Guest Blogger

President Obama Strengthens ENDA by Rejecting DOMA

Filed By Guest Blogger | February 26, 2011 12:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Defense of Marriage Act, DOMA, Employment non-discrimination, ENDA, LGBT rights, Tico Almeida

Editors' Note: Guest blogger Tico Almeida is a civil rights litigator at the boutique law firm of Sanford Wittels & Heisler LLP, which was recently named by Law360 as the only plaintiff-side law firm on the 2010 list of the Top Five employment law practices in the United States. Tico-Almeida.jpgFrom 2007 to 2010, Mr. Almeida served as the lead counsel on the proposed Employment Non-Discrimination Act (ENDA) in the U.S. House of Representatives.

Some advocates within the lesbian, gay, bisexual and transgender (LGBT) community have presented a false choice between advocating for marriage equality and the proposed Employment Non-Discrimination Act (ENDA), which would outlaw workplace discrimination based on sexual orientation and gender identity. The truth is that the steps we take toward one goal also bring us closer to the other goal. Equality begets equality.

In fact, this week's much-celebrated announcement by U.S. Attorney General Eric Holder in the litigation challenging the so-called Defense of Marriage Act (DOMA) will likely bolster efforts to secure equal rights both in civil marriage and in employment. Because of President Obama's still-evolving position on marriage equality for gay and lesbian couples, we are one step closer to a federal ENDA statute that can survive an attack by conservatives who will surely challenge that statute's constitutionality in federal court sometime shortly after we have enacted ENDA into law.

For starters, the Obama Administration deserves credit for refusing to defend the constitutionality of the clearly discriminatory Section 3 of DOMA. According to Yale Law School professor Jack Balkin, the Obama Administration's new position likely increases the chances that at least some portions of DOMA will be struck down by the federal courts, including eventually the U.S. Supreme Court. Professor Balkin is right, and I would add that the legal briefs submitted by the U.S. Department of Justice (DOJ) in the DOMA cases will also increase the long-term chances that LGBT victims of workplace discrimination and harassment will one day have the opportunity to hold accountable their discriminatory employers in federal court.

That's because of the following key portion of the announcement by U.S. Attorney General Holder:

"After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny."

Quite simply, this statement is historic. It is the first time ever that the government of the United States has embraced this pro-equality position. If President Obama's DOJ can successfully convince the federal courts that statutes, regulations or government practices that address or affect sexual orientation should be given what is called "heightened scrutiny," then gays and lesbians would be raised up to the at least the same level of constitutional protection already granted to women facing discrimination. With that kind of strengthened constitutional wind at our backs, gay and lesbian workers will gain some new workplace protections even before ENDA passes, and will benefit once again after ENDA is signed into law - perhaps by President Obama if and when he wins a second term.

How Obama's DOMA Position Will Help Gay and Lesbian Workers Even Before ENDA Passes

First, consider the hypothetical examples of a lesbian employee of the Alabama State Department of Agriculture, a gay male employee of the Arizona State Department of Transportation, and a bisexual employee of the Alaska State Department of Tourism. These three states have more in common than alphabetical privilege. Alabama, Arizona, and Alaska each currently lacks a state ENDA statute that protects against discrimination based on sexual orientation. As noted, there is no federal ENDA statute either.

As of today, the lesbian employee in Alabama can be fired just because she is a lesbian. The gay employee in Arizona can receive lower pay and fewer promotions just because he is gay. The bisexual employee in Alaska can be severely harassed and subjected to hostility just because he is bisexual. Without a state ENDA statute or the proposed federal ENDA, these three employees would have very little to absolutely no legal recourse for sexual orientation discrimination in either state or federal court.

Now imagine that the U.S. Supreme Court eventually agrees with President Obama and Attorney General Holder that gays and lesbians deserve "heightened scrutiny." At that point, the lesbian employee in Alabama, the gay employee in Arizona, and the bisexual employee in Alaska have a far greater chance of successfully arguing in federal court that the discrimination by their employers - each one a state government actor - was a violation of the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

Under current constitutional law, it is possible, though sadly unlikely, that a gay or lesbian employee of a state government could win this type of constitutional case based on the lower level of constitutional protection called "rational basis review." Some plaintiffs have won cases at this lower level of protection, but it is such an uphill climb that victory is the exception and not the rule. The spillover effect of the Obama Administration's decision to argue for "heightened scrutiny" in the DOMA cases is that these three hypothetical employees would have a far greater chance than they currently do of winning their lawsuit based on sexual orientation discrimination and securing justice in the workplace - even if neither a state ENDA nor the proposed federal ENDA has passed yet.

