Our Fight For Anti-Discrimination Laws

Being in the legislative minority is easy - pulling together to block bad things does not require a lot of agonizing over tough decisions. Being in the majority is a mixed blessing. On the one hand, we have the ability to move forward in a positive way on important public policy goals. Detracting from that is the fact that it is never possible for us at any given time to get everything that we would like, and so we have to make difficult choices. But it is important to remember that the good part of this greatly outweighs the bad. Going from a situation in which all we can do is to prevent bad things from happening to one in which we have to decide exactly how much good is achievable and what strategic choices we must make to get there is a great advance.

The current manifestation of this is the difficult set of decisions we face regarding the Employment Non-Discrimination Act. We are on the verge of an historic victory that supporters of civil rights have been working on for more than thirty years: the passage for the first time in American history by either house of Congress of legislation declaring it illegal to discriminate against people in employment based on their sexual orientation. Detracting from the sense of celebration many of us feel about that is regret that under the current political situation, we do not have sufficient support in the House to include in that bill explicit protection for people who are transgender. The question facing us - the LGBT community and the tens of millions of others who are active supporters of our fight against prejudice - is whether we should pass up the chance to adopt a very good bill because it has one major gap. I believe that it would be a grave error to let this opportunity to pass a sexual orientation nondiscrimination bill go forward, not simply because it is one of the most important advances we'll have made in securing civil rights for Americans in decades, but because moving forward on this bill now will also better serve the ultimate goal of including people who are transgender than simply accepting total defeat today.

When the bill banning sexual orientation discrimination was first introduced by Bella Abzug and Paul Tsongas more than thirty years ago, it was a remote hope. Over time because of a good deal of work, education of the general public, and particularly the decision by tens of millions of gay and lesbian people over that time to be honest about our sexual orientation, we have finally reached the point where we have a majority in the House ready to pass this bill. Those of us who are sponsoring it had hoped that we could also include in the prohibition discrimination based on gender identity. This is a fairly recent addition to the fight, and part of the problem we face is that while there have been literally decades of education of the public about the unfairness of sexual orientation discrimination and the inaccuracy of the myths that perpetuated it, our educational efforts regarding gender identity are much less far along, and given the prejudices that exist, face a steeper climb.

We introduced legislation opposing sexual orientation discrimination with explicit inclusion of gender identity for the first time this year. Earlier this session under the leadership of Speaker Pelosi, we were able to get through the House a hate crimes bill that provided protection against crimes of violence and property damage for lesbian, gay and bisexual people and people who are transgender. There was some initial resistance to the inclusion of transgender people but a very organized effort on the part of Congresswoman Baldwin, who took a major role in this, myself, and the Democratic leadership allowed us to overcome it, with the support of some of our Republican colleagues.

We then began the work on passing a transgender inclusive ENDA. I was optimistic at first that we could do this, although I knew it would be hard. One of the problems I have found over the years of discussing this is an unwillingness on the part of many, including leaders in the transgender community, to acknowledge a fact: namely that there is more resistance to protection for people who are transgender than for people who are gay, lesbian and bisexual. This is not a good fact, but ignoring bad facts is a bad way to get legislation passed. I have for some time been concerned that people in the transgender leadership were underestimating the difficulty we faced in a broadly inclusive bill being adopted.

Still this seemed to me an effort very worth trying, and, when I testified before the Education and Labor Committee on ENDA I spent much of my time explicitly addressing the need to include transgender people. In fact, I believe I spent more time on that than any other witness. Sadly, as the time approached for the vote to be taken in the Committee, we encountered a good deal of resistance. The great majority of Democrats remained committed to this, but with Republicans overwhelmingly likely to be opposed - even on hate crimes on the critical vote we were able to retain only nine Republican supporters out of two hundred Republican Members - it became clear that an amendment offered by Republicans either to omit the transgender provision altogether or severely restrict it in very obnoxious ways would pass.

