I can see clearly now: The ENDA Controversy
by Matt | October 13th, 2007 |For the past two weeks - the first two weeks of my work at Q-Notes - I spent a lot of time reading press releases and various statements from organizations, political leaders, elected officials and other individuals. The controversy over the Employment Non-Discrimination Act (ENDA) is probably one of the most divisive the LGBT community has seen in recent times. The statements from all sides of the debate (notice that I said “all sides” and not “both sides,” for there are definitely many positions to consider) reflect the difficulty and complexity of addressing the issues.
For the first time in my life, I have had to take in all of these various sides in this current political debate and attempt to remain absolutely neutral. Yes, absolutely. In writing the in-depth news piece on ENDA (which will be published with the Oct. 20 issue), I had a moral and professional obligation to report the issues as factually as possible.
Being objective in a difficult debate like this is certainly hard to do.
Through all of my objectivity, however, I have found that I have been able to have a much clearer view of what has transpired and where all the sides of the debate stand. In my usual political activism, I would have been quick to “choose sides” and stay there. I was tempted to do it when news of the controversy first broke, but I held back as best I could.
I certainly empathize with the feelings and emotions of those most impacted by the debate over stripping gender-identity out of the list of protected classes in this legislation. For transgender people like my friend Robbi Cohn, an activist from Thomasville, N.C., this debate isn’t some obscure exercise in political thought and theory. This is, as she puts it, a life or death issue.
She says that without the right to gainful employment, society might as well just put a death sentence on people.
She is right. She is absolutely right.
At the same time, I have come to feel some empathy for Rep. Barney Frank (D-MA). He’s got himself stuck in one pretty, sticky situation. As the default “leader” on LGBT issues on the Hill - something he never asked for necessarily, but something nonetheless handed off to him due to his “out” stature in Congress - he has been the one to take the heat for the decision to pull transgender people out of ENDA.
The debate has been boiled down to two basic sides, although a myriad other opinions and positions exist throughout the American political and philosophical spectrum. The first side of the debate says, “It is morally unconscionable to exclude a part of our LGBT family.” The other side says, “We have tried to include them, but we cannot possibly get this bill passed if it is fully inclusive.”
Then, the first side says, “Well, we shouldn’t pass any bill then. If we can’t include everyone then the bill isn’t good enough and shouldn’t be passed.” Then, the second side says, “We can take steps - incremental steps - to include everyone, but including everyone at one time is not politically viable.”
And herein lies our disconnect.
The first side is debating what is morally right, what lies on our moral conscience and what our principles say must be done in the name of justice. The second side is speaking political reality and viability - something hard to understand in the realms of D.C. insanity much less in the minds of average Americans.
So then, how do we bridge this gap in our community? How best can we bring two sides diametrically opposed to each other (morality vs. political reality) together in order to have an outcome that best serves all people on both the moral and “what is possible” criteria?
All I can say is, I don’t know the answer - as much of a shock as that must be to my friends who usually see me as the ultimate “Mr. [I think I] Know it All.”
I do know that posturing and insults won’t up. Those who call Barney Frank a traitor, transphobic or a rainbow of other accusatory labels aren’t going to make things better. At the same time, Barney Frank isn’t going to make things better by telling fully well-intentioned people they are living in “Wizard of Oz” and that they must believe Speaker of the House Nancy Pelosi is Glenda the Good Witch who can perform impossible miracles at a whim.
Pelosi announced on Friday, Oct. 12 that if a time ever came that it was politically possible to pass a fully inclusive version of ENDA that then, the House would immediately move forward with a vote (read more at Pam’s House Blend). This may be the first step in bridging a gap that has begun to tear our community a part.
Although, as Pam Spaulding says, this new move could be seen “as the glass half full or half empty” depending on exactly where you stand on the issue it is, nonetheless, just one step forward.
We have to start taking these steps and having these discussions. Our vibrant and diverse LGBT community has been deeply divided in recent days. A house divided cannot stand and if we continue to be divisive, we will certainly fail.
Conversation and dialogue has to be top priority. At the same time, the media (including the “blogosphere”) has a moral responsibility and utter obligation to report the facts and to refrain - as best as possible - from “spinning” the issues. “Spinning” creates more division. Honesty, on the other hand, creates a chance for reconciliation.
Reconciliation is something that has been extremely lacking; maybe it should make a comeback.
Technorati Tags: ENDA, Employment Non-Discrimination Act, Barney Frank, Nancy Pelosi, House, Congress, LGBT
17 Responses to “I can see clearly now: The ENDA Controversy”
This debate isn’t a matter of hearts versus minds.
Given how loudly the pro-inclusion side has been pushing the moral angle, I understand the temptation to characterize that argument as purely moral.
However, “political reality” suggests at least three reasons why it’s strategically wise to advance only a trans-inclusive ENDA.
First, having voted on an easier-to-pass sexual-orientation-only bill, our representatives will believe they’ve already done all the heavy lifting they need to for the LGB community, so they’ll feel no urgent pressure to take up a trans-inclusive measure anytime soon.
