Tell Congress: Vote NO on ENDA (Update)

Tomorrow, I am going to call my congressman to urge him to vote NO on H.R. 3685, the Employment Non-Discrimination Act of 2007 (ENDA for short), as introduced on September 27, 2007.

H.R. 3685 is the version of ENDA that prohibits employment discrimination on the basis of sexual orientation alone.  The original version of ENDA, H.R. 2015, prohibits employment discrimination on the basis of sexual orientation or gender identity.

It is my opinion that the current version of ENDA, H.R. 3685, is a toothless bill which will protect in a meaningful way only a small fraction of the gay, lesbian, and bisexual community, and virtually no one who is transgender or otherwise gender variant.  Because of its legislative history of being derived from a broader bill, there is little chance that it will be interpreted more broadly by the courts to include some gender-based protections, even for gays, lesbians, and bisexuals.  Simply put, it does not offer enough protection to warrant the political compromises needed to ensure its passage.  

The original ENDA, H.R. 2015, is far more comprehensive and would give meaningful employment protection not just to the entire GLBT community, but to a significant portion of the non-GLBT community as well.  I'll explain why below the fold.

The Protections of the Original ENDA Bill

According to the bill, the purposes of H.R. 2015 are to:

1. to federally prohibit employment discrimination based on sexual orientation and gender identity;

2. to provide for meaningful and effective remedies for such discrimination; and

3. to invoke congressional powers under the Constitution to make such prohibitions.

Clearly these prohibitions mean nothing unless we define sexual orientation and gender identity.  The bill gives us the following two definitions:

1. the term sexual orientation means homosexuality, heterosexuality, or bisexuality;

2. the term gender identity means the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.

The definition of sexual orientation is simple enough, but take a look at how broad the definition for gender identity is.  Specifically, using this definition, the gender identity part of this bill is not just a narrow prohibition against employment discrimination against individuals who are transgender; rather it protects anyone against employment discrimination based on having gender-related characteristics which do not correspond to their perceived sex.  This bill, were to become law, would apply to a large precentage of our population.  Here are some examples, in no particular order:

1. Jessica, 32, has recently transitioned from male to female, and is in the middle of the one year waiting period before she have sex reassignment surgery.  She applies for and is offered a job under her new court-ordered female name and designated sex, but a week later the job offer is rescinded because the employer receives a no-match letter from the Social Security Administration stating that her social security number belongs to a male with the same last name.  At no time did Jessica lie on her application and at no point did the employer ask for previous aliases; Jessica simply had the misfortune of living in a state where a person could change their gender marker before surgery, whereas the SSA requires that a person have surgery before it will change the person's gender marker.  Under this version of ENDA, Jessica has recourse.

2. Mark, 42, is gay and works for Big Bucks National Bank.  He's received excellent performance reviews from his supervisor, but has been passed up for promotion to a management position three years in a row.  In this management position, Mark would be interacting with outside clients.  He finds out from several sympathetic colleagues (who are willing to testify on his behalf) that his boss's boss, Ben, who is also gay, refuses to promote Mark because Mark is effeminate, and Ben does not like the idea of an effeminate gay man being an outside face for the bank.  Under H.R. 2015, Mark has cause to sue because the discrimination is based on gender-related mannerisms.

3. Jamie, 25, is intersexed.  Specifically, she has congenital adrenal hypospasia (CAH).  Jamie is legally female and identifies as a woman, but because of her disorder, her body has masculinzed to the point where she is visibly muscular and has a deep voice.  Jamie has great interpersonal and organizational skills, however, and she has an associate degree in office management.  Every interview she goes on, however, is a failure, and at the last one, the interviewers bluntly told her that because of her looks and her voice, she would be an "inappropriate public face for their business."  Jamie can claim hiring discimination under this bill.

4. Andrew, 18, lives in a small town and works at the local grocery store.  Several months ago, Andrew started growing his hair long.  It's now long enough to tie back, which he does at work and at school to keep his hair neat.  His girlfriend loves his long hair, but the owner of the grocery store, Max, feels differently about it.  One day, Max pulls Andrew aside and says, in no uncertain terms, that "young men are supposed to have short hair," and "if you want a job tomorrow, get a real haircut."  The next day, Andrew keeps his hair and loses his job.  Under H.R. 2015, what Max did was illegal since he fired Andrew based on his appearance not conforming to Max's traditional image of someone who is male.

