Guest Blogger

Barney Frank on Lambda Legal's analysis

Filed By Guest Blogger | October 03, 2007 8:40 PM | comments

Filed in: Politics
Tags: Barney Frank, Congress, ENDA, gender identity, LGBT civil rights, transgender

This guest post comes to us from Congressman Barney Frank (D-MA). Congressman Frank is one of two openly gay House members, is the Chair of the Financial Services Committee, and has been a leader in the development of the Employment Non-Discrimination Act (ENDA). Congressman Frank guest posted last week about his decision to split ENDA into two separate bills.

Lambda Legal’s analysis of the bill I have reintroduced to outlaw sexual orientation discrimination contains one essential error, and two misunderstandings of where we are in the legislative process.

First, Lambda asserts:

In addition to the missing vital protections for transgender people on the job, this new bill also leaves out a key element to protect any employee, including lesbians and gay men who may not conform to their employer's idea of how a man or woman should look and act. This is a huge loophole through which employers sued for sexual orientation discrimination can claim that their conduct was actually based on gender expression, a type of discrimination that the new bill does not prohibit.

barney.jpgThe ‘also’ in this phrase is wrong. The second bill does omit reference to people who are transgender, but it makes no other change in the wording on this point. It neither adds nor deletes any reference to how employer’s rights to fire people based on how they appear.

The sexual orientation language in H.R. 3685 is the same language that has been in every version of ENDA since its first introduction in 1994. There is nothing in case law or in ENDA’s history to indicate that absent gender identity coverage, the bill would inadequately protect gay, lesbian and bisexual people from discrimination. In addition, there are eight states with laws covering sexual orientation but not gender identity, and I am not aware of any instances where anti-gay discrimination, even based to some degree on gender non-conformity, was not covered.

Asserting that this allows gay men and lesbians to be fired because they are too effeminate or masculine is an invitation to bigots to try to get around the law. Fortunately, as Felix Frankfurter once said, the Constitution outlaws sophisticated as well as simple-minded forms of discrimination, and so do statutes specifically banning sexual orientation. Lambda Legal itself would easily defeat such an attempted end-run around the sexual orientation language.

Second, Lambda notes that in the reintroduced bill, the provision that would override federal law preventing states from passing laws involving employee benefits has been dropped. That is true. In the bill that I had introduced earlier this year, I noted that the drafters had included for the first time in the history of ENDA a provision that would have amended the ERISA law. ERISA law preempts all state efforts to mandate employee benefits and this preemption is a deeply held principle for all of the employer organizations in America. It was a mistake to try to slip that into ENDA. We have in fact insisted all along that ENDA was only about job discrimination in the sense of firing, hiring, promotion etc., and was not an effort to get domestic partner benefits, civil unions etc. This provision contradicted that assurance and guaranteed that we would have the vigorous opposition of the Chamber of Commerce, the National Federation of Independent Business, and a large number of other business organizations. Once again this would have guaranteed the defeat of the bill. But it is not the case that it was dropped out quietly as I reintroduced the bill. I’m enclosing a copy of a letter I wrote long before the bad news on the transgender issue came to us in which I advised Members of the Committee to drop this provision. The decision to drop out the domestic partnership benefits provision was based on a political calculation wholly apart from the transgender issue, and my decision to do it, as I was strongly urged by Members of the Committee who will be voting on this bill, was taken in early August. The new bill simply reflects that decision.

Similar facts apply with regard to the religious exemption. The fairly broad religious exemption that is in the new bill I recently introduced is essentially the same broad exemption that we had to give religious groups in previous years. We did make an effort to narrow it in the first ENDA bill this year, and a very good job of rewriting this was done with my strong support. But once again we found that this would simply engender a degree of opposition from religious groups that would keep the bill from going forward. In both cases – the employee benefits piece and the religious exemption piece – we had letters of opposition from some of the most politically influential organization in the United States. We therefore in both of these cases decided outside completely of the transgender issue that we had to go back to the earlier ENDA form.