Second, there’s no reason to believe that representatives who are currently hesitant to vote in favor of equal rights for transgender people will be any more likely to do so once the spotlight is entirely and exclusively on trans people.
Third, though I realize there’s some debate over this, Lambda Legal still holds that a non-gender-inclusive ENDA will fail to adequately protect many lesbian, gay and bisexual people.
Fourth, being brutally honest at the risk of sounding mercenary, moving forward with an ENDA that excludes trans people will further damage the relationship between the trans community and organizations that support the stripped ENDA. Want volunteers for your phone bank? Members in your membership drive? Allies in your ballot measure fights? Good luck.
By Fureigh on Oct 13, 2007
Correction: While “at least three reasons” is technically accurate, clearly I meant “at least four.”
By Fureigh on Oct 13, 2007
Responding purely to the legal aspect - while I appreciate the debate, and am currently slightly allied with the side that would rather see a trans-inclusive ENDA pushed at this time, I don’t want to weigh in on that - I’ve been studying Title VII, employment discrimination laws, etc. in particular how they affect GLBT folks for the last semester, and frankly, Lambda’s claim that a bill the only protects sexual orientation can be evaded through gender discrimination is on crack.
One, about 20 states have laws prohibiting discrimination based on sexual orientation, and we haven’t seen that sort of end-around move be successful there. Fact is, courts have seen through that strategy by employers, and have explicitly rejected it. Second, if you are dealing with a non-trans person who is simply not fitting certain gender stereotypes, they have been legally protected for years by laws against discrimination based on sex. Sucks for the trans-folk, but really, it’s the identity of being trans or having GID that screws them in terms of being able to present a sex discrimination claim. You can be a woman who doesn’t match most female stereotypes, but once you stop IDing as a woman, you lose protections. Gay folk don’t have that issue.
So yeah, Lambda is not using their best legal judgment here - it’s an ideological thing with them. Not that I disagree with the ideology necessarily, but the law is the law, and people should have an accurate view of it in these discussions.
By Casey on Oct 13, 2007
Casey,
Have you seen this story:
Sexual Stereotypes, Civil Rights and a Suit About Both
This is EXACTLY the kind of fact pattern Lambda is warning about (i.e., discrimination based not on sexual orientation but on gender stereotypes).
So explain to me again, in terms of “Lambda v. HRC,” which side is “on crack” and which side is burdened by “an ideological thing”?
By KipEsquire on Oct 14, 2007
Funny - this is the second time I’ve had to make this particular point on this blog, which just tells me that there’s a lot people don’t know about how the American legal system works. The article you point to notes that a business is trying to use the argument that it discriminated against a lesbian because of her gender-bending looks, not her orientation. It does NOT say that a court ruled in their favor on that argument. Odds are good, precisely because of the case history noted in the article (Price Waterhouse, etc.) that this argument will fail under the existing law… and because it will fail, it actually will serve as evidence that GLB folk, in and of themselves, are not really harmed by the lack of including T’s in ENDA. (Please note, I’m NOT saying that’s the right thing to do… morally, this is a tough question that reasonable people can disagree on.)
In America, you can argue almost anything you want in a courtroom - as I told a pastor here a few weeks ago who was upset that in Europe people are making legal arguments in favor of polygamy, in a free society, there are very few restrictions on what you can say. That doesn’t change what the law is. Now, some people will run arguments, like this one, that have little chance of success under current interpretations of the law in hopes of changing the jurisprudence - HRC and Lambda do it, and so does the other side. That’s part of their job as ideological actors. That doesn’t change the fact that an objective analysis would show that the lesbian from your article is most likely already covered under sex-based discrimination. Don’t trust me? Try Professor Dale Carpenter over at one of the most respected legal blogs in the country - a gay man, and one of our best advocates. http://volokh.com/posts/1191697324.shtml.
Nothing against Lambda generally - frankly, I’m probably going to apply to work with them next summer - but in this, they’ve let their advocate role take precedence over their duty as lawyers to clearly and accurately state the status of the law today… and that’s why they’re on crack. Not the ideology itself, just the poor analysis they’ve presented, likely against their better legal judgment.
By Casey on Oct 14, 2007
Slight correction to the above, or rather, clarification - that analysis presumes the existence of protections against sexual orientation discrimination. Not because her being a lesbian matters, but because case history has shown that without such protection, courts are more inclined to read sex-discrimination narrowly to prevent accidentally creating coverage for GLBs against the will of the legislature. When that protection already exists (in the form of what the weaker ENDA bill would provide nationwide) then mannish gay women and effeminate gay men are almost always protected based on the jurisprudence against sex-based stereotypes.
By Casey on Oct 14, 2007
Oh right, I forgot. I’m an attorney and therefore know nothing about “how the American legal system works.”
As for Carpenter — who has been thoroughly refuted by more than one Title VII expert — here’s an example of what I don’t know about “how the American legal system works” —
Guess who wrote that, long before this post was published.
And remind me again how you know more about this issue than I do?
By KipEsquire on Oct 14, 2007
More here, btw.
By KipEsquire on Oct 14, 2007
So… How did my blog become the feuding ground between Mr. Lawyer and Madame Will Be Lawyer?
