ENDA: Waking Up Too Early To Possible Trans Subcommunity Erasure

by: Autumn Sandeen

Fri Oct 09, 2009 at 13:45:00 PM EDT

To my mind, this says [Sen. Kay Hagan (D-NC)] would have supported the sexual orientation only bill voted on last time, but she is not sure whether she can vote for the current bill and will have to "consider" it. This is exactly the type of "supportive non-support" that got gender identity pulled from the [Employment Non-Discrimination Act] last time. This should not be tolerated in 2009 or else we will wind up back in 2007.

-Dr. Jillian Todd Weiss

For those who aren't following Bilerico, Dr. Jillian Todd Weiss -- an Associate Professor of Law and Society at Ramapo College -- is running a campaign Facebook for an Inclusive ENDA. On Bilerico, she's listing a ENDA Targeted Legislator of the Day as a means for targeting our federal legislators who have not either co-sponsored the Employment Non-Discrimination Act (ENDA - S1584) or confirmed yes votes on ENDA -- some of those who have confirmed have only confirmed their support privately.

Prof. Weiss also has her own blog: Transgender Workplace Diversity. [Did I mention that she's a transgender woman whose working not only for transgender workplace civil rights, but for broader lesbian, gay, bisexual, and transgender (LGBT) community's workplace civil rights?] In that blog she explains the ENDA legislation, with heavy emphasis on how legally, a fully inclusive ENDA will impact transgender people.

Earlier this week, the ENDA Targeted Legislator Of The Day was North Carolina's Senator Kay Hagan. In response to that post by Prof. Weiss, a transgendernews reader sent a e-letter to Senator Hagan -- of whom she is a constituent -- about the Senator's position on a fully inclusive ENDA. Sen. Hagan's staff sent a response, and it's below the fold.

[Below the fold: Sen. Hagan, in Prof. Weiss's opinion, is giving us "'supportive non-support' that got gender identity pulled from the bill last time."]

Thank you for contacting me regarding the Employment Non-Discrimination Act of 2009. I greatly appreciate hearing your thoughts on this important issue.

The Employment Non-Discrimination Act (S. 1584), or "ENDA," was introduced in the Senate on August 5, 2009, and referred to the Health, Education, Labor and Pensions Committee, on which I sit. The legislation was also introduced in the House of Representatives earlier this year, but neither bill has been voted on yet. Similar proposals have been introduced dating back to 1975, though none have had enough support to pass both bodies of Congress.

ENDA seeks to prohibit workplace discrimination on the basis of actual or perceived sexual orientation or gender identity, and would allow individuals to file claims against an employer who discriminates based on these factors. For employers, employment discrimination would include refusing to hire an individual, terminating an individual's employment, or adversely affecting an employee's status based on that person's actual or perceived sexual orientation or gender identity. Additionally, it would prohibit discrimination in employment agencies, labor unions, or training programs. The bill would exempt religious organizations and the United States Armed Forces from these provisions. ENDA also includes several clarifications regarding its implementation. For instance, it would not prevent employers from enforcing policies that do not intentionally violate the bill as long as the policies are applied uniformly. The bill also would not infringe on an employer's ability to take action against an employee who is charged with sexual harassment. Further, under the bill, employers would not be required to build new facilities, nor would they be prohibited from enforcing a dress code.

I oppose discrimination in the workplace, and I support looking for ways to eliminate these unfair practices. Additionally, I supported legislation to address employment discrimination during my time in the North Carolina Senate, and I would have voted for the employment non-discrimination measure passed by the House of Representatives in 2008. I am committed to carefully considering all options and the potential impacts of implementing new laws or regulations, and I will be sure to take your concerns about the Employment Non-Discrimination Act into account as I review this legislation.

Again, thank you for contacting my office. It is truly an honor to represent North Carolina in the United States Senate, and I hope you will not hesitate to contact me in the future should you have any further questions or concerns.

When I forwarded the letter to Prof. Weiss, she sent me the following response (posted with permission):

To my mind, this says she would have supported the sexual orientation only bill voted on last time, but she is not sure whether she can vote for the current bill and will have to "consider" it. This is exactly the type of "supportive non-support" that got gender identity pulled from the bill last time. This should not be tolerated in 2009 or else we will wind up back in 2007. Those who caution against "alienating" our "allies" are indulging in the kind of DC horse-trading mentality that allowed and encouraged 2007 to happen...Our lives are too important and our wounds too deep. This statement by Hagan is "razzle-dazzle" and if we don't stand firm we will be out in the cold.

I suggest you all start thinking of actions to take to get Sen. Hagan firmly onboard.

This possible subcommunity erasure of trans people -- by the possible removal of "gender identity" language -- is what I'm referring to in the title to this particular piece. I'm concerned about how Senators (and Congressmembers), such as Sen. Hagan, don't see civil rights as human rights issues, but see them instead as issues that are DC horse-trading issues. To say the least, I, like Prof. Weiss, am also concerned about the possible removal of fully inclusive language in ENDA -- We have not won a fully inclusive ENDA yet, and we shouldn't be complacent and believe we've already won this.

So, this is why the project the Dr. Jillian Todd Weiss began on Facebook (of which my Blogmistress Pam is a co-sponsor of) is so damn important. And, this is why you personally need to contact your Congressmember and Senators about ENDA: The human rights or our broad, LGBT community are exactly what's at stake.

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