CommunityPam's House Blend

The battle over ENDA

As Autumn documented quite well in her post, the saga of what will become of the Employment Non-Discrimination Act over the inclusion of transgender protection is roiling within the advocacy community and on the Hill.

My two cents: trans inclusion should not be dropped from ENDA.

That said, I certainly understand that this position represents the "purist activism" point of view — the principle is that if one falls, we all fall. The pragmatic view is that incremental gains can and should be taken to move the civil rights bar forward. As Barney Frank's office noted, the Civil Rights Act of 1964 failed to address voting (added in ’65) and housing (added in ’68).

The marriage issue shares the difficult purist/pragmatist split. Purists seek marriage equality first, because civil unions represent the establishment of a separate-but-unequal second class status for gays and lesbians that will be difficult to undo (with straight society feeling the needs of the situation will have been met by CUs). Pragmatists believe the ultimate path to marriage will be paved by civil unions, gaining legal rights that didn't exist for same-sex couples now, believing that CUs will ultimately be determined (in the courts and legislature) unequal.

A case can be made that this is where things are heading in New Jersey as the state's Civil Union Review Commission has been hearing evidence from couples that have entered civil unions.  At the first public hearing on the matter (last night), Steve Goldstein of Garden State Equality reported that 304 couples have come forward to the organization — employers won't recognize their civil unions. A New Jersey civil union couple, originally denied benefits, testified that the benefits company changed its mind when it learned the couple got married in Massachusetts — that being married is a meaningful difference in the eyes of the law and society.

Can this progression be translated to ENDA?  It's possible that a trans-only, separate bill would pass some time down the road, but it wouldn't be any time soon. Is it right to leave a part of our community behind? Even with the leverage of ample public support for trans-inclusive ENDA in the corporate world, the fact that this dilemma is playing out so early shows that a lot of education on the issue has not been done — folks on the Hill and Main Street America (and some even within the LGB community) are still dealing with fear, ignorance and ambivalence.

Bottom line:

* The votes aren't there to pass ENDA as is.

* One of our out-gay legislative allies, Barney Frank, has made it clear that he supports dropping trans-inclusion to save some aspect of the bill. That carries a great deal of weight on the Hill, and his straight colleagues will follow his lead.

* Frank's position places the major LGBT legislative advocacy group, HRC, which has officially supported trans-inclusive ENDA, in an incredibly difficult position. What happens if HRC maintains support for trans inclusion, officially states opposition to the stripped bill, and then it passes — without the support of any of the ANY of the LGBT community's advocacy groups? That will, to say the least, publicly undercut much of the work and relationship-building on behalf of the LGBT community that has gone on behind the scenes. Is the community at large OK with that? How relevant is this to the issue? I obviously don't have the answers, but the long term impact on any future influence on LGBT legislation cannot be ignored.

* Even if it does pass without trans protections, Bush will veto ENDA.

The latter point brings me to a thought that immediately came to mind when I heard  trans inclusion was in jeopardy. The concern of Pelosi and others that there would be a "bruising" debate on ENDA that focused on the "T" seems like a red herring. Of course it will be bruising. No matter when this came up for debate, the usual suspects — the professional anti-LGBT forces — would blast disinformation and bigotry non-stop. There would be high volume bleating and hysteria based on "she-males," transvestism, drag queens, bathroom paranoia, etc.

Quite frankly, I feel like this needs to come out in debate on the House floor, and better that it does under the mantle of the Bush Administration and the legacy of a Republican run Congress, which has done everything to foment anti-LGBT sentiment for years. They should own this. The Democrats don't have the juice to undo years of this BS in the short time that they have been in power.

ENDA will fail, no matter its configuration because George Bush and allies on the Hill have shamelessly obtained their power by cultivating political support on a base of fear, hate and ignorance. The bill might as well fail now, and hold up its defeat as the first step in reviving a commitment to unite, not divide, and to move the civil rights bar forward.

But it isn't going to be pretty or painless.

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Pam Spaulding

Pam Spaulding