It has been disturbing this week to hear about the dismantling of the Employment Non-Discrimination Act (ENDA) by its sponsor, Rep. Barney Frank. ENDA is meant to protect gay, lesbian, bisexual and transgender people from being discriminated against on the job on a national level, and has been a priority for the GLBT community for more than 30 years. It is critically needed since more than 30 states still allow GLBT people to be fired from their jobs because they are GLBT without any legal recourse whatsoever.
But we have learned that our civil right bill has been put under the knife. Parts kept, parts left out. In the interest of expediency, some our community's most prominent leaders, elected and otherwise, have erroneously started thinking of the language in the bill as though it addresses two separate groups. Gays, lesbians and bisexuals are getting fast-tracked for protections right away. Transgender people, however, have to settle for priority placement on a civil rights waiting list.
That's how the story is being framed. But this framing is based on a fundamental misunderstanding of how the bill is intended to work. When advocates wrote bills to protect against anti-gay discrimination 20 and 30 years ago, we thought that the addition of the words "sexual orientation" to our civil rights laws would be enough.
What we learned, though, through experience in enforcement of these laws in the communities where they initially passed, was that those two words didn't do the job. The discriminatory treatment endured by our community was as often as not about gender – gender stereotypes being inevitably entangled with prejudices about same-sex sexuality.
What attorneys saw on the front lines of handling discrimination cases, was that when the situation involved a gay man being harassed by co-workers for being a 'fairy' or a lesbian being told they need to start painting their nails and curling their hair to get their promotion, the words 'sexual orientation' in the law actually didn't help.
Unless the offending harassers, bosses or policies said something specific about sexual acts with someone of the same gender, the 'sexual orientation' provision in the law wouldn't apply. At least half of the egregious cases of discrimination were impossible to address with those legal terms.
It was equally clear that transgender people were utterly hung out to dry by laws that simply said 'sexual orientation'. Transgender individuals then and now face unrelenting job discrimination, which is to say people are regularly fired from their jobs when they make the profoundly personal and arguably medical decision to live as a different gender. It was and is unconscionable to fail to provide recourse to people in this situation who are stripped of dignified careers and hard-earned positions simply because of prejudice.
In recognition that the prejudices faced by gay, lesbian bisexual and transgender folks were all variations on the themes of gender and sexual conformity, a consensus was built over a period between approximately 1992, when 'transgender' emerged in our lexicon and 2004, the year HRC formally adopted trans-inclusive policy language. Our movement, nearly as a whole, decided that all our civil right protections needed to be written with language barring discrimination on the basis of sexual orientation, gender identity and gender expression, and our actions have been on that basis since then.
This new formulation of our civil rights language addresses not only the horrendous discrimination that transgender people face, but closed enormous loopholes in the law that were intended to protect gay, lesbian and bisexual people. We had come to grips with the fact that without the words gender identity and gender expression our new national law, our ENDA really isn't worth much.
We need to oppose ENDA until it is formulated the way we know it protects all of us, and until it actually protects all of us the way we know we need. The desire for a victory, any victory, after everything we've been through as a community is understandable. But to pass this butchered bill now in haste only speaks to a desperation, a fear that the slim majority supporting equality in Congress at the moment is all we'll ever have. We need to move forward with the intention and determination that we will achieve consensus, unbreakable majorities for fairness, and a future in which discrimination is a thing of the past.