Dr. Jillian T. Weiss

ENDA Redux: Why Bother?

Filed By Dr. Jillian T. Weiss | March 30, 2011 3:00 PM | comments

Filed in: Politics, The Movement
Tags: Barney Frank, employment discrimination, Employment Non-Discrimination Act, ENDA

The Employment Non-Discrimination Act, which would prohibit job discrimination based on sexual orientation and gender identity, has been reintroduced in Congress. We know ENDA is not going to pass because of the Republican majority. Why bother?

The answer is that the introduction of a bill into the legislature serves many purposes other than simply enacting a law.

The truth is that even after ENDA gets passed, employment discrimination based on sexual orientation and gender identity will not grind to a quick halt. A prime example is the Civil Rights Act of 1964, which prohibited discrimination based on race, national origin, sex and religion. That law can only stop overt discrimination, such as job advertisements which say "men only." In fact, it took several years for the Equal Employment Opportunity Commission, which enforces that law, to rule that such advertisements were a violation.

We must educate, educate, educate. I refer not only to Members of Congress and their staffs, but also those in the LGBT community and the wider community who do not understand ENDA, who don't see why such protections are necessary, who wonder at the inclusion of gender identity. While ENDA is not going to pass with a Republican majority in Congress, the question we must address is what will it take to pass it when Democratic majorities again come to Congress.

The future will be determined by what we do now.

Law, to be effective, requires education and consensus from society that its goals are legitimate. There are many players involved in enforcing law, and if they disagree with the law's aims, the law falls flat. Judges, who are perforce drawn from those who are inside the power structure, must agree that the law is worth enforcing. There are many ways to create legal loopholes.

A prime example of the ineffectiveness of rights law is the Equal Pay Act, which held that women must receive equal pay for equal work. What is equal? There are a myriad of court cases in which jobs which were very, very similar, but held by a woman who was paid less, were adjudged not to be sufficiently similar to sustain a case. In addition, there are many reasons why people do not file discrimination claims, even when there is plenty of proof. Often times, people feel they cannot be protected from retaliation and social ostracism, and they are correct in that judgment.

The reintroduction of ENDA serves an important purpose. We must educate legislators, judges, administrative officials and the people that discrimination based on sexual orientation and gender identity is wrong. Too many people currently do not believe it is wrong. Thus, it is time for a new ENDA campaign, focused not on passage, but on winning advocates for the idea that discrimination against LGBT people is a moral and ethical wrong that our society cannot tolerate.

Guest Blogger Tico Almeida has written an excellent post on this subject here on Bilerico, and has promised to write more in the following days. I highly recommend that we all read his words carefully. He was ENDA's lead counsel in the U.S. House of Representatives, where he worked for three years as Labor Counsel for longtime progressive leader George Miller (D-CA). He knows the legislative process from the inside, and that knowledge is key.

He suggested three areas of advocacy, and I applaud his judgment. He called for the following.

1. Address the trans-phobia among some staffers and members on Capitol Hill and let all LGBT Americans - especially transgender Americans - tell Congress and the American people their stories of workplace discrimination and harassment;

2. Out-and-out brag openly about ENDA's broad religious exemption, in order to use that hugely popular and bi-partisan clause to sway the votes of moderate Republicans and conservative Democrats to our side on ENDA; and

3. Work harder and smarter in what U.S. Supreme Court Justice Brandeis called the "laboratories of democracy" by passing more state-level ENDAs and litigating more state ENDA cases in state courts to demonstrate why a federal law is so badly needed.

We do not need to rush on this. In the past, I wrote a series of posts called "ENDA Legislator of the Day," knowing that we had to get to work on a large number of legislators in order to get the bill enacted into law. Ultimately, we failed to make that happen, but the good news is that the House ENDA bill had the largest number of co-sponsors of any LGBT rights bill. The Senate was the problem, and swaying Senators, who represent the large and diverse population of entire States, is much harder than swaying Members of the House, who represent smaller and generally more homogenous areas. Furthermore, the movement of the country to the right over the past decades, even among Democrats and Independents, means that we are starting behind the mark.

Thus, I call for a campaign of education of Congress, and particularly Blue Dog Democrats and moderate Republicans and their staffers. If they begin to see that their constituencies feel that job discrimination is wrong, they will begin to soften their positions against ENDA.

Each week, I will post information about a member of Congress who is in need of education. I ask that you post these to Facebook and Twitter and other social media. Send them to your friends in the district or state, as constituents have much more effect than the general public. Call and write to these legislators with your stories of job discrimination and the horrendous consequences to people's lives and happiness. It could be a personal story, the story of a friend, or a story in the news. Please feel free to send me a copy and I will post them online to share them with a wider audience. (Use pseudonyms if confidentiality is needed.)

These personal narratives are much more effective than simply asking people to support ENDA. It adds the human element that is a necessary part of any political issue campaign.

We won't get ENDA this term. But what happens when Democrat majorities come back into Congress? Will we be starting at the front of the line, or the back of the line? Now is the time to answer that question. We cannot wait until 2012 or 2013.

Now is the time.