5. Emily, 37, works as a realtor for a real estate agency.  She's happily married, and she and her husband have two children.  The founder of the real estate agency, Jane, has direct control over who gets to work with the larger clients.  Even though Emily has been working at this agency for several years and has been very successful at her job, Jane never assigns her any of the big clients.  One day Emily has a meeting with Jane and asks her what she needs to do to get assigned a big client.  Jane, who is very feminine, says to her, "well, to be honest, you just don't look the part.  You have short hair, you never wear makeup, and I don't think I've ever seen you in heels.  Our clients are looking for a certain image.  Perhaps if you dressed the role..."  This isn't the first time Emily has heard this lecture from Jane, but it is the first time Jane has make it clear that Emily is being held back in her career because she does not meet Jane's standards of femininity.  Jane would be in an actionable position were H.R. 2015 to become law, since her reason for denying Emily the larger clients essentially was that she didn't look feminine enough.

The first example is that of an individual who is transgender, making this a classic example of what this bill would cover.  The second example is that of a gay man being discriminated against not because he was gay, but because he was effeminate.  It's the gender identity part of the bill which protects him, not the sexual orientation part.  The third example is that of someone who is intersex.  She is not transgender.  It's her gender variant appearance, not her sexual orientation (which we do not know), which is preventing her from landing a job.

The fourth example is of an unambiguously heterosexual man, and the fifth is of an unambiguously heterosexual woman.  We've all met people like Andrew and Emily, and we've all met people like Max and Jane.  Max and Jane believe that they can enforce their notions of gender on their employees.  They may also be hostile towards non-heterosexuals, but in these examples their employment decisions are based solely on issues relating to gender.  H.R. 2015, the original version of ENDA, would allow people like Andrew and Emily to hold people like Max and Jane accountable for their actions.

Protecting the Andrews and Emilys of the nation is as much of the reason why we should support ENDA in its original form as is protecting the Jessicas, Marks, and Jamies of the nation, and, when you think about it, there are a lot more Andrews and Emilys out there then there are Jessicas, Marks, and Jamies.  How many of the people you've met have lost a job or have been held back in a career because they just didn't look or act the part of their sex in someone's eyes?  How many other people have modified their looks or their mannerisms to fit gender stereotypes?  What about you?

The Reduced Protections of the Current ENDA Bill

In its current form, without gender identity, ENDA becomes rather hollow in its protections.  There are at least two reasons for this.  The first is clear from the last section of this diary: none of the examples listed above would be covered under the current version of ENDA, H.R. 3685.  This includes protections for individuals in all parts of the GLBT spectrum, heterosexuals, and individuals who are intersexed.  I would argue that the gender identity part of the original ENDA bill was the dominant feature of the bill, and without it, the current ENDA bill bears little resemblance to the original version.

There is a second, even more insidious problem with protections under the current version of ENDA, based on its legislative history.  ENDA has been introduced in every congress since 1996.  Before the 110th Congress, ENDA resembled H.R. 3685, with sexual orientation protected, but not gender identity.  Under pressure from GLBT organizations, gender identity protection were added this year, giving rise to H.R. 2015.

Before the 110th Congress, had ENDA passed and become law, our federal judiciary would have had some reason to interpret sexual orientation broadly to include discrimination based on effeminate behavior in men and masculine behavior in women.  This is how several state courts and state attorney generals have interpreted state versions of ENDA.  Thus, before 2007, the term sexual orientation would have included some (but not all) of the protections afforded under the gender identity provisions of H.R. 2015, since both the actual and perceived state of being gay, lesbian, or bisexual were covered under the sexual orientation provisions, and it would have been reasonable for a judge to assume that some Congress did indeed intend for some gender-related behaviors that often correlate with someone being non-heterosexual to be covered under the concept of perception of sexual orientation.

