Dr. Martin Luther King Jr. made a poignant commentary about waiting for equality in his I Have A Dream:

…It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.” But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check – a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to lift our nation from the quick sands of racial injustice to the solid rock of brotherhood. Now is the time to make justice a reality for all of God’s children.

It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro’s legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning. Those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.

Gays, lesbians, and bisexuals have waited a long time an Employment Non-Discrimination Act (ENDA) — for federal LGBT civil rights legislation. Transpeople have waited a long time too. Let’s be clear though — the LGBT wait has been decades, and not the centuries Black America waited. That’s a good thing, to be sure. There is a fresh urgency of the moment with regards to LGBT civil rights, and there is an invigorating autumn of freedom and equality in the air for the LGBT community.

And yet, my transgender peers and I haven’t forgotten that with regards to gay, lesbian, and bisexual, and transgender civil rights, it wasn’t until a few years ago that national LGBT civil rights and other LGBT non-profits banded together and said “We won’t support an ENDA without transgender inclusion.” It was monumental.

Soon after the LGBT civil rights organizations and non-profits banded together in 2004 on the ENDA decision for trans inclusion, Chris Crain, then Executive Editor of Window Media, wrote an editorial entitled ENDA gets trans-jacked.

…it is mind-boggling that HRC has caved into trans activists and other groups – including the National Gay & Lesbian Task Force and PFLAG – and is now insisting ENDA should be passed only if it also includes protections for transgendered people.

IF HRC AND these other groups have their way, workplace protection for gays and bisexuals will be held hostage until a majority in Congress (and the president) agrees to protection for transgendered employees.

This “trans-jacking” of ENDA is wrong politically, legally and even morally. And it’s the latest sign that the groups at the supposed helm of the movement for gay civil rights are out of touch with their constituents and sadly adrift when we need them the most.

…It would be wrong and immoral for us to expect others to be treated unfairly until we are treated equally. And it is just as wrong and just as immoral for transgendered people and their P.C. allies in gay rights groups to expect the same.

Mr. Crain didn’t say it directly, but he certainly implied it — there are those against employment non-discrimination for LGBT folk that will specifically highlight trans inclusion to make a case against ENDA as a whole.

And, that’s happening now; anti-transgender ENDA talking points are now currently making the rounds in the religious right press. Matt Barber of the Concerned Women for America wrote about trans inclusion in the most hideous of terms just last week. The Illinois Family Institute added transgender inclusion to their talking points when they too wrote about ENDA last week:

Practically, how would ENDA be applied?
– A male teacher comes into work dressed as a woman because it is his ‘gender preference’ that day. He must be allowed to teach, talk with the children about why he’s dressing this way, and even use the women’s restroom…

And this week, just so far this week, the California Catholic Daily and Focus On The Family’s CitizenLink have highlighted ENDA’s trans inclusion in ENDA as a reason to reject the bill. From the California Catholic Daily:

The bill would claim a federal right to prohibit “employment discrimination on the basis of sexual orientation or gender identity” by invoking congressional powers to “enforce the 14th amendment to the Constitution, and to regulate interstate commerce and provide for the general welfare.” It would make it unlawful for an employer to discharge or refuse to hire any individual based on his or her “actual or perceived sexual orientation or gender identity.” Such individuals would be protected from any employer’s actions that “would adversely affect” their status as an employee. The bill covers not only employers, but employment agencies, labor organizations, and training programs.

The bill defines “gender identity” as 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.” An employer under the bill is “any person engaged in an industry affecting commerce” who has 15 or more employees for each working day for 20 or more weeks a year.

Though not stating the matter in so many words, the bill seems to classify as discrimination an employer forbidding anyone access to bathrooms or dressing facilities because of his perceived gender identity. The bill exempts “denial of access to shared shower or dressing facilities in which being seen fully unclothed is unavoidable” – but, in such cases, the employer must provide “reasonable access to adequate facilities that are not inconsistent with the employee’s gender identity.” But what of situations where employees are not “fully unclothed”? The bill does not say.

From Focus On The Family’s CitizenLink:

If Congress passes the Employment Non-Discrimination Act (ENDA – HR 2015), stories like the following could become commonplace across America:

— A transgender podiatrist sued St. Luke’s Hospital of Allentown, Pa., claiming she was fired because “she” had stopped being a “he.” Terms of a court settlement were not disclosed, but the hospital said it agreed to add “gender identity and expression” to its patient bill of rights and educate hospital staff on gender identity and sexual orientation issues.

— A California software maker paid a settlement and legal fees totaling more than $1 million because the company did not promote a man who had come to work dressed as a woman. It did not matter that the company did not even know the “woman” was a man. The “victim” sued under California’s “sexual orientation” law. To cover for the settlement costs, eight employees were laid off, with the number eventually growing to 20.

ENDA would “strike at the very heart of our American liberties,” said Doug Napier, senior legal counsel for the Alliance Defense Fund. It’s especially threatening to businesses that are already “regulated to death,” Napier said. “And now we’re going to tell you who you can hire and who you can’t fire, based on a category of protection that is not based on an immutable characteristic, but a choice of lifestyle.”

Trans inclusion is giving the religious right anti-ENDA talking points.

And yet, regarding transgender inclusion in ENDA, Matt Forman, Executive Director of the NGLTF wrote of New York’s Sexual Orientation Non-Discrimination Act in his 2004 piece ENDA As We’ve Known It Must Die:

Ultimately, a constituency has the right to decide what kind of legislation is advanced on its behalf. I believe now that if we had insisted on trans-inclusion years back, it would have happened, maybe not immediately, but it would have happened.

The LGBT community has, at the core of its activism on civil rights, decided that including the T in LGBT means something more than just lip service. As a transwoman, I’m very thankful that the public attitudes towards ENDA trans inclusion by national LGBT civil rights organizations and non-profits changed in 2004.

But, one can’t deny that Chris Crain had a point: Adding the T to ENDA has garnered additional talking points for arguing against the ENDA’s enactment. Crain believes that ENDA may be delayed because of trans inclusion; whereas Foreman essentially agreed, but felt any delay in enacting ENDA because of trans inclusion would be worth it.

This, apparently, for the LGBT community is no time to engage in the luxury of cooling off, nor is it apparently the time to take the tranquilizing drug of gradualism. It’s all or nothing on trans inclusion.

So to my LGB peers, as well as all of the T community significant others, friends, families, and allies — my personal thanks for taking the extra religious right crap on behalf of my transgender peers and me with regards to ENDA. Thanks for making real the promises of democracy and equality within the broader LGBT community; there really is an invigorating autumn of freedom and equality in the air.

We will have ENDA. We may have to wait until a new presidential administration to have it on the books, but we will have ENDA soon. And, the ENDA that becomes law will include transpeople in its protections.

Further reading:
* Elizabeth Birch, former executive director of the Human Rights Campaign ENDA & the Transgender Community (2003)
* Chris Crain: ENDA gets trans-jacked (2004)
* Chris Crain: ‘Trans or bust’ is still a bust (2005)
* Donna Rose: ‘Trans or Bust’ is still a bust – A Response (2005)

Autumn Sandeen

Autumn Sandeen