All Or Nothing ENDA – Consider For A Moment

Daniel Gonzales

October 2nd, 2007

The debate among gay activists on ENDA has on occasion come somewhat unhinged with things said like “no ENDA is better than an ENDA that excludes trans protections” while one blog went so far as to accuse dissenters of “abandoning” our trans allies.

One could argue, were transgenders “abandoned” in California, Hawaii, Vermont, Rhode Island, New Jersey, and Washington DC which all passed sexual orientation protections before gender identity?

Information and adapted graphic from the Gay and Lesbian Task Force.

See also:

Trans HRC Board Member Resigns

Michael Faris

October 2nd, 2007

I would argue that leaving out gender identity and presentation isn’t only leaving trans people behind, it’s leaving many queer (and even straight) folk behind. You might check out Andrea Hildreban’s post at Bilerico. She writes:

What attorneys saw on the front lines of handling discrimination cases, was that when the situation involved a gay man being harassed by co-workers for being a ‘fairy’ or a lesbian being told they need to start painting their nails and curling their hair to get their promotion, the words ‘sexual orientation’ in the law actually didn’t help.


October 3rd, 2007

I can’t believe we’re even talking about this – obviously until we can cure all cancer, we shouldn’t cure anyones cancer.

Jim Burroway

October 3rd, 2007

I’m not one to take an all-or-nothing approach on much of anything. Incremental change is very much ingrained in my DNA. But I do think that ENDA which doesn’t include transgenders is highly deficient and isn’t worth pursuing.

There are no reliable statistics, only anecdotes. But it’s my sense that transgenders do experience and are more likely experience employment discrimination at rates much higher than gays and lesbians. I’d argue that the need for ENDA for transgenders is greater than for the rest of us. And based on that, I don’t think it’s wise to have an ENDA become law which doesn’t include transgenders.

I’m in the group that feels that if we go along with splitting ENDA into trans-inclusive and exclusive parts, we are, in effect, abandoning them. The political realities in places like California, Vermont, Hawaii, etc. are very different from the political realities in the US Congress. I’m not so sure about the prospects of coming back to re-include them in the law anytime soon.

Incidentally, I’m also not so sure about the prospects of any kind of ENDA law making it past the president’s desk either, which makes this discussion moot on a big-picture level. That’s why I would rather we spend our energies educating Congress on the need for transgender-inclusive ENDA rather than going for the symbolic “victory” while establishing the precedent of getting a transgender-exclusive ENDA through Congress. This is a bad move on so many levels.


October 3rd, 2007

jim – i’m in complete agreement. the only possibly benefit we could get from splitting ENDA is to get the House on record in support of a sexual orientation-only ENDA (cause Bush will certainly veto). and when we’re talking about a legislative body that turns over every 2 years, weighing this limited benefit against splitting our community on an issue they’ve actually been able to circle the wagons around seems ridiculous.

Daniel Gonzales

October 3rd, 2007

Just for kicks this morning I calculated the average date at which trans protections were achieved by either route. Both ways had an average date in the first half of 2004 with the “complete package” route edging out incremental progress.


October 3rd, 2007

I was against ENDA sans-trans protections from the moment I heard they might not be included.

M. Faris brings up a good point. “Sexual Orientation” doesn’t cover feminine men and masculine women of any orientation who may be harassed or fired due to gender-nonconformity, rather than who they love and date.

Like it or not, gays and lesbians face discrimination based on our perceived gender-identity as much as our sexual orientation.

It’s rather ridiculous to leave them out, as we are also leaving parts of the LGB community at the same time. Essentially it’s saying, “Guys, butch it up” and “Girls, get a manicure and put on a skirt.”

I’m also wondering if Bush will bother to pass this one. During his first term, no way. But now that he’s on his way out anyway, he may be more inclined to do what’s right now that it can’t be held against him in an election.

Timothy Kincaid

October 3rd, 2007

I live in a state with protections. And it matters.