This all changed as soon as gender identity protections were added to the bill this year.  At this point, were H.R. 3685 to become law, even though it is for all practical purposes the same bill that has been introduced since 1996, it would have far less effect than, say, the 1996 version, since it would be reasonable for a judge to assume that, had Congress wanted gender identity protections included, they would have passed H.R. 2015, the version of ENDA with gender identity protections.  An employer would have a reasonable defense if it chose to dismiss an employee based on his or her mannerisms, rather than his or her sexual orientation, and a judge would have little choice but to interpret ENDA in this narrow light.  Here are two examples of situations which might have been covered under the 1996 version of ENDA, but would not be covered under reasonable interepretations of the current version of ENDA:

1. Amy, 19, works in Edith's women's clothing store.  Beth, 20, applies for a job at Edith's shop and does not get the job.  Amy and Beth are both lesbians and know each other from the local PFLAG support group.  Amy is feminine in appearance, while Beth has more of masculine, tomboy look.  Amy asks Edith why Beth didn't get the job.  Edith says, "Beth is a little too rough around the edges, if you know what I mean.  There's lesbians, and then there's lesbians.  You know how to fit in.  She doesn't."

2. Steve, 39, works for a mid-size corporation.  Steve consitently receives good reviews from his boss, Bill, and is well liked among his colleagues for both the quality of his work and his interpersonal skills.  Steve's colleagues know that Steve is gay, and while there's an occasional joke about Steve being "swishy," everyone seems fairly positive about it.  One day, before a big presentation, Bill brings Steve into his office and says, "Look, Steve, we have these important clients coming in tomorrow and they're a bit conservative.  Steve, you know I'm not a bigot, but just this once, you need to tone it down a bit.  Be a team player, okay?"  The next day, Steve is his usual self, his big presentation goes well, and everyone, including the clients, are impressed.  Everyone, that is, except for Bill.  In his next evaluation, Bill writes that Steve is "unprofressional" and "not a team player," and when bonuses are announced, Steve is left out in the cold.

In these two examples, Beth and Steve are discriminated against by an employer because of gender-related behaviors associated with their sexual orientation.  In both cases, the employers could claim that they did not discriminate based on sexual orientation.  Before H.R. 2015, this claim would likely fall flat, since a reasonable judge could interpret ENDA as covering not just sexual orientation, but the gender-related behaviors associated with sexual orientation.  With H.R. 3685, however, a reasonable judge could interpret ENDA narrowly, and the claims of both employers could be viewed as having merit.

Why I Believe H.R. 3685 Should Be Defeated

Despite the clear drawbacks of H.R. 3685, it does afford some protections to gays, lesbians, and bisexuals.  There is something to be said for passing any bill that improves civil rights for the GLBT community.  Some protections are better than none.  The perfect is the enemy of the good.  In this case, though, I think that we need to view the passage of this bill as what it is: a political compromise among members of the House of Representatives.  For any bill to become law, there is a political price to be paid.  This is especially true with a controversial bill like ENDA.

Clearly, Speaker Pelosi and Congressman Frank want some version of ENDA to pass the House this session.  The fact that Congressman Frank removed the gender identity part of the bill after our causus held a whip count is evidence enough to show this.  I won't speculate on their motives here; there is more than enough such speculation around the blogosphere to satisfy anyone.  I just wonder, based on their willingness to remove the gender identity protection from the bill, what else they have promised to other members of Congress to secure the votes needed for passage.  This is the political price: favors granted, markers called, threats made, quid pro quos and all of that.  This is all political currency that could be spent on something else this session, or, hopefully, a better ENDA in the future.

I recognize that some people in the GLBT community would benefit from H.R. 3685 were it to become law, and normally I would support a bill like this.  That said, I see the Speaker of the House and the lead sponser of ENDA hollowing out the original bill to make it passable, and I can't help but get the sense that they're more interested in getting any bill passed than with getting the right bill passed.  I've weighed the benefits of the current version of the bill with the effort and the political capital needed to pass it in its present form, and I've found the bill wanting.

You may have a different opinion.  In the end, it's your call.  I just want to put my thoughts out there for everyone to consider.