Responding thoughtfully to this requires people to accept facts. Some have tried to deny this unpleasant reality. The Democratic leadership, which is in complete sympathy with a fully inclusive bill, did a special official Whip count - a poll of the Members. There had been earlier informal counts that had showed significant support for a bill that included transgender, although even these informal checks never showed that we had a majority. But Members will sometimes be inclined to give people the answers they think the people who are asking the questions want until the crunch comes. In the crunch - the official Whip count taken in contemplation of the bill - it became very clear that while we would retain a significant majority of Democrats, we would lose enough so that a bill that included transgender protection would lose if not amended, and that an anti-transgender amendment would pass.

The question then became how to proceed. There were several choices. One was to go forward with the bill understanding that an amendment would be offered to strike the transgender provision. There was a proposal to have the Democratic leadership do that in what is known as a manager's amendment, in the hopes of avoiding a divisive roll call on the subject. But the Democratic leadership did not want to take the lead in killing a provision to which its Members are committed as a matter of principle, and in fact, given Congressional procedures, there is no way to prevent a roll call even on that. People have claimed that the desire to avoid a roll call is aimed solely at protecting some Democrats from having to make a tough choice. That is of course a factor, and asking your supporters to vote with you on a matter that is doomed both to lose itself and to lose you votes is not a good way to build up support. But it is also the case that a number of the Democrats were prepared to vote for the inclusion of the transgender provision even though they knew that it would hurt them politically. The main reason not to put this to a vote is our interest in ultimately adopting transgender protection. If we were to push for a vote now, knowing that the transgender provision would be defeated by a majority, we would be making it harder ultimately to win that support. As recent campaigns indicate, Members of Congress who are accused of switching their position on votes are pilloried, even when this is done unfairly as it was to Senator Kerry. Thus, forcing a vote on transgender inclusion now, which would without any question result in a majority against it, would make it harder to win when we have done better in our educational work, because Members who vote no now will be harder to persuade to switch their votes than to persuade them to vote yes in the first instance.

In addition, going forward in this situation leaves us open to Republican procedural maneuvers in which they could succeed not only in getting rid of the transgender provision. This would not kill the bill, but it would substantially delay it, and would be have very bad psychological effect in a situation in which maintaining the right psychology -optimism - is important.

That is why I believe that a strategy of going forward with a transgender inclusive provision that would certainly be stricken at some point in the procedure by a vote in the House would be a mistake.

Leaders in the GLBT community, who strongly support the inclusion of transgender, now acknowledge that this would be the case - namely that the transgender provision would lose - so their proposed alternative was simply to withhold the bill from the House altogether.

That is, their recommendation was that the Speaker simply announce that she was not going to allow the Employment Non-Discrimination Act to come up at all. I believe that would be a disaster - politically, morally, and strategically. While their reason for this would be the debate over how ultimately to achieve transgender inclusion, the impression that would be given to the country was that Speaker Pelosi, the first Democratic Speaker in thirteen years, and a lifelong strong supporter of LGBT rights, had decided that we could not go forward on what had been the major single legislative goal of gay and lesbian people for over thirty years.

Some in the transgender community and those who agree with them have given a variety of strategic arguments why they think it would be better not to go forward. One variant is that since the President is likely to veto the bill anyway, it does not make any difference if we fail to vote on it. But it should be noted that this is directly contradictory to the arguments that the LGBT community has been making for years. That is, we have been very critical of arguments that we should not push for votes on anti-discrimination legislation simply because it wasn't openly going to win. People have correctly pointed to the value of getting people used to voting for this, of the moral force of having majorities in either the House or the Senate or both go on record favorably even if the President was going to veto it, and have in fact been getting Members ready so if that if and when we get a president ready to sign this, we are closer to passage. To repeat, the argument that we should not take up legislation unless we are sure the President is going to sign it is directly opposite to all of the arguments LGBT advocates have been making for as long as I can remember.

The real reason that people are now arguing that we should withhold any action on the antidiscrimination bill unless it includes transgender as well as sexual orientation is that they are, as they have explicitly said, opposed in principle to such a bill becoming law. That is the crux of the argument. There are people who believe - in the transgender community and elsewhere - that it would be wrong to enact a law that banned discrimination based on sexual orientation unless it fully included people who are transgender. I think this argument is deeply flawed.

