Guest Blogger

ENDA Is Dead: Bury It and Move On

Filed By Guest Blogger | January 17, 2011 5:30 PM | comments

Filed in: Marriage Equality, Politics, Transgender & Intersex
Tags: Babs Casbar Siperstein, Don't Ask Don't Tell, Don't Ask Don't Tell repeal, employment protections, ENDA, nondiscrimination laws, transgender protections

Editors' Note: Babs Siperstein is a member of the Democratic National Committee, co-chair of the National Stonewall Democrats' Federal PAC Board and Political Director of the Gender Rights Advocacy Association of New Jersey.

Babs Siperstein.jpgAttending the signing of the legislation that would enable the repeal of "Don't Ask Don't Tell" was incredibly joyful and exciting! As I watched the signing of the repeal I was ecstatic, but it was bittersweet as I thought about a friend, a decorated very senior NCO who, after two stints in Iraq, had only two weeks earlier been sent to Afghanistan, after she had secretly begun her gender transition. Think of the anxiety and fear!

I also thought about another friend in northern Arizona, Jennifer, a Vietnam vet, who was just elected as Commander of her VFW post, perhaps the first transperson to be so honored. When given a reasonable chance, most people get it. It should be a no-brainer.

ENDA should have been a no-brainer. It had 200 sponsors and apparent momentum after the committee hearings in 2009. It was considered low-hanging fruit and ready to move after the historic passage and signing of the Matthew Shepard and James Byrd Jr Hate Crimes Act. It was generally acknowledged as must less controversial than DADT.

Almost 200 of the Fortune 500 companies have fully inclusive policies and about 40% of America's population live with state, county or local legislation covering the entire LGBT community with employment protections. Many state and local laws cover additional areas such as housing, public accommodations and some even cover credit. Right here in America! No problems! It's not as if we have to compare to laws and policies in Australia, Great Britain, or Israel.

So what happened? After all, ENDA is about jobs. Wasn't the whole nation concerned about our high unemployment rate? Weren't we talking about jobs? ENDA appeared to be the low-hanging fruit of equality legislation. Low-hanging fruit, indeed, only this fruit was left to wither and rot on the vine. And unlike the "rot" of d'Yquem this was not noble.

Honestly, I'm angry as hell and frustrated as well at either inability or the unwillingness to pass ENDA. I chatted with Speaker Pelosi in November 2009 when she spoke quite definitively and confidently of passing domestic partnership benefits for federal workers, ENDA, DADT repeal, and DOMA repeal in that order. A week later, ENDA went to committee for what I thought was a mild tune-up and action.

Try as I might, I could get no information about what was happening with ENDA. I heard that it was all about heath care legislation, but there was something more and no one was talking to me.

In February 2010, I questioned the Speaker at a breakfast after she had mentioned DADT as the only "gay" legislation. She expressed surprise at my question and implied that everything else was on track.

After that, we only heard about DADT.

Cutting Through the Bullshit

As far as organized DC lobbying with transgender inclusion, there was a NCTE event where we in NJ synergized with Garden State Equality and had a caravan of LGBT people and straight supporters come down to DC and meet with representatives and senators in a united front.

We saw that a new LGBT advocacy group had a half dozen or so people sit in at Speaker Pelosi's office to protest on behalf of ENDA. Wow was that impressive... Not! To me, that was counter-productive. Now, if they had 200 people, including families of LGBT people, parents, partners, spouses, siblings and children, that would have been a statement.

So, what did we hear from ENDA's prime sponsor?

'There were issues with the motion to recommit.''

Explaining the''issues,'' he said, ''Everyone thought we had the votes on the underlying measure, but it depended on what language the GOP [brought up] on the motion to recommit.

''Many felt it would be troublesome sign to take it to the floor and not to be able to overcome the motion to recommit.''

Frank expanded upon that, adding some specificity to the fears, saying, ''What they were worried about was a motion to recommit, like saying that an elementary school teacher can't transition in the middle of the year.''

I think that a reasonably well-versed person on the ENDA chronicles might brand this as bullshit. It appeared to be a redux of 2007, when there was supposedly a problem with transgender language that everyone knew about, but neither the bill's sponsor, the legislative leadership, nor the big beltway advocacy organizations did anything to address.

If there was some real attempt to address this so-called problem in an effective, direct and business-like manner, I am certainly unaware.

I thought This time it will be different. We have a bill that the President will sign, we have the momentum, and we have a Democratic Party that had gender identity in their convention platform and a Democratic Party that had "gender identity" nondiscrimination inclusion in their charter and by-laws.

There were also people available to address any Congressperson's concerns, available to educate on a one-on-one basis if given the opportunity. Those people had a track record of reaching across the aisle and bringing in votes for transgender inclusion in legislation. There was also a former well-respected Republican Congressperson who expressed an interest to help, one who actually had a personal friend who is transgender.

The Transgender Boogeyman

The great fear was a motion to recommit regarding transgender language. With senior Republican Congresswoman Ros-Lehtinen supporting the bill, how far would they go to demonize her transgender son?

So what did ENDA's prime sponsor do? Did he pick up the phone and make a call to his former colleague? Did he make any attempt to facilitate the use of people that had a track record of success?

I recall visiting a "blue dog" Democrat from the South, getting direct access thanks to a Democratic LGBT activist from his state. We hit it off because I could relate to things as we were both vets. He said that I was the first transperson he ever met and had several pointed yet relevant questions, which I answered. I had his vote.

The same day I visited an uncommitted Senator and met with his senior staff. We had a productive conversation, where they had some good questions. Strangely, they had one question that required a detailed answer, which I found on HRC's website. Did HRC ever speak to them?

