Kelli --
I'm just a softball-averse, on the most feminine edge of androgyny lesbian who wears dresses and makeup and long fingernails even when I don't have to, and I can say exactly the same thing.

And I'll go a step further:
It's nice and all that Tammy Baldwin is planning to offer the most-difficult-of-all, stand-alone, can't-get-an-accurate-count-on-now-that-the-whole-traitor-driven-brouhaha-has-so-totally-muddied-the-waters, forced-ill-timed gender-identity add-in amendment when this shows up on the floor BUT she's also planning to vote FOR this abomination of a bill whether or not her amendment passes.

That makes her amendment an asterisk to her WRONG-DOING BOTTOM LINE. Yes, I'll lobby hard for her amendment's passage but I, for one, am not joining the fawning chorus singing her praises.

My bottom line is that the new bill as delivered to committee today -- with or without gender identity added -- is dangerous and deserves to die unless the religious and insurance exemptions are ripped from it.

-- Marla

Good exercise of the ol' integrity muscle, Kelli -- and I like the reptilian analogy.

Nan --

I appreciate your astute comments greatly and, on the whole, agree -- even going a bit further to say that, even with some bad post-Arline decisions restricting its more complete and widespread application of the doctrine of perception, we are still in a post-Arline world and, as such, I view the inclusion of perception in the bill as a reiteratively instructive primer for the most recalcitrant, but not at all a clear necessity for Arline to apply if all judges were not hostile to civil rights laws as they were meant to be interpreted. But that, of course, is the rub.

Firstly, there is a sad practical reality that, where there is likely the greatest need to take cases to court, those cases will be more likely to face the worst appointees to the bench -- those I refered to in my first post on this subject here some weeks ago.

Secondly, the size of the loophole, while you are correct that, if perception does properly apply, should be insignificant, is relative on a case-by-case basis: when it exists, it is always "giant" to the one who is suffering it.

Thirdly, as you well know, the whole concept of perception has been under specific attack ever since Arline, evidenced clearly by the HR3685 author's perceived need to specifically include it at all. In fact, few aspects of labor law have been as subject to the concerted search for loopholes -- real and wrongly created -- that Arline has, so powerfully protective an umbrella is she.

And its on-the-ground, non-theoretical, non-academic, experiential reality where gender identity is concerned has been one of its more checkered applications -- particularly in geographical regions of greatest need.

For instance, its application in perception of sex to cover the transgendered -- on its face a logical use of perception with existing law -- has been anything but smooth or certain. I was personally able, with the Indiana Civil Rights Commission for my working duration in the state even slightly preceding Arline (and greatly enhanced by that decision) from the early '80s until I moved away, to repeatedly broker handshake deals with successive Commission executive directors and their legal directors (regardless of their appointing governors' party affiliations, no less) to honor the notion of perception of sex as covering gender identity -- an interpretation that was conveyed from the legal directors to the administrative judges in the department so that it was the functional law of the state as long as cases were retained under state law as controlled by the Commission.

But, federally, the situation was bleak, with unfortunate rulings into the mid-80's in Holloway, Sommers, and Ulane (three federal appeals courts cases) that the Title VII prohibition against sex discrimination did not apply to post-surgical transsexuals, deciding that this was a separate category of discrimination, change-of-sex discrimination, and that as Title VII didn't specifically discuss that, it wouldn't apply.

It was, after all, just since the late seventies that the worst of the antigender variance police harassment had subsided. I remember clearly that lesbians even in the state's biggest city were busted for wearing fly-front (instead of side- or back-zipped) pants well into the mid-1970s. And I fought cases with police cooperation of gay establishment gender identity discrimination well into the 1990s.

The realization of the gender identity loophole in ENDA started to sink in about that time and was confirmed by Chai Feldblum, the Georgetown law professor hired by HRC as ENDA's primary drafter in a speech she made to the Lavender Law Conference in 1998. It is hardly fiction.

During that same period, HRC started formally deferring to Barney Frank on gender identity inclusion in ENDA and Barney (and Sen. Kennedy) was a staunch no-go. Temporarily thwarted but in a newly post-Arline environment, transgendered legal experts including Phyllis Frye started petitioning the EEOC to apply perception to Title VII regarding gender identity in an attempt to override the Ulane trio. According to Frye, "the commissioners understood, but declined, noting that the Republican Congress would retaliate by reducing appropriations for the EEOC in the next budget." But a bit of a breakthrough occurred with the DOJ in 1998 which has, as you know, been anything but universally honored by the courts and the general opinion of the transgender legal experts by 1999 was that a case that made it to the Supremes would be as likely as not to suffer the same fate as the Ulane trio -- made even worse by recent appointments to that bench.

They thus believe that gender identity is crucial in a Title VII measure such as ENDA for both their protection as well as that of gender-variant lesbians, gays and bisexuals who they see as not protected without it.

-- Marla