Amy Hunter

ENDA is not a bright, shiny object

Filed By Amy Hunter | December 04, 2009 4:00 PM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: Employment non-discrimination, ENDA, marriage equality, One Kalamazoo

"Fifteen years or more at least" Mara Keisling was saying in response to the question I had just asked. Ms. Keisling is the Executive Director of the National Center for Transgender Equality (NCTE) and a partner with United ENDA, an organization dedicated to seeing an inclusive Employment Non-Discrimination Act (ENDA) passed at the federal level. The question I had asked was "How long has ENDA, in one form or another, been kicking around the halls of Congress?"

Frankly, I was a bit surprised. "Fifteen years." My familiarity with ENDA legislation stems primarily from the 2007 attempt to push the bill through Congress. The 2007 effort was so poorly orchestrated and agenda-filled it became a political debacle that threatened to pull our movement for equality completely apart.

Whatever our movement's past self-inflicted shortcomings may be, they must be set aside. ENDA is way past due and the clock may have just wound down. If we don't organize again while momentum is high, it could easily be another several years before we see unqualified support materialize in earnest.

A bit over two weeks ago, while not a done deal, ENDA looked as if it would pass handily in the House and prospects in the Senate were firming up. The bill had 189 co-sponsors in the House - more than any other LGBT bill. Ever. Instead of humbly petitioning key Representatives and Senators, a new ethos was revealing itself. "It has been interesting," said Mara Keisling, "to find key legislators or staffers asking to come and see YOU, instead of needing to hound them for time."

Suddenly, it has all changed.

ENDA has been taken off the list of bills to be marked-up for vote, which means it will be February at the earliest before anyone in Congress even glances at it again. By then it will most likely be too late, prospects for support in the Senate will dissolve rapidly the closer we get to 2010 elections. If ENDA is pushed past those - forget it until we have a Senate majority again.

I have never understood our community obsession with bright shiny things: DOMA, SSM, DADT - all bright and shiny - and all unlikely to happen. ENDA is the keystone in the arch behind which greater freedoms for all LGBT folk reside.

Arguments that ENDA constitutes "special rights" are easily thwarted. I know. I was Director of Operations for the One Kalamazoo campaign, which upheld an inclusive Non-Discrimination Ordinance on November 3 with a vote of 63%. When you begin talking about marriage and the military, other ignorant perceptions come into play that are not as easily dismissed. You can, however, successfully make the case for equality and fairness for everyone, including LGBT people, in employment and housing.

We still have time to flood Rep. Miller's and Rep. Frank's offices with calls. We still have time to flood Rachel Maddow and Keith Olbermann with e-mails. You still have time to call your state Representative and demand to know why ENDA was postponed.

I think I will spend the afternoon doing some local organizing. I don't have any special powers, but,just little old me can probably muster a few people to help and while I am doing that I can still admire those bright shiny things from where they belong for now: on the shelf.


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Actually, this is not true. "ENDA" has been kicking around for nearly 35 years. Some version of workplace non-discrimination legislation has been languishing in the backrooms and committees of Congress for 35 years. New York Representatives Bella Abzug and Ed Koch (who later became New York City's mayor) introduced the Equality Act of 1974 to expand the civil rights of women along with gays, lesbians and unmarried people. Knowing this history helps us know when our self-appointed Gay Inc leaders are lying to us.

And the fact that after 35 years, it is still perfectly legal to be fired for being gay or lesbian in 29 states and to be fired for your gender identity in 38 states shows that electoralism and lobbying are a DEAD END FAILED strategy. We don't win civil rights with phone calls and emails. We never have and we never will. Those who suggest those tactics are either naive or looking to boost popularity for the Democratic Party. They're goal may be equality (later rather than sooner), but they prefer to take the scenic route.

This repeated argument that ENDA is more important and more obtainable that SSM or the repeal of DADT and DOMA is still completely without merit.

LGBT issues are LGBT issues. Anti-LGBT Senators don't make the distinction you are making. ENDA is still "gay."