If there was a problem with teachers, why not address it directly? There are teachers who have transitioned successfully across the country. Bring them on!

"As to that education, Frank had a message for LGBT advocates, saying, ''In the interim what the community needs to do is educate on the transgender issue.''

The point was echoed by the Democratic leadership aide, who said ''there has not been the work done by the community in the Senate'' to ensure the passage of an inclusive ENDA."

Barney Frank has said this before, and he was saying it again, even after he said that advocates had been doing a good job of educating. That was a bit of mixed messaging.

As far as the Senate is concerned, it was very quiet. In April of 2010, I met with Senator Merkley's staff as well as Senator Reid's people and they were both on-message that the House needed to pass it first and that it would be very helpful if there were some "blue dogs" and genuine moderates to have voted for it.

But what do we get when it comes to messaging from ENDA's leader?

As Barney Frank said:

I would point out to you that they still have not been able to get transgender protections in liberal places. If you can't do it in Massachusetts, New York and Maryland, it doesn't get easier when you add in South Dakota, Oklahoma and Utah.

Now that's really encouraging. Some people look at a glass and see it half full and others see it half empty. He points to liberal places where transgender protections have failed; there's Massachusetts, which has marriage but no state-wide trans protections. It does seem perverse, but it probably says more about the LGB political infrastructure and how inclusive it is of the T. Why can't we look at the success stories of Minnesota, Maine, and Colorado, states that aren't the most liberal in the US?

What Can We Learn?

Did those liberal states really have a desire for transgender inclusion? Did anyone reach out to folks from, say, New Jersey where we passed a transgender law that covered employment, housing, and public accommodations in the shortest period of time (less than two years from its introduction) and passed by the widest margin (102-8)? (I'm still ticked at two Republicans who said they would vote Yes and instead abstained.)

Did anyone ask what we did in New Jersey, seek our advice, bring our legislative advocates in to help? Did the LGBT community work in unison? Did the transgender activists and marriage equality activists work together and actually create a synergy and a larger footprint?

When we spoke about transgender rights, did we have one set of talking points? One size fits all? No, we had one set for Republicans and one set for Democrats and could freely supplement. Were there talking points for "non-liberal" people of faith? Did we micro-target when necessary? This wasn't rocket science.

It appears that ENDA is dead now and it should be buried and put to rest! We need a new LGBT non-discrimination bill that is more comprehensive and we need new lead sponsors without the baggage of he failures of the past which have fostered cynicism and a lack of trust that is expressed vocally and in the blogs by many of the folks who are in the most need of such protections. We need new "blood" and "fire" from people who express a comfort level with full inclusion.

LGBT inclusive legislation that covers multiple categories of employment, education, housing, public accommodations have records of success in several states and there should be a wealth of stories of discrimination - as well as a wealth of success stories where such legislation works and the sky did not fall.

We seem to be obsessed with the failures, but we should focus on the wins and learn from them and build on them. Every arena is different and has different ground rules, but the basic game is still the same. We adjust and move!

Failure Is Not an Option

I recall in the spring of 2005 trying to get a NJ Senator to introduce and sponsor our "transequality" legislation. We went after the most liberal Senator who refused, and we couldn't even get the state ACLU to support it. The reasoning was that they both thought they were doing the transgender community a favor since they thought we'd fail and, in doing so, lose what few protections that some transgender people had as a result of an appellate court decision!

Fail? Failure was not an option! But the uber-liberals had decided to be our gatekeepers and had already pre-judged our fate!

We just changed some tactics and had a prior political investment later reap dividends and all the Senators who originally said no, or refused to say anything, well, they all came around!

We cannot afford a "defeatist attitude on an inclusive ENDA, we need reality and a willingness and desire to push envelopes and sell it!

Some will say, what about amending the Civil Rights Act (CRA) or an LGBT Omnibus Equality Act? Both are worthy and noble! Certainly LGBT equality is about civil rights. An omnibus bill would address every bit of legal inequality and should be there at the very least as a reference for all to see where we are 2nd class.

As an author of The Dallas Principles, I want full equality now. No delays, no excuses! But I am also a pragmatist and realize that we must create the conditions for now to be now! Suffice it to say that neither bill appears to have support among some of our key allies. There must be a shorter and more direct way to now, and that is via a path that has worked in many states!

We have two years to put in a new bill and "work it" anew, while we make a much better effort to elect pro-equality legislators who will elect a pro-equality leader! For those who demonized the Dems, better get used to Cryin' John Boehner. He's got real alligator tears for our community.

For my Republican friends who insist that Boehner and Cantor really don't want to demonize LGBT people and deny us the opportunity to life, liberty and property, I say, "Show me." I hope I'm wrong, but show me in action; I've worked with both sides and give credit where credit is due!

So, who really gives a damn about LGBT employment, jobs or housing? And what are we doing to make sure it happens?

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There's dead...

...and then there's cremated.

If you find yourself in just the right horror movie, bringing a dead body back to life is a possibility...

but only if there's still a body to re-animate.

He points to liberal places where transgender protections have failed; there's Massachusetts, which has marriage but no state-wide trans protections. It does seem perverse, but it probably says more about the LGB political infrastructure and how inclusive it is of the T.

What state gets to claim Janice Raymond, Barney Frank and Dead Mary Daly?

