Dr. Jillian T. Weiss

ENDA Now Ready To Pass

Filed By Dr. Jillian T. Weiss | May 11, 2010 9:30 AM | comments

Filed in: Politics, Politics
Tags: bathrooms, Employment Non-Discrimination Act, ENDA, rest rooms

The question on most people's minds about ENDA is: can it really pass?

The National Center for Transgender Equality, along with the Transgender Law Center, and the Coalition of State/City Transgender Advocacy Organizations, held a conference call last night on the status of ENDA, the Employment Non-Discrimination Act.

Those on the call learned that the legislators on the Hill have completed the weeks-long, extra-careful whipping process. (Whipping refers to asking Congressmembers how they will vote on a bill.) We learned that legislators are "comfortable" that there are well beyond a majority of votes to pass ENDA, right now. We learned that, specifically with regard to a potential motion to strip gender identity from the bill, there are enough votes to defeat that motion. We also learned that Congressmembers are getting calls and letters 2 to 1 in favor of ENDA.

After all of its ups and down, ENDA is ready to pass!

Here is a nifty new site that will give you one click-access to your legislators. Click here for one-click sending of an ENDA letter to your Congressmember and your Senators. Please send it to your friends on Facebook. I mean, how easy is this?

The word on the street is that ENDA will proceed like greased lightning, once it goes. Markup will be scheduled without much warning and it will go almost immediately to the House floor for a vote. ENDA has flown pretty much under the radar, and its proponents mean to keep it that way.

Here's what Mara Keisling, Executive Director of NCTE said on the call: "In my seven years working on LGBT issues, I have never seen an issue where the volume is in favor of the LGBT issue. We have in the past heard that it is a thousand to one against. Now, we are hearing that it is 2 to 1 in favor."

She also said "That will not last. Once the markup is announced, conservatives will start dumping form letters by the thousands."

How can we make sure that we keep up the pressure in favor of ENDA? Click here for one-click sending of an ENDA letter to your Congressmember and your Senators.

Concerns About Transgender Inclusion

One of the major concerns addressed during the call was the meaning of the following quote found in Sunday's Roll Call newspaper from Rep. Barney Frank meant: "...transgender people with "one set of genitals" would not be able to go to a bathroom for people with another set of genitals."

This raised fears by some transgender people that there would be some sort of requirement that employers do "genital checking" of transgender employees in order to use bathrooms.

Mara Keisling, the Executive Director of NCTE said that she had spoken to Rep. Frank's office about this issue.

Fortunately for HR managers everywhere, there will be no "genital checks" under ENDA.
While the exact language isn't known at this moment, we know approximately what it will say.

Here's what Ms. Keisling said:

Employees will not be allowed to sue about bathrooms, as long as not they are not making us use the wrong one. Or, if not letting us use the right one when occupied by other people, they have to make a reasonable accommodation, defined as following all federal, state and local rules about bathroom access, meaning they are safe and within a particular local area. Also the EEOC will create model policies for nondiscriminatory use of bathrooms.

The situation now is that they can make you use the wrong bathroom. They won't be able to do that any more. As far as using the right bathroom, they will have to let you if it is a single use bathroom. They can still do the stuff they do now, like putting up a closed sign while you use it, or using the unisex bathroom downstairs. ENDA will not cause anyone to lose any bathroom rights.

While no one currently knows what exact language will be put into the bill at markup, that will be the effect, according to Ms. Keisling. She suggested that may be done by simply including bathrooms in the current language in ENDA with regard to dressing rooms. That language currently says as follows:

Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee's gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.

The suggestion is that the word "bathroom" will simply be added to this language.

It's not ideal from the point of view of many transgender people, but it would improve the current legal situation of trans employees.

One Click Access to Your Legislators

Now is time for us to do our part in helping to pass ENDA. Click here for one-click sending of an ENDA letter to your Congressmember and your Senators.


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kori mika | May 11, 2010 10:14 AM

Okay, I signed up and sent an e-mail. It was a little scary to find out that I was the first to send an e-mail from Arizona. But in a state that makes racial profiling legal, I guess that was to be expected. I doubt very much that e-mails will change the votes of Kyl or McCain, but it might influence Rep. Flake.

Go Kori! Don't be scared - you were the first person from Arizona to sign up via the Bilerico RallyCongress link, which I only posted this morning for the first time. Many, many, many others have sent letters to their Congressmembers from Arizona on ENDA.

By the way, in the hour since I posted, 90 letters have gone out. Way to go, Projectors!

