SYMBOLISM OR SUBSTANCE IN ENDA DEBATE?

By Jody M. Huckaby

When the Employment Non-Discrimination Act (ENDA) received its first-ever vote in the House of Representatives and passed the Education and Labor Committee on Oct. 18, it should have been a historic - and celebratory - moment for the lesbian, gay, bisexual and transgender (LGBT) community. But there was a cloud hanging over the vote, with over 300 LGBT and allied groups in the United ENDA Coalition advocating for the original form of the bill introduced earlier this year- one that finally included a ban on discrimination based on gender identity. The House Democratic leadership's decision to strip those protections from the bill, leaving only sexual orientation covered, has turned what should have been a victory into an unnecessarily divisive, disappointing setback for the LGBT movement.

Unfortunately, the mainstream media has characterized this primarily intra-community conflict as the protestations of a "fringe minority of transgender activists" or the "extreme left" of the LGBT population. Nothing could be further from the truth. One look at the list of organizations and the constituencies we represent makes that crystal clear. This is not a conflict between "pragmatic incrementalists" and "all-or-nothing idealists." This controversy goes to the very core of what brings the LGBT community together, and it has forced a much-needed debate to the surface. It is time for some truth-telling and difficult conversations about what it means to be a community advocating for workplace protections.
Our coalition is urging Congress either to restore gender identity protections via an amendment offered by Congresswoman and out lesbian Tammy Baldwin or, if that cannot be accomplished, to drop the effort to pass LGBT anti-discrimination legislation this year. The reality is that this President will not even consider signing such a bill, whether it covers gender identity or only sexual orientation. This gives us the opportunity in the coming months to continue to educate our elected officials - and the public - about how matters of gender affect people of all sexual orientations.

Legal experts have criticized the existing bill as having far too many flaws to provide adequate protections for individuals based on sexual orientation, which often is closely linked to their actual or perceived gender expression. Gay, lesbian and bisexual people who are "straight-acting and appearing" might indeed face a safer future following the passage of this bill, but those who more outwardly transgress gender norms would remain vulnerable under the stripped-down ENDA. Sadly, this has been lost in nearly all of the media coverage of this issue.

Simply put, men who are perceived as effeminate and women who are seen as masculine are often singled out for discrimination in the workplace, and federal case law is not settled as to whether Title VII of the Civil Rights Act of 1964 provides sufficient protection for such individuals. Take the example of Christopher Vickers, a private police officer at an Ohio hospital. He claimed that he had been discriminated against and verbally and physically harassed on a daily basis after he became friends with a gay man. Much of the harassment focused on questioning Vickers' masculinity and suggesting that his sexual practices were those traditionally associated with women. Just last year, a federal appellate court threw out Vickers' case because it found that Title VII does not forbid this type of discrimination. Keeping gender identity protections in ENDA would help correct such rulings and represent a major advance in the civil rights of all Americans -- lesbian, gay, bisexual, transgender and straight.

While under most circumstances we would support efforts to achieve a tactical victory in the House this year, we feel that seriously weakening the bill and dividing the LGBT community represent a price that is simply too high to pay for a purely symbolic exercise. We believe that maintaining an inclusive ENDA, with protections for the entire LGBT community intact, is both the pragmatic and principled way to proceed.

Advocates of the stripped down ENDA have said that insufficient education has been done concerning transgender Americans and broader issues of gender identity. However, they appear to have overlooked the dramatic, recent gains made in adding gender identity protections to state and local law. Twelve states, the District of Columbia and more than 90 counties and municipalities now protect transgender people from workplace discrimination. Together, these jurisdictions contain more than 100 million people, about 37 percent of the U.S. population. While more states and localities have sexual orientation protections (representing just over 50% of the U.S. population), the gap is narrowing rapidly.
Since 2003, every state and nearly ever municipality that has enacted sexual orientation protection has also covered gender identity. In large measure, this progress has been the result of the growing unity, solidarity and cohesion of the LGBT community.

United ENDA's primary goal is to keep our community and our allies united behind an inclusive ENDA until progressive forces have strengthened their position in Congress and there has been a change for the better in the White House. Our coalition represents not only LGBT people, but their parents, family members and straight allies who understand the importance of keeping the community united rather than pulling it apart. Watering the bill down now and dividing the LGBT community for a victory that is more apparent than real is a dangerous distraction and the wrong precedent to set.

If members of Congress need more education on gender identity issues, let's continue to increase our work to do that now. Let's make sure they know that surveys show that 60 percent of transgender respondents have either no source of income or earn less than $10,000 a year, demonstrating the desperate need for employment protections for transgender people. Let's make sure they know how frequently lesbians, gay men and bisexuals are subjected to discrimination based not on their sexual orientation but also because of attitudes about how "real" men and women are "supposed" to look and act. Let's work together to pass the right bill, one that unites LGBT people, their families and straight allies together, not an inadequate bill that fails protect everyone equally.


