December 14, 2008
Trans-inclusive ENDA, past and future
Posted by: Chris
With regard to "ENDA (trans or not)," it's important to remember that the "gender identity" piece of an inclusive ENDA does not just protect trans people. In fact, trans people are only a small segment of the GLBT (and straight) population that would benefit from "gender identity" protections. The inclusion of "gender identity" in ENDA would protect gay, lesbian, and straight people who express their gender in non-traditional or non-standard ways.
Many gay and lesbian people (and some straight people) are discriminated against not because of their sexual orientation (in many cases, it's not known in their workplace or in their job interview), but because of their gender presentation or gender expression. They are "presumed" to be gay or lesbian because of the way they are presenting their gender (in a way that does not reflect a "standard" male or female presentation). Straight people are also discriminated against because of this. They are also "presumed" to be gay or lesbian when they are not reflecting a standard masculine or feminine gender presentation.
Even trans people will mistakenly say that HRC dropped its support of the "trans" portion of a national ENDA. It's not the "trans" portion. Discrimination based on gender presentation (how you present yourself as a man or as a woman), which translates to "gender identity," affects many people, only some of whom are trans.
Great blog, by the way.
Thanks for the kind words but I'm afraid we disagree on the legal impact of including "sexual orientation" and "gender identity" in the Employment Non-Discrimination Act. This is a subject much debated on this blog during the ENDA debacle earlier this year.
In my view, you've got it backwards, actually. Even if "gender identity" is omitted as a compromise to pass ENDA, including "actual or perceived sexual orientation" will nonetheless extend coverage to the gay and straight gender nonconformists you describe. This is because, as you point out, the workplace bigots think of them as "fags" or "dykes." It's irrelevant as a legal matter whether the victim is actually gay because the law prohibits discrimination based on actual or perceived sexual orientation.
I would add that many courts have concluded that transgender men and women, as a group, are already protected under Title VII, as the trans plaintiff's recent victory against the Library of Congress demonstrates.
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