I was the first from New Mexico. This is a really easy way to let em know we are out here , wanting an inclusive , reasonable ENDA - thank you Jillian and happy birthday !!! We will watch the floor debates carefully - when the bill finally does come out of committee and get to the floor. People have your Reps phone numbers READY !

It sounds like what they are doing is making the TG part of ENDA toothless so that it will at least pass the House. That way they support their ward bosses (Gay Inc) who are in charge of this particular minority ghetto. Gay Inc is under a lot of pressure from the smaller activist organizations to keep the T and make it inclusive, the true grass roots.

By putting in a nod to the TG part without any power behind it, through creative use of the language, they can pass the gay/lesbian part and maintain their political status quo at the constituent level. This keeps old alliances intact with lip service to some factions and crumbs to others. I don't think its going to work in the long run.

Toothless, Aria? Hardly. It will prohibit workplace discrimination and harassment against hundreds of thousands of transgender people.

Unless, say, you're a woman with a penis or a man with a vagina trying to use the bathroom...

"He 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."

Or, say, you don't identify as either gender and your life shows it:

"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."

So yeah, no real protections for the pre-op, the non-op, the gradual transitioner, and the gender queer. This is NOT trans inclusive. This is what we Canadians used to call 'enfranchisement' when it was applied to aboriginals: We'll let you be a full person when you act like the rest of us.

I'm not buying.

What about "those Six US Senators?" Which, as of today may be 7 US Senators.

Passing the House is not a "victory," it is like being allowed to race, but not finishing.

Andrew, you seem like a nice person, but I often find myself hoping that you dont have any sharp objects at your house...

You'd be better off worrying about "those six US Senators" Carol.

well, that *are* a danger to others! :)

Renee Thomas | May 11, 2010 12:13 PM

No worries Kori,

You're not the only one from Arizona ;>)

I sent an email from Washington. I added a note about why the law is personally important to me. I was number 8 from Washington. My representative and 2 Senators already support the bill, but maybe this will encourage them to push a bit harder for it.

It's three hours since I first posted this. 225 letters have been sent via RallyCongress.com

How cool is that?

That's the best birthday present.

Considering the anticipated language in that bill, I still don't know if I should celebrate or cry tears of sadness. I'm actually really disappointed in it. Just need to digest it I guess and regain perspective.

I hear you, Cassandra. I was disappointed too. What specifically disappoints you?

the alternate accommodations. I don't want to be cast out and treated differently. :(

To me, alternate accommodations is a euphemistic term for segregation and it's downright discriminatory.

I cant rememeber exactly where I read it (in something related to one of Dr. J.'s other posts), but I like the alternative arrangement that one company used: a separate restroom for ppl who were uncomfortable using the restroom with the trans person.

But setting up a separate restroom for people who are uncomfortable using the restroom with trans persons yields the same result: separate but (un)equal. It is the same as the Itawamba MS school district encouraging a secret separate prom for students who were uncomfortable having a lesbian couple in attendance; it served to exclude Constance McMillen and her girlfriend. In this case, the indulgence of cis-gender discomfort would validate transphobia. And the majority restroom would be better appointed and maintained.

The result would not at all be the same. In making the trans employee use a separate restroom, one sets him or her apart from all others. In making a non-trans employee who is uncomfortable with a transitioning co-worker to use a separate restroom, that person sets themselves apart.

Your analogy is a false one.

I see your point and understand the desire to find a satisfactory compromise here. But there can be no compromises where human rights are concerned. Note that in countering my argument, repeated use of the word "separate" cannot be avoided. Separate is inherently unequal. It also presumes that a relatively small number of cis-sexual persons would self-select to the separate facility and that most would willingly share restroom space with transpersons. Were this the case, restroom rights for transpersons would not be an issue. Unfortunately, transfolk are the minority. As such, it would still be transpersons, not those uncomfortable with transpersons, who would be excluded. Carol's experience bears this out. The cis-women will not go to the downstairs restroom because it is inconvenient. Yet they are clearly uncomfortable and refuse to share the restroom with her. That is bigotry in action, it is marginalizing, it is mean, and it is what we are fighting here. Were the employer to install a separate facility on the same floor, the cis-women would use it and their transphobia would be validated.

