Guest Blogger

Hate Crimes & ENDA: Bad Bills Come and Bad Bills Go

Filed By Guest Blogger | February 27, 2009 1:00 PM | comments

Filed in: Politics
Tags: anti-gay violence, discrimination protection, Donna Rose, ENDA, hate crimes against LGBT people, HRC, transgender, United ENDA

Editors' Note: Guest blogger Kathy Padilla has been advocating on transgender issues since 1984, when she volunteered at the Outreach Institute of Gender Studies and Transgender Week (formerly Fantasia Fair); the longest running lgbt community event in Provincetown. She's been a key leader in passing local civil rights legislation, served as a delegate to the 2004 Democratic Presidential Convention, served on Governor Rendell's transition team and as a Commissioner on the Philadelphia Police Advisory Commission.

Perhaps the greatest hopes of the lgbt communities on the national level are the inclusion gender identity/expression and sexual orientation in federal employment nondiscrimination legislation and hate crimes legislation. We place a good deal of hope in the new administrations commitment to equality, Jimmy Stewart & Claude Rainsin the changes in Congress and in the solidarity the lgbt community exhibited via the 391 United ENDA organizations around the country that pushed for only legislation inclusive of all members of the lgbt communities.

That a hastily thrown together coalition of smaller, mostly outside the beltway groups could persuade some of the most powerful people in the country to reconsider moving forward on the “bad bill” was so unexpected that several votes had to be taken in committee to confirm the fact. This was so unlikely that the organizations in opposition can be forgiven for scratching their heads and wondering how they wandered onto the set of Mr. Smith Goes to Washington reading the Claude Rains part.

We’ve moved so much further along since then. The President supports inclusive legislation (including gender identity and expression along with sexual orientation) – as did all of the Democratic contenders for the Presidency. The Democratic Party Platform now supports inclusive legislation. Rep. Frank has been making very positive statements on the degree and sufficiency of the ongoing educational efforts transgender people have brought to the Hill and has hired a respected transman as his legislative assistant. Joe Solmonese has even been trying to explain that his support for dropping transgender people from the bill was really a brilliant, dare I say brave strategy to support the inclusive bill. Bilerico Project contributor Donna Rose drops her usual even tempered commentary on this amusing bit of revisionism at her own site in Guts or Hypocrisy? You decide.

It's not often Donna cuts loose like that.

Without rehashing this too much, I think Joe should revisit the definition of counterintuitive. It requires the proposition be both contrary to the conventional wisdom and true.*

Sadly, while we seem like we’ve moved forward – a bad bill is still a bad bill. Even if it says it includes gender identity. And that may just be where we’re heading again – a bad bill. Because as always; the devil is in the details - the “details” this time being the evolving definition for gender identity and expression in the Hate Crimes Bill. Because it’s not enough for a bill to just appear inclusive, the language of the bill must truly be inclusive.

It’s been known that the House is currently considering three options for defining gender identity and gender expression in the hate crimes bill this session. There are several that would make it a “bad bill” – and not just for the Hate Crimes Bill. It sets the standard for ENDA, the language would likely be imported directly into ENDA and it would be replicated in whatever local legislation gets passed in the future; so it’s a bad bill that may become several bad bills. Reports indicate that there have been heated discussions among policy makers on these issues, though the largest GLb t organization has been uncharacteristically quiet. Reportedly preferring a bill (any bill) pass, regardless of it’s adequately covering all transpeoples. A De facto replication of 2007.

Here’s what’s under consideration:


One has to ask – why consider changing the ENDA and Hate Crimes definitions which have been extensively vetted by all of the advocacy groups, the legal groups and the Congress so recently? And why are these new definitions bad?

The new definitions can generally be said to cover gender expression but not gender identity. Which in the real world would present the likelihood that gender variant gay, straight and transgender people who don’t medically transition would be covered by the Hate Crimes Bill (and ENDA if it imports the language). Transsexuals would not be covered. I should note that I don’t even play a lawyer on TV; so I hope the people who do so in the real world will correct, expand or clarify my laypersons description of the issues.

The redefining of identity to mean characteristics (in this case gender expression) is something that case law has already addressed in Title VII cases holding that expression does not equal identity; in those cases racial and ethnic identity.  These were expressions that the plaintiffs associated with their racial and ethnic identities; such as hair styles and the use of their native languages but that might not be considered exclusively associated with those identities. The obverse would be applicable here – expression being covered, but identity being excluded. The history indicates that if expression only is covered in the legislation; unless one can concretely associate an expression with an identity, the identity wouldn’t be covered. It should be obvious - but the definition of gender expression discrimination is that it is based upon gender expression that isn’t associated with one’s identity.

An inclusive bill must have inclusive language to truly be an inclusive bill.

