September 30, 2007

What's Worse, ENDA without Transgender Protection, or no ENDA?

That's the question the Deomcrats in Congress believe they must answer, feeling that they will not get the pending Employment Non-Discrimination Act passed while it includes coverage for gender identity concerns.

Matt Foreman, the Executive Director of the National Gay & Lesbian Task Force, wrote an essay for The Billerico Project making it clear where he stood on that issue:

Gender identity language has twice passed through the House in the hate crimes bill, and earlier this year there were similar last-minute concerns among new members. We were able to overcome them then, and should be given the chance to do so now. It is incredibly ironic that today, the same day news is breaking about the House removing gender identity protections from ENDA, the Senate just voted 60–39 to allow a voice vote on a transgender-inclusive hate crimes bill. The bill then immediately passed.

States as diverse as Colorado, New Mexico, Oregon and Iowa have all made discriminating against transgender people in the workplace against the law. Thirty-seven percent of Americans now live in jurisdictions that have workplace protections based on gender identity — just 14 percent fewer than the overall number (51 percent) who are protected on the basis of sexual orientation. These victories are a direct result of statewide LGBT rights organizations and state legislative leaders holding firm against last-minute concerns and not giving up at the first sign of trouble.

Congressman Barney Frank also contributed a lenghy essay to The Billerico Project explaining why he felt obtaining passage of most of the original ENDA goals was worth dropping the gender identity portions:

The real reason that people are now arguing that we should withhold any action on the antidiscrimination bill unless it includes transgender as well as sexual orientation is that they are, as they have explicitly said, opposed in principle to such a bill becoming law. That is the crux of the argument. There are people who believe – in the transgender community and elsewhere – that it would be wrong to enact a law that banned discrimination based on sexual orientation unless it fully included people who are transgender. I think this argument is deeply flawed.

First, I would note that since I first became a legislator thirty-five years ago, I have spent a lot of time and energy helping enact legislation to protect a variety of groups from discrimination. In no case has any of those bills ever covered everybody or everything. Antidiscrimination legislation is always partial. It improves coverage either to some group or some subject matter, but never achieves everything at once. And insistence on achieving everything at once would be a prescription for achieving nothing ever.

To take the position that if we are now able to enact legislation that will protect millions of Americans now and in the future from discrimination based on sexual orientation we should decline to do so because we are not able to include transgender people as well is to fly in the face of every successful strategy ever used in expanding antidiscrimination laws. Even from the standpoint of ultimately including transgender people, it makes far more sense to go forward in a partial way if that is all we can do. Part of the objection to any antidiscrimination legislation is fear of consequences, which fears are always proven to be incorrect. There is a good deal of opposition now to passing even sexual orientation legislation. Enacting legislation to ban discrimination based on sexual orientation and getting a year or two’s experience with it, will be very helpful in our ultimately adding to it protection for people who are transgender. That is, if you always insist on doing all the difficult things in one bite, you will probably never be successful. Dismantling the opposition piecemeal has always worked better.

Sadly, while I strongly agree with Mr. Foreman's principles, I also respect Rep. Frank's political savvy and yield to his arguement. I strongly agree with Rep. Frank's frustration toward people that want to withold ENDA until every portion of it could gain passage--why defer the benefits that can get pushed through immediately, holding those hostage until there is complete inclusion? That is clearly not the lesser of the evils, which is often the barometer for making political decisions.

The passage of ENDA would be a major victory for the GLBT community. Yes, I'm leaving the T in their because any movement toward full equality gets those still lacking closer to achiving it themselves.

When rights are gained by changing laws, they must happen incrementally and gradually because there will always be a strong opposition. They must also be safeguarded because laws can be changed or even completely reversed.

That's why the most effective way to change society is to change people's hearts. Establishing laws to enforce are important because they impact behavior, but they don't necessarily change attitudes. Sometimes they actually strengthen the resolve of those who opposed the change.

As members or allies of the GLBT Christian community, we have the best opportunity to effect a lasting change in society by teaching people that Jesus would not discriminate against GLBT people. He loves us all equally and wants us to treat each other in that manner. That's where we should spend our energy and resources.

Until then, part of a loaf is still better than not having any bread at all. I encourage GLBT activists and their allies to continue their support of ENDA, even a diminished version of it, while gearing up for the next steps toward equal rights and protections in the workplace for ALL people.


  1. Bush will veto ENDA with or without trans protection, and there's not enough votes for an override. So it's always been a symbolic vote.

    Not to say symbolism isn't important -- being willing to toss aside the most vulnerable members of the LBGT communities without even an attempt to line up more support sure sends a signal to the pro-bigotry side: we're willing to cave even before things get serious. 

    Rather than cutting loose trans people without warning, Frank and company could have said, "hey folks we need more votes, go lobby your representatives."

    This isn't "half a loaf is better than none," this is "You can starve as long as I get mine." 
    As far as waiting politely...

    Did gays and lesbians "wait their turn" when they pushed for inclusion in civil rights legislation in the '70s, when they were told doing so might harm efforts by racial minorities?