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With all due respect, we've been down this road before. Last time around it was the Republicans using us as a wedge issue. This time it's the do-nothing Dems.

Barney, Pelosi & Co. and HRC let ENDA die last year because they didn't have the balls to fight hard enough for its passage. This time around when it fails, as everyone expects it to, they can blame Snooki Boehner and his cronies.

Don't fall for this PR stunt. Barney Frank is to the gay community what Uncle Tom is to African Americans. I guess that would make him an "Aunt Nancy". That's how I'll be referring to him from now on.

I understand your cynicism about the political process, Rev. Steve. I agree. However, I do believe that education is important to achieving our goal of full equality, and we can use the politics for this purpose. Any port in a storm.

Rev. Steve:

More than I'd blame politicians like Rep. Frank, I'd blame pro-equality people of faith for not placing the end of oppression faced by those who are arguably the most marginalized and downtrodden among us -- the least of our brethren Christ calls us to care for.

Instead of Barney Bashing, please channel your anger and passion toward productive means. My group, Catholics for Equality, is working to connect Catholic transgender victims of discrimination (and their Catholic families) with the offices of Catholic Members of Congress -- helping them put a human (and Catholic) face to this issue.

We have two years to do this education (which is a short time in Hill years). We can either spend this time eating our own, or feeding the souls of policy makers.

The choice is yours.

Phil Attey, Executive Director
Catholics for Equality

What I think we really need and have needed for some time now is a new organization/coalition by, for, and about transpeople and our issues ONLY.

It needs to be one part NCTE DC lobbying, one part NTAC grassroots advocacy, and a liberal helping of GetEqual/Transexual Menace in-the-streets-and-in-your-face protests and demonstrations when that's what's called for.

We need to stop depending on lesbian and gay organizations which have proven over and over that they will prioritize their own interests over ours whenever the going gets rough. The politicians have to be taught that when they screw us over, it's the trans community they will have to answer to, not wealthy and self-involved gay and lesbian orgs which have consistently shown themselves to be fine with selling out trans interests to further their own.

It's going to take work, it's going to take time, and it's going to take money, but until we do this we're going to see situations like ENDA in the 111th and Maryland repeat themselves over and over.

Mara and NCTE are great at what they do, but they're only part of what the whole picture of trans advocacy needs to be if we're going to be successful.

It's not easy to create an organization that does all three of those things. First of all, it would take money, something that most transpeople don't have and those that do are reluctant to give. Our community isn't really clamoring for a new organization. And even if we had one, we would still need LGB and straight allies to get legislation passed. Still, it couldn't hurt.

Michelle Kelley | March 31, 2011 7:23 AM

As a transwoman, I have absolutely no faith that the "T" portion of LGBT won't be thrown to the dogs when it serves a political purpose. That's what happened last time. I think it's time to bring back the Menace.

I never liked the idea of the "Transsexual Menace." Not because of their use of direct action, but because the irony of the name is politically lead-footed and lost on most people. Instead, the name suggests what it seeks to deride.

I disagree Jill. I think the name of Transexual Menace is inspired. It not only mocks the unreasoning fear some still have of transpeople even today, almost a generation after it was created, but it also reclaims ownership of it. By calling ourselves a Menace, by marching proudly under that banner, we challenge others to examine their own bigotries toward transpeople.

Riki and Co. knew exactly what they were doing, and it's still a valid lesson we need to continue to take to heart and incorporate into our advocacy today.

Rebecca -

This year's NCTE lobby day included a strong directive to those who participated (many of whom were first-timers, which was fantastic) that that one day on Capitol Hill wasn't an end in itself.

Each participant was charged with going back home to their district and to set up IN-DISTRICT lobby meetings with their Members of Congress, mobilizing a larger local contingent to make sure each Member of Congress knew that these issues affect real people who they serve.

In-district meetings are also great because you can often meet with the Member of Congress, themselves -- not staffers who handle civil rights issues (who are also important).

I've always wanted to see our community take advantage of Summer Recess, much in the way the Tea Party did to change the dialogue on Health Care Reform. GetEQUAL tried to do that last year, but I think they were too new and underfunded to really pull it off. This year it'd be great if they weren't alone -- if EVERY group in our community bought into the concept and we orchestrated a true ENDA Summer campaign.

Count Catholics for Equality in!

Phil Attey, Executive Director
Catholics for Equality

From my observations it would be extremely difficult to get a T-Person only Organization that could represent us!
How many times in the blogs has this occurred? "You *** T's can't represent us! We're the poor T's" and other comments like that.

*** Often the words White, Black Rich, and other adjectives have been used here! Feel free to add one there Yourself!

I find myself disagreeing with myself often and half of the time I win!

I agree, Regina, or rather, I disagree, I mean I partly agree and partly disagree, or perhaps the other way around. Okay, you win!

Stonewall Girl Stonewall Girl | March 31, 2011 1:04 AM

that's ok Regina and Jillian, I understand ... maybe it's part of the two-spirit thing.

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the question we must address is what will it take to pass it when Democratic majorities again come to Congress.

