Guest Blogger

3 Ways to Improve ENDA Advocacy: Take the Fight to the States

Filed By Guest Blogger | March 31, 2011 7:00 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: civil rights, ENDA, labor, LGBT, transgender

Editors' Note: Guest blogger Tico Almeida is a civil rights litigator at the boutique law firm of Sanford Wittels & Heisler LLP, which was recently named by Law360 as the only plaintiff-side law firm on the 2010 list of the Top Five employment law practices in the United States. From 2007 to 2010, Mr. Almeida served as the lead counsel on the proposed Employment Non-Discrimination Act (ENDA) in the U.S. House of Representatives. This is part three of a three part series: 3 Ways to Improve ENDA Advocacy.

tico.jpgYesterday, Rep. Barney Frank held a press conference on Capitol Hill regarding the introduction of the bipartisan Employment Non-Discrimination Act (ENDA) of 2011. Frank decided he would continue collecting original co-sponsors for another few days before actually "dropping" the bill "in the hopper." But his ENDA game plan for the next two years is clear.

Mr. Frank's stated purpose for introducing ENDA now - when Republicans control the U.S. House of Representatives - is to give our LGBT community something around which to organize so we are ready to quickly move ENDA through Congress once Democrats re-gain control of the U.S. House of Representatives in 2013, 2015, 2017 or sometime thereafter.

I think Mr. Frank's strategy is sound. The remaining question, however, is how should we strategically divide our time, dollars, and energy between now and then? Of course the choice is not an either/or, but should we put the majority of our efforts during the next two years into ENDA lobbying in Washington D.C. or state-level ENDA advocacy in the state legislatures?

During the Next Two Years, We Can Accomplish Some Incremental but Very Significant Steps on ENDA Through Our Efforts in Washington, D.C.

I can think of three concrete deliverables we can achieve in our nation's capital through our ENDA efforts between now and the end of the current Congressional session. First, and this should be the easiest, we should encourage our friend, Chairman Tom Harkin of the Senate Labor Committee to organize an ENDA hearing this year, and for the love of equality, this time the hearing absolutely should include at least one transgender witness. Indeed, a Senate ENDA hearing will garner significant media attention, which will allow the American people to continue learning about the workplace discrimination that LGBT people face all too frequently.

ileana-ros.jpgSecond, Mr. Frank is correct that we should spend time lobbying and educating all of the new members of Congress who were just elected - both Democrats and Republicans alike - about what ENDA does and does not do. If I were on one of those lobby teams, I would spend considerable time during the meetings with new Republican members of Congress discussing ENDA's broad religious exemption. I happen to think that ENDA's religious exemption is the correct policy for constitutional reasons, so I would of course explain it to new Democratic members of Congress too.

Mr. Frank also pointed out at his press event yesterday that we should focus on some members of Congress who voted for a non-inclusive ENDA in 2007, but who are undecided on the fully inclusive version of the same bill. A big "get" here would be to persuade Republican Budget Committee Chairman Paul Ryan of Wisconsin to support a fully inclusive ENDA. Although he was a surprise "yes" vote on ENDA in 2007, he is a long-shot to become an actual ENDA co-sponsor ahead of time. However, lobbying him now still makes sense.

hilda-solis.jpgI suspect that on the day a fully inclusive ENDA gets a vote on the House floor in 2013 or sometime thereafter, some Republican members of Congress are going to wait to see how Paul Ryan votes, and if he votes "yes," that will free some of them up to follow suit. As I said in an earlier post, Ryan is staunchly conservative and the rising star of the House Republicans. His vote will matter to other Republicans. So does the vote of Republican Committee Chairwoman Ileana Ros-Lehtinan (R-FL), who is an original co-sponsor for ENDA once again this year.

Third, we can and should urge our friends in the Obama Administration to adopt an Executive Order or Presidential Memo stating that federal contractors must guarantee workplace fairness for LGBT employees. Once this policy is in place, the responsibility for enforcement will be with U.S. Labor Secretary Hilda Solis, who is a wonderful advocate for workers and lifetime friend to our LGBT community.

During the Next Two Years, We Can Accomplish Some Even More Significant Steps Building Momentum for ENDA Through Our Efforts in the States Legislatures


During the first seven years after the turn of the millennium - basically the mid-2000s -
LGBT advocates racked up an impressive series of wins on state-level ENDA laws in the various state legislatures. The first trans-inclusive ENDA law had been passed by Minnesota in the early 1990s, and for almost a decade, Minnesota was alone.

