Marla R. Stevens

WaPo Gets It Wrong On SPL/ENDA -- Again

Filed By Marla R. Stevens | October 18, 2007 6:03 PM | comments

Filed in: Politics
Tags: ENDA, HRC, Rep. Barney Frank, Spkr. Nancy Pelosi, SPLENDA, Washington Post

An article in today's Washington Post, Quandary Over Gay Rights Bill: Is It Better to Protect Some or None?, begins:

There's a saying in Congress about passing legislation: Don't let the perfect be the enemy of the good.

The problem with the article is that it presupposes that there is "good" to be had from this disaster of a bill that neither protects gay people due to the huge gender-identity loophole that unscrupulous business legal defense groups already train to, but it actually poses a danger to existing civil rights law through such things as the sweeping and unprecedented religious exemption in the bill as presented to the committee.

Now it's a ludicrous notion that Barney Frank, a Jew, would intentionally put forth a piece of anti-Semitic legislation or that Nancy Pelosi and the Human Rights Campaign would facilitate racist legislation, but in Barney & HRC's secretive, ethics-free haste, that's the de facto effect of what was cobbled together as a substitute for real ENDA.* (As Reagan/Bush judges slowly make mincemeat of existing civil rights law, it would be impossible to open it for needed legislative fixes when there are Damoclean sword precedents as big as this bill presents awaiting it.)

There's no practical hurry as neither ENDA nor SPLENDA are going to become law until Shrub is long gone, and there's no political payoff to be gotten either -- gay organizers are not going to be throwing street parties encouraging votes and money for Dems to celebrate this crud passing. That just leaves big egos stroking the ignorant and desperate among us as the motivation. Is that what the Washington Post wants us to think of as "good"?

There's a saying from the medical profession that better applies here: "First do no harm."

It's not over yet. Keep calling. If nothing else, you'll be laying groundwork for the passage of real LGBT civil rights legislation into law in 2009 or so.

* But make no mistake, in resurrecting their religious exemption from the early '90s era church-state boundary confused, pre-religious rights restoration ash-heap in which it was rightfully buried, Barney & HRC did actively pander to the most powerful anti-Q hate group on earth, the Roman Catholic Church, in an attempt to find a big brother bully under which their little SPLENDA could stick out its tongue. Believing that karma is real, I am moved to great compassion for them all.

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We were sold out, thrown under the bus, took advantage of, mocked, denigrated but worst of all, ignored. Now transgendered people will be forced to live at the edge of public perception, fading between mentally ill and perverted so frank could have his day in the sun. Congratulation barney frank you have earned your place in history.

I have people in the transgender discussion groups that I run who have already attempted suicide multiple times because the fear of being unemployed and living on the streets keeps them from transitioning. And what do I get to tell them about ENDA? That a small handful of people with a disproportionate amount of influence decided to abandon them in favor of a shallow, token victory... even though the token has ended up being more noteworthy for the people it excludes than those that it includes. And I get to tell them that one of the people in Congress who claims to have their interests at heart is actively working to divide the community and make them appear like the enemy.

Thanks, Barney. Thanks, Joe. I could have offered them some small bit of hope, but instead I get to try to keep them alive when they feel more disenfranchised and discarded by the world than ever.

Marla R. Stevens Marla R. Stevens | October 18, 2007 8:33 PM

Kelli --
I'm just a softball-averse, on the most feminine edge of androgyny lesbian who wears dresses and makeup and long fingernails even when I don't have to, and I can say exactly the same thing.

And I'll go a step further:
It's nice and all that Tammy Baldwin is planning to offer the most-difficult-of-all, stand-alone, can't-get-an-accurate-count-on-now-that-the-whole-traitor-driven-brouhaha-has-so-totally-muddied-the-waters, forced-ill-timed gender-identity add-in amendment when this shows up on the floor BUT she's also planning to vote FOR this abomination of a bill whether or not her amendment passes.

That makes her amendment an asterisk to her WRONG-DOING BOTTOM LINE. Yes, I'll lobby hard for her amendment's passage but I, for one, am not joining the fawning chorus singing her praises.

My bottom line is that the new bill as delivered to committee today -- with or without gender identity added -- is dangerous and deserves to die unless the religious and insurance exemptions are ripped from it.