To summarize, the one change that is made substantively from the old bill to the new one that I reintroduced is to drop gender identity. No words have been added or subtracted that make it easier to fire a gay man because of some effort to transform homophobia into dislike of effeminacy and I believe the law continues to be a strong bulwark against that. Beyond that, in the cases of employee benefits and religious exemption, the efforts we made to try to increase our scope ran into insuperable opposition and the changes I made in the bill that was reintroduced simply reflect changes that would have been made in the original bill in the Committee markup. I should note that in both cases, all of those involved in the drafting of the bill were aware that we were going to have to make those changes and I am not aware of anyone who raised any objection because the case for doing so was so overwhelming. What we have now is exactly what we introduced in past years that had widespread support.

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You're not aware. Maybe that's because you haven't looked?

Here's something reported in the Boston Phoenix by a very well known gay writer up your way:

On the back of the bumper (continued)


"Dawson is a butch-lesbian hair stylist fired last year by a Manhattan salon. Because other out lesbians were not dismissed from the salon, NYAGRA argued that it was specifically Dawson’s "gender presentation," rather than her sexual orientation, that caused her to lose her job — which SONDA would not have prevented."

Issue Date: March 21 - 28, 2002http://www.theboston...

Would someone please post this "Man's" phone number.
I would like to call him and i can think of
At least 10,000 TG/TS folk would like to do the same.

Thanks in advance.

Susan Robins

Susan, would you mind pausing in your plans to flood Barney's office with phone calls long enough to explain to us exactly how he is wrong? The Bronski quote cited by Kathy does not dispose of all Barney's arguments. To win more votes for an inclusive bill, we need more of an argument than "Shut up, she explained."

Rick Rosendall

Until i hear him supporting an inclusive bil
I would then be happy to not flood his office with phone calls.
Gender identity needs to be included.

anybody who does not support the inclusion of gender identity is not looking at a realistic bill.

when you consider that 49 out of the fifty states are "at will" states ENDA is only window dressing and has no teeth to begin with..

If you work for me i can fire you for any reason i want. I don't have to tell you why i fired you, the burden is on you to prove i did it because i don't want any GLBT folk working for me.

Given the above it's all a matter of principal to began with ENDA is only a symbolic statement and will never have any force behind it.

I always wondered why i never saw any "activists" challenge the laws that support "at will employment".

it's not just GLBT activists it's all civil rights activists.

SO if you are going to back a law that has no teeth and that is a symbolic gesture then it must be inclusive.

Take care
Susan Robins

Honestly what bothers me most about this post is the widened religious exemption. This is all about passage of ANY bill, even if it's so weak that it's ability to protect GLB American's is almost nil.

Rick, This isn't a situation of Susan just not liking his answer. Rep. Frank is just plain wrong about GLB people being protected based on their gender identity under the non-inclusive bill.

I spent four years running the legal information hotline for Gay & Lesbian Advocates & Defenders (GLAD) in Boston, the counterpart to Lambda for New England, in which time we reviewed hundreds of intakes of employment discrimination complaints. I can only restate what was in my first post about this issue Monday: the lack of gender expression protection in Massachusetts means that a wide range of discriminatory behavior towards gay, lesbian and bisexual people is not actionable.

There is no way around the flood of calls and letters Rep. Frank's office will get to correct his erronous analysis. There are literally thousands of people who have personally experienced the loophole he says doesn't exist. You'd be calling too if you thought you had some recourse against discrimination and learned that this little gender/sexuality two step by employers actually left you flapping in the wind. It is ironic to the point of ridiculous for Frank to accuse Lambda of inviting employers to exploit this loophole - the Chambers of Commerce and other employer associations whose sensibilities he tends to so carefully have been exploiting it since these laws were first passed. All GLB and T people really do need protections against discrimination based on gender identity and gender expression in the workplace.

Phone Number | October 4, 2007 10:06 AM

his phone number

(202) 225-5931

This whole debate is freaking absurd to me. Let's get real: as a butch dyke, it's common sense to me that there are a lot of heterosexual men out there who have no problem with lipstick lesbians, as they're often nice fantasy objects, but have zero interest or even a level of disgust for more masculine women, who they are not attracted to in the slightest, and may even be threatened by. That alone makes the case for an inclusive ENDA - without it the bill is hollow for us tomboys and you girlymen (thanks, Ahnald) alike.