First, I would note that since I first became a legislator thirty-five years ago, I have spent a lot of time and energy helping enact legislation to protect a variety of groups from discrimination. In no case has any of those bills ever covered everybody or everything. Antidiscrimination legislation is always partial. It improves coverage either to some group or some subject matter, but never achieves everything at once. And insistence on achieving everything at once would be a prescription for achieving nothing ever.

To take the position that if we are now able to enact legislation that will protect millions of Americans now and in the future from discrimination based on sexual orientation we should decline to do so because we are not able to include transgender people as well is to fly in the face of every successful strategy ever used in expanding antidiscrimination laws. Even from the standpoint of ultimately including transgender people, it makes far more sense to go forward in a partial way if that is all we can do. Part of the objection to any antidiscrimination legislation is fear of consequences, which fears are always proven to be incorrect. There is a good deal of opposition now to passing even sexual orientation legislation. Enacting legislation to ban discrimination based on sexual orientation and getting a year or two's experience with it, will be very helpful in our ultimately adding to it protection for people who are transgender. That is, if you always insist on doing all the difficult things in one bite, you will probably never be successful. Dismantling the opposition piecemeal has always worked better.

For these reasons I have proposed along with the Democratic leadership the following strategy. First, we have introduced two bills. One will be ENDA as it has historically existed, banning discrimination on sexual orientation. A second will add transgender protections to that basic scheme. We will move forward with the ban on sexual orientation for which we finally - after thirty-plus years - have the votes. After we are successful in winning that vote, I will urge the Committee on Education and Labor to proceed with our next step, which will be to continue the educational process that I believe will ultimately lead to our being able to add transgender protections. This will mean within a month or two a hearing in the Committee on Education and Labor which, unlike the hearings we previously had on this bill, will focus exclusively on transgender issues, and will give Members a chance to meet transgender people, to understand who they really are, and to deal with the fears that exist. The other options are either to bring a bill to the floor in which the transgender provision will be defeated by a significant majority, making it less likely that we will be able to succeed in this area in the future, or ask the Speaker of the House to in effect put aside her lifelong political commitment to fairness and be the one who announces that we will not pass a bill banning discrimination based on sexual orientation even though we have the votes to do it. Passing ENDA in part and then moving on to add transgender provisions when we can is clearly preferable to either of these approaches.

Comments

[Qbear]

Part 2
In a telephone press conference discussing this letter, NGLTF's executive director Matt Foreman underscored the stronger warning contained in this second letter.

"We refuse to accept and in fact oppose any legislation that leaves any portion of our community behind," he said.

Pressed on which members of Congress had committed to oppose the bill unless gender identity language is restored, Foreman said, "Our strategy is get back to where we were last week. We are not in the position to get people to vote against" the new version of the bill. Instead, he explained, the goal is put any vote off unless and until the gender provisions can be put back in the legislation.

However, Foreman added, regarding the posture of members of Congress, "Nobody has made public statements but Tammy Baldwin has not signed on and I think that speaks volumes."

As first reported in Gay City News on Friday, a spokeswoman for Baldwin, a Madison, Wisconsin Democrat, confirmed that the lesbian congresswoman has not put her name on the amended ENDA as a sponsor.

Mara Keisling, the executive director of the National Center for Transgender Equality and the lead gender activist on the call, said, "I am overwhelmed today by the outpouring of support," she has seen since word that ENDA was being amended first surfaced.

Jody M. Huckaby, PFLAG's executive director, said that when the group sent out an action alert on this issue last Friday, "the response was unlike anything we've seen before."

http://www.gaycitynews.com/site/news.cfm?newsid=18873154&BRD=2729&PAG=461&dept_id=568864&rfi=6

[Qbear]

The 17 organizations that signed the letter termed that calculation "a mistake."

More lobbying and education could do the job, advocates insist.

