Dr. Jillian T. Weiss

Dueling Capitol Versions of ENDA: "It's A Sure Thing" "No, It's Not"

Filed By Dr. Jillian T. Weiss | May 10, 2010 9:30 AM | comments

Filed in: Politics, Politics
Tags: employment discrimination, Employment Non-Discrimination Act, ENDA, HR 3017, Roll Call

What's going on with ENDA, the Employment Non-Discrimination Act, which would finally prohibit overt homophobia and transphobia for millions of LGBT US employees?

On the one hand, the Dems said they would conduct a whip count and proceed to a vote after the Easter recess on April 13. They say they're working hard on that. Roll Call, an important DC newspaper read by the pols and their staffs, says ENDA's a pretty sure thing.

At the same time, it's the second week in May, and questions about when this vote will take place are met with non-answers and sincere protestations about doing it right. The Hill, a sister publication to Roll Call, also published an article this weekend. That one suggests ENDA is in big trouble.

Into this battle comes Alison Green, who writes the "Ask a Manager" workplace advice column for U.S. News & World Report's Web site. This week on her personal blog, she addresses a reader question: is my transgendered coworker using the right bathroom?

What's really happening with ENDA? Well, whatever's happening, write your Representative again by clicking here. Yes, again. Do you brush your teeth every day?

Optimists would point to the fact that reports suggest the whip count is going very well. They counsel patience and calling your members of Congress. "We're so close," said Diego Sanchez, senior aide to Barney Frank on last night's discussion on Ethan St. Pierre's Sodium Pentathol Sunday TransFM Radio show. "Keep calling Congress," he urged. The Roll Call article supports this view.

Pessimists would point to the portion of the Roll Call article that laid a huge bombshell from Representative Frank that could derail the whole thing. In it, Rep. Frank is quoted as saying that new language in ENDA regarding bathroom use would be based on one's "set of genitals." This raises fears of transgender advocates that there will be surgical requirements engrafted onto the bill. I sincerely hope that's a misquote, as Diego Sanchez implied in his interview last night. The pessimists would also point to another article, the one in The Hill this weekend, which suggests that ENDA is in big trouble.

The Hill Article

The article in The Hill is what I would call a transphobic "dog-whistle" article, meaning that only those attuned to the right frequencies can hear the "fear transgender people" message. Entitled "Transgender anti-discrimination bill becomes tough sell for centrist Dems," it characterizes ENDA as a narrow "transgender anti-discrimination bill," rather than a broad workplace protection bill that would affect millions of gay, lesbian and bisexual employees, as well as transgender employees.

The article suggests that bringing the "transgender bill" to the floor would bring Speaker Nancy Pelosi into disrepute and cause the Democrats to lose Congress. It sub rosa implies that "transgendered" people "scare" legislators, and that centrist Democrats won't vote for the bill. It neglects to mention that ENDA has majority support in both House of Congress.

Although The Hill moderates comments, it also published dozens of mean-spirited transphobic comments, including the first comment: "The only cure for 'transgender' freaks is a thorough lobotomy." Good job "moderating," Hill staffers!

This is quite inconsistent with The Hill's view of itself:

In an environment filled with political agendas, The Hill stands alone in delivering solid, non-partisan and objective reporting on the business of Washington, covering the inner-workings of Congress, as well as the nexus between politics and business. The Hill serves to connect the players, define the issues and influence the way Washington's decision makers view the debate.

Non-partisan and objective? The article tracks the meme from the article published by Andrea Lafferty of the Traditional Values Coalition, listed as a hate group by the Southern Poverty Law Center. In her article in The Hill's sister publication, Roll Call, Lafferty suggested that ENDA will endanger the re-election of Democrats running ragged after spending all their political capital on health care reform and hoping for a softball legislative schedule.

The Roll Call Article

In "Backers Say Gay Rights Bills Will Win in House," a dash of cold water is first thrown onto DADT repeal, questioning whether the votes are there for it.

The article sounds a more cautiously upbeat note for ENDA:

Meanwhile, the whip count on ENDA, which Obama also backs, is entering its fifth week. The effort has most recently focused on rechecking support among Members thought to be more comfortable with the legislation than politically imperiled moderates who have raised most of the concerns, one source familiar with the effort said. That, the source said, bodes well for its progress. But many Members remain officially undecided and have quietly voiced frustrations about the prospect of taking a tough vote that they see as a distraction from an agenda focused on job creation.

"It seems to run contrary to what the Speaker said a few months back about focusing on jobs and moving away from these controversial items," one senior Democratic aide said. "Anything that's not specifically tied to keeping the economy going raises red flags for folks."

