He Said, Ze Said
Should progressives support Rep. Barney Frank’s Employment Non-Discrimination Act? Part two of a two-part debate.
Part One: The opening statements
Part Two: The rebuttals
While there are many good arguments for why the Employment Non-Discrimination Act, or ENDA, needs to include gender identity in its protections (justice, equity, and inclusion being at the top of that list), the key reason Congress should pass an all-encompassing non-discrimination act is that without gender identity, the law just doesn’t mean as much. Accepting a lesser ENDA compromises real progress on the issue, and splits the LGBT community unnecessarily on an issue that could—and should—be a landmark in progress.
The original version of ENDA that Rep. Barney Frank (D-MA) proposed last April included gender identity as one of the new protections that would be guaranteed under federal law. But fear that the bill couldn’t pass if it included transgender protections led Frank to propose a second version that didn’t mention gender identity—which is the version of the bill that finally passed through the House last week.
The apprehension about including gender identity is based on the idea that legislators are on board with protecting the LGB portion of the acronym—at this point in history, pretty much everyone has a gay, lesbian, or bisexual cousin, child, neighbor, or coworker and has accepted that they probably shouldn’t be discriminated against. But, for the most part, Americans still don’t really "get" transgender issues. Many of the people who pushed for expanded employee protections for gays and lesbians were afraid that if the bill included transgender protections, they would have lost the votes necessary to pass any legislation at all.
But when it comes down to it, most of the discrimination directed at the LGBT community is based not on actual knowledge that someone’s sexual orientation is something other than heterosexual, or seeing direct evidence thereof, but on the suspicion that one might be. That suspicion comes from assumptions about how men and women should speak, interact with others, groom themselves, or dress—all of which falls solidly in the gender identity and expression realm. If gender identity is excluded from ENDA, the protections for gays, lesbians, and bisexuals aren’t actually guaranteed, as a detailed examination of the legislation conducted by Lambda Legal concluded. The original version of the bill defined "gender identity" as "gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual." Without that protection, employees can still be fired for not conforming to an employer’s ideas about how men or women should present themselves. For a lot of gay men and lesbians, that protection is key. To be effective, the bill needs to be about protecting everyone—women who don’t wear heels, men who do, anyone who doesn’t fit their gender stereotype, and those who actually identify with a gender other than their biological sex.
The other major reason ENDA needs the L, G, B, and T is that the four are a package deal. The community encompasses people who identify as transgender, and citizens concerned with equality and justice shouldn’t abandon a portion of that community because it isn’t politically convenient. Protecting some members while abandoning others divides the community on an issue that should bring everyone together: Employers shouldn’t be allowed to discriminate against people because of who they love or how they express or identify their gender. Not at all, not ever. And if anything, ENDA is even more pertinent to the "T" portion of the acronym, as one study in San Francisco found that unemployment rates among those who identify as transgender are as high as 70 percent.
Many argue that Congress can pass a lesser version of ENDA now and expand it in the future. But a historical survey shows just how long that might take. The Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 are the only pieces of legislation passed by Congress in recent history that broadly outlaw a form of discrimination based on characteristics people don’t necessarily choose for themselves—race, ethnicity, sex, national origin, and religion. Legislation on sexual orientation discrimination started circulating around the Hill back in 1974, and it wasn’t until this year that it really stood a chance of passing. The LGBT lobby, at long last, has some real power. Unfortunately, a lobby specifically devoted to protecting the rights of transgender individuals doesn’t have the same level of clout, and it may be a long time before it does.
There are already 13 states that ban discrimination based on sexual orientation as well as gender identity and expression. More than half of Americans live in a place where it is illegal to discriminate based on sexual orientation, and 40 percent of Americans live in places where gender identity is protected as well. Outlawing discriminatory practices based on gender identity is not as far outside the realm of possibility as congressional conservatives would have us believe, and federal legislation should endorse the achievements of progressive states while raising the bar for others. Moreover, it’s probable that President Bush will veto any form of ENDA that legislators do pass, so why shouldn’t we push for as bold a plan as possible? Resigning ourselves to incremental progress now—when that progress is likely to remain hypothetical until 2009 at the earliest—amounts to progressives essentially defeating ourselves on this issue.
I agree that in an ideal world, progressives should only support ENDA with gender-identity protections. The problem, of course, is that we don’t live in an ideal world, and a gender-inclusive ENDA has absolutely no chance of becoming law while the Bush administration occupies the White House.
What is left to debate, then, is whether or not progressives should support the bill the House passed last week—legislation that would protect gays, lesbians, and bisexuals from workplace discrimination, but wouldn’t extend those protections to transgender individuals. The answer, for me, is a reserved yes. If the president ends up signing the bill—there’s still a slim chance, as I understand it—the legislation will represent a long-awaited and momentous victory for the LGBT-rights community, and, contrary to what you argue, will increase the chance that gender-identity protections will be added to the bill in the future.