It’s a really odd turn of events, especially if one considers the history of legislation that has included or addressed transgender and transsexual issues. The usual history of these bills has been that legislators were sympathetic towards transsexuals but balked at including other trans peoples. In Philadelphia, when we were working towards revising the Fair Practices Ordinance to include gender identity and expression we had to push very hard to insure the language didn’t just include those of us who identify as transsexual (or with this in our histories) – the leaders from the trans communities involved were all transsexual identified and had to strongly say that we wouldn’t support the bill if it only included us. Our fabulous lgb and straight allies supported this position when we brought the fact of the language not being truly inclusive to their attention – but not the government agencies. If one looks at many local nondiscrimination bills, and other types of legislation around the country that have supported transequality (hate crimes bills and legislation to amend birth certificates); the hate crimes language has usually been more favorably predisposed towards including those who medically transition in the legislative process and the birth certificate legislation has been solely about those who medically transition.

So – why are legislators considering these definitions that don’t unequivocally cover all trans peoples? When things happen in politics one should always look at money - when they happen to trans people in politics – one should always look at bathrooms. If those who medically transition aren’t included, interests that want to continue to exclude transgender related health care from insurance coverage are mollified. And if those who medically transition are excluded – politicians can say the bathroom issues don’t apply to this legislation. It’s a lose-lose proposition. We lose twice.

To paraphrase Paul Simon; “Bad bills come and bad bills go, so what are you going to do about it is what I’d like to know”.

  1. Contact the leadership of the Leadership Council on Civil Rights and ask them to only support inclusive legislation and that this means truly inclusive language in the bill.

  2. Contact your Senators and Representative to ask them to support only truly inclusive legislation and that this means that the bill must have the inclusive language.

  3. Go to the yearly transgender lobby day in Washington, DC and support and voice your support for all in all of our communities.

  4. If you can’t go to the transgender lobby day, write your Senators and Representative to let them know you support truly inclusive legislation and your friends and family members visiting Congress. Fax your letter to their offices the day before those who can go arrive. (This would be a great project for United ENDA to consider spearheading.)

  5. Contact the Board Members of the HRC from your area and ask them to vote to make it the policy of the organization to only support inclusive legislation with truly inclusive language. During the enda process in 2007 the HRC Board voted to leave these types of decisions solely to the discretion of their executive director. It’s time their Board spoke to this issue again. Ask your local LGBT press to interview your local board members on these issues now.

One of the criticisms made of the efforts towards inclusive legislation in 2007 was that the educational outreach to Congress was that we only used our voices towards the end of the process; the criticism was wrong then. Let’s make sure it continues to be so.

*Okay – maybe just a little rehashing.

Yeeah!!! That's The Ticket!!

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Douglas Gibson Jr | February 27, 2009 1:30 PM

What is your resource for the information that is being considered?

Interestingly, I read the proposed changes from the 110th Congress Hate Crimes bill as intended to exclude non-transsexual folks (in other words, to only include gender identity and not gender expression). For example, deleting "without regard to designated sex at birth" and replacing it with "inconsistent with designated sex at birth" (option 2) would make the gender identity protections _only_ apply to people whose "gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual" were inconsistent with assigned sex at birth. Somewhat similarly, changing "gender identity" to "trans-gender" (option 3) would seem to be an attempt to exclude non-trans gender non-conforming folks. Of course, I am also not a lawyer.

Regardless of my different reading the possible intent and effects of the wording changes, I strongly agree that it's a problem to re-write the definitions that various advocacy groups previously agreed upon, and particularly problematic to do so in a way that seems to exclude some people. So yes, let's fight these proposed changes.

Kathy Padilla | February 28, 2009 11:36 AM

"it's a problem to re-write the definitions that various advocacy groups previously agreed upon, and particularly problematic to do so in a way that seems to exclude some people. So yes, let's fight these proposed changes."

As a community, we’ve grown so accustomed to scaling back our expectations for equality that it’s a small step to accept inadequate or potentially inadequate language without a peep. No public words from the advocacy organizations that they’ve been having disagreements over the language, no request for support from the community in helping them push for truly inclusive language. Part of that is the sense of innate superiority some have – part of it is their desperation to get something – anything passed. Regardless of how well it serves the community.

Over the years, we’ve gone from a nondiscrimination bill that included both employment and public accommodations to employment alone and one with a religious exemption that no other civil rights bill has had to stomach. In that sense – it’s not equality as the extent of our employment rights outlined in that bill differs from those of other communities.

This reminds me of the last time there was a major definitions problem in the Hate Crimes Bill. Because some were uncomfortable with fully inclusive language they tried to finesse it with the term “perceived gender” which most saw as inadequate. But ranks were closed to try and pass something, and people crossed their fingers in the hope that the poorer language could be interpreted to be more inclusive given the legislative history & intent. Well – we all know how well disposed the Supreme Court is to that type of argument. But – we’re expendable. No one would ever think to accept a definition of sexual orientation which was thought could possibly be inadequate. And rightly so. You’re not going to get a chance to revisit this for a long, long time.

