[The Bilerico Project features a statement from Barney Frank on his view on ENDA.]

 5:30 PM ET. I'm sitting in the airport here in DC. I've been offline most of Friday because I was, ironically and appropriately, at the Out and Equal Workplace Summit, where there is major buzz over the issue of trans-inclusive vs. non-trans-inclusive ENDA debate going on behind closed doors on the Hill is a hot topic.

A large portion of the panel I was on, Workplace Equality in the American Spotlight,  involved discussion of ENDA's fate. This was all spurred by the great coverage of Kevin Naff and the Blade, which broke the story of the brewing split over trans inclusion on the Hill. Just taking a temperature of the room, moderator Bob Witeck asked the audience to display a show of hands over whether they were members of Congress, would they support ENDA as is, or in a trans-free version.

It was split about 50/50 – that tells you how contentious this is in the community. It was clear, even on the panel, which included Sean Bugg, Jonathan Capehart, Neil Giuliano, Marc Gunther, Gary Lee, and Kevin Naff, that there was a variety of personal and professional views on the politics and principle at play. Of course I made it clear where I stood on the issue (something you all read in my earlier post) — the battle will be bruising and ugly no matter when ENDA comes to the floor (and Bush would veto either version even if it cleared the Senate), so we might as well use the defeat of a trans-inclusive ENDA to 1) continue educating lawmakers on trans issues, and 2) challenge the ridiculous, amoral tactics of the right (“she-males”, drag queens transvestites, etc.)  that has clearly scared Dems in conservative districts.

The one thing we have on our side in the battle for a trans-inclusive ENDA is the fact that corporations have already dealt with this — and it was clearly in evidence at this conference, where the large vendor hall featured a ton of Fortune 500 companies in just about every sector you could imagine – defense contractors (Raytheon, Boeing), banking and finance (Capital One, ING, Wachovia, HSBC, Merril Lynch, Wells Fargo), retail (Best Buy, Target, JC Penney, McDonalds), Microsoft, Johnson & Johnson, Toyota, Motorola, Sun, the list goes on and on. For most of them, LGBT anti-discrimination policies are a no-brainer, a done deal — it's good for business, recruitment and retention, and a source of pride.  That level of inclusion and commitment to equality makes this internal debate and debacle on the Hill about stripping down ENDA look petty — and cowardly.

In a timely bit of business, Rep. Tammy Baldwin, who has been on the inside fighting for trans-inclusion during this turmoil, was a speaker at the session I attended just before leaving, “On the Hill: Discussing the Current Status of LGBT Legislation” (Sen. Gordon Smith was unable to attend). She wryly referred to the thrashing debate going on right now as a “family fight” and was cautious about assigning blame, but was frank that the core issue of concern for those who are ready to either dump the T or submit a separate bill with T by itself with the stripped ENDA bill, as we've discussed is about risk — political risk and cover for the blue dog Dems who are from districts where they are receiving thousands of letters generated opposing T-inclusion, while receiving few letters of support for ENDA as is. Again, the right is clearly more vocal effective at making their elected officials feel the heat.

Big kudos to activist and former executive director of HRC, Elizabeth Birch, who attended the session and aptly raised the question on my mind — whether the apparent folding of Dem leadership on trans-inclusion is motivated based on actual long-term strategic thinking about the advancement of LGBT rights or fear. Baldwin replied that it's hard to separate the two in this instance, but really, this issue has been worked hard on the Hill for years.

It's almost as if no one expected trans-inclusion to be controversial or used as a political football by the right. Please, where is the news here? Remember, the Dems said they were ready to act on ENDA once they gained control of Congress. If they are getting cold feet now, it means they hadn't given this issue dealing with the potential political blowback of trans-inclusion too much thought in the first place. That's seriously not ready for prime time.  

Birch also suggested rather than pushing ENDA off the cliff in this heated moment, to have a cooling off period, not move on it and work to gain solid support from these waffling Dems rather than create a fractured mess to clean up. Baldwin said that it was a suggestion worth looking at, given the internal war going on.