But Frank said that he is optimistic about the vote count and that transgender protections will remain in the bill.


[Rep. Tammy] Baldwin said that the whip count on ENDA is very strong but that they are pushing hard to whip against a politically charged Republican motion to recommit.

Baldwin had little sympathy for the complaints of moderate lawmakers who question the political wisdom of pushing gay rights bills in a difficult election year.

"Name one issue where you don't hear that?" she said. "They should choose another profession."

It's good that our leadership is signalling a positive outcome on the ENDA whip count, and not caving to the fear of Blue Dogs, who don't give a whit for millions of LGBT employees facing unemployment, underemployment, harassment, and air-tight closets.

Rep. Frank also gives comfort to transgender advocates of ENDA.

"There's no chance of doing it without it," [Frank] he said of the transgender protections.

Frank said he's told wavering Democrats that "the principle is the same. It's discrimination."

Fears of Trans Advocates

Despite the optimistic tone of the Roll Call article, there is still trouble in River City. Frank was also quoted in a way that will raise the fears of transgender advocates. He implies that new, as yet unseen language in ENDA will impose a surgical requirement.

Frank said concessions were made in the drafting of the language to address moderates' concerns. For instance, Frank said, transgender people with "one set of genitals" would not be able to go to a bathroom for people with another set of genitals.

And, Frank said, they also would have to have a "consistent gender presentation" in order to be able to sue for discrimination.

"They can't sit there with a full beard and a dress," Frank said.

Most trans advocates are fine with the idea of consistent gender presentation, the "no beards and dresses" requirement, in Frank's piquant language. For example, the Boston anti-discrimination ordinance, which is widely considered very progressive by trans advocates, also has a specific requirement of consistent gender presentation with regard to bathroom use.

Frank's statement, however, goes well beyond that when he says transgender people with "one set of genitals" would not be able to go to a bathroom for people with another set of genitals. A surgical requirement is unsatisfactory not only from the point of view of trans workers, but also from the employer's point of view as well.

As I point out in my book, Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals, surgical requirements are very unsatisfactory for all concerned in the workplace:

First, there are numerous types of SRS, some of which alter the genitalia only slightly and others of which vary in their effectiveness and appearance. An SRS requirement requires the Company to obtain and assess proof regarding specific details of the employee's medical history and treatment. This is problematic because such questions may impact medical privacy laws, which differ by jurisdiction. Furthermore, the use of SRS as a factor may create the perception that the Company endorses, condones or regulates its employees' decision to undergo gender transition. This is undesirable for reasons including employee relations, public relations, insurance coverage and potential litigation. It is best for the Company to stay out of the employee's medical decision-making.

Most problematic is the fact that the standards of care of the primary medical organization in this area (www.wpath.org) require successfully living as the opposite sex for a year or more prior to medical approval for surgery. Therefore, it is likely that an employee in transition will not complete his/her medical treatment for a substantial period of time. Requiring an employee who appears female to the general public to use a men's facility, or vice versa, will likely cause more workplace distraction than necessary....Frankly, although the use of SRS as a factor is intended to avoid objections to facilities usage, it fails to accomplish this goal because SRS does not address all objections to facilities usage. SRS affects only a small portion of the body not usually disrobed in a workplace restroom. SRS does not remove visible androgyny, nor does it remove the knowledge of co-workers that a transgender employee was born in the opposite sex. The source of the concern among co-workers, if any, lies here, and will not be removed by an SRS requirement. Rather, the issue is the comfort level of reasonable co-workers with sharing that particular space with that employee. The set of five Facilities Usage Criteria suggested here better achieves the company's goals of maximizing workplace harmony and minimizing distractions.

It may well be that Rep. Frank was misquoted as to the "set of genitals" comment. Alternatively, he could also be attempting to provide political cover for ENDA, Or he may simply be a bit confused about this issue, as many people are, and meant to refer to the "consistent presentation" requirement.

We don't know what he meant. It certainly sounds like a surgical requirement, but everything I've been hearing from DC emphasizes that there is not and will never be a surgical requirement. I'm in no position to cover for Rep. Frank, so all I can say is that we will have to see.

Alison Green's "Ask A Manager" Column: Is my transgendered coworker using the right bathroom?

Alison Green writes the "Ask a Manager" workplace advice column for U.S. News & World Report's Web site. This week on her personal blog, she addresses a reader question: Is my transgendered coworker using the right bathroom?