Can we leave the late Dr Daly out of this? She has little to do with current politics but a lot of us entered activism at least partly fueled by th fire that she lit, particularly in Lesbian activism. We don't have to agree with everything that she wrote to find a lot of what she had to say inspiring and enlightening. For many Lesbians, despite her faults, she remains a heroine, human and flawed, but a heroine.
Rest Peacefully, Mary, except perhaps to breath fire into your daughter's souls through your words.

Last I checked, transsexuals hadn't held a gun to Mary Daly's head and forced her to hate on us while she was alive, as well as made her advise the dissertation of the lesbian (likely her lover) who started the most modern hatred of us.

So no, we have no need to leave Daly out of this; she had everything to do with it, and it bears reminding you of her bigotry in this case.

Hexy, this link might give you a beter idea of where Maura is coming from:

Marua is listed as an 'author' there. Although I haven't seen any posts by her, if she supports the ideology of this site, I would guess there isn't much light between her and someone who is strongly anti-trans.

Maura's own link lists her as a Lesbian Activist, which to me sounds like Radical Feminist/Separatist, and we know how they view trans women.


Kathy Padilla | January 19, 2011 4:21 PM

I think that would be a misattribution of another's thoughts to Maura.

Well, could be, I dunno. I was surprised to see her name as one of the three authors on that site, as she has always seemed pretty non-extreme to me.

However, and perhaps this is a stretch, but if she is listed there it seems to imply agreement with the ideology and contents of the site?

I made my post in hopes that Maura herself would respond, correcting me on my assumptions or otherwise clarifying her positions.

My blog is clearly labeled a feminist blog..I get it, you are anti-feminist. I have not even written a piece on trans issues in ages. Perhaps its my own feminism you find so offensive? or my religion perhaps? maybe my leftie politics?

Daly repudiated her position you all hate her for (a single chapter in a single book among a large and important body of work that inspired a lot of women) She did so in her last book, Amazon Grace but somehow I doubt any of you actually read any of her books.

Maura is anything but a "radfem", she has been more tolerant of the BS than I have been.

What amazes me is just how willing so many transwomen are to alienate all feminist women, especially the older ones. Do you seriously think that has not had an effect that you might regret?

I am a feminist woman, I had my feminist awakening even before the second wave began, back in the fifties actually when I was just nine years old.

ENDA is dead and what I am seeing here assures me it will never rise from the dead.

Yes, your blog is clearly labeled a feminist blog--specifically 2nd wave. And no, I don't particularly like the scorched-earth, radical branch of feminism you engage in. I am much more aligned with the 3rd wave you despise.

I don't much care about your religion. It seems to give you a defining framework to use for your world view, and it serves a lot of good for you and for your feminist and religious communities.

I am a leftie too, though as in most things I prolly am not pure enough for you in that regard.

Mostly the reason I don't like you is your attitude, and that you bring it to the one queer blog I like. I wouldn't care what you say on your own blog, it's just I have gone to your site to try to understand what the hell you are about, and find a lot of what you say to be mean, low, and vindictive (yeah, yeah, I know, so much worse has been done to you by cross-dressing transvestite she-males).

I honestly don't give a flying fuck about Daly or Raymond or Butler or any of them (I do really like me some Audre Lorde, though). I am not too interested in academia or theories that much, I jsut like to get along in life (I am sure this is sacriledge and I will be voted out of the Feminist Club...oh, wait, I don't belong anyhow!).

I never heard of Daly before this thread, I was just making a point about a possible connection between Maura and the views of someone who hated trans ppl (how did Daly feel about WBTs? she approve of those? since you have read her works, you tell me).

This may be splitting hairs to you, but I don't think I said Maura *was* a 'radfem', just that the things I knew about her pointed in that direction to me. And that I was surprised, because she has always seemed fairly mainstream.

When you say that transwomen are willing "to alienate all feminist women", I guess you mean the *real* feminists, the hard-core, true ones? Because honestly, as you have found at Feministe (and would prolly also find at Feministing) is that there are a lot of ppl who consider themselves feminists who are aligned with what a lot of transwomen are saying.

And yes, yes, we all know you were a feminist when you were 9 years old, it is like some defining-moment story that politicians tell to give themselves credibility. I'm not saying it isn't true (guess what? I have been a feminist all my life, too, had shitty asshole men in my family, and lots of strong women who were my role models), but arguing from authority doesn't get abyone or anything far with me (for examples, "Well, Romans whatever says blah blah blah...").

One place we agree is on ENDA. I think the odds are pretty low of it passing in my generation, though a trans-exclusive one might.

Why don't you take a look at the pledge that I asked people to take that is posted as a diary on PHB, Carol?

Thanks for replying, both to me, and for your clarification of your position on Daly.

I read your Diary entry, and it is fucking awesome. You couldn't be more clear about where you stand, and it doesn't surprise me given the posts I've seen you make here.

Which confusing me even more about why you are associated with RB's blog, esp when she says things here like (over in the Trans Nonviolence thread):

"Separatist? have to be something in the same grouping to then separate from it. Assimilatist? To what, being a feminist, Pagan, hippy woman? Just what assimilation is involved here?

I am a member of the LGBt world as a B, not a t. What is so hard to understand about that? Just how many decades does one have to live a woman's life in a woman's body before that is actually respected by the t's? That's the real question that is never never never asked or answered."

However, now I that I know where you stand, I won't use that to make assumptions about you again. I apologize for doing it in the first place; I misjudged you, and as Kathy said, misattibuted the position of RB's blog to you.