The second letter, signed by a massive coalition of LGBT groups around the country, could be interpreted as stronger, though only in nuance. Emphasizing not only "strategy and process," it makes clear that the 90 groups would work to block a version of ENDA that does not include transgender protections.

"We oppose legislation that leaves part of our community without protections and basic security that the rest of us are provided," the letter stated.

HRC, the community's leading Capitol Hill lobbying group, did not sign on to this letter. NGLTF was joined by leading legal rights organizations, including Lambda Legal, Gay & Lesbian Advocates & Defenders of Boston, and the National Center for Lesbian Rights, in San Francisco; the National Stonewall Democrats; Pride at Work-AFL-CIO; the National Coalition of Anti-Violence Programs; the Gay, Lesbian, and Straight Education Network (GLSEN); Freedom to Marry; Immigration Equality; the National Black Justice Coalition; and the Matthew Shepard Foundation.

Transgender rights organizations were strongly represented in the letter - the National Center for Transgender Equality, the National Transgender Advocacy Coalition, the Transgender American Veterans Association, the Transgender Law and Policy Institute, the Transgender Legal Defense and Education Fund, TransYouth Family Advocates, the Transgender Law Center of California, the New York Association for Gender Rights Advocacy, and the Tennessee Transgender Political Coalition.

The letter was also signed by dozens of statewide LGBT organizations including Equality California, Equality Texas, the Empire State Pride Agenda of New York, Equality Illinois, Equality Advocates Pennsylvania, the Triangle Foundation of Michigan, Garden State Equality of New Jersey, Equality Virginia, Equal Rights Washington, Equality Maryland, One Iowa, Kentucky Fairness Alliance, Equality Maine, and Equality New Mexico.

I wrote HRC and told them to sign on to stopping or delaying ENDA bill which doesn't include Transgender People.

[Lish]

While some gays and lesbians may be persuaded that this gutted ENDA bill will protect them from workplace discrimination, many more realize that excluding gender expression is a giant loophole that will be used against us all.

We know that the straight world does not care whether we personally call ourselves gay, lesbian, bi, or trans. Without protection of gender expression, ENDA will be used against every butch dyke who does not conform to traditional femme styles of dress and behavior. Employers will axe anyone who doesn't look and act straight, while pointing to their closeted token femme lesbian and masculine gay employees as evidence of compliance with the law.

Shame on the CONGRESSIONAL DEMOCRATS who have once again BETRAYED US.

[queertodaydotcom]

Thank you! Vigil outside Barney's office in Newton Tomorrow! May the queer community be united in support of trans people!

[Twichell]

I didn't think of that. The return of legally enforceable "dress codes" as a condition of employment, anyone? *Forcing* people to play silly on-the-job games of "dress-up"--every day, all day, day after day--in order to "compete for jobs and advancement" in our owners' precious fantasy of a "free market"?

Withdrawing "not opposed" stance: now actively opposed to ENDA's "T" exclusion.

Why? Because I just realized it's not only the interests of "people like me" who are at stake. I cannot believe I didn't think of that; thank you, Lish!

[Qbear]

How are the Democrats going to reconsile someone like Barry Winchell?
The gay serviceman beat to death with baseball bats by two of his COWARDLY fellow soldiers as he rested on his cot, because he dated a transexual?
Will they say a couple like Barry and his partner can have half an apartment, or half a job?
This is just INSANE, the LGBT community is intertwined with people who love one another Platonicly and Romanticly...and it sure as hell isn't the Democrats business to sort who can be our friends or lovers.

[Qbear]

ANY LGBT bill is HARD to pass, and if it wasn't the bigots going after the scarey "she-male" (their term) teachers it'd just be some other smear.
We've won state and city LGBT non discrimination laws,including Transgenders, and NONE were easy, but we got them passed.
They want to divide the LGBT community, and to do whatever they can to diminish our finally winning EQUALITY.
Bigots see the same polls we do, their children don't have the baggage about gays/lesbians they do. Time is on the side of the LGBT community, not the bigots.

