Guest Blogger

Symbolism or substance in ENDA debate?

Filed By Guest Blogger | October 23, 2007 12:44 PM | comments

Filed in: Politics
Tags: ENDA, Jody Huckabee, PFLAG, Tammy Baldwin, transgender

[EDITOR'S NOTE:] This guest post come to us from Jody M. Huckaby, executive director of PFLAG.

jody_huckaby.jpgWhen the Employment Non-Discrimination Act (ENDA) received its first-ever vote in the House of Representatives and passed the Education and Labor Committee on Oct. 18, it should have been a historic - and celebratory - moment for the lesbian, gay, bisexual and transgender (LGBT) community.

But there was a cloud hanging over the vote, with over 300 LGBT and allied groups in the United ENDA Coalition advocating for the original form of the bill introduced earlier this year- one that finally included a ban on discrimination based on gender identity. The House Democratic leadership's decision to strip those protections from the bill, leaving only sexual orientation covered, has turned what should have been a victory into an unnecessarily divisive, disappointing setback for the LGBT movement. Unfortunately, the mainstream media has characterized this primarily intra-community conflict as the protestations of a "fringe minority of transgender activists" or the "extreme left" of the LGBT population. Nothing could be further from the truth. One look at the list of organizations and the constituencies we represent makes that crystal clear.

This is not a conflict between "pragmatic incrementalists" and "all-or-nothing idealists." This controversy goes to the very core of what brings the LGBT community together, and it has forced a much-needed debate to the surface. It is time for some truth-telling and difficult conversations about what it means to be
a community advocating for workplace protections.

Our coalition is urging Congress either to restore gender identity protections via an amendment offered by Congresswoman and out lesbian Tammy Baldwin or, if that cannot be accomplished, to drop the effort to pass LGBT anti-discrimination legislation this year. The reality is that this President will not even consider signing such a bill, whether it covers gender identity or only sexual orientation. This gives us the opportunity
in the coming months to continue to educate our elected officials - and the public - about how matters of gender affect people of all sexual orientations.

Legal experts have criticized the existing bill as having far too many flaws to provide adequate protections for individuals based on sexual orientation, which often is closely linked to their actual or perceived gender
expression. Gay, lesbian and bisexual people who are "straight-acting and appearing" might indeed face a safer future following the passage of this bill, but those who more outwardly transgress gender norms would remain vulnerable under the stripped-down ENDA. Sadly, this has been lost in nearly all of the media coverage of this issue.

Simply put, men who are perceived as effeminate and women who are seen as masculine are often singled out for discrimination in the workplace, and federal case law is not settled as to whether Title VII of the Civil Rights Act of 1964 provides sufficient protection for such individuals. Take the example of Christopher Vickers, a private police officer at an Ohio hospital. He claimed that he had been discriminated against and verbally and physically harassed on a daily basis after he became friends with a gay man. Much of the harassment focused on questioning Vickers' masculinity and suggesting that his sexual practices were those traditionally associated with women. Just last year, a federal appellate court threw out Vickers' case because it found that Title VII does not forbid this type of discrimination. Keeping gender identity protections in ENDA would help correct such rulings and represent a major advance in the civil rights of
all Americans -- lesbian, gay, bisexual, transgender and straight.

While under most circumstances we would support efforts to achieve a tactical victory in the House this year, we feel that seriously weakening the bill and dividing the LGBT community represent a price that is simply too high to pay for a purely symbolic exercise. We believe that maintaining an inclusive ENDA, with protections for the entire LGBT community intact, is both the pragmatic and principled way to proceed.

Advocates of the stripped down ENDA have said that insufficient education has been done concerning transgender Americans and broader issues of gender identity. However, they appear to have overlooked the dramatic, recent gains made in adding gender identity protections to state and local law. Twelve states, the District of Columbia and more than 90 counties and municipalities now protect transgender people from workplace discrimination.