Jody M. Huckaby, Executive Director, Parents, Families and Friends of Lesbians and Gays (PFLAG) National. PFLAG is one of nearly 350 organizations that are part of www.UnitedENDA.org

ENDA: Spelling it Out!

Dear Congressman Wamp:

I appreciate you taking the time to respond to my request that, in your representation of me and other Tennessee citizens, you vote to uphold those qualities that make America such a wonderful place; namely: equality, opportunity, and self-sufficiency.

I am also thrilled to see that you are of the opinion that the Constitution affords each person equal standing in the eyes of the law. I take your statements in the message below to mean you will not be voting for any constitutional amendments that may restrict personal liberties or equalities. I would also read your response to mean that you will vote in favor of providing same sex partners with rights equivalent to those of their heterosexual counterparts.

Congressman Wamp, as an American who is educated, pays taxes, and holds a professional job in your district, please let me assure you my right to earn a living and my ability to pay taxes are threatened by ignorance in the workplace every day. This does not mean I, or others, should run and hide or fear retribution for who God made us. While we do not yet have definitive proof, all genetic studies point to the fact that homosexuality is determined by a specific genome coding, activated by endocrine triggers.

Now, I can not choose whether or not I like men or women, nor can I choose the color of my skin, but I can choose to fight for the rights of every American, whether they be black, white, hispanic, gay, straight, male or female. And sometimes minorities in society require— and deserve— the aid of the blind, impartial law.

I can not, with any greater urgency, encourage you to speak with citizens in your district who fight discrimination in the work place daily. Many of them, in fact, work in government offices and departments. For your argument against voting for equality in the workplace, you sight that the law and constitution is already on my side; if so, why is it not protecting the very people who work for the government directly?

Congressman Wamp, I am happy to speak with you regarding this or any other subject. I sincerely hope that I may be able to help sustain a dialogue so that all of your citizens are represented equally and fully.

Best regards,
Chris Dutton


Subject: Message from Congressman Zach Wamp
Date: Wed, 10 Oct 2007 12:58:14 -0400


Dear Chris:

No one should ever have to face discrimination for any reason. Federal, state, and local laws provide protection of life and liberty for all United States citizens. The Constitution guarantees protections for each of us, and the Supreme Court has ruled in favor of these protections over and over again.

A society free from discrimination is a goal we share even though we may differ on what is necessary to achieve it. Unfortunately, passing more laws does not guarantee intolerance. The law and the constitution are already on your side.


WarmestRegards,
Zach Wamp
Member of Congress

Transgender Workplace Diversity

New Book Title now available on Amazon.com

Transgender Workplace Diversity: Policy Tools, Training Issues and Communication Strategies for HR and Legal Professionals

Jillian T. Weiss, J.D., Ph.D.

This book is a step-by-step "how-to" for corporate and legal professionals on transgender issues in the workplace.

It is targeted to the needs of employers who are facing transgender issues and want an accessible resource for creating transgender-friendly policies, training management and co-workers, and providing effective communications with clients and customers working with transgender employees. It provides organizational leaders with a roadmap and detailed explanations. It is also useful for transgender employees who want to get their employers on the right track with authoritative information targeted to the modern workplace.

The book provides transgender basics, including the correct terminology to use, and an explanation of the gender transition process impacting the workplace. It discusses gender identity law and policy, such as bathroom and dressing room issues, identification and records changes, and health benefits for transgender employees. It includes a sample gender transition policy, training guidelines, and HR/legal frequently asked questions. An appendix contains legal information important to understanding the complex landscape of federal, state and local regulation.

The author, Dr. Jillian T. Weiss, has a J.D. and a Ph.D. in Law, Policy & Society, as well as 20 years of experience in the corporate world. Currently Associate Professor of Law and Society at Ramapo College of New Jersey, she has conducted research involving hundreds of companies and public agencies that have adopted "gender identity" policies. She publishes a popular blog on the subject of Transgender Workplace Diversity, http://transworkplace.blogspot.com , and has published several articles on the subject of gender identity, which may be found at http://phobos.ramapo.edu/~jweiss . Dr. Weiss is also Principal Consultant for Jillian T. Weiss & Associates, a consulting firm that works with organizations on transgender workplace diversity issues. She consults with corporations, law firms, diversity trainers and governmental organizations regarding training, policy development and communications strategies in the area of gender transition. Dr. Weiss has worked successfully with Fortune 500 companies and large public agencies during the past few years. Her work has been featured in news stories by the Associated Press, the Society for Human Resource Management, Workforce Management Magazine, and HR Executive Magazine. Her insights into the workplace issues of the transgender community are especially keen because of her experience as a transgender woman.