[JackNasty]

ENDA, as written, is already a half-measure civil rights act. It covers only employment in large businesses and lacks any teeth for serious enforcement. Excluding transgendered people because Republicans don't like them makes as little sense as the other things excluded from this bill. Repugs aren't going to vote for ENDA, even with the built in compromises. Bush will veto ENDA and any other protection that includes gay people faster than you can say, 'Larry "Tap-Tap" Craig'.

Rep. Frank, when you start with a pre-compromised bill you can only get less than you asked for.

[Qbear]

Since I mentioned a phrase of Paul Monette's I thought I'd quote it. It's on the last 2 pages of his final essays Last Watch of the Night.

"Time alone will tell whether resistance or collaboration is more in our best interests as a people. For the present, by all means let them be not gay, not gender-varient, not ghettozed, with nary a sequin to betray them. Prim and smug and Puritan by choice, far removed from any culture that smacks of sub.
But I give them fair warning that I for one am taking it all personally--too personally, in fact. Keeping a file of mealiness, of pandering creeps, of accomodation with the enemy. I don't have a choice to ignore it, because it's happening on my watch.

[Binx101]

It seems that on the surface, the detractors to your approach do themselves a complete disservice. Their insistence appears immature and has completely disregarded the means-to-end logic you request. Ostensibly, they play right into the hands of the Right wing that would easily throw them to the wolves. On the surface that is, apparently and ostensibly.

It may though, reflect a more fundamental problem, rather than simply impatience. Perhaps the offended Trans-gender activists are as disappointed with Democratic leadership as the general population of Liberals. The larger concentric group of Liberals that are very disheartened with Democrats' inability to change our Nation's course in Iraq or bring our government to order - the way you brought the House to order this week when procedural inquiries were used to issue political statements outside the Rules. It was admirable.

It isn't so outlandish to think consider that this is driving their insistence to go through the process. We (every Liberal) had high expectations and we've seen both Senate and House leadership snatch defeat from the mouth of victory.

With all due respect - perhaps if the Congressional collective appeared to be more effective - the GBT arguers would be more amenable to your vision. Right now though - I see them as hurling that gavel in a drumbeat of their overall discontent and lack of confidence that this is a likely first step.

[Binx101]

Sorry - "LGBT".

[SamEllison]

Dear Rep Frank would you please in the future offer up a post about what you are doing with the free trade agreements? Everyday I read about you in the Financial Times and you seem to be posting horses for courses here. We want fair trade AND equal rights for all, thank you very much.

[Qbear]

I've been writing House Leadership and many Senators:

I'm writing concerning ENDA bill now being considered without Transgender People. ENDA without including Transgender People is not acceptable. Please do NOT introduce a bill which would lead only to a TAINTED partial victory. I'm openly gay for 30 years, and I won't see my community divided. 12 Major LGBT organizations believe as I do. I am hoping you will grab this issue of the LGBT community either moving ahead as ONE, or choosing to wait until we can. You will garner immense LGBT support if you take this on.
Thank You,

[xrmychick]

I am gay. And I do NOT want to be lumped in with the transgendered or those who suffer from "gender disphoria". I despise the fact that people like you and Frank force people like me to become "one" with people who have issues other than gender identity. Gay men and gay women know that they are gay and know what gender they are. Frankly (no pun intended), shoving transgendered people down the throats of mainstream America is what is putting the roadblocks up to getting us the rights we deserve.... the right to enter into marriage, is one biggie.

If you think I'm wrong, just go to ANY gay pride parade in any town in this country...and take a look at the people you see. I guarantee you that what the rest of America sees aren't those folks who just want the same rights that heterosexuals want. They see the guy in the women's bathing suit, wig, and high heels twirling his parasol.

Yes, yes, I'm not being "pc"... and I really don't care. I'm speaking for a lot of people I know, gay and straight. Let me be blunt... if you want to move the gay rights movement forward in this country, jettison the freaks.

[Qbear]

jettison the freaks

get OUT ya BIGOT!

