Dr. Jillian T. Weiss

LGBT Bar Speaker Highlights GetEqual's ENDA Timeline of Broken Promises

Filed By Dr. Jillian T. Weiss | August 27, 2010 3:00 PM | comments

Filed in: The Movement
Tags: Get Equal, GetEqual, Jenner & Block, Lavender Law, National LGBT Bar Association, Paul Smith, Ropes & Gray

At the opening plenary at the National LGBT Bar Association this morning, before hundreds of lawyers from around the country, there was a panel presentation entitled Real Change: LGBT Issues and the Administration.

There were several speakers on the panel, including some from the Administration, as well as Paul M. Smith, a partner in the venerable D.C. mega-law firm of Jenner & Block.

Mr. Smith is no wild-eyed radical. He heads up the firm's Appellate and Supreme Court practice and is co-Chair of the Board of Directors of Lambda Legal. He argued on the winning side in the 2003 Supreme Court case of Lawrence v, Texas, which overturned the sodomy laws, as well as a dozen other Supreme Court cases. He's being honored this year by the National Law Journal as one of the 40 most influential lawyers of the past decade. He attended Yale Law School and clerked for Supreme Court Justice Lewis Powell.

I couldn't believe my eyes when he held up a copy of GetEqual's ENDA Timeline of Broken Promises, and waved it before the assembled throng.

The other members of the panel included Elaine Kaplan, General Counsel at the US Office of Personnel Management, Matt Nosanchuk, of the US Attorney's Office, Jon Davidson, Legal Director of Lambda Legal, Tobias Barrington Wolff, law professor at the University of Pennsylvania and who formerly worked with President Obama's campaign, and Courtney Joslin, law professor at UC Davis and chair of the ABA Commission on Sexual Orientation and Gender Identity.

The members of the Administration first defended the Administration's record on LGBT issues, and I must say they were rather convincing with regard to specifically the numerous things the Administration has moved on. I was a bit surprised at their claiming credit for the legislative progress on hate crimes. If you're going to claim credit for legislative accomplishments, then it's not illogical for people to ding you for lack of progress on other legislative initiatives that you supposedly support, like ENDA.

But then Jon Davidson spoke, and listed a dozen items that he felt the Administration should be doing. He also specifically mentioned the Congress and its poor record.

And then Paul Smith spoke. He has a natural authority and authenticity that charms his audience, and despite my residual tiredness from last evening's activities (remind me to tell you the story), I found myself interested in what he was saying.

He discussed the legislative agenda, and specifically referenced ENDA, saying that he did not understand the argument by Speaker Pelosi that work on ENDA had to stop while DADT repeal is proceeding.

He then held up a sheaf of papers, and waved it at the audience.

"I went to the internet and printed out from GetEqual's website a list of the promises that have been made on ENDA, and it's astounding the number of promises that been made over the years. I don't understand why no progress is being made on this."

I wanted to stand up and cheer. I went to him afterwards and thanked him for raising the issue.

Why isn't any progress being made on ENDA? Why have so many attacked GetEqual for raising the issue of these broken promises? Thank you, Mr. Smith, for being courageous and authentic in raising these broken promises and seeking to hold our political leaders accountable.


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You lose a lot of credibility Jillian when you suggest "broken promises" regarding ENDA. I understand the frustration - but there wasn't a single "promise" made by any politician regarding ENDA. They used words like "try" and "hope to" and their "goal."

Look at all the so-called promises from 2010 @ http://getequal.org/2010/07/enda-timeline-broken-promises/ and you won't find a single actual promise.

Yes, ENDA should be pursued and hopefully there will be enough votes in the Senate to pass it, but claiming "broken promises" and then complaining in the streets is inaccurate and disingenuous. It is also a lie.

Most of the references by GE on their website speak of politicians hoping for a vote or for a markup in Committee or making the "passage of ENDA a goal."

Pelosi didn't make a "promise."
Barney Frank didn't make a "promise."
Chairman Miller didn't make a "promise."
Obama didn't make a "promise."
Chairman Kaine said "“We’re going to do everything in our power to pass the Employment Non-Discrimination Act.” (A very "subjective" statement).

No politician ever "promised" anything about ENDA - they simply played politics.

Go ahead, get angry because there hasn't been much progress this year - but, you lose all credibility when you claim "promises" that were never made.


Do you do anything else but sit around and rain on people's parade, Andrew W?? I've seen you on almost every queer blog I go to, including once I've managed.

