Non-Discrimination Bill Leaves Out Transgendered People

October was supposed to be a triumph for the lesbian, gay, bisexual and transgender (LGBT) community, thanks to the recent passage of a comprehensive hate crimes bill in both houses of Congress and what was expected to be a historic vote on HR 2015, the Employment Non-Discrimination Act, or ENDA, in the House. But instead, a debate over whether rights for transgenders should be included in ENDA is opening the possibility for a profound shift in the gay movement.

The bill is much more than semantics. In thirty-one states employers can fire an employee simply for being gay, while even more states allow bosses to sack anyone who might be transgender. ENDA is currently on hold over Congressman Barney Frank's move to split the bill in two, with one bill focused mainly on barring employment discrimination based on sexual orientation and a second nondiscrimination bill dealing solely with gender identity -- a bill many gay rights activists feel would never pass a vote.

Frank, the only openly gay man serving in Congress, surprised many leading LGBT rights advocates during a Sept. 27 meeting when he announced his whip count showed there were not enough votes to support ENDA if it included gender identity protections, and that in his opinion the best strategy was for those protections to go. Even though the bill exempts small businesses, religious organizations and the uniformed members of the armed forces, few if any of its supporters expect anything less than a veto from President Bush.

But in a Sept. 28 posting on Bilerico.com, Frank (who was not available for comment for this article) argued passing a less inclusive ENDA that ends up being vetoed is still much more preferable than a more inclusive ENDA that can't muster a majority vote in the House. "People have correctly pointed to the value of getting people used to voting for this," he wrote, "of the moral force of having majorities in either the House or the Senate or both go on record favorably even if the President was going to veto it."

In the same post Frank stressed that he still supported gender identity protections. But he added that "to take the position that if we are now able to enact legislation that will protect millions of Americans now and in the future from discrimination based on sexual orientation, we should decline to do so because we are not able to include transgender people as well, is to fly in the face of every successful strategy ever used in expanding antidiscrimination laws."

What unfolded over the next forty-eight hours apparently caught Frank and the Democratic leadership shepherding ENDA off guard. The vast majority of LGBT rights groups, both national and local, rejected Frank's argument and raised howls of protest over the jettisoning of transgender protections. On Oct. 1, Frank, along with Speaker Nancy Pelosi, Education and Labor Committee Chair George Miller and openly lesbian Representative Tammy Baldwin, said in a statement they were postponing the scheduled Oct. 2 mark-up of ENDA in committee until the end of October "to allow proponents of the legislation to continue their discussions with Members in the interest of passing the broadest possible bill."

The move created a rare divide between LGBT groups and Frank, considered a hero in the gay rights movement and a master tactician by many Washington insiders when it comes to the parliamentary maneuvers that drive tough bills forward.

Consider Lambda Legal, the LGBT legal rights organization, which got into a war of letters with Frank over the split bills. Lambda argued that removing gender identity language from ENDA would have unexpected consequences for both gay and straight people who have successfully used similar state nondiscrimination laws to protect themselves in gender expression cases -- for example, an effeminate heterosexual who is harassed by co-workers for not being "manly enough." Lambda began a letter to Frank with "It is not pleasant to have to disagree with a Congressman who has done so much that we admire and who has been a stalwart leader for our community."