Dr. Jillian T. Weiss

And We Are Not Saved: The Opposition To ENDA From The Left Is Mistaken

Filed By Dr. Jillian T. Weiss | June 18, 2009 7:00 PM | comments

Filed in: Politics, Politics
Tags: Barney Frank, bisexual, Employment Non-Discrimination Act, ENDA, gender identity, Indiana Equality, law, lesbian, sexual orientation, transgender

The more I read the position of those who oppose ENDA on the grounds that it does not fully protect us, the more I am reminded that my field of professorship is Law AND Society. Too many people see law as a savior. It is not. Law will not save us from discrimination. We cannot legislate against prejudice. Rather, law is nothing more than a tool of education, with the power of the state occasionally behind it.

As an Associate Professor of Law and Society at Ramapo College, I have spent a lot of time reading and teaching about what law can do, and where it fails. Law will not save us. Words on a piece of paper in Congress or in the State House do not change the reality of prejudice and institutional discrimination.

ENDA is not perfect. But it is going to be very, very useful. "Rights talk" -- the blather of words that lawyers spout about the rights supposedly granted by law -- is a well-known way of avoiding provision of actual rights on the ground. Yes, we are all guaranteed equal protection before the law by the Constitution of the United States. But where is that elusive equal protection and where has it been since those words were written in the eighteenth century? It shows up occasionally in our courts, and for that half-measure I am half-thankful.

The opposition of Indiana Equality to ENDA on the ground that it does not represent full equality is "rights talk." I agree with Bil's post on Indiana Equality's statement of opposition to ENDA -- we should not oppose ENDA on the grounds that we should now strive for some new vision.

We will not be saved by law, whether it be ENDA now, or some vision of another, more "perfect" civil rights bill in later years.

The title of this post is taken from Derrick Bell's book from the 1980s. It discusses the failure of civil rights law to save African-Americans.

When the Civil Rights Acts of 1964 was passed, do you think that discrimination against African-Americans vanished the day after? It did not, and it has still not. There is still much discrimination, and the EEOC receives 90,000 complaints a year, only a fraction of which provide relief to the complainant. More students sit in more segregated classrooms now than did at the heyday of Jim Crow. There are carefully done studies demonstrating this fact. African-Americans are disproportionately found in the lower 40% of the socio-economic strata, under the poverty level, and in prisons.

The 13th Amendment to the Constitution sought to make African Americans equal. It did not. The 14th Amendment sought to do it. It did not. The 15th Amendment sought to do it. It did not.

Rights for African-Americans has been a slow process.

Does this mean that we should abandon law altogether? No, for law is a very, very helpful tool in preventing some overt discrimination and in changing the hearts and minds of the youngest generation, who will grow up to understand that discrimination is wrong. But it's not a magic bullet.

To those who say "FULL EQUALITY NOW," I say "YES!" but don't think that language on a piece of paper in Congress is going to do that. Regardless of what form of civil rights is passed in law, it is going to take decades of hard work to make that a reality for most LGBT citizens.

Indiana Equality's Arguments Against ENDA Do Not Add Up

1. Indiana Equality says only a bill amending the Civil Rights Act of 1964 and adding sexual orientation and gender identity is full equality. It says we need housing and education and credit protections because they are important to employment rights.

But this is legislation about employment rights. Housing and credit and whatnot are not directly associated with employment or employment rights. This argument also ignores the fact that, historically, the broader civil rights community has not been willing to open up the Civil Rights Act of 1964 to add in other protected groups because there is a significant danger that other amendments would be demanded that are deleterious to currently protected groups. Is there a real danger of this now, in the Democratically-controlled Congress? No, but the path has been set and re-formulating the whole plan now will require co-ordinating with our allies in the broader civil rights and labor movements. They would need to be convinced. Some in that camp do not see the association between racial discrimination and sexual orientation discrimination. There are so many people involved in such an undertaking that it would mean delaying civil rights action for years.

2. Indiana Equality says that there are legal consequences to ENDA being created as a separate section of the Federal Code. It says we won't get the benefit of prior case precedents giving broad protections from the civil rights laws.

