Guest Blogger

ENDA: A separate water fountain for LGBT people

Filed By Guest Blogger | August 30, 2010 11:00 AM | comments

Filed in: The Movement
Tags: Employment Non-Discrimination Act, ENDA, LGBT discrimination, separate water fountain, Tif Fernandez, Todd Fernandez

Editors' Note: Guest blogger J. Todd (Tif) Fernandez is a volunteer activist with a Masters of Law in Human Rights from the University of Pretoria, South Africa, and a JD and BA from Boston University. With a past career in state government and as a composer and writer, he's now pushing the Public Whip Count at ActOnPrinciples.org, and "Comprehensive=Inclusive Immigration Reform" with Out4Immigration.org.

Todd-Fernandez.jpgGetEqual has done an amazing timeline on ENDA. But it has one major misleading flaw.

After correctly listing that in 1974, NY Congress people introduced a bill to directly amend the 1964 Civil Rights Act to add "sex, sexual orientation and marital status," the timeline then makes a misleading connection to that strategy. Here's the too-clever transition moment in the timeline:

"1994 -- The modern version of the Civil Rights Amendment, now called the Employment Non-Discrimination Act (ENDA), is introduced with gay-only protection without public accommodations or housing provisions."

This is misleading because it suggests that ENDA IS an Amendment to the Civil Rights Act (CRA). When in fact, ENDA is a separate law, apart from the CRA. A separate and unequal law JUST FOR employment non-discrimination covering "sex. orient. and gender identity" (SO+GI), whereas "race, color, sex, national origin, and religion" are protected from employment discrimination UNDER (IN) the Civil Rights Act (Title VII).

ENDA is a separate water fountain - for the gays! And no one is saying it!

This makes ENDA a scam - because I for one didn't realize this until I studied the bill.

Here is the text of ENDA.

Interestingly, ENDA looks, smells, and sounds similar to the CRA (and it references the CRA many times for enforcement etc.), but doesn't put us in the CRA, because back in 1994 (and supposedly today) - the NAACP, NOW, etc. (the groups currently protected by the CRA) told the gays to STAY AWAY - DO NOT TOUCH - the CRA. And we obeyed, supposedly for "allied" support, which hasn't helped pass the bill in 16 years. Yet still, we obey.

It was "their law" and "civil rights" belonged to the black civil rights movement -- and those groups asserted then, and the NAACP still says, that they are afraid of making any changes to the CRA that might open the law up to Republican attempts to water down THEIR protections. So we did our own - for gays only - and we are STILL not yet asking for equal treatment and inclusion in the CRA.

How long will we allow the "fears" of protected groups to justify our exclusion?

And what does it say about US that we are STILL NOT even ASKING for equal inclusion in the CRA?

No one is being honest about this. If it passes, as is, Pres. Obama will go down in history as a mixed-race President who created a separate water fountain for gay people in employment discrimination. The law that protected HIS JOBS since he was a child (born in 1961, CRA passed in '64) WILL NOT INCLUDE US.

Those laws - called the CIVIL RIGHTS Laws - do more than end discrimination, they are a statement of U.S. policy AGAINST discrimination which says everyone protected under them are equal - race, color, sex, nat. orig., religion - all traits and covered groups - are equal to one another. By putting us apart - we are saying the opposite.

Even after/if ENDA passes, we will still have to fight to GET IN THE CIVIL RIGHTS ACT - in an equal way. We will still not have "Civil Rights" for us.

I REALLY WISH our community would START TELLING THE TRUTH ABOUT ENDA. If we know and tell the truth - and decide to accept this 2nd class citizenship-strategy, then FINE. But let that be a decision made in full disclosure.

The wording "the modern version of the Civil Rights amendment" - is misleading in an highly subtle way. This is not an amendment to the CRA, in any way, and not the equivalent of the 1974 bill filed by Ed Koch and Bella Azbug which, as I understand them, DID PUT US IN THE CRA - because at the time, we felt we were EQUAL to "race, color". Now we act as if we are not, because those groups told us to stay away, and we still bow to that social pressure which is nothing but homophobia misrepresented as fear.

WE CAN FIX ENDA - and put "SO+GI" in Title VII of the Civil Rights Act. But this will take PRINCIPLE and SELF-RESPECT, which our current movement does not have.

Here is that language (Drafted by Karen Doering):

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, is amended to add "sexual orientation" and "gender identity" as prohibited basis' for discrimination in employment. Sections 2000e-2(a)-(d), §2000e-2(h), §2000e-2(j), §2000e-2(l), §2000e-2(m), §2000e-3(b), 2000e(g)(2)(A), §2000e-16(a), and §2000e-16(c), are amended every time the phrase "race, color, religion, sex, or national origin" appears to include after the word "sex" the following words:- "sexual orientation, gender identity,".

