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Tuesday, August 3, 2004

ENDA as We've Known It Must Die
Matt Foreman, Executive Director
National Gay and Lesbian Task Force


For many years, our community has debated the place of transgender people in the Employment Non-Discrimination Act (ENDA). The time for debate is over. The question must be called. ENDA must be amended to protect transgender people. If it is not, we all must walk away from it.

I would completely understand someone saying that it's the height of hypocrisy for me to be saying this. After all, I was Executive Director of the Empire State Pride Agenda when New York enacted the Sexual Orientation Non Discrimination Act (SONDA), which extended broad non-discrimination protections to gay, lesbian and bisexual - out not transgender - New Yorkers. All I can say is that hindsight is 20/20. I made mistakes in New York and that painful experience seared into my mind and heart three lessons that I think are directly applicable to ENDA.

The first lesson is not to accept what legislators have to say on this subject, which is invariably that trans-inclusion will kill legislation. In New York, the leaders of each house of the legislature exercise absolute control over everything (and I do mean everything). For years, we asked the leadership of the Democrat-controlled Assembly to add "gender identity and expression" to SONDA and every time the answer was a very curt "No." On the side, we'd be told that "Look, let's be honest. It took this long to get members OK with you (gay) people, but this transgender thing? No way." (A lot of what we were told was far worse than this, but being an insider organization we could never go public with those comments. That's the way it works.)

We accepted that answer because we thought we had to. We thought that making a stink about this would derail other legislative priorities - like enacting a hate crimes bill, making sure a DOMA never saw the light of day, and winning significant appropriations for LGBT health and human service programs.

In hindsight, my judgment was wrong. Ultimately - and often reluctantly - legislators do have to respond to the pressure of constituencies they support. Ultimately, a constituency has the right to decide what kind of legislation is advanced on its behalf. I believe now that if we had insisted on trans-inclusion years back, it would have happened, maybe not immediately, but it would have happened. Part of my resistance was a belief that we could only get so much, and that pushing for too much would have jeopardized everything else. As we went along, I began to realize the more you ask for the more you get, and the harder you push,
the quicker it comes.

Working at the Task Force, I've already witnessed dozens of situations at the state and local level where legislators have initially said no to trans-inclusion. Our community, united, has said no way. And guess what? In almost every instance, legislators have backed down and the bills have moved forward with trans-inclusion never an issue.

It feels like ENDA is caught in a similar situation. ENDA's Congressional sponsors, including our champion Barney Frank, believe that trans-inclusion will cripple ENDA's chances and that it will cost the support of some co-sponsors. (I have no doubt Barney and our community's insider lobbyists are hearing the same kind of egregious transphobic statements from members of Congress that we heard from legislators in Albany.) Our side probably feels like we have no choice and can't risk angering key allies by demanding trans-inclusion, particularly since we have had to lean on House and Senate members to vote against anti-marriage legislation and other attacks.

I do think our community has options. For one, we should make sure that our legislative allies are the ones with no choice - a trans-inclusive bill is the only bill acceptable. Period. Years of friendly persuasion