Since this post is already long enough, I will note that you can read it at the link just above. I helped her craft an answer. As the question shows, there is a great misunderstanding of how gender transition usually occurs in the workplace, as well as how to handle bathroom access. It's never a situation where someone decides one day to dress as the opposite sex and demand opposite sex bathroom access. In addition, the question of one's "real" or "legal" gender is completely irrelevant to the issues faced by managers in addressing gender transition in the workplace.

There are some interesting comments on Green's site. They show the level of confusion that we are dealing with here. You might even have some useful comments to share with the workplace managers who read Green's column. You might start with the fact that "transgender" is usually considered an adjective, and that "transgendered" is generally thought to be incorrect usage. (I forgot to mention it in my email to Ms. Green.) Of course, we differ on this even within the trans community. Oy, let's not get into that again.

Recent Entries Filed under Politics:

Leave a comment

We want to know your opinion on this issue! While arguing about an opinion or idea is encouraged, personal attacks will not be tolerated. Please be respectful of others.

The editorial team will delete a comment that is off-topic, abusive, exceptionally incoherent, includes a slur or is soliciting and/or advertising. Repeated violations of the policy will result in revocation of your user account. Please keep in mind that this is our online home; ill-mannered house guests will be shown the door.

Well, i'm glad I finally know what 'dog-whistle' means, if nothing else, helps explain a lot of other posts i've read...

Angela Brightfeather | May 10, 2010 12:44 PM

Well, the groundswell is beginning to come into my email and it is overwhelmingly against any "bathroom" addition to ENDA.

The major fear that I am getting, and rightly so, is in two major areas that end up in the same place.

First, there are many Trans people who are working right now for companies and have been in the process of transitioning for years and are looking at more years before they can get surgery. Why? Because they work for low paying employers in the only jobs that they can get and many of them have been using the bathroom consistent with their gender presentation for some time. Under ENDA they would now be forced to use the opposite bathroom that they have not been using for years. They would immediately be in danger and exposed to ridicule at the very least and threats, beatings or death at the very most. Feelings run deep on this and one might equate it to a married hetero CD telling their SO that after 10 years of marriage they have been dressing in the oppostie gender and intend on continuing to do so. Any one who has gone through that turmoil knows only to well the deep emotional strain and outright anger that causes for the SO. Now apply that deep emotional strain and outright anger to someone you have been working with for years and lying to. Not a pretty picture at all and exactly how will a bathroom add-on to ENDA that requires surgical necessity to use that bathroom, benefit these people and not lead to more Trans deaths and beatings? Or don't people care about that? Let's remember that most of these Trans people who have been working this way, usually have told a few trusted friends about their situation and stand the mistaken chance of ENDA now being seen as the perfect time to mistakingly out them.

The other point being made in the grassroots is....isn't this whole concession admitting that Trans people are a threat if they use the wrong bathroom and doesn't it justify the illigitmate concerns of the religous righters in casting Trans people as peeping pansies and pedophiles?
Why would anyone want to change a law like ENDA to indicate that there is a threat when there is not one? Doesn't this justify the Trans-panic defence in many cases and provide some substance to the fact that Trans people are dangerous to others?

The overwhelming impression that I am getting right now is that if bathrooms and surgical requirements are in, it will put in jeopardy many Trans people. It's not needed except to appease the wrong people. It maligns the integrity of all Trans people and it is outright dangerous for anyone who can't afford immediate surgery to conform to the "genitalia" language that Frank has let slip out.

To put this in the right context, how successful would this bill be if gays and lesbians were required to immediately inform everyone they work with that they are gay, lesbian or bisexual before they could use the same shower or locker facility?

There is no doubt that there are many good things about ENDA that will be accomplished inthe future. But we need to protect the people who have and still will be living under the same conditions as pre-ENDA in the ENDA bill that is being voted on now. To do otherwise is to simply feed them to the wolves out there.

I agree with your points. The real problem is that we don't really know what the language is. We don't know if there is a surgical requirement, which as I mentioned above is totally inappropriate and I agree with you on this. We can't oppose something that doesn't exist.

As you heard during tonight's conference call on ENDA, Mara Kiesling reported that her understanding that restrooms will simply be added to the section of the bill (Sec. 8(a)(3)) on shared facilities, such that employers would not be permitted to force a trans woman to use the men's room, or vice versa, but also would not be required to allow a trans woman to use the women's room, or vice versa. Instead, the employer would have to provide alternative "facilities that are not inconsistent with the employee’s gender identity." I wish that we could get ENDA passed without any such language, since, like Angela, I believe that it's unnecessary and based on the false claim that trans women are a threat to others in women's restrooms. However, if that's what's required to make it illegal for employers to fire, refuse to hire or otherwise discriminate against trans people, I'm all for it and urge others to support it as well. Most importantly, there is no move to limit trans protections based on surgical status, even with respect to restrooms.

