Symbolism or Substance in ENDA Debate?

Below is an editorial by Jody M. Huckaby, Executive Director, Parents, Families and Friends of Lesbians and Gays (PFLAG) National. (Used with permission.)

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 workplace protections.

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 narrowing rapidly.

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.

Jody M. Huckaby, Executive Director, Parents, Families and Friends of Lesbians and Gays (PFLAG) National. PFLAG is one of nearly 350 organizations that are part of www.UnitedENDA.org.