Nan Hunter

Whenda ENDA?

Filed By Nan Hunter | December 09, 2009 5:30 PM | comments

Filed in: Politics, Politics
Tags: ENDA

The joint statement issued last week by all the major lgbt rights organizations designed to generate alarm about the delay in ENDA should be heeded. ENDA is over for 2009. Why? Not because members of Congress are lazy or dismissive, but because the reality of tough issues is hitting the fan. ENDA is not in danger at this point, but the moment of pushback has come.

The next step in the process of enactment is for the House Ed and Labor Committee, which held a hearing on ENDA in September, to go through the "mark-up" process. This means that the language of ENDA will be revised from its original version at the time it was introduced. The bill in its revised, marked-up form will go to the committee, where adoption is essentially certain. (House Ed and Labor is probably the farthest left committee in Congress.)

Additional changes can be adopted by the committee during its mark-up session, but if the staff and leadership have done their homework, that won't happen. Before the bill goes through the committee vote, the necessary revisions will have been made to assure not just a majority vote in committee, but also to guarantee the bill's passage in the full House.

In essence, now is the moment when vote counting starts for real. It should come as no surprise that ENDA's provision of job protection for transgender persons, which two years ago likely would not have survived a Republican amendment to strike, is proving to be a sticking point, especially to "blue dog" Dems who represent districts that voted for George Bush and/or John McCain and who are worried about getting re-elected next year. Without some mixture of blue dogs and moderate Republicans, there is no majority in the House. Nancy Pelosi and Barney Frank are power hitters, but they can't change that reality.

Advocates are tweaking and talking, trying to achieve effective wording on issues such as restroom use that can stand up under the Republican ugliness that will kick into high gear when a floor vote is scheduled. This is one reason why referenda votes within the last year in Kalamazoo and Gainesville were so important - in both cases, conservatives sought a popular repeal of a local anti-discrimination law covering both sex/o and GI by singling out trans people for attack. In both cities, voters reaffirmed the anti-discrimination laws. You can bet that advocates on Capitol Hill will be mentioning Kalamazoo and Gainesville every chance they get.

In addition to trans issues, there are also some fairly technical legal questions regarding the bill as well, for which clarifying language may be added.

The job now is to do whatever rewriting is necessary to move the bill as early as possible in 2010. The Senate will take up the version of the bill that the House passes. In the Senate, there could well be more debates over additional amendments, although the goal is to fashion deals at this point in the process that will be sufficient for both chambers.

With a lot of work and a little luck, there could be a White House signing in the spring.

Cross-posted at hunter of justice

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Luck? There are 45 unmovable NO votes in the US Senate. What happens in the House doesn't matter.

What's the plan to get enough votes in the Senate?

Suggesting a possible "White House signing this Spring" (ignoring the reality of the Senate) is just creating false hope.

Restroom use? That's what they're working on? This is the first I'm hearing of this.

Angela Brightfeather | December 9, 2009 10:20 PM

Jillian, I don't want to tell you that I told you so, but it's in black and white.

ENDA is going to be adapted so that anyone using a restroom and who happens to be Trans will have to take half a file cabinet of all kinds of "crap" with them to get in. In other words, if you don't have a letter, a licence and can prove your on hormone therapy, then use the men's room. And all those so-called
Trans people who are really perverts in dresses have to use the men's room, where they can still get the shit kicked out of them, or worse.


As I said before, lets hold this thing up until it is so critical to pass right away in front of the mid-terms, that they will have to accept any bathroom, cisfemale insurance changes we come up with or just cut out all the gender talk and go for the GLB version of two years ago like we wanted to in the first place.

Look for changes in the definitions under "Transgender". Look for a new definition of "Transsexual" who will only be covered by
ENDA. All the Trans people like Peter Oiler can go suck salt, if your not getting your weekly hormone shots, your still going to lose your jobs without any protection even if you don't express your gender on the job.

Other definitions might address "Crossdressers" taking information from any of the numerous Transsexual blogs that exist that over the last ten years have constantly painted "other Trasn people" as deviants who don't deserve to be counted as "real women".

And people are wondering why HRC, Frank and Baldwin have not said very much? They see the storm coming and don't want to have anything to do with it or to be blamed when it hits.

Anyone who knows me can verify that I have always said that if we in the Transgender Community continue to talk badly about other Transgender people, define gender diversity by placing people in boxes, then those words will come back to hurt every Transgender person. Now, we will see if that was accurate.