Many readers have probably noticed by now that my series of three hypotheticals did not include a transgender employee. However, what many people in the LGBT and broader communities do not realize is that under current constitutional law, transgender employees actually have stronger constitutional protections and greater chances of winning workplace discrimination cases than gay and lesbian employees who also work for state government employers. For example, the attorneys at Lambda Legal recently won an important case in federal court in Georgia on behalf of a transgender woman named Vandy Beth Glenn, who was fired by the government of Georgia immediately upon telling her supervisor that she planned to transition from male to female. Last year, a federal court ruled that when Georgia fired Ms. Glenn, the State acted in violation of the federal constitutional protections against gender discrimination.

In contrast, if the state of Georgia had fired a gay man simply because he told his supervisor that he is gay, he would not have benefitted from the same constitutional protections. That is why the Obama Administration's new position that "heightened scrutiny" should apply to laws addressing sexual orientation will provide some new workplace rights for gays and lesbians, who deserve the same constitutional protections against irrational and unjust firings such as the one experienced by Vandy Beth Glenn.

How Obama's DOMA Position Will Help Gay and Lesbian Workers After ENDA Passes

It is probable that within the first year after ENDA is passed by Congress and signed by the President, a conservative state Attorney General will file a motion as a defense to an ENDA lawsuit in federal court contending that ENDA is unconstitutional as applied to state government employers. Imagine a Republican Attorney General of Texas or Oklahoma, up for re-election, and seeking to prove to voters his anti-gay and pro-states-rights bona fides by pushing a case to the U.S. Supreme Court to get ENDA declared unconstitutional as it applies to Texas, Oklahoma and the other states. I first raised my concern about a right-wing constitutional challenge to ENDA with the Democratic Leadership of the U.S. House of Representatives in September of 2007 when I was hired to serve as Labor Counsel to Congressman George Miller (D-CA), who was at that time the Chairman of the House labor committee.

A few months later, once I was working as lead counsel on ENDA in the U.S. House, we partnered closely with the Williams Institute at UCLA Law School, which is the legal research center on LGBT rights that has provided invaluable scholarship in venues ranging from the Proposition 8 trial in California to the legislature of Rhode Island. For the next two years, the Institute's Executive Director Brad Sears, Professor Nan Hunter, and a talented researcher named Christy Mallory led an exhaustive effort to help the House labor committee collect the research needed to demonstrate ENDA's constitutionality. Mr. Sears then skillfully presented that research to the House labor committee as a Democratic witness at the hearing on ENDA in September 2009.

Mr. Sears' testimony demonstrates just how important "heightened scrutiny" could be to the LGBT community and to the long-term success of ENDA. When the constitutionality of ENDA is eventually considered by the U.S. Supreme Court - perhaps five or ten years from now - the Justices are going weigh at least two factors:

  1. the level of constitutional protection afforded to members of the LGBT community; and
  2. the amount of evidence of discrimination by state governments that was collected and documented by the U.S. Congress.

Under Supreme Court precedent, there is an inverse relationship between the two factors. The higher the level of scrutiny afforded to a group (in this case, LGBT individuals), the smaller the necessary evidence from Congress regarding existing evidence of discrimination.

Congressman Miller and his House colleagues put thousands of examples of anti-LGBT workplace discrimination by state government employers into the Congressional record through live testimony in September 2009. It would have been nice if the Senate labor committee had also called Mr. Sears or one of his colleagues from the Williams Institute during their November 2009 ENDA hearing to present live testimony of the Williams Institute's voluminous report. I am hopeful that Senator Tom Harkin (D-Iowa) - a progressive champion who chairs the Senate labor committee - will correct that oversight in the upcoming session of Congress.

