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Leave no one behind

This Magazine Staff

Wait your turn. I’m sure we all heard those words as children, as we stood in line for rides at amusement parks, or impatiently allowed siblings to play with coveted new toys. But in the fight for human rights, should we be telling anyone to wait their turn when it comes to such urgent matters as hate speech protections and workplace anti-discrimination laws?
This is a question that the queer rights movement in the United States is grappling with right now, in regard to the Employment Non-Discrimination Act (ENDA), a piece of legislation that has been on the books in one form or another for over 30 years. Because believe it or not, it is absolutely legal to fire someone for being gay under U.S. federal law, and in 31 states. And this is the first time in U.S. history that the ENDA has enough Democrat votes to make it through the House of Representatives relatively unscathed.
The most recent version of the bill, which has been floating around for several months, included language that would protect people based on both sexual orientation and gender identity. This version of the ENDA had wide support from hundreds of queer and trans organizations in the U.S. But on September 28, Congressman Barney Frank announced his intention to split the ENDA into two bills — one that would protect sexual orientation (and would likely pass), and another to protect gender identity (that would surely fail).

Frank’s argument is that it’s better to pass the partial legislation and protect millions of gay and lesbian people in the workplace, than to sacrifice the ENDA at the alter of trans rights. He argues that the American public hasn’t had enough time to absorb and understand trans issues, and that if the gender provisions were to be struck down at this stage, it could force politicians into a corner. Because if they were to vote against trans rights due to a lack of understanding or constituent support, they could be forced to stick to that position in the future, due to intense scrutiny of perceived “flip flopping” on issues that are brought to the House for a vote.
“Antidiscrimination legislation is always partial,” Frank writes. “It improves coverage either to some group or some subject matter, but never achieves everything at once. And insistence on achieving everything at once would be a prescription for achieving nothing ever.”
Frank’s decision has ignited what several writers have referred to as a “family feud” within the U.S. queer community. Hundreds of bloggers are grappling with the question of what’s more important — pragmatism or principle — in regard to the ENDA. But after an absolutely deafening outpouring from hundreds of queer advocates, the consensus that seems to have emerged (even belatedly supported by the squarely mainstream Human Rights Campaign), is that people want to see a united ENDA, and will not stand for gender protections being parsed off into an un-passable bill.
The arguments in support of a united ENDA vary. Many people simply refuse to leave their trans friends to fight another decades-long battle for employment protection on their own. They argue that the trans community has stood shoulder-to-shoulder with gay activists since Stonewall and have been instrumental in the fight against AIDS and in support of same sex marriage. They recognize that the political climate in the U.S. is so hostile to gays and lesbians, that it’s virtually impossible to conceive of a stand-alone trans rights bill passing during their lifetimes.
Others argue that the gender protections in the ENDA don’t just protect trans people — they protect everyone. Lambda Legal recently released an analysis of the stripped-down ENDA, arguing that it is riddled with loopholes that would erode any protection of gays and lesbians in the workplace, specifically “lesbians, gay men and bisexuals who may not conform to their employer’s idea of how a man or woman should look and act.” In other words, “straight-acting” queers might be offered come level of protection under the split bill, but butch women and effeminate men could easily be fired, if their employer claimed that “their conduct was actually based on gender expression, a type of discrimination that the new bill does not prohibit.”
In Canada, employment rights for gays and lesbians have been on the books for more than 20 years, and some argue that the provisions in the Charter of Rights and in provincial human rights codes based on “sex” provide sufficient protection against gender-based persecution. But trans activists are working hard — particularly in Ontario — to see gender identity explicitly protected in provincial and federal laws. Their campaign is gaining momentum, and it seems likely that unlike our allies in the U.S., we will see this legislation passed within the next decade.
Unfortunately, the deep soul-searching over the ENDA in the U.S. really boils down to a matter of semantics. Because the bill probably doesn’t have enough votes to pass through the Senate, and if it does, President Bush will veto it. Given that the decks are so stacked against U.S. queers, doesn’t it make more sense for the community to stand together and let no one be left behind?
— Cross-posted to Dykes Against Harper

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