Thanks again so much,

Carol :)

I am a student of Luce Irigaray as far as feminism. I recognise that Daly did write an unscientific and ridiculous slam at trans people but that is a tiny portion of her complete writing, the best of which, perhaps, is Amazon Grace. Most feminists that I know took the best that Mary had to offer, and the inspiration and spirit that she aroused, and left behind her dated and regrettable tirade both concerning parthenogenisis and transsexuality. Dr Daly tended to write in hyperbole, alas.

Mary Daly improved the condition of women, all women, and whether she would have appreciated it or not, trans-women benefitted by the push that she gave to women's rights.

Kathy Padilla | January 19, 2011 9:38 AM

I admire many of Thomas Jefferson's words and actions. I would never tell someone they shouldn't bring up that he let his children live in slavery. This is part of OUR history - not just yours Maura.

Kathy, respectfully, it has been beaten to death. Further , a complete repudiation of Daly "and all her works" is in the end a repudiation of the structure fo much of the feminist movement between 1970-1985

Rest Peacefully, Mary, except perhaps to breath fire into your daughter's souls through your words.

If the fires of hell exist, they glowingly welcomed Mary 'she who equated transsexuals to Frankenstein's monsters and about whom there is absolutely no proof that she ever wavered from that view' Daly.

And if the devil exist, he's stoking those flames in anticipation of the arrival of Janice Raymond.

Only perhaps when the fires are done with the misogynistic Virginia Prince?

Daly improved the lot of all women and whatever she thought of trans women in the 1970's, trans women in the 21st century benefit from her work on behalf of women.

I think that the things that she wrote about trans people were both ignorant and inexcusabel, but that is aa very small portion of her entire works.

I think one of the biggest problems with ENDA has been that so few people know it doesn't exist yet. People think it's already illegal to discriminate against us.

There is an appalling lack of knowledge across this country, even among LGBTQ people, about the fact that you can be fired in 29 states for being gay or bi and 38 states for being trans.

So I think the first step is a massive public consciousness raising campaign. The orgs that have all the money need to fund mass media blitzes to raise awareness.

Totally. People love to think its all good without realizing how many are truly being hurt

Yet more evidence that BARNEY FRANK, not conservatives, is the one who won't accept trans ppl. It's obvious with every statement he makes on trans inclusion, and even statements he makes on gay rights.

Of course, with the new Congress, ENDA is likely dead, but when a favorable environment rolls around again, if Barney is still there, hopefully someone else will act as primary sponser and driver for it than Barney Frank.

I'm with this about Barney Frank. He has been stoking so much of the transphobic tropes that have repeatedly sunk any trans protections (and, I'm convinced, to the delight of the LGB-and-anti-T contingent.)

It must be something to both wear the sash of oppressed and the boots of the oppressors.

There are lessons to be learned in the failures, and time to position a proper, inclusive ENDA for when the time is right.

Kathy Padilla | January 17, 2011 6:56 PM

Great article Babs.

There are things we can do to address the stated concerns. And policies that can provide benefits, while eliminating the concerns. Let's continue our chat.

As to organizations priorities that seem out of whack with statements - you usually have to look at funding streams.

I agree with much that you say. ENDA was inexcusably, even cowardly, abandoned by the President, our "allies" in Congress, and the majority of "LGBT, Inc."

But the as-yet unactualized repeal of the ban was also, first of all, about job discrimination. Yes, only about job discriminaton against LGBs, but still....

From my observations at the grass-roots level, there'd be less opposition in the electorate to full Title VII protection than you think.

A constant theme in many people's opposition to ENDA was that it "granted special rights to gays", that "they were already protected like everyone else" by the Civil Rights Act.

I'd say over 70% of the opposition expressed this opinion, an honestly-held belief that GLBTs were after legal rights above and beyond that of Title VII, which they presumably already had.

It was difficult getting it through their heads that ENDA was supposed to be a compromise, an acceptance of second-class status as opposed to third. ENDA in that regard is illogical on its face.

Congresscritters may have a different view, but the support in the electorate is there, absent any hypothetical scare campaigns.

Meanwhile... with Barney involved, legislation regarding T's has to include segregated bathroom facilities, he insists on that. But he has no defence against motions that would compel Gays to have segregated facilities too, using the same logic. Therefore no such bill can be allowed to make it out of committee if it includes T's while he's involved.

Title VII amendment, which leaves the question open (as it does for segregation on the basis of sex) may allow a way around the Barney Block.

I think what we need is a comprehensive civil rights bill, and I think we need someone like Tammy Baldwin as a principal sponsor. We can also shoot for the moon and try for a federal gender recognition act modeled on the British law, though it might have to be limited to federal purposes, since things like the maintenance of birth records are a "reserved to the states" governmental function.

There's a fundamental misunderstanding of the meanings of the nature of rights in this country, not only among the general populace, but among many of the activist community, politicians, and the judicial community, as well.

This is why I am very careful to speak not of "gaining" or "granting" rights, but of the *equal protection of rights for all humankind*.

Rights are *inherent* in all people. They *cannot* be *granted*, they can only be *protected*, *denied*, or voluntarily relinquished to empower government. *People* have rights, states do not. States have powers, which are lawfully derived from the rights of The People (theoretically through consent, but as Randy Barnett rightly and deftly points out, true consent is something of an impossibility).

For example, *all people* have the right to associate with whomever they please, to transfer their property to whomever they please, to build families with whomever they please, etc. These are the building blocks of marriage.

Unfortunately, our government chooses to selectively protect those rights, and by default, allows clearly unconstitutional laws to stand which explicitly encode and enshrine discrimination in our society.

We *must* refuse to accept the false premises which lead to such discrimination, and demand equal protection of the rights of all humankind, NOW. We *must* continually monitor our language to acknowledge and reinforce a legally consistent conception of the nature of rights and of the equal protection thereof in the minds of listeners, NOW.

