This guest post comes to us from Congressman Barney Frank (D-MA). Congressman Frank is one of two openly gay House members, is the Chair of the Financial Services Committee, and has been a leader in the development of the Employment NonDiscrimination Act.
Being in the legislative minority is easy - pulling together to block bad things does not require a lot of agonizing over tough decisions. Being in the majority is a mixed blessing. On the one hand, we have the ability to move forward in a positive way on important public policy goals. Detracting from that is the fact that it is never possible for us at any given time to get everything that we would like, and so we have to make difficult choices. But it is important to remember that the good part of this greatly outweighs the bad. Going from a situation in which all we can do is to prevent bad things from happening to one in which we have to decide exactly how much good is achievable and what strategic choices we must make to get there is a great advance.
The current manifestation of this is the difficult set of decisions we face regarding the Employment Non-Discrimination Act. We are on the verge of an historic victory that supporters of civil rights have been working on for more than thirty years: the passage for the first time in American history by either house of Congress of legislation declaring it illegal to discriminate against people in employment based on their sexual orientation. Detracting from the sense of celebration many of us feel about that is regret that under the current political situation, we do not have sufficient support in the House to include in that bill explicit protection for people who are transgender. The question facing us - the LGBT community and the tens of millions of others who are active supporters of our fight against prejudice - is whether we should pass up the chance to adopt a very good bill because it has one major gap. I believe that it would be a grave error to let this opportunity to pass a sexual orientation nondiscrimination bill go forward, not simply because it is one of the most important advances we'll have made in securing civil rights for Americans in decades, but because moving forward on this bill now will also better serve the ultimate goal of including people who are transgender than simply accepting total defeat today.
When the bill banning sexual orientation discrimination was first introduced by Bella Abzug and Paul Tsongas more than thirty years ago, it was a remote hope. Over time because of a good deal of work, education of the general public, and particularly the decision by tens of millions of gay and lesbian people over that time to be honest about our sexual orientation, we have finally reached the point where we have a majority in the House ready to pass this bill. Those of us who are sponsoring it had hoped that we could also include in the prohibition discrimination based on gender identity. This is a fairly recent addition to the fight, and part of the problem we face is that while there have been literally decades of education of the public about the unfairness of sexual orientation discrimination and the inaccuracy of the myths that perpetuated it, our educational efforts regarding gender identity are much less far along, and given the prejudices that exist, face a steeper climb.
We introduced legislation opposing sexual orientation discrimination with explicit inclusion of gender identity for the first time this year. Earlier this session under the leadership of Speaker Pelosi, we were able to get through the House a hate crimes bill that provided protection against crimes of violence and property damage for lesbian, gay and bisexual people and people who are transgender. There was some initial resistance to the inclusion of transgender people but a very organized effort on the part of Congresswoman Baldwin, who took a major role in this, myself, and the Democratic leadership allowed us to overcome it, with the support of some of our Republican colleagues.
We then began the work on passing a transgender inclusive ENDA. I was optimistic at first that we could do this, although I knew it would be hard. One of the problems I have found over the years of discussing this is an unwillingness on the part of many, including leaders in the transgender community, to acknowledge a fact: namely that there is more resistance to protection for people who are transgender than for people who are gay, lesbian and bisexual. This is not a good fact, but ignoring bad facts is a bad way to get legislation passed. I have for some time been concerned that people in the transgender leadership were underestimating the difficulty we faced in a broadly inclusive bill being adopted.
Still this seemed to me an effort very worth trying, and, when I testified before the Education and Labor Committee on ENDA I spent much of my time explicitly addressing the need to include transgender people. In fact, I believe I spent more time on that than any other witness. Sadly, as the time approached for the vote to be taken in the Committee, we encountered a good deal of resistance. The great majority of Democrats remained committed to this, but with Republicans overwhelmingly likely to be opposed - even on hate crimes on the critical vote we were able to retain only nine Republican supporters out of two hundred Republican Members - it became clear that an amendment offered by Republicans either to omit the transgender provision altogether or severely restrict it in very obnoxious ways would pass.
Responding thoughtfully to this requires people to accept facts. Some have tried to deny this unpleasant reality. The Democratic leadership, which is in complete sympathy with a fully inclusive bill, did a special official Whip count - a poll of the Members. There had been earlier informal counts that had showed significant support for a bill that included transgender, although even these informal checks never showed that we had a majority. But Members will sometimes be inclined to give people the answers they think the people who are asking the questions want until the crunch comes. In the crunch - the official Whip count taken in contemplation of the bill - it became very clear that while we would retain a significant majority of Democrats, we would lose enough so that a bill that included transgender protection would lose if not amended, and that an anti-transgender amendment would pass.