All the Trans people like Peter Oiler can go suck salt

Unless there's more to Peter Oiler than I was previously aware, at the time of his case against Winn-Dixie, he was - with the exception of an earring if I remember the facts correctly - an off-the-job crossdresser.

Please note that I didnt' say "just" a crossdresser.

I've long asserted that the only way to short-circuit the made-by-Barney-but-used-by-christianists fear of trans women in the showers and restrooms is to have language that spells out the differences between crossdressing (which would and should be protected away from work, but not at work) and transition - and, if necessary, between post-ops and pre/non-ops, but with all forms of transition actually being covered.

St. Barney and his acolytes will never do this, because they don't want any of us in 'their bill' at all and once St. Barney is put in the situation of not being able to explain why a post-op MTF would constitute a 'penis in the ladies shower', the entire exclusion front would fall.

Which is why, doubtlessly, Barney is dusting off his 'Oz' speech to justify a deal that has already been made.

And to the Aravosisists...

If you're wanting to New York us into economic oblivion....?

Not this time.

No inclusion, no ENDA.

No compromise.

Remember Wisconsin!

Remember Massachusetts!

Remember Maryland!

Remember New York!

rapid butterfly | December 10, 2009 9:32 AM

angela - you lost me.

As for "fairly technical legal questions regarding the bill," and I am not criticizing you, Ms. Hunter, in any way, but as an attorney myself, and a trans woman, I wonder - what are these, exactly? If they're real, then by all means, let's sort them out in a spirit of fairness and good faith. But if this is as I suspect just a delaying tactic, then that should be pointed out, loudly......

In Rep Andre Carson's guest post he mentions tweaking it to also make it pass muster with conservative judges. In a video that will go up later today, Rep Tammy Baldwin also mentions that.

I also have another interview with Rep Jared Polis that'll publish in a half hour. Polis and Baldwin and Carson all say that the committee will take up ENDA right after they get back from December recess and it should be passed in the House by early February at the latest.

I agree with Andrew above that the Senate seems to be the major hurtle we need to cross. Jill's ENDA posts also targeted Senators quite often. Do you know what other legislation Senators are considering attaching ENDA to?

Kathy Padilla | December 10, 2009 10:34 AM

"Restroom use? That's what they're working on? This is the first I'm hearing of this."

That seems odd to me also. The bill doesn't cover public accomadations. Rest Room usage isn't a subject it applies to at all.

It's an issue, as far as failure to provide gender-appropriate accommodations for transgender employees could or could not constitute employment discrimination, based whether the bill addresses sex-segregated facilities or not and how it does address them if it does.

That was a long convoluted sentence. Working around lawyers is obviously taking a toll...

I believe what is being discussed is:

(3) CERTAIN SHARED FACILITIES- Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.

Restroom issues?
What restroom issues?

I am in favour of restrooms and I think that most of the Senate is;

I think that analogies to Kalamazoo and Gainesville have to be carefully made because both of those ordinances were much broader than ENDA, involving, as they did, housing and public accommodations. The breadth of those bills allowed opponents to suggest that these bills would ease access of sexual predators to women's bathrooms. Since ENDA involves only workplace discrimination, such arguments cannot easily be made. But I would not be so foolhardly as to leave a trail of breadcrumbs for for opponents.

I notice a related trend that is quite disturbing. Most opponents of ENDA this time around are focusing on the religious freedom angle, with very little emphasis on gender identity issues. However, more and more statements are being made by gay activists in the press suggesting that the major objection of opponents to ENDA is gender identity. That's just false, and gives the false impression that the major problem here is transgender people when it is not. I'm not prepared to say that this is an intentional strategy, but I do not like it nonetheless.

Angela Brightfeather | December 11, 2009 2:47 PM


I would be very intereseted in your legal interpretation of the word "notification" as it appears in article 3 of ENDA.

Is notification defined clearly?

What are the responsibilities required concerning notification?

Exactly what kind of notification? Verbal? Written? From who?

Might this not be one of those areas being "tweaked".

Every word in ENDA is a possible note of contention when it comes to gender language and the more they pick at it, the less I like it.

If we have made any substantial progress over the years, it has been in the courts where public opinion, acceptance and visibility are considered as well as the individual circumstances as they apply to an individual case. I would rather have a human rights law that is not tweaked and leave the tweaking to the courts.