[Update 00:50 CDT 02 Oct 2007]: As homogenius points out below, Lambda Legal has done a preliminary analysis of H.R. 3685.  H.R. 3685 is NOT the original ENDA bill with the gender identity protections removed.  There have been several changes.  I did a line-by-line comparison of both bill in Thomas, and here is a preliminary list of all of the changes (sorry for not citing paragraphs; the changes are in order from top to bottom):

1. There's a whole new definition of religious organization, and it's broad.

2. They partially gutted the retaliation part of the bill.

3. They completely gutted the religious exemption part of the bill, and with the new definition of religious organization, it's a BIG deal.

4. As Lamba Legal noted, they also knocked out the shared facilities and dress and grooming standards part of the bill, and

5. the employee benefits part of the bill has been significantly modified.

6. The effective date has been moved from 60 days after enactment to 6 months.

I'll put up another diary tomorrow with a more detailed list, but if anyone wants to do this themselves, feel free.  We need to get some sunshine on this bill.

•  Tip Jar

  I'll be in and out of contact, but I'll try to make comments as I am able.

  by A Yankee in Texas on Mon Oct 01, 2007 at 12:51:29 PM PDT

  •  Won't dubya veto this regardless? n/t

    by Bouwerie Boy on Mon Oct 01, 2007 at 01:10:50 PM PDT

  •  Sorry this isn't getting more attention.

    I think this is the best diary written over the past few days.

    by homogenius on Mon Oct 01, 2007 at 01:51:52 PM PDT

    •  Apparently it's worse than we thought.

      According to preliminary analysis by Lambda Legal, this bill is worse than any previous version.

      Here are the key points (I've cut this down for copyright reasons--I recommend reading the original):

      * The recent version is not simply the old version with the transgender protections stripped out — but rather has modified the old version in several additional and troubling ways.

      * 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...who may not conform to their employer's idea of how a man or woman should look and act.  

      * This version states without qualification that refusal by employers to extend health insurance benefits to the domestic partners of their employees...cannot be considered sexual orientation discrimination.  

      * In the previous version of ENDA the religious exemptions had some limitations. The new version has a blanket exemption.

      In short:

      "Leaving out protections for transgender people is unacceptable, and passing a bill riddled with loopholes will make it harder to achieve equality on the job," said Kevin Cathcart, Executive Director at Lambda Legal.

      I was reluctantly in favor of pulling the latest version of ENDA. Now I am absolutely in favor of pulling what I now officially call "ENDA-lite". It is fatally flawed and must be fixed before it can be considered.

      by homogenius on Mon Oct 01, 2007 at 09:19:18 PM PDT

      •  Good Grief

        Thanks for the great comments, homogenius.

        I didn't realize that H.R. 3658 was worse than all previous versions of ENDA.

        I'm looking at Thomas right now...  They changed a lot more than I thought:

        1. there's a whole new definition of religious organization, and it's broad.

        2. they partially gutted the retaliation part of the bill

        3. as you noted, they completely gutted the religious exemption part of the bill, and with the new definition of religious organization, it's a BIG deal.

        4. as Lamba Legal noted, they also knocked out the shared facilities and dress and grooming standards part of the bill, and

        5. the employee benefits part of the bill has been significantly modified

        6. the effective date has been moved from 60 days after enactment to 6 months

        This was not a cut and paste job.  Whoever did this went through and systematically changed large parts of this bill.

        by A Yankee in Texas on Mon Oct 01, 2007 at 10:39:36 PM PDT

        •  Somebody has some 'splaining to do.

          We need an explanation of what the flip is going on here. I gave Barney the benefit of the doubt on Friday. Now I want some answers. This is not worth passing at all.

          by homogenius on Mon Oct 01, 2007 at 10:46:57 PM PDT

          •  No kidding.

            It looks like they're trying to make a lot of queasy representatives happy.

            How many times do we have to tell the Democratic leadership: you don't try to appease the right, and you don't win by moving to the center.  You certainly don't try to appease the right on a civil rights bill, because they will never be satisfied.

