By Lisa Keen
A major controversy has erupted within the LGBT community over a decision by U.S. Rep. Barney Frank (D-Mass.) to seek passage of a new version of ENDA that both excludes gender identity and, in the view of a major gay legal organization, is so "riddled" with "loopholes" as to seriously diminish its ability to protect gay men and lesbians from workplace discrimination.
Opposition to the new bill was so strong and grew so quickly during the past week that House Speaker Nancy Pelosi (D-Calif.) announced Monday that a committee vote on the measure that had been slated for Tuesday would not be held until "later this month, followed by a vote in the full House."
Pelosi's announcement came in a joint statement Monday evening with Frank, Rep. Tammy Baldwin (D-Wisc.), and Rep. George Miller (D-Calif.), who chairs the House Committee on Education and Labor which is handling the legislation. The statement was unusually cryptic, saying only that the decision was based on their discussions with "with congressional leaders and organizations supporting passage of ENDA."
But the clamor behind the scenes was anything but cryptic. LGBT organizations from around the country had waged an unprecedented effort to stop the new version of the bill from proceeding. More than 100 signed onto an October 1 letter to Miller, saying they were opposed to the "strategy and process" behind the new version.
Frank had, on Friday, issued a five-page explanation of the strategy, saying that supporters of the legislation "have the votes" they need to pass the Employment Non-Discrimination Act "as it has historically existed, banning discrimination on sexual orientation" -that is, without gender identity.
"After we are successful in winning that vote," said Frank, "I will urge the Committee on Education and Labor to proceed with out next step, which will be to continue the educational process that I believe will ultimately lead to our being able to add transgender protections."
'Riddled with loopholes'
But opposition within the LGBT community to Frank's proposal had been mounting dramatically even before he issued his statement. And on Monday, Lambda Legal Defense and Education Fund issued an analysis of the new bill, saying it was "riddled with loopholes" that would diminish protections based on sexual orientation.
"The recent version is not simply the old version with the transgender protections stripped out," said Kevin Cathcart, executive director of the group, "but rather has modified the old version in several additional and troubling ways." Cathcart said there was a "huge loophole through which employers …can claim that their conduct was actually based on gender expression, a type of discrimination that the new bill does not prohibit."
"You can't be fired for being a lesbian or a gay man, but you can be fired if your boss thinks you fit their stereotype of one," said Cathcart.
The new version also states that it does not prohibit an employer from excluding domestic partners from health insurance benefits while providing them to the spouses of heterosexual employees.
"The old version," said Cathcart, "at least provided that states and local governments could require that employees be provided domestic partner health insurance when such benefits are provided to spouses."
Two dozen national groups -led by the National Gay and Lesbian Task Force and the National Center for Transgender Equality– signed onto a letter Friday asking House Speaker Pelosi to "oppose any substitute legislation that leaves some of us behind." By Monday, that list had grown to 93 — 42 national groups and 51 state and local groups, including Equality California, the Empire State Pride Agenda, Equality Texas, Equal Rights Washington, Equality Illinois, and the Triangle Foundation of Michigan.
Only one group based in Frank's home state of Massachusetts -Gay & Lesbian Advocates & Defenders– signed onto the letter. While the Human Rights Campaign signed onto the letter to Miller asking that the vote be postponed, it was noticeably absent from the letter to Pelosi stating opposition to the bill.
In a teleconference phone call Monday, NGLTF executive director Matt Foreman called the effort to oppose exclusion of gender identity in the bill as "a watershed moment" in the LGBT civil rights movement. He said the lobbying efforts to stop that over the last few days was "one of the most grueling and difficult" political experiences he's ever experienced.
Mara Keisling, executive director of the National Center for Transgender Equality, told reporters during the conference call early Monday afternoon that the "situation is in flux" and that she was optimistic Tuesday's scheduled vote on the new version of the bill would be canceled.
David Smith, a longtime Congressional insider and vice president of programs for HRC, said his organization was "baffled" by the sudden decision by Frank and "House leadership" to get behind a version of ENDA that omits gender identity.
"Anybody who was afraid of the issue would have been afraid of it on the hate crimes bill," said Smith.
The House approved a hate crimes bill in May which includes crimes motivated by sexual orientation and gender identity. But even as it passed, the White House issued a statement saying that "senior advisors" to the president would recommend he veto it. (There was no indication whether those advisors might have been or included Attorney General Alberto Gonzales or Deputy Chief of Staff Karl Rove, both of whom have since left their positions.)
Speaker Pelosi initially backed Frank's two-bill approach, saying it "has the best prospects for success on the House floor."
