EDITORIAL

ENDA gets trans-jacked
HRC says it won’t support workplace protection for gays unless trans rights are included. That mind-boggling decision is wrong politically, legally and morally.

CHRIS CRAIN
Friday, August 13, 2004

The term “political correctness” has been so overused by the Rush Limbaugh crowd in recent years that it is almost devoid of meaning. But the leading gay and transgendered rights groups proved yet again that being P.C. can still have consequences for their supposed real-world constituents.

Last weekend, the board of the nation’s largest gay rights organization, the Human Rights Campaign, voted against the interests of the vast majority of its own members to withhold support for federal workplace protection for gays unless Congress agrees to a provision covering “gender identity and expression.”

Until the rise of marriage as the most pressing issue in our movement for equality, workplace discrimination and the federal Employment Non-Discrimination Act had been the No. 1 priority.

Polls show longstanding support from a strong majority — even among conservatives and Republicans — but ENDA has never passed either house of Congress, though it came one vote shy in the Senate in 1996. ENDA has languished even as gay-friendly Democrats controlled at various times the House, the Senate and the White House.

Given that sorry legislative track record, it is mind-boggling that HRC has caved into trans activists and other groups — including the National Gay & Lesbian Task Force and PFLAG — and is now insisting ENDA should be passed only if it also includes protections for transgendered people.

IF HRC AND these other groups have their way, workplace protection for gays and bisexuals will be held hostage until a majority in Congress (and the president) agrees to protection for transgendered employees.

This “trans-jacking” of ENDA is wrong politically, legally and even morally. And it’s the latest sign that the groups at the supposed helm of the movement for gay civil rights are out of touch with their constituents and sadly adrift when we need them the most.

Matt Foreman, the Task Force executive director, should know better. As head of the Empire State Pride Agenda, New York’s gay rights group, Foreman accepted a civil rights bill for gays in that state even though trans protections weren’t included.

In a statement released before the HRC board meeting, Foreman cried “mea culpa” for his successful New York strategy, and explained his newfound resolve on ENDA by working himself into a policy pretzel that would make John Kerry proud.

Without the compromise Foreman and others agreed to in 2002, hundreds of thousands of gay men, bisexuals and lesbians living in New York today — including many who are also transgendered —would not enjoy civil rights protection on the basis of their sexual orientation.

The GOP-controlled New York Senate would not have allowed it, and Republican Gov. George Pataki would not have signed it. The same is true, of course, in Washington, where Republicans a lot more conservative than Pataki are in charge.

REFUSING TO SUPPORT ENDA without trans protections also makes no sense legally. HRC has made the peculiar claim that gay people sometimes endure discrimination because they are effeminate men or butch lesbians and won’t be protected unless ENDA is trans-inclusive.

But they have not offered up even a single case to back up their claim. In fact, HRC and the trans activists have it exactly backwards, and they know it.

Courts have already ruled that existing federal and state laws that protect against gender bias protect transgendered people. Those rulings aren’t universal, but they offer more federal protection than gays currently enjoy.

What’s more, if ENDA passed without explicit protections for “gender identity and expression,” transgendered people would still in many cases be winning newfound workplace rights.

Which is a more likely scenario: HRC’s worry that a gay man might be fired by a boss who is gay-friendly but nonetheless intolerant of effeminate men? Or an anti-gay boss who fires a male-to-female transsexual because “he’s a faggot”?

A transgendered person fired for being perceived as gay or due to anti-gay bias would be protected under ENDA even if it only adds actual or perceived “sexual orientation” to federal civil rights law.

BUT BEYOND THE naïve political judgments and wrongheaded legal analysis, hijacking ENDA for transgendered protections is downright immoral.

If legislation can be achieved that wins some civil rights for some people — in this case, almost all of HRC’s constituents — that is better than nothing. Just as domestic partner registries are better than nothing, civil unions are better than DP registries, and neither should be sacrificed indefinitely until gay couples can marry.

If HRC and the Task Force are right, then civil rights laws for African Americans and women should have waited for gay rights and trans protections as well. And existing federal hate crime laws based on race and religion shouldn’t have been passed until they could be amended to add protections based on gender, handicapped status, sexual orientation and (of course) gender identity and expression.

Transgendered people in opposite-sex relationships can marry under the existing laws of many states. Should they be denied that freedom until same-sex couples can do likewise? Should heterosexual couples be prevented from marrying until same-sex couples can?

It would be wrong and immoral for us to expect others to be treated unfairly until we are treated equally. And it is just as wrong and just ...

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