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ENDA as We've Known It Must Die

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by Matt Foreman, Executive Director,

National Gay and Lesbian Task Force

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.

[See story this issue on HRC's turn-about on trans inclusion in ENDA.]

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