ENDA as We've Known It Must Die

2004-08-11
Windy City Media Group
by Matt Foreman
Executive Director, National Gay and Lesbian Task Force

http://www.windycitymediagroup.com/gay/lesbian/news/ARTICLE.php?
AID=5826

For many years, our community has debated the place of transgender
people in the Employment Non-Discrimination Act (ENDA). The time for
debate is over. The question must be called. ENDA must be amended to
protect transgender people. If it is not, we all must walk away from
it.

I would completely understand someone saying that it's the height of
hypocrisy for me to be saying this. After all, I was executive
director of the Empire State Pride Agenda when New York enacted the
Sexual Orientation Non Discrimination Act (SONDA), which extended
broad non-discrimination protections to gay, lesbian and bisexual—but
not transgender—New Yorkers. All I can say is that hindsight is
20/20. I made mistakes in New York and that painful experience seared
into my mind and heart three lessons that I think are directly
applicable to ENDA.

The first lesson is not to accept what legislators have to say on
this subject, which is invariably that trans-inclusion will kill
legislation. In New York, the leaders of each house of the
legislature exercise absolute control over everything (and I do mean
everything). For years, we asked the leadership of the Democrat-
controlled Assembly to add "gender identity and expression" to SONDA
and every time the answer was a very curt "No." On the side, we'd be
told that "Look, let's be honest. It took this long to get members OK
with you (gay) people, but this transgender thing? No way." (A lot of
what we were told was far worse than this, but being an insider
organization we could never go public with those comments. That's the
way it works.)

We accepted that answer because we thought we had to. We thought that
making a stink about this would derail other legislative priorities—
like enacting a hate crimes bill, making sure a DOMA never saw the
light of day, and winning significant appropriations for LGBT health
and human service programs.

In hindsight, my judgment was wrong. Ultimately—and often reluctantly—
legislators do have to respond to the pressure of constituencies they
support. Ultimately, a constituency has the right to decide what kind
of legislation is advanced on its behalf. I believe now that if we
had insisted on trans-inclusion years back, it would have happened,
maybe not immediately, but it would have happened. Part of my
resistance was a belief that we could only get so much, and that
pushing for too much would have jeopardized everything else. As we
went along, I began to realize the more you ask for the more you get,
and the harder you push, the quicker it comes.

Working at the Task Force, I've already witnessed dozens of
situations at the state and local level where legislators have
initially said no to trans-inclusion. Our community, united, has said
no way. And guess what? In almost every instance, legislators have
backed down and the bills have moved forward with trans-inclusion
never an issue.

It feels like ENDA is caught in a similar situation. ENDA's
Congressional sponsors, including our champion Barney Frank, believe
that trans-inclusion will cripple ENDA's chances and that it will
cost the support of some co-sponsors. (I have no doubt Barney and our
community's insider lobbyists are hearing the same kind of egregious
transphobic statements from members of Congress that we heard from
legislators in Albany, NY.) Our side probably feels like we have no
choice and can't risk angering key allies by demanding trans-
inclusion, particularly since we have had to lean on House and Senate
members to vote against anti-marriage legislation and other attacks.

I do think our community has options. For one, we should make sure
that our legislative allies are the ones with no choice—a trans-
inclusive bill is the only bill acceptable. Period. Years of friendly
persuasion haven't worked and so long as we offer any support for the
existing version of ENDA it will live on. Some sponsors may very well
fall off the bill. When the new ENDA is the only major gay-rights
bill on the table, those who are truly our community's friends will
either stay on or come back.

The second lesson I learned is that you have to make a bill trans-
inclusive early on so that when it finally starts moving, the issue
is behind you and can't be used as another excuse for inaction. This
also requires not falling into the "this will be the year if only"
trap.

