this year and that we are not here talking about technical glitches today is a major accomplishment. and the fact that so many people have signed up is something that the administration has celebrated. as i said before, it depends on how the care turns out to be and whether people will be able to access the doctors and hospitals and providers that they want to be able to access. host: there is a tweet from wild and wonderful. wanting to go back to penalty waivers. why is the procedure for getting upheld the waiver so rarely explained? i guess he is looking for more information about how it works what the procedure is.

he is not seeing enough. guest: forgetting a waiver for not having health insurance. there are certain ways that people can demonstrate that they can buy health insurance outside of the enrollment so, which is a three-month period. there is a special enrollment now, but having a baby is one example. changing jobs, losing your job getting married -- all those factors can give you an exemption for signing up later. waivers specifically have to do with religious objections and cultural objections as well. host: steve, detroit, michigan, on the line for kimberly lenard. she is with "u.s. news & world report." caller: the first question i have is, did obama lie about obamacare? host: what do you mean by that? caller: that you can keep your

doctor, prices are going to go down, stuff like that. did he lie, yes or no? host: our guest is a journalist a health care reported. i am not sure she is in a position to answer that question. why do you bring it up, and what else would you like to ask? caller: does she know about the comparative research that is in obamacare? it is in obamacare, and other nations -- they call that the death panel because there will be a committee of 15 people. this is in obamacare. they would decide what health care you eventually get. guest: the clause in obamacare that addresses peoples end-of-life choices do with how medicare would be reimbursed heard many patients do not have end-of-life conversations with their families, so it was thought of as a way to incentivize doctors to have those discussions.

host: anything else? caller: i am not talking about end-of-life. this is about surgery or anything you might need. the older that you are in these countries that have this, it is called death panels, where a panel of people -- some of them doctors but some of them government people -- make decisions on what you will eventually get not end-of-life. that is included in that, but it is much more than that. i can tell by the look on your face that you have not heard of this before. host: we get the point, steve. thanks for calling. guest: there has been a lot of information going on about the death panels. the portion of the affordable care act that deals with that has to do with reimbursement for doctors. host: good morning, however, on our line for democrats. what would you like to ask our guests?

-- what would you like to ask our guest? caller: my first question is, does the guest have health insurance and why? and can she named the date that the health care price went down? that is the only two questions that -- and i will take the answer off the air. guest: i have health insurance through my employer. health care did not start to go down -- the rate at which of care spending was growing started going down, and that happened right around the recession. the recession had the largest impact on health care prices that we are seeing now. so even though health care has always grown at a higher rate than the economy, before the recession it was growing at about 2% higher than the economy, and now we are at about 1%. it is projected that will continue over the next 10 years or so. after that, they think it will go back up. host: how come? guest: because we will have a

lot more people aging into medicare and social security and we will be paying a lot more for health care for that generation. host: from new jersey, an independent caller. caller: you were talking about the cost of health care. my area of interest is in the generic drug business. the one one example of bipartisan legislative action has been the implementation of the fda safety and innovation act, which was voted unanimously. every congressman that was available that they voted for the act. and what that act did was instead of politicians all the rising taxes to pay for the fda'd extended -- fda's extended service needs, it authorized the fda to charge fees.

they standardized the fee based on the generic drug manufacturers. every generic drug manufacturer today has to pay a fee of $247,000. if you make one generic drug your fee is $247,000. if you are those other companies who make a thousand generic drugs, your fee is $147,000. can you see what this does to be small drug manufacturer? 67 generic drug companies have gone out of business since the implementation of this law. and what this has done is that has reduced significantly middle-class jobs because jobs at generic drug companies are very low-paying. but if you are at a small generic drug company and you have to come up with $247,000 that is four to five middle-class paying jobs. and then when you have these companies going off-line, you

have the majors out there who are the sole manufacturer is of these generic drugs being able to charge whatever they want. this is collusion on the part of stakeholders within the agency where you have big industries controlling the cost of medicine in the united states. host: comment of barry there. guest: i am not familiar with that portion but i will look into that more. you for double care act does encourage the use of generic drugs. host: overall health care spending in the country -- we have talked about the affordable care act -- overall, what are the percentages of increase, and is it slowing right now back? guest: the rate of growth is slowing. we are still spending more on health care every single year.

it is lower than it has been in the past. it is difficult to say at this time whether the affordable care act has much to do with the slowing of health care growth. the white house has taken credit for it, the administration has taken credit for it, and people see it as good news. health care is still growing though. it doesn't show any sign of being any less than it is now. host: you mentioned the website. glitches seem to have gone away -- guest: they seem to have. host: what are you hearing about folks, their experiences? where are things turning? are they generally finding good expenses or where are the biggest problems? guest: it is completely a mixed bag because some people are so grateful they can get health insurance for the first time because they had a pre-existing condition before. others realize that they are

under the age of 26 they can still be covered under their parents' plan. those portions of the affordable care act are still very popular. but some people are finding that it ends up being more expensive than they thought because of high deductible plans, or certain services they think might be included might come with additional fees they didn't expect. everyone is still getting the hang of what it is they will get to the new plans. host: california, republican. it is run for kimberly leonard . caller: hey, how you doing today? i have couple quick questions but i have history we need to go over, and one is about hillarycare in 1992 where she came out and said here is the story. you should have regional health care and exchanges and what you should do is be able to transport health care across borders, across the state lines

