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  • « Down 'n' dirty with the GOP | Main | More transg-ENDA disconnect »

    October 06, 2007

    Poking holes in Lambda's ENDA claim

    Posted by: Chris

    I haven't always agreed with gay law professor and columnist Dale Carpenter, but he does a fantastic job of in this post for the Volokh Conspiracy piercing the case made by Lambda Legal that keeping gender identity in the Employment Non-Discrimination Act is necessary not just to protect the Ts, but to protect gender non-conforming GLBs as well.

    Carpenter_2 His analysis confirms what I have written before about how it's very unlikely that passage of a gay-specific ENDA would allow employers to argue that gay-specific ENDA doesn't protect a gay man was fired for being effeminate, rather than for being gay.

    That's because, as I've written before (here and here), the Supreme Court has already made clear that gender stereotyping is prohibited by Title VII. Dale puts it this way:

    As a factual matter, it would be passing strange to see such a case, since almost every instance of discrimination for gender nonconformity is accompanied by direct and explicit evidence of anti-gay discrimination (e.g., calling an effeminate man a "fag"). It would not be hard for a court or jury, and certainly would not be hard for Lambda's skilled lawyers, to pierce the pretext that the employer was not really engaged in anti-gay discrimination and thus violating the "weak" version of ENDA.

    That's especially the case after that U.S. Supreme Court decision in Price Waterhouse v. Hopkins, which prohibited gender stereotyping.  That case has been used successfully by transsexuals claiming job discrimination.  Gays, on the other hand, have been specifically written out of Title VII.  Carpenter again:

    [After the Price Waterhouse decision,] if a heterosexual plaintiff claims gender stereotyping, she has a claim. But if an “avowed homosexual” plaintiff claims gender stereotyping, courts get very suspicious that it’s an attempt to sneak sexual orientation protection into Title VII under the guise of interpretation.

    If a gay-specific ENDA passes, then courts will no longer after to worry whether a case alleging gender non-conformity is "blurring" into a gay case. Both types of employer conduct would be prohibited under federal law: gender non-conformity under Title VII and Price Waterhouse; "sexual orientation" by ENDA.  End of concern.

    Jon_davidson I had an interesting and thought-provoking conversation yesterday with Jon Davidson, the legal director of Lambda Legal, about just these issues.  As I've written before, I give Lambda a lot of credit for adding substance to the very emotional, high-volume debate about this ENDA strategy.

    But I would agree with Dale Carpenter's conclusion that Lambda Legal appears in this instance to have started with its political, moral, etc. conclusion to fight for trans inclusion, and worked backward as advocates for the best arguments to get GLBs to go along. 

    Or, as Barney Frank put it so memorably, "The problem [with Lambda Legal] is they are great at trying to write a bill to make it stronger, but they’re rarely are helpful to us in getting the votes to get it through."

    On this point, Davidson argues that ENDA has no chance of passage, with or without transgender protections, because the votes aren't there in the Senate to overcome a filibuster, much less President Bush's veto.  I don't accept any of those assumptions, about the Senate or the president if the bill is gay-specific, but they are dead-on correct if transgender rights are included.

    Even if Davidson is correct and this argument is mostly symbolic because ENDA's real chance of passage is after the next election, it is still of enormous importance.  If the "trans or bust" side succeeds in forcing Barney to stick to a failed ENDA strategy this time around, it will be that much more difficult the next time.



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    1. Darlie on Oct 6, 2007 7:24:04 PM:

      "On this point, Davidson argues that ENDA has no chance of passage, with or without transgender protections, because the votes aren't there in the Senate to overcome a filibuster, much less President Bush's veto."

      So you don't accept i ? Lol! Of course not , but you do accept what he says about gays being covered under Title VII. Oh yeah it works great doesn't it.

      "10th Circuit Denies Title VII Protection to Transsexual Plaintiff

      In Etsitty v. Utah Transit Authority, 2007 WL 2774160 (10th Cir. Sept. 20, 2007), the Tenth Circuit ruled that a transsexual is not protected by Title VII as a class and that this particular plaintiff could not establish "Price Waterhouse" gender non-conformity discrimination.

      Krystal Etsitty worked for the Utah Transit Authority as a bus driver when she began to transition from male to female. She could not afford genital reassignment surgery, so she retained her male genitalia while she began to dress in a more feminine manner and started using women's restrooms. Etsitty's trouble stems from her use of women's restrooms along her bus routes, which ultimately led to termination of her employment.Her supervisors claimed that she was fired due to their concern about the possibility of public concern and potential liability stemming from Etsitty's use of women's restrooms while retaining male genitalia."

    1. KipEsquire on Oct 6, 2007 9:08:53 PM:

      It would not be hard for a court or jury, and certainly would not be hard for Lambda's skilled lawyers, to pierce the pretext that the employer was not really engaged in anti-gay discrimination and thus violating the "weak" version of ENDA.

      That ignores the pesky problem of being fired, then having to sue, and win, in the first place.

      Being wronged, suing and being vindicated is NOT the same as never being wronged in the first place.

      So to the extent that a clearer protection in a statute serves as a deterrent to wrongful behavior (i.e., keeps a single "Lambda's skilled lawyer" from having to be involved at all in a lawsuit that would not happen under a different statute), Carpenter's arguing is invalid.

    1. Darlie on Oct 7, 2007 5:35:04 AM:

      And to finish this just delicious discussion with Chris and the SELFISH TG's I give you NOW, the National Organization for Women. It wasn't just the evil , world destroying TG's or the 100 LGBT organizations Chris , it was a whole hell of a lot of womens rights organizations. Seems they just wont take your male word that our gender is protected. Ahhh, the perks of membership.

