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    February 19, 2010

    Déjà ENDA all over again

    Posted by: Chris

    Barney frank enda transgender hrc
    Just when we thought we were out, they pull us back in!

    Lost in the debate over President Obama's revived push to repeal Don't Ask Don't Tell is the ugly stepchild of gay rights legislation: the Employment Non-Discrimination Act. Once the darling of the movement, ENDA was to be the vehicle through which gay civil rights won its first victory into federal law.

    As the name suggests, ENDA covers only the workplace and that limited scope is intentional; its leading advocates during the Elizabeth Birch years at the Human Rights Campaign argued that a more limited gay rights measure on an issue unrelated to marriage had the best chance of passage, thereby creating momentum for the rest of the gay agenda.

    It almost worked. ENDA came within a single vote of passing the U.S. Senate in 1995, two years after Don't Ask Don't Tell and one year before the Defense of Marriage Act. It has resurfaced from time to time in subsequent years, only to be slapped down by Republicans when they were in the majority of one house of Congress or the other.

    Then in 2007, Barney Frank reintroduced ENDA to a Democratic-controlled Congress, and for the first time -- the first time! -- gender identity was included along with sexual orientation as a protected category. After all those years of gay-only ENDA waiting its turn, the inclusion of trans protections effectively killed ENDA's chances of passage now that the Dems finally controlled Congress again.

    When it became clear that the votes weren't there for trans-ENDA, Frank and Tammy Baldwin and HRC agreed to a compromise that once again limited ENDA to its original form protecting sexual orientation-based discrimination. Trans activists and the progressive blogosphere furiously erupted in response, labeling anyone who disagreed with this tactic as a cold-blooded traitor to the movement.

    The compromise ENDA overwhelmingly passed the House, but the maelstrom manufactured in activists circles effectively killed its chances in the Senate, where many of those who would have otherwise backed workplace protections for tens of millions of lesbian, gay and bisexual workers balking at voting for a bill that would only earn the ire of many of the loudest LGBT voices.

    Fast forward two years, the election of a Democratic president who supports a trans-inclusive ENDA and a Congress with historic Democratic majorities. ENDA has once again gone nowhere, and now we know why:

    Frank said the transgender protections were among the sticking points in negotiations [among House lawmakers] on how to proceed [on ENDA].

    “There has always been a problem with the question of people who are transgender in situations where people are totally or partially unclothed,” he said.

    While expecting movement in the House, Frank was less certain about ENDA’s prospects in the Senate.

    “I’m less sure about that,” he said. “I think people have often underestimated some of the difficulties.”

    This time around, Barney and HRC have been saying that they're unwilling to compromise on transgender inclusion in ENDA, but it's too soon to tell if they'll stick to those guns. In the hopes that Congress will move forward on protections for gay, lesbian bisexual and transgender Americans, I'll hold off recounting the long and compelling list of reasons why our leaders should be prepared to repeat the compromise of 2008 if it's the only way to secure passage before the looming midterm elections.



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    1. Phil Attey on Feb 19, 2010 8:09:43 AM:

      It can be massaged and spun many ways, but at our core, we as gay and lesbian people, have no moral authority in asking non-gay people to support our efforts end to discrimination on the basis of sexual orientation, if we're not willing to stand up for the transgender community in their struggle to end discrimination on the basis of gender identity and expression.

      If in the final hours we end up faced with an ultimatum, I believe we should leave it up to the Transgender community to make the call to back out of ENDA in support for us, but to cut them from the bill against their will is so rude on so many levels that it will ultimately come back to haunt us.

    1. Chris on Feb 19, 2010 10:49:55 AM:

      At this point, Phil, I know so many gay folks who long ago wrote off the views of the trans community because they were so rude and cold as to hold hostage the rights of millions of gay men and lesbians until such time as they could win their equality is well.

      Consult Miss Manners if you must, but I am sure in the Civil Rights Book of Etiquette it... See More is nowhere written than until civil rights can be won for everyone, we may not enact laws to protect anyone. That is NOT what MLK meant when he said an injustice toward any is an injustice toward all. He meant that it is the responsibility of each of us to fight for the civil rights of all of us, and it would be rude and cold for GLB folk to quit fighting for T rights if we win ours.

      But just as it wasn't rude or cold that the Civil Rights Act of 1964 didn't include sexual orientation , it is not rude or cold to win workplace protections for millions of GLB workers if the votes aren't there yet for T rights.