The question then became how to proceed. There were several choices. One was to go forward with the bill understanding that an amendment would be offered to strike the transgender provision. There was a proposal to have the Democratic leadership do that in what is known as a manager's amendment, in the hopes of avoiding a divisive roll call on the subject. But the Democratic leadership did not want to take the lead in killing a provision to which its Members are committed as a matter of principle, and in fact, given Congressional procedures, there is no way to prevent a roll call even on that. People have claimed that the desire to avoid a roll call is aimed solely at protecting some Democrats from having to make a tough choice. That is of course a factor, and asking your supporters to vote with you on a matter that is doomed both to lose itself and to lose you votes is not a good way to build up support. But it is also the case that a number of the Democrats were prepared to vote for the inclusion of the transgender provision even though they knew that it would hurt them politically. The main reason not to put this to a vote is our interest in ultimately adopting transgender protection. If we were to push for a vote now, knowing that the transgender provision would be defeated by a majority, we would be making it harder ultimately to win that support. As recent campaigns indicate, Members of Congress who are accused of switching their position on votes are pilloried, even when this is done unfairly as it was to Senator Kerry. Thus, forcing a vote on transgender inclusion now, which would without any question result in a majority against it, would make it harder to win when we have done better in our educational work, because Members who vote no now will be harder to persuade to switch their votes than to persuade them to vote yes in the first instance.
In addition, going forward in this situation leaves us open to Republican procedural maneuvers in which they could succeed not only in getting rid of the transgender provision. This would not kill the bill, but it would substantially delay it, and would be have very bad psychological effect in a situation in which maintaining the right psychology -optimism - is important.
That is why I believe that a strategy of going forward with a transgender inclusive provision that would certainly be stricken at some point in the procedure by a vote in the House would be a mistake.
Leaders in the GLBT community, who strongly support the inclusion of transgender, now acknowledge that this would be the case - namely that the transgender provision would lose - so their proposed alternative was simply to withhold the bill from the House altogether.
That is, their recommendation was that the Speaker simply announce that she was not going to allow the Employment Non-Discrimination Act to come up at all. I believe that would be a disaster - politically, morally, and strategically. While their reason for this would be the debate over how ultimately to achieve transgender inclusion, the impression that would be given to the country was that Speaker Pelosi, the first Democratic Speaker in thirteen years, and a lifelong strong supporter of LGBT rights, had decided that we could not go forward on what had been the major single legislative goal of gay and lesbian people for over thirty years.
Some in the transgender community and those who agree with them have given a variety of strategic arguments why they think it would be better not to go forward. One variant is that since the President is likely to veto the bill anyway, it does not make any difference if we fail to vote on it. But it should be noted that this is directly contradictory to the arguments that the LGBT community has been making for years. That is, we have been very critical of arguments that we should not push for votes on anti-discrimination legislation simply because it wasn't openly going to win. People have correctly pointed to the value of getting people used to voting for this, of the moral force of having majorities in either the House or the Senate or both go on record favorably even if the President was going to veto it, and have in fact been getting Members ready so if that if and when we get a president ready to sign this, we are closer to passage. To repeat, the argument that we should not take up legislation unless we are sure the President is going to sign it is directly opposite to all of the arguments LGBT advocates have been making for as long as I can remember.
The real reason that people are now arguing that we should withhold any action on the antidiscrimination bill unless it includes transgender as well as sexual orientation is that they are, as they have explicitly said, opposed in principle to such a bill becoming law. That is the crux of the argument. There are people who believe - in the transgender community and elsewhere - that it would be wrong to enact a law that banned discrimination based on sexual orientation unless it fully included people who are transgender. I think this argument is deeply flawed.
First, I would note that since I first became a legislator thirty-five years ago, I have spent a lot of time and energy helping enact legislation to protect a variety of groups from discrimination. In no case has any of those bills ever covered everybody or everything. Antidiscrimination legislation is always partial. It improves coverage either to some group or some subject matter, but never achieves everything at once. And insistence on achieving everything at once would be a prescription for achieving nothing ever.
To take the position that if we are now able to enact legislation that will protect millions of Americans now and in the future from discrimination based on sexual orientation we should decline to do so because we are not able to include transgender people as well is to fly in the face of every successful strategy ever used in expanding antidiscrimination laws. Even from the standpoint of ultimately including transgender people, it makes far more sense to go forward in a partial way if that is all we can do. Part of the objection to any antidiscrimination legislation is fear of consequences, which fears are always proven to be incorrect. There is a good deal of opposition now to passing even sexual orientation legislation. Enacting legislation to ban discrimination based on sexual orientation and getting a year or two's experience with it, will be very helpful in our ultimately adding to it protection for people who are transgender. That is, if you always insist on doing all the difficult things in one bite, you will probably never be successful. Dismantling the opposition piecemeal has always worked better.
For these reasons I have proposed along with the Democratic leadership the following strategy. First, we have introduced two bills. One will be ENDA as it has historically existed, banning discrimination on sexual orientation. A second will add transgender protections to that basic scheme. We will move forward with the ban on sexual orientation for which we finally - after thirty-plus years - have the votes. After we are successful in winning that vote, I will urge the Committee on Education and Labor to proceed with our next step, which will be to continue the educational process that I believe will ultimately lead to our being able to add transgender protections. This will mean within a month or two a hearing in the Committee on Education and Labor which, unlike the hearings we previously had on this bill, will focus exclusively on transgender issues, and will give Members a chance to meet transgender people, to understand who they really are, and to deal with the fears that exist. The other options are either to bring a bill to the floor in which the transgender provision will be defeated by a significant majority, making it less likely that we will be able to succeed in this area in the future, or ask the Speaker of the House to in effect put aside her lifelong political commitment to fairness and be the one who announces that we will not pass a bill banning discrimination based on sexual orientation even though we have the votes to do it. Passing ENDA in part and then moving on to add transgender provisions when we can is clearly preferable to either of these approaches.