ENDA Rift: Throw Tammy Baldwin Under the Bus?

A historic vote took place yesterday. The Employment Non-Discrimination Act (ENDA) was finally passed, having first been introduced in 1974. Thirty three long, hard fought years and the measure "was approved 235 to 184, perhaps reflecting polls showing that a plurality of Americans believe homosexuality should be accepted."

All did not celebrate the bill, though. Through what was deemed necessary, strategic moves, the gender identity piece of the law was removed in order to assure, the community was told, passage. In an attempt to reintroduce the removed language, Congresswoman Tammy Baldwin (D-WI) presented an amendment, she said, "because I strongly believe that we must prohibit job discrimination against people because of their gender identity." It was not a long fight on her part but a symbolic one.

As this entire debate has been, because President Bush as promised a veto.

Some were ready to throw Baldwin under the bus for ultimately voting for the bill.

I appreciate and support Congresswoman Baldwin -- she was true to her beliefs. She also voted Yes to ENDA without her amendment, because, "The importance of non-discrimination laws cannot be overstated. Substantively, they provide legal remedies and a chance to seek justice."

What has been missing from the debate, mainly focused on transgender people with foes playing up fears of penises showing up in women's locker rooms, is the very real discrimination against all people -- straight, gay, bisexual and transgender -- for not conforming to "rules" about gender expression. It's about the straight bartender who refused to wear makeup at a Reno casino" and ended up losing, the court siding with the casino, ruling she was not unfairly dismissed from her job as much as it's about Susan Stanton losing her job when she announced she would be transitioning.

For me, it's personal -- I'm not a petite blond in a bikini. I get called sir on a daily basis. I had a job where I was asked to wear a skirt for client meetings. I interviewed at another and refused because at this small start up software company in the early 90s, women were not allowed to wear pants. I love getting dressed up but please don't ask me to wear a dress. It makes me miserable. If you ask me to wear make-up, I'm going to look like a clown.

It's personal because one of my kids struggles with gender identity. I watch his pain and know there is a very real chance he is transgender. Threaten my children's rights and I am no longer sane... throw him under the bus and I'll go out and pick that damn bus up and throw it off the road.

And it's personal because it is a statement about my community. What we are willing to do, and how we are willing to walk in the world.

It is a devastating loss. In 1987, Massachusetts passed a gay and lesbian civil rights bill. Twenty years later, we still have no gender identity protections. The only state in the country with legally recognized gay marriage and no protections for gender expression.

As a community, we need to reframe where we are. It's not about making chicken salad out of chicken shit, which implies making due with what we have. It's about creating a calculated, thoughtful strategy for moving forward, building on what we have. It's about making stone soup. I believe that's what Congresswoman Baldwin was trying to do. Regardless, I am going to support her because I am unwilling to throw anyone under the bus.

Now we have to move forward. Together.

Comments

[catuskoti]

Sarah -- thanks very much for your blog post. I hear your ambivalence and appreciate your understanding of the real life intersections of LGB & T identities. But I also cannot fully express my disappointment, and yes, anger, at this new instance of deliberate dehumanizing and isolating of transgendered persons. Not just by conservative republicans but by our own liberal and lesbian and gay "allies." Their willingness to support an ENDA without trans protections is one more snowflake on an already bending branch. Could Barney Frank and Nancy Pelosi not have tried to counter republican opposition by public argument favoring gender identity protections? Instead, we were excluded in backroom conference negotiations. Traded again like horses.

Trans people are getting angry and radicalized. Not because we are not patient and stable people, but because we are confronted daily with more and more evidence that there is nothing for us to be patient or stable for. I do not know if you can sense the utter hopelessness that many of us feel.

And we have been sold out, again, for what exactly? Some slim chance that a diluted ENDA will pass the Senate and Bush and then protect people for being lesbian, but not for looking lesbiany?

Really, justice, democracy, and progressive politics in this country seem to be utter farces. This is just one more argument against non-violence. Another argument leading to Bin Laden-type madnesses. What can any of us tell these people? The branch is seriously bending.