In California, GLBT people have as many rights and protections as anywhere in the nation (other than the title marriage). But the reason they exist is because we took an incremental approach.

But don’t be mistaken into believing that this was universally acclaimed by our community. Many people took an “all or nothing” stance at every incremental step, insisting that any compromise was a recipe for doom. They were not correct.

Ultimately we have to be pragmatic. Congress will not at this time pass a transgender inclusive non-discrimination bill. And if they did, it would be the focus of the 2008 election: a constant barage of “men in dresses” political ads which, frankly, would be very effective in much of this country.

Additionally, there is no way whatsoever that Bush will sign a transgender inclusive bill. But he might find it much more difficult to veto a bill that protects gay and lesbian people from job discrimination. There are very few compelling arguments against the bill as rewritten: it doesn’t “make employers hire men in dresses” or “puts men in the women’s bathrooms”. Nor does it “make Christian churches or schools hire homosexuals”.

So I guess the question is: For the gay men and women in 37 states that do not have protections at all, should we give them protection but leave out transgendered, or should no one get protection.

I favor non-discrimination provisions for transgendered persons. And transgenered persons are part of our community and are our friends and allies. But a true friend and ally does not insist that you do without simply because the political reality is that they will have to wait a bit.

And I doubt that those transgendered friends of ours would begrudge gay people job protections. The ones I’ve met were not that selfish or shallow.

Ben In Oakland

October 3rd, 2007

Timothy; I think you have hit the nail exactly on the head. This what Daniel diRito had to say.…_in_enda.php

Personally, I think the reason the groups have gone for the all or nothing approach is because they believe there is nothing to lose. Bush will veto it anyway, and there are not enough votes to override the veto. so, make a statement on principle. Unfortunately, I think it indicates a lack of principle just as easily as the opposite.

My biggest complaint– it shuts of the debate. The power of the closet is in its enforcement of silence. Passage of ENDA would require more people to talk about it and think about it, whether Bush vetoes it or not. That to me is a positive thing.

Bruce Garrett

October 3rd, 2007

“Personally, I think the reason the groups have gone for the all or nothing approach is because they believe there is nothing to lose.”

Maybe. The reason I’m against leaving transgender protections out of the bill is how do I look my neighbor in the face, who I know is just as deserving of these rights as I am, and tell them they’re holding me back? As far as I’m concerned, if they’re still left out, then I’m still left out.

But if it’s the cold, hard, impersonal, down to earth practical let’s just get as much of the job done now as we can approach you want, check the Lambda Legal analysis of the split bill. While it prohibits discrimination on the basis of sexual orientation, as it turns out, and apparently to accommodate the objections to including transgender protections, an employer can still fire you for what they regard as inappropriate gender expression. Do you see the problem there?

Maybe we should call it the straight acting gay ENDA? Or how about the Don’t Ask Don’t Tell ENDA?


October 3rd, 2007

In my opinion, the problem with accepting the T-less version of ENDA is that it sends the message that some people are not as worthy of protection, some people can be sacrificed to expediency and pragmatism.

This will come back to bite us. Homophobes are very good at finding any lapse in ethics on our part as proof that GLBTQ are selfishly seeking “special rights” and only care about ourselves.

One of the meme’s in western culture is “all for one and one for all” – a meme echoed in the concept of solidarity.

When did GLBTQ become the people throwing sacrificial victims into the volcano – offering up transgendered people to appease the god of prejudice the way so many conservative Christians offer up GLB people to appease their angy god?


October 3rd, 2007

What’s next- someone decides lesbians shouldn’t be included either? Strange that I don’t hear ANY transgender people agreeing that it alright to not include them. The gays and lesbians who think it is alright to have incremental change need to put themselves in those peoples’ shoes.


October 4th, 2007

Timothy, and actually others…

I see several people dodging this issue.

The wording is “gender identity” which, while including transexuals, is not limited to them. Part of what makes transsexuals a part of our community is the shared variance on gender identity.

