THE BLOG

No Gays Left Behind

12/12/2012 07:04 pm 19:04:04 | Updated Feb 02, 2016

"No Gays Left Behind" is my new civil rights mantra. Beginning a year ago, Dec. 6, 2011, in the 11th Circuit Federal Court of Appeals in Atlanta, with the historic Glenn v. Brumby decision, the definition of "sex discrimination" was expanded to include transgender and gender-nonconforming individuals, gay and straight. Rather than the community remaining divided primarily between gay and trans, we are now left with the completely unexpected situation of the largest segment of the LGBT community, gender-conforming gay and bisexual men and women, being alone in not having federal protections. Surprisingly, the gender-nonconforming, who have been marginalized both by society in general because of the persistence of sexism and misogyny, and historically by a large part of the gay community, are now driving the bus to freedom.

This is a historic moment for freedom and equality. The past few years have seen some other remarkable victories, in federal courts with Prop 8 and DOMA, in the military with the repeal of "don't ask, don't tell" for gay service members, and with the accelerated progress in marriage equality across the country, both this past Election Day and with the Supreme Court granting cert last week to both the Prop 8 and DOMA cases. But the golden ring, the prize that had been front and center but is now on the margins -- equality for all people, regardless of "who they are or who they look like, whom they love or what God they worship," as stirringly stated by President Obama -- is still out of reach. But maybe, just maybe, not for very long. And if that is the case, then we will all truly be free, together.

Two cases last year, Veretto and Castello, both cases of discrimination in the U.S. Post Office system, have set the table for this moment. Both cases involved discrimination on the basis of sexual orientation, the former with a male employee and his male partner, the latter with a female employee and other women. The EEOC, while acknowledging that Title VII does not cover sexual orientation, took the novel tack of grounding the rulings in gender expression. Citing the landmark Price Waterhouse v. Hopkins case (1989) in the U.S. Supreme Court, as well as Schroer v. Billington (2008) in the U.S. District Court here in D.C., the case was made that fundamentally the act of harassment about a man marrying a man was grounded in the sex stereotype that the only real partner for a man is a woman, that marrying a woman is an essential gender attribute of a man. A similar argument was used about the sexual relationships of the lesbian complainant. These cases are not precedential, because they were not unanimous decisions and, therefore, do not expand Title VII to include gender-conforming gay persons, but they have educated the dissenting commissioners, and I'm hopeful that a future decision, which will also have the historic Glenn v. Brumby decision (2011) for support, will be unanimous and game-changing. Most recently, the decision by Commissioner Chai Feldblum, our advocate at the EEOC who has been a critical force in the past on the ADA and ENDA, to re-up for another five-year term, bodes well for that positive outcome.

In some respects it could very well be that the decision made back in the '70s by the nascent gay rights leadership to segregate gender-nonconforming gay people in the back of the bus and as far away from the general population as possible, has led to the public's inability to recognize homophobia as sex-stereotyping based in misogyny. The classic book on this topic is Suzanne Pharr's Homophobia: A Weapon of Sexism (1988). Having passed several hundred laws banning discrimination on the basis of sexual orientation, we cannot fault straight Americans for believing that being gay is simply about being part of a same-sex couple. Many of my gay friends know deeply within themselves that being gay is a part of your being, your core sexuality, which by puberty manifests in partner preference and desire. We've all heard stories about when people first knew they were gay, and for those who were very young at the time, it had nothing to do with sexual orientation. Interestingly, I've never heard a straight man relate that he knew he was heterosexual before his first crush on a girl, which probably adds to the inability to recognize that our sexuality is more than what is manifested only in relationships.

So now that the courts are recognizing that sex and gender overlap, and now that Americans, meeting more trans and gay persons, realize that one's gender identity and sexual orientation, even their own, are rooted in the biology of our brains, we are nearing the moment that the entire LGBT community may be protected under an expanded Title VII. That expansion will be reminiscent of all the other expansions of civil liberties since the days this nation was founded 236 years ago, diminishing no one while improving the lives of those for so long left on the sidelines. Maybe then even Congress will see fit to pass an ENDA protecting both gender identity and sexual orientation, and, who knows, maybe even an omnibus LGBT civil rights bill. At the Senate ENDA hearing last June, Sen. Tom Harkin (D-Iowa) closed by saying it's about time we get this no-brainer done. And this week, on Human Rights Day, United Nations Secretary-General Ban Ki-moon, said, "Let me say this loud and clear: Lesbian, gay, bisexual and transgender people are entitled to the same rights as everyone else. They, too, are born free and equal." I can now envision the time when The Dallas Principles are fulfilled, and that would be a remarkable accomplishment.