Your “all-or-nothing” case against the House-passed ENDA rests upon two arguments: that a workplace non-discrimination act without gender-identity protections won’t be worded broadly enough to protect LGB employees; and that passing an anti-discrimination law for LGB employees without transgender protections will decrease the chance that Congress will add gender-identity language to ENDA sometime in the near future. While your first point could turn out to be true—only time will tell—your second argument won’t. And neither provides a strong enough case to abandon legislation that would offer thousands upon thousands of lesbians, gays, and bisexuals the workplace protections they deserve.
Here’s why I disagree with the first plank of your argument: In terms of the law, the issue is far from settled. The idea that a gender-identity free ENDA isn’t worded strongly enough to protect LGB employees originates from a brief that Lambda Legal, America’s preeminent LGBT legal rights organization, released in early October, and then expanded upon later. While you and other commentators have cited Lambda’s legal analysis to argue that a gender identity-free ENDA will not protect LGB employees, the brief doesn’t explicitly say that. What it does say is that if conservatives attempt to weaken ENDA’s sexual-orientation protections by challenging them through the courts, they may have a better shot at success if the act doesn’t include gender-identity protections. That’s a big difference.
Just because conservatives may have a better chance of weakening the legislation if it doesn’t include gender protections doesn’t mean that they will succeed. It’s equally likely that the courts would dismiss the conservatives’ cases and end up strengthening the act as it is written. If the House-approved bill does pass through the Senate, and if Bush signs it, it would take months or even years for conservatives to launch a legal attack against it, and it would take even longer for their attempts to succeed or fail. So in reality, your point boils down to this: Progressives should oppose a bill we would otherwise support because there is a limited chance that sometime in the future conservatives may or may not be able to chip away at the law through the U.S. justice system. That’s not very compelling.
Your second point—that if we don’t pass gender identity protections now we’ll be less likely to pass them in the near future—flies in the face of recent LGBT history. Acceptance of LGBT Americans has always come incrementally, in fits and starts. Take marriage rights in Massachusetts, for example. Same-sex unions came to the Bay State in 2003 in the form of a mandate from the state’s supreme court. While much of the LGBT community celebrated the ruling, it stood on shaky ground: In 2006, the state legislature reacted to the order by voting to amend the state’s constitution to outlaw same-sex marriage. But, when faced with the same vote a year later, the same legislative body reversed its stance and voted the measure down. What changed? Then-State Senator Brian Lees, one of the politicians behind the anti-gay legislation, explained: “Gay marriage has begun, and life has not changed for the citizens of the commonwealth, with the exception of those who can now marry.” In other words, those who once opposed allowing gays and lesbians to marry got used to the idea, and they came to realize that same-sex unions aren’t the threat they once thought they were.
So why not apply the lessons of this precedent to our current ENDA debate? If protections for LGB employees become law, and Americans see that protecting lesbians, gays, and bisexuals from workplace discrimination doesn’t radically change how America does business, Americans will be more likely to support similar types of legislation in the future. In the meantime, Americans will become better educated about the discrimination transgender individuals face, and more likely to endorse legislation that would protect them. The sooner a non-inclusive ENDA becomes law, the sooner an all-inclusive ENDA will have a chance of passing.
The LGBT community gets this. In a recent poll of LGBT Americans, 70 percent supported the House’s decision to pass ENDA without gender protections. This isn’t because the majority of LGBs wants to discriminate against the Ts. LGBT individuals know that they should take a victory when they’re given one, even when that victory isn’t ideal. If there’s one thing they understand, it’s that progress begets progress.
The very fact that there are questions about whether the gender-identity-free version of ENDA would protect the LGB community should be evidence enough for progressives to fight the T-less version of the bill. As you yourself argue, "the issue is far from settled."
You’ve highlighted cherry-picked portions of Lambda Legal’s analysis, but the organization’s overall conclusion is that for ENDA to be effective, it must specifically offer gender-identity protections. Lambda argues that conservatives will—not may—be able to pick the law apart. This prediction is based on precedent: The brief points out that federal courts have already determined that the Civil Rights Act of 1964’s prohibition of racial discrimination doesn’t actually outlaw discrimination against employees who wear hairstyles specific to people of a particular race (afros, for example), and that the Americans with Disabilities Act does not prohibit discrimination stemming from an employer’s belief that a person’s disability might prevent him or her from doing a job, even if that belief is unjustifiable. If ENDA doesn’t include gender-identity protections, employers will still be able to fire employees because of traits that suggest gender nonconformity—characteristics that some gays, lesbians, and bisexuals exhibit (as do some heterosexuals, for that matter). If ENDA is to have any teeth at all, the bill needs to include as little ambiguity as possible.
Furthermore, cutting off gender protections implies both that transgender individuals are disposable and that they belong to a category that is entirely separate from the others—which is exactly what conservatives would like us to believe. The reason progressives have been pushing so hard and for so long to get legislation outlawing LGBT employment discrimination is that we believe that people should not be discriminated against in the workplace, period—whether that’s because of who they date or how they present themselves. Cutting out gender protections implicitly suggests that transgender individuals are somehow different and less deserving of workplace protections than lesbians, gays, and bisexuals.