I agree, prom is only one night. In that sense, perhaps my analogy wasn't perfect, but it was certainly not false. I submit that it is well-supported by the history of segregation even, and especially, as it is practiced in the present. Segregation operates daily in the form of private schools and white flight, which are but two examples of majorities choosing to separate themselves rather than affirmatively separating the minorities. New and separate facilities are not built for oppressed groups, they are built for the majority, leaving second-class citizens with second-class accommodations. To create separate restrooms for those uncomfortable sharing space with transpersons would be to institutionalize cis-sexism. This is unacceptable and ENDA must address this.

David, it's ONE woman out of perhaps 50. And my point was that when ppl have to constantly be faced with being inconvenienced, most of them choose to let go of their convictions. And I am guessing that if they ever face this again, these women won't have the issues they had when I first started using the women's restroom.

The worse thing would have been if they had a say in keeping me out in the first place, anonymously. ENDA should help with that.

One other thing, David. I would be surprised if new buildings will be built with the idea that someone trans will need to be segregated at some point; the 'separate' facilities that I have heard of were installed when someone transitioned. If they installed a separate facility for the transphobes in my building, it wouldn't be as good as the regular one, which *I* would have more to myself. I would be fine with transphobes standing in line or making multiple trips to a new, smaller restroom just so they didn't have to use the restroom with me. But that's just me...

I agree with you Carol, in part. When people have to constantly be faced with being inconvenienced they might choose to let go of their convictions. That is the philosophy behind desegregation. That is why ENDA must provide equal restroom access for all transpersons regardless of which genitals they may have, without requiring or allowing separate facilities. Full stop. I believe that if a separate restroom were to be built for the transphobic women, it would become by default the cis-women's restroom. Birds of a feather and all that, the mere existence of such a restroom would put them in the position of taking sides. I have to admit, your idea sounds wonderful -- having the nicer restroom all to yourself. But I don't see that as being realistic. Again, the dominant group is uncomfortable sharing restroom space with transpersons. This is a cis-sexist society; cis- is privileged over trans-. Were that not the case ENDA and this discussion would be unnecessary. Given that dreadful fact, it is a certainty that the transphobic restroom would be at least as good and likely much better than the regular one. It would be transpersons, not cis-persons, who would be left behind as second-class citizens.

A restroom isn't a prom, it's every day, a couple of minutes a bunch of times a day, not one whole evening.

In my own personal experience, the cis-women don't want to go to a restroom one floor down to avoid sharing with me, tho there is one (who is actually in my workgroup) who will go back to her desk and go after I come out if we are headed there at the same time.

And as far as the prom goes, I find it pretty disgusting that the whole school knew, and noone tipped Constance off, or better yet, boycotted the homophobe prom to go to the 'outcast' one. But I grew up in the South, and still have family there, so it doesn't much surprise me.

My experience with the South (I know, Altanta, etc. are different, kinda like West Berlin in the middle of East Germany) is also why I don't have any desire to live there, and other than visiting my family, never go to the South...tho I have to say where I live (Indiana) is very conservative and traditional, too, which is to say: racist, sexist, xenophobic, homophobic, and of course transphobic. But at least the small part I live in is much less so than the South or the rest of the state.

In Philadelphia we have laws to protect us at work and it states that anyone not comfortable with using the same restroom as a trans person must use another bathroom or schedule time in the bathroom 'alone'. I actually applaud this!

What are your current arrangements, Cassandra?

segregated. Second-class citizen status.

So it sounds like they're already doing you dirt without ENDA? It's true ENDA may not change that, but it won't make it worse. Not ideal, true.

But also ENDA may help them realize that they're making a mistake policy-wise, even if you can't use the law to hammer them legally.

OMG!!! We're up to 551 emails sent to members of Congress today from Bilerico readers!

I was number one from Indiana earlier!!

Me too from AZ (Bad-egg's district). Once again I pretended for three minutes that He and Kyl and McCain are Reasonable Human Beings and sent off the emails and extra letters.

Now checking back in to Reality.

Good on you, Jake. They may not vote for ENDA, but they might not take point position in opposition.

785 letters sent by Bilerico readers so far today!

WackoTheSane | May 11, 2010 9:32 PM

3rd person from Tennessee Jim Cooper is a co-sponsor. In the past I have written letters to both my Senators and did not even get a response back. But there is always a chance.

I took the step of going to the offices of my congressman and my senators to leave them a copy of my Resume. I have called, written, and emailed. Aside from following them around in the hope of catching them in some compromising situation in a photo, I am not sure what more I can do. Hopefully it is not all in vain.

Compromising situation :) I got a good chuckle out of that one. Hey, whatever works.