JUST STOP.

Jillian, great post.

Rain? At the very least we can be honest about our LGBT efforts and organizations.

They used words like "try" and "hope to" and their "goal."
So?

If they don't actually try and don't really have ENDA as a goal, then I'd say 'broken promises' is being charitable.

What's the alternative? They have been our allies, but they don't have enough votes in the US Senate. What do you expect "magic?"

George Byrd | August 27, 2010 11:48 PM

Andrew,

If a friend of yours says, "I will meet you at 8pm," and they don't show up, they don't get a free pass by saying, "I didn't *promise* I'd meet you at 8pm, I just said I would."

Countless Democratic politicians actively courted the LGBT vote and our dollars, by saying they would fight for our rights. Whether they used the word 'promise' is irrelevant. No one thinks they promised to pass ENDA. What they promised is to *try* to pass ENDA, and all we're getting is excuses why they can't, with no actual trying occurring.

That is exactly my point - the Democrats said they would do their "best." They said they would try. They very carefully said everything but "promise," because they know they CAN'T make those promises ... because they don't have the votes.

This whole suggestion that they could have done it, but didn't because they were lazy or dishonest or afraid is childish. They don't have the votes.

I know Jillian and the children at GE think politicians are magicians, but the reality is we don't have enough votes to pass LGBT-legislation. Recognizing that fact, instead of acting like children crying about "broken promises" that we never made, might actually lead to some effective efforts to create change. Complaining isn't a strategy.

That is exactly my point - the Democrats said they would do their "best." They said they would try. \

And they haven't done their best. It's not just a matter of votes, it's a matter of energy and emphasis.

And they've FAILED, FAILED, FAILED.

You ask, elsewhere, what the alternative is.

The alternative is war, and it is time for it.

War? How will that work? Instead of just yelling at people we should threaten them? Maybe try some terrorism? That's just crazy.

It IS about votes. All of the childish upset about Democrats and faux "promises" doesn't get us the necessary votes. We cannot pass anything in the US Senate. THAT is the problem. Fix that instead of complaining or "going to war."

Denying that we need enough votes in the US Senate is childish. Making believe that you can shout people into submission is equally stupid.

Gosh, there I go again. Sorry I ramble on like I do! Reminder to self. GetMEDS.

Go GetEQUAL!

Now the GE strategy is to prevent conversation?

How childish. Predictable, too.

The struggle for Equal Rights has been going on in the US since this country's beginning, plus it took 8 years for 'The Party of NO' to create the economic mess that we're now in. Still Barack Obama & the Democratic Party in this lame session of Congress are supposed to have DOMA, DADT & ENDA along with Marriage Equality and economic recovery signed, sealed and delivered in less than two.

Are we really being logical with this, expecting everything all at once in less than 2 years, no less, when we have a Congress that refuses to cooperate without a filibuster on everything and the economy in shambles plus there needs to be unlimited horse trading to get anything accomplished?

Obama’s accomplishments: http://owiki.shoq.us/

Renee Thomas | August 27, 2010 6:19 PM

“You lose a lot of credibility Jillian when you suggest "broken promises" regarding ENDA. I understand the frustration - but there wasn't a single "promise" made by any politician regarding ENDA. They used words like "try" and "hope to" and their "goal . . . "

Andrew,

For the record, you don't understand a goddamned thing.

Jill,

Thanks - your post was excellent and encouraging . . . as always.

I understand you don't care for the truth. That's your choice.

Apparently, "You can't handle the truth!" And, when you get older, you will finally lose those rose-colored glasses of youth, you may actually see when someone it telling you the truth or not. Until then, I guess we'll have to put up with lack of support for our community.

(49 words and 0854 EDT. Let's see how many words he uses to try and "counter," and how quickly he does it. It will be directly proportional to the amount of free time he has on his hands. Maybe this is his way of crying out for attention? We should set him up with a boyfriend to occupy some of his time.)

Brilliant. Just brilliant, Monica.

Jillian Great Post!

Yea, AndrewW, Any of our current politicians really do not make promises. They seem to hedge thier bets! An implied promise, is still a promise. It is not like the Promise Joe of HRC made at the 2007 SC. where he said that Transexuals were included in the E.N.D.A and with in two weeks HRC Dropped us from the bill! Jillian is a class act and you really can believe her Statements!

Broken "implied" Promises. Got it.

