HRC and the End of ENDA
First published August 19, 2004, in the Bay Area Reporter.
The proposed Employment Non-Discrimination Act (known as “ENDA”) is dead, a victim of Republican opposition, Democratic indifference, and now the foolishness of the country's richest and most prominent gay civil rights organization.
Abandoning common sense, the Human Rights Campaign (HRC) announced in early August that it will no longer support federal legal protection for millions of gay workers unless the tiny number of transgendered workers get that protection at the same time. The decision is a slap in the face to gay Americans, who generously fund HRC, and who will now have to wait even longer for protection from employment discrimination.
ENDA was first introduced in Congress in 1994. From the beginning, it has been a carefully calculated compromise between the need for broad protection from discrimination and the practical realities of a political world just now getting used to the subject of homosexuality. From the beginning, it banned only employment discrimination, not discrimination in housing, education, or public accommodations. From the beginning, it applied only to relatively large employers. It exempted religious employers. It banned quotas.
And from the beginning, ENDA protected workers only from anti-gay discrimination, not from discrimination for a host of other reasons, like “gender identity and expression,” which would include transgendered people.
Until this month, HRC opposed adding gender identity to ENDA. In the judgment of Capitol Hill vote-counters, including uber-liberals Rep. Barney Frank (D-Mass.) and Sen. Ted Kennedy (D-Mass.), a transgender-inclusive ENDA could not pass Congress. Adding transgender protection would, in their judgment, scare off Republican congressional sponsors already in hot water for supporting protection for gays. That, in turn, would scare off some moderate Democrats.
Without the support of at least a few Republicans and moderate-to-conservative Democrats, ENDA could never pass even if the Democrats regained control of Congress. Better to pass an imperfect ENDA, one that gives at least some workers some degree of protection from discrimination, than to pass no ENDA at all. As HRC Political Director Winnie Stachelberg said just a year ago, “Now is not the time to add gender identity to ENDA.”
What changed? Defending the group's about-face, HRC has offered a mix of woolly principle and manufactured pragmatism.
On the principle, HRC notes that transgendered people, especially those transitioning from one sex to the other, face harassment on the job and even termination. Thus, they need legal protection just as gays do.
That's true, but it does not answer the question why ENDA must include gender identity. Lots of people face discrimination for lots of bad reasons, but that does not mean one bill must address every conceivable problem. Even a trans-inclusive ENDA will not be truly all-inclusive, since it won't protect people from other forms of discrimination, including perhaps the most common forms of discrimination based on appearance (like height, weight, and homeliness).
HRC cites the need for “unity” in the “LGBT community,” claiming that most gays support employment protection for transgendered people. That may be true in the abstract, but it's very doubtful most gays would support trans-inclusion if informed it would significantly delay any protection for gay workers.
On this critical point, HRC fails to produce any evidence that a trans-inclusive ENDA won't lose congressional support. That's what motivated HRC's opposition to trans-inclusion to begin with. Has HRC consulted the leading sponsors, Republican and Democrat, on the issue? How many votes will be lost? HRC has not answered these questions.
HRC also defends its reversal on what it calls “pragmatic” grounds. The group's new executive director, Cheryl Jacques, argues that adding gender identity to ENDA is a matter of gay self-interest. She hypothesizes that an employer might fire a gay man solely because he's feminine in appearance and manner, rather than because he's gay. The employer could then produce gender-conforming gay employees to prove it tolerates such gays, escaping ENDA's sanctions.
That's a make-weight argument based on a very unlikely scenario. Where is this Dodo bird of an employer who loves gays but detests gender nonconformists? Jacques provides no real-world example, and I am aware of none.
Moreover, to the extent an employer discriminates on the basis of a person's gender nonconformity there is arguably already some protection under Supreme Court interpretation of existing federal law. No such precedent protects gays from discrimination.
“Passing ENDA without gender identity and expression is like passing a copyright law that covers books and television shows but doesn't cover digital music or videos,” Jacques concludes in an op-ed. I'd say it's more like passing a copyright law that covers books, television shows, digital music, and videos, but omits a single CD manufactured in a leap year on a Thursday during a full moon.
It's possible that ENDA could still advance in Congress without the support of HRC (or of NGLTF, which long ago withdrew its support for the same reason as HRC, or of the Log Cabin Republicans, who seem only mildly interested anyway). Members of Congress, after all, aren't required to get HRC's approval before moving gay civil rights legislation. Put to an up-or-down vote right now, ENDA without trans-protection might well get majorities in both houses of Congress (it fell just one vote short in the Senate in 1996).
But there is now no longer any group in Washington, D.C. representing the interests of gay Americans on the subject of employment discrimination. That will make it very difficult to pass any employment anti-discrimination legislation for the foreseeable future, even with a Democratic Congress and President.