This is not the case. In fact, most new laws are included in new sections. Section 10(b) of the 2007 bill says the procedures and remedies applicable to a claim alleged by an individual for a violation are to be the same as title VII. I will have to wait and see whether the 2009 bill has something similar, but if it does, Indiana Equality's argument falls flat. All civil rights statutes are generally considered by court to be remedying discrimination, and therefore they are construed broadly to give more protection. It is my assumption that the maxim of statutory interpretation that broadly construes remedial statutes will apply to ENDA as much as any other civil rights statute seeing to remedy discrimination.

In addition, it is well known that conservative Reagan and Bush-era judges have used "textualism" and other restrictive judicial philosophies to narrow the effects of Title VII. ENDA is no less and no more vulnerable to this problem. Law professors who are experts in the subject tend to agree that Title VII has been severely narrowed by the judiciary over the past 40 years. The Equal Pay Act of 1963, passed in the session before the Civil Rights Act, has been nearly useless in securing equal pay for equal work based on gender because of judges construing it narrowly. ENDA is going to be subject to narrowing by the courts whether it is a stand alone, or inserted as an amendment into the Civil Rights Act of 1964.

3. Indiana Equality says the small business and religious exemptions are too broad.

The Civil Rights Act of 1964 covers employers with 15 or more employees. ENDA covers employers with 15 or more employees.

The Civil Rights Act of 1964 contains exemptions for religious organizations. Here is the text of the religious exemption from the 2007 ENDA legislation (see version 3) as passed by the House: "This Act shall not apply to a corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Acts of 1964 pursuant to section 702(a) or 703(e)(2) of such Act (42 U.S.C. 2000e-1(a); 2000e-2(e)(2))."

Assuming similar language in the new version, ENDA is no worse than the Civil Rights Act of 1964 on these points.

4. Indiana Equality says that ENDA should allow "disparate impact" claims.

True, but I'm not so concerned. Those claims are difficult and very expensive to litigate. This claim involves situations where there is no open discrimination, but some action or rule of the workplace imposes a greater burden on a protected group more than all others. For example, a workplace imposes a rule that employees under a certain height are disqualified from certain types of work regardless of ability to do the job. This does not directly discriminate on the basis of sex, but it will have a disproportionate impact on women. Or an workplace imposes a test for promotion that contains elements that are not job related, and only White applicants pass the test. These are disparate impact cases.

Expensive expert witnesses and mathematical models are often needed to demonstrate the statistical implications. I note that, in the context of gender identity, and, I daresay, sexual orientation, identification of the relevant group to look at for the discriminatory "impact" is confusing, as demonstrated by the opinions in the recent cases of Schroer and Creed. "Disparate impact" lawsuits may or may not be helpful to gay and transgender employees.

It Is Better To Light One Candle, Than To Curse The Darkness

I support full equality. I support it now. However, I am also wise to the age-old trap of making perfection into the enemy of that which is good.

Progress, not perfection.

Law will not save us.

People will save us. People who have learned about the wrongs of discrimination through the process of passing a law and through the public education that comes from reading about the legal cases that will be brought in the law's wake, and from hearing about cases that succeed and cases that fail. From that comes waking from the false consciousness that says it is okay to oppress people because they are different.

Better language in a law will not save us.

It is better to light one candle than to curse the darkness.

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diddlygrl | June 18, 2009 7:42 PM

Absolutely right, until there is a social change in the way people think and feel, ENDA is just going to be words on a page.

Case in point; Austin Texas has a fully inclusive ordinance that forbids discrimination in housing, hiring, and accommedations.

Enter me, laid off from my job and looking for work. Unfortunately I have two strikes against me, my age, and being a transsexual. Of course Austin has the ordinance so it should make no difference. I have plenty of experience, great jobs skills, and a resume many would kill for.
Lots of companies were really hot for me to come and interview for them, calling it just a formality really. But then I show up and I can't hide what I am. Suddenly the 'formality'
seems just a bit more than that, they say they will let me know, and proceed not to as I await their call.

If you face prejudice enough times, you get good at 'sniffing it out in those around you. If asked, it was 'Oh we found someone that was a better fit for the position.' or "Someone with more experience showed up and we hired them.". No one ever came right out and said it, but I could tell at times just why I wasn't hired.

Prejudice is there, it is real, and it will not change just because Obama signs a piece of paper saying it shouldn't be so. A gay person can fake their way through an interview unless they choose to mention their orientation. I wish I had that luxury.

Well, setling for a bill that most certainly does not give us equality in these areas is violating the Dallas Principles, which I have signed on to.

Settling for whatever we could get is what the trans community accused the LGB's of last year.

