ENDA: The Sound of One Hand Clapping
Yesterday, after several days of lobbying by many LGBT organizations to the Democratic leadership, it was announced that gender identity would not be pulled from ENDA. I am as pleased tonight as I was upset yesterday, and I take back all those petty, ungenerous thoughts.
The mobilization of so many organizations to retain the transgender community in ENDA created an opportunity for legislators to be educated about the meaning and importance of gender identity. In fact, I heard from those in the know that part of the reason that some legislators expressed hesitancy about supporting a gender-inclusive ENDA was that they were not sure what “gender identity” meant.
By this, I assume, they did not refer to a mere definition, as there is one in the bill and they've been hearing about this for months
Rather, I take it that they did not understand the importance and significance of including it. And this is no surprise to me, as I have spent the last several years leading full-day trainings and marathon policy meetings with corporate leaders who also had a hard time understanding this, even though on another level they surely did understand, as they were paying me to explain it to them in full. The significance of “gender identity” to the project of anti-discrimination law is much more than its definition. On this point, a page of history is worth a volume of logic, as Supreme Court Justice Oliver Wendell Holmes famously said.
In 2001, Taylor Flynn,a prominent lesbian attorney and professor of law (now at Northeastern University) published an essay in the influential Columbia Law Review. [TRANSforming the Debate: Why We Need to Include Transgender Rights in the Struggles for Sex and Sexual Orientation Equality, 10 COLUM. L. REV. 392 (2001).] She argued that transgender rights should be included as a central issue in the struggle for sex and sexual orientation equality, rather than relegated to the periphery. Her essay analyzed a series of court cases on sexual orientation issues, including workplace, public accommodation, asylum, marriage, and custody cases. She demonstrated that, without a more accurate and multifaceted understanding of sex and gender, sexual orientation law is significantly hampered in its ability to address the core of sex and sexual orientation discrimination. That core, according to Professor Flynn, is hostility based on failure to conform to conventional gender norms. Courts conflate sexual orientation and gender premised upon the traditional understanding of “sex,” as determined by anatomy at birth. The presumption typically following from this reduction of sex to anatomy is the notion that certain gendered attributes are inherent in biological male- or femaleness. Thus, protection of sexual orientation without protection of gender identity and gender expression leads to a jurisprudence in which lesbians and gay men receive with the right hand, while it is taken away with the left.
What is sexual orientation without gender identity? More at Transgender Workplace Diversity