            I've heard that the whip count put the original H.R. 2015 vote at 213, five votes shy of passage.  Five votes.  They're telling me that they can't whip up five votes?  Is the House majority whip that bad at his job?

            Maybe so.  Maybe this is part of the reason why we can't get out of Iraq.  If the leadership can't whip up five votes (that, if Frank is to believed, he was supposed to have), then how do they expect to pass anything?

            by A Yankee in Texas on Mon Oct 01, 2007 at 11:01:09 PM PDT

          •  Bite my ass

            You have little-to-NO understanding of how the legislative system works. Your POS comment sucks. And I say that will ALL the greatest respect my gay brutha.

            BTW - who gives a rat's ass to whom you gave "the benefit of the doubt to?" You're not the gay messiah.

            by Shane Hensinger on Tue Oct 02, 2007 at 12:57:35 AM PDT

            •  :-(

              Aren't we all bruthas?

              Your donuts make me sad. And you're STILL not the gay messiah.

              by Shane Hensinger on Tue Oct 02, 2007 at 03:18:00 AM PDT

    •  The "best diary?"

      Because you agree with it?

      You are one lame-ass beoytch.

      by Shane Hensinger on Tue Oct 02, 2007 at 01:01:48 AM PDT

      •  Let it go, Shane.

        Or you're gonna get a lot of donuts.

        The history here, for those just joining us--Shane wrote an inflammatory diary about this which I criticized. He has since deleted it. Now he's bringing the argument into someone else's diary.

        Shane, following me into another diary to stir up shit is against site guidelines.

        by homogenius on Tue Oct 02, 2007 at 02:53:09 AM PDT

        •  Diary was deleted

          because I had my fellowship orientation at NYU and couldn't hang out to respond to your lies and fallacies any longer. You and your tranny-rights gang swarmed on me like bees on sugar, and while I do love being swarmed on (but by guys far younger than yourself) I gotta be able to say my piece.

          I happened upon this diary and commented on it because of the merits. It's not I who brought up your inane comments from other diaries.

          by Shane Hensinger on Tue Oct 02, 2007 at 03:23:13 AM PDT

          •  Heh.

            by homogenius on Tue Oct 02, 2007 at 04:25:18 AM PDT

•  I'm torn.

  But in the end, I'm thinking something is better than nothing, especially with this Congress.

  by AUBoy2007 on Mon Oct 01, 2007 at 01:02:06 PM PDT

  •  I agree

    by andgarden on Mon Oct 01, 2007 at 01:13:08 PM PDT

  •  I feel the opposite, reluctantly.

    I wavered on this over the past three days. But I'm inclined to say pull it. For one thing, the major orgs agreed to the all-or-nothing strategy.

    There's a downside to either choice. Frankly, I find both heartwrenching.

    by homogenius on Mon Oct 01, 2007 at 01:22:21 PM PDT

    •  Sigh.

      I know the major organizations may have agreed to an all-or-nothing strategy, and I understand why (and think it was a good choice).

      But I just cannot bring myself to call for someone to vote against any form of ENDA.

      by AUBoy2007 on Mon Oct 01, 2007 at 01:32:14 PM PDT

      •  I know.

        I honestly don't know what is the best course. I feel like passing ENDA-lite, even with the risks the diarist points out, would be beneficial to a lot of folks in red states.

        On the other hand, our trans brothers and sisters are taking it very personally and their hurt and anger is very real.

        Reluctantly I'll say we should stick to the agreement. But your guess is as good as mine as to what is really the best course.

        by homogenius on Mon Oct 01, 2007 at 01:43:40 PM PDT

  •  Perfect is the enemy of good

    As Barney Frank explained on Americablog the history of this legislation (which was first introduced 30 YEARS AGO) this is the first moment they've had the votes to get even the truncated bill through.

    If purists kill the bill, there may not be another moment.

    If bill passes, it will be easier to attach gender issues later.

    Frankly (so to speak) Barney Frank should know, if anyone does.

    by judybrowni on Mon Oct 01, 2007 at 08:58:40 PM PDT

    •  Unfortunately, not.

