In most of the United States, it is perfectly legal for businesses to refuse to hire, or to fire, someone for being lesbian, gay, bisexual, pansexual, transgender and/or transsexual. For the past generation, many queer activists have sought legislation against this discrimination, the Employee Non-Discrimination Act.
Wikipedia Overview
However, there have been several attempts to turn ENDA into a vehicle of discrimination. The worst of these efforts would require discrimination by private parties, and would force trans people to risk our safety every time we need to use public bathrooms. The majority of these efforts would forbid certain types of discrimination, but would make a point of excepting other types. These provisions would encourage businesses to discriminate, saying who they may discriminate against, and how they may discriminate. That is, in my view, far, far worse than nothing. Because the law specifically authorizes the discrimination, it will make it harder for activists to call out businesses which discriminate in this manner.
In 2007, back-room deals stripped gender identity coverage from ENDA. The resulting bill passed the House but did not pass the Senate. The resulting bill would have provided some coverage to most lesbians, gays, and bisexuals, but not transgender or transsexual people. Transsexual people face immensely higher poverty and homelessness rates, if employed, have substantially lower income, and if insured, have substantially less coverage than cissexual people, even cissexual lesbians, gays, and bisexuals. Transsexual people also face discrimination in the law, in identification policies, and elsewhere.
In 2010, new back-room deals are again excluding trans people from ENDA. There will be some gender identity coverage, but there are already provisions enabling disparate treatment. There is already strong pressure to expand these provisions into a loophole which encourages businesses to discriminate.
So far the provisions affect relatively few people, in circumstances where most trans people would want special consideration, i.e. more privacy. The current not-as-bad version reads:
(3) CERTAIN SHARED FACILITIES- Nothing in this Act shall be construed to establish an unlawful employment practice based on actual or perceived gender identity due to the denial of access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with the employee's gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition, whichever is later.
From HR 3017
The same language appears in the Senate version.
See S 1584
But there is strong pressure to expand this clause to include bathrooms. If so changed, it will affect all trans people, it would remove the connection with privacy, and it would encourage a range of discriminatory practices, such as forcing trans people to use one bathroom in a far corner of the building.
It could be far worse than that...
Barney Frank has been saying some very worrying things:
For instance, Frank said, transgender people with “one set of genitals” would not be able to go to a bathroom for people with another set of genitals.
And, Frank said, they also would have to have a “consistent gender presentation” in order to be able to sue for discrimination.
Roll Call article
So where would that leave us? The requirement for "consistent gender presentation" could easily discriminate against people outside the binary, against transsexual people early in transition, and even against some lesbian and gay people who are anything but transgender. The rule that "transgender people with “one set of genitals” would not be able to go to a bathroom for people with another set of genitals." would write yet another level of discrimination into the law, and would force the vast majority of transsexual people into the wrong bathrooms. That's not safe.
We shouldn't need surgery to pee in peace. I can't afford surgery. Most trans people can't afford surgery because of employment discrimination. If the law is going to require surgery to use the bathroom, like it all too often does to get proper identification, then the law had better find some way to pay for surgery too.
I honestly don't think Congress or the Senate can be trusted with anti-discrimination efforts. I'd much rather focus on getting the support of unions, on getting better documentation of the degrees of discrimination, on organizing boycotts, etc. But if ENDA forbids us to use the safest bathrooms, ENDA could turn into a catastrophe for trans people.