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Top Stories This Week in the Chronicle.
October 12, 2007

Debate rages over ENDA,
with or without gender identity

Washington, D.C.--The conflict over dual versions of the Employment Non-Discrimination Act continues unabated, two weeks after Rep. Barney Frank announced that a trans-inclusive version of the bill did not have enough votes to get passed.

Frank introduced a new measure on September 28 protecting against employment discrimination on the basis of sexual orientation only, plus another that covers gender identity only.

The version introduced earlier this year covers both. All three are now in play, although congressional leaders believe that only the one without gender identity has the votes to pass in the current session.

Frank and the Lambda Legal Defense and Education Fund engaged in a heated exchange over the effects of differences between the bills.

Lambda argued that removing gender identity would enable employers to fire gay or lesbian workers for not being “manly” or “womanly” enough, and said that other changes were made to the bill other than simply dropping the phrase “gender identity.”

“The recent version is not simply the old version with the transgender protections stripped out--but rather has modified the old version in several additional and troubling ways,” Lambda said in an October 1 press release. “In addition to the missing vital protections for transgender people on the job, this new bill also leaves out a key element to protect any employee, including lesbians and gay men who may not conform to their employer's idea of how a man or woman should look and act. This is a huge loophole through which employers sued for sexual orientation discrimination can claim that their conduct was actually based on gender expression, a type of discrimination that the new bill does not prohibit.”

Frank refuted the assertion.

“The second bill does omit reference to people who are transgender, but it makes no other change in the wording on this point. It neither adds nor deletes any reference to employers’ rights to fire people based on how they appear,” he wrote. “The sexual orientation language in H.R. 3685 is the same language that has been in every version of ENDA since its first introduction in 1994. There is nothing in case law or in ENDA’s history to indicate that absent gender identity coverage, the bill would inadequately protect gay, lesbian and bisexual people from discrimination. In addition, there are eight states with laws covering sexual orientation but not gender identity, and I am not aware of any instances where anti-gay discrimination, even based to some degree on gender non-conformity, was not covered.”

Frank continued, acknowledging two other changes: one removed a measure that would have altered a federal law governing employee benefits, and the other added a broad religious exemption. The congressman said that it was a mistake to try to make the change in the benefits law, and leaving it in would have “guaranteed that we would have the vigorous opposition of the Chamber of Commerce, the National Federation of Independent Business, and a large number of other business organizations.”

He also said that the religious exemption in his new version of the bill brought it in line with earlier versions of ENDA that enjoyed broad support.

The internecine squabbling is not just between Frank and Lambda, however. Transgender activists are taking the Human Rights Campaign to task over seemingly contradictory statements in the early days of the controversy, which made it unclear whether HRC would oppose an ENDA bill without transgender protections.

Attorney Phyllis Frye, a prominent transgender activist, alerted her e-mail list to be on the lookout for a “wink and nod” reaction from HRC, seemingly opposing the new version of ENDA while actually supporting it. Continued statements from HRC seemed to bear her out.

“I trust the hundreds and hundreds of national, state and local GLBT organizations that want the non-inclusive, Barney Frank ENDA 3685 trashed and the inclusive ENDA 2015 passed,” Frye said. “And I do not trust--when the chips are down for the "big pot"--that HRC or Barney Frank will come through at a later date for the ‘les miserables’ of the GLBT community.”

Amidst all the controversy, HRC lost its only transgender board member when Donna Rose resigned. She announced her resignation on October 3, noting that it would take effect five days later.

The battle is not just waging in the upper echelons of Congress and among LGBT organizations. On blogs and editorial pages, contrary views are bursting like mortar rounds in the night sky.

Journalist Rex Wockner solicited activist Robin Tyler’s opinion on the issue, and her view was novel, if not quiet in line with political orthodoxy.

“I support full transgender rights,” Tyler said. “However, when I have been invited to legal weddings of some of my transgender friends, not one of them has said, ‘We will not get married until Diane and you and other same-gender couples can get married.’ ”

“They did not sacrifice their legal rights on the altar of political correctness to give up the state and federal benefits of marriage,” she continued. “And yet, with ENDA, the lesbian and gay community is expected to do so, leaving millions and millions of us in the majority of states, once again, unprotected.”