Frank claims that he "[is] not aware" of times in which sexual-orientation-only laws did not cover gender non-confiming LGB people. So, let's take away that spear. His office's fax numbers are 202-225-0182 (DC) and 617-332-2822
(MA). I'd suggest that anyone who has a story that disproves his argument - be it a press report or a personal story - sends it his way, and faxes a copy of the confirmation sheet to several of our esteemed LGBT publications (Gay City News, for example, I'm guessing would be amused to get some of these).

That would take away his cover pretty effectively, no?

Andrew is most correct.

Sex is a legal term which describes what is between or not between your legs. in some states you can legally change it provided you have the necessary reconstructive surgery. Gender above having a legal definition also refers to a person's self perception, demeanor and how they interact socially.

we all know women who act masculine even some straight women. we all know men who act feminine even some straight men. this is what gender identity is. It has less to do with being Transsexual or Transgender then it is made out to be. Society's restrictions on gender expression affect the feminine acting man and the masculine acting woman as much as those restrictions affect TG/TS folk. Frank knows the gender expression loophole exists and is choosing to ignore that loophole. such is the life of a political whore. No sense of right and wrong ruling his actions.
Frank lives by the doctrine of situational ethics, the end justifies the means no matter what those means are. He reflects a disturbing trend in American society including the religious right.
Anybody listen to Paster Hagy lately? you should get to know your enemies it makes much easier to spot their minions in the GLBT civil rights movement. I am digressing here a little...
The point is and has been stated much more eloquently then i could, you cannot separate gender identity and expression from ENDA your cutting your own throats if you believe these laws do any real good to begin with.

Thanks for the phone number links to Frank's blog entries and the phone number will go out to several of the support and informational lists i am on and the ones i run.

Take Care
Susan Robins

UdontKnowme | October 4, 2007 12:39 PM

Rep Frank is seeking expediency at the expense of fairness. It is better to take the time and build up support for a fully inclusive ENDA without the gender identity loophole. Rep. Frank can disagree with the lawyers at lambda legal all he wants but nearly the entire LGBT community is demanding an inclusive ENDA because we are a united movement. Rep Frank was entirely short sighted in how this would be a divisive thing and fortunately everyone realizes we are more of a force to be reckoned with when we are UNITED. Barney, you are wrong on this and I think you were rather surprised at the resistance you faced.

I would actually encourage folks NOT to call Barney Frank's office unless he's your Representative.

Instead, spend your time working where you can affect change! Call your OWN Congressman - and every single one in your home state. At least then you're actually a constituent (which means you'll be taken more seriously) or a state resident (which means if you go out actively campaigning against them next election cycle, they would have to deal with your efforts).

The message needs to go out loud and clear "We want you to support the original ENDA bill - HB 2015." Let's stay on message, folks.

Hi Bill
I plan on calling my own congressmen.
I want to impress on Frank that an all inclusive bill is what is necessary, give Frank a chance to change his mind before i have to call my congressmen and tell them not to vote for ENDA.


This is one issue is a black and white issue.
There is no middle ground.

Take care

It's all or nothing, and it's going to be the latter.

PTL! J. Dobson

In an ideal world the bill would pass as originally written. I'd rather have something rather than nothing. I support Barnie Frank's actions

Sorry guys, but you're throwing the baby out with the bathwater. The trans bill WON'T pass. Maybe in 20 years, as the American public doesn't get trans discrimiation. They DO understand and oppose discrimination against lesbians and gays and are ready to extend empoyment protection. Protection for trans folks must come later, if and when we can convice the american public to support it. There are millions of gays and lesbians today who are afraid to come out because they could face discrimitation. They need protection now. This is our civil rights act. Let's not be stupid and wait 20 years for what's ours now. While I believe passionately in trans employment protection (as well as racial quotas and fighting global warming and bringing the troops home in Iraq), I understand you can't have everything you want in one bill. The gay community needs to support the bill that has a prayer of passing.

Barney Frank is an equivocator who sounds bold, but is coward. Let's not forget that he had a big role in changing Bill Clinton's commitment to sign an executive order banning discrimination against gays in the military. Thanks to Barney Frank, that commitment devolved to become "Don't ask, don't tell." The man is a disgrace.