Many gays do not conform to gender stereotypes. We know this, but I think many here are completely disregarding this very important fact.

The best way to explain this is to look at court cases. People have been able to skirt the gay issue by basically saying, “Oh I didn’t fire her because she’s a lesbian, I fired her because she wouldn’t wear makeup or grow her hair and fingernails out. I fired her for being too masculine.”

You guys seem to be under the impression that “sexual orientation” will mean no hardworking, law-abiding, company- supporting homosexual will be fired without recourse.

ENDA without gender indentity protections means that they can’t fire you for BEING gay, but they CAN fire you for ACTING gay.

So let’s be honest here. Leaving “gender identity” out of ENDA leaves these people out:

-People who are sexually ambiguous.
-Butch Lesbians.
-Feminine Gay Men.
-Anyone who does not conform to gender stereotypes in dress, mannerism, demeanor, vocally, or physically.

I seem to meet very few gay men and lesbians who conform exactly to expected gender stereotypes. It’s in fact, often the reason my gaydar goes off.

It’s going to be rather difficult to prove an employer fired someone for what they do outside the office, as opposed to being “too flamey” in the office.

So let’s be honest, leaving “gender identity” out enda leaves out transexuals, at least half the gay community, and probably a number of straight people as well.

Timothy Kincaid

October 4th, 2007

ENDA without gender indentity protections means that they can’t fire you for BEING gay, but they CAN fire you for ACTING gay.

OK, this is going to get some people going, but…

I do think that a privately held company can have an expectation that certain behaviors are adhered to by their employees on company time. I think companies are entitled to present an image and that this image can include such things as clothing, hair styles, and grooming.

Yep, I actually believe that.

So I don’t have a problem with a business, such as Disneyland for example, telling male employees that their hair cannot be on their ears (which, incidentally, they do). I have no problem with a business expecting gender-compliant appearances. I know that as a gay man I’m supposed to be horrified at such requirements, but too bad folks, I’m not.

Because I recognize the difference between transgendered people and a drag queen. While I love both, I know that a transgendered person is seeking to appear consistent with their internal gender. And I’ve yet to see a transgendered person that wants to look like a drag-queen at work. Transgendered people DO dress gender-compliant and, at least the ones I’ve known, prefer to dress appropriately for their line of work. I don’t want to stereotype, but the transgendered people I’ve known were a fairly conservatively dressed bunch of folks.

This bill as written WOULD protect someone for “appearing too flamey” (“flamey” being gay, I suppose) but you are right that they could not show up to work looking like Chris Cocker. I’m OK with that.

I happen to believe that gay people, even effeminate gay men and butch gay women, are quite capable of presenting an appearance that is business appropriate. I’ve known plenty that do. And I don’t think the desire to dress or appear otherwise by some trumps the standards of a company.

I can respect supporting the protections of transgendered people. I wish that such protections were a political reality. But let’s not pretend that this is somehow the same as protecting flamboyance in the workplace. Because this is an argument that is condescending to both gay people and to transgendered people.


October 4th, 2007

Timothy, while I agree that employers have the right to set certain hygiene, and cleanliness standards, as well as other appearance related standards — I think you’re missing the point, and trying to dodge me by tossing my argument into the “flamboyance” and condescending field.

Consider this from the Bilerico article posted by Faris in the first comment on this thread(bold added by me) :
“What attorneys saw on the front lines of handling discrimination cases, was that when the situation involved a gay man being harassed by co-workers for being a ‘fairy’ or a lesbian being told they need to start painting their nails and curling their hair to get their promotion, the words ‘sexual orientation’ in the law actually didn’t help.

Unless the offending harassers, bosses or policies said something specific about sexual acts with someone of the same gender, the ‘sexual orientation’ provision in the law wouldn’t apply. At least half of the egregious cases of discrimination were impossible to address with those legal terms. “

I fail to see how it’s okay to call someone a fairy in the workplace, or that getting a promotion has anything to do with a curling iron and manicures.