As I remarked in my other post, Speaker Pelosi and Barney Frank are the ones to take major  heat for this situation. Regarded by his colleagues as the “sage” on the Hill on LGBT issues, Frank's abrupt move to accept a trans-gutted ENDA is a hard pill to swallow, and this was something more than one attendee said when they came up to me after my panel. Unintended or not, it's a bat to the knees that makes it all the more difficult to convince under-informed but supportive members of Congress to be on board. These fence-sitting members want to know who's going to have their back when they go back to their communities to face re-election.

In the end, it's about the education needed to bring legislators to a place of comfort where American companies are now. They, and the public at large need to see the faces and hear the stories of transgendered Americans and why ENDA as written is not a threat, but a fulfillment of a promise of equal treatment under the law that many take for granted.

HRC's statement is below the fold:

Joe Solmonese:

    We know that everyone has been waiting to hear from HRC about the status of ENDA.  A lot has changed since Wednesday.

    Besides trying to ensure that the Senate beat the filibuster on Hate Crimes–an achievement which can not get lost in this controversy–we've spent the last 48 hours gathering information and using all of our resources to stay on top of very fast-moving developments on ENDA. Rather than issue public statements and alerts while there was still a chance to make the situation better, HRC chose instead to engage directly with allies on Capitol Hill in an effort to save an inclusive ENDA.

    During this entire campaign to win an inclusive ENDA, we have been guided by the principle of trying to achieve the end result the fastest way possible.  Without question, that result has been–and continues to be–an inclusive ENDA that covers the entire GLBT community.  We will continue to use that as our benchmark as we move forward in this process.

    Unfortunately, we now know what we're facing.  The decision has been made, according to statements from Speaker Nancy Pelosi and Congressman Frank issued this afternoon–the House will consider a version of ENDA that does not include gender identity.

    This is not what an
y of us wanted, and certainly not what we've been fighting for.   But, it has been made clear that the House leadership and bill sponsors are moving forward with a non-inclusive ENDA even without the full support of our community.  They view this as the best opportunity they will have this year to help the largest number of people–and have stated that they do not intend to miss this opportunity.

    Passing an inclusive ENDA is the right thing to do for our community, our economy and our country.  However, we're facing a stark reality.   

    House leadership and the bill's sponsors very firmly believe that if the House votes on an employment non-discrimination bill without gender identity, that legislation will pass–again, it will pass even without the support of the GLBT organizations.

    After trying everything at our disposal to change this outcome, we are just beginning to come to terms with what that means.

    Since 2004, the Human Rights Campaign's policy has been to only support civil rights legislation that is inclusive of gender identity. That's why we fought tirelessly for and won Congressional approval for a fully inclusive hate crimes bill.  We've been fighting to pass the Employment Non-Discrimination Act for more than a decade.  The breaking news that the House has decided to move forward on a non-discrimination bill that is not inclusive of gender identity is devastating. The Human Rights Campaign remains dedicated to the fight for full equality for our entire community and, in light of this new reality, continues to consult with members of Congress and our lobbyists to determine how we can achieve that goal.

    This has been a long battle.  HRC first started the quest for ENDA in 1994.  We've been pushing for an inclusive bill since 2004.  Within two weeks, ENDA could pass the House for the first time in history, but not as an inclusive bill. 

One point that Birch made is that HRC has been continuously directly working on the Hill with the principal characters since this fracture broke, but it has been getting slagged for the lack of a public response so far. So there's the statement. As you know, I've been both complimentary of HRC and doled out the demerits when warranted. HRC's position to date has been support of a trans-inclusive ENDA —  there are serious ramifications if the rug is pulled out by Dems who want to make it easier on themselves for re-election rather than doing the right thing on a bill that would face a veto anyway. The Dems have created a mess.


 All that said, HRC is going to take blasts from all sides on this because there's no clear win to be had in any position taken.

Pam Spaulding

Pam Spaulding