Together, these jurisdictions contain more than 100 million people, about 37 percent of the U.S. population. While more states and localities have sexual orientation protections (representing just over 50% of the U.S. population), the gap is narrowing rapidly.

Since 2003, every state and nearly ever municipality that has enacted sexual orientation protection has also covered gender identity. In large measure, this progress has been the result of the growing unity, solidarity and cohesion of the LGBT community.

United ENDA's primary goal is to keep our community and our allies united behind an inclusive ENDA until progressive forces have strengthened their position in Congress and there has been a change for the better in the White House. Our coalition represents not only LGBT people, but their parents, family members and straight allies who understand the importance of keeping the community united rather than pulling it apart. Watering the bill down now and dividing the LGBT community for a victory that is more apparent than
real is a dangerous distraction and the wrong precedent to set.

If members of Congress need more education on gender identity issues, let's continue to increase our work to do that now. Let's make sure they know that surveys show that 60 percent of transgender respondents have either no source of income or earn less than $10,000 a year, demonstrating the desperate need for employment protections for transgender people. Let's make sure they know how frequently lesbians, gay men and bisexuals are subjected to discrimination based not on their sexual orientation but also because of
attitudes about how "real" men and women are "supposed" to look and act.

Let's work together to pass the right bill, one that unites LGBT people, their families and straight allies together, not an inadequate bill that fails protect everyone equally.

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Dear Jody,

I totally support a gender identity-inclusive ENDA, and I agree with you on the need to be both principled and pragmatic in the current divisive (and unnecessary) debates within the community. There was no need to move any version of the bill forward this year.

However, I do want to correct what has become a misimpression, especially among those who support a trans-inclusive ENDA. To take that position, one does not need to exaggerate concerns about the scope of a sex/o-only ENDA. A number of commentators have argued that the weaker ENDA provides little effective protection for LGB people unless they are “straight-acting.” That is not true.

The inclusion of “perceived as” language in the weaker ENDA offers a great deal of protection for gender-non-conforming LGB people. If you read the Lambda analysis closely, for example, you will see that it states "a significant concern" that an "overly restrictive view of [a SO-only ENDA] might be adopted by at least some courts," despite the fact that to do so would be *contrary* to what "is the majority view of the federal bench." In other words, the majority interpretation of current law which prohibits discrimination based on sex and on sexual orientation is that the two read together *do* provide for this protection, although current Title VII law which prohibits only sex discrimination does not. Lawyers can disagree about how significant the concern is that future courts would change the law, and thus create a situation in which “perceived as” language, plus Title VII, does not protect gender non-conforming LGB people. But it is not correct to say that the protection would be missing. In fact, it is already there today in states which have adopted *either* version of ENDA.

I offer this correction for two reasons. First, I do not want us to be communicating to those who want to gin up ways to discriminate against LGB people that it would be relatively easy to do so, under an SO-only version of an anti-discrimination law. It would NOT be easy for employers to engage in that kind of discrimination without triggering a lawsuit that will cost them – this should be our message, and it is true. Second, I do not want the people living in those states with only SO protection to falsely believe that they have no legal protection or recourse when in fact they do.

None of this detracts in any way from the powerful need to pass a fully inclusive ENDA. That is the ENDA that I will continue to work for.

Brynn Craffey Brynn Craffey | October 23, 2007 3:28 PM

Advocates of the stripped down ENDA have said that insufficient education has been done concerning transgender Americans and broader issues of gender identity.

Yeah, that's why more than 300 LGBT grassroots organizations supported a trans-inclusive bill. (Sarcasm.)

Jody, thank you for this very good re-cap of ENDA. Now, if I may, I’d like express my anger at the folks who brought this debacle about. As a queer-identified FtM, my initial shock and disbelief have faded and what I’m left with is fury at the Democratic leadership and upper-echelon gay men who did this.