By the way… My new apartment in Charlotte is just off Lawyers Road. How appropriate.
By Matt on Oct 14, 2007
Yep, an attorney who doesn’t practice… and unless this is your area of expertise, you, like every other lawyer who hasn’t read the case law, are capable of doing nothing more in response to a question than saying “hmm, it depends. Let me do some research and get back to you on that” - and then passing it over to a law clerk like me to find out the law for you. So shall we stop with the pissing contest and just look at the facts at hand?
Of course, never being wronged is different from being vindicated - but do you really think that simply passing ENDA, of whatever stripe, will be enough to stop such things from happening? Laws aren’t magical behavior modifiers - they just let there be remedies to wrongs. In the article you linked to, the bouncer clearly had no interest in any laws that might exist - hence his statement that her ID didn’t matter. That wrong was gonna happen no matter what. What we’re discussing is whether she’s likely to win without T-inclusive ENDA… and I’m pretty sure she is, which means Lambda, by presenting this as an open and shut case, is in error. (Not to mention the blatant misinterpretation of the case law authority they rested on in their open letter to Rep. Frank, which I think was borderline unethical). Fact is, gays have been lobbying for employment protections for decades - if this gender identity question was that critical, it would have been included in the bill much sooner than just this year. It wasn’t. Why is that, Esquire?
I’m not opposing Lambda because I don’t want a t-inclusive bill voted on - I do. I’m opposing that argument because it is a scare tactic of the same breed as the slippery slope argument used by our opponents who say that marriage equality leads to the downfall of western civilization. Both arguments depend on the ignorance of the audience, and on the ability to demagogue people into fear. It’s immoral no matter who does it, and should be confronted.
By Casey on Oct 14, 2007
hehe, sorry Matt. I’ve basically made my point, so I’ll stop clogging your comment section, anyway. And ironic as it may sound to say at this point, great statement about posturing and insults - there’s been altogether too much of that in the ENDA debate, and hard as it is to resist it, voices like yours that remind us of that are very much welcome. Take care.
By Casey on Oct 14, 2007
You don’t have to leave Casey… I like the debate. It is healthy (as long as it remains civil). I just thought it was funny my blog was all of a sudden legal theory central.
By Matt on Oct 14, 2007
Matt, I have to say I’m disappointed that you’re framing this as a debate between purists and pragmatists. Yes, I do believe it’s morally wrong to leave part of our community out of anti-discrimination legislation. (Not to mention that it’s wrong and unprecedented for congressional leadership to move forward with a civil rights bill that not a single major organization in the affected group supports.)
But my main reason for opposing an exclusive bill is strategic, not purist:
History shows us clearly that, if we actually want protections for trans-folk, we either get it at the same time or wait ten or twenty years. Wisconsin’s been waiting for 25 years! It’s worth taking a little bit of time to get the handful of additional votes that are needed.
By running this substitute bill, congressional leadership is essentially telling nervous Democrats that it’s okay not to support the inclusive version. Their actions are actually sapping votes away from the inclusive bill, which according to several members of Congress DID have the votes before all this blew up.
The political reality is the alternate, exclusive bill is moving us back, not forward.
Finally, I have to point out that the “deal” Pelosi offered is actually just the same thing we’ve been dealing with for two weeks: moving forward with an exclusive bill, but promising to consider an inclusive bill when we can “prove” we have the votes. I’m glad they aren’t ruling out hearing the good version of the bill, but it’s nothing new.
By Ian Palmquist on Oct 15, 2007
Thanks Ian. You certainly aren’t the first person to point out the strategy side of things. As I said in the post, I certainly am aware that there are many sides to the debate. I had hoped I’d made that clear.
My observations come from what I’m primarily hearing from the two main sides of the debate. Unfortunately, a lot of what is being pushed by one side is the morality of the situation. Likewise, a lot of what is coming from the other main side of the debate is pragmatism.
Those aren’t the only opinions, but they certainly are among the loudest.
I apologize if I ignored a portion of the debate that is larger than it seems.
I meant no harm.
Perhaps we should all focus more on strategy debates now. Perhaps that has been lacking a bit (along with reconciliation)?
By Matt Comer on Oct 15, 2007
And a clarification to the above…
This is just observations from a media standpoint and from a public standpoint. I’m not saying strategy debates aren’t happening, I’m just saying that perhaps they aren’t being heard among all the bickering.
By Matt Comer on Oct 15, 2007
Hey Matt,
I think you’re right that the pro-inclusion folks haven’t done as well at articulating the strategic reasoning for demanding inclusion, but that case is being made by the United EDNA coalition to Congress.
Unfortuantely, Barney Frank (who I respect and appreciate for his past leadership) has framed this debated as being between “emotional purists” and “political realists.”
As an advocate working in the South, I think I (and my colleagues in other states) have definitely learned to be realistic. In fact, that’s exactly why nearly all state equality groups are insisting on an inclusive ENDA. We’ve learned from the political realities in our states that it’s the right thing to do both morally and strategically.
Thanks for sparking this discussion!
By Ian Palmquist on Oct 15, 2007