However, we began to achieve some momentum around 2000: Rhode Island was next in 2001; more than several states followed in the middle of the decade; and during the first part of 2007 alone, we passed inclusive state-ENDAs in Colorado, Iowa, Oregon and Vermont. According to Mara Keisling of NCTE, only four percent of transgender Americans had state-level workplace protections in 2000, and that coverage jumped dramatically to almost 40 percent by 2007. A ten-fold increase is certainly impressive.

Then, in September 2007, our community's attention turned to ENDA in the U.S. House of Representatives. Not a single trans-inclusive state-ENDA has been enacted since then. Four years is a long gap with no progress.

But the policy and legislative advocates at both NCTE and the National Gay and Lesbian Task Force think it is plausible that we can now make progress and pass strong - though maybe imperfect - state workplace laws barring gender identity discrimination in Maryland, New York, Connecticut, Massachusetts, Nevada, and Hawaii. However, they caution that our community will have to direct more resources into those six campaigns if we want to win.

We should do everything we can to rack up these six additional legislative victories, as that will help us build significant political momentum for passing a fully inclusive federal ENDA in 2013. Indeed, when a member of Congress is undecided on new legislation, it is often reassuring if she hears that her own state has already passed similar legislation without any adverse or unintended consequences.

Therefore, if I had to propose a new budget for ENDA advocacy, I would shift funds toward state-level efforts during the next two years. If the Democrats win back the U.S. House in 2012, my proposed budget for 2013 would shift some - though of course not all - ENDA advocacy resources back to Washington, D.C.

Don't Forget the Important Role of Civil Rights Litigators as We Push for ENDA

Our movement's litigation organizations - such as Lambda Legal, NCLR, GLAD and the ACLU LGBT Rights Project - play a crucial role in the struggle to pass a fully inclusive ENDA. First, the lawyers at these organizations have significant experience actually litigating employment civil rights cases, which makes their opinions and perspectives particularly important to those who work in the legislative process on Capitol Hill.
As I was drafting or re-drafting certain parts of ENDA, the question often was how the different possible word choices might be interpreted by federal judges and federal juries. Therefore, I had many of the litigators from the organizations listed above on speed-dial.

In addition, those litigation organizations were the source for the witnesses we selected to present testimony at our three House Labor Committee hearings on ENDA. For example, Lambda Legal represented Vandy Beth Glenn, and the ACLU represented Diane Schroer. Both of these women gave important testimony before Congress that I believe helped sway votes in favor of ENDA.

As these groups continue to litigate employment discrimination lawsuits based on state-ENDA laws in the future, they will not only help secure justice for their clients, they will also help provide Congressional staffers with compelling witnesses for the ENDA Congressional hearings in the House and Senate that are yet to come.

This Three-Part ENDA Series is so Long-Winded, It Might As Well Have a Thank You Section

I am grateful to Bil Browning for suggesting I write this series of Bilerico posts, and I am particularly happy that what I have written has triggered some debate among Bilerico's commenters. I want to close with some richly deserved praise for a number of individuals who worked smartly and tirelessly on behalf of a fully inclusive ENDA over the past several years. The following list is long, but inevitably does not include numerous, talented ENDA advocates.

With that disclaimer in mind, when I think of my three years of working on this issue, I think of individuals like: Mara Keisling and Harper Jean Tobin of NCTE, who make up ENDA's most effective lobbying/legal team in Washington, D.C.; Brad Sears, Nan Hunter, Christy Mallory, Laurie Hasencamp, Matt Strieker and everyone else at the Williams Institute at UCLA Law School, because if and when ENDA survives a right-wing constitutional challenge at the U.S. Supreme Court sometime in the next ten years, it will be because of your excellent research and exhaustive report; Diego Sanchez, who has always been a wonderful colleague and partner on ENDA, and who treated me like we were brothers on the day I needed his help the most; Lisa Mottet of NGLTF, Hayley Gorenberg and Mike Kavey of Lambda Legal, Shannon Minter of NCLR, Chris Anders of the ACLU and Brian Moulton of HRC for their sharp legal thinking and counsel.

On Capitol Hill, I appreciate wonderful ENDA colleagues like Joe Onek, John Lawrence, Mike Tecklenburg and Reva Price (Democratic Leader Nancy Pelosi), Joe Racalto and Pilar Falo (Rep. Frank), Heather Sawyer (Rep. Nadler), Todd Metcalf (Rep. Clyburn), and Brian Branton (Rep. Polis). We also received strong support from our friends in the Obama Administration like Tom Perez, Matt Nosanchuk and Judy Applebaum of the U.S. Department of Justice, as well as Stuart Ishimaru, Chai Feldblum and their wonderful staff at the E.E.O.C. On issues of mobilizing the ENDA grass-roots, Nancy Zirkin and Rob Randhava of LCCR, Elizabeth Fregiato of PFLAG, and the GetEqual protesters who went to Harry Reid's home turf and Nancy Pelosi's office all deserve significant credit.

