What's going on with ENDA, the Employment Non-Discrimination Act, which would finally prohibit overt homophobia and transphobia for millions of LGBT US employees?
On the one hand, the Dems said they would conduct a whip count and proceed to a vote after the Easter recess on April 13. They say they're working hard on that. Roll Call, an important DC newspaper read by the pols and their staffs, says ENDA's a pretty sure thing.
At the same time, it's the second week in May, and questions about when this vote will take place are met with non-answers and sincere protestations about doing it right. The Hill, a sister publication to Roll Call, also published an article this weekend. That one suggests ENDA is in big trouble.
Into this battle comes Alison Green, who writes the "Ask a Manager" workplace advice column for U.S. News & World Report's Web site. This week on her personal blog, she addresses a reader question: is my transgendered coworker using the right bathroom?
What's really happening with ENDA? Well, whatever's happening, write your Representative again by clicking here. Yes, again. Do you brush your teeth every day?
Optimists would point to the fact that reports suggest the whip count is going very well. They counsel patience and calling your members of Congress. "We're so close," said Diego Sanchez, senior aide to Barney Frank on last night's discussion on Ethan St. Pierre's Sodium Pentathol Sunday TransFM Radio show. "Keep calling Congress," he urged. The Roll Call article supports this view.
Pessimists would point to the portion of the Roll Call article that laid a huge bombshell from Representative Frank that could derail the whole thing. In it, Rep. Frank is quoted as saying that new language in ENDA regarding bathroom use would be based on one's "set of genitals." This raises fears of transgender advocates that there will be surgical requirements engrafted onto the bill. I sincerely hope that's a misquote, as Diego Sanchez implied in his interview last night. The pessimists would also point to another article, the one in The Hill this weekend, which suggests that ENDA is in big trouble.
The Hill Article
The article in The Hill is what I would call a transphobic "dog-whistle" article, meaning that only those attuned to the right frequencies can hear the "fear transgender people" message. Entitled "Transgender anti-discrimination bill becomes tough sell for centrist Dems," it characterizes ENDA as a narrow "transgender anti-discrimination bill," rather than a broad workplace protection bill that would affect millions of gay, lesbian and bisexual employees, as well as transgender employees.
The article suggests that bringing the "transgender bill" to the floor would bring Speaker Nancy Pelosi into disrepute and cause the Democrats to lose Congress. It sub rosa implies that "transgendered" people "scare" legislators, and that centrist Democrats won't vote for the bill. It neglects to mention that ENDA has majority support in both House of Congress.
Although The Hill moderates comments, it also published dozens of mean-spirited transphobic comments, including the first comment: "The only cure for 'transgender' freaks is a thorough lobotomy." Good job "moderating," Hill staffers!
This is quite inconsistent with The Hill's view of itself:
In an environment filled with political agendas, The Hill stands alone in delivering solid, non-partisan and objective reporting on the business of Washington, covering the inner-workings of Congress, as well as the nexus between politics and business. The Hill serves to connect the players, define the issues and influence the way Washington's decision makers view the debate.
Non-partisan and objective? The article tracks the meme from the article published by Andrea Lafferty of the Traditional Values Coalition, listed as a hate group by the Southern Poverty Law Center. In her article in The Hill's sister publication, Roll Call, Lafferty suggested that ENDA will endanger the re-election of Democrats running ragged after spending all their political capital on health care reform and hoping for a softball legislative schedule.
The Roll Call Article
In "Backers Say Gay Rights Bills Will Win in House," a dash of cold water is first thrown onto DADT repeal, questioning whether the votes are there for it.
The article sounds a more cautiously upbeat note for ENDA:
Meanwhile, the whip count on ENDA, which Obama also backs, is entering its fifth week. The effort has most recently focused on rechecking support among Members thought to be more comfortable with the legislation than politically imperiled moderates who have raised most of the concerns, one source familiar with the effort said. That, the source said, bodes well for its progress. But many Members remain officially undecided and have quietly voiced frustrations about the prospect of taking a tough vote that they see as a distraction from an agenda focused on job creation.
"It seems to run contrary to what the Speaker said a few months back about focusing on jobs and moving away from these controversial items," one senior Democratic aide said. "Anything that's not specifically tied to keeping the economy going raises red flags for folks."
But Frank said that he is optimistic about the vote count and that transgender protections will remain in the bill.
[Rep. Tammy] Baldwin said that the whip count on ENDA is very strong but that they are pushing hard to whip against a politically charged Republican motion to recommit.
Baldwin had little sympathy for the complaints of moderate lawmakers who question the political wisdom of pushing gay rights bills in a difficult election year.
"Name one issue where you don't hear that?" she said. "They should choose another profession."