If the issue was about equality - just equality - people wouldn't write articles seeking to divide our Community or try to provide false hope in an effort to justify our LGBT-Industry jobs.

You lose even more credibility with this statement:

When you begin talking about marriage and the military, other ignorant perceptions come into play that are not as easily dismissed. You can, however, successfully make the case for equality and fairness for everyone, including LGBT people, in employment and housing.

Wake up. ENDA does not create "equality" or even "fairness" in employment and housing. It helps identify and punish bad behavior. Equality will only be present when we DO NOT NEED these laws. If "laws" actually do what you suggest, why hasn't - after 45 years - the Civil Rights Act been repealed or removed from the books?

Please learn to make the distinction between equality and equal rights - they are not the same.

Unfortunately Andrew, those of us who are not the great, priveledged centrist majority will not live to see or feel true "Equality". You are absolutely correct-- equality will only be present when protected classes are not necessary any longer--do you want to wait that long? I don't and I won't subscribe to the idea that I am aome sort of sell out if I seek partnership in the society of my fellows in the only way open to me at this moment in history. I can't throw the baby out with the bathwater as you would seemingly have us do.

Laws do not represent "partnership" with society.

I also wouldn't give up on the idea of creating "equality." The fact is we haven't been pursuing equality - we've been seeking equal rights. We have been seeking "protections" instead of equality.

It is time for the LGBT Community to recognize the difference. It would be very helpful.

Unfortunately Andrew, those of us who are not the great, priveledged centrist majority will not live to see or feel true "Equality". You are absolutely correct-- equality will only be present when protected classes are not necessary any longer--do you want to wait that long? I don't and I won't subscribe to the idea that I am aome sort of sell out if I seek partnership in the society of my fellows in the only way open to me at this moment in history. I can't throw the baby out with the bathwater as you would seemingly have us do.

battybattybats battybattybats | December 5, 2009 6:29 AM

"This repeated argument that ENDA is more important and more obtainable that SSM or the repeal of DADT and DOMA is still completely without merit."

More important? More peiple die from lack of jobs than lack of marriages.

More obtainable? Gender inclusive antidiscrimination legislation often polls better and is repealed less than marriage.

Seems pretty solid to me.

Andrew - if what you were saying - that all lgbt issues enjoy the same degree of support - I'll have to ask you to document it.

The President supports enda - but not marraige. NY, NJ & many other states have passed non-discrimination bills - but not passed marriage equality acts.

No one has really addressed the issue of transgender peoples access to appropriate health care outside of California - yet - many municipalities have passed non-discrimination legislation.

I think DADT is closer in support to nondiscrimination legislation - but marriage? I just don't see it.

But - I'll listen to what you've got to support that assertion.

The evidence does not seem to support what you're saying.

You have suggested that I said: "that all lgbt issues enjoy the same degree of support."

I did not.

I said that LGBT issues are LGBT issues. Anti-LGBT Senators don't make the distinction you are making. ENDA is still "gay."

There is some variation (with Democrats) on making a distinction between "discrimination" and "equality," but that is not limited to LGBT persons. In those instances it does not make them Pro-LGBT because the were against discrimination. It did not change their minds about us, but afforded them a stand "against" discrimination.

Obama's marriage position for LGBT is "everything but the "word."

You are speaking about Polls and I am speaking about US Senators. LGBT is an "either/or," yes/no position. That's why Jillian's suggestions that 45 are unconfirmed is ludicrous. 42 are very clearly NO. But, that's not the real damage - the real damage is creating "false hope" about being able to win a vote on ENDA. That cycle, repeated for years by those promoting "political solutions," is one of the most damaging elements of our dysfunctional movement.

Andrew, let me posit this question to you:
Exactly what do you feel is the most effective and rapid way to attain equality, keeping in mind that our less priviledged brethern and sisters are dying in the streets at a rate that is appalling?

Please offer suggestions, let's debate them and take positive steps towards a brighter future.