      The bill that is up for consideration is NOT the bill that existed before adding trans protections. See my post above with link to Lambda Legal.

      by homogenius on Mon Oct 01, 2007 at 09:20:54 PM PDT

      •  If wishes were horses

        If wishes were horses, beggars would ride
        by John Aravosis
        From an email just sent out by the National Gay and Lesbian Task Force (no link in their email, so they don't get one):

        Our community must continue to weigh in with every member of Congress, letting them know of our insistence that a fully [transgender] inclusive ENDA must pass the House this year.

        The reason gender identity (i.e., transgendered people, e.g., transexuals) got dropped from ENDA wasn't because Dem leaders didn't want trans in there. It's because we don't have the votes to get ENDA passed if it includes job protections for transexuals. No amount of "insistence" is going to change that fact; all the pressure in the world on Democratic leaders isn't going to convince Republicans and conservative Dems to support transexual rights. Pressuring Dem leaders to add the T back into ENDA is addressing the symptom but not the cause. The Dems dropped the T because we don't have the votes when we include the T. Forcing them to put the T back in does nothing to change the vote count.

        And, once we succeed in getting the T added back to ENDA, what's the plan for convincing the Republicans and conservative Dems to endorse transexual rights, to vote for a trans inclusive ENDA?

        [crickets]

        I haven't noticed a massive pro-trans ad campaign, TV campaign, op ed strategy, or anything else over the years. We debate gay issues all the time publicly, and it's still taken us 30 years to get to the point where we have a shot at passing ENDA for the gays. And now we're expected to easily pass it with gender identity added on (ENDA has been around for 30 years, while gender identity got added to it for the first time this year) when there's been no real education of the American people or the Congress whatsoever (and yes, I know the transgender organizations have been lobbying congress since the early 90s, at least, but that is not the same as a national education campaign such as we've had on gay issues - and even then, we still have an awful time when gay issues come up for a vote, especially when the congress turns Republican (and there's no guarantee it won't again sometime soon)). It's just my gut, and I hope I'm wrong, but I fear that anyone who thinks the US Congress is going to pass a "transexual civil rights in the workplace bill" any time soon is deluded. I'd love to see it passed, I support its passage, but wishing (aka "insisting") doesn't make it so.

        So insist away that the Dem leadership put the T back in to ENDA, but please don't call it a victory when ENDA goes down in flames as a result of your actions, and 25 million gays and lesbians are told to wait a few more decades for their civil rights (assuming they live that long, don't lose their jobs in the meantime, etc.). If losing is your definition of victory, then we can all pack our bags and go home, because we can achieve that victory - have been achieving that victory for decades - without lifting a finger or donating a dime to a knowier-than-thou gay group.

        by judybrowni on Tue Oct 02, 2007 at 10:59:07 AM PDT

        •  Hey judy--

          Do you realize that's a copyright violation? You just copied an entire article from a copyrighted website. FYI--Kos has come down really hard on this.

          For what it's worth, I think Aravosis is off on this. I don't think he's taking into account everything that's going on and dismissing a lot of valid viewpoints. I think a reasonable person can conclude that we should go forward with a bill we can pass. I happen to have come to a different conclusion.

          by homogenius on Tue Oct 02, 2007 at 12:11:51 PM PDT

          •  No, as a matter of fact

            I didn't copy the entire column ... indicates cuts.

            And, I credited him.

            I've also since changed my opinion, and think Aravois and trans community are right: there may not be the votes at the moment, but trans community is properly moving the goal posts as the first move in the battle for inclusion.

            by judybrowni on Thu Oct 04, 2007 at 10:46:27 AM PDT

•  Short-sighted

  The perfect is the enemy of the good. Yes, Congress should pass the original ENDA -- and end Bush's war, and institute universal health care, and stop pollution, and a helluva lot of other things.

  Do you really want to abandon the prospect of gaining employment protection for many people because even more people aren't covered? Doesn't it make sense to get as much as is politically feasible now, and then work even harder to get more people covered?

  The original bill was slated for Republican sabotage. Isn't it better to rescue part of the legislation than to abandon it all?

  by S1NV on Mon Oct 01, 2007 at 01:13:15 PM PDT

  •  Unfortunately, I think it's much more complex.

