Op-Ed by Jody M. Huckaby
When the Employment
Non-Discrimination Act (ENDA) received its first-ever vote in the House of
Representatives and passed the Education and Labor Committee on Oct. 18, it
should have been a historic - and celebratory - moment for the lesbian, gay,
bisexual and transgender (LGBT) community.
But there was a cloud hanging over
the vote, with over 300 LGBT and allied groups in the United ENDA Coalition
advocating for the original form of the bill introduced earlier this year-
one that finally included a ban on discrimination based on gender identity.
The House Democratic leadership's decision to strip those protections from
the bill, leaving only sexual orientation covered, has turned what should
have been a victory into an unnecessarily divisive, disappointing setback
for the LGBT movement.
Unfortunately, the mainstream media
has characterized this primarily intra-community conflict as the
protestations of a "fringe minority of transgender activists" or the
"extreme left" of the LGBT population. Nothing could be further from the
truth. One look at the list of organizations and the constituencies we
represent makes that crystal clear. This is not a conflict between
"pragmatic incrementalists" and "all-or-nothing idealists."
This controversy goes to the very
core of what brings the LGBT community together, and it has forced a
much-needed debate to the surface. It is time for some truth-telling and
difficult conversations about what it means to be a community advocating for
Our coalition is urging Congress
either to restore gender identity protections via an amendment offered by
Congresswoman and out lesbian Tammy Baldwin or, if that cannot be
accomplished, to drop the effort to pass LGBT anti-discrimination
legislation this year. The reality is that this President will not even
consider signing such a bill, whether it covers gender identity or only
sexual orientation. This gives us the opportunity in the coming months to
continue to educate our elected officials - and the public - about how
matters of gender affect people of all sexual orientations.
Legal experts have criticized the
existing bill as having far too many flaws to provide adequate protections
for individuals based on sexual orientation, which often is closely linked
to their actual or perceived gender expression. Gay, lesbian and bisexual
people who are "straight-acting and appearing" might indeed face a safer
future following the passage of this bill, but those who more outwardly
transgress gender norms would remain vulnerable under the stripped-down ENDA.
Sadly, this has been lost in nearly all of the media coverage of this issue.
Simply put, men who are perceived
as effeminate and women who are seen as masculine are often singled out for
discrimination in the workplace, and federal case law is not settled as to
whether Title VII of the Civil Rights Act of 1964 provides sufficient
protection for such individuals. Take the example of Christopher Vickers, a
private police officer at an Ohio hospital. He claimed that he had been
discriminated against and verbally and physically harassed on a daily basis
after he became friends with a gay man.
Much of the harassment focused on
questioning Vickers' masculinity and suggesting that his sexual practices
were those traditionally associated with women. Just last year, a federal
appellate court threw out Vickers' case because it found that Title VII
does not forbid this type of discrimination. Keeping gender identity
protections in ENDA would help correct such rulings and represent a major
advance in the civil rights of all Americans -- lesbian, gay, bisexual,
transgender and straight.
While under most circumstances we
would support efforts to achieve a tactical victory in the House this year,
we feel that seriously weakening the bill and dividing the LGBT community
represent a price that is simply too high to pay for a purely symbolic
exercise. We believe that maintaining an inclusive ENDA, with protections
for the entire LGBT community intact, is both the pragmatic and principled
way to proceed.
Advocates of the stripped down ENDA
have said that insufficient education has been done concerning transgender
Americans and broader issues of gender identity. However, they appear to
have overlooked the dramatic, recent gains made in adding gender identity
protections to state and local law. Twelve states, the District of Columbia
and more than 90 counties and municipalities now protect transgender people
from workplace discrimination.
Together, these jurisdictions
contain more than 100 million people, about 37 percent of the U.S.
population. While more states and localities have sexual orientation
protections (representing just over 50% of the U.S. population), the gap is
Since 2003, every state and nearly
ever municipality that has enacted sexual orientation protection has also
covered gender identity. In large measure, this progress has been the result
of the growing unity, solidarity and cohesion of the LGBT community.
United ENDA's primary goal is to
keep our community and our allies united behind an inclusive ENDA until
progressive forces have strengthened their position in Congress and there
has been a change for the better in the White House. Our coalition
represents not only LGBT people, but their parents, family members and
straight allies who understand the importance of keeping the community
united rather than pulling it apart. Watering the bill down now and
dividing the LGBT community for a victory that is more apparent than real is
a dangerous distraction and the wrong precedent to set.
If members of Congress need more
education on gender identity issues, let's continue to increase our work to
do that now. Let's make sure they know that surveys show that 60 percent of
transgender respondents have either no source of income or earn less than
$10,000 a year, demonstrating the desperate need for employment protections
for transgender people. Let's make sure they know how frequently lesbians,
gay men and bisexuals are subjected to discrimination based not on their
sexual orientation but also because of attitudes about how "real" men and
women are "supposed" to look and act.
Let's work together to pass the
right bill, one that unites LGBT people, their families and straight allies
together, not an inadequate bill that fails protect everyone equally.