I have said many times Maura, we need to change our thinking by:

1. Stop pretending there is a "political solution."
2. Stop pretending that "equal rights" are a positive step.
3. Stop clinging to old ideas in a new World.
4. Stop wasting our time and money.
5. Stop hurting each other, instead of realizing there is room enough for all under the LGBTQ Equality umbrella.

1. Start being creative about "winning," not surviving.
2. Start seeking ideas and strategies from everyone, not just those "hired" to do our work.
3. Start accepting responsibility to change the "cultural conversation" in our favor.
4. Start comparing ideas and strategies by using "math" and honest objectivity.
5. Start acting like winners and not victims.

I think we have to admit where we are and define where we want to go. I suggest equality is the destination and I also suggest we will not be alone. We have the opportunity to enroll the majority of Americans in "equality," including ours. But, this will take more effort and resolve than simply calling politicians. We will have to share with our neighbors, friends, co-workers and even strangers. We must also ask for help. I trust the human spirit much more than politics (and the research to proves it).

The good news is that two out of three people will join us - if we learn how to have that conversation and if we have the courage to ask for help.

In other words, our equality is there for the asking. We must stop fighting and start creating. Our equality is our responsibility - only we can achieve it.

battybattybats battybattybats | December 5, 2009 10:18 PM

While i don't agree with many of your claims to the uselessness of legislation and equal rights I DO involve friends and family and taxi dricers and shopkeepers and anyone i talk to just as you suggest and I've been doing that well before you suggested it. As have others i know. And consider it vital and valuable work.

Now you've given a lot of vague fluffy 'direction' stuff.

Try some solid specific examples rather than broad brushtrokes of ideals.

Just a question: what do you mean by "Equality?" I'm assuming that your consistent use of capitalization when talking about it means something above and beyond the dictionary definition, but despite your frequent invocation of Equality, I've never seen you write what you mean by it. Could you explain (or direct me to an explanation if you've previously made one) what you're talking about here?

bittergradstudent | December 4, 2009 6:34 PM

"By then it will most likely be too late, prospects for support in the Senate will dissolve rapidly the closer we get to 2010 elections. If ENDA is pushed past those - forget it until we have a Senate majority again."

You really think the Dems are going to lose ten net seats in the midterms? That seems pessimistic beyond anything I've read anywhere, and the most endangered Dems are also the most problematic ones anyway--Removing Blanche Lincoln and Mary Landrieu is probably not going to have an appreciable effect on the bill's chances for passage.

Not that I think that this delay is good at all. It is disastrous, and does endanger the chance of getting anything in the short term, but I just take issue with claiming that the Dems are going to lose their Senate majority. And I share your exasperation at the heavy push for marriage whilst ignoring EDNA.

You are right, that does sound pessimistic-ten seats...However, the prospect of the Senate gaining ANY Republican seats frightens me. The debate emphasis will most likely shift to reverse-discrimination and violation or infringement on First Amendment rights. Anyone who actually takes the time and has the mental capacity to think it through knows that ENDA does not violate freedom of religion. In fact the opposite is true, if you fail to pass ENDA on religious grounds, you have violated the no establishment clause. Never the less, reverse-discrimination and freedom of religion sound bytes will become loud,shrill and difficult not to pander to. Next, throw in the Palin crowd :-) Then what do we do? The religious exemption is broad already. We have no place that is reasonable to back up to.

" Next, throw in the Palin crowd :-) Then what do we do?"

Your fear of Sarah Palin only makes her stronger.

Figure out what to do NOW, not then.

HINT: It's not a political solution. It's also not about "equal rights."

I agree with you that losing seats is bad, but realistically, leadership needs to stop pandering to the conservative democrats. They are a minority of the caucus, but they have been dictating policy for about 25 years, and they have been absolutely toxic.

Realistically, the good senators, aside from Russ Feingold, are not the ones that are threatened. It is the Blanche Lincolns and Mary Landrieus. I don't think that removing those two and their ilk is going to do much to alter ENDA's chance of passage.

Honestly, if the pro-life Harry Reid goes down and we get Dick Durbin or Charles Schumer as majority leader next term, there will probably be more legislation passed through the senate, even if the magic 60 seat number isn't satisfied.

