Nov 22, 2007   | COMMENTS     

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.