October 19, 2007

Lambda Legal's ENDA filibuster

Posted by: Chris

OK, it's not really fair to call it a filibuster, even though it runs to more than 4,300 words. But considering Barney Frank took to the floor of the House and spoke for almost twice as many words, and I've written easily as many on this here blog, it's fair to conclude the ENDA controversy is a complex and wordy one.

Dale Carpenter posted yesterday an excellent and extensive response to Lambda's latest ENDA pronouncement, and my own response is somewhat wordy as well.  But if you want to, skip to the end because there's a critical, big-picture point here that appears to have been totally lost on my friends at Lambda Legal and their United ENDA allies.

Lambda latest statement on the new (which is really the old and original) trans-free Employment Non-Discrimination Act is rather revelatory.  The nation's preeminent gay legal organization backs away from its earlier analysis of ENDA, which exaggerated the importance of a single New York employment suit to argue that a trans-free ENDA will offer weak protection for gay workers as well. Now that case is called a "sideshow."  Agreed.

Lambda had used the New York case to bootstrap the argument that gay workers need "gender identity" as a protected category in ENDA or otherwise employers will argue that they acted based on the employee's gender non-conformity (he's swishy or she's butch), rather than because of sexual orientation (he's a fag or she's a dyke).

That claim led to a sharp rebuke from gay law professor Dale Carpenter (and here on this blog), since the New York case (Dawson v. Bumble & Bumble) just didn't support Lambda's proposition. In fact, as both Carpenter and I have explained at length, the Supreme Court ruled way back in 1988 in the case of Price Waterhouse v. Hopkins that Title VII already prohibits employers from using sex stereotypes against workers.

In response, Lambda Legal offers up a primer to employment discrimination cases, reminding us that many workers can't find lawyers to take their cases, or can't afford a retainer, or their lawyer isn't knowledgeable, or they settle before a court issues a decision, or that decision isn't publicly reported. All that background is intended to explain why there isn't a single court case illustrating the risk that Lambda Legal says justifies opposing a gay-specific ENDA, the very same ENDA that Lambda Legal lobbied aggressively in favor of for a decade.

An alternative explanation doesn't require four pages of explanation: There are no reported cases because the risk is largely illusory, or certainly exaggerated, and that's why it has yet to come up in all those states that have employment discrimination laws that protect gays but not transgender workers.

In similar fashion, Lambda claims that the 1988 Supreme Court case hasn't always been followed: "Unfortunately, not all courts have yet accepted the majority view that Price Waterhouse means that discrimination based on gender nonconformity is barred by Title VII."  Not a single case is cited to support that assertion.

With a paucity of examples -- as in, none -- of employers wriggling out of gay employment discrimination suits, Lambda Legal has been forced to alter its strategy, and admits as much:

[The] concern [about passing a trans-free ENDA] is based not so much on the rulings in particular published opinions addressing state law sexual orientation employment discrimination statutes, but instead arises principally from our knowledge of what has happened in employment discrimination cases generally, particularly in the federal courts that would decide cases that would be brought in the future under any version of ENDA that may be enacted.

In support, Lambda offers a broader critique of recent federal civil rights precedents, highlighting the ways that Republican-appointed federal judges have read race, gender, disability, age and other workplace protections narrowly.  The point?

What concerns us is that, in employment discrimination cases brought under a version of ENDA that might be enacted in the future, a similarly overly restrictive view of that law’s scope might be adopted by at least some courts if that version of ENDA has language prohibiting discrimination based on sexual orientation but not gender identity and expression.

So it's better to go forward with no protection out of concern some federal judges somewhere might interpret ENDA narrowly.  Does Lambda Legal really believe many federal courts will get away with relieving employers of responsibility for firing effeminate gay male or butch lesbian workers, when we'd have on the books not just Title VII and Price Waterhouse, but the compromise ENDA, too? 

It's just way too strained an argument, especially to justify canning the trans-free ENDA that is poised to pass the House, leaving completely vulnerable gay, lesbian and bisexual Americans who live in the 31 states that lack workplace protection based on "sexual orientation.

I have suggested before that Lambda Legal's analysis of the gay-specific ENDA looked suspiciously like it was crafted backward from the conclusion, and the new statement also practically admits as much.

As an organization whose mission includes advancing the rights of lesbians, gay men, bisexuals and transgender people (as well as those with HIV), Lambda Legal seeks to protect the interests of all those we exist to serve, and not to advance the goals of some of our clients and community members at the expense of the others we represent. That is a duty most lawyers do their best to meet whenever they simultaneously represent multiple clients.

That's a rather extraordinary admission, especially coming from lawyers. Lambda Legal is essentially admitting a "conflict of interest" between its GLB consituents on the one hand, and its T constituents on the other. Usually when lawyers realize there is a conflict of interest between their clients, they either advise one or the other client to seek other counsel, or they ask the client to "waive" the conflict and keep the same lawyers.

Of course, GLB Americans never got the chance to "waive" the conflict of interest between their own workplace rights and those of T Americans, and as Lambda goes to pains to say, any organization that represents the entire GLBT "community" faces the same conflict Lambda does.  What Lambda doesn't adequately explain is why that conflict ought to be resolved by catering to the interest of the Ts, even though they represent less than 1 percent of the combined GLBT population.

And that, my GLBT friends, is why I have said that not just ENDA but the whole movement has been effectively "trans-jacked," now that our leading organizations believe they cannot work for the incremental progress of the GLBs, unless there is simultaneous progress for the Ts.

(*Here's the critical, big picture point -- for those of you skipping to the end*):

What's most remarkable to me about Lambda Legal's analysis is how these talented lawyers have apparently lost sight of the forest due to all that time spent down in the trees of employment discrimination and civil rights litigation. There's little doubt they're correct that encasing the Price Waterhouse ruling into law, in the form of a trans-inclusive ENDA, would improve protection at the margins for gay workers who don't fit gender stereotypes.

But whatever vulnerabilities remain for gay workers if the gay-specific ENDA is enacted into law would be overwhelmed in exponential fashion by the beneficial societal impact of having protection for gay workers written into federal law.  For the first time in American history, the full force of federal civil rights protection would be extended to gay, lesbian and bisexual workers. That sends an incredibly powerful message not just to employers, but to all Americans, that mistreatment of gays in every area of life is wrong.

In the American workplace, the vast majority of employers will take proactive steps to ensure they steer clear of infringing on ENDA, since litigation costs money for both sides.  That means taking extra-seriously the concerns of GLB workers. For all of that laundry list of reasons why employment discrimination cases never get brought or won, there are exponentially more employers who would respond to the compromise ENDA by working with their employees to create a better, gay-friendlier workplace. 

Of course not all employers will respond that way, but you need only look at the revolutionary impact of race, gender, age and disability discrimination laws to see the tidal wave effect even a compromise ENDA would achieve.  Weighing Lambda Legal's exaggerated vulnerabilites up against this enormous social impact, the question of whether to push the ENDA compromise is a no-brainer for all who haven't been conflicted out of looking at the question objectively.

For a complete news summary on ENDA, click or bookmark: gaynewswatch.com/enda

For a complete news summary on transgender rights, click or bookmark: gaynewswatch.com/transgender

For a complete news summary on gay rights, click or bookmark: gaynewswatch.com/legalcivilrights