After languishing for nearly 20 years, SONDA began passing the New
York Assembly every year starting in 1993, by increasing bipartisan
margins. Every year after that, we hoped—we believed—that we could
move the bill through the Republican-Conservative dominated Senate.
In retrospect, I realize we were playing out "if only" Hail Mary-like
scenarios. IF ONLY we applied enough pressure (or IF ONLY we kept our
mouth shut). IF ONLY we could pressure our representatives in
Washington to use their clout in Albany. IF ONLY we could persuade
the governor to weigh in. IF ONLY the Democrats in the Assembly would
make SONDA a priority in end-of-session horse-trading with the
Senate. IF ONLY. IF ONLY. IF ONLY.

When every year seemed like it would be THE year, we didn't want to
do or add anything that might upset or stall our applecart. We
couldn't imagine walking away from the legislation around which our
organization had been founded when it was SO close to becoming law.
This, too, kept me from pressing harder and insisting on trans-
inclusion.

In hindsight, I should have recognized that the "this will be the
year if only" scenarios were a combination of wishful thinking on our
part and the way in which legislative bodies keep hungry
constituencies in line—dangling different varieties of carrots which
inevitably vanish at the end of successive legislative sessions. I
should have recognized that SONDA would pass only when we had real
contacts and leverage with the Republicans. In hindsight, it's clear
that that demanding trans-inclusion from the Democrats years back
would not have caused either the bill's demise or delayed its
enactment, and that not demanding inclusion was wrong.

Because I did not do that, when three decades of work and a series of
complicated political maneuvers engaging Republicans finally got the
bill to move in the State Senate, the only bill on the table was the
trans-exclusive bill repeatedly passed by the Assembly. (Then,
miraculously, the Democrats in the Assembly who'd said no to trans-
inclusion for years, turned around and said, "Well of course we'd
pass a trans-inclusive bill—IF ONLY the Republicans do it first." Oy.)

It feels like ENDA might be afflicted by the miasma that surrounded
SONDA years back. ENDA was introduced in a moment of hope—1994—when
Democrats controlled both houses of Congress and the White House. The
comprehensive civil-rights bill (which I'm proud to say the Task
Force played a leading role in getting introduced in the early '70s)
was abandoned in favor of this bill, covering only employment
discrimination because that's what the polls showed (and still show)
had the highest public opinion support. At that moment in time, ENDA
did have a shot, and it came within one vote of passing the Senate in
1996. Even then, however, House approval was a long shot and the
bill's prospects have obviously not soared since then.

Nonetheless, I have no doubt the "IF ONLY" scenarios have been
playing out endlessly since then. IF ONLY President Clinton would
bargain with Republican leaders over ENDA. IF ONLY Al Gore is
elected. IF ONLY we can get "friendly" Republicans to put pressure on
their leaders. IF ONLY the Democrats regain control of Congress. IF
ONLY John Kerry is elected.

ENDA isn't poised to pass and be signed into law anytime soon, even
if most of the bums are thrown out in November. Now is the time to
make it trans-inclusive, so that when all the conditions come
together and make ENDA ready to move at last, it will be the law we
can all embrace. Take it from me—while I am very proud that gay,
lesbian and bisexual New Yorkers are now protected from
discrimination—there isn't a day that goes by that I do not have real
regrets about the mistakes I see I made with SONDA.

Finally, the third lesson is not an easy one to admit: I failed to
recognize my own anti-trans ignorance and prejudices. Legislators
essentially said, "You gays in suits are OK, but them, there's no
way." I realize now that I bought that I was a "good gay" and from
there's no escaping the unspoken corollaries, I am better and I am
not one of them. From there, it's easy to start spinning out the
differences between anti-gay and anti-transgender discrimination and
why the remedies to it are different, etc., etc.

On this front, I do not think for one minute that those still pushing
the trans-exclusive ENDA share my prejudices. To the contrary. It
would be disingenuous not to recognize, however, that many in our
community do not understand why or how trans issues are "gay" issues—
and how "gay" issues are trans issues—and don't see any reason to
spend time or political capital on them. This, I think, has kept us
from being strongly and implacably united around trans-inclusion.

That needs to change now. ENDA as we have known it must die. Long
live a new ENDA for all our people.

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