Finally, thank you to Rep. George Miller, Rep. Barney Frank, and my friends on Mr. Miller's labor staff: Jody Calemine, Michele Varnhagen, Brian Kennedy, Joe Novotny, Megan O'Reilly, Celine McNicholas, Aaron Albright, Rachel Racusen, Melissa Salmanowitz, Lynn Dondis, Richard Miller, my officemate Therese Leung and my sister in workplace solidarity Stephanie Moore, Gordon Lafer, Carlos Fenwick, Meredith Regine, Bryce McKibben, Liz Hollis, Tylease Alli, Daisy Mintor, Marjie Hamilton, Ria Ruiz, James Schroll, Ben Miller and Courtney Rochelle.

With that, I conclude my proposal for three ways we can improve ENDA advocacy. I am quite certain others will add to this list of strategies.

Please discuss. Then let's get to work.

A new session of the U.S. Congress is only 21 months away.

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Read the whole series
3 Ways to Improve ENDA Advocacy: Overcome Fear of Trans Americans
3 Ways to Improve ENDA Advocacy: Religious Exemptions
3 Ways to Improve ENDA Advocacy: Take the Fight to the States

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Above is a link to a recent NPR article on the Injustice at every turn Survey by NCTE and NGLTF. Here is a quote from Michelle Einfeld a person brought in to represent the "Community" by I would guess Jaime Grant one of the authors of the NCTE/NGLTF survey: "I just want people to understand that as transgendered individuals, as a transgender community, we are not trying to put out there that we are going to change medically to fit into this." Here is another interesting comment by this person:Ms. ENFIELD: It plays a part in what they actually feel, like their own curiosities. And I know what universally attractive is. Not to toot my own horn, but I am universally attractive.
Here is an interesting quote from Jaime Grant about the survey:So our sample is a bunch of folks who are connected in some way to transgender LGBT communities. As I was saying when this survey first came out that the survey was biased and didn't represent the whole population. Mara Kiesling denied that it didn't even begin to represent the largest part of the Transsexual community which is the tens of thousands that live in mainstream America. She also doesn't represent the large portion of lesbian Identified post-op women that have moved on with their lives and that are still trying to get fully accepted by the Michigan Womyns Music Festival a lesbian event.
If Mara Kiesling can't get lesbian post-op TS women accepted by lesbian Womyn as lesbian womyn I'm willing to bet she can't do shit for me as a heterosexual TS woman or for those lesbian post-ops in Washington let alone Michigan.Seriously people read the NPR article and realize it is time for those of us who are TS to walk away from the word transgender and the Mara Kieslings and represent ourselves.Not only can we do it we can do a better job.Pull all TS's together under the word TS regardless of sexual orientation outside the LGB. That way we can lobby the LGB for your full inclusion in things like the Michigan Music Festival and other weak areas of LGB recognition. On the flip side we can be lobbying heterosexual America to recognize us for who we are also which benefits Heterosexual Ts women and men. I see it as a win/win instead of what we have now which is nothing more than dying a slow death by division.

Bill Perdue Bill Perdue | April 1, 2011 4:27 AM

Barney Frank is an enemy of GLBT folks and workers and consumers in general.

1. Frank is a traitor. He's the quisling who gutted ENDA in 2007 and turned it into a bill only the Chamber of Commerce would like by accepting every amendment offered by Republicans.

2. In 2007 Frank also launched vicious attacks on the transgendered and transsexual communities as part of his strategy to defeat ENDA by dividing the GLBT communities. Bigoted employers are the only ones who benefited from Franks spoiling efforts to prevent passage of an inclusive ENDA.

3. From 2008 to 2010 Frank, Pelosi, Reid, Obama and most of Congress refused to pass and sign ENDA. For much of that time they had absolute and unassailable control of Congress in the form of super majorities. They didn't dither and miss the boat - they refused to commit to equality because it would lose them the votes of bigots.

4. Barney Frank opposed granting marriage licenses to GLBT citizens of SF in 2004, saying it was a "spectacle" that would increase support for a federal constitutional DOMA.

5. Barney Frank opposed the opening shot of the new wave of mass actions, the National Equality March, in 2009. He's against all mass actions and direct actions, preferring the kind of 'delicate negotiations' in somke filled backrooms that have led to decades of continued inequality in the workplace and regarding same sex marriage.

6. In April 2010, while Democrats still controlled both houses and were refusing to pass ENDA, GetEQUAL activists demonstrated in Congress. Frank called the action “a stupid thing to do” and “immature.”