Losing seats? There isn't enough support now. ENDA has only 52 YES votes now. Maybe there are 3 more, but it's still not enough to beat filibuster.

You need to gain 5 seats to be able to pass ENDA. Plus, the Democratic "majority" isn't 100% Pro-LGBT.

Truth is, the votes are not there for passage. Midterms are likely to make that worse - unless we come up with something.

This is why you sneak stuff like this onto things like Defense appropriations bills, or logroll it with pork, or any number of other things. The truth is, EDNA is not a huge priority to the Dem leadership, and they're not willing to go out on a limb for it, at least until the financial regulation and health care bills become law.

This repeated argument that ENDA is more important and more obtainable that SSM or the repeal of DADT and DOMA is still completely without merit.

Check the gay marriage scoreboard.

Kat,

Check the "LGBT Movement Scorecard." We haven't won anything. Passing a few laws that make us a "protected class," without any actual protections, is not a victory. Plus, they only punish bad behavior, while making us "less-equal."

If equality is the goal, there is only one victory that matters. Not make-believe protections or being permanently defined as a "special class" (read different), with our very own "minority status," but equality.

We will be equal when people believe we are.

I have never understood our community obsession with bright shiny things: DOMA, SSM, DADT - all bright and shiny - and all unlikely to happen. ENDA is the keystone in the arch behind which greater freedoms for all LGBT folk reside.
Not quite.

Its the keystone in the arch behind which basic freedoms for all T folk and those LGB folk who aren't independently wealthy and/or Log Cabin-oids and/or part of the permanently-employed activist elite class reside.

The Hilary Rosens and Joe Solmoneses and Andrew Sullivans of the world don't need ENDA - at the federal or state level - so, even if/when they profess concern about passage of such things, it doesn't actually matter to how they have to exist in America in 2009 - so said concern should not be believed.

Bill Perdue Bill Perdue | December 5, 2009 7:28 AM

It's true that "ENDA is not a bright, shiny object" even at it's best and most inclusive. It totally lacks the kind of kick ass jail time and confiscatory fines need to convince business leaders that discrimination is bad for their bottom line and their health.

It also lacks the kind of legal and administrative remedies that would make it easy to file grievances and lawsuits with a high likelihood of winning.

And finally it ignores discrimination in housing, access to public services and accommodation and most critically, access to medical services.

In other words it's a step forward but lame enough, like the hate crimes bill, so that even Democrats, who make a habit of catering to bigots, can pass it and a bigot like Obama can sign it.

But even that is far from assured. We'll have to watch the debate and the amendment process to see if those infamously spineless Democrats accept all the Republicans gutting amendments like they did last time. We know Barney Frank will betray us out of habit if nothing else but what we don’t know is how man Reuben Diaz’s are lurking in Democrat Congressional caucus.

It’s clear that anti-incumbency is going to hurt Democrats a lot and that Obama not going to be compared to Clinton and Bush in spite of the similarities, but to Hoover and Nixon.

The new CNN/Opinion Research poll says that 48% approve what and 50% disapprove. The 48% approval is a 7 point drop from November and down 20 points from February-March.

"The poll indicates that the biggest drop in approval comes from non college educated white voters. That's one indication among many that Obama's growing unpopularity may be more related to unemployment and the poor economy."

This morning one time DNC Chair Terry McAuliffe said

"I have been in this business of politics for 30 years now, I have never seen such angst that you see across the country. People are angry and they're going to take it out on incumbents… People are angry, and rightfully so, that we bailed out Wall Street and they're getting huge bonuses. "

Finally the idea of counterpoising one part of our agenda to other parts is divisive. We know that Democrats want to downplay opposition to DOMA because it belongs to them and Clinton far more than to Barr and the Republicans. We know that many Democrats oppose SSM simply because Obama does.

We need to keep that kind of partisan divisiveness out of the fight for our civil rights and equality. In the absence of an independent (of the Democrats) nationwide, internally democratic, mass action organization the decisions about what people support are going to continue to be an unorganized free for all. That's bad enough but injecting partisanship into the situation makes it even worse.