      What WOULD be rude and cold would be for the workplace rights of millions of us to be held hostage to a battle over T rights that has only just recently even been engaged.

    1. Lucrece on Feb 19, 2010 11:27:16 AM:

      I am wanting it to fail, just because it should be the civil rights code that should be revisited and amended.

      If anything, with the incidents of gay people getting booted from establishments and denied housing for being gay, we need not only employment protections.

      But methinks the HRC and progressives try to dance around this because they know that their straight black and Latino supposed allies in the left will raise Hell about it and will expose the Democratic party as not the big, gay-friendly party it portrays itself as.

      They had no problem cutting gays out of immigration reform because the "conversation has not been had with the community" (i.e., Catholic Church bullied them into dropping us cold).

      But that's how it is, Barney will keep spinning it as gays not lobbying hard enough. Bullshit. There's so much 4% of the population can do to hold sway over politicians. The fault falls squarely on Congress Democrats, and I can only be mortified by my suspicion that regardless of betrayal and prolonged baiting, gay orgs in the end will keep feeding Democrats more out of partisan loyalty than loyalty to the best interests of the community it's supposed to serve.

    1. Strict Scrutiny on Feb 20, 2010 12:07:53 AM:


      I understand your view, but frankly it strikes me as somewhat cold. We have been the LGBT community for quite some time now and I don't think our interests are served by severing the "T" when its politically expedient for the LGBs.

      The transgender community is far more vulnerable to employment discrimination than garden variety gays and lesbians and they need the protection far more than we do.

      Furthermore, passing this sort of bill could needlessly embitter the transgender community. And for what? I remember how insanely pissed off I was when I learned that the African-American community voted in droves for Prop 8. I could not understand how a vulnerable and historically oppressed minority group could vote to discriminate against an even less powerful minority group. So much for solidarity. Why would I want to rankle anyone in the "T" community by doing a something similar?

      From a political point of view, I understand your desire to get something, even if its not the ideal or best thing. But I can't agree with that in this context -- it could be another decade or 2 before an LGB ENDA is amended to add T, and that is way too long.

    1. dimitri on Feb 20, 2010 11:36:43 PM:

      The real problem here is believing all of the hype associated with ENDA. As someone who has lived and worked in a country with employment discrimination legislation (Canada), I can tell you right now that it's not all that its cracked up to be. If some one wants to fire you (for whatever reason), they will find a way to fire you. And since trans firings would be the most blatant form of workplace discrimination, I say keep the LGBT coalition intact.

      So if ENDA is the ugly stepchild of gay rights legislation, where does that leave the UAFA?

    1. Chris on Feb 23, 2010 3:07:00 AM:

      @Strict Scrutiny: A couple of important clarifications here. First of all, it's apples and oranges to compare blacks opposing and voting against gay marriage, on the one hand, and gays supporting trans inclusion of ENDA but accepting a compromise version that does not cover gender identity if the votes aren't there for a broader bill.

      Second, how is it "needlessly" pissing off T's when the "need" is to get ENDA enacted? And why is pissing them off more important than pissing off the millions of LGB Americans who will go unprotected by ENDA until Congress is there on transgender issues?

      If it really will take another decade or two (!) for Congress to enact T protections, then that's the strongest argument yet for getting LGB protection now, rather than missing this opportunity because we allow the perfect to be the enemy of the good.

      @dimitri: The point you make cuts the other way. You may well be right about T discrimination being most blatant, but in the vast majority of cases it's because a trans woman or cross-dresser is deemed a "faggot" or a trans man is considered a "dyke." Those instances would be covered by LGB ENDA. Moreover, the existing Title VII prohibition on sex discrimination has been considered by many courts to cover gender identity discrimination as well, since it's based on the type of gender stereotyping Title VII was enacted to stop. No court has ruled that LGB discrimination is covered by Title VII.

    1. cheap ugg boots on Nov 22, 2010 2:31:47 AM:

      But Maggie - Across an array of polls, gay marriage has twice the support today that interracial marriage had in 1968, the year after Loving v. Virginia made it legal.

    1. cheap ugg boots on Nov 29, 2010 12:58:36 AM:

      All I can do is laugh. If these dingbats really think they will be accepted and respected by the crowd at CPAC, then they are hopelessly out of touch.

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