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October 3, 2007
Transgender Inclusion May Spell Trouble for ENDA
Update: See Chai Feldblum's (Georgetown) update in the comments section. The tide may be turning back to inclusion of transgendered individuals into ENDA.
After early reports that the Employee Non-Discrimination Act (ENDA), which adds sexual orientation and gender identity to the protected classifications under Title VII, had the best chance to pass Congress yet, discouraging new stories are surfacing about a delay on a vote on the House version of the bill (via FoxNews.com):
Legislation to criminalize workplace discrimination against gays, lesbians and bisexuals — but not cross-dressers or people who have had sex-change surgery — has stalled in the House after an impassioned outcry against excluding anyone from the bill.
"We are one community, and we demand protections for all of us, and nothing else will suffice," said Matt Foreman, executive director of the National Gay and Lesbian Task Force.
But House Democrats said while they have the votes to pass a bill banning workplace discrimination against gays, lesbian and bisexuals, they don't have the votes if so-called transgendered people are included.
"There is more resistance to protection for people who are transgender than for people who are gay, lesbian and bisexual," Rep. Barney Frank, D-Mass., said in a statement. "This is not a good fact, but ignoring bad facts is a bad way to get legislation passed."
To me, although I disagree with excluding gender identity and expression from ENDA, it does not seem that transgendered people have yet gained the same public acceptance as other members of the LBGT community. The question of the day is whether it is better to fight for ENDA without protection, at least initially, for the transgendered or whether it should be all or nothing as far as including every group in the legislation.
BTW, the use of the word "criminalizing" in the first sentence of the above passage is clearly wrong. ENDA is not about enacting criminal law, but civil liability for unlawful workplace discrimination based on sexual orientation and gender identity and expression.
PS
October 3, 2007 in Beltway Developments | Permalink
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Comments
10/3/07 1:22 am
Hi folks --
Before those of you who are supporters of gay rights get too excited/worried about this turn of events in Washington, the best thing that has happened in the past 48 hours is that the Democratic House leadership has pulled back (at least for the moment) from proceeding with a vote on a non-transgender-inclusive ENDA.
Here’s a letter I wrote to the Washington Post this weekend in response to an editorial on Friday praising Barney Frank for his decision to embark on that strategy:
Regarding the September 28th editorial, “A Civil Rights Law”:
You are wrong to praise Congressman Barney Frank for “devising the plan that might well save” the Employment Non-Discrimination Act (ENDA) by introducing a new bill last week that would protect gay people from employment discrimination, but would strip out protections for transgender people facing similar discrimination.
I strongly applaud the commitment of the Democratic leadership to making positive movement on ENDA a key priority of the party. What a welcome relief to have Democrats controlling the House!
But the Democratic leadership has seriously misread its base. Many of us have spent the last ten years rethinking our position that it is a good idea to get protection for gay people as an incremental step, and then to move on to protect transgender people. A significant segment of the mainstream gay community and leadership now believe this is truly a matter of “one for all and all for one.”
Those of us who hold this position are neither naïve nor idealistic. We know it might take longer to pass an ENDA that is transgender-inclusive. But as the lawyer who helped draft and negotiate the bill during the first ten years of its existence, and who testified before Congress three times in favor of its passage, I can tell you that the only bill I want to celebrate is one that prohibits discrimination on both sexual orientation and gender identity.
Chai Feldblum
Professor of Law
Georgetown University Law Center
I held off sending this letter to see if the pressure and activity mounted by many of us starting last Wednesday (when Barney announced his unilateral decision to introduce a sexual orientation only bill) would pay off. Thank goodness it did — and on Monday, the House leadership announced it would work with the gay and civil rights community to try to pass an inclusive ENDA. (Btw, over 90 organizations — national and state, gay rights and general civil rights — sent a letter to the House leadership disassociating themselves from Barney’s unilateral strategy and contesting it on both political and moral grounds.)
This whole episode could have been avoided had there been better consultation and less unilateral action. But hopefully, the House leadership has now figured out that it needs to give the community an opportunity to show that it has the votes to pass a transgender-inclusive ENDA. (Btw, I believe we have and/or can get the votes based on the education and vote-counting that has been going on over the past year.) In any event, Barney’s unilateral strategy has been solidly repudiated by leaders and organizations across the spectrum and I hope it dies a quiet death.
Chai Feldblum
Posted by: Chai Feldblum | Oct 3, 2007 1:56:09 AM
To start, I am transexual and lesbian, both for many years, and have workplace and civil rights legislation experience.
The flaws to whether ENDA should include gender identity are very basic. Gay people are not accepted at all, however because a gay person need not be out unless their homosexuality expresses some non-conforming gender identity. Gay people and issues need not be addressed because for all practical purposes they are all still in the closet. All nine and a half of the ten percent of gays.
Another flaw, which I unfortunately took some part of, is the the term transgendered. There are no cross-dressers in the workplace because there are no crossdressers out in public. So, Barney Franks "problem with men in dresses in the bathroom at work" is a bunch of crap however the gay communities by-in of the softer term transgender rather than transexual supports the crossdresser in the bathroom issue.
Notwithstanding the foregoing, the two communities are being protected in different ways. Gays by code designed for homosexuals and Transgendered by state and federal constitutions protecting via definition of sex. In any event in 100 years, barring some redefinitions, gays will still be separately defined from the public at large by their legal protection. I know the ninth circuit and one other has precedent of sex including gender. As you know post Waterhouse era decisions of sex including gender are only a short time away and the current press for gay and transgender to be separate provides an avenue to do so.
In truth it is the gender of gays that has driven them to push aside those who most define their community. And who can blame them, every community has done it;the light skinned black or Hispanic from the dark and probably me with transexuals and crossdressers. Weight off a sinking ship.
Just a thought.
Posted by: Lori Stewart | Oct 5, 2007 9:07:15 PM
To:Chai Feldblum
The episode could not have been avoided as Barney Frank's intention to do this has been known from the beginning, he never hid it at all. It was his timing and morally offensive statements that set it in motion. His "man in dress in women's workplace bathroom" led to his recent press statement that he did not believe gender identity should be included. He is not a good man but represents the "not in my back yard" mental stronghold on America.
I received a white house driven response from Frank a few years back where even then his "let us get ENDA then we'll bring you on board" sales pitch was so obvious of a man without good character.
Posted by: Lori Stewart | Oct 5, 2007 9:16:52 PM