Melissa Dunagan | May 12, 2010 5:36 AM

I have sent E mails to my Senater, and have even call him. But I do not think he will vote far this. I do not see any one else from Texas on here. I also wish the bathroom could be worded better far us. As now I have to use a port-john.

Thanks for sending emails to your Senator, Melissa. I'm sorry to hear that you're such an awful situation at work. I agree with you that I wish the bathroom language could be better worded for us. But at least the language we've heard proposed will not make it worse. Also, the EEOC can issue regulations that may help. My thought is that once employers see that there is a law governing this, they may ease up on their restrictions because they'll see that they can't get sued for their decisions.

polargirl360 | May 12, 2010 5:58 AM

Even if transsexual people were added to the 1964 Civil Rights Act Bill which this bill does'nt come close to doing for all practical purposes, they would still be discriminated against just as rampantly. There are 100s of perfectly legal reasons not to hire just about anybody who applies for a job and employment is "at-will".

The only effective tool to address this problem is Affirmitive Action. This tools is useless for enforcing transsexual provisions due to the sheer rarity of transsexuals. When the City of San Francisco with it's 30,000 or so city employees decided to cover sex reassignment surgery in its healthcare package, it counted just 68 transsexual employees on its payroll. How can a quota system be set up to endure that even the largest of private or even public employers expect maybe the Federal Government aren't discriminating? It can't!

An alternative enforcement tool like creating a new catagory of legal review called Super Strict Scrutiny that would compel an employer to hire or promote a transsexual candadate unless they can clearly prove that they were not qualified for the job would be needed to insure that almost every transsexual who wanted a job they were qualifed for got one in this country. Of course nothing close to this will happen ever even decades from now so we could look forward to an unemployed or underemployed majority for a generation or two.

The bathroom business is a whole other issue. Nothing in law requires employers to perform genital background checks to use appropriate facilities, but nothing really prohibits them from doing so either if some boss wanted to do so. Even if the law did, good luck proving it. There are so many ways to retaliate against an employee who refuses to submit to such a background check.

The whole point of transgender legislation is to legislate respect. I can't see for the life of me how a genital determination test will improve on the respect issue even if it comes with so-called marginally enforcable employee protections.

With that said and done, I hope this bill fails! I don't want to see genital inspection (legal / medical documentation or outright physical inspection) becoming common employemnt practice. I have to contend with enough disrespect as it is. I don't want more disrespect that misinterpretation of ENDA by hostile employers will result in!

Thank you for your comment, Polar. I don't agree that employers can require proof of surgical status. I discussed this some years ago on my personal blog, Transgender Workplace Diversity (transworkplace.blogspot.com).

What I found then is that the ADA and similar state statutes prohibit employers from inquiring into medical conditions or surgical procedures of employees both pre- and post-employment. While there has been no litigation on this point of which I am aware, I see no real difference between diabetes, cancer or gender identity disorder in terms of the prohibition on employer inquiry.

Section 12112(d) of the ADA prohibits an employer from requesting certain pre- and post-employment medical examinations and inquiries. Further guidance from the EEOC has clarified that this prohibits examinations and inquiries related to any medical condition. Despite the exclusion from the ADA of gender identity disorder not related to biological or neurological conditions for purposes of reasonable accommodation, the medical inquiry standards of the ADA applies to any medical conditions.

See (1) Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations Under the Americans with Disabilities Act of 1990, 8 FEP Manual (BNA) 405:7191 (1995), and (2) EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees, available at http://www.eeoc.gov. See also Giaccio v. NYC, 2005 U.S. Dist. LEXIS 642; Shaver v. Independent, 350 F.3d 716, 722 (8th Cir. 2003); and Conroy v. NYS, 333 F.3d 88, 94 (2d Cir. 2003).

I'm not ready to swear that this is the case, as it has been a long time since I looked into this, but I do believe this would be the result based on my prior inquiries.

I'm torn.

I believe ENDA to be absolutely necessary. The GLBT needs workplace discrimination protection...they've needed it for a long time, and it's well past due.

But I can't support a bill that, while calling itself a "non-discrimination act", actually works in reverse by laying out in specific language how and when it's okay to discriminate against GLBT people. Most notably, the restroom provisions, which while mostly targeting the trans population, could possibly have repercussions for gender non-conforming members of the rest of the GLB.

I fear ENDA will, in some ways, become like a trans version of DOMA. GLBT proponents of same-sex marriage have always argued against the "civil union" compromise, and for good reason; because separate is not equal, and just as important as any legal rights that would or would not be granted is the message such exclusionary legislation would send: That these people are different, and deserve to be treated differently.

