It was a curious thing to see, last week, a Republican offering an avenue for progress on a rights issue: Governor Christie proposing a referendum on removing the legal sexes of a couple as a criterion for the granting of marriages, which, considering New Jersey has outlawed discrimination on the basis of sexual orientation, gender identity, or presentation, could legitimately be called marriage equality. The passage of marriage equality would end the current "separate-but-equal" system of civil partnerships that, by New Jersey law, must enjoy the same rights as marriage in every instance, a foolish and childish distinction made the last time the legislature visited this issue.
I think Aaron Sorkin, speaking through his character Josh Lyman, put best his abhorence at the differentiation between gay and straight marriages: "Freedom of choice isn't a minority value just because the majority doesn't agree with the minority's choice." Given that belief that the rights of the minority aren't subject to the whims of the majority, some find the idea of a referendum on human rights to be insulting in the extreme. Others, however, would relish the opportunity:
For those of us who've stood by in abject frustration as the Employment Non-Discrimination Act was blocked, time and again, sometimes, through apparent Republican disinterest, the bill is withdrawn. Sometimes the bill is rendered unpassable through poison pills introduced by the House's point man on the issue, Rep. Barney Frank, such as requiring surgery for safe access to public accommodations, and requiring "consistent gender presentation" in 2009, or stripping gender identity and presentation out of an already doomed bill in 2007.
People who support freedom from discrimination on the basis of the relation between a person's assigned sex and their gender identity and presentation, or between their assigned sex and their sexual orientation, have been understandably upset as the conversation shifted over the last two years from nondiscrimination in employment, in housing, in public accommodations, to something less fundamental, though of outsized cultural significance: marriage.
I've laid out why in a previous column, but I'll restate: no state that allows two people of the same legal sex to marry has done so without introducing those more fundamental nondiscrimination protections I just mentioned, and only three states have managed even civil partnerships without guaranteeing those nondiscrimination rights on the basis of gender identity and presentation: New Hampshire, New York, and Massachusetts (which still does not provide public accommodation protections, which, if you consider how frequently the average person uses public accommodations while working or commuting, you must surely agree hampers the employment protections mentioned earlier). That oversight, that codification of cissexism, not only strips marriage rights granted to trans people of any meaning (It's hard to support a marriage without a job or housing, for starters), but it weakens the moral case for marriage equality. It doesn't make sense to many to angrily demand tax breaks and probate law while others in a coalition that you have avowed to fight for and defend can't even find work that affords them basic dignity.
Of course, the argument that is continually repeated is that when it comes to the votes, and to public support, nondiscrimination on the basis of gender identity, presentation, and sexual orientation doesn't have the same support that same-legal-sex marriage does. They're right. Passage of the Employment Non-Discrimination Act does not enjoy the same level of support that a repeal of the Defense of Marriage Act does. Instead, ENDA enjoys a 22-percent lead over DOMA. According to Religion Dispatches:
As a bill to repeal the Defense of Marriage Act was introduced into Congress, a new poll shows a majority of voters support ending the federal law defining marriage as one man and one woman, and denying federal benefits to gay and lesbian couples.
The poll, commissioned by the Human Rights Campaign, revealed that overall, 51 percent of voters polled oppose DOMA while 34 percent favor it.
Independent voters, who were instrumental in the Republican House takeover, oppose the law by a 52 percent to 34 percent margin. Additionally, when read statements for and against defending DOMA in court, 54 percent of voters oppose the House Republicans' intervention, while only 32 percent support it.
Meanwhile, support for ENDA is in the low 70s. According to Freedom to Work:
Jeff Krehely of CAP writes that the poll shows that Catholic (74 percent support) and senior citizen (61 percent support) voters are also clearly in favor of workplace protections for LGBT people. Even among voters who identify themselves as feeling generally unfavorable toward gay people, a full 50 percent support workplace nondiscrimination protections for the gay and transgender population.
A majority of Americans have supported equal rights and opportunities for gay people in the workplace since polls as early as the 1980's. Polling questions about transgender workers have only been asked recently. However, the 2011 CAP poll shows that voters support transgender protections at almost the same rate they support gay protections. Seventy- five percent of likely voters say they favor "protecting gay and lesbian people from discrimination in employment," while 73 percent say they favor these protections for "gay, lesbian, and transgender people." The responses in the CAP poll are essentially identical, and demonstrate strong support for a fully inclusive ENDA.
Fifty percent even of people who are avowedly heterosexist... which plainly demonstrates that a significant number of people on some level get that freedom isn't a minority value just because it extends to minorities.
Those kind of national numbers suggest a 50-state landslide. DOMA repeal's numbers, sadly, don't.
So why on Earth is there foot-dragging on ENDA, legislatively? I can't honestly answer that. Someone more conspiratorial than I might think that while there's no change in support for denying workplace protections to LGBT people, there might be if just T people were the ones requiring rights... but New York, which doesn't have a trans-inclusive nondiscrimination law, has 78 percent of registered voters in favour of the passage of GENDA (the trans compliment to SONDA, which was passed in 2002), so surely it can't be that.
Why would something so popular, so inexpensive, face such legislative opposition? To quote Rep. Barney Frank, "If you insist on the right for unrestricted access to bathrooms -- we lose. And we're making some accommodations here. And we worked it out with the transgender community. We had people very upset when we raised it -- it because clear we couldn't pass the bill without it." It appears that the distinguished gentleman from Massachusetts might have been using the wrong pronoun these past five years, since there's no polling he can point to that shows that overwhelming majorities, in red states and blue states, support inclusive nondiscrimination legislation covering employment, housing, and public accommodations today, and did earlier, as well.
So to bring the discussion back to Governor Christie and his offer of a referendum on nondiscrimination, and his attempt to retain a distinction between favouring rights and relying on process, I offer this challenge to him, and to every governor of a state that has binding referendums:
Governor Christie, just as you have called upon Republicans in the State of New Jersey to put same-legal-sex marriage on the ballot, please, call upon Republican legislators to put an amendment to their state constitutions that would make it a crime to discriminate against people on the basis of sexual orientation, gender identity, or gender presentation, and prohibit all surgical requirements for recognition of those rights on the ballot in the following states for November 2012: Arizona, Arkansas, Missouri, North Dakota, Oklahoma, South Dakota, Alabama, Florida, Kentucky, Maryland, Nebraska, New Hampshire, North Carolina, Ohio, Alaska, Georgia, Idaho, Kansas, Louisiana, Michigan, Mississippi, Montana, Oklahoma, Pennsylvania, Texas, Utah, West Virginia, and Wyoming. (I left out those states that require successive majorities in successive legislatures to put a constitutional amendment on the ballot. I don't want to burden the governor with too much work for too little reward.)
So go on, Governor Christie, go on, Republicans: show us how fierce your adherence to the idea of granting rights via referendum is. Put a state version of ENDA on the ballot, and watch it pass easily in nearly every state,* with or without the participation of those organizations that have tasked themselves with fighting for it.
*I'm kind of iffy on New Hampshire, but that's just because two-thirds would be somewhat harder to clear.