Failure to do so will lead inevitably to a continuation of the myths about these subjects that are directly contributing to the denial of the fundamental precepts upon which this country was founded.

HRC Thinks of us as useful to bargain with! Barney Frank Does not Like us Unless we are a bargaining chips! Look at Autumn Sandeen and her role in the handcuffing herself to the fence with Dan Choi! What notice did she get? She almost was not even invited to the signing of DADT! She was one of the five! T-people are not considered to be people. Just Freaks! By Gay Inc and most everyone else! Thank you Babs for being someone that people at least talk to! How do we get it across to Gay inc. & the "Average Joe or Mary that we exist we have always existed and we are who we are? Babs can you get a sit down with Barney Frank? Maybe that could do something?

Dear Regina, Zoe, Kathy, Carol and Andrea,

I’ve been watching video of the great Dr. Martin Luther King Jr. all day. I distinctly remember asking myself while I was growing up in the “lily white suburbs” of New Jersey and watched CBS Evening News stories about him from ’64 to ’66, when I was 9 to 12 years old, “who are negroes?” I honestly had no idea. The first time I ever saw an African American was when I played “Pee Wee” football for the first time against a team from a neighboring town, Westwood, New Jersey in ‘67. They “kicked our asses” that day, most of the team where African American.

My parents never spoke ill of African Americans back then but then they never spoke anything of them at all. I went through high school with no additional exposure to African Americans though I do remember other kids and their parents disparaging them (I’m being extremely polite!).

I didn’t experience “integration” until I attended college in Boston from ’73 to ‘77. I remember thinking about the disparaging remarks made previously by adults other than my parents but I also realized my parents never made any such disparaging remarks, ever! In college I became friends with many African American as well as lesbian and gay students. I remember thinking, “what’s the problem?” I really didn’t get it! I guess I had my own deep, dark secret subconsciously but in retrospect I really never understood discrimination in any form.

The only way we win enforcement of our LGBT birthrights is to let other people get to know us, hear our stories and hopefully understand our experiences. Babs wrote about meeting with a “Blue Dog Democrat” and hitting it off! Those of us who are “out” must have as many meetings like Babs did as possible. Those of us who aren’t out yet, but read this should at least be willing to vote for candidates, local, state and federal who accept us, not tolerate, accept us.

Finally, those of us who are “out” must teach our LGB sisters and brothers that the denial of transgender birthrights threatens every ones birthrights, eventually.

My love to all who’ve read this. I have this nagging dream!


Kerri Ellen Wilder | January 18, 2011 10:09 AM


You are so right about how we must let others know us and know our stories if we are ever to achieve enforcement of our LGBT birthrights. During the drive for ENDA passage in September 2009 I met with my U.S. Congressman and asked for his support after telling him my story of military service and transition. He seemed to get it and promised his support, but he mentioned how important it was that other LGBT persons come forward and express their support. ... About a year later it was reported in the newspapers and online that he was "undecided" about ENDA, but was "leaning against." Did others - or not enough others - speak to him about ENDA and share their stories; I don't know.

On the state level I've met with both my senator and representative - both Republicans. Neither is willing to openly support or sponsor legislation to prohibit discrimination based on sexual orientation or gender identity, but both ARE willing to calmly discuss the issues and think about what they have heard without being unduly frightened by scary stories about transgender people. Both honestly admitted I was the first transsexual person that had ever known (I knew them both for a number of years before I had transitioned.) The point is, I have given them something to think about, and I'm going to keep reminding them and asking them to support change. We cannot let our legislators, be they Democrat or Republican, grow comfortable with the status quo. It is very important that they know us and see us as persons - just like them. It's ever so hard to be complacent and comfortable in discriminating against someone you know, and someone you see as being in your "group/clan/subset of humanity."

Thank you for an insightful story, Babs! I've only known of you by reputation, and I think you are every bit top-notch as I have heard.

I have been searching for a good way to communicate the reality of ENDA's difficulty while avoiding irritating the "transgender community" and I can't find a way. So I'll just state it in the best way I can and let the fur fly.

Employers can grasp and even cope with "sexual orientation" because it has little effect on daily business operations. I mean what difference does it really make if a man has a picture of his male sweetheart on his desk? Who cares if a woman shows up with her female lover at the company picnic?

But try to define "gender identification" in practical business terms. Now we have employers worried that some of their male staff will show up in dresses on Monday and revert to male attire on Wednesday. I know it may sound silly in terms of "human rights" but how can anyone expect employers to accommodate undefined realities that may not only exist in an employee's mind but may even vacillate from one week to the next?

A harsh as this may sound I think employers need to retain the legal right on how to treat each employee from a gender identification standpoint. The employer should be able to say who uses which restrooms but .... and here's a big but ... employers should not be able to dictate dress codes. And there is also a big however. However, an employer should be able to dictate consistency. By that I mean an employer should have no liability if an employee is fired for flipping back and forth in presentation between male and female.

Now before anyone jumps down my throat let me state very clearly that I am no expert on these matters. I welcome better ideas. The point I am trying to make in my own ditzy way is that gender identity is ill defined. How can anyone expect to pass legislation that imposes liability on employers for "gender identity" which has no clear definition?

The employer should be able to say who uses which restrooms but .... and here's a big but ... employers should not be able to dictate dress codes.

So you're for picking and choosing which aspects of employer "practical business" autonomy can be abrogated?

