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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.

Tuesday, October 9, 2007

ENDA: An Embarassment

Why is gender identity being removed from ENDA? I have a suspicion that we don't know what it's really about. Representative Frank says it's because the votes aren't there. He has expressed a desire for trans inclusion, but believes it's just not possible. He says that more education on the issue is necessary. Interestingly, in response to the statement of Lambda Legal, one of the front-line legal advocacy organizations active in protecting the rights of gays and lesbians (as well as bisexuals and transgenders), that keeping gender identity in the bill is crucial for protecting gays and lesbians from stereotype-based discrimination, Representative Frank says that Lamba Legal is wrong because courts would not interpret the law in this way. But all one has to do is take a look at cases like to see that Representative Frank's reasoning is faulty.

But now that 150 organizations have protested that including "gender identity" in ENDA is important from a legal standpoint to protect gay people as well as trans people against discrimination based on gender stereotypes, and they' have created a campaign to call Members of Congress to support an inclusive ENDA, and the wires to Washington are heating up, the inclusive ENDA will move forward along with an education campaign on transgender identity. Right?

I am not so sure.

I have a suspicion that the vote count is not the issue. I also think that the Democratic leadership is concerned that trying to educate faltering Democrats about gender identity may be seen as too pushy about GLBT rights, and may require a tremendous amount of effort. It would require sitting every confused Democratic member of Congress down for a lesson on transgender identity, and that would take a lot of time and a lot of knowledgeable educators. It would be my guess that the Democratic leadership, like most people in this country, are pretty confused themselves about transgender identity, so they are not really in a position to do any educating. It is not unlikely that they would prefer to take an easier road that will lead to better political results. What might such an easier road look like?

The Democratic strategy right now seems to be embarassing the Republicans. An example is the recent controversy over S-CHIP - the children's health insurance bill. The Democrats knew that President Bush was going to veto, they knew that they didn't have enough votes to override, and that there was no chance that the bill would become law. But they wanted to be able to point to a veto and say "The Republicans are against children's health." That is exactly what they have been doing the past week. It's a rather effective political strategy in the "all's-fair-in-love-and-war" world of politics.

This gives us a clue to the strange behavior happening around ENDA. I think the same strategy is in play. The Democrats are looking to secure the gay vote and the fair-minded-citizens-against-discrimination vote. They know that President Bush is going to veto it and there's no chance of overriding a veto. If it goes forward with gender identity and fails to win the vote in Congress, some people might say, "Oh well, it never had a chance of becoming law over the veto, and the vote created a teachable moment that educated a lot of members of Congress and a lot of people out there in the country about GLBT identity, and next time we'll get it when the Democrats sweep back into power."

Ah yes, when the Democrats sweep back into power. The Democrats strategists who are working on that will not think so kindly of losing on ENDA. Their concern isn't so much that gay people will face more discrimination - after all - there is no chance of ENDA becoming law. Rather, the concern is who turns it down. If the Democrats introduce ENDA and it loses, the "Republicans-are-bigoted" card is lost to the Democrats and perhaps a lot of gay people with it. Then it won't be the Republicans who are embarassed. It will be the Democrats, who will then awkwardly have to mumble in embarassment when ENDA is mentioned, or, worse, spout some rhetoric about how the country isn't ready, which is tantamount to an admission that the Democrats are too far ahead of the country.

If I were Democratic strategist, this would be the nightmare scenario I would worry about. I would be embarassed to explain this to anyone outside my office, because it would look like vote-whoring of the worst kind; complete cynical abandoment of any principles in an effort to embarass the Republicans so I could get the votes needed for power. And it would be all of those nasty things. It would be vote-whoring and it would be cynical and I would do my best to talk about whip counts and education and "next time for transgenders" and deny that gender identity is needed for protecting gay employees. But I would fight trans-inclusive ENDA to my last breath, because I am not about protecting transgender people, or even gay people - I am about embarassing the Republicans and winning.

My Congressman, Jim Crowley, seems to have been effectively swayed by this strategy. Here is part of the email he sent me this week in response to my telephone call and my email requesting that he support the trans-inclusive ENDA:

"I support this legislation for one simple reason – discrimination is plain wrong. Unfortunately, the former Republican majority in Congress repeatedly refused to take up this eminently fair bill. I am pleased to tell you that under the new Democratic majority, this bill will hopefully soon see action in the House of Representatives.

There has been some discussion over whether to include gender identity in the bill. I support a fully inclusive bill, as does the entire House Democratic leadership. Stating that, the political reality may not allow this to happen. House Speaker Pelosi and her leadership, including a dedicated "whip team" of which I am a member, are working very diligently to educate both Democratic and Republican supporters in order to pass a fully inclusive bill. Unfortunately, this may not happen, but I remain committed to passing fully inclusive legislation."

In sentence one, I see the "we're the fair-minded guys" strategy. In sentence two, I see the "embarass-the-Republicans" strategy. The reference to "the political reality" in paragraph two suggests that education is not a good reason to insist on a trans-inclusive bill. At the same time, however, he is "working very diligently to educate both Democratic and Republican supporters," but acknowledged that "this may not happen."

Fortunately, I am not a Democratic strategist. I have a different viewpoint. My viewpoint is that, yes, I want changes in Washington, and I disagree with the Republican anti-GLBT agenda. But from my standpoint, winning against that anti-gay agenda is best accomplished by standing up for what I believe in. Changing anti-gay sentiments is best accomplished by talking about gay rights and transgender rights, by educating people about the dignity of transgender identity and transgender people, by speaking about the principles of fairness that motivated this country's beginnings, and by members of Congress having the gumption to stand up and say what they believe about discrimination and the people who support discrimination. That's leadership. That's a winning spirit.

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