Senator Harkin would also do well to correct a significant mistake from his 2009 Senate hearing on ENDA, which did not include a single transgender person among the seven witnesses who were called to testify. The failure to include a voice from the transgender community was rightly and highly criticized at the time. As Diego Sanchez, a Policy Advisor to Congressman Barney Frank (D-MA), eloquently explained to a reporter from the Advocate magazine, the problem with excluding transgender witnesses is that it sends a "signal that [transgender people like Sanchez] are disposable." Transgender employees deserve the same workplace anti-discrimination rights as the rest of us, and while gender discrimination laws offer some protection, the transgender community should not be left behind with ENDA. Accordingly, I made sure that the 2009 ENDA hearing in the House of Representatives did feature a transgender victim of discrimination.

Returning to the constitutionality of ENDA, the Williams Institute's report significantly increases the chances that ENDA will survive the Supreme Court's eventual review, but it does not guarantee a victory for ENDA. Some judicial activists like Justice Antonin Scalia will likely vote to strike down ENDA no matter how many thousands of examples of discrimination we put into the Congressional record. But some of the swing votes on the Court are very much in play, and those swing votes are more likely to give ENDA a fair chance if LGBT workers are viewed through the lens of "heightened scrutiny" rather than the current "rational basis review."

Simply put, President Obama's announcement earlier this week that his Administration will spend at least the next two years working in the courts to improve the constitutional standing of gays and lesbians in the marriage context means that we will also be in a much stronger position when ENDA is signed into law and is subjected to constitutional challenge.

Our advances towards marriage equality will lead to advances in the context of employment equality, and visa versa. As noted above, equality begets equality. The Obama Administration has taken an important step toward securing equal rights for the LGBT community, both in our marriages and in our workplaces. And that's the kind of change I can believe in.

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This is all well and good. I do have one very large concern.

While I applaud AG Holder for articulating the argument that gays and lesbians are a suspect class and that laws permitting discrimination against us must be subject to heightened scrutiny, it is one thing for such a view to be advanced by the Department of Justice and quite another for it to be embraced, consistently, by the courts. There is no doubt that some judges already agree with this more progressive view, and that others will be persuaded by DOJ's advancing this argument, but how likely is it to become the standard approach in future court decisions?

A non-inclusive ENDA will hurt not only trans people but gays and lesbians as well.

The idea that "trans people have more protections so they don't need anti-discrimination laws" is false.

The fact that one or two trans people won their cases when discriminated against doesn't change the fact of the many more who are homeless or jobless because of discrimination. If you read the recent report "Injustice at Every Turn" you already know that the statistics for trans people regarding discrimination in employment and housing are the HIGHEST in the entire LGBT community, not the lowest. If you have not read it, you should -- it will enlighten you as to why trans people don't actually have it easy compared to gay people.

In addition, many employers are confused about the difference between sexual orientation and gender identity and fire trans employees when they transition because they aren't comfortable with people who "act gay." Under a non-inclusive ENDA, gay employees could be fired because they "act too female" and lesbians could be fired for "acting too much like men." Furthermore, a non-inclusive ENDA sends the message that even the gay community doesn't think trans people should have rights, meaning MORE discrimination against trans people.

Yet the gay community continues to turn against trans people by stating that their issues have nothing to do with the LGB community at large.

The trans community would be within its rights to fight for a bill that makes it illegal to discriminate against trans people but ignores the gay community, yet many don't. ALL people should have equal rights. Trans issues affect gay people and vice versa.

Stating that trans people don't need to be included in ENDA is ignorant and dangerous to both the trans and gay communities.

Funny how we are only told that we can work on marraige and employment at the same time - when trans people get vocal about the primacy of gay marriage in the public discourse and the focus of our national and local orgs.

""After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny." "

Says nothing about trans people - zero. DOMA repeal will do little to nothing to help trans people obtain and retain employment. But I notice that you eventually got to that:

"...transgender employees actually have stronger constitutional protections and greater chances of winning workplace discrimination cases than gay and lesbian employees who also work for state government employers."

Using the exact same title VII arguments that GLB people can use. You bring out an example of a case and position that as proof that trans people have a better standing regarding job protections? Have you seen the unemployment rates for trans women? Have you talked to the hundreds of trans people who not only lost their jobs but couldn't get legal council to take up their case? But, you know we are better protected and stuff...

You fail to mention how once marriage passes nothing else gets done. Let's talk about MA and NH - oh right gays got their employment protections without trans protections THEN got marriage.

