ENDA: Out in the cold, again

  • by Gwendolyn Ann Smith
  • Wednesday February 23, 2011
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Illustration: Christine Smith
Illustration: Christine Smith

There are some things you can count on. The sun will rise in the morning, and set in the evening. Likewise, spring and summer will follow – and precede – fall and winter. Presuming no other anomalies, a baby will grow into a child, a teen, then an adult. You can always count, too, on death and taxes.

Then there's the Employment Non-Discrimination Act.

I've been in transgender activism since the early 1990s. Some of the first work I got involved with – back in the days when Garth Brooks and Nirvana climbed the music charts – was surrounding ENDA. Specifically efforts to get transgender-friendly language added to the bill. Opposed to this was a then-fledgling gay and lesbian rights organization called the Human Rights Champagne, er, Campaign Fund. HRCF argued that adding transgender protections just wasn't going to happen, but that the passage of ENDA would, perhaps, open the door for some later bill aimed at transgender protections.

ENDA went nowhere in Congress and then died in committee in 1994. It failed in 1995, then again in 1997, then 1999.

Every time, transgender activists would argue for inclusion, and every year they'd be told it was simply too soon. They'd never be able to secure the votes if they included gender identity and expression. Besides, we were told, people just wouldn't want to think of transwomen with penises in the ladies' washroom.

In 1999, the National Gay and Lesbian Task Force stopped work on ENDA over the lack of transgender inclusion, but the bill marched on.

ENDA died in 2001 and 2003.

In 2004, the Human Rights Campaign – having long since shed the "fund" from its name – stated it would only support ENDA if it included gender identity. In 2007, when that same language was stripped from the bill, HRC decided that it had crossed its fingers behind its back, and went on to support the non-inclusive ENDA.

ENDA passed in the House of Representatives in 2007, only to die in the Senate.

The last time ENDA was introduced was in 2009, as HR 3017, HR 2981, and S 1584. In each, it was referred to committee. In 2010, it was not introduced.

So what happened in 2010? This is where it gets somewhat interesting.

Prior to the installation of the current Congress, we saw a number of bills hurriedly get passed, including the repeal of "Don't Ask, Don't Tell" during last year's lame-duck session. Yet ENDA never came up. In the wake of DADT repeal, we've also not seen much more on ENDA.

According to Diego Sanchez, a legislative aide to Congressman Barney Frank (D-Massachusetts), ENDA had – for perhaps the first time ever – enough votes to pass. More than this, there were enough votes to defeat a motion to recommit. This would have been when transgender protections could potentially have been stripped from the bill.

So why didn't it go before Congress?

"We just ran out of time," Sanchez said on a conference call with LGBT leaders last month.

Meanwhile, transgender activist Dana Beyer puts the blame on "national GLBT leadership." In a piece in Metro Weekly , she, too, echoed Sanchez, claiming that a conversation she had with then-House Speaker Nancy Pelosi (D-San Francisco) indicated more overall support for ENDA than DADT. Beyer claims, perhaps rightly, that it may have been LGBT lobbyists who pushed for DADT over ENDA in large part to sidestep any issues with transgender inclusion muddying the waters.

Like I said, I think Beyer is somewhat correct here. That said, I see it more like this.

Repeal of DADT had built some visible momentum in the last few months leading up to the vote, which meant it was simply, seductively easy to go forward with it. Even given the support of ENDA over DADT, I suspect it was viewed as the easier "sell" both in and outside the Beltway. Then, after its passage, it gets so much easier to slap pictures of servicemen all over the nice, little fundraising letters that end up in my trash can.

Meanwhile – and this will be no surprise to anyone – DADT does not prevent the discharge of transgender servicemen or women. Gender identity or expression doesn't enter into it. While I am sure that some still-closeted transgender people will benefit from the repeal, it doesn't do anything to help those who may be out about their status.

So the net gain for transgender people? Effectively nothing.

Meanwhile, we still don't have the employment protections of ENDA. Protections that, given the current economy and obvious dearth of jobs, would have served a great deal more people than the repeal of DADT.

And now, in the wake of the passage of the DADT repeal, we're still not hearing a lot about the possibility of ENDA in 2011. Rather, the push is on for a repeal of the Defense of Marriage Act. While DOMA repeal will affect myself and other married transgender couples, it still leaves me feeling like it's a misplaced priority. It's important, sure – but let's try to protect peoples' jobs before we worry as much about the federal status of marriages, please?

So here we are again. ENDA may not have had a chance to die in committee, make it off the floor, or even pass this time before someone decided it needed to go away in favor of supposedly "safe" victories. Once again transgender people are left out in the cold.

ENDA has gone through three presidents and 17 years. Isn't it about time yet to get this over and done with?

Gwen Smith won't know what to do with herself when a trans-inclusive ENDA actually passes. You can find her online at http://www.gwensmith.com.