Hi Jillian,

In an argument for the passage of ENDA, I am wondering why diminishing the significance of genital surgery is necessary. There are several states and municipalities that all ready have non-discrimination protections for "transgender" people.

Isn't the best argument for passage the readily available fact that in the localities where non-discrimination protections are written into law there has been no social disruption?

As far as medical privacy being demanded of someone who has had SRS being in conflict with medical privacy laws, wouldn't a demand to have anyone provide proof of legal gender be in conflict as well because sex determination at birth is made by the attending physician and is based on the configuration of external genitalia? Legal sex for everyone is a medical decision and, therefore, a part of everyone's medical history.

Isn't it a bit disingenuous to assert as you do here, where you are quoted as saying:

"The fact that the transgender worker had certain medical procedures usually does not alleviate the concerns of those who object and, as I pointed out, does not change their "legal"

I am well aware of the patchwork of laws and court decisions. I was born in Tennessee but the federal government recognizes my legal sex as female. For me that is based on certain specific medical procedures. So, while I might not me able to have a court rule in my favor in a divorce settlement, I think the fact that I am legally recognized as female does put me in the legal category of female in most instances.

Another question I have is if Minnesota already has legal protections regarding the employment of transgender people, why as you say is this the case:

"In a separate case, the Minnesota Supreme Court upheld the employer's right to deny the bathroom of the new gender to the transgender employee. Thus, it is usually up to the employer to decide what is best."

Segregation is discrimination. It seems the way you reason, the way I am recognized by the federal government does not matter; therefore, if an employer knows my medical history, that employer could capriciously refuse to recognize the fact that the state where I now reside, which has a non discrimination statute, and the federal government legally regard me as female?

What am I missing here? There seemed to be much more consensus that a complete legal sex change was possible even if it weren't complete consensus. Am I witnessing the erosion of whatever consensus existed that that is possible?

I think people really need to look beyond the internecine squabbles among those considered to belong to a community that in reality doesn't even exist. The question is what makes anyone male or female in the first place? Why are so many let off the hook.

I have one more thing to address - the person in a dress who has a beard. Are you telling me that a woman with pronounced hirsuitism should be subjected to scrutiny before she is allowed to enter a public restroom that is appropriate for her? I think there are cases where "gender expression" can be just as tricky as anatomical questions.

I'm sorry, Edith, but I can't figure out what your questions mean. Can you ask them in English?

Dear Dr. Weiss,

I hope this is clearer and more to the point.

1. Why two long paragraphs on how little genital surgery means?
What point are you trying to make? Does the fact that people do not go through an extensive series of tests when they are born to determine karyotype, hormonal balance, etc. and are judged to be the sex their external genitals indicate they are, have any bearing on people who undergo "sex reassignment surgery"?

2. What do gender/sex markers on documents such as birth
certificates and passports mean? Why bother having them
changed if it has no bearing on the legal status of one's
sex/gender? Is it merely to avoid unpleasant situations when one is stopped for minor traffic violations and boarding airplanes, etc. ? Don't many states afford people the right to
marry someone of their assigned birth gender in marriages
recognized as heterosexual marriages after "sex reassignment
surgery"?*(see footnote below)

3. Why use the acronym SRS, which is generally understood to
mean "sex reassignment surgery"? Exactly what is reassigned when one
undergoes "sex reassignment surgery"? How is sex
reassignment different than "changing one's legal gender"?

4. Exactly what does legislation that includes protections for
"gender expression" provide for "transgender" people? Does
a person have a legal right to use facilities that are
appropriate for a person's gender expression under such legislation or is it always left at the discretion of an employer restaurant owner, etc.?

5. Suppose someone born/assigned female at birth develops hirsutism and doesn't wish to use depilatories, shave or have electrolysis and hormone treatments but still wishes to live as a woman and is masculine in appearance. Will external physical appearance have any impact on an employer's ability to discriminate because she is unwilling to present in conformity with the sex she is? What kind of pressures might be placed on people to have their gender expression conform to societal expectations?

I apologize for the fact my writing is awkward. Is the average transsexual or transgender person supposed to have all this sorted out without any legal training? Do people who have legal training have it sorted out? Do medical professionals have it sorted out? Does modern understanding of genetics, advances in surgical procedures and genetics raise any questions in relation to any of these issues?