Why nothing done on ENDA.... because although we thought we were voting for Democrats all we got are DINO's... that's why.
The OBAMA Whitehouse will do anything to capitulate to Republicans wishes about everything! Message clear... we get it.

Using words like "support", "committed to" imply they will pass the legislation. Quibbling about the word promise is nitpicking. Jillian lose credibility? Never.

I think this is fantastic. It's time to scream hard on ENDA. Waiting 16 years is just insane.

"Screaming hard" will create votes? Is that all it takes? More volume?

Bill Perdue Bill Perdue | August 28, 2010 11:21 PM

Spoken like a true Democrat.

I'm not a Democrat Bill. Insult someone else.

Bill Perdue Bill Perdue | August 29, 2010 11:29 AM

Well then exactly what are you? A Demsymp? A fellow traveler?

Are you now or have you ever been a member of the Democratic Party?

Independent - like most of America. I have never been a member of the Democratic Party. Never will be, either. Most of politics is a waste of time. It has become a sad pass-time in America. In fact, I can't point to anything significant that any President or Congress has done in the last 30 years. Nothing.

The Far Left and the Far Right each represent about 20% of America. The other 60% likely view things similar to the way I do - it isn't "us against them" like the extremes and we're not going to pick a side. Not every Liberal or every Conservative idea is either right or wrong. The whole Fox Vs. MSNBC grandstanding isn't productive or even helpful. Many of us laugh at both sides.

Plus, our difficulty comes from religion more than any political party or ideology.

In fact, I can't point to anything significant that any President or Congress has done in the last 30 years. Nothing.

In the last 30 years, the President and Congress have invaded Grenada, Panama, Iraq and Afghanistan, killed tens of thousands of civilians and added $8 trillion to the national debt. Yet this doesn't qualify as "significant" to you?

You are one strange dude.

No Sam, that strikes me as stupid. Significant would imply positive. I cannot find anything in the last 30 years that any President or the Congress has done in the last 30 years that has had a positive effect on our lives. I can't even think of a single problem they have solved. Clean energy has been a big problem since the 70s, but they have NEVER solved it. Education and the condition of our schools (most are more than 40 years old) has been a "priority," but, again no solutions. Our government hasn't solved anything in the last 30-40 years. Healthcare only got worse this year. I'm not sure why some people still believe someday they will. Why anyone thinks the "President" will finally solve it has any basis in reality. Obama rekindled "hope" only to deliver frustration. He is a pragmatist - he will never take a risk. That's politics.

ALL of our progress as a nation has been the result of individuals making discoveries, providing solutions and innovating for a better life. Politics can't claim any "success." None. Why we keep playing that game makes very little sense - if any.

There is no "political" solution to our equality. It's our job. We can trust each other - we can't trust politics.

You just change the rules to suit your arguments, andrew. Just like the politicians do.

You certainly seem like a dem shill to me. Who exactly do you work for? Pelosi? Frank? HRC perhaps? Maybe even Mara Quis....errr....Kiesling?

Significant and positive are not the same, regardless of what you think.

Unfortunately, for as much as you yap about on the internet, you are neither.

Where's the plan, messiah?

Bill Perdue Bill Perdue | August 30, 2010 1:58 AM

I'm stickiong with Demsymp.

To my knowledge (and from what I have read on the various gay blogs), fair critics of GetEqual don't question them on issues. Critics question the tactics used by GetEqual. That's always been very clear to me. Please don't misrepresent reasonable criticism.

I find it hard to believe anyone can argue against ENDA passage. Even more difficult to believe is that a Democratic Congress and President who claim to support legislation such as ENDA did not get it done. However perhaps even more amazing is to read those here who given their comments seem to not support efforts on anyone's part to move ENDA forward. With polls coming out that a majority of Americans support same sex marriage, that legislation such as passage of ENDA and removal of DADT are even further overdue. That it is our leadership who we helped to elect, and promised us to move the LGBTQ cause forward who is stalling the matter and behind the American people on these issues. As someone said recently on some news broadcast I happened to be listening to DOMA is no longer a Progressive or Conservative issue it is a Civil Rights issue and should be treated by both parties as such. If that is the case that some are finally understanding in regard to Same Sex Marriage, then it should be all the more true for ENDA and DADT. We are being stonewalled by both parties and the sting of realizing that those we helped elect are almost as bad as those we worked to get out of office after eight years of stonewalling us. Obama, Pelosi, Reed,and Miller have failed us, but sadly there is little evidence to suggest that the Republicans who are catering to the Tea Party in many cases have any intention to change either. This said it is only when everyone who has any interest in this issue stands up and makes it known that we will see things change. Not just the most openly Gay or Lesbian, but the Transgendered - all of them including those buried in the closet. Those who care about those of us who have been tagged LGBTQ such as supportive friends and family. It will not happen until everyone speaks with one voice and demands the equality across the board for everyone. So from what I can see Get Equal is at least speaking up and holding those who claim to support our rights to their words. Those who cannot at least find some level of support for that much should consider at least not trying to stop those who might actually still hope some manner of progress may still come out of an otherwise disappointing last two years.