Sorry, not buying it. BTW how many trans women does your firm have employed? That's what I thought.

Let's look at 3 big issues this past year for LGBT people: military, marriage, and employment. (there are other issues to be sure like immigration, medical care, gerontology, school protections, HIV (how much of that is still a gays only issue?) etc). I could look at approval by the general population or politicians but for now, I want to look at what impacts us the most as a sub-population right now.

Actually, I'll cover the first one briefly because it's a done deal and IMHO, the cart that was put before the horse in terms of impacting LGBT lives.

MILITARY - Impact: 0.4% Desiring: ??

36,000 gay men and lesbians are serving in active duty, representing 2.5 percent of active duty personnel. out of 8.8 million.
or 0.4%.

MARRIAGE - Impact: ?? Desiring: 37%-64%
35% men 50% women: represent those in long term relationships however and not necessarily ready for tying the knot. There is however an increasing demand of around 80% (youth only) that desire this. In terms of marriage however, we have these figures: 64% percent of LGBT females and 37% of LGBT males of all age groups said it was "extremely likely" they would marry if allowed by law.

EMPLOYMENT - Impact: 99%
Who *doesn't* need work? Only 5% are out at work and 58% report experiencing discrimination based on their orientation. Basically, those who are old enough to identify with a sexual orientation who are able to work. Most people "have" worked (98-99%) for pay at one point in their lives. Those who desire work may be even higher as many disabled and institutionalized people wish for escape or to be de-institutionalized and put into a more independent living situation. Is the unemployment rate higher for LGBT? Unfortunately, there's a dearth of study on the subject for queers as a whole (more recent data is available for transgendered, which is a fair focus of unemployment because of the prima facie evidence for it) but based on extrapolations, the rate of unemployment is 2x or 20% for us. While we are often employable, we experience heavy discrimination and job loss based on outing is still high in most states. Much we don't know because most of us are not coming out. Coming out or engaging in normal gay activity probably results in a large number of unemployment reflected in that increased 2x rate.

Another quote (
A survey of 191 employers revealed that 18% would fire, 27% would refuse to hire and 26% would refuse to promote a person they perceived to be lesbian, gay or bisexual. --Schatz and O'Hanlan, "Anti-Gay Discrimination in Medicine: Results of a National Survey of Lesbian, Gay and Bisexual Physicians," San Francisco, 1994.

For the stat lovers, here are some more:

I do get the point that equality will synergize equality. Perhaps even DADT repeal helped us. Just looking at focus and likely "passing".

Kathy Padilla | February 26, 2011 2:33 PM

Mr. Almeida (and Equality Matters) are misrepresenting trans peoples concerns and presenting their own false choice by conflating federal and state issues.

Trans people stating that national and statewide groups only focusing on marriage in states where gay people have nondiscrimination rights and trans people do not does not state anything about repealing a federal bill. This is the thrust of most complaints of current priorities.

It's a straw man & disingenuous to state the concerns as the author does above.

DOMA is also primarily going to be repealed via the courts - which certainly requires funds to fund those cases. It's hard to see how other resources are needed by groups that aren't set up to work in the legal area - but are primarily set up to lobby for passage of legislation. Yes - if they're tied up mostly fighting for repealing DOMA - it takes away from the mission they set up to address and takes resources from that goal.

Can the author show me say...HRC's lobbying disclosures on advocating for federal nondiscrim legislation & how much it spent on marriage last year? That would provide a real metric for his argument.

I'll go find those lobbying disclosure statement on Monday - visiting family right now. It's been done before - but - I think people will be quite suprized at what a small amount of money was spent to lobby for federal nondiscrim legislation. I assure you - it wasn't the $10 million being proposed to promote marriage.

Angela Brightfeather | February 26, 2011 4:59 PM

You have got to be kidding me!!!!

To try and get me to swallow the dream that equality breeds equality after what happened to ENDA is right of the "common sense" chart as far as I am concerned.

Then saying that Trans people have a better chance at constitutional protections, due to a few court cases, is absurd. Like repealing DOMA in one foul swoop and opening the gates for SSM, while Trans people have to slog through consitutional fights for the next 20+ years, with little if any support from GLB's who have simply moved on and will be focusing on equal rights they will need in other areas, is the right thing to do, is superbly cold.