I understand your position, Maura, and I have great respect for your principles.

I agree with this. Actually, I've become less and less hopeful that nondiscrimination laws will do anything helpful, considering how hard it is to win a job discrimination case, considering how discrimination is still rampant, etc.

But it would help to have at least something to point to to say that discrimination against us isn't right. And I'm convinced that having a few high profile cases win does more than having nothing.

Disparate impact seems like a bit much to ask for. It would require that the LGBT people at a workplace all come out, wouldn't it? It'd be hard to prove that there's a disparate impact if we didn't know who was whom....

And the incrementalism. I don't think that it's at all the same to support a bill that provides certain protections and work to improve it from there as it is to exclude a group of people from that law. Change doesn't happen overnight, but that doesn't mean you have to screw over others to get ahead.

And about the Dallas Principles, if they're against the ENDA, then they seem rather useless. This, to me, seems like the window into getting other problems taken care of, to get other legislation passed, and to start getting some case law built in our favor.

I can't believe IE came out against the ENDA, thinking that we could just as easily be added to the Civil Rights Act. The CBC is one of the best voting blocks for our rights and protections in Congress, but I'd imagine demanding something like that would make voting in our favor more difficult.

Alex, we actually lost a great deal of support from them during the ENDA fight -- and those who turned will tell you it was because of HRC's penalizing.

The Dallas principles are not against ENDA. They simply state it does not go far enough, and that we will not stop in seeking the rest.

re: dallas principles, good to know. thanks.

Angela Brightfeather | June 19, 2009 1:54 AM

Thank you for putting my feelings about ENDA in a way that is well stated and in a way that I feel.

I have never had any doubt that any version of ENDA will stop discrimination. But I also know from experience in my workplace that by just bringing up the position of a law against discrimination or hate, it will stop it dead in it's tracks. Most people have no idea about the details of the laws that protect other people and when they are alerted that they "may" be in violation, they back off readily in the vast majority of cases. I think that this is because most people really don't want to discriminate. I think that the vast majority of people don't like discrimination in many forms and they would prefer not to exercise it if they are given an excuse not to.

The world is full of people who like to be bullies and are proud of their ignorance. Those people will always be a problem in society. But we have to give people a chance to change and ENDA, as well as hate crimes laws provides people that chance. It provides a law that we can say "IS" on our side for once and when discrimination is practiced by one person, it is effectual when another person says, "don't do that because it's against the law." Many people actually listen and abide by that even if they don't know the details of the law, they give that challenge to their discrimination the benefit of the doubt. ENDA and Hate Crimes allows us to make that challenge when discrimination and hate are encountered. I've seen it work practically, just as much or more times that I have seen open discrimination practiced.

Rick Sours | June 19, 2009 8:46 AM

Thanks for this insight article. I agree that
laws are simply a means to educate society.

Sometimes in the case of discrimination against
LGBT individuals it is very hard to prove.

My Partner and I were the victims of hate and
Gay harassment. We tried all the legal means for
our protection. When it got to court the Judge
would not allow our police reports against the
other parties doing the harassment. The other side
lied in court under oath and the Judge sided with
them. The sold our home and moved to another state.

What a wrenching story. It underscores the fact that law on the books must be supplemented by education. Words on a page are a good start but can only go so far. We must use the law as a tool to educate and not think that it is the be-all and end-all.

In all cases bad law is worse than no law.

If you take a 1/4 loaf now, you'll wait forever for a full meal, ask those of us who live upstate NY with a transsexual history or those in Mass.

When in the course of human events.....stirring words. Are we full citizens or not? It's past time this was made clear, we are and will not settle for less one single minute longer.

For the first time in my memory the DNC is perking up ears and realizing the LGBt gravytrain pulled into the station and ain't moving....and you would derail this?

Donna Pandori Donna Pandori | June 19, 2009 1:27 PM

I don't believe she is suggesting to "derail this". She said she believes in full equality.

This paragraph sums it up:

Law will not save us.

People will save us. People who have learned about the wrongs of discrimination through the process of passing a law and through the public education that comes from reading about the legal cases that will be brought in the law's wake, and from hearing about cases that succeed and cases that fail. From that comes waking from the false consciousness that says it is okay to oppress people because they are different.

Better language in a law will not save us.

Thanks for this post. I found your thoughts and context extremely helpful for parsing this issue.