[helen]

I cannot help but feel great disappointment about the House of Representatives passing ENDA only after HRC and Barney Frank dropped job protections for gender in order to save their own skins. I feel outraged and betrayed. As a male-to-female transsexual, I know only too well the price I"ve paid in discrimination in jobs and housing, and just surviving day to day is a challenge in itself.
So, in order to pass job protections for one group of people, we"re willing to throw another group of people away. I wonder how well that is going to work out? And you call this equal justice? That"s a reach.
Those transgendered really are in a unique position of not having support from either the gay or straight worlds. We are the expendable people. Perhaps the T in LGBT simply means "token."
You would think that those who know the taste of discrimination all too well would be hesitant to throw others away for their own benefit.
Somehow with HRC (Human Rights Campaign), a group that refuses to state on their name that they are a gay-rights organization, it all seems so ironic and appropo. HRC appears to behave like an elitist whites-only country club whose only purpose is to help only the "right kind" of disadvantaged folk - themselves. Everyone else is a second thought - convenient if we fit in to the agenda, and expendable if we don"t.
I"m reminded of Melissa Etheridge at the so-called LGBT Meet the Candidates forum telling Hillary Clinton that she felt the Clinton administration had thrown gays "under the bus" after helping Bill Clinton get elected.
Methinks it is the pot calling the kettle black.
I don"t know which is worse; to be "thrown under the bus" by those who purport to care about me and say they support me, or by those opposed to my existence.
If this is an example of support by "friends" then I sure as hell don"t need any enemies. I only have one word to describe HRC and Barney Frank: cowards.

[Lon]

One key question here is whether incremental steps really make the bigger steps more likely. In the case of marraige this has clearly been the case. Interracial marraige went from vilified to natural in the course of about a generation of people being familiar with it. In Massachusetts the idea of civil unions was considered outrageous, but that paved the way for the possibility of marraige. And now in Massachusetts, not even a 1/4 of legislators could be found to even put the issue out for referendum.

I am not sure the same is true of anti-discrimination laws though. Hostility to those laws persist even for accepted minorities. People who used to say blacks didn't deserve such protection now say they did deserve them, but don't need them anymore.

In such circumstances it does seem plausible that passing a law which does not include T issues would simply reduce the constituency for a bill with those issues.

[jstephenclark]

Zoe is simply incorrect about Massachusetts having no protection for T's.

In 2001, the Massachusetts Commission Against Discrimination, the agency charged with enforcing the state's antidiscrimination law, interpreted the existing bans on sex discrimination and disability discrimination as prohibiting discrimination against transgender people. See Millet v. Lutco, Inc., 23 M.D.L.R. 231 (2001) (sex); Jette v. Honey Farms Mini Market, No. 95 SEM 0421 (MCAD Oct. 10, 2001) (disability). These interpretations have been accepted in court. See Lie v. Sky Publishing Corp., 15 Mass. L. Rep. 412 (Super. Ct. 2002); see also Doe ex rel. Doe v. Yunits, 15 Mass. L. Rep. 278 (Super. Ct. 2001).

This existing protection is equivalent to what a gender-identity law would provide and has lessened the urgency to pass such a bill. Indeed, the Massachusetts Transgender Political Coalition describes the gender-identity bill it supports as merely making more explicit the protection that Massachusetts law already provides.

[jstephenclark]

The "inclusive" version of ENDA would do nothing to address Whitman's complains about makeup and skirts. Section 8(a)(4) provides, "Nothing in this Act shall prohibit an employer from requiring an employee, during the employee's hours at work, to adhere to reasonable dress or grooming standards not prohibited by other provisions of Federal, State, or local law...." This provision preserves an existing exception in federal employment discrimination law allowing employers to impose sex-differentiated dress codes and grooming standards, including makeup requirements for women, dress requirements for women, and bans on close-cropped hair on women. Section 8(a)(4) specifically prevents the "gender identity" language from having any effect on dress codes and grooming standards. Lambda Legal, however, has consistently failed to mention that when claiming that the "gender identity" language is essential to help lesbians.

[jstephenclark]

The NY legislature is notoriously dysfunctional. It makes no difference what the Assembly does, nothing is happening on any of these bills - marriage, GENDA, whatever - as long as the nation's most gerrymandered state Senate is kept artificially under GOP control.
But in Rhode Island, to take the other extreme, the legislature passed a gender-identity bill just 6 years after passing a gay-only state ENDA. Incrementalism worked quite well there.
Is Congress more like the New York legislature or the Rhode Island legislature? Why?

[jstephenclark]

Sara has apparently not read the so-called inclusive bill. It contains a provision that expressly allows employers to continue to use sex-specific dress codes and grooming standards, which are legal under Title VII as well. It thus would not protect lesbians who do not wear makeup, dresses, or non-cropped hair. The reason for this provision is political reality. There is no support in Congress for banning sex-specific dress codes and grooming standards.

The question for Sara, then, is whether she would require transgender people to wait for the decades it might take to generate the political will to ban sex-specific dress codes and groooming standards, or would she permit an incremental approach that (to borrow her words) would throw pant-wearing lesbians "under the train"?

