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ENDA Legislation
Half a loaf is worse

The National Law Journal
Monday, November 19, 2007

he first bill specifically targeting job discrimination based on sexual orientation was introduced in Congress in 1996; it failed in the Senate by only one vote. On Nov. 7, the current version, H.R. 3685, the Employment Non-Discrimination Act of 2007 (ENDA), passed in the House, 235 to 184. The original ENDA, H.R. 2015, covered not only gays, lesbians and bisexuals, but also transgender individuals (collectively, GLBT): people whose "gender-related identity, appearance, or mannerisms" differ from their "designated sex at birth." The Democratic leadership pulled it in favor of H.R. 3685, which omits protection for transsexuals, cross-dressers and other employees with nonconforming gender identities. They did so because a head count showed they lacked the votes necessary to enact the more inclusive law.

This fallback move seriously split H.R. 2015's proponents, who disagreed over whether to support the "half-loaf" measure. Although compromise inheres in the legislative process, here the reformers should have voted "nay" or, if they could not stomach that, simply "present." Sacrificing transgendered workers' interests to those of their homosexual and bisexual colleagues — in effect, removing the "T" from GLBT — was bad strategy and worse policy. Backers of the substitute bill, such as Representative Barney Frank, D-Mass., and the Human Rights Campaign, focused on the historic prospect of getting at least one house of Congress to ban adverse employment actions based on sexual orientation. They also stressed that progress is often incremental. Granted, ENDA's passage marks a watershed in the advancement of GLB rights. Yet consider the cost. Weighing the positive against the negative, H.R. 3685 constitutes a backward step: morally, logically, legally and practically.

First, unlike a compromise measure exempting certain potential defendants, one that eliminates a class of victims who have shared the core hardships and aspirations of the statute's beneficiaries fails to pass the morality test. It sends a message that some members of the targeted group deserve to be treated more equally than others. Worse still, among sexual and gender minorities, transgender employees are the most vulnerable to discrimination. By 2008, 20 states and the District of Columbia will have laws protecting gay, lesbian and bisexual employees from workplace bias, but only 12 also extend to the transgendered. In addition, while 88% of Fortune 500 companies include sexual orientation in their equal employment policies, merely a quarter cover gender identity as well. American Civil Liberties Union, Working in the Shadows (2007).

Abandoning the transgender group is, thus, tantamount to tossing the weakest overboard to lighten the lifeboat. Moreover, as a matter of logic and law, sexual orientation and gender identity bias are inextricably intertwined. In the words of Matt Coles, director of the ACLU's LGBT & AIDS Project, both stem from deep-seated "beliefs about what is or is not appropriate for men and women" — with respect to jobs, relationships or self-presentation. "It makes little sense to split them apart."

Ironically, a handful of federal cases differentiate between the two in a manner that favors transgender plaintiffs. They rely on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). There, the U.S. Supreme Court upheld the sex discrimination suit of a woman denied partnership in an accounting firm because she did not dress and behave in a manner deemed sufficiently feminine. These decisions recognize that penalizing any worker for nonconformity to gender stereotypes now violates Title VII of the Civil Rights Act of 1964. But, in a further ironic twist, some others continue to follow the pre-Price Waterhouse pattern of conflating gender identity with homosexuality — and rejecting bias claims founded on either. (A number of cases have also sustained transgender discrimination actions based on state disability laws, a course unavailable under relevant federal statutes, which expressly exclude transgender litigants.) This spotty coverage makes national protection for them imperative.

Finally, from a practical standpoint, the incremental reform approach will likely leave the transgender community out in the cold for a long time, as Congress does not typically revisit new legislation in a hurry. Meanwhile, the "leaner and meaner" ENDA may, if enacted, actually impede helpful federal-court developments. Because it specifically defines sexual orientation as "homosexuality, bisexuality or heterosexuality," employers could argue that Congress plainly intended to bar claims based on gender identity, in light of the scrapping of H.R. 2015.

A companion bill will now be introduced in the Senate. One hopes that its supporters there will firmly resist its opponents' "divide and conquer" strategy and reject a stripped-down ENDA in favor of the inclusive version.