Sunday, September 30, 2007

ENDA: The Sin of Omission

According to the Washington Blade, House Democratic leaders are strongly considering omitting anti-discrimination protections for transgender persons from the Employment Non-Discrimination Act, legislation that would ban employment discrimination based on sexual orientation and gender identity. The paper said this occurred after an internal Democratic head count last Wednesday indicated that, if the bill continued to include “gender identity,” it would not receive the votes necessary for passage. The Blade implied that a “sexual orientation” standalone bill would receive the necessary votes for passage.

The idea of deleting gender identity from ENDA, and creating a stand-alone gender identity bill, is an idea that completely undermines the fairness message of ENDA. There is a wonderful post by Nadine Smith at Bilerico on this issue. She gives historical examples of legislators that sought to exclude a controversial minority at the last moment, and how those bills went on to victory without exclusion. This is very instructive about the nature and function of remedial civil rights legislation, like ENDA.


A classic debate among legal scholars is the question of when law in a democracy should follow public sentiment, and when it should lead. In most cases, legislators enact laws because, using their political instincts, they believe the majority of their constituency wants it. If the majority don’t want it, they don’t vote for the law. It’s a simple calculus, and it’s the backbone of democracy. The most good for the most people. There are times, however, when this utilitarian creed serves a society poorly. Sometimes the majority is ignorant about a subject, and in need of an education. Sometimes a society is prejudiced, and needs to know it. Sometimes there is a small group of people who are suffering quietly, stifiling under the arrogant judgment of an intolerant majority, and in need of a higher authority to set it right. There are times when legislators must support a proposed law because it is the right thing to do, even though the majority is against it because of prejudice or ignorance or intolerance. The very act of taking this courageous stand propels the issue into national debate, and the legislation becomes the very instrument of the education needed to enact it.

The Employment Discrimination Act is such a bill. It seeks to give a remedy to people who cannot keep their jobs because of the prejudices of their employers against their sexual orientation or gender identity. This injustice is keenly felt by all those in the gay, lesbian, bisexual and transgender communities, but it is especially hard-hitting in the transgender community. The transgender unemployment statistics are much higher that the statistics in the general US population. The unemployment rate is about 8 times higher and the poverty rate is about 5 times higher. It should be no surprise that, of all the gay, lesbian, bisexual and transgender communities, the problem of employment discrimination is especially hard-hitting in the transgender community, because transgender identity is the least understood identity of the GLBT spectrum, and the most subject to prejudice. And for precisely this reason, gender identity is the category that most needs the protection of ENDA. So transgender people are both the most in need of protection and the most likely to be voted off the island. Unfortunately, there is a fair amount of prejudice against transgender people within the gay and lesbian community itself, as I have detailed in my article in the Journal of Bisexuality, entitled "GL vs. BT: The Archaeology of Biphobia and Transphobia Within the U.S. Gay and Lesbian Community."

“But isn’t it better,” the utilitarians ask, “to propose a law for some of the GLBT community that is assured of winning, rather than a law for all that is uncertain of passage? Why sacrifice the many for the few?” They suggest that we create an ENDA without gender identity, which, they say, will ensure its becoming the law of the land, and may create a climate favorable for the later passage of a separate bill to protect gender identity. But this suggestion has a gaping hole in its logic. President Bush is going to veto ENDA with or without gender identity. There is not going to be any ENDA this year or any year until President Bush no longer sits in the White House, as there are not enough votes to override a veto.

This exercise of putting ENDA to a vote is an academic exercise. The whole point of ENDA now is about ENDA the next time. Next time, when there is a Democrat in the White House, the legislation will be voted in without a veto. Next time, the people will have heard about the need for a law against employment discrimination, and will favor it in larger numbers. So there is no sacrifice of the many for the few if gender identity is retained now. Rather, the whole purpose of this legislation, and the vote, is to create a robust debate about discrimination, capitalism and the American Dream. ENDA is about high-minded principle, the idea that it is a fundamental U.S. value that all working people have a right to be judged by the quality of their work and not by completely unrelated factors. Here is the chance to educate the people and their representatives about our many gay, lesbian, bisexual and transgender citizens, and their sufferings under a regime of popular prejudice. There is an opportunity to teach those who are willing to be open that GLBT people are not the mentally-ill pedophiles, sexual perverts and prostitutes of media portrayal, but are mostly citizens like themselves who want an opportunity to participate in civilized society. The idea of leaving transgender people out of the bill and out of this education process not only leaves transgender citizens behind, but also creates the idea that transgender people are so contemptible that even gays and lesbians want nothing to do with them.

The notion that passage of a gender identity bill will follow passage of a sexual orientation bill is dishonest. Given the extreme prejudice against transgender people, and the small size of the community, no one can seriously believe that there will be sufficient political will to pass a gender identity bill in the future. The only hope of protection for transgender people is with the help of those millions of gay people. The example of New York State demonstrates how forlorn is the notion of passing a gender identity bill. In 2002, after a contentious debate, the New York State advocates for an ENDA-type bill deleted gender identity. They promised that, after victory, the GLB community would come and rescue the T community by passing a bill on gender identity. Unsurprisingly, after the bill was passed in New York State without gender identity, the gay community moved on to the marriage issue. There’s been no push for the gender identity bill by gay and lesbian constituents, the few organizations helping the bill to limp along are voices in the wilderness, and it’s gone nowhere. There is no relief in sight for the New York State gender identity bill.

“But if the bill is defeated,” say the utilitarians, “then it’s much harder to pass it the next time if it goes down in defeat the first time, because representatives will fear changing their votes, lest they be accused of ‘flip-flopping’.” But this is a flawed argument, because ENDA was defeated in a vote in 1996, and yet it is still viable. It has been introduced in various versions since 1974, and has never died completely. ENDA is not like a health insurance proposal, or a bill to revise the tax code, or a measure to create a new spending program. Its viability is based on the needs of millions of GLBT people in our society, and it is not going to dry up and go away because it gets voted down once or twice. Rather, it will create an opportunity for millions of Americans to become educated about gay, lesbian, bisexual AND transgender citizens, and the terrible injustices done to them daily because of ignorance and prejudice. Sometimes, the purpose of legislation is the stimulus of debate, the creation of a “teachable moment,” and education of the populace. That is the purpose of ENDA in this legislative session. It’s not going to become law in any event in this session, even if enacted, because of the veto. But it is going to be the subject of a national debate.

Pushing transgender people out of the way undermines the fairness message of ENDA, and will be a terrible misstep. ENDA is about not allowing prejudice to have its way, and I commend that message to the sponsors of ENDA.

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