Nan Hunter

Moving forward on employment, with or without ENDA

Filed By Nan Hunter | February 01, 2010 11:30 AM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: Barack Obama, Employment Non-Discrimination Act, ENDA, LGBT, politics, transgender

One implicit message of President Obama's State of the Union address last week lies in what he did not say. He promised to move ahead with prioritizing a repeal of Don't Ask Don't Tell; he did not mention ENDA. While a vote on ENDA in the House is probably still likely some time in 2010, prospects in the Senate are very tough. The harsh truth is that because the bill includes protection for gender identity - which I believe it should - it may take considerably longer to enact. If Dems lose a significant number of seats in either chamber, it will be an even bigger lift next year. On the other hand, if the 2010 elections go well for the Dems, there will be more momentum to move ENDA through both chambers in 2011. We'll know in about 10 months how that will turn out.

The uncertainty over ENDA is no reason to slow down on employment issues, however. No issue has greater material importance than jobs - some of us marry, some of us don't, but we all work, or want to. And in a time of massive economic anxiety, the right to fair treatment for lgbt people in the workplace is critical.

Following the jump are three goals that advocates could prioritize immediately.

1) President Obama could issue an Executive Order adding gender identity to the list of characteristics which are prohibited as the bases for discrimination for federal government workers. (Governor Paterson did this for New York state employees in December.) The federal government is the nation's largest employer and a model for private employers. When ENDA moves forward, it will be a powerful argument if advocates can point to the federal government as a workforce where such discrimination is already prohibited. I know that OPM has issued guidelines designed to achieve the same result, while still flying below the radar. But the advantage and disadvantage of flying beneath the radar is the same: no one knows what you are doing. Having an Executive Order, unlike the current guidelines, not only has an educative effect, it also sets the stage for future actions by the federal government. It's time for the administration to do the right thing.

2) State laws prohibiting employment discrimination still do not exist in a majority of states, and that too makes passing ENDA more difficult. Take this quiz:

Which of the following states lacks an anti-discrimination law covering lgbt (or any subgroup thereof) workers: Ohio? Pennsylvania? Michigan?

Answer: All of the above.

A couple of years ago, a big chunk of gay money went into New York state legislative races, and the state senate turned Dem for the first time that anyone can remember. The goal was eventual enactment of a marriage statute. The same kind of savvy targeted effort should be undertaken to win an anti-discrimination law in these key states and others like them, where success is within reach.

3) Federal courts have increasingly been willing to extend anti-discrimination protection to trans workers through the prohibition against sex discrimination in Title VII, usually using a sex stereotyping theory. Gender expression as well as gender identity has also been covered. The trend isn't universal; there are still bad decisions happening. But the comparison to how courts were ruling 10 years ago is dramatic.

I have no doubt that the legal groups will continue to litigate carefully selected cases that can extend this principle. But the Obama administration could contribute to this strategy as well, with many more resources than any lgbt group has. During the Clinton administration, a task force within the Justice Department sought to identify good cases in which to litigate a sex stereotyping theory. Now that same kind of effort has begun again. In mid-January, DoJ moved to intervene in JL v. Mohawk School District, on behalf of a student who had been subjected to severe harassment because of his gender expression. DoJ should actively look for employment discrimination cases as well in which it can play a role.

In sum - with a nod to the upcoming Chinese year of the tiger - let's make 2010 the year of employment issues.

Cross posted at hunter of justice


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Kathy Padilla | February 1, 2010 12:43 PM

"The harsh truth is that because the bill includes protection for gender identity - which I believe it should - it may take considerably longer to enact."

I would suggest that it's not useful to reinforce this talking point in this manner. We might consider saying that because bigotry aganist transgender people is so prevalent; some politicians are afraid to challenge it. Or something similar.

We never said that in previous versions of enda that it wouldn't pass included sexual orientation. Or that local bills which included more than sexual orientation wouldn't pass for the same reasons. And the reports we have aren't just that gender identity is the problem - but peoples issues with the language regarding rest rooms. Again - we don't say that DADT repeal won't pass because of showers - we let our adversaries make those claims.

Quite simply - the nondiscrimination bill won't pass because of discrimination.

Kathy Padilla | February 3, 2010 9:47 AM

"Answer: All of the above.

A couple of years ago, a big chunk of gay money went into New York state legislative races, and the state senate turned Dem for the first time that anyone can remember. The goal was eventual enactment of a marriage statute. The same kind of savvy targeted effort should be undertaken to win an anti-discrimination law in these key states and others like them, where success is within reach."
=======================================

Is there such an effort under consideration? I haven't heard such. (I live in PA.)

It seems that some of those big donors have little concern for nondiscrimination legislation - it doesn't effect their lives as directly as everyone elses. And while I support eliminating sex discrimination in marriage - I don't see it as being as vital to peoples well being as access to employment and public accomadations. Relationships becoming somewhat more difficult to maintain when one can get a job or is homeless.

There seems to be a huge disconnect between the objectives of some donors and the orgs that receive those funds and must respond to their concerns and the rest of us. Else why was marriage given such a huge push in NY and including employment protetctions for the entire community, particularly those who have such high un & underemployement rates?