Does the employer's ability to say who uses which restrooms extend to you submitting to genital inspection in case, for whatever reason, the employer suspects you might be packing a penis and said employer doesn't want to take the word of the F on your driver's license?

Employers can grasp and even cope with "sexual orientation" because it has little effect on daily business operations. I mean what difference does it really make if a man has a picture of his male sweetheart on his desk? Who cares if a woman shows up with her female lover at the company picnic?

The same people who suddenly care about the sex-status history of long-ago-transitioned trans women who get outed by Social Security no-match letters.

The same people who will eagerly utilize the "practical business" autonomy that you are so willing to grant them in order to demand that someone once accepted as who she is immediately stop using the same women's restrooms that all other women at the place of business use.

"practical business terms" = codespeak for complete ban on trans women.

Kathy Padilla | January 18, 2011 6:00 AM

The arguments that a man may show up in a dress has always been used against bills that protectected people on sexual orientation alone Deena. And to ask what difference it makes if a girl or guy has a sweetie of the same sex merely highlights that it actually does for people who want to discriminate - it's why they discriminate. Again no difference.

You keep bringing up this odd concern regarding how on drafting language covering gender identity - I have trouble understanding exactly what you mean when about 140 such bills have been passed around the country that do just that. Having been involved in several myself - that's pretty much boilerplate - most jurisdictions just copy existing legislation. Perhaps you can explain that further - I'm not getting it.

I was just at a meeting of the Police Oversight Commission last night - many gays & lesbians stood up to say how training was needed on their issues - not just there - but in the workplace. If there's absolutely no concerns - why is this needed?

Stonewall Girl Stonewall Girl | January 18, 2011 1:43 AM

Almost 40% of Americans live in jurisdictions where “gender identity” (GI) or “gender identity/expression” (GI/E) is a protected category of employment non-discrimination. Almost 200 of the Fortune 500 companies have that in their policy. Don’t worry business folks and legislators know what they want to know.

When we passed the law in NJ, I, on a couple of occasions, gave a basic training to the Civil Rights Division (DCR) which is empowered to enforce the law. (Prior to that we engaged the DCR to help us educate folks … they were a great ally) I also participated with other transpeople on trainings for the many departments of the state bureaucracy. There are well known consultants that do private trainings … heck most of the Consulting companies have GI as their own policies! I attended a seminar given by a major law firm for interested parties to discuss and educate about the new law.

It “ain’t” rocket science and ignorance is no excuse! Smart, inclusive, professional and passionate activism works!

Excellent points Stonewall Girl. Statistics can be such fun. There are 3000+ counties and over 18,000 municipalities in this country. I don't have a handle on the total number of businesses but I do know it dwarfs your "over 200" number. There are 39 states (78%) with no GI protections. Those numbers show why it is important to have legislation at the federal level. I have always supported an inclusive ENDA but what I have witnessed so far is proposed GI protections without any clear definition of what GI actually means. Would you say that is "good law"?

When I try to raise the "definition" question it seems to upset a variety of people. Why? I suppose one could argue that such things as race, religion and so on are ill defined in law so defining GI is irrelevant. But there is a difference because race and religion do not get a person classified as mentally ill in the holy grail of the psychiatrists and psychologists. Should protections apply to someone who self identifies as being protected or do they only apply to people who have been "sanctified" by the medical community as having GID? Perhaps since sexual discrimination is already covered in law all that is needed is to add a sentence stating that what is on a person's drivers license or other governmental identification governs GI.

Perhaps I am absolutely wrong but as I see the politics of this the toxicity of GI protections is the lack of definition.

Kathy Padilla | January 18, 2011 11:20 AM

Definitions really aren't a problem - haven't really ever been legally.

Already Passed Federal Legislation:

`(2) For the purposes of this chapter, the term `gender identity' means actual or perceived gender-related characteristics.
H.R.1913 -- Local Law Enforcement Hate Crimes Prevention Act of 2009

It has nothing to do with documentation or other issues. It has nothing to do with medical history. Indeed - the Williams Institute notes that more non-lgbt people are at risk for this kind of discrimination. It has nothing to do with your self identity - discrimination is about what the person discriminating thinks.

Kathy Padilla | January 18, 2011 11:23 AM

From the non-passed enda - which is a better definition in my assessment:

(6) GENDER IDENTITY- The term `gender identity' means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.

Thank you Kathy. You have provided the perfect example. It is totally subjective and any 2 or more people could perceive it in opposite or contradictory ways. It creates a swamp. A huge bog of quick sand, slimy handholds and alligators lurking in the shadows. You want the business community to buy that? That is precisely the problem. Try applying your definition in a real life example. Sounds like the full employment act for attorneys.

So, what sorts of things would *you* want to see addressed in a definition? What do you feel needs to be there to ease the 'practical concerns' of businesses?

From what I have seen, trans ppl generally aren't wanting to dress as a traditional female and use the women's restrooms one day, then dressing as a traditional male and using the men's restroom the next. Genderqueer ppl seem to dress androgynously, and use the restroom of their assigned biological sex, and ppl who feel they fall more into one side of a 'binary' gender (most pl don't go the Mrs. Doubtfire route, as in really stressing gender stereotypes) generally want to live in the identified gender, not switch back and forth.

A lot of gay women I know who identify strictly as women don't dress in a traditional feminine way, either. In fact, a lot of them wear men's clothes, just not dress slacks and shirts, and ties and all that. They get along at work just fine, and use the women's restroom with no issues.

I am truly interested to hear what it would take for you personally to feel your issues and concerns have been addressed, beyond just throwing questions out there and then rejecting the answers.