    The diarist has raised an important point about the legislative history of the bill. I think one of the biggest questions now is which approach will accomplish the least fracturing among LGBT communities.

    There are a number of contexts to be considered here and I'm not sure there is on right answer--all the alternatives are imperfect.

    by homogenius on Mon Oct 01, 2007 at 01:30:52 PM PDT

  •  I agree

    that, in a perfect world, we'd take what we can get now and work on protecting transgendered and gender variant people as the next step.

    But, what politician is going to take the risk of carrying forward that legislation?  Particularly given the overall size of the group being protected?  It's analogous to the "orphan drug" problem.  The drugs are needed and necessary but developing them are too costly, given the overall amount of people impacted.
    http://en.wikipedia.org/...

    If we don't protect transgender people at the same time as we do gays, lesbians and bi-sexuals, I'm afraid it won't happen for a very, very long time.

    by DMiller on Mon Oct 01, 2007 at 01:44:05 PM PDT

    •  And are you willing ...

      ... to wait to protect gays, lesbians and bisexuals?

      It's analogous to the "orphan drug" problem only if the money funding those orphan drugs is coming out of programs researching a cure for cancer or HIV.  Either way you look at it, someone gets screwed.

      The question is whether it's more likely that people will give in and protect transgendered people or whether it's likely that people will scrap the whole thing.

      by lemming22 on Mon Oct 01, 2007 at 03:41:28 PM PDT

      •  I don't think there's any chance they would scrap

        the whole thing. If ENDA doesn't pass now, I think the odds are 100% of it coming up again after January 2009, with a Democrat in the White House and larger majorities in both houses in Congress.

        That said, I still lean towards passing a more limited ENDA now, and working for a better bill in addition later on. It's just too hard to think of encouraging people to vote against ENDA. I clicked on this diary expecting it to be a right-wing troll diary (and was very pleasantly surprised to find one of the more thoughtful diaries I've seen in a while).

        But that said, I do think DMiller has an excellent point in his last paragraph, above, and I rec'd his comment. Once L, G, and B are protected, getting protection for T and long-haired hippie freaks is going to be a long uphill slog.

        by dconrad on Mon Oct 01, 2007 at 04:35:11 PM PDT

      •  Did you not read my comment?

        My point is that if we don't wait and get transgendered people under the umbrella, they likely won't get protection at all.

        Moreover, I don't think Bush will sign this bill at all.  Thus, there's this incredibly divisive wedge issue that's been introduced to the community and it's all for nothing.

        My position is, and has been, to pull the bill and wait until we have a democratic president and congress who will pass it without it being watered down.

        by DMiller on Mon Oct 01, 2007 at 05:51:40 PM PDT

  •  Especially When the Perfect Is Beyond Reach

    Not only is the perfect beyond reach, but the good (the scaled down bill) is a tough sell as well. The diarist's careful analysis fails to identify a single advantage of opposing the narrower bill; basically it says only, albeit accurately, that the narrower bill does not offer as much protection as the broader bill.

    by relehrer on Tue Oct 02, 2007 at 06:56:05 AM PDT

    •  Not exactly

      I said that the protections offered by the narrower bill do not justify, in my opinion, the political currency required to push it through.

      The advantage is that, as long as we wait, our allies in congress can build up support for a better bill and leverage in the form of favors.  Soon enough, the protections we get will be worth the political cost.  Based on my analysis, though, I just don't think we're there yet.

      by A Yankee in Texas on Tue Oct 02, 2007 at 10:53:55 AM PDT

•  Great analysis, but too much inference.

  I disagree with trying to infer too much from Barney Frank's and the leadership's actions on this.

  Yes, it's politics. Politics is the art and science of governance and it is absolutely about getting sufficient votes to pass a bill or elect your candidate.

  Your assessment about putting gender identity in then taking it out is very interesting. I think there's a good chance that what you describe could happen.

  To me the more compelling argument is that so many LGBT groups agreed on an all or nothing approach and I'm hearing a lot of our trans brothers and sisters asking us to honor that. Add to that the likelihood that Bush would veto it either way. So reluctantly I have to say we should pull ENDA.

