Almost 200 of the Fortune 500 companies have fully inclusive policies and about 40% of America's population live with state, county or local legislation covering the entire LGBT community with employment protections. Many state and local laws cover additional areas such as housing, public accommodations and some even cover credit. Right here in America! No problems! It's not as if we have to compare to laws and policies in Australia, Great Britain, or Israel.
So what happened? After all, ENDA is about jobs. Wasn't the whole nation concerned about our high unemployment rate? Weren't we talking about jobs? ENDA appeared to be the low-hanging fruit of equality legislation. Low-hanging fruit, indeed, only this fruit was left to wither and rot on the vine. And unlike the "rot" of d'Yquem this was not noble.
Honestly, I'm angry as hell and frustrated as well at either inability or the unwillingness to pass ENDA. I chatted with Speaker Pelosi in November 2009 when she spoke quite definitively and confidently of passing domestic partnership benefits for federal workers, ENDA, DADT repeal, and DOMA repeal in that order. A week later, ENDA went to committee for what I thought was a mild tune-up and action.
Try as I might, I could get no information about what was happening with ENDA. I heard that it was all about heath care legislation, but there was something more and no one was talking to me.
In February 2010, I questioned the Speaker at a breakfast after she had mentioned DADT as the only "gay" legislation. She expressed surprise at my question and implied that everything else was on track.
After that, we only heard about DADT.
Cutting Through the Bullshit
As far as organized DC lobbying with transgender inclusion, there was a NCTE event where we in NJ synergized with Garden State Equality and had a caravan of LGBT people and straight supporters come down to DC and meet with representatives and senators in a united front.
We saw that a new LGBT advocacy group had a half dozen or so people sit in at Speaker Pelosi's office to protest on behalf of ENDA. Wow was that impressive... Not! To me, that was counter-productive. Now, if they had 200 people, including families of LGBT people, parents, partners, spouses, siblings and children, that would have been a statement.
So, what did we hear from ENDA's prime sponsor?
'There were issues with the motion to recommit.''
Explaining the''issues,'' he said, ''Everyone thought we had the votes on the underlying measure, but it depended on what language the GOP [brought up] on the motion to recommit.
''Many felt it would be troublesome sign to take it to the floor and not to be able to overcome the motion to recommit.''
Frank expanded upon that, adding some specificity to the fears, saying, ''What they were worried about was a motion to recommit, like saying that an elementary school teacher can't transition in the middle of the year.''
I think that a reasonably well-versed person on the ENDA chronicles might brand this as bullshit. It appeared to be a redux of 2007, when there was supposedly a problem with transgender language that everyone knew about, but neither the bill's sponsor, the legislative leadership, nor the big beltway advocacy organizations did anything to address.
If there was some real attempt to address this so-called problem in an effective, direct and business-like manner, I am certainly unaware.
I thought This time it will be different. We have a bill that the President will sign, we have the momentum, and we have a Democratic Party that had gender identity in their convention platform and a Democratic Party that had "gender identity" nondiscrimination inclusion in their charter and by-laws.
There were also people available to address any Congressperson's concerns, available to educate on a one-on-one basis if given the opportunity. Those people had a track record of reaching across the aisle and bringing in votes for transgender inclusion in legislation. There was also a former well-respected Republican Congressperson who expressed an interest to help, one who actually had a personal friend who is transgender.
The Transgender Boogeyman
The great fear was a motion to recommit regarding transgender language. With senior Republican Congresswoman Ros-Lehtinen supporting the bill, how far would they go to demonize her transgender son?
So what did ENDA's prime sponsor do? Did he pick up the phone and make a call to his former colleague? Did he make any attempt to facilitate the use of people that had a track record of success?
I recall visiting a "blue dog" Democrat from the South, getting direct access thanks to a Democratic LGBT activist from his state. We hit it off because I could relate to things as we were both vets. He said that I was the first transperson he ever met and had several pointed yet relevant questions, which I answered. I had his vote.
The same day I visited an uncommitted Senator and met with his senior staff. We had a productive conversation, where they had some good questions. Strangely, they had one question that required a detailed answer, which I found on HRC's website. Did HRC ever speak to them?
If there was a problem with teachers, why not address it directly? There are teachers who have transitioned successfully across the country. Bring them on!
"As to that education, Frank had a message for LGBT advocates, saying, ''In the interim what the community needs to do is educate on the transgender issue.''
The point was echoed by the Democratic leadership aide, who said ''there has not been the work done by the community in the Senate'' to ensure the passage of an inclusive ENDA."