You must be dreaming if you think that Trans people need marriage rights more than they need employment rights and that the need can wait.

Think about what you are saying for one moment. Your saying that SSM and it's surrounding issues are literally more important than Trans people's lives. I personally know at least two Trans people who committed suicide because they lost everything when they transitioned. Their jobs, their families, their homes and their lives. This loss has been happening for years and for the exact same reason, outright, hate applied discrimination. Now you tell me how many GLB people you know, who have committed suicide because they could not get legally married.

While you hold up examples, the one thing that you seem to forget is that ENDA means the loss of lives and SSM means that people can't fullfill their desire to be married to another person and the applicable discrimination included with that, none of which is life threatening or can be traced directly to a reason to commit suicide. There are direct lines to be drawn from losing one's means to support themselves and their families, to many suicides that have occured already in the Trans community.

I just don't understand how such an intelligent person such as yourself cannot recognize the immediacy of the situation when human lives are being lost, and instead wish to continue to place impediments and make arguements against immediate legislation to put an end to that loss. Do you really think that you can logically argue that ENDA should wait for SSM and that passing SSM will help ENDA and the people lost in the meantime?

I personally think that your statement that sums up the story on SSM and ENDA is "Now imagine..".

Why don't you try some of your own advice and "Now imagine.." exactly how you can account for the human losses that actually happen with no inclusive ENDA, while having the outright callous compartmentalization to be able to try and logically argue those losses into oblivion. How do you get off ignoring the loss of people and stating that SSM is more important than that fact?

Let me sum up my feelings about what you have posed....BS!!

Am I the only one who finds it a bit ironic that this piece of gay-marriage-primacy santorum (kudos, yes, for mentioning the Jim Trans Crow witness list of the Senate ENDA hearing, but santorum is santorum) materialized a few days after an on-the-outside-of-reality-and-not-even-attempting-to-look-in chunk of nonsense uncritically advanced the notion that having the temerity to notice the gay-marriage-primacy agenda in action falls under the heading of "paranoid conspiracy theories"? (A reality-centric discussion of the specifics of that controversy will never be found at Bilerico, but can be found here.)

However, what many people in the LGBT and broader communities do not realize is that under current constitutional law, transgender employees actually have stronger constitutional protections and greater chances of winning workplace discrimination cases than gay and lesbian employees who also work for state government employers. For example, the attorneys at Lambda Legal recently won an important case in federal court in Georgia on behalf of a transgender woman named Vandy Beth Glenn,
Last year, a federal court ruled that when Georgia fired Ms. Glenn, the State acted in violation of the federal constitutional protections against gender discrimination.

My head hurts because I have been reading through a few older posts by Dr. Jillian Weiss, this one and others like it for the past few days. There is so much that is vague and ambiguous but some of what you say in this post seems to be in conflict or, at least, is shown under a much different light than what is written here:

as I discussed yesterday,(Dr Weiss in the article linked to above) the Glenn v. Brumby lawsuit is premised on the Equal Protection clause of the U.S. Constitution's 14th Amendment (No state shall deny to any person the equal protection of the laws), rather than the federal civil rights statute.

So I assume we're speaking Title VII of the Civil Rights Act that covers sex discrimination? O K . . .

Dr. Weiss again:

Judge Story . . . relied on the "sex stereotyping" workaround, instead of the idea that anti-trans discrimination is sex discrimination.

then Dr. Weiss writes:

Well, I don't know if you've looked in the dictionary recently, but it's pretty well known that the word "sex" today includes the idea of gender.

I have looked into this and what is written here seems to conflict with that assertion:

Sex is annotated as different from gender in the Oxford English Dictionary where it says sex "tends now to refer to biological differences, while . . . [gender] often refers to cultural or social ones."[5]
A working definition in use by the World Health Organization for its work is that "'[s]ex' refers to the biological and physiological characteristics that define men and women" and that "'[m]ale' and 'female' are sex categories".[3]
Scientific research shows that no simple distinction between the two can be made and that an individual's sex inflences his or her behaviour.[6][7][8][9][10]

then from Dr. Weiss' article, a quote by Judge Story

However far Price Waterhouse reaches, this court cannot conclude it requires employers to allow biological males to use women's restrooms. Use of a restroom designated for the opposite sex does not constitute a mere failure to conform to sex stereotypes.