More information about the book is available at http://transworkplace.blogspot.com . If you are interested in reviewing the book for your publication, contact Dr. Jillian T. Weiss at jtwassociates@gmail.com for a review copy by mail or online ebook.

· Paperback: 268 pages

· Publisher: BookSurge Publishing (September 27, 2007)

· ISBN-13: 978-1419673283

· LCCN: 2007905925

· Dimensions: 9 x 6 x 0.7 inches

· Price: $18.99 Paperback

WEAKENED ENDA MEANS LESS PROTECTION FOR EVERYONE

“Definitions of who is protected by the bill leave gaping loopholes so that no one will be fully protected against discrimination. Congress should finish the work it began 44 years ago when it made employment discrimination based on sex illegal, and once and for all rid the workplace of sexual stereotypes. ”



Statement

The American Civil Liberties Union, Lambda Legal, the National Center for Lesbian Rights, Gay & Lesbian Advocates & Defenders and the Transgender Law Center are dedicated to establishing and preserving the civil rights and civil liberties of lesbian, gay, bisexual and transgender (LGBT) people. Between us, we have been responsible for most of the public interest litigation about the rights of LGBT people in this country.

We have been working for the day when the federal government makes the workplace discrimination LGBT people face illegal since the first such proposal was introduced in Congress in 1976. But as much as we wish that day had already arrived, it will not do much good if all we get is a bill that would not protect our community’s basic rights. While the first version of the Employment Non-Discrimination Act (ENDA) introduced this year would have protected our community, the version introduced last week would not.

We see three significant problems with this weakened version of the bill:

1. Protections for transgender people were removed.

2. Definitions of who is protected by the bill leave gaping loopholes so that no one will be fully protected against discrimination.

3. The blanket exemption for religious employers is broader than the exemptions in other civil rights laws and leaves many workers with no legal protections.


1. Protections for transgender people were removed. This is unacceptable. Transgender people have been a part of our community’s fight for civil rights since it began, and there is no principled reason to pass a law that does not cover gender identity and expression. We have come too far in our understanding of discrimination based on gender, sexual orientation and gender identity to leave anyone behind, unprotected by law.

2. Definitions of who is protected by the bill leave gaping loopholes so that not even lesbians, gay men and bisexuals are likely to be fully protected against discrimination. This new version of the bill says that it prohibits discrimination based on actual or perceived sexual orientation, which it defines as “homosexuality, heterosexuality or bisexuality.” That definition not only leaves out transgender people, but creates a gaping loophole that we are concerned may leave out others as well.

There is a serious risk that courts will say a law banning only sexual orientation discrimination offers no protection to men who are fired because their employers think they are effeminate and women who are fired because employers think them too masculine. Focusing on the definition of sexual orientation, courts may well say that Congress only intended this new version of ENDA to cover discrimination against a person because of the simple fact that he or she is or is thought to be gay, straight, or bisexual and could further say that sexual orientation is defined only by a person’s choice of sexual or relationship partners. In other words, the courts could rule that the law does not cover discrimination because a person is seen as not meeting others’ expectations of how a “real” man or woman should look and act. Congress could have included that kind of gender nonconformity and stereotypes in ENDA, they may rule, but quite explicitly chose not to.

While some might argue that the prohibition on discrimination based on “actual or perceived” sexual orientation protects against that, courts might rule that an employer has not violated this new version of ENDA if the employer simply says that it has no problem with gay people but just did not want a worker whom the employer thinks was too feminine or masculine - something an employer might say about almost any gay man, lesbian or bisexual. That is why the protection this new version of the bill purports to provide could prove illusory for many people. .

If this sounds unlikely, it isn’t. We have already seen very similar, super technical interpretations of what is prohibited under laws that ban discrimination based on marital status, sex or disability.

Moreover, discrimination based on sex, sexual orientation and gender identity at some level are all discrimination based on stereotypes about what is or is not appropriate for men and women; what jobs are appropriate, what relationships are appropriate, what kind of personal and public identity is appropriate. Trying to split them apart makes little sense and invites the kind of legal hairsplitting that has made so many civil rights laws less effective.

Splitting sexual orientation from gender identity in ENDA would also have the perverse effect of leaving those who most need the protections of federal law out in the cold. Between our organizations, we have many, many years of experience working with people who have been discriminated against. No one suffers more than those who appear most visibly to depart from the conventions of gender.

Congress should finish the work it began 44 years ago when it made employment discrimination based on sex illegal, and once and for all rid the workplace of sexual stereotypes.