Carol, thank you for the question. It is not what will satisfy me. I really don't shive a git. What I am trying to point out is simply that in order to succeed an inclusive ENDA must address the in-digestibility of an amorphous definition. It is not me but the commercial world that seeks a firm definition which will not leave them in a nana land of "whatever the employee wants to be". I have stated many times that I am a ditz and I hope somebody can focus on defining GI objectively. I say give them an "out" and use the drivers license as to who is man and who is woman. Then treat them accordingly. But, that is perhaps a ditzy solution. Yet it is at least tangible. Please suggest something better and I will support it. Just don't spew obfuscation and vapor fumes that businesses and organizations can't digest. Please.

Yeps, I agree, it is pretty ditzy. Just thought I'd check to see if you actually had anything constructive to say, rather than just attacking trans rights in comment threads.

You are so kind. You have my best wishes.

Kathy Padilla | January 19, 2011 9:33 AM

It is a concern. Where does it leave an employer? Does sexual orientation mean that he can’t fire them if they don’t talk about their sexual orientation? Does it mean they can require their partners not visit the place of work? That they can require no phrases of endearment or kisses if they do visit? That they can fire them if they marry out of state? That they can fire them if they have a child together? That they have to not “act gay” to be covered?

The language needs to be changed to explicitly address any possible concerns an employer could bring up prior to passing any gay rights bill. It’s to vague otherwise.

If only there was some way to see if this language was able to be applied successfully in other jurisdictions. Sadly – we have no experience.

Oh there are plenty of examples but those are mostly in places where the populace has evolved into "live and let live" orientations towards others. At the national level sadly this is evidently not the case. Do we wait for possibly generations or do we deal in realities? I do not think the ostrich method works (close your eyes and the problem disappears).

Carol (above) focused on an attempt to relegate what I am saying to non relevance yet did not offer a response to my request for better ideas. Her choice of course. So there you have it. My ditzy idea wins by default. Do you, Kathy, want to suggest anything? What was placed on the table in Congress obviously failed. I think it is time to question what is digestible not to the liberal but to the conservative. Craft an approach that will sell in places like Biloxi, MS and Largo FL.

Kathy Padilla | January 19, 2011 1:42 PM

That's just DeSoto thing I thought you'd say.

No - I'd like you to give a cogent analysis outlining your concerns and providing examples of how these concerns played out in existing state or local nondiscrimination laws.

A law almost never goes into the level of specificity you imply but don't elaborate on. The government has several levels of guidance that address implementation in specificity.

Law>Regulation>Policy - If you're unfamiliar with this - I suggest you review say - the MA General Code regarding the Department of Mental Health - then peruse the DMH's rather more extensive regulations.

What I do think - is that what you're interested in has more to do with your internal motivations that the questions at hand.

My internal motivations? You tickle me. It wouldn't bother me at all if ENDA never becomes law or if DOMA remains on the books. What I see if failure and subsequent denial of where the cause of that failure properly resides. And you want to shift the conversation by presenting me with requests that I do analysis along your preferred agenda lines? Very transparent or maybe you are just so used to others falling for simplistic tactics. I'm not your trained monkey just as you are not mine.

So, let's frame this disagreement in simple terms. I say ENDA failed because it has murky and nebulous definitions. I say it will never be passed into law without some new specificity on GI (although a non inclusive version might pass). You on the other hand disagree. I'm perfectly OK with disagreeing. Time will tell which of us is correct.

Kathy Padilla | January 19, 2011 2:48 PM

No - I asking you to support your argument. You decline to.

Kathy I hope you will not take offense but it seems you can not distinguish between an opinion and an argument. Sorry if I didn't specifically state that when I say "I think" that is opinion. You did not see me say "I would like to present evidence that". So, I ask, what is your opinion on why ENDA failed? Lack of brute force? Surely you have an opinion.

Bill Perdue Bill Perdue | January 18, 2011 4:30 AM

ENDA, or inclusive amendments to CRA's are not dead just because the Democrats say they are and the fight for them should not be abandoned.

The political reality is that neither party wants ENDA or an end to job discrimination and the last thing we should be doing is working to elect more Republicans or Democrats. That's proven counterproductive for decades. The other political reality is that no one is going to reform either parties attitude towards wage and benefits equability at t time when Democrats and Republicans alike are busting unions, doing nothing real to end mass unemployment/underemployment, exporting jobs and in general doing what they can to drive down the standard of living of workers a whole..

One approach is to make a concerted effort to get into union jobs where some protections are offered. Another is to become independent of the Democrats and Republicans and push a perspective of mass actions to compel acceptance of tough protections for ourselves and others in employment, housing and access to public services.


The CRAs already on the books lack effective enforcement provisions and easy, speedy routes to decisions. They're weighted in favor of bigots, racist and misogynists.

The end of Bill Clinton's mandatory separation discriminatory policy, when and if it occurs, won't end bigotry in the military.

Unfortunatly, here in Colorado those hard won protections for Trans identified persons were co-opted by GAYinc. In so doing we were, and our protections were, pretty much erased!

Could you elabotate?

BTW - I'm not challenging your assessment. I simply am unaware of Colorado's specifics and would like to know what you're referring to.

