Gay Rep. Barney Frank has been a leading advocate of extending job bias protections to cover sexual orientation, even though a transgender provision was cut from the bill. (Blade photo by Henry Linser)
MORE INFO Stephen Clark is a law professor at Albany Law School. He can be reached via this publication.
United ENDA’s flawed reasoning Activists, politicians overstate viability of inclusion and falsely defame incrementalism.
Thursday, November 22, 2007
UNITED ENDA OPPOSES a “gay only” version of the Employment Non-Discrimination Act (ENDA) because, the group says, it would make adding transgender protections later more difficult. The group demands a “fully inclusive” ENDA now.
State and local experience, however, contradicts United ENDA’s claim.
Protections for transgender workers have been enacted using three different strategies: inclusion, incrementalism and concealment.
Inclusion simultaneously adds both “sexual orientation” and “gender identity” to a civil rights law. This ideal strategy is the one that United ENDA is now demanding at the federal level.
Incrementalism also adds both traits to a civil rights law, but not simultaneously. “Sexual orientation” is added first, “gender identity” later. The version of ENDA that passed the House embodies this strategy, by deferring “gender identity” for now.
Concealment is a third strategy. It adds only “sexual orientation” to a civil rights law, but transgender protections are covertly woven into the definition of sexual orientation in hopes of enacting them with little notice.
State and local experience with these strategies reveals at least four flaws in United ENDA’s demand for an inclusive strategy at the federal level today.
First, inclusion has not yet proved sufficiently viable, especially at the state level.
The results are mixed at the local level. Over the last decade, inclusion succeeded in about 34 places and became increasingly common. But incrementalism or concealment succeeded in about 40 other places. Tellingly, moreover, it is concealment that recently succeeded in such “Middle America” locales as Dallas and Peoria.
At the state level, inclusion has succeeded only twice. Every other time statewide protections have been enacted, the successful strategy was either incrementalism (four states plus D.C.) or concealment (six states). Even recently, inclusion has been the least viable strategy among states.
This record suggests that public opinion has not evolved sufficiently to make inclusion a viable strategy on a nationwide basis either, as recent events in the House confirm.
THE SECOND FLAW in United ENDA’s repudiation of incrementalism is the disregard of its success rate.
In only half the places where “gender identity” has been added to civil rights laws was it added using an inclusive strategy. In the other half, incrementalism succeeded. It is no dead end.
The third flaw in United ENDA’s argument is blaming incrementalism for delays in enacting protections for transgender workers. Advocates complain that a particular state or municipality added “sexual orientation” to its civil rights law years ago but still has not added “gender identity.”
But incrementalism did not cause those delays; public attitudes did. Before 1997, only a dozen protections for transgender workers were enacted anywhere, and almost all of them through concealment. Transgender protections were just not politically viable in most places, no matter the strategy.
Only recently have attitudes evolved sufficiently to allow enactment of transgender protections on a somewhat wider basis without resort to concealment. Incrementalism first succeeded only in 1994 (San Francisco) and inclusion in 1998 (Benton County, Oregon). Since then, about 90 protections have been enacted, about as many by incrementalism as by inclusion.
In today’s more hospitable climate, incrementalism has found much success. A third of the states and many of the municipalities that added “sexual orientation” to their civil rights laws in previous decades have already gone back and added “gender identity.”
That trend will continue. Connecticut, for example, nearly added “gender identity” to its civil rights law earlier this year, and advocates are trying hard to do the same in Maryland. Attitudes are shifting.
THE FOURTH FLAW in United ENDA’s argument is ignoring idiosyncratic explanations for the failure of some jurisdictions with “gay only” laws to go back and add “gender identity.”
A third of the states in that situation already protect transgender workers under laws banning discrimination based on sex or disability. This alternative protection diminishes the urgency to enact new bills. As the Massachusetts Transgender Political Coalition acknowledges, adding “gender identity” would simply replicate protections that already exist under the law of that state.
Local political conditions are another explanation. Wisconsin has grown more conservative since transgender protections have become more viable elsewhere. New Hampshire, in contrast, has become more liberal, but its gay and transgender groups have joined United ENDA and declared incrementalism a failure without even introducing a gender identity bill there.
United ENDA is incorrect. It overstates the viability of inclusion and falsely defames incrementalism. Choice of strategy has always depended on the strength of public support for transgender protections in the particular place at the particular time.
United ENDA refuses to admit that support is simply not yet great enough for “full inclusion” to succeed in most states, let alone in Congress.