It is simple, we do not have enough votes in the US Senate. It will only get worse in November.

You almost has the answer Joanna when you suggested " It will not happen until everyone speaks with one voice and demands the equality across the board for everyone." It isn't the "demanding," it is about getting enough people to stand with us.

So, instead of complaining about promises that were never made (and in fact, if were made could not have been kept), we need to change minds. Nothing GE does changes any minds. No amount of complaining - whatever the volume - changes any minds, hearts or votes. Conversation does. Understanding does. Education does.

There is one MAJOR flaw with this timeline, when it jumps from the 1974 bill which was a REAL amendment to the Civil Rights Act (CRA) that would have included us, to the "modern version" that is ENDA, which is a "separate water fountain" of employment non-discrimination just for the gays.

Here's the sneaky 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).

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

Here is the text of ENDA.
http://www.govtrack.us/congress/billtext.xpd?bill=h111-3017

IT'S NOT REALLY GAYS-Only EITHER: ENDA is not really a gays-only law because it covers "Sex. Orient." which could be straight, bi, or gay, and "Gender Identity" which covers the full range. But it puts SO+GI - intended to protect gays of course -- in a separate law, like a separate water fountain for the gays. Obviously straight people and gender conforming people are not really the point.

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.

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 fountains for gay people in employment discrimination. The law that protected HIS JOBS since he was a child (born the same year the 1964 CRA was passed) 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 (http://bit.ly/AEBillonFB)).

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 whole heartedly applaud that work (and please stop Andrew W, or go fight HRC, or role out your plan!!!!!).

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

FINALLY: WHERE IS THE LGBT PRESS ON THIS? WHY ARE YOU NOT QUESTIONING THE DRAFTERS OF ENDA ON THIS?

"and please stop Andrew W, or go fight HRC, or role out your plan!!!"

Thank-you for your enthusiasm and your efforts Tif. I agree with you that we need to give thoughtful consideration to our strategies and hold organizations accountable - even for the messages they promote.

As for the comment directed at me - I do not need to fight HRC they are going out of business. They are a self-serving non-profit without a strategy. GetEqual is even worse - as you have pointed out - they are either unaware or intentionally misleading in order to perpetuate their existence. They are ignorant. I hope Jillian educates them and takes a stand for honest, objective efforts to make progress.

Last week Jillian claimed "the large majority of our community suffers from discrimination" and this week there is the "broken promises" that were never made claim. Both are lies. Neither will save the childish behavior of GetEqual. They wasted $500,000 and never changed a single mind about the LGBT community. Not one.

I don't agree with being included in the CRA, but I really appreciate your efforts. I think you are educating people, not pissing on them or trying to "embarrass" them.

Why have so many attacked GetEqual for raising the issue of these broken promises?

Is GetEqual going down the "Boo-hoo us" path? It's not supposed to be about them.

Anyway, I don't think it's that surprising that Smith would print out that document from GetEqual. ENDA isn't radical, GetEqual isn't radical, and, from your description of him, Paul Smith isn't radical. But they're all liberal and generally pro-LGBT. Not that that makes any of them bad, but it's just unsurprising to see all three in the same speech.

And AndrewW, seriously, I don't see the problem with them raising awareness on this. It only motivates people to act.

Alex, seriously, if they were simply "raising awareness" and informing people maybe that would "motivate people to act." But, childish publicity stunts that simply raise eyebrows don't motivate - they irritate.

Like many in the LGBT Community I am anxious to see if Jillian (and the other adults) can give GetEQUAL some substance and direction. Maybe they will eventually "raise awareness" and that would be helpful, but that hasn't been their history.

If we had total equality, wouldn't these people be out looking for work?? What's the mystery?? I want to keep my job too. Oh, wait, I'm trans, I can't keep my job until those laws change and those other guys are looking for work. Oh well, someone has to make the sacrifice.