ENDA: To Be Transgender-Inclusive or Not to Be?

The issue of transgender inclusion in the Employment Non-Discrimination Act (ENDA) has been debated within the community for over a decade now. Up until last week, the battle lines drawn seemed to be between transgender activists on the one hand and U.S. Barney Frank (D-Mass.) — the lead sponsor of ENDA in the House — on the other. The Human Rights Campaign is the largest, wealthiest, and by all accounts, the most influential LGBT rights organization in the country, and for years, HRC supported the transgenderphobic Barney Frank in his insistence on limiting ENDA to protection from discrimination based on sexual orientation. But in 2004, HRC changed its tune and came out openly in support of adding gender identity and expression in order to protect transgendered and gender-variant people from discrimination in employment as well.

But although Frank introduced a transgender-inclusive ENDA in April 2007, he stunned LGBT activists when he announced last week that he would be introducing a non-inclusive version of the bill. On Sept. 28, the Speaker of the House announced that she had scheduled an Oct. 2 committee ‘mark-up’ of the ‘new’ (i.e., the old) ENDA with only sexual orientation. In the Speaker’s statement, U.S. Rep. Nancy Pelosi (D-Calif.) declared: “…While I personally favor legislation that would include gender identity, the new ENDA legislation proposed by Congressman Frank has the best prospects for success on the House floor…” The Sept. 28 statement from the Speaker’s office touched off a firestorm of protest from a host of national LGBT organizations and virtually every statewide organization, who strongly opposed the effort to strip gender identity and expression from the ENDA bill. The Speaker’s decision to delay the committee mark-up of the ‘trans-free’ ENDA bill, came about after several days of frenzied activity on the part of several organizations, including the National Center for Transgender Equality, the National Gay & Lesbian Task Force, the National Stonewall Democrats, the National Center for Lesbian Rights, the Equality Federation, and Pride At Work, among others. In the interests of full disclosure, I should mention that the New York Association for Gender Rights Advocacy is a member of the Equality Federation and that, as chair, I represent NYAGRA in the Federation. I’m also a member of Pride At Work, though I did not take part in the PAW organizing around this issue. PAW and the Transgender Law Center organized a vigil outside Nancy Pelosi’s district office in San Francisco, which apparently played a significant role in the Speaker’s decision on Monday to reverse herself. Two letters to the Speaker’s office played a crucial role in the decision. One letter from the Task Force, calling on the House leadership to scrap the non-inclusive ENDA bill, was co-signed by more than 90 national, state and local organizations, from Parents, Families and Friends of Lesbians and Gays (P-FLAG) to BiNet USA to Equality Texas Center to Center Advocates of Milwaukee. The other, a letter from the Leadership Conference on Civil Rights, the coalition leading the campaign for the federal hate crimes bill, called on the House Education and Labor Committee Chairman George Miller to cancel the mark-up scheduled for today (Tuesday). The LCCR letter was signed by 20 of its member organizations, including the American Civil Liberties Union, Legal Momentum, People For the American Way, the Unitarian Universalist Association of Congregations and — crucially — the Human Rights Campaign, the largest, wealthiest, and most influential LGBT rights organization in the country. The loose ad hoc coalition of organizations opposing the move to strip transgender language from ENDA generated a flood of phone calls to the Capitol. At the same time, NCTE, NCLR, the Task Force, and other leading organizations involved in the effort met with Barney Frank and met and spoke with people in the Speaker’s office as well as with staff to Congresswoman Tammy Baldwin, the other half of the LGBT caucus in the House. At 5:43 p.m. on Monday, Oct. 1, Speaker Pelosi and U.S. Reps. George Miller (chair of the House Education and Labor Committee), Barney Frank and Tammy Baldwin (D.-Wis.) issued the following statement: “After discussions with congressional leaders and organizations supporting passage of ENDA, we have agreed to schedule mark-up of the bill in the Committee on Education and Labor later this month, followed by a vote in the full House. This schedule will allow proponents of the legislation to continue their discussions with Members in the interest of passing the broadest possible bill.” Despite intense pressure on Baldwin to join Frank in the effort to strip gender identity and expression from ENDA, the first (and so far only) ‘out’ lesbian elected to Congress refused to cave in and her resolute support for full transgender inclusion in the non-discrimination bill played a significant role in the House leadership’s decision to reverse itself. On the evening of Monday, Oct. 1, the HRC board of directors voted to support an inclusive ENDA. On Tuesday morning, Joe Solmonese, HRC’s executive director, declared, “…we are not able to support, nor will we encourage Members of Congress to vote against, the newly introduced sexual orientation only bill. ” HRC’s board vote and public statement reaffirming support for only a trans-inclusive ENDA should add additional weight to the consensus of the LGBT advocacy organizations on this issue. The significance of the Speaker’s decision must be understood: the House leadership has not agreed to ditch the strategy of a ‘trans-free’ ENDA; rather, the leadership has given LGBT rights organizations two or three more weeks to ‘educate’ members of the House Education and Labor Committee — and members of the House more generally — on the issue of discrimination based on gender identity and expression. It is now up to those who support transgender rights to generate as much support among House members for a fully transgender-inclusive ENDA bill. If you would like to join in the effort to enact an inclusive non-discrimination law, find your House member on the House website. I can tell you from personal experience with legislators that e-mail is probably the least effective way to communicate with them. I would suggest availing yourself of that ancient method of communication, the letter, sent by snail mail. Letters from constituents are the most valuable and hand-written letters (if they are legible, of course) from constituents are the most carefully read of all. Phone calls are also helpful, once again, especially if they come from constituents. I sincerely hope that we can generate enough support for H.R. 2015 (the transgender-inclusive version of ENDA). But I am buoyed by the enormous wave of support for transgender inclusion in legislation voiced by the more than 100 organizations (both LGBT and non-LGBT) in the letters from the Task Force and LCCR. It seems to me that the events of the last week forefront what may be one of the most important developments in the LGBT community in the United States in the last decade. Over the last week, we saw the LGBT community mobilize to challenge our closest allies in Congress — including the openly gay Democrat who until now has been regarded as the ‘gatekeeper’ on LGBT issues by his colleagues. And just as importantly, the House leadership listened; that would not have happened ten years ago, or even five. And that suggests to me that the LGBT community has matured to the point that the idea of excluding transgendered people from non-discrimination is now unacceptable to any ‘mainstream’ LGBT advocacy organization.

This blog post originally appeared on BigQueer.com on 4 October 2007.