The
following comments were posted by our readers and were
not edited by the Washington Blade. We ask that you
treat others with respect; any post deemed offensive will
be removed.
jeri . on 11/29/076:45 PM:
that is correct, stephen. why should anyone care? united enda's main goal is too keep the community united. the military makes up an even smaller minority. on principal, we should all be demanding equal rights for the military before anyone else. the military should NOT be excluded from a non-discrimination policy. but wait, that isn't the incremental way - let's just keep doing it over and over again one baby step at a time. ****** "how many years can some people exist before they're allowed to be free?" ****** the time is now. it is 2007. the entire GLBT needs to start demanding equality, and stop asking for acceptance and permission - but that won't happen because we aren't united - yet. there are too many individuals willing to accept the table scraps that the politicians throw to us like animals. consider yourself fortunate! civil unions, DADT, and DOMA. now an exclusive enda. they were all considered incremental. they must have been a success.
stephenclark on 11/29/074:57 PM:
jeri, no one's version of ENDA addresses the military ban, and not even United ENDA has demanded that ENDA be held hostage until such time as Congress is ready to allow gays and lesbians to serve openly in the military.
jeri . on 11/29/0712:07 PM:
explain "irrelevant" to someone denied their rights. explain it to our men and women in uniform hiding in the closet for fear of being discharged. why should they, or trans, or anyone - be left behind in a struggle for equal rights? the problem is, too many have been too comfortable giving up the rights of too many others for too long. by the way, the law will not secure a job for anyone - it will only set a moral standard. perhaps the only way we can educate those outside our community, is to first educate those within our community. we are not abstract issues and we are not irrelevant. we are human beings.
stephenclark on 11/29/079:51 AM:
jeri, my point is that the length of time is an irrelevant point that United ENDA has mistakenly emphasized. The enactment of a "gay only" ordinance does not delay transgender protections for any specified period of time. Whether the "gay only" ordinance was enacted 2 years ago or 20 years ago, we're just now becoming able to enact transgender protections in many places. Please explain how United ENDA's position, that Montgomery County should have purposely withheld job protections from gays and lesbians from 1984 to 2007, would have secured a single job for a single transgender worker during that time period. But please don't imply that an inclusive ordinance could have been enacted in 1984 or even 1994. There is absolutely no historical precedent for that claim, although some form of concealment might have worked.
jeri . on 11/29/078:48 AM:
23 years later, and it is "incrementalism" that was a success. please explain that success to those individuals who were denied employment and essentially forced into poverty or petty crime by their lack of viable options. explain the success of "incrementalism" to those who weren't strong enough to fight back and just gave up - for twenty three years. ***** there is no success in compromising and denying an entire segment of society their basic human rights. such a compromise only represents that one is comfortable with injustice. such a compromise only represents that one is comfortable with intolerance. admission of failure does not become success solely because one is comfortable with it.
stephenclark on 11/27/077:18 PM:
Incrementalism succeeded again today, this time in Montgomery County, Maryland, which just approved an ordinance banning gender identity discrimination. Montgomery County banned sexual orientation discrimination way back in 1984, and Maryland did so in 2001. Montgomery County and Palm Beach County, Fla., viewed together, illustrate an important point. Success in passing transgender laws does not depend on whether or how long ago a "gay only" law was enacted, but on how much public attitudes have shifted in favor of transgender protections in the particular community at the particular time. If Montgomery County's 1984, "gay only" law was responsible for a 23-year delay in adding transgender protections there, why didn't Palm Beach County's 2002, "gay only" law delay enactment of transgender protections there until 2025? The answer is that both enactments are explained not by the lag time between sexual orientation and gender identity but by the fact that it is 2007 in both places, and public attitudes in 2007 have generally begun to shift toward greater understanding of transgender issues.
stephenclark on 11/27/079:03 AM:
Sorry for the confusion over the federal bill number in my posts. It is H.R. 2015, not 2150.
stephenclark on 11/27/078:58 AM:
To continue, ZoeB, H.R. 2015, in contrast to the Colorado bill, would use the phrase "sexual orientation or gender identity" 18 different times in the bill's text, and gender identity always appears right alongside sexual orientation in the operative provisions of the bill as a new, distinct protected trait. That is full inclusion, not concealment. Moreover, in provisions dealing with restrooms and dress codes, H.R. 2150 explicitly says employers must accommodate an "employee's gender identity as established with the employer at the time of employment or upon notification to the employer that the employee has undergone or is undergoing gender transition." That's a terrific provision that I'd love to see enacted. But the only thing remotely similar in the Colorado bill is an ambiguous provision that says employer dress codes must be "applied consistently" (sec. 24-34-402(5)), whatever that means. There is no reference to notification of gender transitions and nothing at all about restrooms in the Colorado law. I'm sorry, but claiming the Colorado bill is just like H.R. 2015 and thus proves that H.R. 2015 is viable is just more of United ENDA's unfortunate pattern of distortion. Don't believe everything they say. They have a definite "communications strategy" at work here.
stephenclark on 11/27/078:43 AM:
No, ZoeB, the Colorado bill did exactly what I described as concealment. When you look up any of the bill's _9_ new bans on discrimination, all you find is the following: It is illegal to discriminate "because of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry." Sec. 24-34-402(1)(a). Gender identity is nowhere to be seen. It's only if one goes to the trouble to look up the definition of "sexual orientation," in one provision of the bill, that one discovers that 2 words - "transgender status" have been slipped into the def. of "sexual orientation," even though trans status isn't a sexual orientation. That allows the bill to be sold as a simple gay-rights bill because while the bill added "sexual orientation" to the law in 9 different places, there is only the one covert reference to trans status, but one that slyly adds it to the meaning of sexual orientation, so it is indirectly included in all 9 new bans. Advocates deliberately avoided adding "gender identity" in all 9 places. H.R. 2150, the federal bill that United ENDA demands, does try to put gender identity directly into the operative provisions that ban discrimination, not into a warped definition of "sexual orientation." The Colorado statute is NOT like H.R. 2150. So when United ENDA says H.R. 2150 is viable because Colorado passed a "fully inclusive" bill, that is disingenuous. The Colorado bill was deliberately drafted to conceal mention of gender identity.