Barney Frank has said this before, and he was saying it again, even after he said that advocates had been doing a good job of educating. That was a bit of mixed messaging.
As far as the Senate is concerned, it was very quiet. In April of 2010, I met with Senator Merkley's staff as well as Senator Reid's people and they were both on-message that the House needed to pass it first and that it would be very helpful if there were some "blue dogs" and genuine moderates to have voted for it.
But what do we get when it comes to messaging from ENDA's leader?
As Barney Frank said:
I would point out to you that they still have not been able to get transgender protections in liberal places. If you can't do it in Massachusetts, New York and Maryland, it doesn't get easier when you add in South Dakota, Oklahoma and Utah.
Now that's really encouraging. Some people look at a glass and see it half full and others see it half empty. He points to liberal places where transgender protections have failed; there's Massachusetts, which has marriage but no state-wide trans protections. It does seem perverse, but it probably says more about the LGB political infrastructure and how inclusive it is of the T. Why can't we look at the success stories of Minnesota, Maine, and Colorado, states that aren't the most liberal in the US?
What Can We Learn?
Did those liberal states really have a desire for transgender inclusion? Did anyone reach out to folks from, say, New Jersey where we passed a transgender law that covered employment, housing, and public accommodations in the shortest period of time (less than two years from its introduction) and passed by the widest margin (102-8)? (I'm still ticked at two Republicans who said they would vote Yes and instead abstained.)
Did anyone ask what we did in New Jersey, seek our advice, bring our legislative advocates in to help? Did the LGBT community work in unison? Did the transgender activists and marriage equality activists work together and actually create a synergy and a larger footprint?
When we spoke about transgender rights, did we have one set of talking points? One size fits all? No, we had one set for Republicans and one set for Democrats and could freely supplement. Were there talking points for "non-liberal" people of faith? Did we micro-target when necessary? This wasn't rocket science.
It appears that ENDA is dead now and it should be buried and put to rest! We need a new LGBT non-discrimination bill that is more comprehensive and we need new lead sponsors without the baggage of he failures of the past which have fostered cynicism and a lack of trust that is expressed vocally and in the blogs by many of the folks who are in the most need of such protections. We need new "blood" and "fire" from people who express a comfort level with full inclusion.
LGBT inclusive legislation that covers multiple categories of employment, education, housing, public accommodations have records of success in several states and there should be a wealth of stories of discrimination - as well as a wealth of success stories where such legislation works and the sky did not fall.
We seem to be obsessed with the failures, but we should focus on the wins and learn from them and build on them. Every arena is different and has different ground rules, but the basic game is still the same. We adjust and move!
Failure Is Not an Option
I recall in the spring of 2005 trying to get a NJ Senator to introduce and sponsor our "transequality" legislation. We went after the most liberal Senator who refused, and we couldn't even get the state ACLU to support it. The reasoning was that they both thought they were doing the transgender community a favor since they thought we'd fail and, in doing so, lose what few protections that some transgender people had as a result of an appellate court decision!
Fail? Failure was not an option! But the uber-liberals had decided to be our gatekeepers and had already pre-judged our fate!
We just changed some tactics and had a prior political investment later reap dividends and all the Senators who originally said no, or refused to say anything, well, they all came around!
We cannot afford a "defeatist attitude on an inclusive ENDA, we need reality and a willingness and desire to push envelopes and sell it!
Some will say, what about amending the Civil Rights Act (CRA) or an LGBT Omnibus Equality Act? Both are worthy and noble! Certainly LGBT equality is about civil rights. An omnibus bill would address every bit of legal inequality and should be there at the very least as a reference for all to see where we are 2nd class.
As an author of The Dallas Principles, I want full equality now. No delays, no excuses! But I am also a pragmatist and realize that we must create the conditions for now to be now! Suffice it to say that neither bill appears to have support among some of our key allies. There must be a shorter and more direct way to now, and that is via a path that has worked in many states!
We have two years to put in a new bill and "work it" anew, while we make a much better effort to elect pro-equality legislators who will elect a pro-equality leader! For those who demonized the Dems, better get used to Cryin' John Boehner. He's got real alligator tears for our community.
For my Republican friends who insist that Boehner and Cantor really don't want to demonize LGBT people and deny us the opportunity to life, liberty and property, I say, "Show me." I hope I'm wrong, but show me in action; I've worked with both sides and give credit where credit is due!
So, who really gives a damn about LGBT employment, jobs or housing? And what are we doing to make sure it happens?