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    December 14, 2008

    Trans-inclusive ENDA, past and future

    Posted by: Chris

    This noteworthy comment from a reader came in response to my post on the Human Rights Campaign's new board leadership, in which I cheered passage of "ENDA (trans or not)":

    With regard to "ENDA (trans or not)," it's important to remember that the "gender identity" piece of an inclusive ENDA does not just protect trans people. In fact, trans people are only a small segment of the GLBT (and straight) population that would benefit from "gender identity" protections. The inclusion of "gender identity" in ENDA would protect gay, lesbian, and straight people who express their gender in non-traditional or non-standard ways.

    Many gay and lesbian people (and some straight people) are discriminated against not because of their sexual orientation (in many cases, it's not known in their workplace or in their job interview), but because of their gender presentation or gender expression. They are "presumed" to be gay or lesbian because of the way they are presenting their gender (in a way that does not reflect a "standard" male or female presentation). Straight people are also discriminated against because of this. They are also "presumed" to be gay or lesbian when they are not reflecting a standard masculine or feminine gender presentation.

    Even trans people will mistakenly say that HRC dropped its support of the "trans" portion of a national ENDA. It's not the "trans" portion. Discrimination based on gender presentation (how you present yourself as a man or as a woman), which translates to "gender identity," affects many people, only some of whom are trans.

    Great blog, by the way.

    Thanks for the kind words but I'm afraid we disagree on the legal impact of including "sexual orientation" and "gender identity" in the Employment Non-Discrimination Act. This is a subject much debated on this blog during the ENDA debacle earlier this year.

    HrcdivisionIn my view, you've got it backwards, actually. Even if "gender identity" is omitted as a compromise to pass ENDA, including "actual or perceived sexual orientation" will nonetheless extend coverage to the gay and straight gender nonconformists you describe. This is because, as you point out, the workplace bigots think of them as "fags" or "dykes." It's irrelevant as a legal matter whether the victim is actually gay because the law prohibits discrimination based on actual or perceived sexual orientation.

    I would add that many courts have concluded that transgender men and women, as a group, are already protected under Title VII, as the trans plaintiff's recent victory against the Library of Congress demonstrates. 



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    1. Matt Kailey on Dec 14, 2008 10:40:38 PM:

      Hey, thanks for acknowledging my comment, and I don't think we completely disagree. I do agree with you on what you said about "actual or perceived sexual orientation." I just think that there's so many permutations that "gender identity" covers that "sexual orientation" does not--for GLBT and straight people--that "gender identity" is really an essential component of any laws or policies established to protect gay men and lesbians, as well as, of course, trans people. I don't think it's a throwaway component. That's just my opinion. I have a lot of them. I also understand the other side, and I even understand (although do not agree with) HRC's position in the matter, because I spent a long time discussing it with Solmonese. What he said made sense from his perspective--I just didn't fully agree with it. But anyway, this isn't even what the original discussion was about, so again, I appreciate you acknowledging the comment. Take care and keep up the good and interesting work.

    1. Chris on Dec 15, 2008 1:21:29 AM:

      Sure thing, Matt, but I highlighted your comment because it's such a common misconception, at least in my view. And your reply disappoints, I'm afraid.

      Please offer up these "many permutations" in which "gender identity" is a necessary category. I've never said it's a "throwaway component" -- bit of a straw man there. At the same time, it's fair to set the bar pretty high for demanding the vast majority of GLBT folks wait indefinitely for protection until the votes are there for gender identity as well.

      I'm throwing down the gauntlet then, Matt. Can you meet your burden? We all agree with including "gender identity" when the votes are there, so don't use that straw man either. The question is: Why is "gender identity" so important that "sexual orientation" should remain uncovered until an all-inclusive bill can be enacted.

    1. Hawyer on Dec 15, 2008 11:11:44 AM:

      And we wonder why we can't break out of a huddle without getting injured. As to the GLBT thing:

      1. I have never met a self-identified bisexual
      2. My exposure to trannies is limited to bad drag shows

      While no one would purposefully try to enact discrimination against these two hyper-minorities - for the life of me I cannot imagine wasting any valuable legislative capital on the issue.

      Just call me a REALIST.

    1. Matt Kailey on Dec 16, 2008 9:56:27 PM:

      In response to your comment in response to my comment: I didn't mean to imply that YOU said it was a throwaway component. What I meant (and obviously wasn't clear on) is that I don't think it's a throwaway component. I live in Colorado, which has an inclusive ENDA, so it is not impossible to pass. It simply takes some education in order to get it done. If Colorado can do it, I think it can be done on a national level. We don't have anything special here that does not exist elsewhere.

      The permutations that I speak of involve people who identify as "queer," "genderqueer," "androgynous" (along with many other self-identifications that I couldn't even begin to name), as well as gay, lesbian, bisexual, trans, and straight, whose sexual orientation doesn't necessarily figure into the mix or isn't the whole story--people who simply don't fit into "standard" male and female gender presentations. I'm not sure that these people are covered by the "sexual orientation" designation alone. Can a man wear eyeliner to work? Can he wear his hair a certain way? Does he have to be confined to certain clothing that is considered "male," and who makes those decisions? Regardless of his sexual orientation or perceived sexual orientation, will the "sexual orientation" language protect him? I don't know. There was a woman fired in Las Vegas for NOT wearing makeup to work (I don't know the outcome of that--whether or not she got her job back). I have no idea how she identified, and it doesn't matter--she didn't fit the "standard" that they wanted for their female employees.

      I understand your position on having to wait, but I don't think that waiting necessarily has to be the alternative, and I think we've demonstrated that in Colorado. Gay and lesbian people have been punished for so long for not conforming (although many do) to the gender categories set up for us by the culture, and I'm not sure that "sexual orientation" alone will protect them, especially when they are not out or open about their sexual orientation. But even if they are, "sexual orientation" does not cover gender presentation.

      I know that the majority (I wouldn't say all) of gay and lesbian people--or at least gay and lesbian activists--agree that "gender identity" should be added when it can get the votes. And a decent percentage feel that there should be no votes until it gets added, because they're not so sure that the people will come back for those "left behind." My position is that we CAN get the votes and that we WILL get the votes if we can show how larger populations can be affected.

      I think the gender identity piece is much more than a "trans" piece (although if it were a trans piece alone, I would still argue for its inclusion). And I think that we will start to see that it is more if a non-inclusive ENDA is passed. I think we'll start to see the gaps, and it might be difficult to come back with something else at that time. Who knows who will be in power when that happens and how they will respond, especially if they feel that they've already done what was initally asked of them.

      It's an opinion, and one that will probably be proven right or wrong, because I think a non-inclusive ENDA probably WILL pass. And I will hold no grudges when it does, and I'll be happy if I'm wrong. I probably haven't met the burden of proof that you have requested. I think we just have a difference of opinion.

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