ZoeB on 11/26/0711:30 PM:
I've looked at the data about "covert", and it's badly flawed. Example: "Colorado Sec. 24-34-401 (7.5): “Sexual orientation” means a person’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or an employer’s perception thereof." where "transgender status" is explicitly included is considered "covet" rather than "inclusive". Perhaps the author would like to amend the entry here, and similar errors. Then we can talk.
jeri . on 11/26/0711:02 PM:
hmmm! who is mine enemy? i suppose it could be the fundies, who might view me as a homosexual man who likes to wear womens clothes; or it might be some other who just view me as an abomination; or it might be some well meaning gay man who just doesn't understand that if one person isn't free, then none of us are. my enemies are those who would deny anyone their right to life and liberty and the pursuit of happiness. my enemies are those who would deny my brothers and sisters their humanity, or trade off their rights because it is expedient. barney frank my friend? since he did the fundies dirty work for them, i doubt that he qualifies in spite of his "good intentions". you are correct, dale, i don't have many friends. i am picky. i have standards. my friends have to be able to embrace the humanity in everyone. they have to be able to see the similarities and not the differences. and they have to value life more than the rule of law. the road in front of me is very long, dale. at least with my friends, my journey will be in good company.
Dale Carpenter on 11/26/076:32 PM:
Stephen: This is an important and reasoned contribution to a debate that has been dominated by emotional appeals. Thanks much. Jeri: "I'd rather lose with my friends than win with my enemies" is a catchy slogan but not a program for political progress. The language of "enemy" is especially divisive and unhelpful. Who exactly is your "enemy" in this debate? One of the large problems with the United ENDA coalition is that its defenders and spokespersons have often treated as "enemies" people like Stephen Clark and Barney Frank, who sincerely support TG civil rights laws but honestly disagree about tactics. If progressive Democrats like them are really your enemies, you are left with very few "friends," and none with any political leverage. I hope cooler heads prevail in the fight for TG rights; otherwise, you have a longer road ahead than any of us could have imagined before this debate began.
stephenclark on 11/26/075:08 PM:
Today comes word of another success for incrementalism. Pauline Park reports that Palm Beach County, Florida, which enacted a "gay only" law in 2002 has just approved an amendment adding "gender identity" to its local ordinance. The lag time between step one (sexual orientation) and step two (gender identity) was only five years, and victory for everyone was achieved without making gays and lesbians in Palm Beach County continue to endure discrimination, closets, and hostile work environments during the last five years. See http://visiblevote08.logoonline.com/2007/11/26/florida-transgender-victory-but-enda-nonda/#comment-4478
jeri . on 11/24/079:55 PM:
there is a lot of negativity here. "United ENDA is incorrect." "United ENDA refuses to admit that support is simply not yet great enough"***** in spite of all mssr. clark's list of "flaws", united ENDA makes no representation that is as absolute as clark's allegations of their intention, design, or even their ultimate success. the strategy of united enda is to honor commitments and loyalty. united enda might be guilty of idealizing the concept that ALL of our community - the human one - deserves the right to work and live our lives with dignity. oh yes, that united enda bunch is a foolish lot. stephen clark says they are doomed to failure, for sure. me personally, i would rather fail along side of my friends than win alongside of my enemies. i suppose it has something to do with ideals. silly me.
Ye Olde Fart on 11/24/075:08 PM:
Without going into all the details, I would have to admit that as the questions now stands, I have to agree with Stephen Clark.
d.a.r. on 11/22/078:33 PM:
I am always amused at attempts to defend the indefensible. Mr. Clark makes some apparently logical, cogent arguments. But he detracts - the usual tactic applied in these cases. This whole situation is not about inclusion, incrementalism or concealment - or which strategy is best. This version - trans inclusive or not - has NO CHANCE of passage with Bush in the Oval Office. So why was this done? It's not an "incremental" step. This is a clear attempt to jetison the T from the LGB-T alliance. Why, I cannot say, but HRC's historic antipathy toward transgenders is clearly coming forth here.
ZoeB on 11/22/077:46 PM:
At last, some facts. I'm coming from a position of seeing incrementalism as a failure, as I've never seen a cogent argument before as to why it wasn't.
It will take me a while to look at the data, but at least Stephen Clark is making a rational argument based on facts.
I reserve the right to disagree later with his conclusions, but right now, this is a massive step forward in the debate. It may change my mind.
stephenclark on 11/22/0711:44 AM:
Note that you may have to cut-and-paste the hyperlink into your web browser in order to download the Excel file.
