Are LGBT (lesbian, gay, bisexual, and transgender) groups being unreasonable when they insist that ENDA—the proposed federal Employment Non-Discrimination Act—must cover not just sexual orientation but also gender identity? Is Barney Frank simply being a political pragmatist when he insists that he can only pass a bill to cover lesbians and gay men, the group that America has grown to know and love, and not also transgendered folks, which lesbian Congresswoman Tammy Baldwin insists is necessary as well? (I’ll explain the terms later in this post.)
No. ENDA “lite” isn’t more “pragmatic”; it’s scarcely better than no ENDA at all.
Many Americans already believe it’s illegal to fire lesbians and gay men just because we’re lesbian or gay. But there is no such federal law, and only 13 states have their own such laws. Fifty-eight percent of Americans think it should be illegal to fire based on either sexual orientation or gender identity. ENDA is the long-awaited federal bill that would make that so.
The latest news on this front: ENDA, which had been scheduled for a House floor vote this week, has been taken off the table.
The official reason that ENDA won’t come up for vote: it’s been pushed aside by other business. The generally accepted reason is the split between the Barney Frank faction and the Tammy Baldwin faction. Shailagh Murray, in The Washington Post, expounds the Barney Frank argument. From this perspective, it’s simply practical to admit that, although there are enough Congressional lawmakers willing to stand up for gay folks, not enough Congressmembers are educated enough on trans issues to vote for the larger bill—and it’s better to work forward incrementally. But Baldwin and all the LGBT groups refuse the partial-ENDA compromise, and would rather see no bill at all.
Is this simply childishness, a refusal to have any cake if you can’t have it all? No. This is a topic that’s been debated ferociously within the community for fifteen years. The conclusion: lesbians and gay men won’t be protected unless the bill also includes gender identity. That’s the reason LGBT groups can’t knuckle under and accept the mini-bill.
Here's the idea. When there is discrimination against, or recoil from, lesbians and gay men, it’s not just because we fall in love with others of the same sex. It’s because we don’t neatly fit our gender identities; we’re often “genderqueer” as well. Our girls tend to be boyish; our boys tend to be girly. Not always, and not all of us. But gay men and lesbians who “pass”— who are “straight-acting,” in the terminology, who more closely fit sex stereotypes (like me, despite my short hair)—run into the least trouble on the job. It’s the fey men (and, depending on the situation, the butch women) who run into trouble. And that’s the ground on which they need the most protection: gender identity.
After all, when grade school and middle school kids taunt or beat up some boy for acting “gay,” it’s not because he’s been kissing other boys; it’s because he hasn’t been masculine enough for their taste. The same is true in adulthood. Even in tolerant Massachusetts, where folks are proud to be the first state where same-sex couples can marry, some gay men are still taunted—not for having boyfriends, but for having high voices or feminine mannerisms, even though those Truman Capote voices or hand gestures come just as naturally as falling in love with other boys, and are just as resistant to change.
That’s even more true on the job. Consider what happened to Darlene Jespersen, who lost her bartending job at Harrah’s Casino after 21 years—when her employer instituted a policy that said all women had to wear makeup. She couldn’t do it; her whole being revolted against that mask. (And yes, the 9th circuit decided that this was legal) Now, I don’t know if Jespersen was a lesbian. But if an employer demands that women dress and behave according to a feminine stereotype, that rule is especially likely to hurt many of the lesbians I know and love. They too would vomit if they had to dress girly and paint their faces. Put these butch women in dresses and they look like cross-dressing men. A women-must-wear-makeup policy would drive them out—based not on sexual orientation but on gender presentation.
ENDA “lite” would do them no good.
I don’t know what you think about girly boys or boyish girls. Personally, I love them: these are my dearest friends, the people I rely on in times of crisis. But surely they shouldn’t lose their jobs just because they do or don’t wear dresses or speak in soft voices.
The bottom line: When lesbians and gay men get trashed, it’s often because of our gender identities, not our sexual orientation. Protect one without protecting the other, and the most vulnerable gay folks are still screwed. A trans-free ENDA is just a little better than useless.
And on top of that, it leaves out our sistren and brethren, the transgendered (whose gender presentation differs still more profoundly from their biological sex) and the transsexuals (who’ve made some bodily alteration so that their internal sense of identity and their body are more in synch).
Worse, gutting ENDA wins nothing. According to polling, the majority of Americans who support ENDA would do so with or without the inclusion of gender identity. Sure, lawmakers are fearful. But aren’t they always? They just need more education. (Matt Foreman, head of the Task Force, believes that the only way to go is to insist that Congress must pass the right bill.)