Editor's Note: Guest blogger Barbra Casbar Siperstein was the first transgender member appointed and confirmed to the Democratic National Committee, and is currently a member of the DNC Executive Committee and the deputy vice chair of the New Jersey Democratic State Committee. In addition to being the president of the New Jersey Stonewall Democrats, she's a published author, small business owner, veteran, and a grandparent.
Elections have consequences and the election of Cory Booker in New Jersey to fill the unexpired term of the late Senator Frank Lautenberg brings us a loud and definitive vote in favor of the fully inclusive LGBT Employment Non-Discrimination Act, popularly known as ENDA. Right now in 29 states a person can be fired for being (or being perceived) as gay - and in 33 states for being or being perceived as transgender. That's it... goodbye!
In Pennsylvania, Ohio and Florida, there are no statewide protections for gay and trans people. In New York State, you are covered if you are gay or lesbian, but if you are trans.... Sayonara!
Some activists have argued that transgender people now have federal employment protections. Indeed, last month, Cori McCreery, a 29-year-old transgender woman, reached a $50,000 settlement in an employment discrimination suit against her former employer. Cori was fired in 2010 after informing her employer in Rapid City, South Dakota, of her intention to transition from male to female. A complaint was filed on her behalf asserting that discrimination on the basis of gender identity is a violation of Title VII of the Civil Rights Act of 1964, which forbids sex discrimination.
There have been a handful of discrimination suit victories that have gone in favor of transgender workers since the April, 2012 landmark case Macy v. Holder, which established that gender identity is, in fact, protected under Title VII. However, reliance on Title VII doesn't offer transgender individuals the protection necessary to close most of the employment and wage gaps they so often face.
Nearly 90 percent of transgender individuals note some sort of employment harassment [pdf]. As a result, transgender individuals experience significantly elevated rates of unemployment, poverty and homelessness. While Cori McCreery may have found justice, thousands of others still haven't found theirs.
Non-Discrimination Needs to Be Explicit
The paucity of these cases speaks clearly and broadly just how difficult it is to establish that discrimination has taken place. The effort necessary to file a civil rights lawsuit is extraordinary and cases are drawn out for months, if not years, at a time.
When a handful of transgender activists and allies attempted to amend New Jersey's powerful Law Against Discrimination (LAD) in 2005, we were told by progressive establishment political and legal allies that we were already covered because of a little known 2001 Appellate Court decision, Enriquez v. West Jersey Health Systems; it stated that transsexuals were included in "sex" and also stated that being transsexual was a disability.
That was all fine and good, but the employment posters I had to show in my business would not be changed, the housing posters in hotels and rental apartments would not be changed, nor would the public accommodations posters that are normally prominently displayed in all shops. None of them would be changed to include "gender identity or expression", leaving most trans people and employers and business owners unaware that there are protections under the existing law. Although ENDA is not as all encompassing as our NJ state law, it is explicit for employment.
In 2010, when I was disgusted with a Democratic majority Congress, I advocated we kill ENDA and move on to something different. In 2013, things have changed.
Can ENDA Pass in 2013?
With the retirement of former Congressman Barney Frank we now have a new prime sponsor of ENDA in the House, Representative Jared Polis of Colorado. While Rep. Frank had a history of mixed messaging about transgender inclusion in ENDA, Congressman Polis has only spoken "full inclusion" language. He also comes to Congress as a successful business person who can relate to talking about "employment." I've also noticed that Leader Pelosi is talking more consistently about an inclusive ENDA than Speaker Pelosi did in 2009 and 2010.
Without passage of a federal bill like ENDA that clearly outlines the illegality of discrimination against transgender individuals, public perception of transgender workplace rights will, at best, move slowly.
So, where are we now? This summer, the Senate HELP Committee passed a bipartisan ENDA by 15-7 with all Democratic Senators plus three Republicans - Hatch, Kirk and Murkowski - voting in favor. My Republican grapevine tells me there are several more Republicans who will vote in favor and with the election of Booker to the Senate, we now have replaced a maybe or a quiet "yes" for a big bold "YES!"
A reasonable person would assume that today's LGBT Community is united for an "inclusive" ENDA. I actually thought that was the case until I attended a panel/symposium at NYU Law School organized by the folks at Freedom to Work. To my dismay, suddenly there was a lively discussion among academic and other LGBT activist lawyers who obviously have comfortable jobs, that the religious exemption in ENDA is not good enough.
The language and exemption in the current legislation is the same as in the last Congress when Democrats had control and progressives seemed happy with the wording. Is it possible that my cynical mind wondered if this could be an excuse for elitists to derail legislation that might help level the playing field for transgender people?
Over the weekend I attended a rally for a Democratic gubernatorial candidate Barbara Buono that featured our new Senator Elect. He makes no bones about championing ENDA and once he is sworn into the exclusive Club of 100, I believe that will be the signal to Harry Reid, to start moving ENDA toward passage. We need that win. We can discuss the significance, in spite of a hostile House at a future time, but a win in the Senate will at least give us options for progress.