So what is a "biological female" and what is a "biological male"? The Wikipedia article says "Scientific research shows that no simple distinction between the two can be made".

Now what do the words transsexual and transgender mean and how different are each in who they apply to? What does the expression "trans" mean and who does it apply to? What about intersex?

At the bottom of Dr Weiss' post she says:

However, Judge Story's ruling, however welcome, comes with some rather large holes. Ms. Glenn is protected as a man, rather than as a woman.

So "transgender" employees have stronger workplace protections under constitutional law? They are protected from "gender" discrimination, whatever that means? Now, all these legal organizations,GLAD, GLAAD, NCLR, Lambda Legal, etc have been working for amorphous "trans" rights and insist on making no distinction between transgender people and transsexual people. So, I suppose a woman of transsexual history, whose husband has died should rejoice over the fact that she will probably have her survivorship rights invalidated because all these LGBT legal organizations have worked so hard to secure her rights as an eccentric man who is in a marriage with another man in a state that does not recognize such a marriage. I suppose she is supposed to feel wonderful about having to apply for a job she may never get because, in the event she might get one, her employer will have to work very hard to find a way to fire her without being sued for "sex stereotyping"? Is that the same as "gender discrimination"? Why am I always left with the feeling someone is trying to sell me snake oil when they start talking about "gender"? As they say where I come from, this sort of reasoning has more flies buzzing around it than a horses behind in mid-July.

What a total load of hooey! Trans already have more protections than LGB'S? Not even close! This seems to me to be an attempt to derail, and subvert any chances that Trans persons might have towards also gaining equality. What I still all these years fail to understand is why LGB people feel such animosity towards us.

This was my first-ever blog post, and I am grateful that you have read it and provided feedback. The folks at the Bilerico Project have encouraged me to submit a few more guest blogs in the weeks and months to come, and I’m considering writing about topics such as: 1) the history and implications of ENDA’s religious exemption, which I co-wrote along with a talented lawyer named Jody Calemine; 2) my thoughts on how to build a successful class action lawsuit based on a state ENDA statute; and 3) the Trans-phobia I observed among some staffers and Members on Capitol Hill.

As for your comments, let me provide a few quick thoughts:

@Bob – You are correct that the Holder memo only helps our LGBT community – and only strengthens ENDA by implication – if it is accepted by the federal courts. On the probability of that happening, my post cites to Yale Law School professor Jack Balkin’s post at Balkinization. You should read it. It gives me hope that President Obama’s efforts on behalf of our community will have a good chance to succeed.

@John – I like how you put it, “equality will synergize equality.” That’s exactly my thesis for this post.

@Stephanie, Angela and Kat -- A few readers missed my strongly held-beliefs on the inclusive nature of ENDA. Here are my words from the post above:

“Transgender employees deserve the same workplace anti-discrimination rights as the rest of us, and while gender discrimination laws offer some protection, the transgender community should not be left behind with ENDA. Accordingly, I made sure that the 2009 ENDA hearing in the House of Representatives did feature a transgender victim of discrimination.”

From 2007 to 2010, I put in a few thousand hours of work on Capitol Hill trying to push us towards a fully-inclusive ENDA. I am as disappointed as anyone that it did not happen during the last Congress. I remain confident we’ll successfully cross the fully-inclusive-ENDA finish line within a few years.

Finally, @LaughrioTgirl – My law firm has been successful not only in terms of winning cases for the victims of workplace discrimination throughout the United States, we are also leaders in the legal industry in terms of the diversity of the professionals working on those cases. In fact, a strong majority of our lawyers and staff at SWH are women, racial and ethnic minorities, and/or openly LGBT. In addition, we have successfully represented members of the LGBT community in lawsuits based on workplace discrimination. You can learn more about our staff and cases at

Welcome to the wild, wild web, Tico. :) If no one disagrees with you, you're not doing your job as a blogger. *grins*

Tico - thank you for responding.

I don't think anyone is doubting your personal commitment to an inclusive ENDA. What I had issue with was you citing a couple cases that used Title VII protections that just happened to work out for a trans woman. When, really, the victory in those cases weren't actually that great for the larger transsexual community - as Edith above noted. Positioning this as meaning that in some way trans people enjoy more/better workplace protections than cis GLB people flies in the face of what we deal with daily.

