Should we kill ENDA if transgendered people aren’t included?

There’s a debate raging in the gay community over an upcoming vote on the most important piece of civil rights legislation to the gay community, ever. We are on the verge of passing, at the federal level, the Employment Non-Discrimination Act, legislation that would make it illegal for an employer to fire, not hire, no promote an otherwise qualified employee or job candidate simply because they’re gay. Some are now arguing that if transgendered people are not included in ENDA, the gay community should not support its passage.

Most Americans, including lots of people in the gay community, do not realize that under federal law it is LEGAL to fire someone for being gay. It is also legal in most states. Contrary to popular belief, “discrimination” is not illegal in America, and it’s not illegal under the Constitution. It is only illegal (more or less) if your particular class is specified in legislation. If you read the existing civil rights act, you’ll see it lists very specific categories that are covered (race, religion, national origin…). It is not a blanket protection against “discrimination.” That is why ENDA is needed. And that is why ENDA is not “special rights” or extra rights being granted to gay people and not other Americans – we are not included under the current civil rights laws, and that’s unfair. Currently it is legal to fire someone for being gay under federal law and in most states. Don’t believe me? Look it up yourself.

That brings us to today. ENDA is very close to passing, many expect it to pass, in both the US Senate and the US House. The bill was expected to include not just gays, lesbians, bisexuals and heterosexuals (i.e., all sexual orientations), but it also was expected to include “gender identity” (i.e., transgendered people):

Transgender is generally used as a catch-all umbrella term for a variety of individuals, behaviors, and groups centered around the full or partial reversal of gender roles. More recently, the term transgender can also mean someone who considers that they fall “between” genders, not identifying strictly to one gender or the other, identifying themselves as neither fully male, nor female.

We now hear from House Democratic leaders, including openly-gay congressman Barney Frank, that ENDA is dead if it includes gender identity/transgender.

Some in the gay community, including the National Gay and Lesbian Task Force, say that if transgender is not included in ENDA, the legislation should be killed. Others say that we should take half a loaf, pass ENDA without gender identity, and continue to fight for transgender rights in the future – this is what happened in New York where the lead gay group accepted ENDA-like legislation that did not include gender identity.

I’m not going to weigh in, yet, because I’m curious what you all think and don’t wish to prejudice the discussion. I will, however, give you a bit more background on the various points of view.

Kill ENDA if gender identity is not included
The main argument here is that we shouldn’t leave a portion of our community behind. We’d never pass ENDA if it only included lesbians but left behind gay men, so why pass it if it doesn’t include transgendered people? The underlying assumption here is that gender identity is the same thing as, or close enough to, sexual orientation as to make gays, lesbians, and transgendered people all one family.

Pass ENDA even if gender identity is not included
Depending who you speak to, there are various arguments here. The first is that it’s better to take half a loaf than nothing. The second is that the gender identity issue is new to the game – gays and lesbians have been lobbying for decades to pass this legislation, gender identity advocates have not been lobbying, have not been a serious movement, nearly as long. Thus, their time will come, but it’s not time yet. And a third argument is that gender identity has nothing to do with sexual orientation, so what is it doing in the bill at all.

This third point is perhaps the most crucial, the most controversial, and the least debated issue in this entire debate. While some, many, consider the gender identity community part of the gay community, others ask when this addition to the family occured. Some of the opposition to the inclusion of transgendered people is based on prejudice, a visceral dislike of “drag queens” and the like. And I suspect some of the support for the inclusion of transgendered people is based on the opposite gut instinct, a visceral like of and sympatico for transgendered people, rather than a rational argument as to why gay men are as similar to transgendered people as they are to lesbians. But some of the opposition is based on a legitimate disagreement as to whether believing you are a man trapped in a woman’s body is the same thing as, or similar enough thing to, being a man who likes other men or a woman who likes other women.

I’ve not seen a lot of public debate in the gay community about the transgender issue being akin to sexual orientation, other than from those who argue that of course gender identity should be included in the larger gay community and of course we should kill ENDA if they’re not included. I also suspect that the lack of a debate is not a true indication that a debate does not exist. So, let’s have one.

Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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