I guess what I’m saying is that for example, a man with a naturally high voice and a more feminine set of gestures, postures, etc should not be expected to “butch it up” just to keep his job. That has nothing to do with getting the job done, or done in a professional manner.

I’m not talking about someone wanting to show up at work looking like a drag queen, that’s a very extreme example of my underlying issue with leaving “gender identity” out of ENDA.

Please point to me the part of the bill that would address protections against appearing “too flamey” but doesn’t protect gender identity, I’m curious to know how that happened.

Jim Burroway

October 4th, 2007

Can someone provide a link to the text of the bill so we all know what we’re talking about? I’m rather ashamed that I didn’t insist on doing it when this post first went up.


October 4th, 2007

Bush is going to veto any version of ENDA. These sorts of laws are a violation of the very limited Constitutionally defined powers of Congress and I must disagree that you have a “right” to a job.

Supporters of anti-discriminationl laws assert that you have a “right” to use force against an employer to maintain your job. I disagree. A job is a voluntary contract between two parties, not something you can somehow own. Your boss should have the right to fire you for any reason, unless your employment agreement stipulates otherwise, just like you should have the right to quit for any reason. It’s called freedom of association.

And why this exemption for churches? There is no “homicide” exemption for the Catholic church. If discrimination is really a crime, there should not be a religious exemption.

Timothy Kincaid

October 4th, 2007


You are not alone in that opinion – it’s quite libertarian. I simply question whether you believe the same right to fire you for any reason also includes religion, sex, race, color, and creed.

In other words, is it OK with you that the new manager of the local branch office fires all the Latinos or all the Jews?


October 4th, 2007

Dictating appropriate dress for the workplace is not synonomous with dictating gender expression in the workplace. If I, as a woman, wear a tailored men’s cut suit with shirt and tie, I should not be eligible to be fired for lack of femininity. If the level of formality in dress is appropriate and my job performance is good, it should not matter that I mix and match men’s and women’s styles.


October 9th, 2007

I’m not the best at inserting code, so please don’t roast me.

But this illustrates exactly what I was talking about with leavng Gender Identity out of ENDA:

NYC Woman Accuses Bar Of Ejecting Her For Being Too Masculine

True the article does not concern an employment issue, but I realized that I having a hard time articulating what I was saying.

The woman was minding her own business, when an employee barged into the ladies room and demanded she leave. He refused to look at her identification, and the fact that she should even have to present that is insulting.

Timothy, We all know there are many shades between a feminine man and a full fledged drag queen. Just as there are a lot of shades between a masculine woman and a Drag King. There’s also a lot of room between different people’s idea of what is masculine and what is feminine. Leaving out gender identity means that a gay man who is less masculine than his colleagues can be fired for that. The employer can dodge the gay issue by making it about the man’s femininity. It doesn’t have to be a large, obnoxious display, either, it can be something quite small and innocuous.
And where is the line, can an employer decide there are too many flat-chested women in the office and demand that they all get breast implants if they want to remain employed? I understand dress codes and hygiene requirements, but should our employers get to decide the physical composition of our bodies, even if it’s irrelevant to the work we do?


February 17th, 2013

I have a dear gay senior friend who also believes that ENDA should’ve passed without us transgeders, and that civil rights is achieved with “incriments”. I had to politely disagree with him. There’s fem gays and butch lesbians who feel as if their sexual orientation IS linked to their gender identity (I don’t, but they do). They need fair employment as well, therefore prohibitting job discrimination against a person’s gender identity is a crucial part of ENDA for the whole LGBT! Most straight/cis gendered folks are too ignorant to even know the difference between gay and trans. We’re both looked at as weirdos, and face the same hatred, violence, and discrimination. We share a common struggle, that’s what bonds the T to the rest of the letters. And you wanna leave us behind? Y’all got some effing nerve! – Mia

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