I’ve argued vehemently for years (in different countries even!) with homophobic trans folks who protest against being lumped in with the LGB community—there are sadly a fair number of them. Now, not only have the saboteurs of ENDA driven a wedge between trans-phobic LGB-identified folks and trannies, they've guaranteed that my argument to homophobic trannies is that much more difficult to make.

That's the nature of wedge-politics—the rifts spread like a bad day on the San Andreas Fault. And these guys, Barney Frank and John Aravosis among them, knew exactly what they were doing. You can't tell me that Aravosis' "What do I have in common with a man who wants to cut off his penis..." was a naive and sincere question. To mix metaphors, he knew very well he was throwing a lit fire-bomb into a crowded theater.

I honestly cannot believe that this is the best the Democratic Party can do for the LGBT community after 30 years of effort. It’s absolutely disgraceful.

It would be nice if we spelled his name is Huckaby rather than Huckabee.

Kim Pearson
TransYouth Family Advocates
Who is also a PFLAG President and very anal about such matters.

Thanks for pointing that out, Kim. I've fixed it in the post. I apologize to everyone.

Anytime Bil, accuracy is always a good thing. Jody is such a great advocate and ally, we want to treat him right.

Kim Pearson
TransYouth Family Advocates
PFLAG Chapter President
PFLAG-TNET Vice President

Marla R. Stevens Marla R. Stevens | October 24, 2007 9:10 AM

I'm cross-posting this response to Nan that she had originally posted on my latest ENDA post:

Nan --

I appreciate your astute comments greatly and, on the whole, agree -- even going a bit further to say that, even with some bad post-Arline decisions restricting its more complete and widespread application of the doctrine of perception, we are still in a post-Arline world and, as such, I view the inclusion of perception in the bill as a reiteratively instructive primer for the most recalcitrant, but not at all a clear necessity for Arline to apply if all judges were not hostile to civil rights laws as they were meant to be interpreted. But that, of course, is the rub.

Firstly, there is a sad practical reality that, where there is likely the greatest need to take cases to court, those cases will be more likely to face the worst appointees to the bench -- those I refered to in my first post on this subject here some weeks ago.

Secondly, the size of the loophole, while you are correct that, if perception does properly apply, should be insignificant, is relative on a case-by-case basis: when it exists, it is always "giant" to the one who is suffering it.

Thirdly, as you well know, the whole concept of perception has been under specific attack ever since Arline, evidenced clearly by the HR3685 author's perceived need to specifically include it at all. In fact, few aspects of labor law have been as subject to the concerted search for loopholes -- real and wrongly created -- that Arline has, so powerfully protective an umbrella is she.

And its on-the-ground, non-theoretical, non-academic, experiential reality where gender identity is concerned has been one of its more checkered applications -- particularly in geographical regions of greatest need.

For instance, its application in perception of sex to cover the transgendered -- on its face a logical use of perception with existing law -- has been anything but smooth or certain. I was personally able, with the Indiana Civil Rights Commission for my working duration in the state even slightly preceding Arline (and greatly enhanced by that decision) from the early '80s until I moved away, to repeatedly broker handshake deals with successive Commission executive directors and their legal directors (regardless of their appointing governors' party affiliations, no less) to honor the notion of perception of sex as covering gender identity -- an interpretation that was conveyed from the legal directors to the administrative judges in the department so that it was the functional law of the state as long as cases were retained under state law as controlled by the Commission.

But, federally, the situation was bleak, with unfortunate rulings into the mid-80's in Holloway, Sommers, and Ulane (three federal appeals courts cases) that the Title VII prohibition against sex discrimination did not apply to post-surgical transsexuals, deciding that this was a separate category of discrimination, change-of-sex discrimination, and that as Title VII didn't specifically discuss that, it wouldn't apply.

It was, after all, just since the late seventies that the worst of the antigender variance police harassment had subsided. I remember clearly that lesbians even in the state's biggest city were busted for wearing fly-front (instead of side- or back-zipped) pants well into the mid-1970s. And I fought cases with police cooperation of gay establishment gender identity discrimination well into the 1990s.

