ENDA: Bad Choices Require Good Decisions

The Employment Non-Discrimination Act (ENDA) originated as the Gay and Lesbian Civil Rights Act more than 35 years ago. I have worked for this legislation for 25 years and tomorrow, the moment I have been dreaming of, it is finally being considered by the U.S. House of Representatives for the first time. Unfortunately, this historic moment has become somewhat joyless.

Several years ago it became clear that protections were needed in the workplace not just for gays and lesbians but also for transgendered people, so additional language was added last year to do just that. And that language has the added benefit of solidifying protection for gays and lesbians who faced discrimination because they looked like a sissy or a bull dyke even if an employer did not know their sexual orientation.

By now, most interested people know that the House Leadership anticipated a lack of support for the gender identity provisions and stripped them from the Bill that moved out of the Ed and Labor Committee last week. Rep. Tammy Baldwin will offer an amendment to put that provision back in the bill. It's chances of passage are slim even tough many good people are working to push it through.

Here's the rub. Much of the leadership of the LGBT community (except the Human Rights Campaign) is of the view that if the Baldwin Amendment doesn't pass, then good and fair-minded legislators should vote against final passage of the bill. Though polling in the LGBT community shows much more ambivalence about that strategy, you wouldn't know it from the way the community group executive directors have been acting.

We will never know if we could have passed an inclusive bill this month because the fact is, that too many leaders in the House didn't want to try. My friends on the Hill might be mad at that characterization but it's true. People didn't want to force a "hard" vote that might hurt their election chances. I think that fear was wrongly analyzed. Ever since I've been working on these issues, the attacks from the other side on fair-minded politicians have always been about the most outrageous of our community. If not transgendered people then definitely transexuals. Do we think the attack ads would look much different if gender identity were included? A Republican looking to attack a local Democratic congressman in a conservative district on this issue isn't going to create an ad with a picture of two well-dressed gay guys going to work in a suit and being fired. Of course not, because the country doesn't want to see that happen. They are going to create the most outrageous picture possible and include some large dildos and men in feathers and dresses. Since it is obvious that they will be attacked the same either way, the leadership should have stuck to the guns and pushed the inclusive ENDA. They get nothing for those vulnerable members and they harmed the process in the interim.

But that isn't what we have now. And no, it isn't quite fair.

But that is how the legislative process works.

So, if the Baldwin amendment fails, I will be as disappointed as everyone else but I don't see the point of cutting off our nose to spite our face. Let the Family Research Council be the ones to try and kill the bill. Why would we stand beside them?

The LGBT community has pushed Congress for years to move legislation. We weathered 12 years of a Republican-controlled Congress that blocked forward movement at every turn..

The legislative process cannot be controlled from the outside. But it can be nudged. Even if we lose the Baldwin Amendment, this bill is a long way to presidential signature. We still have a chance to get an inclusive bill out of Congress and onto the president's desk. Which president, I don't know. But let's save the slaughter of a critical piece of legislation for the time when it may really deserve it. Now is not that time.

When good and fair-minded members of Congress support final passage because they didn't have a chance to vote on a whole bill, they must be appreciated for their efforts, not made to feel as though they have just sunken LGBT civilization. Why would we want Tammy Baldwin and our countless other friends in Congress to have to vote WITH Rep. John Boehner to kill a gay rights bill? How could we in good conscience ask her to do that?

After all these years, there is little satisfaction in the prospect of moving legislation that leaves behind the very people who may need it the most. A group of people who may not ever see protection in the foreseeable future without all of our help.

But killing ENDA before it gets out of the House is no way to help. When we are strong, we can help the most. If ENDA fails on final passage because of ambivalence and anger, the only message it sends to the right wing and our real foes is weakness, not strength. Signaling weakness at a time when we most need to show strength is not a good decision. We might not like the hand we've been dealt but walking away from the table is not an option in my book.