Bill Perdue Bill Perdue | December 5, 2009 7:32 AM

The CNN Poll is about Obama. Sorry.

In 1996 the US Senate voted against ENDA 50-49 (without gender identity).

Jillian suggests we have 52 YES votes today. That's only 3 additional votes in more than a dozen years - or about 4 years per vote.

Even if one could call this progress (ignoring election cycles, etc.) it will take another 32 years to beat a filibuster.

I'm not waiting on more fruitless "political games" to achieve our equality. I am going to rely on my friends, neighbors and fellow citizens. I am going to ask for their help. Join the Parade. Jillian, you can continue to beat the ENDA-drum, along with Monica, Kat, Tobi, Kathy, Batty and Ann. Please allow others - Same Sex Marriage "cheerleaders" or the DADT Repeal "horn section" There's even room for our Socialist baton twirlers. (You're welcome Alex and Yasmin).

You forgot to include me with the Socialists Andrew, though admittedly I am a bit of a champagne socialist

Please consider yourself included Maura. Many of my friends are "champagne socialists." You know, the "fun ones."

It's great that there has been so much comment and discussion kicked off by this post. Please keep it coming.

There is no ONE solution. Andrew-you are absolutely correct, "you don't "create" equality by passing laws. What you do, is reframe the debate and then hopefully pass the law and THEN the hard part begins--teaching both sides of the debate what they just voted for, or (depending on your point of view), had thrust upon you.


In Kalamazoo, on election night this last November, as all the staffers and volunteers shouted "WE DID IT!!!" I couldn't help but think that they had no idea what they just did and furthermore most of them were not going to be much interested in the hard work of talking to the community beyond three word slogans. What we won was the opportunity to enter the debate on a slightly more level field. The work will never end, hence our willingness to engage in debate must never wane.

Check the "LGBT Movement Scorecard." We haven't won anything.
Bullshit.

Live in Texas for a while and then live in a state that has an LGBT anti-discrimination law.

If equality is the goal, there is only one victory that matters. Not make-believe protections or being permanently defined as a "special class" (read different), with our very own "minority status," but equality.
Spoken like someone well-off enough to not need the remedies provided by anti-discrimination law. Now, I don't know if you actually are that well off have simply OD'd on Paul Varnell kool-aid - and I don't particuarly care. Any 'equality' that isn't enforceable by law is no more real than HRC's commitment to trans-inclusion.

It really doesn't matter how "well off" I am Kat. Anti-discrimination laws are not "remedies." You cannot pass a law that ends discrimination and as Amy has pointed out - the passage of a law is just the beginning of the "conversation for equality."

People who discriminate (or hate) have reasons that are unaffected by laws and only partially affected by the punishments. What is much more important is changing those beliefs that enable them to discriminate in the first place. That should be done by everyone - all the time.

The LGBT Community has never had a concerted effort to change the cultural conversation. Arguing over laws, protesting or engaging in "calling out" people for bigotry or hate doesn't change any minds. Conversation does.

At the same time, we must re-brand what it means to be "gay." Most of the public only sees us on the defensive and as victims. That is an unfair picture - the reality is we are very creative, talented, strong and persuasive. But, people never get to see that.

I agree with Amy that there isn't ONE "answer," but there is ONE question: How and when will we create our equality? HRC and other hired guns are NOT even asking the question. Like so many, they are relying on a "political solution," and that is a waste of time and money.

We NEED to be very honest (or in my case very unpopularly honest) about exactly what we have accomplished, what actually "works," what it costs, how we can refocus on equality, when we can get started and when we will actually WIN. In order to do this we must let go of preconceived notions, old ideas and our decades-long surrender to those hired "experts." It is our responsibility and we have the incentive: equality.

Thank you for the inclusion on the list of Socialist unerd the subheading "Champagne Socialist"

I understand your point about changing hearts and minds one at a time, Andrew. And yes, that will bring true equality.

