News Item

ENDA Unlikely To Be Broadened

Congressional sponsors see transgender protections as politically costly

BY PAUL SCHINDLER

Despite a unified effort that began in earnest last fall among leading LGBT advocacy groups nationwide to incorporate transgender protections into the federal Employment Non Discrimination Act (ENDA), it now appears likely that the measure will be re-introduced in the current session of Congress without that amendment.

"At this point, you know, we're hearing a lot of, 'No, the bills going to stay the way it was last year,'"said Lisa Mottet, transgender rights attorney with the National Gay and Lesbian Task Force (NGLTF). "I don't think any final word has been issued and until that happens we're not going to give up. But it's not looking good."

The final word Mottet and other advocates are awaiting will come from ENDAs lead sponsors in Congress. And the member of Congress most closely identified with the issueBarney Frank, the out gay Massachusetts Democrat, seems not yet fully prepared at this point to be the one to deliver the bad news.

"I'm agnostic on this question," Frank told Gay City News on June 12. "Maybe [adding protections for gender identity or expression] won't cause any loss of support. Maybe it's an easy inclusion. This is what we have to check and see. People have said I'm too pessimistic. Let's see."

Frank is less reluctant to deliver a downbeat bottom line assessment on the prospects this year for ENDA, with or without the incorporation of gender rights language.

"As long as the Republicans run the house, ENDA will not come up for a vote," he said.

For the past several years, many transgender rights advocates have viewed Frank as one of the principal obstacles to incorporating gender issues into proposed federal gay civil rights initiatives. On several highly publicized occasions, the congressmember mentioned privacy issues related to the public use of toilets and showers as legitimate questions standing in the way of progress on transgender rights. Gender rights advocates in turn were angered by hearing important civil rights matters reduced in their view to hyperbolic sensationalism.

Frank and leading transgender advocates have apparently made significant progress in understanding each others' concerns.

"At first transgender activists were angry with me for bringing it up: 'Oh you're tipping them off,'" Frank said. "But there are people who are transgendered who have not had the physical change. If you're talking about workplaces with gyms, it's just not practical. You have to make some kind of accommodation."

Mottet confirmed that NGLTF and other advocates had reached agreement with Frank's office on language that guaranteed that the rights of both transgendered people and women unwilling to share shower facilities with biological men would be respected.

By all accounts, the principal sticking point at this stage is political.

"Even if we had the Democrats in control, it would be a tough vote and we don't have a lot of votes to spare," Frank argued. "The question is whether the gender inclusion costs us votes or not."

Frank noted that Connecticut Republican Christopher Shays, one of ENDAs lead sponsors, has already signaled that he will drop off the bill if gender rights language is added. The Massachusetts Democrat predicted that ENDA could garner up to 90 percent of Democratic votes in the House but would need about 15 to 20 percent of Republican votes as well. He clearly sees Shays' defection as a bellwether for other Republicans, but he has thrown the ball back into the court of the advocates, urging them to do their own head count.

For some advocates, vote counting is beside the point, especially since Frank himself acknowledged that ENDA will not pass under G.O.P. leadership.

"While we understand that there are political obstacles to the inclusion of transgender protections in ENDA, it is important for the entire LGBT community to remember we are strongest when we are united," said Donna M. Cartwright, a transgendered member of the national executive board of the AFL-CIO's Pride At Work. "We cannot build the politics of inclusion on the flawed foundation of exclusionary legislation."

But even as gender rights advocates expressed disappointment that the effort to broaden ENDA might not succeed this year, they also pointed to what they said was impressive unity among LGBT groups on the issue.

"The real story here is that for the first time we have all the major gay, lesbian, and bisexual organizations signed on to ask for gender rights inclusion," said Paisley Currah of the Transgender Law and Policy Institute.

Maura Keisling, executive director of the National Center for Transgender Equality, echoed Currah's view.

"One of the things that is most remarkable here is the unity and solidarity that is developing within the LGBT community around this issue," she said.

Unity got its biggest boost last fall when the Human Rights Campaign (HRC), the leading LGBT rights lobbying group on Capitol Hill, announced its intention to revisit the federal legislative agenda with an eye toward broadening initiatives to incorporate specific protections for transgendered Americans. That decision allowed HRC to work more closely with Washingtons other leading advocacy group, NGLTF, which has withheld support for ENDA since 1999 because gender rights were not included in the bill.

The recent collaboration on the gender question has created so much good will that gender rights advocates contacted for this story chose not to criticize HRC for its likely support for ENDA, whether or not it is amended.

"My understanding is that HRC is going to support [either an inclusive or non-inclusive] bill," said Currah. "I don't feel like setting up fireworks to celebrate, but they have been telling us all along that they are going to support ENDA. That's the political reality of their position."

In contrast, NGLTF will continue to withhold support for ENDA unless the bill is broadened, though Mottet emphasized that the group has never actively opposed the measure.

Frank expressed impatience with groups such as NGLTF that are taking an all or nothing approach.

"I have a strong disagreement with some of the groups who say, 'Well, if the bill doesn't include everybody, we're not for it,'"he said. "If that were the case we would have no civil rights laws on the books."

Frank emphasized that most of the civil rights battles he has fought in his years in politics have been on behalf of other people.

"I have worked very hard through my career on civil rights bills to protect people based on race, ethnicity, disability, gender, and age," he said. "I've finally made my way into the age category but I haven't made my way into the others. The notion that you don't protect anybody until you protect everybody is really a recipe for never protecting anybody."

To be sure, not all the returns are in on this question. Despite several calls back and forth between Gay City News and HRC, that group was unable to make a comment as of press time. Currah said that a number of transgender advocates are convening a conference call on June 17 to further explore the question of ENDA inclusiveness.