The country wants big ideas now – we see this in the stimulus package, in health care & in goals in so many areas. We should demand no less for ourselves. The administration is including people in the process on an ongoing basis – there are increased levels of transparency, such as Why haven’t our community’s leaders caught up? It hamstrings them in achieving the goals we all say we want. We should demand more of our leaders, our country and of ourselves. And if they say they need our help – and they’re truly fighting the good fight - we should have their backs.

The confusion of Bull Shit. If there is a way to screw the Transgender Community out of basic human rights someone will come up with it. To eliminate Transsexuals form the Mathew Shepard act and the Employment Non Discrimination Act is ludicrous. Geezee. What kind of screwball came up with this? Let me guess our friends the bigoted transphobic idiots in Washington.

Why does our government keep creating potholes? The ignorance is beyond belief. To try to divide the transgender community in a basic issue as hate crimes and ENDA is I would guess another ploy of the Religious Right. It has the smell all over it.

We educate our legislator’s everyday with success and now someone wants to throw a wrench into the mix. There thought of stirring the pot to delay and confuse the in evadable is so immature, they have no right of being one of our nations leaders.

Before our protest in Charlotte last Saturday at the Human Rights Gala. I sat down with Joe Solmonese in a private meeting. We talked for a little over an hour about theses very subjects. Of course I got positive responses out of him, as you would think. The one thing that amazed me was the report I got back from some of the people who attended the dinner. They told me that Joe started his speech with we the TGBL. That in it self told me maybe my meeting with him might have made a small difference.

If you want to read more on this and see the video and artical here is the link.

Janice Covington

Brandi is totally right. Even if you got something in writing from Joe, it ain't worth the paper it would be written on. The only time you can believe the transgender community has protection that covers all of us is when you see Obama's signature on it. EVERYTHING HAS TO BE BACK IN IT! Are you listening HRC? NGLTF? Congress? "Gender expression, housing, public accommodations (including shelters,) medical and education" need to be put in. No crumbs. We want the whole loaf. Joe bamboozled you.

Fascinating. Will you keep us updated?

Kathy Padilla | February 28, 2009 9:33 PM

Bil - I wasn't sure if you were asking me or Janice; but if me - I'll do my best.

Brandi & Monica

Brandi to you first. It was no fairy tale, what I wrote really happened. I was smart enough to take along wittiness. The only side, I got out of Joe was his right ear, as I told him what I expected as a member of the transgender community. My intentions and strategy during and after the protest was to win the HRC membership over to our view. I think that worked a thousand percent. My idea is if you win over the membership and they express their displeasure to the corporate Board, hopefully they will either assign a new negotiator to the Congressional Committee for ENDA or instruct Joe on his procedure. Brandi, maybe the solution is, we should meet them all out side for a rumble, ya think? Oh and by the way Joe should be Star Struck for meeting me. If you want an explanation for that last statement, call me and I will give you all of the details.

Monica Honey. I offered Joe a drink mixed with some Southern Comfort. [In quoting you.] He laughed said oh Monica. LOL. Joe never bamboozled me because I was not there to get romanced. The reason for the meeting was a strategy move on my part to get to know my adversary. Some people don’t agree with that move, but I have my on methods and I don’t conform to there’s. I know as you do that Joe does not have the power to change a thing. The HRC Corporate Board of Directors and the Transphobic, Barney Phiff Frank is the only ones that have that power. We can throw rocks at Joe all we want. In my opinion they would be better used directing them in another direction.

Monica as you know Angela and I are great friends as you and her. We talk everyday on the phone. I’m not sure of your age but Angela and I are well past 60. We have fought for change for over 40 years each. I told her the other day. I will not live to see any significant change. I have a lot of hope this year as I did in 07 for an inclusive ENDA. If we don’t win this time around I will feel my life was nothing more than a failure. I truly hope for our sake and generations to come it will pass in 09.

I hope to be in Washington with you all on Lobby Day. If you and I ride with Angela I will provide the earplugs. LOL

Hugs Janice

I'm only a young 58. I'm glad you're there with Angela. I forgot which Janice I was talking to. So, you also offered to buy Joe some Southern Comfort? He'll never live his speech there down. Thanks.

HRC has a track record for ignoring transfolk. Even the SF gay community couldn't be silent in the face of HRC's ignorance. Remember, that "pink brick"? It was only a year ago.

When is Joe going to learn? And when are other trans-haters going to stop treating women like Kathy as if she left her brain behind when she blossomed into the identity that is and should be hers?

Or is this old-fashioned sexism? Kathy is woman, so of course, she can't do a little research right.