I don't understand the law very well. It is, however, very difficult to understand what my legal situation is. I think I may have been under the false impression that my legal status is female, from what you write, in the jurisdictions most important to me at the present time. Under legislation that covers gender expression, I am wondering what the advantages will be for someone who has had sex reassignment surgery. I also wonder what might possibly change if the point is continually driven home that SRS is to be regarded as only superficial.

*Personally, I consider marriage equality important for many reasons. For the same reasons I have many questions about what the term "same sex marriage" implies.

for what it's worth I meant to say:

"Does modern understanding of endocrinology"

Where I wrote:

"Does modern understanding of genetics, advances in surgical procedures and genetics raise any questions in relation to any of these issues?"

mea culpa

Thank you, Edith, these questions are clear.

1. Why two long paragraphs on how little genital surgery means?

A: It means very little in relation to the term "gender identity." Identity is an internal phenomenon that does not require surgery. That is the language used in ENDA and similar statutes in the US.

2. What do gender/sex markers on documents such as birth certificates and passports mean? Why bother having them changed if it has no bearing on the legal status of one's sex/gender?

A: They mean that the particular jurisdiction issuing the document has agreed that the legal sex of the issuant has changed for purposes of that document. Unfortunately, several US courts have ignored these changes, ruling that the person's legal sex has not changed for other purposes, such as marriage, or for other jurisdictions. There is no law in the US anywhere that says a person is now legally male or now legally female for all purposes. I feel that this is wrong and should be changed.

3. Exactly what is reassigned when one
undergoes "sex reassignment surgery"? How is sex
reassignment different than "changing one's legal gender"?

A: One's sexual anatomy is medically reassigned, but that, unfortunately, does not mean legal authorities must recognize the reassignment. "Sex" is a constellation of biological and gendered attributes. In using the term "changing one's legal gender," I was trying to debunk the notion that one can do so, for all purposes, under current law.

4. Exactly what does legislation that includes protections for "gender expression" provide for "transgender" people? Does a person have a legal right to use facilities that are appropriate for a person's gender expression under such legislation or is it always left at the discretion of an employer, restaurant owner, etc.?

A: ENDA is only about employers. Under the current text of ENDA as found at thomas.loc.gov (HR3017), a person would have a right to use dressing room facilities that "not inconsistent" with their gender expression. There is no bathroom language there.

5. Suppose someone born/assigned female at birth develops hirsutism and doesn't wish to use depilatories, shave or have electrolysis and hormone treatments but still wishes to live as a woman and is masculine in appearance. Will external physical appearance have any impact on an employer's ability to discriminate because she is unwilling to present in conformity with the sex she is?

A: ENDA would prevent discrimination against this person because of their gender expression.

Your questions are very important one, Edith. I apologize if I implied they weren't. At the same time, as a lawyer, I try to give precise, accurate answers, which I can't do if I don't understand the question.

I remember talking to a friend once about all the things I had to think about as a trans person, and she also wondered, like you, if one had to have a law degree to be trans. :) Of course, the answer is no. But it points up how desperately our community needs clear legal guidance on these types of issues.

I note that my answers are not intended as legal advice. I am retired from the practice of law, and you should consult a lawyer for legal advice on the laws of your jurisdiction.

Thank you for taking the time to respond. I hope you have had a nice birthday.

I disagree with your assertion that "gender identity" is entirely an internal phenomenon. Ann Fausto-Sterling's use of M C Escher's image of ants on a mobius strip is illustrative of the way I think sense of self develops in some who have conflicts with their sex assignments as well as everybody else. She quotes Elizabeth Grosz on this. She asserts the external and the internal exist within the same plane but that one moves from the inside to the outside and back again, the same way ants walking along a mobius strip would.

I think sense of self develops out of interactions between the internal and the external. Medical treatments change both and the rest of the world reacts to those changes even if they are not all visible. I think this is pertinent and makes more sense than a term which usually has the word disorder attached to it. I prefer to think of my sense of self being in opposition to my sex assignment than to my gender identity being disordered because I am sure that is the case. I see my sense of self having as much to do with my body as my mind. Human bodies are very complicated. Consistency within the same body isn't always guaranteed.

Anyway, happy birthday.

Thank you for your birthday wishes, Edith.

I understand that you disagree with me on my statement that gender identity is an internal phenomenon. I respect your feelings on this matter completely. At the same time, let me explain why I feel as I do.

I said gender identity is an internal matter, meaning that it is to be respected under ENDA regardless of sex reassignment surgery. In other words, one's gender identity can be male or female regardless of the state of one's anatomy.

You, however, say that the external and the internal exist within the same plane but that one moves from the inside to the outside and back again, the same way ants walking along a moebius strip would. You also say that medical treatments change both, even if the changes are invisible.