The realization of the gender identity loophole in ENDA started to sink in about that time and was confirmed by Chai Feldblum, the Georgetown law professor hired by HRC as ENDA's primary drafter in a speech she made to the Lavender Law Conference in 1998. It is hardly fiction.

During that same period, HRC started formally deferring to Barney Frank on gender identity inclusion in ENDA and Barney (and Sen. Kennedy) was a staunch no-go. Temporarily thwarted but in a newly post-Arline environment, transgendered legal experts including Phyllis Frye started petitioning the EEOC to apply perception to Title VII regarding gender identity in an attempt to override the Ulane trio. According to Frye, "the commissioners understood, but declined, noting that the Republican Congress would retaliate by reducing appropriations for the EEOC in the next budget." But a bit of a breakthrough occurred with the DOJ in 1998 which has, as you know, been anything but universally honored by the courts and the general opinion of the transgender legal experts by 1999 was that a case that made it to the Supremes would be as likely as not to suffer the same fate as the Ulane trio -- made even worse by recent appointments to that bench.

They thus believe that gender identity is crucial in a Title VII measure such as ENDA for both their protection as well as that of gender-variant lesbians, gays and bisexuals who they see as not protected without it.

Dear Marla,

Thanks so much for your thoughtful post. Let me try to clear up some of where I think the confusion lies.

Most of the cases you mention – Sommers, Ulane, Holloway – were brought under Title VII, which prohibits sex discrimination. That law has no provision for covering “perceived as” or “regarded as.” The Title VII cases involving TG plaintiffs did fail, and so did all the Title VII cases involving LGB people, for the same reason. The courts ruled that sex discrimination did not include either TG or sexual orientation discrimination.

Like Chai Feldblum, I too thought that the TG cases logically should have been covered by a more expansive understanding of discrimination based on sex. Had that occurred, protection for TG people under Title VII would have occurred years ago, before ENDA and most of the state SO anti-discrimination laws. But the courts did not buy that theory, so the next best strategy for covering TG people was to develop GI as a distinct category in anti-discrimination laws.

In the meantime, the courts made it clear, in a string of sexual harassment and other cases, that when people were targeted for harassment based on gender nonconformity (usually effeminate men being harassed by other men, called “faggot,” etc), the courts would interpret that situation as sexual orientation-based discrimination if the facts of the case supported that the discriminators viewed the plaintiffs as gay (whether they were or not). And usually the facts did support that. Even in a few cases involving TG people, the courts indicated that when people react to TG people as gay or queer or “faggots,” however uninformed that reaction might be, the discrimination is being motivated by a bias related to (perhaps misperceived) sexual orientation. Under a SO-only ENDA, with a “perceived as” clause, those cases should be won.

I agree with you that the federal courts have become quite conservative, and I too am worried about future developments in many areas of law. However, there is at present *no decision* which stands for the proposition that the combination of ENDA’s SO language with the sex stereotyping principle of Title VII – that is, prohibiting discrimination based on SO or perceived SO and prohibiting discrimination based on sex stereotypes - will fail to protect gender nonconforming LGB people. Although I share the concern that the law might change in the future to become less protective, that is not what the law is now. And I strongly believe that it is misleading to suggest otherwise, even if doing so seems to create another reason for supporting a trans inclusive ENDA.

As I stated in my earlier post, I fear that we may come to regret arguing that our case is weaker than it actually is. That strikes me as cause for greater apprehension than the risk that the courts will reject the line of reasoning that has dominated these cases for years.

You mentioned Arline several times, and it is, of course, a disability case – neither a sex nor a SO case. The “regarded as” language in the ADA unfortunately lacks much relevance here, because the ADA specifically excludes GI from the definition of covered disabilities.

Again, thanks for your engagement on this question. It is always good when allies can share their differences in this kind of exchange.