"For my 20 years in Congress, ending discrimination against gays and lesbians has been a top priority of mine," said Pelosi, in a brief statement released to the press on September 28. "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. I will continue to push for legislation, including language on gender identity, to expand and make our laws more reflective of the diverse society in which we live"
Smith said HRC's board voted in 2005 to support ENDA only if it includes gender identity. That, he said, left HRC in the awkward position of being "neutral" on Frank's new version of the legislation.
Penises in the women's room?
While Smith acknowledged that right-wing groups have certainly been "going at it" in warning of ENDA leading to various scenarios of male teachers wearing dresses to school, he said has no evidence that such negative lobbying has led to the current decision by the bill's leadership to drop gender identity.
Right-wing groups are doing their share to rally support against ENDA, regardless of whether it includes gender identity. But such groups tend to focus on gender identity when making their case. Concerned Women for America published an essay on their website, claiming that ENDA could lead to situations in which parents would be "forced to explain to Junior why Ms. Johnson at parochial school has a five o'clock shadow, calves like Schwarzenegger, an Adam's apple the size of a golf ball and is stuffed into a miniskirt like a ten pound turkey in a five pound bag." And a website called "Americans for Truth about Homosexuality" dubbed ENDA as the "Transgender Bathrooms for Business" bill with a photograph of Frank with a quote attributed to him saying, "I've talked with transgender activists and what they want — and what we will be forced to defend — is for people with penises who identify as women to be able to shower with other women."
Last month, in a subcommittee hearing on the bill, Baldwin discussed what she characterized as "confusion" around the inclusion of "gender identity" in the bill.
"ENDA contains language that makes it clear that an employer may establish and enforce reasonable and otherwise lawful dress and grooming standards for employees," said Baldwin. "But it also provides assurances that aspects of a person's gender identity and gender expression cannot be the basis for workplace discrimination. ENDA ensures that an employer cannot fire an employee solely because she is a woman with a 'masculine' walk or a man with an 'effeminate' voice."
Baldwin declined, through a spokesperson, a request for an interview and did not respond to e-mail inquiries concerning specific aspects of the legislation. Baldwin was listed as one of 171 co-sponsors of the bill as introduced this year (HR 2015). As of Tuesday, only four co-sponsors were signed onto Frank's new bill (HR 3685) that includes only sexual orientation; they are Democratic Reps. George Miller (Calif.), Robert Andrews (N.J.), Deborah Pryce (Ohio), and Christopher Shays (Conn.). Only Miller, Andrews, and Shays are signed onto HR 3686 which includes only gender identity.
Baldwin's press secretary, Jerilyn Goodman, said Baldwin's absence from the two new bills which Frank has put forward is "an expression of her disappointment with a two bill strategy" but she "remains committed to getting ENDA to the floor in as strong a form as is politically feasible."
Prescription for nothing?
The U.S. Supreme Court, in 1989, ruled in Price-Waterhouse v. Hopkins that "requiring individuals to conform to gender stereotypes, even when those stereotypes do not implicate immutable characteristics or infringe on fundamental rights, falls within the prohibitions in Title VII and the Equal Protection Clause on sex discrimination."
Chai Feldblum, a long-time gay legal activist, said that ruling could provide some protection against gender identity discrimination in the workplace, but "it's not been anything you can depend on."
"Many courts," said Feldblum, "are saying that [the Price-Waterhouse decision applies] if a woman acts in a way that's non-traditional for a woman, but if a woman changes her gender and becomes a man, that is different and is not covered."
In his five-page explanation for submitting separate bills, Frank said, "we do not have sufficient support in the House" to include gender identity in the primary ENDA bill.
"The question facing [the LGBT community and its supporters] is whether we should pass up the chance to adopt a very good bill because it has one major gap," said Frank, in the statement. Frank said that public education and lobbying on gender identity was "much less far along" than that on sexual orientation discrimination.
Frank criticized what he said was "an unwillingness on the part of many, including leaders in the transgender community" to acknowledge that "there is more resistance to protection for people who are transgender than for people who are gay, lesbian and bisexual."
Frank said a head count of support for the inclusive bill made it "very clear" that enough Democrats would throw their support behind a Republican-led effort to delete gender identity from the measure or simply vote against the bill.
While LGBT leaders told Frank they would prefer to not go forward with ENDA at all, rather than delete gender identity, Frank said that would be "a disaster -politically, morally, and strategically."
"[I]nsistence on achieving everything at once," said Frank, "would be a prescription for achieving nothing ever."
But Equality Maine begged to differ.
"Maine was in a similar situation in the spring of 2005 when legislative leaders wanted to strip gender identity and expression from the non-discrimination bill," said executive director Betsy Smith in a statement issued Monday. "While we understood that some legislators had jitters about the new language, it was simply not acceptable to abandon part of the community. We took the time to educate and succeeded in keeping it in."