    Did they "wait their turn" when they demanded funding for HIV/AIDS research and finding a cure for it get higher priority in the '80s, when established groups felt that doing so would take badly-needed money away from other fatal diseases?

    Did they "wait their turn" when they demanded that their rights be acknowledged and respected in the '90s?

    Did they "wait their turn" in 2003 when they pushed for marriage equality in the face of warnings that it could have a disastrous impact before a critical presidential election?

    And color me cynical, but "we'll come back for you later" hasn't had a particularly good track record.

    In New York and Maryland, trans people helped pass LBG anti-discrimination laws six years after being told to wait. Six years later they're still waiting -- and left to fend for themselves while LGB organizations focus on marriage equality.

    In Barney Frank's home state, LGB anti-discrimination laws were passed 17 years ago. Trans people are still waiting.

    In Michigan, trans protections were dropped in order to pass LGB anti-discrimination laws passed 18 years ago. Trans people are still waiting.

    Trans people have been in this fight a long time -- if you haven't heard about it, it's because but it took 10 years before the LGB organizations would agree to let us take part in ENDA in 2004. If we're that discriminated again within the queer community, just imagine how we're treated by the general public.

    Florida activist Nadine Smith put it aptly: "Like every minority group that has fought for basic rights, we will never win by the votes of our community alone. What we do have is the moral authority to call out to America to live up its ideals. We have the ability to call on our leaders and our fellow citizens to treat everyone equally under the law, to reject bigotry, prejudice and the discrimination and violence they breed.

    To cut out, to throw out protection regardless of gender identity/expression is to cede that moral authority. It is to confirm for our political enemies that a dividing line within the human family is acceptable–the haggling about who is worthy and who is not is all that remains."

    But if any of this doesn't convince you, think about this: omitting gender identity leaves a huge loophole to be exploited by careful bigots, e.g. "We didn't fire you because you're gay/lesbian, we fired you because you're nelly/butch (or simply not masculine/feminine enough)." 

    As Martin Luther King Jr. said, in the long run it would be the arguments of our enemies, but rather the silence of our friends, that will be remembered. 

  2. I agree with Lena here.

    Richard Juang recently blogged, "The 1964 Civil Rights Act prohibits employment discrimination on the basis of race, color religion, sex, or national origin. It does not 'incrementally' prohibit employment discrimination based on these categories 'unless the person's skin is really really dark, or if you just can't tell what race the person is, or because the religion has more than one diety, or when that country is really really small and far away...'"

    Given that, as Lena said, this vote is largely symbolic, it would have meant much more if our supporters in Congress and in the advocacy/activist community would have taken the symbolic step of scrapping this piece of legislation because of its partial nature, rather than treating it as if it were the "real thing," don't you think?

  3. "Until then, part of a loaf is still better than not having any bread at all."

    I guess that depends on whether one is among those getting the part of the loaf, or among those waiting for the rest of the loaf to arrive.

  4. Thought you might have a post up, so I popped by to check. At first I bought Barneys argument. Then I did some homework. Now I am of the mind, united we stand.
    Now we have a month to make clear to our reps, that we want the whole family in there.
    Personally, I'm not claiming any bad guys today. I will just go with who has the high moral ground here. And what is the right thing to do?

  5. I can understand where you're coming from on this, Jim. However, having known a few transgendered folks who have been discriminated against in the workplace, I have to say that I'd rather wait to have ENDA that includes our trans family members. Even if it means that I may be discriminated against in the workplace in the meantime, I'd rather have that happen than see one more trans person have to endure what my friends have endured. It just doesn't feel right to me to have ENDA without the sexual identity language. It's like having a non-discrimination policy for blacks, but not latinos. A sexual minority is a sexual minority. Why fracture it?

  6. Barney Frank is a transphobe. He uses bathroom hysteria and hate speech against trans women to justify himself.

    Homosexuals cannot be trusted with trans rights. Look at SONDA, the HRC, and all the times that we were thrown into the volcano because of trans misogynistic homosexuals. They have NEVER come back for us. Not once.

    And they won't this time, either.

  7. Please rename your Website to "Straight, but narrow. Wide enough for three letters and not four."

    That way, you'll be an honest transbigot.

  8. Anonymous,

    I respect your right to disagree with me on this issue, as other have (and some have not), but trying to stick the bigot label on me because of that disagreement does not wash with the body of work on this blog.

  9. If the shoe fits, wear it.

    If you don't want the label, then perhaps your behavior is questionable, not my vision.

    When you claim special rights for some at the expense of others in the name of pragmatism, you define those who are left out as expendable. That qualifies you for the label in my book and the book of many others.
    You don't have to rave to be a bigit, you just have to say that some people are less than worthy. You have done this. QED.

  10. Oh, My name is Lyssa, and I am a woman, trans, and lesbian.

    And I don't toss people aside when they become inconvenient.

    You cannot make the same claim.

  11. half a loaf is better than none? tyr telling that to a transgendered individual who will not be covered by this legislation. if it passes, i will never, ever support any democrat who believes that my rights as a transgendered american are less important than those of anyone else. i'd rather have those who openly dislike me in power than the so-called friends who stab us in the back when push comes to shove.