and lower the cost of this. the ama was directly against it. all of the republican establishment was dreadfully against it. they drafted everything they could to stop her from doing that. fast-forward now to obamacare. it is the same thing. now we have affordable health care, pre-existing conditions have gone away, so people who get diagnosed with cancer can still get a job, still get their health care, whenever it is. now we are left with interesting things that are happening in california particularly. the insurance commissioner of california just said you know what, united health care, you are charging double what you should be charging. in the old days, in the hillary days, we were double triple billing, hospitals were doing that. when you have an illegal immigrant going to a hospital, they charge medicare 1000% more

than what they were supposed to. the outrage is not from the people. the outrage is from the government. the bottom line of this story is aca is a great thing, i'm glad we are able to save people's lives in the meantime, but where is the ama on aca and what happened to try care for our veterans? host: thanks for calling. guest: the ama meaning the american medical association? host: i would think so, yet. guest: i think the groups are trying to help people understand what they get under the affordable care act, and what the benefits are and the provisions -- a lot of people, for example, don't realize how many preventive services come with the affordable care act and most groups are trying to educate patients and what those might

be. host: can you speak to tricare at all and what changes might be taking place? guest: there are sitting ways they are trying to help veterans and the way they do things but it is moving very slowly and people are frustrated by that. host: down to our last few calls here. pennsylvania democratic caller . what's on your mind pete? caller: we live in western pennsylvania. $179 a month for a 40-year-old man. that is less than i pay for my cable bill. i don't care how many we don't by next year, but this thing is going to work. the place where i work, i do not get aca health insurance. i get the employer thing. it is not gone up for the first time in the 15 years i've worked there. this thing is working.

i don't care what it costs. republicans in this country have done everything in their mind to sabotage this. the governors have sabotaged it could be gotten -- have sabotage it. we got rid of one of our governors because of it. my congressman is saying this is wrong. let me tell you, he is wrong. this is working. host: $170 a month -- guest: sounds like it is through the employer. most of the people who are getting subsidies are getting -- most being about 86% of people receiving subsidies -- they're getting $283 a month. that is on average. 55% are paying $100 a month for their health insurance. this is through the marketplace. how much is paid through your employer is going to vary. as far as the health insurance

marketplaces that is about the rate people are paying. host: you mentioned deductibles earlier. what are people paying in terms of deductibles? guest: i am not sure the exact figures, but a lower premium plan has a higher deductible. that means obviously, that you will be paying up to maybe $1000, $2000 in your own medical care for your health insurance company kicks in to take up the rest. host: let's hear from ed in m aine, republican caller. caller: thank you. i have been on disability, social security, for a long, long time. i am a severe diabetic. in maine they said i make $13 too much, so they took my medicaid away, and now i have no coverage to get my diabetic supplies or any of the other important things i need.

who would i see or talk to? i gladly pay $13 if that would take care of that. i will take my answer off-line. host: jimmy lee leonard? -- kimberly leonard? guest: anyone who qualifies for medicaid makes 30% of the federal poverty level $50,000 -- 130 percent of the federal poverty level you could sign up for exchanges and you would receive a subsidy of about $283 a month on average and that could help you pay for your insurance. i recommend visiting with a navigator in your state you can help you pick what insurance you would like. you can do it over the phone or in person. we have great resources at u snews.com on how to choose up plan. host: how do people find these navigators?

guest: you can find them through your state exchange website or healthcare.gov. host: other costs associated with that? guest: no. host: john in detroit. caller: i am enrolled in the aca and i have two accounts with them. i wonder if it counts as being enrolled because if they are they are double counting me. that is one point. the reason i can't access the one account is they unlocked it using the password they gave me. i still couldn't access the account. then they told me i can't cancel the account. now i have two accounts with them, which is a joke in and of itself. to say the glitches are gone into system is ridiculous. guest: are you in the state or federal exchange? caller: the federal exchange. and then i tried to cancel the

insurance i had last year. i called the insurance company up and they told me i had to talk to people at the aca. they told me i had to do it to the insurance company. i had both of them on the phone and they were arguing with each other about who had to cancel my insurance policy that i had which is ridiculous. and then i also had to have my premium before the accaa was $292 a month with zero deductible and how it is $385 a month with $1000 deductible, $4500 out-of-pocket before i am done spending my money on it. so to say that this thing has driven down costs for everybody and that they are counting everybody loverly -- they are spewing numbers all over the place. it is ridiculous. guest: right, and when we talk about the cost of health care we're talking about national spending on health care all stop

-- on health care. as far as how it affects us in our wallets, that remains to be seen. you should meet with a navigator in person to see if there is a way they can help you unin role. i'm not sure if you were able to meet the deadline on time or not, but going back in there and making sure everything aligns. host: independent caller named russ calling from michigan four kimberly leonard. caller: thank you, c-span. host: you bet. caller: i am 60 years old and i'm on disabilityk, and my life last year -- she works part-time for walgreens two days a week. she made $6,000. without income together it is about $24,000. --with our income together it is about $24,000. she tried signing up for obamacare and obamacare picture over to the state.