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    October 19, 2007

    Lambda Legal's political response

    Posted by: Chris

    22_07_loving_ann_24 (Lambda Legal's Jon Davidson, pictured with Congresswoman Tammy Baldwin. Photo courtesy Bay Area Reporter)

    I would like to thank Jon Davidson, the Legal Director of Lambda Legal, for taking the time to respond to my post about his organization's claim that a trans-free Employment Non-Discrimination Act will not protect gay workers well either. 

    Lambda Legal is almost alone among the leading national gay groups in engaging in dialogue with those of us who favor the ENDA compromise offered by Barney Frank, and they deserve great credit for doing so. One would hope that any group claiming to represent GLBT interests would commit to dialogue with their constituents, but it remains a relative rarity. (Another notable exception is Immigration Equality, which unlike the Human Rights Campaign and almost every other national GLBT group, allows comments on its official blog.)

    Jon posted his response in a comment to that post, but I'd like to re-publish it here and offer my own thoughts. Here's what Jon wrote:

    Given that Congressman Frank has stated that he does not expect the Senate even to consider any version of ENDA this year and, that even if the Senate did and passed such a bill, he doubts President Bush would sign it into law -- the real question before us all is what is the best way to move forward toward the next time Congress will consider such legislation. We believe that that way is not in the politics of division -- pitting lesbians, gay men, and bisexuals against transgender people, as some have sought to do.

    There would be a conflict of interest in doing that, just like there would be if a law sought to protect lesbians but not gay men. But standing up for transgender people does not harm lesbians, gay men and bisexuals -- and therefore creates no conflict -- because (as Congressman Frank himself admits) no bill is being prevented from becoming law this year by doing so. Instead of continuing to fight one another, we all need to work for passage by the next Congress of the strongest bill we can get.

    We believe that a bill that prohibits discriminaton against transgender people and that also best protects lesbians, gay men, and bisexuals by not only barring sexual orientation discrimination but also codifying Price Waterhouse and putting into statutory language a ban on discriminating against those perceived not to conform to sexual stereotypes is the best way of doing that. That is why we are supporting Congressmember Tammy Baldwin's proposed amendment to H.R. 3685, being considered on the House floor next week.

    Nothing you or other critics have said belies that a law banning both discrimination based on gender identity and expression and discrimination based on sexual orientation is a stronger law than one that only bans sexual orientation discrimination. The premise that the interests of transgender people need to be sacrificed now to get a "gay rights only" bill later has not been shown.

    If, as hoped, we have a more LGBT-friendly Congress and administration after the next election, we think we will be able to get a law passed that protects transgender people and better protects gay people, if we hold together, put the necessary resources into working for it, and not act like this is a zero sum game.  -- Jon W. Davidson, Legal Director, Lambda Legal

    It's interesting that this response is mostly political, rather than legal, and relies entirely on alleged admissions by Barney Frank about the prospects of the gay-specific ENDA.  Barney is by no means the only prognosticator of such things, and the Washington Post (itself known to be rather informed) reported just yesterday that,  "As it now stands, the more limited bill is expected to narrowly clear the House next week, at which point the Senate will likely move forward."

    There's also no guarantee of a Bush veto.  He has threatened to veto the (trans-inclusive) hate crime law, and even on that measure conservatives are very worried.  There's been no veto threat against ENDA, and the president's anti-gay rhetoric to date has revolved almost entirely around the marriage issue.  My own bet is that he would not veto either hate crimes or ENDA.

    What's more, whether ENDA gets a vote in the Senate depends on the lobbying efforts of our activist groups. If the "United ENDA" groups would spend half the time lobbying Congress for gay rights as they do lobbying for transgender rights, they could pressure Senate leaders to bring ENDA up for a vote.

    The real reason the fight over trans-inclusion is so severe in the House is that trans activists and their allies know that there is no chance the Senate will agree to "gender identity" as a protected category in ENDA. So their only shot is to get it through the House and then hope House and Senate leaders agree to include it in the final version that goes back for a final vote.

    Jon is correct that ENDA would be a "stronger law" if it codifies the Price Waterhouse decision; there's no question about that. But he did not respond to my central point: that the historic effect of writing gay rights protections into federal civil rights law, both in the workplace and symbolically throughout U.S. society, is far more profound than the marginal benefit that would come in protecting ENDA against the potential of being interpreted too narrowly by some federal courts. 

    And, as I explained in detail, that "potential" is exaggerated by Lambda, given that Price Waterhouse is a long-standing Supreme Court precedent and ENDA would actually close (not open) the loophole that has plagued gender non-conforming gay plaintiffs who have sued under Title VII.

    Finally, I can't help being struck by Jon's almost Orwellian suggestion that, "We believe that that way is not in the politics of division -- pitting lesbians, gay men, and bisexuals against transgender people, as some have sought to do." Just who is practicing "the politics of division" here? 

    Is it those of us who are fully in favor of transgender rights but advocate following in the long tradition of incremental progress in civil rights?  Or is it United ENDA and its backers, including Lambda Legal, who are saying to GLB Americans that their basic workplace protections, which they sought for 30 years, must now wait for another group, T Americans, who were just added to ENDA for the first time six months ago?

    No one forced these glbT groups into a trans-or-bust strategy.  Some of us have been warning for years now that when this strategy actually came into play, it would rip wide open the tensions within our community. The politics of division are on the other side of this debate, and they always have been.



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