But til then, many of us need these laws and prtections that we strive for. For instance, my neighbors like me, consider me a great neighbor, but are vehemently opposed to same sex marriage on the grounds of their laregly immutable religious beliefs. They have no wiggle room.

Conversely, though, in the 1990's I worked for a bit for the Chancellor of the Exchequer along with a few other out banking and legal staff.(I was wrestling with my orientation then). He was kind, supportive and I believe that he learned a lot about LGBT issues from that staff...

And last week, he was one of the few world leaders to denounce Uganda'a plan, inspired by American ministers, to commence an LGBT Final Solution...so, Mr Brown, Good on you, Boss!

Cheers Maura,

We don't have a Gordon Brown in the US. We thought Obama had some balls, but they disappeared after his election. He is now a 100% politician. That's very bad news for us.

I wish the laws you speak of actually protected us and stopped the discrimination. Blacks would suggest (as does polling data) that racism is alive and well in 1/3 of Americans. - after 45 years of "laws." We must not endure a similar wait, we must be proactive instead of reactive.

Our Community has never equipped us with the tools or the media support to engage our neighbors or even make it culturally "safer" to come out. Our movement is dysfunctional (at best) and counter-productive (at worst). In the US nearly half of all LGBT persons are still in the closet (fear of rejection) and nine out of ten are not contributing to our efforts (hopeless). Those two things must change.

I have been seeking ideas and strategies from the LGBT Community that are designed to actually "win." This is very different from the status quo - same tactics / same results. It should give pause to ALL of us that the LGBT "establishment" does not have a strategy to win. It is only more incrementalism with the non-inspiring deadline of "one of these days."

The good news is that there are several very exciting new approaches to our equality and I think next year will provide a very big shift in direction - a very positive shift. I am not in the LGBT advocacy business, but I have invested a lot of time and money trying to determine what our collective problems are and then I solicited ideas to win. It looks very promising.

I agree with Amy (and others who have made positive comments) that this conversation is very helpful. I will share a story with you that seems relevant. I originally scheduled meetings in several cities suggesting we didn't have a "strategy" and we should all get together and talk. The first 3 meetings we had 25-35 people from all areas of the LGBT Movement. We got together and fought for 90 minutes. Everyone protected their ideas, turf and salaries. After that enlightening experience I changed the meetings to the "search for winning ideas." A whole different crowd showed up - complete with ideas, research and a bunch of "possibility." The "LGBT establishment" did not attend, in fact they told board members NOT to attend. But, that curiosity was overshadowed by a group of very sincere, very creative people that were only interested in "winning." It resurrected something our movement has lacked for too long: hope.

I hope others are creating their own searches for answers and entertaining new ideas and strategies. Too many of us forget we live in a new world and stubbornly cling to the past and many tried-and-untrue tactics and strategies. We need to change ourselves in order to change the world we live in. We need to recognize that the majority of our fellow citizens will join us - if we enroll them, instead of threatening them. Instead of negative demands we need positive requests for help. America is ready for LGBT equality - it is ours for the asking.

We have seen several defeats in the last year and the 111th Congress now appears "Closed for LGBT Business." But, while this anti-equality tsunami has angered many (I've seen your post on Pam's site), there have also been a few people working very hard to find solutions. Whether their efforts are considered by some as "against all odds," or even unauthorized is besides the point: they believe and they are very hopeful. We haven't seen that in a long, long time.

It looks very promising...

Not quite Chill the champagne promising,
but certainly buy more Champagne promising.

Wow - and St. Barney said that we were living in Oz.

I am always amazed how the Right wing Republicans can seem to move their crap through Congress but for some reason the Progressive Democrats seem only to be able to snatch defeat from the jaws of victory.

I am planning to do some calling this week in the hope my voice will make some difference. I doubt it will but without trying it is sure to go away for many more years. I know my state will likely never pass an ENDA type law as it has had such an amendment kicking around for years as well without much progress.

As far as ENDA not being the more important of the possible reforms, I would say it has to be. In the current economy we need all the help we can get when it comes to getting and keeping a job.