As a lawyer and a social scientist, I say where is the proof of this extravagant theory? Again, I respect your right to believe this, and you have good company, Fausto-Sterling and Grosz and others. But I have a lot of problems with "gender theory" in general, much of which is based on linguistics and philosophy rather than psychological or medical data.

As far as I know, gender identity is internal. Could I turn out to be wrong? Yes. But I have problems with people like Fausto-Sterling. Although I respect her as a scientist and philosopher of gender, I think back to her assertion that there are five genders with a certain horrified amusement. Creative and interesting, yes. Also bullshine.

There are a lot of sincere people out there who want to help us and who contribute their creative and sometimes whimsical best to changing the standard gender model. That's a good thing, and I applaud them. But I would not base law or policy on their musings.

Hi Jillian,

I have gone to see Fausto-Sterling speak a few times. I strongly disagree with a lot of what she says. That fact, however, does not cause me to believe everything she has to say is nonsense. I think the complex interaction she speaks of that takes place between the person and the environment
is important to understand. I think gender identity, a lot of times, has to do with the way the world identifies a person as much as the way a person self identifies. I think this applies whether a person has genital surgery or not. I think SRS does add another aspect which shouldn't be overestimated or underestimated. I am not entering into either side of the arguments that persists between the "non-ops" and "post-ops". There are other points of view.

I think the concept of gender identity creates a lot of problems, not the least of which is the way it is written up in the DSM. Talk of how the Americans With Disabilities Act requires employers to make accommodations for some people should apply to transsexual and transgender people sets off alarms in my mind. So do the comments by a couple of people who have posted here that they are required to use a port-o-john where they work. I find that very disturbing. Technically, I suppose, that would count as making accommodations available so transgender people do not have to use "the wrong restroom".

"They show the level of confusion that we are dealing with here."

There does seem to be a lot of confusion and opposition. According to you, not even Barney Frank, a co-sponsor, "understands" your trans issues. This is exactly why the whole mess should be excised from the bill. Gay rights have been derailed by a sideshow focused on genital sets, bathrooms and bearded men in dresses.

All of this is because of the laughable notion that gay people have some kind of duty to sacrifice everything for transgendereds. They don't. Indeed, we should be standing with employers who don't want to be put in a situation of having to become gender studies scholars just to avoid being sued in federal court.

You wrapped it all up pretty nicely:

Barney Frank doesn't 'understand' trans issues b/c he has no more liking for 'transgendereds' or their issues than you do. He too would be pretty happy to make it 'gay-only' and nothing to do with 'gender.'

And no, noone owes anyone else any allegiance, some ppl just support others b/c somehow they see a common link that those who just categorically reject them don't...

Fortunately, Susan, your opinion is a minority among gay people. Trans people are here to stay. Welcome to the 21st century.

No one is asking lesbian, gay or bisexual people to support the inclusion of gender identity protection in ENDA because they have "some kind of duty to sacrifice everything for transgendereds." Instead, LGB people need to support such inclusion because otherwise they will not be fully protected from employment discrimination. Often, LGB people are the objects of discrimination or harassment not because they are in, or prefer, same sex relationships, but, instead, because their gender expression (in dress, mannerisms, etc.) doesn't conform to what their employers or coworkers think a man or woman "should" look or act like. So, don't support a fully inclusive ENDA for my sake, but for your own.

BTW, "transgender" is an adjective, not a verb or a noun. Therefore, "transgendered," with or without the additional "s", is incorrect.

The follow-on comments by the OP in the AAK thread are quite interesting, as they give a more complete and pernicious account of the situation.

Basically, a woman hired into the company as a woman and has consistently lived as a woman, but somehow ppl found out she was previously male-bodied. So now, she is treated as a crossdressing man in the office gossip, even though that isn't how she is living her life. She is routinely outed to new employees/visitors to 'warn' them about her (I can relate, I often meet new ppl to my work area, have them be friendly, then suddenly change in a few days, likely b/c someone 'filled them in/ about me).

ENDA has a lot of good aspects, and is needed, but it would sure be nice if caring and acceptance and empathy could be poured into ppl, would obviate the whole need for ENDA.

And I agree with Dr. J., that:

"The fact that the transgender worker had certain medical procedures usually does not alleviate the concerns of those who object and, as I pointed out, does not change their "legal" gender."

Current anatomy is recognized as governing only if it aligns with the prejudices of the ppl doing the judging: if it is a MTF with a penis, the person is a 'man in a dress,' while if this same person has a neovagina, the person is a 'man in a dress who has mutilated himself,' rather than a woman then either. Maybe 'true transexuals' should consider this a bit...