And that's the message that will be sent if ENDA gets passed without restroom protection for trans people. That trans people are different. Scary. You might have to work with them, but don't worry, we won't make you get too close.

But this isn't just a moral argument for me. Having been segregated to the unisex restroom in my workplace, this has been my personal hell for the past two years. And some of my experience demonstrates that apart from the sheer wrongness of it all, there are real and practical concerns for at least some of us:

- I work in a busy retail environment, and the unisex restroom is one of its most active spaces. I rarely visit the restroom where I can just walk right in...perhaps two-thirds of the time I'm required to wait my turn, and at times, I've waited for more than half-an-hour. Sometimes I get called away for work responsibilities before I can do what I came to do. Sometimes I give up and come back later, even though I really need to, you know, do my business.

- Because these restrooms are so busy, they get dirty quickly, and don't receive the kind of maintenance they probably deserve. I've had to clean up urine, feces, and even vomit before I've been able to actually use the facility. Also, I frequently have to go track down toilet paper first. Certainly that's not my job, but when you've been waiting for half an hour already, you gotta do what you gotta do.

- Sometimes things go...unseen. More than once I've ended up with someone else's urine on my hands or clothes because the person who went before me left a hard to detect "present" on the lid, the handle, the toilet bowl, or the floor. Normally cautious about this stuff anyway, I've had to up my level of vigilance.

- I've had three minor UTIs in the last twelve months. Is this provably because of the inconvenience and longer wait times I'm forced to endure to use a restroom? I doubt it's unrelated.

- When the unisex restroom is out of order, the mandated procedure is this: Find someone I know and trust to chaperon me to a public restroom, where they will stand guard to prevent the general public or other employees from entering. Also, I must notify two levels of management...store management and my own supervisor (I'm a corporate employee and my supervisor isn't present in my physical location). This is so humiliating in practice that I've simply chosen to "hold it"...which again, isn't healthy.

- As noted, I work in retail, and I'm a corporate employee where travel is a required part of my job. Not all of our stores have unisex restrooms, though. In fact, only three out of a couple dozen are so equipped in my immediate area. The net effect of this is that when I announced my transition, I was forcibly relocated to a home store farther away from my home than necessary, requiring extra travel and gas (at my own expense). I was limited in the way I was able to perform my job, not able to fully participate with the rest of my team, causing them to have to carry extra workload. And I am at a ceiling in terms of promotability because all positions above me require additional, not less, mobility.

I could go on, about how this rule interferes with my medical and therapeutic treatment and compromises my medical privacy, but I won't. But before I finish, I'll just add that I did take these arguments in front of my HR representatives, more than once, and their final word on all of this - after discourse that ranged from civil to angry - was not "let's wait until we have some protection from being sued" but rather, and I quote "We're not legally responsible to do any more than we have, and we're not going to."

So no, I don't buy that passing ENDA "as is" will make employers re-think their positions on this. Rather, if an employer is already discriminating in this way, it will solidify their feeling of comfort in doing so, and if an employer isn't, it may just convince them that they've been too "generous".

That's terrible, Renee. I'm sorry to hear about your shocking treatment. I think the EEOC regulations that follow ENDA would be helpful to your situation. I also think that ENDA in whatever form will be helpful to educate your employers, even though the law may not specifically force them.

Hi Jillian,

I took some time to read through the rest of the comments before replying to this...I see there's some anger out there. I'm angry too.

You'll have to excuse me for being dubious about ENDA's value as an educational tool. I doubt seriously a bill that supports the practice my employers decided upon for themselves as a correct course of action will do much to help them reconsider their position. Like I said, the very last thing the Human Resources people said to me on the subject of restrooms was that they're weren't going to do anything they didn't legally have to do."

I did speak to the EEOC. And Michigan Triangle and Michigan ACLU. All three told me the same thing. "If we had ENDA we could do something, but right now you have no case." But this was some months ago, when it was still inconceivable to any of us that a trans inclusive ENDA might still allow for systemic discrimination against trans people.

I mean seriously, it has the term "non-discrimination" in its title. Just off-the-cuff here, I'd presume a so-named piece of legislation would actually be interested in identifying and eliminating known forms of discrimination. I think most people would think that. It's more than a little disheartening to discover that a chunk of ENDA's text is given over to acknowledging when it's okay to discriminate.