      "NOW Urges House to Maintain Broad Protections Against Employment Discrimination

      October 2, 2007, Update: Late Monday night, Speaker Pelosi's office confirmed that there will be a delay in the process of marking up the watered-down version of the Employment Non-Discrimination Act (ENDA) legislation. This delay is in response to an immediate and compelling series of actions by LGBT, civil, and women's rights organizations. Leaders and members of many groups sent emails, made calls, and met with legislative staff during the past several days expressing disappointment and frustration with the ENDA legislation under consideration. The revised version, the target of the calls from the community, leaves out protections for transgender people and provides blanket exceptions for hospitals or universities run by faith-based groups to fire or refuse to hire people they "think" are gay or lesbian. The protections of the initial legislation have essentially been lost. NOW and other organizations will be working with leaders in Congress to put the initial inclusive bill to a vote and see which of those who represent us support workplace fairness for all.

      October 1, 2007

      Last week, just before it was slated to go to the House floor for a vote, the civil rights bill known as the Employment Non-Discrimination Act (ENDA) was stripped of protections for the transgender community.

      "NOW opposes this weakened version and encourages sponsors of the original ENDA to ask House leaders to withdraw the weaker bill and support the more inclusive bill, H.R. 2015," said Kim Gandy, President of NOW.

      "Our members, through resolutions at our national conferences, have determined that any civil rights bill must include protections against discrimination based on gender identity. We cannot support a bill that does not include a group of people who need the protection addressed by the more inclusive bill," added Olga Vives, NOW's Executive Vice President.

      On Tuesday, October 2, the House Education and Labor committee will be discussing ENDA, which was originally introduced to prohibit employers from using a person's real or perceived sexual orientation or gender identity as a factor in employment decisions, such as hiring, firing or promotion.

      Due to an unfortunate turn of events, the committee will be discussing a version of the bill that limits its protections solely to discrimination based on sexual orientation. Democratic leaders have decided that the original (transgender-inclusive) version, H.R. 2015, is unlikely to pass, so they have proposed a watered down version, H.R. 3685, which removes the language about gender identity.

      "NOW joins with hundreds of civil, women's, and human rights organizations in calling on Speaker Pelosi to bring the original ENDA, H.R. 2015, to the House floor for a vote, and present a bill that recognizes all the various forms of potential workplace discrimination. The recently passed hate crimes bill supported by a bipartisan group of House and Senate members - includes gender identity, and ENDA should too," stated Vives as she summed up NOW's opposition to the gutted bill. "

    1. Amicus on Oct 7, 2007 2:45:05 PM:

      Well, these are the important takeaways from DC's article:

      1. "One thing is clear: federal law does not currently protect transsexuals (as opposed to manly women or effeminate men) from discrimination in private employment based on their transsexuality. ENDA is probably the best chance to protect transsexuals from private employment discrimination nationwide in the near future. But..."

      2. Marty's reply, concurring with Lamda, here: "...it might well be read to permit employers to discriminate on the basis of sex stereotyping, thus effectively overruling that aspect of Price Waterhouse. How else would one explain the deletion?"

      1. is worth making maximal effort to achieve. This degree of effort cannot be achieved while some people are ... being "deadweight"?

      2. is a risk worth considering carefully, as much as all these other speculated risks.

      As for "rolling eyes" on the road to freedom, perhaps try going to the lady's room exclusively for a month or so.

      When it starts to drive you absolutely nuts, you might have a sense for how some transsexuals feel, reportedly.

      I cannot see that justice was served in the Utah bus driver case, based on the facts just as they show on the blog, can you?

    1. Amicus on Oct 7, 2007 2:58:20 PM:

      Also from the same comments section:

      3. "I have known gay men to object to the hiring of other gay men because of the "gay" behavior of the man in question."

      ... hum, would that have been gay closet case, Merv Griffin, I wonder?

      It is Dale's analysis that a Title VII claim would be weakened by GENDA in such a circumstance, correct? Or, is it that a Title VII claim by a gay man or lesbian would be strengthened by plain ENDA?

    1. Andoni on Oct 7, 2007 5:30:23 PM:

      The problem I have with Lambda's current analysis of ENDA without trans inclusion is that I am just hearing this after 13 years of the previous ENDA which did not have trans inclusion. If ENDA without a trans inclusion is deficient and does not sufficiently protect gays against discrimination, why didn't we hear about this problem, say 10 years ago? Is it reallytrue or is it simply a convenient argument for the moment? I mean, didn't Lambda read the prior ENDA's (without trans inclusion) and put their stamp of approval on it. Something is not right here.

    1. North Dallas Thirty on Oct 8, 2007 1:05:38 PM:

      "So you don't accept i ? Lol! Of course not , but you do accept what he says about gays being covered under Title VII. Oh yeah it works great doesn't it."

      And then, Darlie, you cite a transsexual case.

      Furthermore, you cite a transsexual case that does not involve sex stereotyping, but a person who is demanding "the right" to use the PUBLIC bathroom of whatever gender they please.

      First, gays are not transsexual.

      Second, using a male or female designated restroom is not sex stereotyping.

      And finally, given that NOW supports discrimination on the basis of gender when it benefits females exclusively, why should we care? Let them issue a resolution demanding that gender be removed as a consideration in the awarding of public contracts or of jobs, and then they'll have a point.

    1. Jillian Weiss on Oct 10, 2007 6:14:48 AM:

      Mr. Carpenter's analysis is wrong on the facts and wrong on the law. See Jennifer Levi's trenchant comments at the original post, and my post at Transgender Workplace Diversity Blog, http://transworkplace.blogspot.com

      Jillian T. Weiss, J.D., Ph.D.
      Associate Professor of Law and Society
      Ramapo College

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