Oh, and of course, as usual, it's all about a trans woman, not a trans man. 'Cause trans only means women in dresses, and really, these same ppl objecting (men and women) about the trans woman would prolly rather a trans man use the men's room anyhow, for differing reasons.

That isn't even to even mention how much more prohibitive bottom surgery is for trans men than trans women, in terms of cost, short-term and long-term medical impact, and degree of alignment with the desired genitals. Or that if the company's health insurance paid for surgery (top and/or bottom), more ppl would have it (not eveyone, of course, but those who want it but can't afford it). I had to fight at my company just to get paid medical leave, nevermind insurance coverage (it was deemed 'not medically necessary, esp as a certified plastic surgeon was doing it rather than a gyno).

Carol ~

Hi Carol,

Maybe I should have pasted up the last part of the quote by Dr. Weiss I used:

I don't have any trouble understanding this part:

"The fact that the transgender worker had certain medical procedures usually does not alleviate the concerns of those who object"

but I believe this part only to be partially true:

"and, as I pointed out, does not change their "legal" gender."

which, I think, means that in certain cases "certain medical procedures" do "change their legal gender".

I am not familiar with how our non-discrimination law reads in R I but we have one. I am sure if there were problems with transgender people using gender appropriate public rest rooms
it would be all over the news. I am not aware of any such news stories. I don't remember reading about any workplace discrimination suits here, either.

I don't think it is necessary to have genital configuration language in federal legislation. I think there is a lot of evidence to support that. I think the issue of SRS is a distraction and shouldn't be necessary in an effort toward getting legislation passed. I don't want to go off on tangent here arguing over its significance. Segregation is discrimination, however. How is it that Minnesota, which is a state that is supposed to have protections against that, has decided that it is justified at the whim of the employer?

I sense something very complicated here. I think the way society operates is under either/or assumptions. What should be obvious to most people is that it is much more complicated than that. More obvious is the fact that things, very often, are not how they should be. So, what will the outcome of all this be? You are either/or based on what the doctor determined you are when you are born but in certain cases we will make exceptions to the rule and in some we won't? Which facility are "transgender" people taken to in Minnesota if they are remiss in paying speeding tickets? I don't know where transgender people go here but I do know people who have spent all weekend at the men's intake center, which is a hellish place to be at the correctional institution here for men who have no identity conflicts with their assigned sex. Is it up to the employer to decide what is best in other instances of discrimination.

Someone recently wrote somewhere that the positive discussion regarding surgery is one about enabling access for those who need it. Accusations of elitism can be directed toward people who have access to other medical procedures, employment, housing, etc. It is really a distraction when discussing human rights for sexual minorities.

Edith, the Minnesota case, which Jillian apparently discusses in her book, since she doesn't mention it in this post, is an older case and, in my opinion, an anomaly that probably would not be decided in the same way today. My understanding is that the court in that case simply decided that discrimination in access to restroom facilities in the workplace by transgender people was permissible despite Minnesota's ban on gender identity discrimination, a position that is clearly illogical and wrong. More importantly, under both Minnesota's state law and ENDA, one's surgical status and "legal gender" are irrelevant, since they protect against discrimination based on one's gender identity or expression, not surgical status or gender.

Yes, Abby, I agree with you that the Minnesota Supreme Court case was wrongly decided. However, an appeals court in NY recently adopted the same opinion. I'm not so sure judges are any smarter today.

Really? That's truly sad. Any chance you could send me the name and citation of the NY case? (I think you can access my email via my profile here. If not, I'm on your friends list on Facebook and you can PM me there.)

I'm sorry, Carol, what do you mean by the OP in the AAK thread?

'Original Poster'

Okay, Carol, thank you for explaining. And now what is the AAK thread?


AAM: Ask A Manager


Evangelina | May 10, 2010 5:29 PM

I don't know what all the fuss is about really. Which bathroom an individual uses has always been based on genitalia ever since bathrooms came into existance. Why do the crossdressers now seek to change that? Are they looking for some form of daily affirmation of their fantasy?

Personally, I believe it's selfish of transgendered to hold up and perhaps even derail a desperately needed piece of legislation by gay lesbian and bisexual folks. If they (TG) had any grace they'd back out and allow GLB their rights.

There are Intersex conditions.

There are some people born looking (mostly) typically of one sex, but who may have genitalia that's ambiguous. Neither one thing nor another. There are many more with non-standard genitalia that looks mostly like one stereotype, but not completely. And that may not match the rest of their body.