I think the past year has shown us that depending on the Dems isn't always the smartest strategy. Everyone is framing this as a "no" without even trying with a whole new cast of characters (Congress). instead of aiming for Dems who are obviously prejudiced, it's time to start working republicans heavily - including the tea baggers. If we can get enough of them switched, we won't need the Dems & the rest of them will want to vote with us just to prove they're more progressive than a Republican.

I agree completely, Bil, we mustn't ignore the Republicans. More and more of them are representing constitutencies with young Republicans who could care less what someone's sexual orientation is.

Stonewall Girl Stonewall Girl | March 31, 2011 1:20 AM

The problem was NOT the Senate! For members of the House to say that is a cop-out. Reid's office made it very clear from the beginning that it had to pass the House first and both Reid and Merkley's people were clear that they were confident it would pass if there were Republicans and some Blue-dog Democrats, which we DID have! DADT which was more controversial got 65 votes in the Senate!

Reid is a craven coward on civil rights and anyone paying attention knows it. His continuous hypocrisy on jobs in general and LGBT workplace rights in particular should be an object lesson to all concerned that one of the biggest problems with getting ENDA passed into law is that Captain Compromise is fine with compromising the rights of those without the connections, media attention, and cold, hard cash to purchase their basic civil rights from the Democratic Party.

It's time we started calling it and him exactly who and what they are, not keeping making excuses for the Democratic Party's cowardice and serial failures to stand up for real American justice.

ENDA's needed and so is the education it provides.

We also need to get rid of at-will employment and strengthen union power. The people who oppose our right to work equally to others aren't just nasty homophobes, but reasonable people who think their status as an employer entitles them to control their employees' behavior in private and and that their status as a business owner means that they can do business with whomever they please.

There are also people who oppose it because it gives employees another reason to sue employers and they're fundamentally opposed to workers having any more rights. We heard that one witness at the House ENDA hearing last Congress whose criticisms were ignored by most of us, basically arguing that the law should pass but that it should be unenforceable.

The question ENDA addresses is power, not inclusion, which is why it's going to be harder to get through than DADT or marriage. We're at a point in US history where everyone loves inclusion, but where power is definitely out of balance.

Angela Brightfeather | March 31, 2011 7:06 PM

Becky is correct....but she also cannot see the forest through the trees. The naysayers to what she is saying, are defeatists who don't understand the history of the Trans community, or simply have not lived it.

We not only have all three parts of Becky's equation for success, but all three parts have and still do have their own successes and have proven so regarding ENDA.

NCTE is alive and still fighting. They have a staff that lobbies and organizes volunteer lobbying. They have made headway in DC in the areas that hardly anyone in the TG community could have ever hoped to make headway in the last 20 years. They are one component.

NTAC, the grassroots organization of the TG community had one big success if not a number of smaller ones also. When ENDA had no TG mention in it because HRC refused to agree to put it there, they were the group that published and set out the White Paper on HRC's prelobbying against inclusion and proved it. They also began the picketing at HRC dinners that eventually turned the course and made HRC declare itself inclusive. They are another third of the equation that needs to be reset and put in motion, but the bones and structure of NTAC and what it did are still known history and can be jump-started again, simply because we know how from doing it before.

The last 33 1/3% of this grouping is all ready and set to go. People like Autumn Sandeen who chained herself to the White House fence, Transgender people who stood outside of HRC dinners and handed out folded papers that spoke the truth about ENDA as few as two years ago are still out there ready to march again in unison for the cause of ENDA.

All the components are there or can be ressurected with far less effort than the first time. As to any naysayers who say it can't be done....stand in the cold on a winter night handing out leaflets at an HRC dinner some time with CD's, TS's, TG's, DQ's and GQ's all fighting for the same pupose and then tell me it can't be done or it's not worth doing. But don't tell somone who has done it, that it can't be done now.

Becky is just repeating exactly what many of us have been saying for years about Trans activism. You have to fight on every front and at every opportunity and it has to be a coordinated effort where all three parts support each other. We have had all three parts before, the only thing that was missing is the coordinated support.

Thanks for your points, Angela. How do we get that "coordinated support"?

We won't get ENDA this term. But what happens when Democrat majorities come back into Congress?

Same as last time, unless something's changed for the better. With the massive world economic meltdown that's coming, I don't see ENDA as being on the radar for the next decade. 2022 is now optimistic.

Your point about 2022, Zoe, forgets that there is a demographic tidal wave of young people who care nothing about sexual orientation and gender identity, and they would likely favor rights.

ENDA has always been a 1/4 loaf effort. When will you wake up and realize amending the Civil Rights Act covers everything and forget ENDA? In the wake of all the angst over the Maryland exclusion of public accommodations, which a few finally realized meant everything from housing to the right to be in a restaurant or store, why isn't the lack of coverage in ENDA enough to kill it once and for all?

You don't get civil rights by begging for them, you get them by refusing to allow others to exclude you from them.

Supporting and making the ERA would also pretty much cover all women of history as well, simple, elegant, long past time and in fact a national disgrace it isn't passed yet.

After what's happened, I'm with you.