[SamEllison]

The next President will sign ENDA and with the T.

[ZoeBrain]

Rep Baldwin's state, Wisconsin, was the first state to grant GLB protection, 22 years ago. But not only are T's not protected, those who are imprisoned are denied life-saving medication, singled out by the legislature as being the one group who the state would rather see die than get medical help.

There's a court case about this at the moment. The main argument by the prison medical officers against the state government's legislation is that it costs more to bury the dead and deal with the suicide attempts than it would to give the medication.

That sounds over the top, unbelievable that it could happen in the USA in 2007, right?
From the Milwaukee Journal-Setinel October 24 2007 http://www.jsonline.com/story/index.aspx?id=678732:
"Kevin Kallas, a psychiatrist and mental health director for Wisconsin's prisons, testified he opposed the law banning hormones.

Besides in federal prisons, hormones are given in all of the Midwestern states surveyed by the Department of Corrections, he said. Kallas called hormones a "medically necessary" treatment in some, though not all, cases.

Kallas said patients who are taken off hormones typically need counseling, drugs and hospital stays instead, treatments that are more expensive than the hormones, which cost $675 to $1,600 a year."

Other reports make it clear that the "counselling, drugs and hospital stays" are due to unsuccessful suicide attempts.

No wonder Rep Baldwin feels the way she does. She knows where "incrementalism" leads.

As for Rep Frank, Massachusetts has had GLB protection for 20 years now. It even allows same-sex marriage. But no protection for T's, no plans for protecting them either. He's cool with that, none of his supporters are unhappy with the situation. As the LA Times reported, he said he regretted that political necessity dictated dropping sexual [sic] identity as a separate cause. But, he said, "I also wish I could eat more and not gain weight".

If there was a certainty, or a real possibility, that ENDA would do anything except prevent T rights in future, there would be far less of an outcry.

[ZoeBrain]

This whole argument has been played out before. Exactly the same words, exactly the same phrases, in some cases literally word-for-word.

See http://gaycitynews.com/site/index.cfm?newsid=17004019

The result?

"The Gender Expression Non-Discrimination Act has not so much as had a hearing in his house.
For its part, the Democrat-dominated Assembly voted to open up marriage to same-sex couples earlier this year. However the Assembly, under Speaker Sheldon Silver, has refused to take up amending the state human rights law to add "gender identity and expression."

That is why Matt Foreman, who worked so hard on an "Incremental Approach" with SONDA in NY in 2002, is so completely against a T-exclusive ENDA. Because Exclusion is forever.

7 Democrat Congresscritters voted against ENDA because it was exclusive. All 7 were from NY, where "incrementalism" was shown to be a total and abject failure. It continues to be today.

Meanwhile, 3 states have come from behind and passed GLBT, not just GLB, protection.

[DevoPro]

Thank you Sara. The last paragraph of your blog is write on. Regardless if we were pro or against an inclusive ENDA, the glaring issue remains, there is a clear lack of leadership among our national organizations to create "a calculated, thoughtful strategy" (and I will add unified)"for moving forward, building on what we have."

Also, we are too small in number to win this fight if we are quick to throw each under the bus. Kudos to Tammy for standing up for her beliefs yet being pragmattic enough to realize it would be short sighted to vote against ENDA.

[jstephenclark]

BobbyJoe, you are offering a realistic political assessment. Don't you know that's not allowed? You're supposed to parrot the gleefully defeatist line that ENDA cannot possibly pass the Senate and that even if it did the President would veto it. UnitedENDA - presuming to speak for every lesbian, gay man, and bisexual on the planet - has mandated that everyone adopt that view and happily sit on our hands and whine rather than work for passage.

[BobbyJoe]

If the Senate passes ENDA as well, and ties it to a larger bill that Bush won't want to veto, he won't veto it. That's a distinct possibility. If the Senate passes ENDA they're pretty unlikely to just hand this as a single ENDA-only bill to the President and say "hey, George, what's your opinion on this?" Those who keep saying "oh, this doesn't matter, because Bush is going to veto it anyway" are either being deliberately disingenuous or are somewhat politically naive.

And even were ENDA to come to Bush by itself, and he vetoes it, you'd still have a distinct victory in ENDA passing both the house and the Senate, something that's never, ever happened before. It sure offers a whole lot more incentive for Congress to revisit ENDA a lot more quickly (particularly if a different party takes the White House) than yet another defeat of ENDA in Congress, which wouldn't represent anything new, and would likely shelve any chance of ENDA-- in any form-- being revisited any time in the near future.