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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Thursday, October 18, 2007

Do I Want The Baldwin Amendment?

According to the National Center for Transgender Equality, the House Education and Labor Committee is going to look at HR 3685, the non-inclusive ENDA bill, this morning at 10 AM. They will vote whether to send it to the floor of the House as is, with amendments or not at all. I, along with many others in UnitedENDA.org, think a non-inclusive bill is a mistake. However, that being said, my guess is that the committee will send the non-inclusive bill to the floor of the House.

As noted yesterday, Representative Baldwin of Wisconsin has secured agreement from the Democratic leadership to make a motion for an amendment on the floor of the House to add gender identity and expression back into the bill. In my conversation with some congressional aides yesterday, it was suggested that this might be bad for the transgender community, and the wisdom of it was questioned. They raised some good points. Do I want the Baldwin Amendment?


They noted Representative Frank's argument that there are not enough votes for gender identity/expression, so the Amendment, while well-intentioned, will probably not pass a vote before the House. Then, there will be a lot of Congress members with "NO" votes on record. Since, as everyone knows, ENDA will not become law this year because of the Bush veto, it will have to reintroduced again next year. However, next time there may be a more sympathetic president and more Democrats in the House, so gender identity could be introduced next time with less push-back. But since many members who might otherwise be sympathetic in the future will have voted no on the Baldwin Amendment, they will be concerned to change their vote to yes lest they be accused of flip-flopping, so gender identity will be held back again. Therefore, the Baldwin Amendment is not good for transgender people.

It's an appealing argument to those Beltway insides who know the legislative process all too well. But I don't believe it, and I told them so.

First, I agree with Representative Frank that more education is needed. I disagree with him in how he's going about it: by bad-mouthing transgender people's desire to be included in all the fairness talk and the gay allies who want employment fairness except at the price of fairness. The way to get that education is to make members of Congress sit down and listen and learn about gender identity and gender expression and that transgender people are not crazy sexual deviants who are going to hurt their women and children. I have travelled to Washington eight times, along with a lot of others on lobby days sponsored by transgender organizations like NCTE, NTAC and GenderPAC (well, GenderPAC was a transgender organization then), to educate the members of Congress, only to meet with interns, hear a lot of bull about how they support the community, and realize that the Member is going to ignore my nicely-printed literature completely. And then, for thanks, I get Barney Frank standing on the floor of the House asking where I and the other transgender people were when ENDA was getting started.

I think the Baldwin Amendment is great for transgender people, though it would have been much greater had there been an inclusive ENDA. I realize that the members of Congress are uneducated on the issues, and they'll probably vote it down. But those members won't be any better educated next year if the issue is swept back into the closet this year. On this issue, any publicity is better than no publicity at all. This issue needs air and light.

I want members of Congress who ARE educated on these issues to stand up and say what gender identity is. I want them to define what transgender means. I want them to talk about the study that shows that most transgender people don't have co-occuring mental illness. I want them to talk about the dozen or so transgender K-12 teachers in this country who haven't caused shock and trauma among their pupils (and there are no reported cases of any who have). I want them to explain how a company can easily and comfortably accommodate a transgender employee, that there are thousands of such cases all over the country, and that 150 Fortune 500 companies have added gender identity to their company policies. They should talk about how the European Union countries, Canada, Australia, Spain and others have accommodated transgender people without the skies falling. I want to be seen and I want to be known, especially because there are many who aren't ready. I say - start getting them ready now for next year. Because next year is coming quickly, and if the Members don't have their nose rubbed in it now, they will ignore it until next year, and then bleat: "more education! more education!"

As I wrote in 2001 in my article in Tulane's Journal of Law and Sexuality, The Gender Caste System: Identity, Privacy, and Heteronormativity, 10 Law & Sexuality 123,
"There should be no need for transsexual people to 'prove' beyond doubt to skeptical and disapproving legal officials that they are 'scientifically' entitled to their claims of personhood and humanity. Audre Lorde, in her essay 'The Master’s Tools Will Never Dismantle the Master’s House,' radically challenges how white people learn about racism, or how men learn about women: 'Women of today are still being called upon to stretch across the gap of male ignorance and to educate men as to our existence and our needs. This is an old and primary tool of all oppressors to keep the oppressed occupied with the master’s concerns.' AUDRE LORDE, SISTER OUTSIDER : ESSAYS AND SPEECHES 113 (1984)


I agree with Audre Lorde. Don't blame the victim because you are not educated enough to help them. That's the master's tool - a version of "you people aren't ready." If you want education, educate yourself. I and many others have been out there educating, but few members of Congress have been listening. Members of Congress: it is time, well past time, to listen. I say yes to the Baldwin Amendment.

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