"I remain confident we’ll successfully cross the fully-inclusive-ENDA finish line within a few years."

I'm genuinely curious about this statement. Do you think we will have an non-inclusive sexual orientation only ENDA first, with trans protections added later?

As far as your firm - I'm sure you all do good work and that you have a diverse staff. I checked out your firm's page before I asked my question. So, I'll assume the answer is "No" you don't have a trans woman on staff.

It seems clear that those at the forefront of the LGBT rights movement might be unified in their commitment to secure the rights of legally male transgender women. When will it be acknowledged clearly and emphatically that the interests of people who are men and women who have rejected sex assignments and have gone through sex changing medical procedures to accomplish that physically, are not the concern of LGBT groups?

Compulsory inclusion of transsexual people under the "trans/transgender" umbrella carries with it the unavoidable implication that legal sex re-assignment is not a goal of the LGBT rights establishment. It seems that every card that is available is used to stack the deck against acceptance of transsexual people by pitting them against other transsexual people who are not able to access medical care for necessary transsexual procedures by leveling accusations that those who are able to access care are made callous because of their economic privilege. The double edge sword of heterosexual privilege as a slur is used against transsexual people in heterosexual marriages and against transsexual people who should be truly considered in same sex marriages and relationships.

The question is recognition of one's sex, re-assigned and in need of acceptance and also intersex which does not equate to third sex. Transsexual people are also pitted against those who wish to see themselves as "trans" and "transgender" by the dismissive nature of compulsory inclusion under an umbrella composed of people who are defined legally as an immutable birth sex.

In many jurisdictions transsexual people have had their rights as the sex they were re-assigned to, until someone came along and questioned those rights. Those rights are far greater than the "trans rights" you say are greater than GLB rights. Granted, many cases were lost. The compulsory umbrella is much more oppressive than what has been lost by backward thinking and arguments not thoroughly considered, however, because the lack of distinction of those under such an umbrella carries the implication that the rights granted transsexual people as the sex reassigned to are not justified by their transsexual status AND not even worthy of consideration. Compulsory inclusion of transsexual people under the "transgender umbrella" is a huge setback for transsexual people.

It is impossible not to conclude, that with all the legal scholars available between the various LGBT, lesbian, gay and lesbian, and transgender organizations, there is great contempt for the interests of transsexual people.

The answer among LGBT activists wishing to silence the concerns transsexual people is, well, "then leave" - a 'love it or leave it' response, that is so familiar to those who came of age during the Viet Nam era, when it is very obvious that organizations like GLAAD use their considerable muscle to erase the existence of transsexual people every time they throw their media guide at someone. There is no way around being thrown under the transgender umbrella without living in stealth until one is outed. Added to that, are the legal precedents being set where sex/gender double speak is being written into law along with GID in the recent tax court decision with the help of GLAD, an organization that doesn't even have a "T" in it's job description, whose operatives insist on going around describing sex changing genital surgeries as "transgender surgeries".

LGBT legal teams are making things worse, not better, for transsexual people in the US. The advocacy of such groups revolves around same sex relationships to the point of denying those their sex changes making for a monolithic same - sex agenda that avoids the tougher questions of sex change and legal sex identification from which rights would automatically flow, which would exist for any transsexual person unless they are in a same sex relationship. For those of us who are in a same sex situation, your efforts are make more and more of a legal morass for us and make asses out out us more and more than any late night t v show host could ever hope to.

Transgender employees deserve the same workplace anti-discrimination rights as the rest of us, and while gender discrimination laws offer some protection, the transgender community should not be left behind with ENDA. Accordingly, I made sure that the 2009 ENDA hearing in the House of Representatives did feature a transgender victim of discrimination

Apart from the sentence about your role in the 2009 hearing, this is boilerplate Gay, Inc./InsidersOut rhetoric. "Should not be left behind" does not mean "I will actively oppose all legislation that does erect superior legal status for gays and lesbians" and it definitely does not mean "I will actively oppose efforts to put the marriage wants of some gays ahead of the employment needs of not only trans people but the vast majority of LGB people."

This is brilliant! Terrific, insightful analysis.