7. Barney Frank is a Democrat. A Democrat is a Republican in drag. Frank supported Obama in 2008. Obama is a bigot who opposes same sex marriage and all equality measures because they make christer bigots angry.

8. Frank was a leader in the presidential campaign of Hillary Clinton.

9. Frank, as Chair of the House Financial Services Committee lied, saying that Fannie Mae and Freddie Mac were not putrefied and rotted because of their guarantees of predatory loans. (Predatory loans became possible because Bill Clinton signed, and most Democrats voted for the repeal of laws regulating banksters.)

10. Now Frank opposes Fannie Mae and Freddie Mac. He wants them abolished and home owners forced into rental housing.

Probably the most important way to improve and pass ENDA is to drop the 'gender identity' characteristic from the bill. There is no reason to try to include other demographic characteristics in such a bill when there can be separate bills for those characteristics. Keep the ban on employment discrimination on the basis of sexual orientation, sex, and ability status and drop the gender identity characteristic. Just as the Civil Rights Act of 1965 included race but not sexual orientation and was highly successful, ENDA should include sexual orientation but not gender identity. This is what I have been e-mail my legislators and this is what I urge everyone to do to help pass ENDA now.

While I believe gender identity protections are needed I find myself now in a position where I support you and I hope when the time comes you will support a non LGB Enda for hopefully a better identified gender identity. Right now Gender Identity is to vague as defined by the word transgender. Crossdressers and those who choose to live as women but not fully become women really can't claim to be included in gender identity only gender expression. Those who are transsexual can and should benefit by gender identity protections.I believe this is why enda continues to fail. We all need to unhitch our wagons on this one and go for the appropriate protections for each group. I'm not saying that any group isn't deserving of protections I just question what level of protections are necessary for someone just out to protest the gender binary or is just in it for the occasional night out on the town vs someone who really is the opposite of their birth gender and is seeking to correct it. The word transgender just blurs the differences and ads confusion to subjects that most people have a hard enough time understanding without having it oversimplified by people with an agenda that really doesn't take the best interests of all involved to heart.

Stonewall Girl Stonewall Girl | April 1, 2011 11:27 PM

WRONG! The term "gender identity" is well understood in areas where legislation was passed and the transgender community and it's allies went out to help define it so the law would ne understood and enforced... it is not rocket science!

Transgender inclusion in non-discrimination laws does not have to be a problem as it has not been a problem whem the entire LGBT community works together with its allies and "gets it done"!

It does take work and diligence, but to succeed in life it takee work. What's the big deal? work together people, work hard, work smart it has been done!

TruthSeeker | April 2, 2011 7:36 AM

"Mr. Frank's stated purpose for introducing ENDA now - when Republicans control the U.S. House of Representatives - is to give our LGBT community something around which to organize so we are ready to quickly move ENDA through Congress once Democrats re-gain control of the U.S. House of Representatives in 2013, 2015, 2017 or sometime thereafter." -- T.A., 3/31/2011

The above statement nicely summarizes the wrong-headed thinking of Gay, Inc. and those living in the Washington, D.C. bubble: just wait a few more years and give money to help Democrats get re-elected; then teh gays (and the rest of you LBTers) will reach the promise land.

These are the same bromides spouted three years ago, four years ago, five years ago.

It's true, if we wait another decade or two or three, enough hearts and minds will be changed (as those under 35 replace the over-70 crowd) so that equality for ALL LGBT persons will be achieved.

But for those who can't afford to wait for equality (or choose not to sit back), there is a better political path.

It is folly to believe that any party will return anytime soon to the pinnacle of power achieved by the Democrats in the last Congress (a filibuster-proof Senate, overwhelming control of the House, and a sitting President from the same party).

To pursue a legislative strategy that rests on such a premise is tilting at windmills.

Moreover, if you want to organize around a bill, the LGBT community and allies should organize around an idea introduced on May 14, 1974--the fifth anniversary of the Stonewall Rebellion--by Representatives Bella Abzug and Ed Koch: add "sexual orientation" [and "gender identity"] to the Civil Rights Act of 1964.

We need to support Republican and Democratic candidates who are on record in favor of that simple amendment (which would address all remaining discrimination against LGBT persons).

We should run candidates in both party's primaries against incumbents that are not co-sponsors of that legislation (known today as the American Equality Bill). DADT repeal was achieved through a bi-partisan approach; the remaining LGBT issues should be resolved in a similar bi-partisan fashion.

On a final note, to "urge our friends in the Obama Administration to adopt an Executive Order or Presidential Memo" is absurd. The President should already be our friend, especially if he expects LGBT support for his re-election, and he alone is the one person necessary to adopt an E.O.

My friends don't need urging to do the right thing. But, I guess in Washington, D.C., nobody counts on their friends.