-- Marla

Marla, I am in awe of your cognitive abilities. Your grasp of the intricacies of the hidden politics agendas will have me back to read your blog.
A local group called GEAR has sent out a invite to attend a "Town Hall Meeting" to feature some top gomer from HRC. They want to ligitimize themself by including our names in a conversation regarding the diffulties transgender people face.
This is a insult. I want to go there and yell at them" I am a transgender woman and since I changed my name and gender marker I am under employed, even though I am at the top of experence and value." I will not lend my good name to HRC by association. I will go and hold a sign in protest of HRC's existence.
If anyone feels that the outcome of Frank-HRC ENDA is better than nothing, remember if you lay with snakes one day you will be bitten.


Marla R. Stevens Marla R. Stevens | October 19, 2007 12:25 AM

Good exercise of the ol' integrity muscle, Kelli -- and I like the reptilian analogy.

So I'm curious - this has been rumbling around in my head for days now...

The religious right gets an exemption for our civil rights. Shouldn't we get an exemption from their civil rights then? I mean, fair is fair.

I should be able to not hire or fire any evangelical Christian just because I find them "icky." My beliefs tell me evangelical Christianity is morally wrong. Why can't I discriminate against them because of it now? I mean, what's good for the goose is good for the gander...

Andy Humm's got a great piece on the ENDA/SPLENDA debacle in Gay City News.

A few excerpts:

Gay and lesbian activists, me included, have a long, shameful history of throwing people of transgender experience under the bus, and out gay Congressman Barney Frank of Massachusetts, whom I otherwise admire, is prepared to cut them loose again. If there is anything good to come out of his likely successful effort to remove "gender identity and expression" from the federal Employment Non-Discrimination Act, or ENDA - leaving only "sexual orientation" as a protected class - it is that gay people and some non-gays are finally waking up to the fact that we are all transgendered, that is, somewhere along the "man" to "woman" spectrum with very few people at or near the poles.

The oppression that those of us who are gay and lesbian encounter is primarily based on our failure to fulfill stereotypes about what it means to be a man and what it means to be a woman, not whom we have sex with - though that is one of the ways in which we do not conform to gender norms.


The advances of the women's and LGBT movements have eased some of this prejudice, but it still completely rules some contemporary societies and is far from over in America. Just this week, the New York Times reported on an older lesbian who was bullied from her room in a nursing home when one of the residents screamed, "Get that man out of here!"

Marla -

I totally support a gender identity-inclusive ENDA, and I agree with you that the decision to proceed on the weaker version when there is no hope that it will become law was horrible.

However, I do want to correct what I believe is a misimpression. A sex/o-only ENDA does not leave a giant loophole, so that it is worthless for LGB people. 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 it provides for this protection – there is no giant loophole. Lawyers can disagree about how significant the concern about a change in the law is, but it is certainly not correct to say definitively that the protection would not be there, nor that it isn’t already there in some states.

I offer this correction for two primary 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 either a weak ENDA or under their existing state laws, many of which include only SO protections. It would NOT be easy for them to engage in that kind of discrimination without triggering a lawsuit that will cost them – this should be our message. 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. No version of ENDA will become law until there is a Democratic President, and perhaps not until there are more Dems in both houses of Congress. That is the ENDA that I will continue to work for.


I have to say that, while I'm not a lawyer, I have to respectfully disagree with your assertion that the "perceived as" offers significant protection for gender-variant people. And I also want to say that I'm not toeing the Lambda line, here - I'm just using common sense.

I think for those who are gay and on the slight end of gender non-conformity will have a much easier time demonstrating that their firing, passover, whatever was due to SO rather than gender presentation if that was used as the excuse. But for those of us who are hard butches, nelly queens, and whatever other words you use for those on the far end of gender non-conformity, that argument falls flat. It's easy to discriminate against masculine women and feminine men based on gender identity/expression, as that's a totally different (though related) phobia than homophobia.

In fact, there are cases in which straight non-TS folks have been discriminated against for their gender identity and expression. I mean, really, it's an easy game plan for an employer: if you have someone gender non-conforming you want to get rid of, change or enforce the dress code. Done, simple as that. A soft butch might acclimate to that. A hard butch, like me? I'd be looking for a new job (and a lawyer) sooner than you could say "classifieds" if any employer of mine told me all their female employees had to have long hair or wear makeup.

So, I think my argument here is that we, as a community need to really think about the intersection of the trans and LGB communities, and realize just how much overlap there is.

PS- Nan, I also think you're underestimating the employer-side legal team: having worked in the labor movement for some time now, I can assure you that they usually know about any loopholes in any employment laws before the ink even dries from the bill-signing.

Marla R. Stevens Marla R. Stevens | October 24, 2007 9:06 AM

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.

-- Marla