[Qbear]

btw the people who might stand out the most at LGBT events probably need the MOST protection the other 364 days of the year too. There are men and women who if their lives depended on it couldn't "PASS" for straight. Either because of their appearance, inflections, and some just because they like having fun and pushing some stupid dated boundaries. Transvestites, and street dykes, and gay hustlers were who began our Liberation in the Stonewall Riot, not some three piece suit queer, with out a hint of culture known as "sub" (paraphrase of a Monette phrase)

[robotfog]

You sound awful tough, xrmychick, it is a shame that you are not tough enough to care for everybody whether or not you think of them as "freaks".

[Twichell]

Not a single "gay woman in this country" accepts being "sirred" as a matter of routine in some contexts, possibly even encouraging it? Not a single "gay man in this country" hasn't at some moment in his life glowed with the pride of art at being "ma'amed"?

I do believe that fairly large numbers of "gay men and women" actually are either hyperaware or don't particularly care "what gender 'they' are" --and many more are merely irritated or disturbed or "befuddled" when gender-dis­criminatio­n per se becomes an issue. And on the other hand there are many gay people of both sexes who don't enjoy Pride parades.

But "jettison"? Today me, tomorrow you--"sister!"

[situationcritical]

I despise the fact that people like you and Frank force people like me to become "one" with people who have issues other than gender identity.
+++++++++++++++++

You already are "one" with everyone else on this planet. We are all individual, but not separate.

[Qbear]

I have no way of knowing where Barrack Obama is on supporting all the LGBT community moving forward as ONE. It would be a helluva rallying point for which ever Democratic candidate becomes OUR unwavering champion.

Who'd like to tap a well financed, well connected, strong and loyal voting base?

take a number

[Qbear]

I've seen the battles of Feminists casting out lesbians, and then they reconciled, but the hurt never went away. I live with AIDS for 21 years, and I know the People With Disabilities Act would have been easier to pass without including HIV/AIDS...but we fought all the harder and we won. We can't at this point know what the 2009 Congress and White House will look like, but I'd bet on a huge influx of Progressives.

[Qbear]

Barney,

How many times have our allies whether Social Justice Churches and Temples, Feminists, or Civil Rights groups fallen short and disapointed us with their Fair Weather Friend approach, and how painful is it EVERY TIME. I won't do that to Transgenders. WE ALL MOVE FORWARD, or we wait.

[Qbear]

I know Barney has been in the trenches fighting as hard as he can for Human Rights, and it has to be frustrating to get this close, and not snatch a partial Victory.

But it's a matter of doing for Transgender people as we would have them do for us.

What if the skiddish Democrats had said Gay Transgenders and Bisexuals could have Human Rights, but they couldn't give them to Lesbians? There would be NO DISCUSSION we would leave OUR SISTERS behind, and we won't do it to Transgenders EITHER!

[FDRDemocrat]

Your straw man arguments and patronizing remarks about "our sisters" don't help. Let's look at some facts. 75% of transgender people self identify as heterosexual. The estimated ratio of male-to-female transexuals is 1:2000 to 1:80,000--estimated ratio of female-to-male transexuals is 1:2000 to 1:125,000. The fact that our movement is called LGBT demonstrates our commitment to the ideal of inclusion. Mr. Frank is not talking about leaving anybody behind, he's talking about how to get this bill passed, this bill that we have fought and died for for 30 years. ENDA is one step in a long climb. I say let's take it and keep climbing.

[Qbear]

How I refer to lesbians as SISTERS is not patronizing. When early on in the AIDS pandemic and the Twin Cities was almost evenly divided with lesbians in St Paul and gay men in Minneapolis, with seperation mutually done, with acrimony on both sides. A blood drive was begun for gay men needing transfusions, and other gay men unable to donate. I witnessed seperatist lesbians step forward to give their blood when we couldn't. The program was called Blood Sisters, and they will always be my sisters. Many of my earliest LGBT friends before I came out, were feminist lesbians, and anyone would be LUCKY to have friends with half their strength and compassion.

[Qbear]

The Victory for Human Rights may be the LAST disenfranchiesed minorities America will face...Let's not let the oppressers TAINT this victory, by dividing the LGBT community.