February 19, 2010
Déjà ENDA all over again
Posted by: Chris
Lost in the debate over President Obama's revived push to repeal Don't Ask Don't Tell is the ugly stepchild of gay rights legislation: the Employment Non-Discrimination Act. Once the darling of the movement, ENDA was to be the vehicle through which gay civil rights won its first victory into federal law.
As the name suggests, ENDA covers only the workplace and that limited scope is intentional; its leading advocates during the Elizabeth Birch years at the Human Rights Campaign argued that a more limited gay rights measure on an issue unrelated to marriage had the best chance of passage, thereby creating momentum for the rest of the gay agenda.
It almost worked. ENDA came within a single vote of passing the U.S. Senate in 1995, two years after Don't Ask Don't Tell and one year before the Defense of Marriage Act. It has resurfaced from time to time in subsequent years, only to be slapped down by Republicans when they were in the majority of one house of Congress or the other.
Then in 2007, Barney Frank reintroduced ENDA to a Democratic-controlled Congress, and for the first time -- the first time! -- gender identity was included along with sexual orientation as a protected category. After all those years of gay-only ENDA waiting its turn, the inclusion of trans protections effectively killed ENDA's chances of passage now that the Dems finally controlled Congress again.
When it became clear that the votes weren't there for trans-ENDA, Frank and Tammy Baldwin and HRC agreed to a compromise that once again limited ENDA to its original form protecting sexual orientation-based discrimination. Trans activists and the progressive blogosphere furiously erupted in response, labeling anyone who disagreed with this tactic as a cold-blooded traitor to the movement.
The compromise ENDA overwhelmingly passed the House, but the maelstrom manufactured in activists circles effectively killed its chances in the Senate, where many of those who would have otherwise backed workplace protections for tens of millions of lesbian, gay and bisexual workers balking at voting for a bill that would only earn the ire of many of the loudest LGBT voices.
Fast forward two years, the election of a Democratic president who supports a trans-inclusive ENDA and a Congress with historic Democratic majorities. ENDA has once again gone nowhere, and now we know why:
Frank said the transgender protections were among the sticking points in negotiations [among House lawmakers] on how to proceed [on ENDA].
“There has always been a problem with the question of people who are transgender in situations where people are totally or partially unclothed,” he said.
While expecting movement in the House, Frank was less certain about ENDA’s prospects in the Senate.
“I’m less sure about that,” he said. “I think people have often underestimated some of the difficulties.”
This time around, Barney and HRC have been saying that they're unwilling to compromise on transgender inclusion in ENDA, but it's too soon to tell if they'll stick to those guns. In the hopes that Congress will move forward on protections for gay, lesbian bisexual and transgender Americans, I'll hold off recounting the long and compelling list of reasons why our leaders should be prepared to repeat the compromise of 2008 if it's the only way to secure passage before the looming midterm elections.
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