Like I said before, this could be our DOMA. And my greatest fear is that, like DOMA, once it's in writing, it'll be harder than ever to overturn.

Even scarier, I'm not sure the trans population is large enough, loud enough, or powerful enough to ever create much of a political stir of their own. I work in one of the busiest retail environments in the Metro Detroit area. I literally meet hundreds of new people a day. In my 14 years with this company, I can count on one hand the number of (identifiably) trans men or women I've met. That stands in stark contrast to just about every other minority who's had to stand against the machine; if I'm black, or Muslim, or even homosexual, I could walk around one of my stores at any given time of day and I'd encounter someone who shares my background...and likely my civil rights concerns. Maybe, for members of those communities, this is of no comfort; I don't know really, because that's not my experience. But I do know that I don't see very many trans people at all, and it scares me, because if we have to rally or protest or boycott or do a major write-in campaign, I'm afraid our presence won't be strong enough or our voices loud enough.

And I think that's why people are a little angry. You have a louder voice and larger forum than most of the rest of us, but right now instead of speaking on our behalf about this thing that really matters to us, you're asking us to bring our collective voices together in support of something that, at the very best, is going to hurt while helping.

Thank you, Renee, for your comment. I do not feel that I should, nor am I authorized to, speak on behalf of anybody but myself. I respect absolutely your right to disagree with my opinion that ENDA will be good for transgender people generally. I respect your right to disagree with my decision to withhold judgment on the bathroom language until it is revealed. I also respect your right to be angry, both at the proposed restriction and at me. I am not a god; I am human and I could be very, very wrong, and you could be very, very right in your point that this is our DOMA. I pray that it is not.

Well thanks for not telling me to take a chill pill, lol.

In all seriousness, I'm not sure how anyone gets authorized to speak on behalf of anyone else, especially in the trans community. But there are people at the top who are well connected and have influence, and then there are the rest of us. And it's evident to me that trust is a bit strained right now, especially when Barney Frank is quoted as saying about the restroom provisos "And we worked it out with the transgender community" and we're all left wondering, who exactly does he mean, because he didn't ask us?

As far as the whole DOMA comparison goes, it's probably inevitable. Every civil rights battle has something that shapes and colors it in a specific way. We remember Rosie the Riveter, and Rosa Parks on the bus. For the G & L it'll be marriage equality. For us, it's destined to be restrooms. No sense compromising on that now. Certainly not when we're being likened to rapists and pedophiles.

At any rate, I am interested in seeing the final language. Hopefully all our bluster here is just that. But that doesn't seem to be the direction of ENDA's momentum at the moment.

polargirl360 | May 12, 2010 11:52 AM

The ADA specifically excludes gender identity disorder. If an employer refused to accept your or any other transgender person's ADA defense for refusing to furnish genital background information and decided to let you or them go to court and sue on that basis, the employer would probably win bcause gender identity disorder was specifically excluded from the ADA!

Then there is the problem with other people besides you. When someone needs time off from work to get surgery, the employer than knows the employee's surgical status. The employer can now claim that the employee violated company bathroom policy even if such a policy was undefined in writing prior to the request for time off.

There is of course often the impossibility to leave surgical status out of co-worker conversation without appearing hyper-defensive and having an empoyee's place in the company put in a precarious position, especially for promotion.

The exclusion doesn't apply to pre-employment checks, only to post-employment, Polar. That was the gist of the citations I included in my last comment on this point.

polargirl360 | May 12, 2010 12:12 PM

The ADA specifically excludes gender identity disorder. If an employer refused to accept your or any other transgender person's ADA defense for refusing to furnish genital background information and decided to let you or them go to court and sue on that basis, the employer would probably win bcause gender identity disorder was specifically excluded from the ADA!

Then there is the problem with other people besides you. When someone needs time off from work to get surgery, the employer than knows the employee's surgical status. The employer can now claim that the employee violated company bathroom policy even if such a policy was undefined in writing prior to the request for time off.

There is of course often the impossibility to leave surgical status out of co-worker conversation without appearing hyper-defensive and having an empoyee's place in the company put in a precarious position, especially for promotion.

"There will be no 'genital checks' under ENDA"

Does that mean they'll be forbidden? Or just not mandatory?

Trans woman Kate Lynn Blatt says her former employer requested a photograph of her genitalia as a condition of continued employment, after questions arose about her use of a work-site female locker room.

At the time of the October 2007 incident, Blatt was employed by Manpower Inc., a global staffing-services agency with a branch office in Pottsville.