It's good that our leadership is signalling a positive outcome on the ENDA whip count, and not caving to the fear of Blue Dogs, who don't give a whit for millions of LGBT employees facing unemployment, underemployment, harassment, and air-tight closets.
Rep. Frank also gives comfort to transgender advocates of ENDA.
"There's no chance of doing it without it," [Frank] he said of the transgender protections.
Frank said he's told wavering Democrats that "the principle is the same. It's discrimination."
Fears of Trans Advocates
Despite the optimistic tone of the Roll Call article, there is still trouble in River City. Frank was also quoted in a way that will raise the fears of transgender advocates. He implies that new, as yet unseen language in ENDA will impose a surgical requirement.
Frank said concessions were made in the drafting of the language to address moderates' concerns. For instance, Frank said, transgender people with "one set of genitals" would not be able to go to a bathroom for people with another set of genitals.
And, Frank said, they also would have to have a "consistent gender presentation" in order to be able to sue for discrimination.
"They can't sit there with a full beard and a dress," Frank said.
Most trans advocates are fine with the idea of consistent gender presentation, the "no beards and dresses" requirement, in Frank's piquant language. For example, the Boston anti-discrimination ordinance, which is widely considered very progressive by trans advocates, also has a specific requirement of consistent gender presentation with regard to bathroom use.
Frank's statement, however, goes well beyond that when he says transgender people with "one set of genitals" would not be able to go to a bathroom for people with another set of genitals. A surgical requirement is unsatisfactory not only from the point of view of trans workers, but also from the employer's point of view as well.
As I point out in my book, Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals, surgical requirements are very unsatisfactory for all concerned in the workplace:
First, there are numerous types of SRS, some of which alter the genitalia only slightly and others of which vary in their effectiveness and appearance. An SRS requirement requires the Company to obtain and assess proof regarding specific details of the employee's medical history and treatment. This is problematic because such questions may impact medical privacy laws, which differ by jurisdiction. Furthermore, the use of SRS as a factor may create the perception that the Company endorses, condones or regulates its employees' decision to undergo gender transition. This is undesirable for reasons including employee relations, public relations, insurance coverage and potential litigation. It is best for the Company to stay out of the employee's medical decision-making.
Most problematic is the fact that the standards of care of the primary medical organization in this area (www.wpath.org) require successfully living as the opposite sex for a year or more prior to medical approval for surgery. Therefore, it is likely that an employee in transition will not complete his/her medical treatment for a substantial period of time. Requiring an employee who appears female to the general public to use a men's facility, or vice versa, will likely cause more workplace distraction than necessary....Frankly, although the use of SRS as a factor is intended to avoid objections to facilities usage, it fails to accomplish this goal because SRS does not address all objections to facilities usage. SRS affects only a small portion of the body not usually disrobed in a workplace restroom. SRS does not remove visible androgyny, nor does it remove the knowledge of co-workers that a transgender employee was born in the opposite sex. The source of the concern among co-workers, if any, lies here, and will not be removed by an SRS requirement. Rather, the issue is the comfort level of reasonable co-workers with sharing that particular space with that employee. The set of five Facilities Usage Criteria suggested here better achieves the company's goals of maximizing workplace harmony and minimizing distractions.
It may well be that Rep. Frank was misquoted as to the "set of genitals" comment. Alternatively, he could also be attempting to provide political cover for ENDA, Or he may simply be a bit confused about this issue, as many people are, and meant to refer to the "consistent presentation" requirement.
We don't know what he meant. It certainly sounds like a surgical requirement, but everything I've been hearing from DC emphasizes that there is not and will never be a surgical requirement. I'm in no position to cover for Rep. Frank, so all I can say is that we will have to see.
Alison Green's "Ask A Manager" Column: Is my transgendered coworker using the right bathroom?
Alison Green writes the "Ask a Manager" workplace advice column for U.S. News & World Report's Web site. This week on her personal blog, she addresses a reader question: Is my transgendered coworker using the right bathroom?
Since this post is already long enough, I will note that you can read it at the link just above. I helped her craft an answer. As the question shows, there is a great misunderstanding of how gender transition usually occurs in the workplace, as well as how to handle bathroom access. It's never a situation where someone decides one day to dress as the opposite sex and demand opposite sex bathroom access. In addition, the question of one's "real" or "legal" gender is completely irrelevant to the issues faced by managers in addressing gender transition in the workplace.
There are some interesting comments on Green's site. They show the level of confusion that we are dealing with here. You might even have some useful comments to share with the workplace managers who read Green's column. You might start with the fact that "transgender" is usually considered an adjective, and that "transgendered" is generally thought to be incorrect usage. (I forgot to mention it in my email to Ms. Green.) Of course, we differ on this even within the trans community. Oy, let's not get into that again.