October 09, 2007

Transg-ENDA and passing privilege

Posted by: Chris

Much of the debate over whether to move forward with compromise workplace protection based on sexual orientation and not gender identity has seemed to pit the GLBs versus the Ts.

Either transgender Americans are protected by including “gender identity” as a protected category in the Employment Non-Discrimination Act, or some 150 GLBT groups have vowed to oppose employment protection based solely on “sexual orientation.”

In reality, that Sophie’s Choice hasn’t really set the GLBs against the Ts. It has instead split the GLBs wide open. And there is an undercurrent to the debate that hasn’t been dealt with out in the open; a long-simmering tension between “straight-acting” gay men and lesbians and those GLBs who are gender non-conforming.

Just the term “straight-acting” raises the hackles of many gays, and for understandable reason. Call it what you will, but there has always been an uneasy coexistence among masculine and effeminate gay men; and to a lesser extent, between “lipstick lesbians” and their “butch” counterparts.

Spend five minutes in a gay bar, online chatroom, or even perusing personal ads, and the cleavage couldn’t be clearer.

Transgender folks have a better name for it; they call it “passing privilege.” Some gay men and lesbians can “pass” as heterosexual, choosing when and with whom to come out.  Many of these “straight-acting” gays, and I count myself in their number although I completely reject the term, are often enthusiastically embraced by heterosexuals because we seem “normal” except for being gay.

For many femme gay guys and more masculine lesbians, there is less choice about whether people know because “passing” isn’t really an option, or requires living in another type of closet that they refuse to accept. Acceptance can be a much tougher road because they must deal not only with homosexuality as an issue, but the discomfort many have with gender non-conformity, or with non-conformity in general.

That’s why it’s called passing “privilege.” And to hear those who oppose a gay-only ENDA compromise, a central purpose of the legislation even before “gender identity” was added has always been to protect gender non-conformity in the workplace, rather than simply prevent sexual orientation from being a basis for firings or demotions.

They point out that to your average bigot, a male coworker can be a “faggot” based entirely on mannerism, without any intel about his actual sexual orientation. The same applies to butch women, of course.

You can hear that refrain in the more passionate commentary from those who object to removing transgender protection from ENDA. We are all gender non-conformists, they say, because men are supposed to be attracted to women, and vice versa. If you defy those roles, then you also defy the expectation of your gender.

Lambda Legal has even converted that emotional connection into a legal one, arguing that without “gender identity” in ENDA, employers will have a huge loophole to claim a worker was fired or demoted because he was effeminate or she was masculine – not because he or she is gay.

The good news about the “gay-only” ENDA compromise, if you’re willing to hear it, is that there is no such loophole. Perhaps those of us with “passing privilege” can see that more clearly because we aren’t bound up in some emotional way with trans folk as fellow gender transgressors. (This is a sentiment, by the way, shared by most transsexuals and cross-dressers, many of whom adamantly identify as heterosexual and are actually offended by the suggestion that they are part of some “LGBT community.”)

Like many other GLBs, I reject completely the idea that being gay makes me a gender non-conformist. For us, the hardest part about accepting our sexual orientation can be shedding the misconception that being gay makes us less of a man or a woman.

Many transsexuals and cross-dressers, on the other hand, have been diagnosed with Gender Identity Disorder, a mental illness that involves a complete disconnect between their biological and intellectual genders. Other trans folk reject the whole notion of gender and express themselves in a way that defies the male-female dichotomy.

That is certainly their right, but having integrated my sexual orientation into my personality, I don’t feel one bit of inconsistency between being gay and being a man. I know many lesbians who feel the same way about their gender. For us, the entire notion of sexual orientation revolves around maintaining the male-female distinction. How else can I have same-sex attraction, unless I am a man attracted to other men?

I can already hear the accusations to the contrary, but none of this means those of us with “passing privilege” don’t oppose transphobia. I strongly favor employment protection for the Ts, just not if it means waiting even more years to protect GLB workers.

But maybe because I don’t self-identify as a gender transgressor, I can see the very clear legal and practical difference between sexual orientation and gender identity.

I can see clearly, for example, that gender non-conforming workers are already protected by Title VII, which the Supreme Court ruled way back in 1989 prohibits employers from relying on gender stereotypes. The real “loophole” since then has been for GLB workers, not the Ts, since courts have uniformly refused to apply that Supreme Court precedent when the gender non-conforming employee is gay.

Barney’s compromise “gay-only” ENDA, imperfect as it is, would close that loophole once and for all, protecting workers based on their “actual or perceived” sexual orientation. The effeminate male demeaned in the factory as a “faggot” could sue, even if his bigoted boss has no idea whether he’s actually gay.

A “gay-only” ENDA should not divide the GLBs, at least not on the question of whether it would protect all of us, “passing privilege” or otherwise. That’s why Lambda Legal lobbied for a gay-only ENDA for more than a decade, and that’s why there’s not a single reported case of a GLB worker losing a discrimination suit under a state or local “gay-only” discrimination law because he or she was gender non-conforming.

Gay Americans have fought for basic federal civil rights protections for more than 30 years, and have lobbied for a “gay-only” ENDA for more than a decade. The unfortunate political reality is that only a “gay-only” ENDA has a chance of passing right now, and it is this “trans or bust” strategy adopted by the gender non-conforming GLBs who run our civil rights groups that is responsible for reopening old, old wounds.

Rallying around a Barney’s ENDA compromise offers an opportunity to reunite us and pass historic legislation.

Tags: ENDA, transgender