3. The blanket exemption for religious employers is broader than the exemptions in other civil rights laws and leaves many workers with no legal protections. Every federal civil rights law has a limited exemption for religious organizations. The 1964 Civil Rights Act says it is not illegal religious discrimination for a religious organization to give preferences to members of its own church. The Americans With Disabilities Act (the ADA) has a similar exemption, and also allows a religious organization to require employees to comply with its religious tenets.

The first version of ENDA this year had exemptions for churches and for jobs outside the church for ministers and religious teachers and administrators. It also allowed religious groups to require people who work for them in other jobs to comply with all the major tenets of the religion. But this first version of ENDA did not allow employers to refuse to hire someone just because of a religious objection to LGBT people. If employers chose to require adherence to religious tenets, their policy had to require compliance with all major tenets including those, for example, about marriage and divorce. Under this earlier version of ENDA, if employers such as hospitals and universities did not require adherence to all of their major religious tenets, they could not invoke the religious exemption only to single out and discriminate against LGBT people..

The newest version exempts all religious groups from the law completely. It is not a broad exemption; it is a total exemption. It would give religiously affiliated hospitals, social service agencies, shelters and universities complete freedom to discriminate against LGBT people.

Sincerely held religious belief has been used to justify segregation, race discrimination, sex discrimination, and discrimination against people with disabilities, not in the 19th century, but within the last 25 years. And while the separation of church and state may require some accommodation of religious bodies, what is new about this latest version of ENDA – and unacceptable – is the idea that civil rights protections should completely give way to religious organizations. What people choose to believe, and how they choose to worship are their business, and the Constitution rightly keeps the government out of it. But when an employer uses religion to justify taking away a job from an orderly, custodian, secretary, social worker or doctor, the government has an overriding interest in preserving equal opportunity.

It should be no different with discrimination against LGBT people. Congress should treat religiously held beliefs that being gay is sinful just as it treated religiously held beliefs that women are unequal and that segregation was God’s law. It should uphold a person’s right to believe it, but keep it out of the workplace.

Conclusion:

Our common goal is passage of a fair and inclusive employment non-discrimination statute and we pledge to work with members of Congress to ensure that the new law serves its important purpose – securely to protect our community against workplace discrimination. A law that does not actually do that is a law not worth having.

Trans-Knowing

Echelon has just returned from an incredible trip to our nation’s capital as we attended the 2007 Out and Equal Workplace Summit. This year’s event turned out an unbelievable 2,300 attendees, was organized to a tee and we left creating new friends and a deeper connection to the GLBT business community.

During the course of the 3-day event we were hearing rumors about the split in ENDA’s current legislation whereby one bill included the transgender community and one did not.
From my own experience, I have not had the dignity of getting to know and speak to a trans-person.

At the Summit, I met a Trans Woman from a very well known aerospace company that turned out to be an occurrence that has deeply enhanced my perception of humanity. Her challenges associated with her transition. Most of what she revealed were things that I somewhat expected, however, her question to her mother of why she wasn’t growing breasts and her girlfriends caused an explosion and an opening in my mind to which I will never forget.

It wasn’t so much the particular anecdote about her childhood question that made the full impact, but the fact that it never occurred to me how the transition process really begins in the mind of a child. Which brings me to my point; how well do we know our transgender brothers and sisters?

These days, most Americans have had the wonderful experience of knowing a Gay or Lesbian person in their lives and have realized how their religiously conditioned fear-based beliefs did not hold water. We are now enjoying a greater acceptance by mainstream America and most of those surveyed in recent studies show that they agree with our objective in attaining federal legislation to ensure workplace equality.

UNDER THE BUS

Just as our heterosexual counterparts have grown to know us better, I believe that our community at large has also been remiss in knowing the Trans community. We have included the T in GLBT or LGBT for years. So why now would we be willing to support a split bill on ENDA that will only include Gays and Lesbian while we throw the Trans people under the bus? It is a complete and utter aberration and a sign of weakness to amputate this soulful community that so richly deserves the same workplace equality as we do. Speaker Pelosi’s choice to support a split bill is merely a desperate attempt to get something passed and provide us with a false perception that they are actually doing something in Congress. Why not then create 4 bills instead of 2 and see which one falls under Bush’s veto pen? United we stand and divided we fall.

Michael Lamb
Editor-In-Chief

ENDA Protest At Pelosi's SF Office

(San Francisco, California) Several dozen members of San Francisco's LGBT community demonstrated Tuesday in front of the Federal Building, where House Speaker Nancy Pelosi has an office.

The Democrat, once a favorite of the Bay Area's gay and transgender community has run into opposition over changes to the Employment Non-Discrimination Act that would remove protections for trans people and reduce rights of workers in same-sex relationships.