Imagine what America might be like if we had decided in 1964 that discriminating against black Americans was wrong, but that Pacific Islanders were fair game. That would have sent the message that discriminating against someone because of characteristics inherent to who they are is fine, except for those that the dominant culture has decided they approve of. In that realm, we would never accept the kind of "incremental" improvements for which you seem content to settle.
Finally, your argument about Massachusetts and gay marriage is a red herring, because the right to marry didn’t come in bits and parts there, at least not in the same way we’re talking about divvying up who gets rights under ENDA. The court decisions, and the legislation that later seconded them, decreed that it was unconstitutional to deny the right to marriage to any two consenting adults. In those two cases, the justices ruled that the state "failed to identify any constitutionally adequate reason" to deny same-sex couples the right to marry, and later that only full marriage rights would conform to the state’s constitution. The state legislature, backed by those rulings as well as strong lobbying from the state’s LGBT and allied community, was forced to agree that while they might not all like couples that stray from their conception of what’s normal, it was unconstitutional to deny them rights because of that. The marriage question didn’t have the potential for division in the same way we’ve allowed ENDA to be carved up. However, at the heart of the two issues rests the same fact, which the state of Massachusetts has come to realize: It is unjust to deny people rights based on the idea that other people don’t like them.
Though you attempt to boil my argument down to the idea that progressives should oppose ENDA without transgender protections, I never actually argue that. Whatever form of the bill comes through, I and many others will begrudgingly stand behind it, because we do have to take whatever progress we can get. But right now, we still have an opportunity to make the Senate ENDA bill something truly progressive.
It’s worthwhile to point out, once again, that we agree more than we disagree. Both of us would rather see a trans-inclusive ENDA pass through both chambers of Congress and signed into law by the president. I have to take issue, though, with one assumption you’ve made in your argument above: that I am "content to settle" with incremental steps toward equality for LGBT Americans.
Content? Hardly. I am a second-class citizen in my own country. A good portion of Americans still think I am a sick, immoral sexual predator because I hope to one day marry a member of my own sex and raise a family. Those same Americans wish to enshrine their worldview in the Constitution, the one document that should guarantee my right to exist how I please. For me, the 2004 presidential campaign was a formative event—one that has firmly rooted within me a sense of bitterness and anger on the one hand, and determination and focus on the other. During the run-up to that election, I, as someone who constantly consumes media in every form, was bombarded daily with statistics passing judgment on me and my life. When I would read in the New York Times, for example, that 55 percent of Americans thought it was a-okay to discriminate against me, I took it personally. And when the election was finally over, and 11 states had approved anti-gay ballot initiatives, I, like many other Americans, questioned my dedication to a country in which I no longer felt welcome.
This is all to say that "content" is not exactly how I would classify my feelings toward LGBT Americans’ slow march to equality. “Pissed off” would be more like it.
And yet, even with all my frustration, all my anger, and all my determination to fight back, I know that when it comes to politics, there is a difference between morality and strategy. Many on the left seem loath to accept this. Sometimes the most strategic move isn’t the moral one, and sometimes the moral tact isn’t the most strategic. ENDA is the perfect example. You are correct: It is wrong that we are being forced to abandon gender-identity protections if we wish to ensure ENDA’s passage. But we progressives must also take reality and strategy into account. ENDA will not pass if we insist on including gender-identity protections, and—if you accept the argument in my first plank of this debate—we will be able to pass federal protections for transgender employees sooner if we pass protections for lesbians, gays, and bisexuals now. In other words, if we compromise today, we will have a better chance of getting everything we want tomorrow. It’s counterintuitive, maybe. But it’s strategy, and it’s important.
As to the other points you made in round two: First, you and Lambda Legal are right to point out that an ENDA without gender protections is more vulnerable than a version with those protections. But, as I’ve argued, passing a vulnerable ENDA doesn’t mean that conservatives will necessarily succeed at chipping away at the law, and passing a vulnerable bill will help progressives secure a stronger one in the future.
Second, you argue that cutting gender-identity protections from the law implies that transgender people are disposable. No, it’s an admission of an unfortunate reality: Americans aren’t yet comfortable with transgender issues. In fact, it’s safe to bet that the majority of Americans don’t know what "transgender" actually means. The LGBT community has a lot of work to do. We must continue to educate Americans about what it means to be something other than a straight male or a straight female. We’ve done it once before, and we can do it again.
Third, by bringing up the Massachusetts example, I wasn’t trying to get bogged down in the specifics of the case. I was simply trying to point out that the more time the LGBT community has to make its case to the American public, the better chance we have of bringing more people to our side. That’s what happened in Massachusetts, and that’s what will happen in the rest of the country, as well.
To be sure, this represents incremental progress. And, yes, this plodding process can be maddening. But just because it’s frustrating, doesn’t mean it’s wrong. It’s strategy, and in the end, it will work. The truth wins out, slowly but surely.
Kate Sheppard is a Writing Fellow at The American Prospect. Rob Anderson is the Editor of Campus Progress.