Taking the opposing view, Michelangelo Signorile picked apart arguments in favor of the split-bill strategy, noting, “African-Americans did not say, Hey, let’s put forth a bill to protect all the light-skinned blacks--those who can pass and are less threatening to whites--and we’ll come back to the blackest of the black later.”

“And make no mistake: the trannies are the queerest of the queer; they are the ones who need protections more than anyone else,” he concludes.

Activist John Aravosis, who with Tyler was one of the driving forces behind, a website opposing Laura Schlessinger’s anti-gay views on her radio and television shows, found himself being labeled a bigot because he questioned how transgender people got added to the gay, lesbian and bisexual community.

While he would like to see transgender people included in ENDA, he says that he understands the need for incremental gains, pointing to the patchwork of civil rights legislation passed since 1870.

“If we waited until society was ready to accept each and every member of the civil rights community before passing any civil rights legislation, we’d have no civil rights laws at all,” he noted. “Someone is always left behind, at least temporarily. It stinks, but it’s the way it’s always worked, and it’s the way you win.”

He also argued that many, if not most, of the rank-and-file members of the gay community are not completely accepting of transgender issues.

“I have a sense that over the past decade the trans revolution was imposed on the gay community from outside, or at least above, and thus it never struck with a large number of gays who weren’t running national organizations, weren’t activists, or weren’t living in liberal gay enclaves like San Francisco and New York,” Aravosis continues. “Sure, many of the rest of us accepted de facto that transgendered people were members of the community, but only because our leaders kept telling us it was so. A lot of gays have been scratching their heads for ten years trying to figure out what they have in common with transsexuals, or at the very least why trangendered people qualify as our siblings rather than our cousins.”

Riki Wilchins, executive director of GenderPAC, and Keith Griffith, who operates the website Cruising for Sex, take opposing views on that question. Wilchins says that gay men and lesbians are by their natures transgendered, while Griffith argues that the trans position is antithetical to LGB rights arguments.

“There is a deep strain of institutionalized denial in our community about gender transgression and gender play and just how inextricably they are entwined in gay identity, relationships and culture,” Wilchins writes. “How many times do we need to see Harvey Fierstein or John Cameron Mitchell in drag? How many butch-femme couples do we need know? Why do gay men tease each other with feminine pronouns, if gender is totally separate from sexual orientation?”

“For that matter, what is the ultra-butch Mr. Leather Contest about, if not gender,” she asks.

In Griffith’s contrasting view, he posits, “Think about it . . .  and it is hard not to see why this marriage was never meant to be. Transgendered people are all about making a choice to change something fundamental about themselves. They acknowledge that nature makes mistakes and that science can fix those mistakes with therapy and surgery.”

“Does this sound like something gay people should embrace as part of our agenda? Haven’t we spent decades saying being gay was not a choice, not something that was a mistake, not something to be corrected with therapy or vows of chastity?” he asks.

Susan Ryan-Vollmar’s editorial in the Boston weekly Bay Windows described the all-or-nothing strategy as “madness.”

“The House is on the verge of passing groundbreaking workplace protections for millions of Americans . . . It’s not perfect. Few pieces of civil rights legislation are,” she writes. “But it would provide a concrete base upon which to expand ENDA protections not just to transmen and women but to also add provisions to the bill that would require employers to offer domestic partnership benefits to the partners of their LGBT employees if they offer such benefits to their heterosexual employees--a provision that is not in the current bill.”

“This petulant insistence on purity, principle and perfection is a hallmark not just of the LGBT community, but of American politics in general. Just look at James Dobson’s and the Christian right’s demands that the Republican Congress take up an overly broad Federal Marriage Amendment to the U.S. Constitution when a much narrower provision that would have allowed for civil unions stood a much better chance of passage,” she writes. “Not that I’m comparing progressive LGBT activists with the Christian right. After all, the Christian right is capable of delivering votes, huge sums of money to candidates and hundreds of thousands of phone calls to lawmakers when an issue is deemed important enough to warrant it.”

“Progressive activists? Not so much,” Ryan-Vollmar concludes.        





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