Barney Frank should know why The Transgender Rights Bill was not passed in MA last session, though it had majority support in the House and Senate. For God sake it had enough co-sponsors, I think 109 including the Republican Senate Minority leader, to have the votes. But Barney knows that a deal was struck between MassEquality and the Democratic Party to NOT vote on this bill in an election year because his Dems, while in writing on our side, did not want this to be an issue to Dems seeking re-election.
This bill, Barney was never brought into the public forum because your party once again sold out part of our community for election of leges and Governor Deval Patrick!
Okay, the bill is being resubmitted this month. Based on your party's history with Transgendered people, I would say it needs to get passed immediately or we may fall victim to your election year strategy in 2012.
You may be a Congressman from Massachusetts but you may dare not speak about this bill in your reference to a failed ENDA!,

Great article, Babs. Glad to see you've stirred up some conversation.

Babs Hit the sweet spot! Home run! Now all we have to do is get some players!

Great post. I'm glad I know more now about why ENDA didn't pass, because it can't just be because the bill was unpopular.

Stonewall Girl Stonewall Girl | January 19, 2011 1:20 AM

The reasons were complex,yet for the bottom line,rather simple! There was some internal drama within the Labor Committee that was addressed to my knowledge by the pro-inclusion forces. The bottom line was the leadership, an apparent lack of ability and/or will to get it done!

Now there is one thing I didn't mention ... HRC was actually doing some positive proactive outreach to push trans inclusion and in the late spring they pulled their staff from that and pushed DADT so in the first week in June at Jersey Pride, HRC was ONLY talking about DADT repeal!

Ironically, GetEQUAL with Dan Choi will probably get more credit than HRC!

Kathy Padilla | January 19, 2011 10:05 AM

Rather like how now - the only thing to talk about in the states and localities is marriage. Then we'll be asking why Delaware and New Hampshire don't have employment protections for trans folk and why don't other states have them for all lgbt people? And why is enda so hard to pass yet again in 2012-13?

But - do expect a PR diversion in areas where marriage is secure & trans folk are left out. Hey - don't ask to see where the red Queen is during the game. Gauche!

Stonewall Girl Stonewall Girl | January 19, 2011 8:34 PM

Kathy, We've talked about this,and I don't honestly think HRC has the political understanding savvy or will to change the statewide laws. You also need #1 an engaged trans community in each state. Who are the folks in NH and Delaware?

I told you the story where I was being honored in Rehoboth Beach by the Delaware Stonewall Democrats along with Gov. Markell and Sen. Carper, heck there were no transpeople there! I gently chided the Governor and the legislators present about the lack of a Statewide law, but where were our folks? They did tell me there was an executive order adding trans language for state workers.
The door is open in Delaware!

New Hampshire was another story, the bill failed because the sponsors were unprepared for the bathroom attack! Who was advising the NH legislators who had submitted that bill?

We must step up!

Daly repudiated her position you all hate her for

Please provide the actual quote, page number, etc.

I keep seeing Daly-oids making a claim of absolution for Daly, but, at the moment, such claims are saddled on the back of the man-eating haddock-fish-beast of Aberdeen....

and will be until someone provides actual proof that Daly died any differently than she lived: as a worthless piece of transsexual-hating garbage.

Its not our job to rehabilitate our would-be exterminators; its theirs.

I am a liberal feminist myself. Having just read your essay, I am mostly on board with how you are thinking. Though I have to disagree with some of your conclusions, because they are based on the 'transsexual = surgery' nonsense.

Surgery is not fated for a transsexual, it is the result of two things: a sex binary that is every bit a construct as gender is (as a fellow feminist, you should easily grasp where I am coming from), and intense sociocultural pressure to adhere to that binary. One can observe what happens when transsexuals are accepted and provided for in other cultures -- there is simply not that necessity for surgical correction.

The singular attribute that sets a transsexual apart from a cross-dresser is that our condition is inborn and natural. This is not something that is developed or environmental; it is sex-based, where theirs is based on the sociocultural gender environment they live in. If the donning of female clothing was not taboo in our society, there would be a great deal less cross-dressers who felt the escapist need to do so. This is at the core of why it is a misnomer to categorize transsexuals as transgender and inaccurate to label us as cross-dressers, not because of any surgical procedure.

Gender identity this is not, in reality; it is apropos to call ours an issue of sexual identity.

As to your defense of Daly, I'm going to have to inquire the same as Kat: some quotes would be nice. I will likely get around to reading it on my own, but it would bolster your argument about her to provide some substantiation in the meantime.

Only perhaps when the fires are done with the misogynistic Virginia Prince?
You won't be finding me in a bucket brigade.
Daly improved the lot of all women and whatever she thought of trans women in the 1970's, trans women in the 21st century benefit from her work on behalf of women.

Repeating repetitive repetition is an act as empty as Rick Santorum's morality or Sarah Palin's skull.

WHAT exactly are you offering as evidence that she ever ceased viewing trans women any differently than her student Janice Raymond did (and does)?

WHAT exactly are you offering as evidence that she ever did anything that, in any objective sense, can be viewed as benefiting trans women?

Kathy I hope you will not take offense but it seems you can not distinguish between an opinion and an argument.

Are you Inside?

'Er Out?

No evidence, eh?

That's what I expected.

You don't that that Daly as a whole altered how women approach the patriarchy? How women see themselves? How women can feel validated by their sisters and validate their sisters?

You benefit and I benefit, Kat, because we are both women. We are sisters. Whatever Daly might have felt, her paradigm makes me resposible for your safety and your equality as part of the sisterhood of all women, a charge that I take seriously.

Kat, as a woman you are my sister, I love you, I charish you and I have your back. Not to say that we wont have our tantrums here or there, as sisters are want to do, but if I live what I believe, I can not do otherwise.

Well then, maybe the rest of "the feminist movement between 1970-1985" should have stood up to the trans-exterminationists in their midst.

Oh...they didn't?

Then they married the trans-exterminationism.