THIS IS WHAT EQUALITY UNDER THE LAW LOOKS LIKE. (And this is what The American Equality Bill calls for).

History will reveal the truth of this, and all involved will have brought dishonor upon our community and themselves. Are we that desperate? Do we think that little of ourselves?

Sorry GetEqual friends. I know you did not create ENDA or this 2nd class strategy. I know you're just trying to help move the existing agenda and hold folks accountable, and I wholeheartedly applaud that work.

But this timeline perpetuates the fraud. Please fix the timeline, or you and your supporters (including me) become a knowing party to the conspiracy.

You have to wonder: WHERE IS THE LGBT PRESS ON THIS? WHY ARE YOU NOT QUESTIONING THE DRAFTERS OF ENDA ABOUT THIS?

THE WHOLE POINT of our cause is that we are telling THE TRUTH. We are equal beings. Homophobia does kill. And we are entitled as a matter of human rights law and philosophy to be included fully in America's non-discrimination laws, which we call The Civil Rights Act of 1964.

To get there, we have to start telling the truth about ENDA.

[BTW: ENDA IS NOT REALLY GAYS-Only EITHER. And that's important, but not easy to capture in a soundbite. ENDA is not really a gays-only law because it covers "Sexual Orientation" which could be straight, bi, or gay, and "Gender Identity" which covers the full range. Obviously straight people and gender conforming people don't suffer discrimination like we do, and are not really the point, any more than "race and color" were intended to protect white people.]


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I'm glad you had the guts to bring this up. You asked: "History will reveal the truth of this, and all involved will have brought dishonor upon our community and themselves. Are we that desperate? Do we think that little of ourselves?" Keep in mind that gays and lesbians were so desperate to have something, anything, that they kept out trans people all the way up to 2007 just so they wouldn't "offend" any Congressperson. They learned that move from how they were treated by people covered in the Civil Rights Act, while all along, settling for a bill that will not cover them as much as the CRA. At this stage of the game, don't expect gutless organizations, like HRC for one, to fight for what we really need.

Based on my limited understanding of what all the legal implications might be as to what you are proposing, I don't think I could agree more.

I think what you are proposing would probably have a positive impact on achieving marriage equality which would have a large impact on discriminating people into two sexes, mostly based on reproductive potential or the ability to have sex that is similar to sex for reproductive purposes. If it were possible to resolve the problem of sexual orientation discrimination, I question whether such an amendment, even if it includes gender identity, will ultimately resolve every issue where there is discrimination into two sex categories.

This is not a problem for people where the only concern is their sexual orientation. It is a concern for transgender, transexual and intersex people, however.

From what I understand, the U K Equalities Act of 2010 has provisions that will discriminate against people who have received their Gender Recognition Certificates in some ways that are not so subtle but controversial, though, not without more subtle implications, such as discrimination involving qualifications for female sexual assault counseling and in many more subtle ways, also, such as people who have their female "gender" supposedly "recognized" being required to apply as males for the purpose of obtaining car insurance. I have the impression the problem reaches much further than that, too. Then, there are problems with intersex births and the having the full implications of having intersex recognized in a way that is not skewed by the biases of some medical researchers or sex assignments based on "normalizing medical treatments".

I think, regardless, people should be very wary of being shunted into third categories and the ghettos that would be created by them. I think the full implication of sexual diversity has to be acknowledged by everyone. People who are Gay, Lesbian, Bi, Straight, Transgender, Transsexual, Queer, Questioning, Straight and even a lot of intersex people are not up to speed regarding current biological understanding of sex diversity. At this point in time, with a modern day understanding of genetics it should be understood that there are no clear lines dividing race or sex. The de facto realities of race and sex should be understood by the imprecision involved in the perception of such human phenomenon. Even where sexual orientation is concerned, many people are not purely gay, lesbian, or straight.

No one's talking about this? That's news to me - we've been talking about this for years both here and elsewhere.

I'm not getting how the "separate fountains" analogy applies here. That doesn't make sense - ENDA isn't a public accommodation in and of itself, but a bill to provide workplace protections. In other words, you're saying we're not being treated equally to other oppressed groups, while the drinking fountains were a sign of inequality between an oppressed group and a dominant group. That's a big difference - it turns the fountains image from one of asking to get our fair share to one of taking someone else's hard-earned, not-quite-enough-to-be-fair share.

Anyway, like I've said on other threads and no one ever answers, do we really believe our current problem is that we're not asking for enough? That Congress has delivered on all its promises and we're in danger of going home without a good bill? They aren't willing to stand up to the Religious Right to get ENDA passed, what makes anyone think that they'll stand up to everyone to get us added in to the Civil Rights Act?

I agree that that would be the best policy solution, but the problem isn't a lack of "principle" on behalf of LGBT people (I think we're a decently principled bunch). The problem is that nothing has getting through this Congress for a variety of reasons, including political cowardice, the fact that we're fairly powerless, and that our Democrats are a bit to the right of the Republicans of yesteryear.