Which restroom do you think they have been using since segregated restrooms came into existence in the 18th century?

How is a "genital requirement" to be enforced? Are we to have registered "genital inspections" now, for everyone, so you have to prove you're not Trans or Intersexed - or if you are, that you've had surgery to make your body conform to socially accepted norms?

There's shades of the recent law in Arizona, which although ostensibly targetted at illegal immigrants, will force all US citizens to carry proof of citizenship, lest they be detained until "reasonable attempts" have been made to ensure that they really are citizens or legal residents.

There's a reason why such restrictions as have been rumoured to be in ENDA haven't been in state and county laws. It's because it opens a whole new can of worms, and removes the longstanding rights of people who are Intersexed, or Trans and Stealth.

There have already been attempts in some places - Brighton Stadium in the UK for example - to have X-ray machines similar to those in Airports to ensure genital conformity in restrooms. Are these to be mandated now?

and which restroom did *you* use while you were transitioning?

And what about my friend Terry, who was born with a vagina and has always identified as female, yet is consistently questioned when using the women's room due to her masculine facial features? She's no cross-dresser. Is she supposed to piss in the streets to avoid making other people uncomfortable? Or does she have to drop her drawers on entry to prove to all and sundry that she is, in fact, in the "right" restroom?

Besides, restroom usage has never been about genitalia. Panty checks have never been required to use the women's room. The fact that you and others may assume what someone's genitals look like based on your perceptions of the rest of their appearance still means that it's the person's outward appearance, not her/his genitals, that leads you to approve or attack the person's use of one restroom or the other.

Evangelina, I don't believe it is part-time crossdressers looking to use bathrooms of the opposite sex. Rather, I think ENDA is designed to protect people who present consistenly in a sex other than that assigned at birth from workplace discrimination, whether or not they have surgery. It would not be appropriate for persons consistently presenting as female to be required to go into a men's rest room, or persons consistently presenting as male to go into a women's rest room.

I may be wrong, but I kinda have the idea that she is referring to fulltime trans ppl who havent had SRS, and dont plan to...

I just wanted to comment on the surreality of listening to Jillian live on the phone (on the ENDA conference call) while reading her on Bilerico.

Jillian, for whatever it's worth, here's the email I sent to my representative in Congress, Rep. Ann Kirkpatrick of Arizona's U.S. District 1, in response to your post:

Rep. Kirkpatrick,

I want to thank you again for your courage in co-sponsoring the Employment Non-Discrimination Act (ENDA), HR 3017.

ENDA is of vital importance to lesbian, gay, bisexual and transgender people in Northern Arizona, especially transgender women like myself. Since I'm a self-employed attorney, I've been lucky and haven't had to worry about losing my job because of my transition, but most of my trans sisters and brothers are not so fortunate. In fact, a recent survey of nearly 7,000 transgender Americans nationwide found that 97% of them had experienced some form of employment discrimination. (Preliminary findings from that survey can be found here: http://www.thetaskforce.org/reports_and_research/trans_survey_preliminary_findings.) That discrimination is the cause of the long-term unemployment and rampant poverty among transgender people. (A 2008 survey of transgender people in California by the Transgender Law Center - http://www.transgenderlawcenter.org/pdf/StateTransCA_report_2009Print.pdf - found that transgender men and women are twice as likely to live below the poverty line and to be homeless as the rest of the population, despite having higher levels of education than most Americans.)

Some Democrats are decrying the push for ENDA, saying that Speaker Pelosi promised that the 2010 session would be dedicated to jobs creation. What better way is there to boost employment than protecting some of our most talented, and most marginalized, citizens from unfair discrimination by passing ENDA?

Please press your fellow Democrats to stand fast to the values of equality and justice that have been the hallmark of our party since its founding and fight to ensure that ENDA gets to Pres. Obama's desk this year.

Thanks for your consideration.

Abigail Jensen

Evangelina | May 11, 2010 12:56 AM

Jillian, my last comment was made kinda tongue in cheek and somewhat flippantly. I do have a serious point too make.

It seems clear to me that the biggest hurdle for this bill through congress and later The Senate is the section that covers TG and bathrooms. Why not drop it give GLB their much needed protection in employment etc. and solve the bathroom issue later with an addendum to the bill.

I had the same issue Abby's friend has but in reverse, so using bathrooms during my very short transition period was never an issue I used the female. The practical reality is that if your image is acceptable in public, who's gonna know? At work if you are "out" then I don't think the Feds are going to police a private arrangement. It is never going to happen that you can legislate for every contingency. At some point peole have to get reasonable.