  I don't think we can know for an absolute certainty which approach would be better in the long term for passing protections for gays, lesbians, and bisexuals or for transgender people.

  I think there's a downside risk for trans people and groups to call for withdrawing ENDA without trans protections, but they're within their rights.

  Thanks for the in-depth analysis and for not repeating all the "betrayal" and "thrown under the bus" hyperbole. I especially appreciate the broader context of what this bill means--I think this is important for people in all our LGBT communities to understand. One thing I think we have learned from this (including Barney and the leadership) is how far we have to go in educating both constituents and legislators on the need for gender identity protections. What we need to do now is regroup, reunite and move forward.

  by homogenius on Mon Oct 01, 2007 at 01:19:09 PM PDT

  •  as long as the democrats win next round...

    ...it should be more than OK to wait.  And if they don't, well, it seems possible there will be other significant preoccupations :}

    I liked how this diarist made the argument for non-trans gender variant folks.  It's not the argument I use, because it appeals to what's smaller in people instead of what's larger, but it's a good argument and has a lot of truth to it.  

    by jessical on Mon Oct 01, 2007 at 04:12:18 PM PDT

    •  But is it "what's smaller in people"?

      I strongly disagree. I think it's another piece of the puzzle. There is a long list of considerations at this juncture. If we are truly in this together, then we need to understand what any decision means for all of us. The gender identity language needs to be understood in all its ramifications.

      by homogenius on Mon Oct 01, 2007 at 04:22:31 PM PDT

      •  eh...

        ...interesting.  I actually tend to think there are a lot of very small administrative accomodations, and a general desire not to be horrid, which make trans life in a professional context possible.   So looking at the specific language makes me think people will freak who might otherwise have been cool.

        There's just not that many trans folks.  There's a LOT of gender variant folks, who aren't necessarily trans.  Just as with the gay and lesbian community, there are people who make a very good case for "totally normal except for one thing you'd never notice" and people who are, well, out there.  I've been in a boat similar to yours (as I understand it), albeit from the other direction, in thinking a bill which was very specific to transsexual civil rights would do a lot better than one which chose to address gender normativity.  There is a lot about the generally inclusive nature of the thing I don't love, and makes it a harder sell.  

        That said...the ENDAs I've seen pass legislatively make a point of avoiding these fights, the whole issue tends to go under the radar, for the mot part, and it's not something that actually comes up in case law much, so there's no later outcry or twitch.  Now that the split has been made, it's likely to be really icky....

        by jessical on Mon Oct 01, 2007 at 04:35:17 PM PDT

•  You know

  I sympathize with transgendered individuals who are left out of this bill because the country is a few decades behind on trans rights vis a vis gay rights. I recognize that people are asking for justice and not "my sympathy", but it is all I can say.

  That said, while I support equality for transfolk, and recognize how 4 and 5 are on the spectrum of gender discrimination, it would be really hard to get Americans to get behind making that kind of discrimination illegal. Many Americans oppose discrimination against gays and lesbians, a smaller number (growing with time, but too slowly) oppose discrimination against trans people, but it is a different leap to get people to accept the right to wear long hair as an issue deserving federal protection.

  You're too far ahead of your time. To most people, that is past where the rubber hits the road on the issue of enterpreneurial independence or kids just "being rebellious."

  by brittain33 on Mon Oct 01, 2007 at 01:23:56 PM PDT

•  I think they should pull the bill

  entirely unless there's a guarantee that it'll pass without Bush's veto (is there?) as it is currently.

  However, on principle, they should wait till the Democratic administration of [insert democrat running for president here] before attempting this.

  by terrypinder on Mon Oct 01, 2007 at 02:27:27 PM PDT

•  Vote yes

  The passage of this bill, however flawed, will give the indication that gays are humans.  This message from the government will make it easier to pass more legislation in the future.

  The 1957 civil rights bill was a joke, but the fact that a civil right bill finally passed emboldened the pro-civil rights side and would finally lead to the 1964 version.

  by IhateBush on Tue Oct 02, 2007 at 06:17:58 AM PDT