Also, since you're indicting the NAACP and NOW, do you have any links to them telling us to keep out of the CRA? More importantly, any proof that they're the real reason? I'm thinking our problem is people who have power trying to keep it away from us (people of various backgrounds), not the blacks and women trying to oppress LGBT people.

And we all know that ENDA isn't gays-only. We fought to keep it trans inclusive. It was in the news three years ago. It was a big deal.

Chitown Kev | August 30, 2010 3:45 PM

Alex, IIRC, Fernandez is right about the NAACP and NOW being against that, but I think the sources are from the 1990's (did I read this in Vaid's "Virtual Equality"?); i have read about this.

While there may some, largely symbolic, advantages of amending Title VII of the Civil Rights Act of 1964 to include sexual orientation and gender identity, rather than passing ENDA as a standalone bill, your premise that ENDA will somehow give us fewer protections than amending Title VII is flawed. If you compare their operative provisions, you will see that the language is identical.

Section 703(a) of Title VII (42 U.S.C. sec. 2000e-2) states:

It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Compare that to section 4(a) of ENDA (HR 3017):

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, conditions, or privileges of employment of the individual, because of such individual’s actual or perceived sexual orientation or gender identity; or

(2) to limit, segregate, or classify the employees or applicants for employment of the employer in any way that would deprive or tend to deprive any individual of employment or otherwise adversely affect the status of the individual as an employee, because of such individual’s actual or perceived sexual orientation or gender identity.

Other than the list of protected groups - race, color, religion, sex, and national origin in Title VII vs. sexual orientation and gender identity in ENDA - the provisions are identical. Furthermore, under standard rules of statutory interpretation, laws that have similar purposes, e.g., remedying employment discrimination, and use similar (or, as in this case, identical) language are interpreted similarly. Therefore, case law interpreting Title VII will be looked to in deciding the proper application of ENDA. In addition, as you acknowledged, the Equal Employment Opportunity Commission, which enforces Title VII, will also be charged with enforcing ENDA. That, too, will help ensure that both statutes are applied consistently.

I, too, would prefer, largely for symbolic reasons, to have sexual orientation and gender identity added to Title VII, but to claim that we won't get the same protections under ENDA that we would under Title VII, in other words, that passing ENDA will result is unequal treatment, is simply wrong.

I was unaware that ENDA protected LGBTs from discrimination isn "hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce" because the CRA does that. ENDA is only jobs, we need more than just that.

polargirl360 | September 1, 2010 3:25 PM

Civil unions and same sex marriages are often equal in language but never in effect!

Those who learn nothing from history repeat it!

As Vene mentions, ENDA is VERY limited in that it only covers employment -- with a bunch of employers (not just religious) exempted.

And then there's all the hand-wringing about bathrooms and such.

Let's just declare everyone a "protected class" and be done with it. Stop talking about who to include, incrementalism, etc.

None of this changes the reality that we don't have enough votes in the US Senate. Elections do that.

Our goal should be full equality, not faux "protections."

I think individuals have discussed adding sexual orientation and gender identity to the CRA. It just hasn't been discussed at an organizational level.

And the problem is the current political process is messed up. The CRA, we should remember, was filibustered for quite some time (wasn't it like 80+ days?). Now the GOP is filibustering even non-controversial bills.

The GOP is in lockstep...they're not going to vote for a queer bill. They filibustered unemployment benefits for cryin' out loud.

I like the idea of the American Equality Bill, and I think we should try to move it. That being said, the CRA amendment idea been dormant for thirty years, and I don't think we should give up on ENDA unless and until the new bill has reached a place where it has a fighting chance. We must get someone to sponsor it in Congress, first.

As long as ENDA will not prevent us from getting full equality later, I will stand behind it as some protection is better than the zero protection we have now. I think we can let the legal teams haggle these details out later but I'm not saying these are *just* details. You bring up some very important and valid points. It's just that momentum is currently behind ENDA as it is now and any nitpicking will delay what we need ASAP. ENDA will get us by for a bit I think, won't it?

I'm just seeing (Nov. 22, 2010) that I missed this whole conversation when it was posted. I hadn't realize this submission had made it. Ha.

Of course, now that ENDA is supposedly dead in Obama's 1st term, the conversation shifts a bit.

Does it now make more sense to expand our movement demand (via a bigger/comprehensive legislative strategy) and the CRA?

Wouldn't give us something amazing to organize around, something to inspire coalition building, to build momentum around? To inspire period.

Since this was written, it's been a busy time, with the AEB, the Queer SOS, and the Grand Central Die-In, which have gotten a lot of news (though not much here on Bilerico oddly).

To join the AEB Project in motion, please go to:

http://bit.ly/AEBnow.

For organizational endorsements of the AEB - see: wwww.eQualityGiving.org