Manpower placed Blatt at Sapa Industrial Extrusions, a manufacturer of aluminum products in Cressona, where she earned about $10 an hour as a temporary factory worker.

Blatt worked at Sapa for about a month, before allegedly being told by a supervisor that she wasn’t physically well enough to work at the job and was no longer needed at Sapa, she said.

After being discharged from Sapa, Blatt said she personally visited Manpower’s branch office in Pottsville, in an attempt to return to work.

Irene Kudziela, branch manager of Manpower’s Pottsville office, allegedly told Blatt that a letter from her surgeon documenting her gender-reassignment surgery — along with a photograph of her genital area — would be necessary before she could return to Sapa.

Blatt, 28, said she found the request “repugnant” and “disgusting,” and declined to comply. She viewed the request as a form of sexual harassment, she added.

“I was shocked and disgusted,” Blatt said. “It felt like I was being reduced to a mere sex object. I was trying to work there in a dignified and private manner, but my dignity and privacy were constantly being violated.”

Jillian, there's a reason why this kind of thing isn't in any of the State, County, or City ordnances on the issue. It was troed in Gainesville, and we came close to losing that one.

ENDA wasn't a "bathroom bill" before this happened. But Barney's making it one. In an attempt to soothe his own fears on the issue, he'll give the Religious Reich a club to beat us with.

Unless genital inspections are prohibited, the Religious Reich - and some employers - will deem them mandatory to ensure compliance. And God help Intersexed people, whose genitalia may not conform to either male or female stereotype.

I think everyone should keep in mind that the EEOC has the right to issue regulations to define exactly how the bill will function in practice. Not everything is nailed down when a law is passed -- that would be impossible. I believe the EEOC would be sympathetic to these issues.

So take a chill pill. Your concerns are legitimate, but they don't mean we have to oppose ENDA. There is more than one way to get the results we want.

polargirl360 | May 12, 2010 3:57 PM

According to your p[ost that I am replying to, you state that EEOC has the right to define how the bill will function or in legal terms - interpreted.

EEOC is of course under the umbrella of the acting president. If you think that EEOC will provide a favorable intrepretation when the White House returns to Republican control or even under a transphobic Democrat who is always advocating for watering down bills until they are of no practical value like Obama appears to be and Clinton was, than you are delusional!

AN EEOC bill that will likely be intrepreted as requring an employer to know the genital status of a transgender or employee will certainly lead to abuse and degragation of such employee both legally and illegally. This kind of abuse is not yet rampant but will be when transpobic employees start complaining and using knowledge of the new law to push their employer to act against transgener and intersex employees.

That is why I oppose ENDA. The LGBT community should never have accepted anything less than full inclusion to the Civil Rights Act of 1964 since dozens of countries already provide equivalent protections to gay and transgender people on the national level. It's time to get with the 21st centruy already or America risks losing more talented employees to more progressive nations!

polargirl360 | May 12, 2010 3:43 PM

That's easy for a post-op with a secure job and political position to say.

Come back with no marketable job skills or recent work experience, and lack of surgery than tell us to take a chill pill you hypocrite!

Dr. Jillian T. Weiss

polargirl360 | May 12, 2010 4:04 PM

Dr. Jillian T. Weiss - Talks the moral high ground talk but never walked the lowest status in society walk

That's not true. Now you're just angry and you want to lash out. But you have every right to be angry.

It is true. You are white, you are middle class if not better, have your surgeries, and have your money.

You are not at all equipped to speak for poor trans women nor trans women of color, yet you claim that anyway with a flat dismissal.

You need to be less patronizing and dismissive. This is about OUR lives, not yours as a post op.

Please address people's questions here in a less flippant, dismissive manner. They are legitimate, even if you disagree.

I may not be poor now, but I've been poor. I'm post-op now, but it's not always been so. I never did claim to speak for poor trans women or trans women of color. I will be less patronizing and dismissive, but I reserve my right to disagree with you vigorously. Although I used the informal phrase "chill out," I didn't intend it as flippant or dismissive. I meant that one should not allow anger at a compromise to overcome the question of whether or not it holds important benefits for you. I also went out of my way to note that these concerns are legitimate. But I understand what it's like to be angry, what it's like to be left out, what it's like to have someone else tell you to be quiet. I have no problem with anyone here being angry. Even at me.

