Friday, April 4, 2008

Senator Kennedy Enters ENDA Fray

Kennedy And not everyone is happy with the side he's taking in the debate:

Sen. Edward M. Kennedy is jumping into the middle of an uproar within the gay community whose causes he has long championed.

The Massachusetts Democrat is leading a push in the Senate for a federal ban on job bias against gays, lesbians and bisexuals — but not transsexuals, cross-dressers and others whose outward appearance doesn't match their gender at birth.

"We will strongly oppose it," said Roberta Sklar of the National Gay and Lesbian Task Force. "Leaving transgender people out makes that a flawed movement."

The House in November approved the bill, written by openly gay Rep. Barney Frank, D-Mass., despite strong protests from many gay rights advocates that it didn't cover transgender workers.

"It was made very clear in the fall that most LGBT (lesbian, gay, bisexual and transgender) organizations, the vast majority of LGBT organizations, do not want Congress to shove a civil rights bill down our throat that we don't want," said Mara Keisling, executive director of the National Center for Transgender Equality.

Some gay rights groups, including the Human Rights Campaign, supported Frank's bill and the decision not to risk its rejection by Congress by insisting on immediate transgender protections as well.

"We will continue this work until all members of our community no longer fear being fired for who they are," said Brad Luna, Human Rights Campaign communications director.

Kennedy said Senate approval of the bill could pave the way for extending protections to transgender workers next year, when he hopes Democrats will increase their numbers in Congress and a Democratic president supporting gay rights will be in the White House.

We, of course, have discussed passing the ENDA bill without the "T" before, and I am now more persuaded that there is too much current litigation over whether transgender individuals are covered by existing definitions of "sex" under Title VII to allow the current situation to fester. 

Assuming, like I do, that gender identity and expression is about sexual identity, Congress should make clear once and for all, like it did with pregnancy back in 1978, that "sex" under Title VII also includes individuals who have a different gender identity or expression than their anatomical sex. Let's not leave it to the courts to fool around with.


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I must take issue with you in one area. The passing of a T-excluding ENDA clarifies the situation adequately. Transsexuals are now definitely not protected by Title VII as Transsexuals.

"Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1067 (7th Cir. 2003). Indeed, to read Title VII so as to prohibit any discrimination because of nonconformity to sex stereotypes would create, as Judge Posner continues somewhat bluntly, “ a federally protected right for male workers to wear nail polish and dresses and speak in falsetto and mince about in high heels, or for female ditchdiggers to strip to the waist in hot weather.”"

The courts have found no such rights. See also Ettsity vs Utah Public Transport, where the court found that the appearance of a transsexual was so different in degree as to be a difference in kind from Price Waterhouse.

Before the passing of an exclusive ENDA, it was arguable that Price Waterhouse covered Transsexual people. Congress has since made it plain that it is their intent that such people be allowed to suffer discrimination, by considering an inclusive ENDA, and only passing an exclusive one covering homosexuals. This, in conjunction with Hamm v. Weyauwega Milk Products, Ettsity vs Utah Public Transport et alia, has left little room for interpretation.

I do not say that this situation is desirable, in fact I consider it barbaric. But it is unambiguous.

Posted by: Zoe Brain | Apr 11, 2008 7:38:33 PM

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