Maybe we should start a group and a smaller donor based fund raising mechanism for targetting some of these states one at at time and try to gain some traction on & influence over these issues. Set the agenda instaed of responding to it?

HRC has had the fix in on no gender language in ENDA since the mid 90's

It ain't gonna happen as long as they can stop it and most likely it will never again be done where the light of day shines on that as was the case in 07.

It's a long, convoluted story but essentially nothing has changed, nor will it. In 99 only two pro ENDA congresscritters could be identified that stated gender language would make a difference, one of them was Barney Frank. In 97 and 99 trans lobbyists could get no where near Teddy Kennedy, a man famed for being accessible. HRC headliners were pre-lobbying against trans inclusion on ENDA back then about a week before each and every trans lobbying effort. Back then "trans leadership" was literally being bought off and even part of the pre-lobbying against lobby day events they themselves were organizing!

HRCs motives were simply they had done a series of polls around conservative states on public acceptance of civil rights for transsexuals (back then we had great pr before we were erased into transgender) and civil rights for GLBs....and they went into panic mode because on the one poll that surfaced despite trying to bury it deep deep deep, done in North Carolina, the public acceptance for transsexual civil rights ran in the 70 percentiles while the LGBs were in the mid 30's

We could have pulled it off without their active sabotage. Several of us were even told that outright by conservative legislators (I was one of them), divorce from the gays and we would find right wing support. Back then even Pat Robertson was publicly supportive of transsexual rights. And we had a plan, and we tried to start a grass roots national organization which was co-intelpro-ed.

It's a story of dirty double dealing and back stabbing by alleged allies. It culminated with the ESPA total sell out in New York where that leadership actually lied to Sylvia Rivera literally on her death bed.

HRC has always been about raising the buck without results. The black eye they would have gotten if a bunch of upstart neo lobbyists had pulled off what they claimed could not be done was the motive. Hell, back in 97, I personally came out of a republican housemember's office with a firm commitment to sponsor a letter to finally collect hate crime statistics on trans hate crimes by the Justice Dept! It was killed by one of our leaders right in front of me the very next day!

Trans people have been played for suckers ever since and encouraged to step away from medical model transsexuals and demand "acceptance" of women with penises and pregnant men with the full knowledge that would destroy public support as it did.

I'm one of the few remaining voices/witnesses from back then and only because I am an incredibly stubborn bitch who actually thinks the truth will eventually out. I'm also cut totally off from any trans activism and possibly the most hated woman by transgenders outside of Raymond and maybe Julie Bindle.

No, C, you aren't the most hated.

Most annoying, possibly, but not most hated. That's reserved for a couple of the people you are linked with of late.

Not all of them, either.

Incidentally, I literally just got notification of your comment as I wrote this, lol.

And I likely may be one of those.

But I'm still trying to tell the difference -- and there isn't much of one so far.

C - as you know, I've heard the same story from independent sources.
I guess I just don't want to believe it.
So far I've had no denials though.

Anela Brightfeather | February 2, 2010 3:17 PM

"Trans people have been played for suckers ever since and encouraged to step away from medical model transsexuals and demand "acceptance" of women with penises and pregnant men with the full knowledge that would destroy public support as it did."

Well C, I guess that says it all.
As someone who was with you back then, the one thing that you seem to keep leaving out of that rant is that fighting back then included the so called men with penises and pregnant men. As it turns out, most of those who fought with us back then and that you refer to as women with penises, don't have them any longer.

I guess it just shows you that some people can change or were trying to change and make it better for themselves when they did change some of the "appendiges" that you mentioned.

It's pretty understandable to many who know you, why you say what you say. It's just the fact that your so darn selfish about the whole thing regarding gender diversity and other people's right to be able to be who they want to be, instead of who you think they should be, that makes you so well liked.

And when ENDA is inclusive and does becomce law, you might have a lot of apologizing to do to those who you would have liked to have left behind in the process. Not that it will be forethcoming.

And you are stuck in the "she hates us mode" so you are totally blinded.

We never discussed the agenda with you because you were part of the problem then

We had widespread understanding of transsexuality, we intended to push broadly inclusive language through using that, fully prepared to use the poor state of the art of FtM bottom surgery to shortcircut adding surgery requirements. In order to work for protection for everyone required only that those who pushed us out STFU about their penises. That's all that was required. Instead you insulted us, called us every damn name in the book, pushed us out and "educated" away every trans persons civil rights.

Why is it that even 13 years later you miss that part every damn time?

And as it turns out, everyone we saw as a problem then actually still have penises. The others knew the score. And ironically enough both you and the other worst case were trying to seduce me back then, I still have the email love letters from you on my HD. Was my refusal to partner or sleep with anyone trans the real reason you turned on me so totally?

I warned you and others back then that alienating transsexuals would be the worst mistake you could make because we were an easy sell to the public and she-males never would be. And today, thanks to the science you all deny, transsexuals have access to full civil rights right now under the ADA, all they have to do is exercise them. There is even a DOJ Civil Rights Division head's legal opinion on record to that effect.

HRC set you up, pushed your agenda and look where you are, a trans inclusive ENDA ain't gonna happen in my lifetime even with a democratic majority in the House and Senate and a "Saviour" in the White House........and you know it.