I understand your anger, Polar. I have not always had marketable job skills, recent work experience or surgery. I couldn't find a job, and when I did, the pay was minimal. That being said, I accept your criticism -- It's easy for me to say relax when I have reached a place of security. However, I do feel that ENDA will improve our situation generally, and particularly those who are experiencing workplace discrimination. I also feel the EEOC will create regulations that will help avoid some of the terrible situations we have been reading about in other comments. On the other hand, if we angrily kick it aside, we will harm our community substantially.

polargirl360 | May 12, 2010 5:09 PM

It's not anger, its cynicism.

Having lived in both Oregon and Washington and filed discrimination cases in both states which have gender identity protections on the books (The Oregon one was a disability rather than gender identity complaint) I have had to hear the most absurd of interpretations of the law.

Despite having an email (hard proof) that said physical only and not mental disabilities will be accommodated from the school, I still lost my civil rights complaint due to an absurd interpretation of disability law. To summarize, the investigator aid "Since the school did not specifically say they discriminate against people with mental disabilities, there is not enough evidence to pursue this further".

I have only two weeks left to file a civil lawsuit if I wish with no money or legal assistance despite it probably being the closet thing to a sure thing as possible.

My point is this: We are contending with more than just transphobia and bigotry in general here, most states are very pro-business and will give them all the abuse slack in the world to stave off threats of leaving the state and discouraging new businesses to move to their state. This is also does this despite having only one Fortune 500 corporation in that state.

Most states have only had 3-4 gender identity complaints per state per year in states that separates them from sexual orientation complaints.

Please give me a list of people who won their gender identity complaints with their state civil rights division. I believe that number is about zero!

Expecting a favorable interpretation over transphobes regarding this bathroom issue is wishful thinking at best. Expecting one over a major company who has considerable political influence and only covertly discriminated is delusional.

Employer mercy and compassion is the only thing we have going for us and that runs rather low.

The bathroom mockery and stigmatization bill will just stigmatize TGI people further and make more employers think twice about hiring transgender or intersex employees since hostile employees and their politcal allies including a future Republican President will subjectively interpret this law to function in their favor and press their employer for adverse action against TGI employees.

You're so right - the law is not about justice, it's about rules, and rules that are often bent in favor of the oppressor. I suppose what I have to say is that I understand your point that a compromise is dangerous.

polargirl360 | May 12, 2010 5:49 PM

Thank you for understanding my point.

I used to support ENDA before the bathroom provisions but now I must oppose it. I didn't have much hope for any real progress to be made with the old bill but it couldn't hurt then to at least have protections in writing that could be used at a later date when the governemnt got serious about improving the conditions of TGI people in society.

The bathroom aspect of this bill is just mockery and stigmatization written into law that will be intrepreted throughout most of this country (especially heavy red state appeals court circuits) to pressure employers to go along with it even when they didn't in the past thus making social image as well as actual rights worse rather than better for TGI people.

FYI, I changed the link for one-click access to Congress on ENDA to http://bit.ly/enda123 (all lower case). We've sent over 1400 letters to Congress in two days. If you support ENDA, please put this on your FB status and twitter. Note: This is sponsored by the Inclusive ENDA FB Campaign.

My emails were sent!

I am still a bit concerned over the bathroom issue because it will still end up being a stigma the way we will have to deal with it. But maybe we can work on that part later. The bigger picture of this bill would help so many people.

Jillian, thank you SO MUCH for your tireless work on ENDA! And happy birthday!

Jillian,
I wrote my senators and congressman re ENDA (I think they are all sponsors) and rec'd the following reply from one:

Thank you for contacting me regarding the Employment Non-Discrimination Act (ENDA). It was good to hear from you.

ENDA is a bill that would prohibit workplace discrimination based on sexual orientation. I am proud to have been a cosponsor of the original bill in the 103rd Congress, and have been a cosponsor in each subsequent congress. Senator Merkely (D-OR) introduced it in the 111th Congress on August 5, 2009 and I am a proud original cosponsor.

I strongly believe that all Americans deserve fair treatment under the law without regard to their sex, gender, race, religion or sexual orientation. Just as it is illegal in America to hire, fire or promote someone because of their sex, race or religion, there is no reason why employers should be allowed to hire, fire or promote someone because of their sexual orientation. Enactment of ENDA is long overdue, and I will keep fighting in to end discrimination in employment and other areas based on sexual orientation.

Notice, not one mention of trans protection. I called her office and was told that she supports the current version of the bill. Makes me wonder what the actual language of the bill is, in spite of assurances. I'm getting more and more inclined to agree with polargirl, that what is happening is more of "seperate AND unequal".